[Federal Register Volume 79, Number 36 (Monday, February 24, 2014)]
[Rules and Regulations]
[Pages 9987-9989]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-03847]



Agricultural Marketing Service

7 CFR Part 966

[Doc. No. AMS-FV-13-0076; FV13-966-1 FR]

Tomatoes Grown in Florida; Increased Assessment Rate

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Final rule.


SUMMARY: This rule increases the assessment rate established for the 
Florida Tomato Committee (Committee) for the 2013-14 and subsequent 
fiscal periods from $0.024 to $0.0375 per 25-pound carton of tomatoes 
handled. The Committee locally administers the Federal marketing order, 
which regulates the handling of tomatoes grown in Florida. Assessments 
upon Florida tomato handlers are used by the

[[Page 9988]]

Committee to fund reasonable and necessary expenses of the program. The 
fiscal period begins August 1 and ends July 31. The assessment rate 
will remain in effect indefinitely unless modified, suspended, or 

DATES: Effective Date: February 25, 2014.

Specialist, or Christian D. Nissen, Regional Director, Southeast 
Marketing Field Office, Marketing Order and Agreement Division, Fruit 
and Vegetable Program, AMS, USDA; Telephone: (863) 324-3375, Fax: (863) 
325-8793, or Email: [email protected] or 
[email protected].
    Small businesses may request information on complying with this 
regulation by contacting Jeffrey Smutny, Marketing Order and Agreement 
Division, Fruit and Vegetable Program, AMS, USDA, 1400 Independence 
Avenue SW., STOP 0237, Washington, DC 20250-0237; Telephone: (202) 720-
2491, Fax: (202) 720-8938, or Email: [email protected].

SUPPLEMENTARY INFORMATION: This rule is issued under Marketing 
Agreement No. 125 and Order No. 966, both as amended (7 CFR part 966), 
regulating the handling of tomatoes grown in Florida, hereinafter 
referred to as the ``order.'' The order is effective under the 
Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-
674), hereinafter referred to as the ``Act.''
    The Department of Agriculture (USDA) is issuing this rule in 
conformance with Executive Orders 12866 and 13563.
    This rule has been reviewed under Executive Order 12988, Civil 
Justice Reform. Under the marketing order now in effect, Florida tomato 
handlers are subject to assessments. Funds to administer the order are 
derived from such assessments. It is intended that the assessment rate 
as issued herein will be applicable to all assessable Florida tomatoes 
beginning on August 1, 2013, and continue until amended, suspended, or 
    The Act provides that administrative proceedings must be exhausted 
before parties may file suit in court. Under section 608c(15)(A) of the 
Act, any handler subject to an order may file with USDA a petition 
stating that the order, any provision of the order, or any obligation 
imposed in connection with the order is not in accordance with law and 
request a modification of the order or to be exempted therefrom. Such 
handler is afforded the opportunity for a hearing on the petition. 
After the hearing, USDA would rule on the petition. The Act provides 
that the district court of the United States in any district in which 
the handler is an inhabitant, or has his or her principal place of 
business, has jurisdiction to review USDA's ruling on the petition, 
provided an action is filed not later than 20 days after the date of 
the entry of the ruling.
    This rule increases the assessment rate established for the 
Committee for the 2013-14 and subsequent fiscal periods from $0.024 to 
$0.0375 per 25-pound carton of Florida tomatoes.
