[Federal Register Volume 84, Number 190 (Tuesday, October 1, 2019)]
[Proposed Rules]
[Pages 52042-52044]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-21018]



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DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 966

[Doc. No.: AMS-SC-19-0068; SC19-966-3]


Tomatoes Grown in Florida; Proposed Amendments to the Marketing 
Order No. 966

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Proposed rule.

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SUMMARY: This proposed rule invites comments on proposed amendments to 
Marketing Order No. 966, which regulates the handling of tomatoes grown 
in Florida. The proposed amendments would change the Florida Tomato 
Committee's (Committee) size, length of the terms of office, and quorum 
requirements.

DATES: Comments must be received by December 2, 2019.

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. 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 
proposed 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: Geronimo Quinones, Marketing 
Specialist, or Andrew Hatch, Chief, Rulemaking Services Branch, 
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] 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 proposal is issued under 
Marketing 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 tomato producers operating within the area of production.
    Section 8c(17) of the Act (7 U.S.C 608c(17)) and the applicable 
rules of practice and procedure governing the formulation of marketing 
agreements and orders (7 CFR part 900) authorize amendment of the Order 
through this informal rulemaking action. The Agricultural Marketing 
Service (AMS) will consider comments received in response to this 
proposed rule, and based on all the information available, will 
determine if the Order amendment is warranted. If AMS determines 
amendment of the Order is warranted, a subsequent proposed rule and 
notice of referendum would be issued and producers would be allowed to 
vote for or against the proposed Order amendments. AMS would then issue 
a final rule effectuating any amendments approved by producers in the 
referendum.
    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 January 30, 2017, titled `Reducing Regulation and Controlling 
Regulatory Costs' '' (February 2, 2017).
    This proposal has been reviewed under Executive Order 12988, Civil 
Justice Reform. This rule is not intended to have retroactive effect. 
This rule shall not be deemed to preclude, preempt, or supersede any 
State program covering tomatoes grown in Florida.
    The Act provides that administrative proceedings must be exhausted 
before parties may file suit in court. Under section 8c(15)(A) of the 
Act (7 U.S.C. 608 (15)(A)), 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 no later than 20 days 
after the date of entry of the ruling.
    Section 1504 of the Food, Conservation, and Energy Act of 2008 
(2008 Farm Bill) (Pub. L. 110-246) amended section 8c(17) of the Act, 
which in turn required the addition of supplemental rules of practice 
to 7 CFR part 900 (73 FR 49307; August 21, 2008). The amendment of 
section 8c(17) of the Act and the supplemental rules of practice 
authorize the use of informal rulemaking (5 U.S.C. 553) to amend 
Federal fruit, vegetable, and nut marketing agreements and orders. USDA 
may use informal rulemaking to amend marketing orders depending upon 
the nature and complexity of the proposed amendments, the potential 
regulatory and economic impacts on affected entities, and any other 
relevant matters.
    AMS has considered these factors and has determined that the 
amendments proposed herein are not unduly complex and the nature of the 
proposed amendments is appropriate for utilizing the informal 
rulemaking process to amend the Order. A discussion of the potential 
regulatory and economic impacts on affected entities is discussed later 
in the ``Initial Regulatory Flexibility Analysis'' section of this 
proposed rule.
    The Committee unanimously recommended the amendments following 
deliberations at two public meetings held on November 1, 2018, and 
February 27, 2019. The proposals would amend the Order by changing the 
Committee's size, the length of term of office, and quorum 
requirements.

Proposal 1--Reduce Committee Size

    Section 966.22 provides that the Committee consists of 12 members 
and, for each member of the Committee,

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there must be an alternate who has the same qualifications as the 
member. This proposal would amend Sec.  966.22 by reducing the size of 
the Committee from 12 to 10 members. The requirement that each member 
have an alternate with the same qualifications as the member would 
remain unchanged.
    Since promulgation of the Order in 1995, the Florida tomato 
industry has seen reductions of about 80% in the number of tomato 
producers and 33% of registered handlers. Natural industry 
consolidation and land development pressure have also contributed to 
this decline. Decreasing the Committee's size from 12 members to 10 
members would make Committee membership more reflective of today's 
industry and enable it to fulfill quorum requirements.

Proposal 2--Revise Term of Office

    Section 966.23 requires Committee members and their alternates to 
serve for one year.
    This proposal would change Sec.  966.23 by revising the term of 
office for producer members from one year to two years beginning on 
August 1 and ending as of July 31. Currently, the nominating process 
for the 12 members and alternate members is conducted annually. This 
proposed change would reduce the annual turnover on the Committee and 
provide time for new members and alternates to learn the details of 
Committee operations and business.

Proposal 3--Revise Quorum Requirements

    Currently, Sec.  966.32 states that eight members of the Committee 
shall constitute a quorum, and the same number of concurring votes 
shall be required to pass any motion or approve any Committee action.
    The proposed change would modify Sec.  966.32 to allow six members 
to constitute a quorum. The requirement that the same number of 
concurring votes (six) shall be required to pass any motion or approve 
any Committee action would remain unchanged. The Committee is 
experiencing difficulties filling all seats and obtaining a quorum at 
meetings since several seats have been vacant. Adjusting the current 
requirements would enable the Committee to operate fully and lower the 
risk of not reaching a quorum during scheduled meetings. These changes 
would help to streamline the Committee's operations and increase its 
effectiveness.

