[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
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains regulatory documents
having general applicability and legal effect, most of which are keyed
to and codified in the Code of Federal Regulations, which is published
under 50 titles pursuant to 44 U.S.C. 1510.
The Code of Federal Regulations is sold by the Superintendent of Documents.
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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