[Federal Register Volume 85, Number 221 (Monday, November 16, 2020)]
[Rules and Regulations]
[Pages 72914-72916]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-23590]


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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; Amendments to the Marketing Order No. 
966

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Final rule.

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SUMMARY: This final rule amends Marketing Order No. 966, which 
regulates the handling of Florida Tomatoes. The amendments will change 
the Florida Tomato Committee's (Committee) size, length of the terms of 
office, and quorum requirements.

DATES: This rule is effective December 16, 2020.

FOR FURTHER INFORMATION CONTACT: Geronimo Quinones, Marketing 
Specialist, 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].
    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, 
finalizes amendments to regulations issued to carry out a marketing 
order as defined in 7 CFR 900.2(j). This rule 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. 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 Department of Agriculture (USDA) is issuing this 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 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 rule 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.
    The Agricultural Marketing Service (USDA-AMS) considered the nature 
and complexity of the proposed amendments, the potential regulatory and 
economic impacts on affected entities, and other relevant matters, and 
determined that amending the Order as proposed by the Committee could 
appropriately be accomplished through informal rulemaking.
    The Committee unanimously recommended the amendments following 
deliberations at two public meetings held on November 1, 2018, and 
February 27, 2019. This final rule will amend the Order by changing the 
Committee's size, the length of term of office, and quorum 
requirements.
    A proposed rule and referendum order was issued on February 14, 
2020, and published in the Federal Register on February 21, 2020 (85 FR 
10096). That document also directed that a referendum among Florida 
tomato growers be conducted May 11, 2020, through June 1, 2020, to 
determine whether they favored the proposals. To become effective, the 
amendments had to be approved by either two-thirds of the growers 
voting in the referendum or by those representing at least two-thirds 
of the volume of tomatoes produced by those voting in the referendum.

[[Page 72915]]

    The results of the referendum show that 78 percent of the eligible 
producers who voted and 91 percent of the volume voted favored 
amendment number 1. Also, 89 percent of the eligible producers who 
voted and 98 percent of the volume voted favored amendments number 2 
and 3. The producer vote met the requirement of being favored by two-
thirds of the producers voting, or by two-thirds of the volume voted in 
the referendum for all three amendments. Consequently, all three 
amendments passed and will change the Committee's size, the length of 
term of office, and quorum requirements.

Final 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 final 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 
$1,000,000, and small agricultural service firms are defined as those 
whose annual receipts are less than $30,000,000 (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 less than 
$30,000,000 ($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 $1,000,000 
($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 
producers of Florida tomatoes may be classified as large entities.
    The Committee unanimously recommended the proposed amendments at 
public meetings on November 1, 2018, and February 27, 2019.
    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 
will make it more reflective of today's industry. No economic impact is 
expected from these amendments because they will not establish any new 
regulatory requirements on handlers, nor will they have any assessment 
or funding implications. There will be no change in financial costs, 
reporting, or recordkeeping requirements because of this action.
    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 will 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 action 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.
    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.
    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.
    A proposed rule concerning this action was published in the Federal 
Register on October 1, 2019 (84 FR 52042). Copies of the rule were 
mailed or sent via facsimile to all Committee members and Florida 
tomato handlers. The proposed rule was made available through the 
internet by USDA and the Office of the Federal Register. A 60-day 
comment period ending December 2, 2019, was provided to allow 
interested persons to respond to the proposal. No comments were 
received, so no changes were made to the proposed amendments.
    A proposed rule and referendum order was then issued on February 
14, 2020, and published in the Federal Register on February 21, 2020 
(85 FR 10096). That document directed that a referendum among Florida 
tomato growers be conducted during the period of May 11, 2020, through 
June 1, 2020, to determine whether they favored the proposed amendments 
to the Order. To become effective, the amendments had to be approved by 
at least two-thirds of the growers voting, or two-thirds of the volume 
of Florida tomatoes represented by voters in the referendum. The 
results show that 78 percent of the eligible producers who voted and 91 
percent of the volume voted favored amendment number 1. Also, 89 
percent of the eligible producers who voted and 98 percent of the 
volume voted favored amendments number 2 and 3.
    The producer vote met the requirement of being favored by two-
thirds of the producers voting, or by two-thirds of the volume voted in 
the referendum for all three amendments. All three amendments passed.
    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.

[[Page 72916]]

Order Amending the Order Regulating the Handling of Tomatoes Grown in 
Florida 1
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    \1\ This order shall not become effective unless and until the 
requirements of Sec.  900.14 of the rules of practice and procedure 
governing proceedings to formulate marketing agreements and 
marketing orders have been met.
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Findings and Determinations

    (a) Findings and Determinations Upon the Basis of the Rulemaking 
Record.
    The findings hereinafter set forth are supplementary to the 
findings and determinations which were previously made in connection 
with the issuance of the Order; 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. The Order, as amended, and as hereby further amended, and all 
the terms and conditions thereof, will tend to effectuate the declared 
policy of the Act;
    2. The Order, as amended, and as hereby further amended, regulates 
the handling of tomatoes grown in Florida in the same manner as, and is 
applicable only to, persons in the respective classes of commercial and 
industrial activity specified in the Order;
    3. The Order, as amended, and as hereby further 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 orders applicable to subdivisions of 
the production area would not effectively carry out the declared policy 
of the Act;
    4. The Order, as amended, and as hereby further 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 
onions produced in the production area; and
    5. All handling of tomatoes produced or packed in the production 
area as defined in the Order is in the current of interstate or foreign 
commerce or directly burdens, obstructs, or affects such commerce.
    (b) Determinations.
    It is hereby determined that:
    1. The issuance of this amendatory Order, amending the aforesaid 
Order, is favored or approved by producers representing at least two-
thirds of the volume of tomatoes produced by those voting in a 
referendum on the question of approval and who, during the period of 
October 1, 2018, through September 31, 2019, have been engaged within 
the production area in the production of such tomatoes.
    2. The issuance of this amendatory Order advances the interests of 
growers of tomatoes in the production area pursuant to the declared 
policy of the Act.

Order Relative To Handling

    It is therefore ordered, that on and after the effective date 
hereof, all handling of tomatoes grown in Florida shall be in 
conformity to, and in compliance with, the terms and conditions of the 
said Order as hereby proposed to be amended as follows:
    The provisions amending the Order contained in the proposed rule 
issued by the Administrator on September 23, 2019, and published in the 
Federal Register (84 FR 52042) on October 1, 2019, will be and are the 
terms and provisions of this order amending the Order and are set forth 
in full herein.

List of Subjects in 7 CFR Part 966

    Tomatoes, Marketing agreements, Reporting and recordkeeping 
requirements.

Bruce Summers,
Administrator, Agricultural Marketing Service.

    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. Revise Sec.  966.22(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. Revise Sec.  966.23(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. Revise Sec.  966.32(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.
* * * * *
[FR Doc. 2020-23590 Filed 11-13-20; 8:45 am]
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