[Federal Register Volume 84, Number 79 (Wednesday, April 24, 2019)]
[Proposed Rules]
[Pages 17091-17094]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-08173]


-----------------------------------------------------------------------

DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 966

[Doc. No. AMS-SC-19-0011; SC19-966-2 PR]


Tomatoes Grown in Florida; Redistricting and Reapportionment of 
Producer Districts

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Proposed rule.

-----------------------------------------------------------------------

SUMMARY: This proposed rule would implement a recommendation from the 
Florida Tomato Committee (Committee) to redistrict and reapportion 
producer representation on the Committee currently prescribed under the 
marketing order for tomatoes grown in Florida. This action would reduce 
the number of districts from four to two and reapportion producer 
membership on the Committee to provide equitable representation from 
both districts.

DATES: Comments must be received by May 24, 2019.

ADDRESSES: Interested persons are invited to submit written comments 
concerning this proposal. 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. All 
comments should reference the document number and the date and page 
number of this issue of the Federal Register and will be made 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 proposal 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 
(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 operating within 
the production area.
    The Department of Agriculture (USDA) is issuing this proposed rule 
in conformance with Executive Orders 13563 and 13175. This action 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

[[Page 17092]]

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. This proposed rule is not intended to have 
retroactive effect.
    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. A 
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 invites comments on redistricting and 
reapportionment of membership on the Committee prescribed under the 
Order for the 2020-21 and subsequent fiscal periods. This proposal 
would reduce the number of districts from four to two and reapportion 
producer membership on the Committee to provide equitable 
representation from both districts. Redistricting and reapportionment 
of membership would make it easier for committee staff to conduct 
producer nominations and ensure the appointment of a full Committee. 
When the Committee is fully appointed, it is easier to achieve a quorum 
for assembled meetings. The Committee unanimously recommended this 
change at its November 1, 2018, meeting.
    Section 966.22 provides for the establishment of membership on the 
Committee. The twelve members and their alternates shall be producers, 
or officers or employees of a corporate producer, in the district for 
which selected and a resident of the production area. The Order 
provides districts from which producers serve as representatives on the 
Committee.
    Section 966.25 provides the authority for the Committee to 
recommend, with the approval of the Secretary, reapportionment of 
members among districts, and the reestablishment of districts within 
the production area. This section also provides that, in making such 
recommendations, the Committee shall give consideration to: a. Shifts 
in tomato acreage within districts and within the production area 
during recent years; b. the importance of new production in its 
relation to existing districts; c. the equitable relationship of 
Committee membership and districts; d. economies to result for 
producers in promoting efficient administration due to redistricting or 
reapportionment of members within districts; and e. other relevant 
factors.
    Section 966.24 defined the four districts within the production 
area by county. Districts 1 and 2 have previously been reestablished 
pursuant to Sec.  996.160. Section 966.161 apportions Committee 
membership among the districts pursuant to Sec.  966.25. Currently, 
Districts 1 and 2 are represented by two committee members and 
alternates each and Districts 3 and 4 are represented by four committee 
members and alternates each.
    The Committee met on November 1, 2018, to discuss the changes in 
recent years to production and the shift in acreage location of Florida 
tomatoes. Over the past two decades, the Florida tomato industry has 
experienced significant changes in production volume and location. 
Decreasing production and shifts in acreage are due to increased 
production costs along with competition from imports and other growing 
regions. The increased costs and competition has contributed to a 
decrease in the number of producers and handlers. With fewer producers 
to represent the industry and the changes to production and acreage, 
the Committee discussed redistricting and reapportionment of membership 
on the Committee.
    Tomato production has shifted from the eastern part of the 
production area in the state of Florida (Districts 1 and 2) to the 
western part of the production area (Districts 3 and 4). According to 
Committee data, production during the 2017-18 season in District 4 
accounted for 56 percent of the production area's total production. The 
next largest district by production volume was District 3, accounting 
for 39 percent of total production. In comparison, District 1 accounted 
for 4 percent of total production and District 2 only 1 percent of the 
total volume for the production area.
    According to Committee data, Districts 1 and 2 accounted for 28 
percent of total production during the 1998-99 season but production 
had decreased to only 8 percent by the 2007-08 season. Industry 
production has slowly moved into Districts 3 and 4 over the last 20 
years and now these two districts make-up 95 percent of total 
production.
    The shift in tomato production between districts has created an 
imbalance in Committee representation. The members from Districts 1 and 
2 combined represent one third of the membership on the Committee while 
these districts account for only 5 percent of the tomato production 
volume. Consequently, Districts 3 and 4 are underrepresented with only 
two thirds of the Committee membership. During the discussion, 
Committee members reviewed the data for acreage and production from all 
districts in the production area as required in the Order. The gradual 
shift in acreage and production from the eastern portion of the 
production area in the State of Florida to the western portion has made 
it difficult to find enough qualified producers to represent Districts 
1 and 2 on the Committee. Committee members from these two districts 
represent four seats on the Committee. Committee members also noted 
that with fewer producers remaining in the Florida tomato industry, 
particularly in Districts 1 and 2, it is difficult to get enough 
members together to meet the Order's quorum requirements for a meeting.
    As a result of the discussion and analysis, the Committee 
recommended combining the current Districts 1, 3, and a portion of 
District 2 into one district, and District 4 and the remaining portion 
of District 2 into another district. This would divide the production 
area into two districts with each district representing approximately 
half of the total volume of tomatoes produced in the production area. 
The Committee also recommended reapportioning the twelve Committee 
members and alternates so that six Committee members and alternates 
represent each district.
    The two new districts would comprise the following Florida 
counties: District 1 would include the counties of Charlotte, Glades, 
Palm Beach, Lee, Hendry, Collier, Broward, Monroe, and Dade; and 
District 2 would include the counties of Pinellas, Hillsborough, Polk, 
Osceola, Brevard, Manatee, Hardee, Highlands, Okeechobee, Indian River, 
St. Lucie, Sarasota, De Soto, and Martin.
    Accordingly, the Committee unanimously voted to reduce the number 
of districts from four to two and reapportion producer membership on 
the Committee so that each district would have six members and 
alternates. The Committee believes these proposed changes would adjust 
producer representation to reflect the composition of the industry, and 
create the opportunity for other producers to serve on the Committee.

