[Federal Register Volume 86, Number 121 (Monday, June 28, 2021)]
[Proposed Rules]
[Pages 33913-33915]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-13705]


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 Proposed Rules
                                                 Federal Register
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 This section of the FEDERAL REGISTER contains notices to the public of 
 the proposed issuance of rules and regulations. The purpose of these 
 notices is to give interested persons an opportunity to participate in 
 the rule making prior to the adoption of the final rules.
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  Federal Register / Vol. 86, No. 121 / Monday, June 28, 2021 / 
Proposed Rules  

[[Page 33913]]



DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 966

[Doc. No. AMS-SC-21-0016; SC21-966-1 PR]


Tomatoes Grown in Florida; Reapportionment of Membership

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Proposed rule.

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SUMMARY: This proposed rule would adjust the number of member seats 
apportioned to each district represented on the Florida Tomato 
Committee (Committee). The Department of Agriculture (USDA) is taking 
this action based on an amendatory change to the marketing order for 
tomatoes grown in Florida, which reduced the size of the Committee from 
12 members to 10. This action would reduce the member seats in each of 
the two districts from six members and their alternates to five members 
and their alternates.

DATES: Comments must be received by July 28, 2021.

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, 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 12866 and 13563. Executive Orders 
12866 and 13563 direct agencies to assess all costs and benefits of 
available regulatory alternatives and, if regulation is necessary, to 
select regulatory approaches that maximize net benefits (including 
potential economic, environmental, public health and safety effects, 
distributive impacts and equity). Executive Order 13563 emphasizes the 
importance of quantifying both costs and benefits, reducing costs, 
harmonizing rules, and promoting flexibility. This action falls within 
a category of regulatory actions that the Office of Management and 
Budget (OMB) exempted from Executive Order 12866 review.
    This proposed rule has been reviewed under Executive Order 13175--
Consultation and Coordination with Indian Tribal Governments, which 
requires agencies to consider whether their rulemaking actions would 
have tribal implications. AMS has determined this proposed rule is 
unlikely to have substantial direct effects on one or more Indian 
tribes, on the relationship between the Federal Government and Indian 
tribes, or on the distribution of power and responsibilities between 
the Federal Government and Indian tribes.
    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 changes to the Committee 
membership as prescribed in the Order. USDA is taking this action as a 
conforming change following amendments to the Order published in the 
Federal Register on November 16, 2020 (85 FR 72914). The amendments, in 
part, reduced membership on the Committee from 12 members and their 
alternates to 10 members and their alternates. This action would reduce 
the member seats in each of the two districts from six members and 
their alternates to five members and their alternates, maintaining 
equitable representation on the Committee from both districts.
    Section 966.22 provides for the establishment of membership on the 
Committee. The ten members and their alternates shall be producers, or 
officers or employees of a corporate producer, in

[[Page 33914]]

the district for which selected and a resident of the production area. 
Section 966.160 defines the two 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. Section 966.161 apportions Committee membership 
among the two districts pursuant to Sec.  966.25.
    The Committee met on November 1, 2018, and February 27, 2019, to 
recommend changes to the Order. These recommendations included reducing 
the Committee size from 12 members to 10; reducing the number of 
districts in the production area from four districts to two, 
maintaining that membership on the Committee be divided evenly between 
the two districts. The reduction to two districts and the 
reapportionment of Committee membership that provided equal 
representation of six members in each of those newly formed districts 
were completed under a separate rulemaking action published in the 
Federal Register on September 26, 2019 (84 FR 50711).
    During the Committee's discussion of the amendments and the 
reduction in Committee size, members indicated they wanted to maintain 
the equity in membership between the two districts. With the reduction 
in the Committee size from 12 members and their alternates to 10 
members and their alternates, this rule would make a conforming change 
to the Committee membership as apportioned in Sec.  966.161. This 
action would reduce the seats in each district from six members and 
their alternates to five members and their alternates. This would 
maintain the equitable representation on the Committee and bring the 
number of apportioned seats in line with the reduced number of members 
authorized in the Order.
    Accordingly, each district would nominate five members and five 
alternates for a total of 10 members and 10 alternate nominees to serve 
on the Committee.

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 65 producers of Florida tomatoes in the 
production area and 41 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).
    With an estimated producer price of $14.00 per 25-pound container, 
the number of Florida tomato producers, and a normal distribution 
assumed, the average annual producer revenue is above $1,000,000, 
($14.00 times 22.3 million containers equals $312,200,000 divided by 65 
producers equals $4,803,077 per producer). Thus, the majority of 
producers of Florida tomatoes may be classified as large entities.
    According to industry and Committee data, the average annual price 
for fresh Florida tomatoes during the 2019-20 season was approximately 
$19.07 per 25-pound container, and total fresh shipments were 22.3 
million containers. Using the average price and shipment information, 
the number of handlers, and a normal distribution assumed, the majority 
of handlers have average annual receipts of less than $30,000,000, 
($19.07 times 22.3 million containers equals $425,261,000 divided by 41 
handlers equals $10,372,220 per handler). Thus, the majority of 
handlers of Florida tomatoes may be classified as small entities.
    This proposed rule would adjust the number of member seats 
apportioned on the Committee. USDA is taking this action based on an 
amendatory change to the Order, which reduced the size of the Committee 
from 12 members to 10. This action would reduce the member seats in 
each of the two districts from six members and their alternates to five 
members and their alternates. This change would revise Sec.  966.161 
pursuant to the authority in Sec.  966.25.
    It is not anticipated that this action would impose any additional 
costs on the industry. This change is a conforming change and would not 
establish any new regulatory requirements on handlers. There would be 
no change in financial costs, reporting, or recordkeeping requirements 
because of this action.
    This action would reduce the apportioned members from six members 
and their alternates to five members and their alternates in each of 
the two districts to reflect the recent amendatory action which reduced 
the size of the Committee. The balance of representation on the 
Committee would remain the same with member seats divided evenly 
between the two districts. The effects of this rule would not be 
disproportionately greater or less for small entities than for larger 
entities.
    Alternatives to reapportionment were discussed and considered by 
the Committee. However, these alternatives were rejected. The Committee 
agreed that given the number of producers had decreased, reducing the 
Committee size would make it more reflective of today's industry. The 
Committee also wanted to maintain the balance of representation between 
the two districts. With the amendatory change to the Order, this action 
is necessary to make the regulations conform to the Order requirements.
    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 would be 
necessary because of this proposed rule. 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.
    The Committee's meetings are widely publicized throughout the 
Florida tomato industry, and all interested persons are invited to 
attend the meetings and participate in Committee deliberations on all 
issues. Like all Committee meetings, the November 1, 2018, and February 
27, 2019, meetings were open to the public, 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.
    AMS is committed to complying with the E-Government Act, to promote 
the

[[Page 33915]]

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.
    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. 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--five members and their alternates.
    (b) District 2--five members and their alternates.

Erin Morris,
Associate Administrator, Agricultural Marketing Service.
[FR Doc. 2021-13705 Filed 6-25-21; 8:45 am]
BILLING CODE P