[Federal Register Volume 82, Number 236 (Monday, December 11, 2017)]
[Proposed Rules]
[Pages 58133-58135]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-26373]


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 Proposed Rules
                                                 Federal Register
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 This section of the FEDERAL REGISTER contains notices to the public of 
 the proposed issuance of rules and regulations. The purpose of these 
 notices is to give interested persons an opportunity to participate in 
 the rule making prior to the adoption of the final rules.
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  Federal Register / Vol. 82, No. 236 / Monday, December 11, 2017 / 
Proposed Rules  

[[Page 58133]]



DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 966

[Doc. No. AMS-SC-17-0051; SC17-966-1 PR]


Tomatoes Grown in Florida; Decreased Assessment Rate

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Proposed rule.

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SUMMARY: This proposed rule would implement a recommendation from the 
Florida Tomato Committee (Committee) for a decrease in the assessment 
rate established for the 2017-18 and subsequent fiscal periods of 
tomatoes grown in Florida, handled under the marketing order (Order). 
The assessment rate would remain in effect indefinitely unless 
modified, suspended, or terminated. This proposed rule also makes 
administrative revisions to the subpart headings to bring the language 
into conformance with the Office of Federal Register requirements.

DATES: Comments must be received by January 10, 2018.

ADDRESSES: Interested persons are invited to submit written comments 
concerning this proposed rule. Comments must be sent to the Docket 
Clerk, Marketing Order and Agreement Division, Specialty Crops Program, 
AMS, USDA, 1400 Independence Avenue SW., STOP 0237, Washington, DC 
20250-0237; Fax: (202) 720-8938; or internet: http://www.regulations.gov. Comments should reference the document number and 
the date and page number of this issue of the Federal Register and will 
be available for public inspection in the Office of the Docket Clerk 
during regular business hours, or can be viewed at: http://www.regulations.gov. All comments submitted in response to this rule 
will be included in the record and will be made available to the 
public. Please be advised that the identity of the individuals or 
entities submitting the comments will be made public on the Internet at 
the address provided above.

FOR FURTHER INFORMATION CONTACT: Steven W. Kauffman, Marketing 
Specialist, or Christian D. Nissen, Regional Director, Southeast 
Marketing Field Office, Marketing Order and Agreement Division, 
Specialty Crops Program, AMS, USDA; Telephone: (863) 324-3375, Fax: 
(863) 291-8614, or Email: [email protected] or 
[email protected].
    Small businesses may request information on complying with this 
regulation by contacting Richard Lower, Marketing Order and Agreement 
Division, Specialty Crops 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 action, pursuant to 5 U.S.C. 553, 
proposes an amendment to regulations issued to carry out a marketing 
order as defined in 7 CFR 900.2(j). This proposed rule is issued under 
Marketing Agreement No. 125 and Order No. 966, as amended (7 CFR part 
966), regulating the handling of tomatoes grown in Florida. Part 966, 
(hereinafter referred to as 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 Committee locally 
administers the Order and is comprised of producers of tomatoes 
operating within the area of production.
    The Department of Agriculture (USDA) is issuing this proposed rule 
in conformance with Executive Orders 13563 and 13175. This proposed 
rule falls within a category of regulatory actions that the Office of 
Management and Budget (OMB) exempted from Executive Order 12866 review. 
Additionally, because this proposed rule does not meet the definition 
of a significant regulatory action, it does not trigger the 
requirements contained in Executive Order 13771. See OMB's Memorandum 
titled ``Interim Guidance Implementing Section 2 of the Executive Order 
of January 30, 2017, titled `Reducing Regulation and Controlling 
Regulatory Costs'[thinsp]'' (February 2, 2017).
    This proposed rule has been reviewed under Executive Order 12988, 
Civil Justice Reform. Under the 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 
will be applicable to all assessable tomatoes beginning on August 1, 
2017, and continue until amended, suspended, or terminated.
    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 proposed rule would decrease the assessment rate established 
for the Committee for the 2017-18 and subsequent fiscal periods from 
$0.035 to $0.025 per 25-pound container or equivalent of tomatoes 
handled.
    The 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 for goods and services in their 
local area and are thus 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 2016-17 and subsequent fiscal periods, the Committee 
recommended, and USDA approved, an assessment rate that would continue 
in effect from fiscal period to fiscal period unless modified, 
suspended, or terminated by USDA upon recommendation and information