[[Page 17093]]

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 75 producers of Florida tomatoes in the 
production area and 37 handlers subject to regulation under the 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 2017-18 season was approximately 
$12.56 per 25-pound container, and total fresh shipments were 25.9 
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 more than 
$7,500,000, ($12.56 times 25.9 million containers equals $325,304,000 
divided by 37 handlers equals $8,792,000 per handler).
    With an estimated producer price of $6.00 per 25-pound container, 
the number of Florida tomato producers, and assuming a normal 
distribution, the average annual producer revenue is above $750,000, 
($6.00 times 25.9 million containers equals $155,400,000 divided by 75 
producers equals $2,072,000 per producer). Thus, the majority of 
handlers and producers of Florida tomatoes may be classified as large 
entities.
    The gradual shift in acreage and production from the eastern 
portion of the production area in the State of Florida to the western 
portion has made it difficult to find enough qualified producers to 
represent Districts 1 and 2 on the Committee. Committee members from 
these two districts represent one third of the seats on the Committee. 
Redistricting and reapportionment of membership would make it easier 
for Committee staff to conduct producer nominations, provide nominees 
for all seats, and readily achieve a quorum when meetings are assembled 
with a full committee.
    This proposed rule would reduce the number of districts from four 
to two and reapportion producer membership on the Committee to provide 
six members and alternates from both districts. The Committee believes 
this change would adjust producer representation to reflect the 
composition of the industry, provide equitable representation from each 
district, and create the opportunity for other producers to serve on 
the Committee. This rulemaking would revise Sec. Sec.  966.160 and 
966.161. Authority for this action is provided in Sec.  966.25 of the 
Order.
    It is not anticipated that this action would impose any additional 
costs on the industry. This change would save time and operating 
resources by making it easier to find candidates to serve on the 
Committee. Additionally, a full committee would reduce the chance of a 
failed quorum. Thus, this action would help avoid the costs associated 
with travel and assembly of a meeting where a quorum is not achieved.
    This action would have a beneficial impact as it more accurately 
aligns districts and reapportions Committee membership in accordance 
with the production of fresh Florida tomatoes. These changes should 
provide equitable representation to producers on the Committee and make 
the Committee more representative of the current industry. The effects 
of this proposed rule would not be disproportionately greater or less 
for small entities than for larger entities.
    The Committee considered one alternative to this proposal. The 
Committee considered combining Districts 1 and 2 into one district. 
However, given the small volume of production currently produced in 
each of these districts, the Committee determined the best course of 
action was to divide the production area into two new districts with 
balanced production and representation. Therefore, this alternative was 
rejected.
    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 are necessary in those requirements as a 
result of this action. Should any changes become necessary, they would 
be submitted to OMB for approval.
    This proposed rule would 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.
    The Committee's meetings were widely publicized throughout the 
Florida tomato industry, and all interested persons were invited to 
attend the meetings and participate in Committee deliberations on all 
issues. Like all Committee meetings, the November 1, 2018, meeting was 
a public meeting, and all entities, both large and small, were able to 
express their 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.
    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.
    A 30-day comment period is provided to allow interested persons to 
respond to this proposal. All written comments timely received will be 
considered before a final determination is made on this matter.

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.

0
2. Amend Sec.  966.160 by revising paragraphs (a) and (b) to read as 
follows:

[[Page 17094]]

Sec.  966.160  Reestablishment of districts.

    (a) District No. 1: The counties of Charlotte, Glades, Palm Beach, 
Lee, Hendry, Collier, Broward, Monroe, and Dade in the State of 
Florida.
    (b) District No. 2: The counties of Pinellas, Hillsborough, Polk, 
Osceola, Brevard, Manatee, Hardee, Highlands, Okeechobee, Indian River, 
St. Lucie, Sarasota, De Soto, and Martin in the State of Florida.
* * * * *
0
3. Revise Sec.  966.161 to read as follows:


Sec.  966.161  Reapportionment of Committee Membership.

    Pursuant to Sec.  966.25, industry membership on the Florida Tomato 
Committee shall be reapportioned as follows:
    (a) District 1--six members and their alternates.
    (b) District 2--six members and their alternates.

    Dated: April 18, 2019.
Bruce Summers,
Administrator, Agricultural Marketing Service.
[FR Doc. 2019-08173 Filed 4-23-19; 8:45 am]
BILLING CODE 3410-02-P