    The Florida tomato marketing order provides authority for the 
Committee, with the approval of USDA, to formulate an annual budget of 
expenses and collect assessments from handlers to administer the 
program. The members of the Committee are producers of Florida 
tomatoes. They are familiar with the Committee's needs and with the 
costs of goods and services in their local area, and are therefore in a 
position to formulate an appropriate budget and assessment rate. The 
assessment rate is formulated and discussed in a public meeting. Thus, 
all directly affected persons have an opportunity to participate and 
provide input.
    For the 2012-13 and subsequent fiscal periods, the Committee 
recommended, and USDA approved, an assessment rate of $0.024 per 25-
pound carton of tomatoes that would continue in effect from fiscal 
period to fiscal period unless modified, suspended, or terminated by 
USDA upon recommendation and information submitted by the Committee or 
other information available to USDA.
    The Committee met on August 22, 2013, and unanimously recommended 
2013-14 expenditures of $1,824,600 and an assessment rate of $0.0375 
per 25-pound carton of Florida tomatoes. In comparison, last year's 
budgeted expenditures were $1,672,952. The assessment rate of $0.0375 
is $0.0135 higher than the rate currently in effect. The Committee 
depleted its reserve by using the funds to help meet its annual 
expenditures over the past year. Therefore, the Committee recommended 
increasing the assessment rate to generate sufficient funds to cover 
expenditures and increase its reserve balance.
    The major expenditures recommended by the Committee for the 2013-14 
year include $800,000 for education and promotion, $458,500 for 
salaries, and $300,000 for research. Budgeted expenses for these items 
in 2012-13 were $750,000, $436,372, and $250,000, respectively.
    The assessment rate recommended by the Committee was derived by 
reviewing anticipated expenses; expected shipments of Florida tomatoes; 
income from interest, Market Access Program funds, and specialty crop 
block grants; and the need to add additional funds to the reserve. 
Florida tomato shipments for the year are estimated at 35 million 25-
pound cartons, which should provide $1,312,500 in assessment income. 
Income derived from handler assessments, interest, and other sources 
should be adequate to cover budgeted expenses. Reserve funds projected 
to be $440,500 will be kept within the maximum permitted by the order 
of no more than approximately one fiscal period's expenses as stated in 
Sec.  966.44.
    The assessment rate established in this rule will continue in 
effect indefinitely unless modified, suspended, or terminated by USDA 
upon recommendation and information submitted by the Committee or other 
available information.
    Although this assessment rate will be in effect for an indefinite 
period, the Committee will continue to meet prior to or during each 
fiscal period to recommend a budget of expenses and consider 
recommendations to modify the assessment rate. The dates and times of 
Committee meetings are available from the Committee or USDA. Committee 
meetings are open to the public and interested persons may express 
their views at these meetings. USDA will evaluate Committee 
recommendations and other available information to determine whether 
modification of the assessment rate is needed. Further rulemaking will 
be undertaken as necessary. The Committee's 2013-14 budget and those 
for subsequent fiscal periods would be reviewed and, as appropriate, 
approved by USDA.

