[Federal Register Volume 86, Number 197 (Friday, October 15, 2021)]
[Rules and Regulations]
[Pages 57356-57357]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-22487]



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DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 966

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


Tomatoes Grown in Florida; Reapportionment of Membership

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Final rule.

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SUMMARY: This final rule adjusts 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 
due to a 2020 amendment to the marketing order for tomatoes grown in 
Florida, which reduced the size of the Committee from 12 members to 10, 
but did not also reduce the number of member seats per district. This 
action changes the number of members in each of the two districts from 
six members and their alternates to five members and their alternates, 
to resolve the regulatory conflict.

DATES: Effective November 15, 2021.

FOR FURTHER INFORMATION CONTACT: Steven W. Kauffman, Marketing 
Specialist, or Christian D. Nissen, Regional Director, Southeast Region 
Branch, Market Development 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, Market Development 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, 
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 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 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 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 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 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.
    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, and 
establishing 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 the newly formed districts 
were completed under a separate rulemaking published in the Federal 
Register on September 26, 2019 (84 FR 50711)(``2019 Amendments'').
    Further amendments to the Order published in the Federal Register 
on November 16, 2020 (85 FR 72914)(``2020 Amendments''), in part, 
reduced total membership on the Committee from 12 members and their 
alternates to 10 members and their alternates under 7 CFR 966.22(a). 
However, 7 CFR 966.161 continued to designate six member seats and 
their alternates to each of the two districts, for a total of 12 
members and their alternates. This rule resolves that conflict in the 
Order by reducing 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. Ten 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. Section 966.160 
defines 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.
    During the Committee's discussions on November 1, 2018, and 
February 27, 2019, members indicated they wanted to establish equity in 
membership between the two districts. This action reduces the seats in 
each district from six members and their alternates to five members and 
their alternates to conform with the 2020 Amendments to 7 CFR 
966.22(a). This will maintain equitable representation on the Committee 
and bring the total number of apportioned seats from two districts into 
compliance with the reduced number of Committee members authorized in 
the Order, at 7 CFR 966.22(a).
    Accordingly, each district will nominate five members and five 
alternates for a total of 10 members and 10 alternate nominees to serve 
on the Committee.

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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 rule 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 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 of 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 equal $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 assuming a normal distribution, 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 final rule adjusts the number of member seats apportioned on 
the Committee. USDA is taking this action because a 2020 amendment to 
the Order reduced the size of the Committee from 12 members to 10, but 
did not simultaneously reduce member seats in each of the two districts 
from six members and their alternates to five members and their 
alternates. This conforming change revises Sec.  966.161 pursuant to 
the authority in Sec.  966.25. The balance of representation on the 
Committee will remain the same, with member seats divided evenly 
between the two districts. Effects of this final rule should not be 
disproportionately greater or less for small entities than for larger 
entities.
    It is not anticipated that this action will impose any additional 
costs on the industry. This change is a conforming change and will not 
establish any new regulatory requirements on handlers. There should be 
no change in financial costs, reporting, or recordkeeping requirements 
because of this action.
    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 2020 amendment to the Order, this action is 
necessary to make 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 are necessary in those requirements 
because of this action. Should any changes become necessary, they will 
be submitted to OMB for approval.
    This final rule imposes 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. USDA has not 
identified any relevant Federal rules that duplicate, overlap, or 
conflict with this final rule.
    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.
    The Committee's meetings are widely publicized throughout the 
Florida tomato industry, and all interested persons are invited to 
attend 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.
    A proposed rule concerning this action was published in the Federal 
Register on June 28, 2021 (86 FR 33913). Copies of the proposed rule 
were sent via email to Committee members and Florida tomato handlers. 
Additionally, the proposed rule was made available through the internet 
by USDA and the Office of the Federal Register. A 30-day comment period 
ending July 28, 2021, was provided to allow interested persons to 
respond to the proposal. No comments on the proposal were received. 
Accordingly, no changes were 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: 
https://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 material presented, including 
the information and recommendation submitted by the Committee and other 
available information, it has been found that this rule will effectuate 
the declared policy of the Act.

List of Subjects in 7 CFR Part 966

    Marketing agreements, Reporting and recordkeeping requirements, 
Tomatoes.

    For 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 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. 2021-22487 Filed 10-14-21; 8:45 am]
BILLING CODE P