[[Page 58134]]

submitted by the Committee or other information available to USDA.
    The Committee met on August 22, 2017, and unanimously recommended 
2017-18 expenditures of $1,494,600 and an assessment rate of $0.025 per 
25-pound container or equivalent of tomatoes. Last year's budgeted 
expenditures were also $1,494,600. The assessment rate of $0.025 is 
$0.01 lower than the rate currently in effect. The Committee 
recommended decreasing the assessment rate to reduce the assessment 
burden on handlers and utilize funds from the authorized reserve to 
help cover Committee expenses.
    The major expenditures recommended by the Committee for the 2017-18 
year include $450,000 for staff salaries, $400,000 for research, and 
$400,000 for education and promotion. Budgeted expenses for these items 
in 2016-17 were also $450,000, $400,000, and $400,000, respectively.
    The assessment rate recommended by the Committee was derived by 
considering anticipated expenses, expected shipments of Florida 
tomatoes, and the level of funds in the authorized reserve. Tomato 
shipments for the year are estimated at 33 million 25-pound containers, 
which should provide $825,000 in assessment income. Income derived from 
handler assessments, along with interest income and funds from the 
Committee's authorized reserve, would be adequate to cover budgeted 
expenses. Funds in the reserve (currently $979,410) would be kept 
within the maximum permitted by the Order (approximately one fiscal 
period's expenses as stated in Sec.  966.44).
    The assessment rate proposed in this rule would 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 would be effective for an indefinite 
period, the Committee would continue to meet prior to or during each 
fiscal period to recommend a budget of expenses and consider 
recommendations for modification of 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 would evaluate Committee 
recommendations and other available information to determine whether 
modification of the assessment rate is needed. Further rulemaking would 
be undertaken as necessary. The Committee's 2017-18 budget and those 
for subsequent fiscal periods would be reviewed and, as appropriate, 
approved by USDA.

Initial 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 proposed rule on small 
entities. Accordingly, AMS has prepared this initial regulatory 
flexibility analysis.
    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.
    There are approximately 80 producers of Florida tomatoes in the 
production area and 47 handlers subject to regulation under the 
Marketing Order. Small agricultural producers are defined by the Small 
Business Administration (SBA) as those having annual receipts less than 
$750,000, and small agricultural service firms are defined as those 
whose annual receipts are less than $7,500,000 (13 CFR 121.201).
    According to industry and Committee data, the average annual price 
for fresh Florida tomatoes during the 2016-17 season was approximately 
$8.00 per 25-pound container, and total fresh shipments were 32.8 
million containers. Using the average price and shipment information, 
the number of handlers, and assuming a normal distribution, the 
majority of handlers have average annual receipts of less than 
$7,500,000. In addition, based on production data, an estimated 
producer price of $3.00 per 25-pound container, and the number of 
Florida tomato producers, the average annual producer revenue is above 
$750,000. Thus, a majority of the handlers of Florida tomatoes may be 
classified as small entities, while a majority of the producers may be 
classified as large entities.
    This proposed rule would decrease the assessment rate established 
for the 2017-18 and subsequent fiscal periods from $0.035 to $0.025 per 
25-pound container or equivalent of Florida tomatoes. The Committee 
unanimously recommended 2017-18 expenditures of $1,494,600 and an 
assessment rate of $0.025 per 25-pound container or equivalent handled. 
The assessment rate of $0.025 is $0.01 lower than the 2016-17 rate. The 
quantity of assessable Florida tomatoes for the 2017-18 fiscal period 
is estimated at 33 million 25-pound containers or equivalent. Thus, the 
$0.025 rate should provide $825,000 in assessment income. Income 
derived from handler assessments, along with interest income and funds 
from the Committee's authorized reserve, would be adequate to cover 
budgeted expenses.
    The major expenditures recommended by the Committee for the 2017-18 
year include $450,000 for staff salaries, $400,000 for research, and 
$400,000 for education and promotion. Budgeted expenses for these items 
in 2016-17 were also $450,000, $400,000, and $400,000, respectively.
    The Committee recommended decreasing the assessment rate to reduce 
the assessment burden on handlers and utilize funds from the authorized 
reserve to help cover Committee expenses.
    Prior to arriving at this budget and assessment rate, the Committee 
considered information from various sources, such as the Committee's 
Budget and Finance Subcommittee, Education and Promotion Subcommittee, 
and the Research Subcommittee. Alternative expenditure levels were 
discussed by these groups, based upon the relative value of various 
activities to the Florida tomato industry. Based on estimated 
shipments, the recommended assessment rate of $0.025 should provide 
$825,000 in assessment income. The Committee determined assessment 
revenue, along with interest income and funds from authorized reserves 
would be adequate to cover budgeted expenses for the 2017-18 fiscal 
period.
    A review of historical information and preliminary information 
pertaining to the upcoming fiscal period indicates that the average 
producer price for the 2017-18 season could be about $6.50 per 25-pound 
container or equivalent of Florida tomatoes. Therefore, the estimated 
assessment revenue for the 2017-18 crop year as a percentage of total 
producer revenue would be around 0.4 percent.
    This proposed action would decrease the assessment obligation 
imposed on handlers. Assessments are applied uniformly on all handlers, 
and some of the costs may be passed on to producers. However, 
decreasing the assessment rate reduces the burden on handlers and may 
reduce the burden on producers. 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, 2017, meeting was a public meeting, and all entities, 
both large and small,