Final Regulatory Flexibility Analysis

    Pursuant to requirements set forth in the Regulatory Flexibility 
Act (RFA) (5 U.S.C. 601-612), the Agricultural Marketing Service (AMS) 
has considered the economic impact of this rule on small entities. 
Accordingly, AMS has prepared this final regulatory flexibility 
    The purpose of the RFA is to fit regulatory actions to the scale of 
businesses subject to such actions in order that small businesses will 
not be unduly or disproportionately burdened. Marketing orders issued 
pursuant to the Act, and the rules issued thereunder, are unique in 
that they are brought about through group action of essentially small 
entities acting on their own behalf.

[[Page 9989]]

    There are approximately 80 handlers of tomatoes subject to 
regulation under the marketing order and approximately 100 producers in 
the production area. Small agricultural service firms are defined by 
the Small Business Administration (SBA) as those whose annual receipts 
are less than $7,000,000, and small agricultural producers are defined 
as those having annual receipts of less than $750,000 (13 CFR 121.201).
    Based on industry and Committee data, the average annual price for 
fresh Florida tomatoes during the 2012-13 season was approximately 
$10.64 per 25-pound carton, and total fresh shipments were 
approximately 35.5 million cartons. Based on the average price, about 
80 percent of the handlers could be considered small businesses under 
SBA's definition. In addition, based on production data, grower prices 
as reported by the National Agricultural Statistics Service, and the 
total number of Florida tomato growers, the average annual grower 
revenue is below $750,000. Thus, the majority of handlers and producers 
of Florida tomatoes may be classified as small entities.
    This rule increases the assessment rate for the 2013-14 and 
subsequent fiscal periods from the current rate of $0.024 to $0.0375 
per 25-pound carton of tomatoes. The Committee unanimously recommended 
the increased assessment rate and 2013-14 expenditures of $1,824,600. 
The increase was recommended to generate sufficient funds to cover the 
Committee's expenditures and add to its reserve. As previously stated, 
income derived from handler assessments, interest, and other income 
should be adequate to meet this year's anticipated expenses.
    A review of historical information and preliminary information 
pertaining to the upcoming season indicates that the grower price for 
the 2013-14 season should average around $9.73 per 25-pound carton of 
tomatoes. Utilizing this estimate and the proposed assessment rate of 
$0.0375, estimated assessment revenue as a percentage of total grower 
revenue would be approximately 0.4 percent for the season.
    Alternative expenditure and assessment levels were discussed prior 
to arriving at this budget. However, the Committee agreed on $1,824,600 
in expenditures, reviewed the quantity of assessable tomatoes, the need 
to add additional funds to the reserve, and recommended an assessment 
rate of $0.0375 per 25-pound carton of tomatoes.
    This action increases the assessment obligation imposed on 
handlers. While assessments impose some additional costs on handlers, 
the costs are minimal and uniform on all handlers. These costs are 
offset by the benefits derived from the operation of the marketing 
order. In addition, the Committee's meeting was widely publicized 
throughout the Florida tomato industry and all interested persons were 
invited to attend the meeting and participate in Committee 
deliberations on all issues. Like all Committee meetings, the August 
22, 2013, meeting was a public meeting and all entities, both large and 
small, were able to express views on this issue.
    In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 
Chapter 35), the order's information collection requirements have been 
previously approved by the Office of Management and Budget (OMB) and 
assigned OMB No. 0581-0178 Vegetable and Specialty Crops. No changes in 
those requirements as a result of this action are necessary. Should any 
changes become necessary, they would be submitted to OMB for approval.
    This rule imposes no additional reporting or recordkeeping 
requirements on either small or large Florida tomato handlers. As with 
all Federal marketing order programs, reports and forms are 
periodically reviewed to reduce information requirements and 
duplication by industry and public sector agencies. As noted in the 
initial regulatory flexibility analysis, USDA has not identified any 
relevant Federal rules that duplicate, overlap, or conflict with this 
final rule.
    AMS is committed to complying with the E-Government Act, to promote 
the use of the internet and other information technologies to provide 
increased opportunities for citizen access to Government information 
and services, and for other purposes.
    A proposed rule concerning this action was published in the Federal 
Register on December 24, 2013 (78 FR 77604). Copies of the proposed 
rule were also mailed or sent via facsimile to all Florida tomato 
handlers. Finally, the proposal was made available through the internet 
by USDA and the Office of the Federal Register. A 15-day comment period 
ending January 8, 2014, was provided for interested persons to respond 
to the proposal. No comments were received.
    A small business guide on complying with fruit, vegetable, and 
specialty crop marketing agreements and orders may be viewed at: http://www.ams.usda.gov/MarketingOrdersSmallBusinessGuide. Any questions 
about the compliance guide should be sent to Jeffrey Smutny at the 
previously mentioned address in the FOR FURTHER INFORMATION CONTACT 
    After consideration of all relevant material presented, including 
the information and recommendation submitted by the Committee and other 
available information, it is hereby found that this rule, as 
hereinafter set forth, will tend to effectuate the declared policy of 
the Act.
    Pursuant to 5 U.S.C. 553, it is also found and determined that good 
cause exists for not postponing the effective date of this rule until 
30 days after publication in the Federal Register because the crop year 
began August 1, 2013, and the marketing order requires that the rate of 
assessment for each fiscal period apply to all assessable Florida 
tomatoes handled during such fiscal period. Further, handlers are aware 
of this rule, which was unanimously recommended by the Committee at a 
public meeting. Also, a 15-day comment period was provided for in the 
proposed rule, and no comments were received.

List of Subjects in 7 CFR Part 966

    Marketing agreements, Reporting and recordkeeping requirements, 
    For the reasons set forth in the preamble, 7 CFR part 966 is 
amended as follows:


1. The authority citation for 7 CFR part 966 continues to read as 

    Authority: 7 U.S.C. 601-674.

2. Section 966.234 is revised to read as follows:

Sec.  966.234  Assessment rate.

    On and after August 1, 2013, an assessment rate of $0.0375 per 25-
pound carton is established for Florida tomatoes.

    Dated: February 18, 2014.
Rex A. Barnes,
Associate Administrator, Agricultural Marketing Service.
[FR Doc. 2014-03847 Filed 2-21-14; 8:45 am]