[Federal Register Volume 84, Number 187 (Thursday, September 26, 2019)]
[Rules and Regulations]
[Pages 50711-50713]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-20452]



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 Rules and Regulations
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  Federal Register / Vol. 84, No. 187 / Thursday, September 26, 2019 / 
Rules and Regulations  

[[Page 50711]]



DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 966

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


Tomatoes Grown in Florida; Redistricting and Reapportionment of 
Producer Districts

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Final rule.

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SUMMARY: This rule implements 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 will reduce 
the number of districts from four to two and reapportion producer 
membership on the Committee to provide equitable representation from 
both districts.

DATES: Effective October 28, 2019.

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 final rule, pursuant to 5 U.S.C. 553, 
amends regulations issued to carry out a marketing order as defined in 
7 CFR 900.2(j). This final rule is issued under Marketing Agreement No. 
125 and Marketing Order No. 966, as amended (7 CFR part 966), 
regulating the handling of tomatoes grown in Florida. Part 966 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 marketing order and is comprised of 
producers operating within the production area.
    The Department of Agriculture (USDA) is issuing this final 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 final 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 rule has been reviewed under Executive Order 12988, Civil 
Justice Reform. This 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 final rule amends the Florida tomato districts and 
reapportions membership on the Committee as prescribed under the 
marketing order for the 2020-21 and subsequent fiscal periods. This 
final rule will 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 will make it easier for Committee staff to conduct 
producer nominations and ensure the appointment of a full Committee. A 
fully appointed Committee will make it 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 12 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 marketing 
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) economic results for producers 
in promoting efficient administration due to redistricting or 
reapportioning 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

[[Page 50712]]

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 reapportioning 
its membership.
    Tomato production has shifted from the eastern part of the 
production area in 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 acreage and production data from all 
districts in the production area as required in the marketing order. 
The gradual shift in acreage and production from the eastern portion of 
the production area in 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 satisfy the marketing 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 change will 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 12 
Committee members and alternates so that six Committee members and 
alternates represent each district.
    The two new districts will encompass the following Florida 
counties: District 1 will include the counties of Charlotte, Glades, 
Palm Beach, Lee, Hendry, Collier, Broward, Monroe, and Dade; and 
District 2 will include the counties of Pinellas, Hillsborough, Polk, 
Osceola, Brevard, Manatee, Hardee, Highlands, Okeechobee, Indian River, 
St. Lucie, Sarasota, De Soto, and Martin.
    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 will have six members and alternates. The 
Committee believes these changes will adjust producer representation to 
reflect the composition of the industry, and create the opportunity for 
other producers to serve on the Committee.

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 action on small entities. 
Accordingly, AMS has prepared this final 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 
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 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 $7.5 
million, ($12.56 times 25.9 million containers equals $325.3 million 
divided by 37 handlers equals $8.79 million 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 $155.4 million divided by 
75 producers equals $2.07 million 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 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 will 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 complement of members.
    This final rule will 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 
these changes will 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 rule revises Sec. Sec.  966.160 and 966.161. 
Authority for this action is provided in Sec.  966.25 of the marketing 
order.
    It is not anticipated that this action would impose any additional 
costs on the industry. These changes will save time and operating 
resources by making it easier to find candidates to serve on the 
Committee. Additionally, a full Committee will reduce the chance of a 
failed quorum. Thus, this action will help avoid the costs associated 
with

[[Page 50713]]

travel and assembly of a meeting where a quorum is not achieved.
    This action is expected to 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 rule will not be disproportionately greater or less for 
small entities than for larger entities.
    The Committee considered an alternative to this action. 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 marketing 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 final rule will 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. As noted in the 
initial regulatory flexibility analysis, USDA has not identified any 
relevant Federal rules that duplicate, overlap, or conflict with this 
rule. No public comments were received regarding the initial regulatory 
flexibility analysis.
    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.
    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.
    A proposed rule concerning this action was published in the Federal 
Register on April 24, 2019 (84 FR 17091). Copies of the proposed rule 
were sent via email to Committee members and Florida tomato handlers. 
Additionally, the rule was made available through the internet by USDA 
and the Office of the Federal Register. A 30-day comment period ending 
May 24, 2019, was provided to allow interested persons to respond to 
the proposal. No comments were received. Accordingly, no changes will 
be made to the rule as proposed.
    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 matter 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.

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 
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. In Sec.  966.160, revise paragraphs (a) and (b) to read as follows:


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: September 17, 2019.
Bruce Summers,
Administrator, Agricultural Marketing Service.
[FR Doc. 2019-20452 Filed 9-25-19; 8:45 am]
BILLING CODE 3410-02-P