[[Page 58135]]

were able to express views on this issue. Finally, interested persons 
are invited to submit comments on this proposed rule, including the 
regulatory and information collection impacts of this action on small 
businesses.
    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 OMB and assigned OMB No. 0581-0178 Vegetable and 
Specialty Crops. No changes in those requirements are necessary as a 
result of this action. Should any changes become necessary, they would 
be submitted to OMB for approval.
    This proposal does not impose any 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.
    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.
    USDA has not identified any relevant Federal rules that duplicate, 
overlap, or conflict with this proposed rule.
    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/rules-regulations/moa/small-businesses. Any questions 
about the compliance guide should be sent to Richard Lower at the 
previously mentioned address in the FOR FURTHER INFORMATION CONTACT 
section.
    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 proposed rule, as 
hereinafter set forth, would tend to effectuate the declared policy of 
the Act.

List of Subjects in 7 CFR Part 966

    Marketing agreements, Reporting and recordkeeping requirements, 
Tomatoes.

    For the reasons set forth in the preamble, 7 CFR part 966 is 
proposed to be amended as follows:

PART 966--TOMATOES GROWN IN FLORIDA

0
1. The authority citation for 7 CFR part 966 continues to read as 
follows:

    Authority:  7 U.S.C. 601-674.
[Subpart Redesignated as Subpart A]
0
2. Redesignate ``Subpart--Order Regulating Handling'' as ``Subpart A--
Order Regulating Handling''.
[Subpart Redesignated as Subpart B and Amended]
0
3. Redesignate ``Subpart--Rules and Regulations'' as subpart B and 
revise the heading to read as follows:

Subpart B--Administrative Requirements

[Subpart Redesignated as Subpart C]
0
4. Redesignate ``Subpart--Assessment Rates'' as ``Subpart C--Assessment 
Rates''.
[Subpart Redesignated as Subpart D and Amended]
0
5. Redesignate ``Subpart--Handling Regulations'' as subpart D and 
revise the heading to read as follows:

Subpart D--Handling Requirements

0
6. Section 966.234 is revised to read as follows:


Sec.  966.234  Assessment rate.

    On and after August 1, 2017, an assessment rate of $0.025 per 25-
pound container is established for Florida tomatoes.

    Dated: December 4, 2017.
Bruce Summers,
Acting Administrator, Agricultural Marketing Service.
[FR Doc. 2017-26373 Filed 12-8-17; 8:45 am]
 BILLING CODE 3410-02-P