Initial Regulatory Flexibility Analysis

    Pursuant to the requirements set forth in the Regulatory 
Flexibility Act (RFA) (5 U.S.C. 601-612), AMS has considered the 
economic impact of this action 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 so that small businesses will not be 
unduly or disproportionately burdened. Marketing orders issued pursuant 
to the Act, and 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 proposed amendments would change the Committee's size, the 
length of term of office, and quorum requirements.
    The Committee unanimously recommended the proposed amendments at 
public meetings on November 1, 2018 and February 27, 2019. If these 
proposals are approved in a referendum, there would be no direct 
financial effects on producers or handlers. However, these proposed 
changes would decrease administrative costs to producers and Committee 
staff. This action would save time and work for producers and Committee 
staff, by avoiding the annual requirement to prepare multiple 
nomination notices and meetings, and the administrative and travel 
expenses that are required to carry out these annual duties.
    Since 1995, the number of producers and handlers operating in the 
industry has decreased, which makes it difficult to find enough members 
to fill positions on the Committee. Decreasing the Committee's size 
would make it more reflective of today's industry. No economic impact 
is expected if the proposed amendments are approved because they would 
not establish any new regulatory requirements on handlers, nor would 
they have any assessment or funding implications. There would be no 
change in financial costs, reporting, or recordkeeping requirements if 
this proposal is approved.
    Alternatives to this proposal, including making no changes at this 
time, were considered by the Committee. Due to changes in the industry, 
AMS believes the proposals are justified and necessary to ensure the 
Committee's ability to locally administer the program. Reducing the 
size of the Committee would enable it to satisfy membership and quorum 
requirements fully, thereby ensuring a more efficient and orderly flow 
of business.

Paperwork Reduction Act

    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 
because of this action. Should any changes become necessary, they would 
be submitted to OMB for approval.
    This proposed rule would impose 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.
    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 action.

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    The Committee's meetings were widely publicized throughout the 
Florida tomato production area. All interested persons were invited to 
attend the meetings and encouraged to participate in Committee 
deliberations on all issues. Like all Committee meetings, the November 
1, 2018 and February 27, 2019, meetings were public, and all entities, 
both large and small, were encouraged to express their views on the 
proposals.
    Interested persons are invited to submit comments on the proposed 
amendments to the Order, including comments on the regulatory and 
information collection impacts of this action on small businesses.
    Following analysis of any comments received on the amendments in 
this proposed rule, AMS will evaluate all available information and 
determine whether to proceed. If appropriate, a proposed rule and 
notice of referendum would be issued, and producers would be provided 
the opportunity to vote for or against the proposed amendments. 
Information about the referendum, including dates and voter eligibility 
requirements, would be published in a future issue of the Federal 
Register. A final rule would then be issued to effectuate any 
amendments favored by producers participating in the referendum.
    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.

General Findings

    The findings hereinafter set forth are supplementary to the 
findings and determinations which were previously made in connection 
with the issuance of Marketing Order 966; and all said previous 
findings and determinations are hereby ratified and affirmed, except 
insofar as such findings and determinations may be in conflict with the 
findings and determinations set forth herein.
    1. Marketing Order 966 as hereby proposed to be amended and all the 
terms and conditions thereof, would tend to effectuate the declared 
policy of the Act;
    2. Marketing Order 966 as hereby proposed to be amended regulates 
the handling of tomatoes grown in Florida and is applicable only to 
persons in the respective classes of commercial and industrial activity 
specified in the Order;
    3. Marketing Order 966 as hereby proposed to be amended is limited 
in application to the smallest regional production area which is 
practicable, consistent with carrying out the declared policy of the 
Act, and the issuance of several marketing orders applicable to 
subdivisions of the production area would not effectively carry out the 
declared policy of the Act;
    4. Marketing Order 966 as hereby proposed to be amended prescribes, 
insofar as practicable, such different terms applicable to different 
parts of the production area as are necessary to give due recognition 
to the differences in the production and marketing of tomatoes produced 
or packed in the production area; and
    5. All handling of tomatoes produced or packed in the production 
area as defined in Marketing Order 966 is in the current of interstate 
or foreign commerce or directly burdens, obstructs, or affects such 
commerce.
    A 60-day comment period is provided to allow interested persons to 
respond to these proposals. Any comments received on the amendments 
proposed in this proposed rule will be analyzed, and if AMS determines 
to proceed based on all the information presented, a producer 
referendum would be conducted to determine producer support for the 
proposed amendments. If appropriate, a final rule would then be issued 
to effectuate the amendments favored by producers participating in the 
referendum.

List of Subjects in 7 CFR Part 966

    Tomatoes, Marketing agreements, Reporting and recordkeeping 
requirements.

    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. In Sec.  966.22 revise paragraph (a) to read as follows:


Sec.  966.22  Establishment and membership.

    (a) The Florida Tomato Committee, consisting of 10 producer 
members, is hereby established. For each member of the committee there 
shall be an alternate who shall have the same qualifications as the 
member.
* * * * *
0
3. In Sec.  966.23 revise paragraph (a) to read as follows:


Sec.  966.23  Term of office.

    (a) The term of office of committee members, and their respective 
alternates, shall be for 2 years and shall begin as of August 1 and end 
as of July 31.
* * * * *
0
4. In Sec.  966.32 revise paragraph (a) to read as follows:


Sec.  966.32  Procedure.

    (a) Six members of the committee shall be necessary to constitute a 
quorum and the same number of concurring votes shall be required to 
pass any motion or approve any committee action.
* * * * *

    Dated: September 23, 2019.
Bruce Summers,
Administrator, Agricultural Marketing Service.
[FR Doc. 2019-21018 Filed 9-30-19; 8:45 am]
BILLING CODE 3410-02-P