[Federal Register: December 19, 2003 (Volume 68, Number 244)]
[Rules and Regulations]
[Page 70689-70691]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr19de03-1]
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Rules and Regulations
Federal Register
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[[Page 70689]]
DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Part 966
[Docket No. FV03-966-4 FR]
Tomatoes Grown in Florida; Increased Assessment Rate
AGENCY: Agricultural Marketing Service, USDA.
ACTION: Final rule.
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SUMMARY: This rule increases the assessment rate established for the
Florida Tomato Committee (Committee) for the 2003-04 and subsequent
fiscal periods from $.02 to $.025 per 25-pound container or equivalent
of tomatoes handled. The Committee locally administers the marketing
order which regulates the handling of tomatoes grown in Florida.
Authorization to assess tomato handlers enables the Committee to incur
expenses that are reasonable and necessary to administer the program.
The fiscal period began August 1 and ends July 31. The assessment rate
will remain in effect indefinitely unless modified, suspended, or
terminated.
EFFECTIVE DATE: December 22, 2003.
FOR FURTHER INFORMATION CONTACT: Doris Jamieson, Southeast Marketing
Field Office, Fruit and Vegetable Programs, AMS, USDA, 799 Overlook
Drive, Suite A, Winter Haven, FL 33884-1671; telephone: (863) 324-3375,
Fax: (863) 325-8793; or George Kelhart, Technical Advisor, Marketing
Order Administration Branch, Fruit and Vegetable Programs, AMS, USDA,
1400 Independence Avenue SW., STOP 0237, Washington, DC 20250-0237;
telephone: (202) 720-2491, Fax: (202) 720-8938.
Small businesses may request information on complying with this
regulation by contacting Jay Guerber, Marketing Order Administration
Branch, Fruit and Vegetable Programs, AMS, USDA, 1400 Independence
Avenue SW., STOP 0237, Washington, DC 20250-0237; telephone: (202) 720-
2491, Fax: (202) 720-8938, or E-mail: Jay.Guerber@usda.gov.
SUPPLEMENTARY INFORMATION: This rule is issued under Marketing
Agreement No. 125 and Order No. 966, both as amended (7 CFR part 966),
regulating the handling of tomatoes grown in Florida, hereinafter
referred to as the ``order.'' 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 Department of Agriculture (USDA) is issuing this rule in
conformance with Executive Order 12866.
This rule has been reviewed under Executive Order 12988, Civil
Justice Reform. Under the marketing order now in effect, Florida tomato
handlers are subject to assessments. Funds to administer the order are
derived from such assessments. It is intended that the assessment rate
as issued herein will be applicable to all assessable tomatoes
beginning August 1, 2003, and continue until amended, suspended, or
terminated. This rule will not preempt any State or local laws,
regulations, or policies, unless they present an irreconcilable
conflict with this rule.
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. Such
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 rule increases the assessment rate established for the
Committee for the 2003-04 and subsequent fiscal periods from $.02 to
$.025 per 25-pound container or equivalent of tomatoes.
The Florida tomato marketing order provides authority for the
Committee, with the approval of USDA, to formulate an annual budget of
expenses and collect assessments from handlers to administer the
program. The members of the Committee are producers of Florida
tomatoes. They are familiar with the Committee's needs and with the
costs for goods and services in their local area and are thus in a
position to formulate an appropriate budget and assessment rate. The
assessment rate is formulated and discussed in a public meeting. Thus,
all directly affected persons have an opportunity to participate and
provide input.
For the 2001-02 and subsequent fiscal periods, the Committee
recommended, and USDA approved, an assessment rate that would continue
in effect from fiscal period to fiscal period unless modified,
suspended, or terminated by USDA upon recommendation and information
submitted by the Committee or other information available to USDA (68
FR 15338, March 31, 2003; 66 FR 56599, November 9, 2001).
The Committee met on September 4, 2003, and unanimously recommended
2003-04 expenditures of $1,773,100 and an assessment rate of $0.025 per
25-pound container of tomatoes. In comparison, last year's budgeted
expenditures were $1,910,840. The assessment rate of $0.025 is $.005
higher than the rate currently in effect. The number of assessable
containers during 2003-04 is estimated to be 50 million and the
recommended assessment rate would generate $1,250,000 in income. The
Committee s financial reserve is now estimated to be $1,767,427 and is
available to cover the deficit in assessment income. The increased
assessment rate allows the Committee to maintain its financial reserve
at a level it deems appropriate.
The major expenditures recommended by the Committee for the 2003-04
fiscal period include $700,000 for education and promotion, $405,000
for salaries, $320,000 for research, $49,000 for employee health
insurance, and $61,000 for employee retirement. Budgeted expenses for
these items in 2002-03 were $900,000 for education and promotion,
$370,730 for salaries, $320,000 for research, $38,250 for employee
health insurance, and $54,860 for employee retirement, respectively.
[[Page 70690]]
The assessment rate recommended by the Committee was derived by
examining anticipated expenses and expected shipments of Florida
tomatoes and considering available reserves. As mentioned earlier,
tomato shipments for the year are estimated at 50 million 25-pound
containers or equivalents which should provide $1,250,000 in assessment
income. Income derived from handler assessments, along with interest
income and funds from the Committee s authorized reserve, should be
adequate to cover budgeted expenses. Funds in the reserve currently
total $1,767,427 and are within the maximum permitted by the order of
not to exceed one fiscal period s expenses as stated in Sec. 966.44.
The assessment rate established in this rule will continue in
effect indefinitely unless modified, suspended, or terminated by USDA
upon recommendation and information submitted by the Committee or other
available information.
Although this assessment rate will be in effect for an indefinite
period, the Committee will continue to meet prior to or during each
fiscal period to recommend a budget of expenses and consider
recommendations for modification of the assessment rate. The dates and
times of Committee meetings are available from the Committee or USDA.
Committee meetings are open to the public and interested persons may
express their views at these meetings. USDA will evaluate Committee
recommendations and other available information to determine whether
modification of the assessment rate is needed. Further rulemaking will
be undertaken as necessary. The Committee's 2003-04 budget and those
for subsequent fiscal periods would be reviewed and, as appropriate,
approved by USDA.
Final Regulatory Flexibility Analysis
Pursuant to requirements set forth in the Regulatory Flexibility
Act (RFA), 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
business 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. Thus, both statutes have small
entity orientation and compatibility.
There are approximately 100 producers of tomatoes in the production
area and approximately 80 handlers subject to regulation under the
marketing order. Small agricultural producers are defined by the Small
Business Administration (13 CFR 121.201) as those having annual
receipts less than $750,000, and small agricultural service firms are
defined as those whose annual receipts are less than $5,000,000.
Based on industry and Committee data, the average annual price for
fresh Florida tomatoes during the 2002-03 season was approximately
$9.59 per 25-pound container or equivalent, and total fresh shipments
for the 2002-03 season were 50,974,342 25-pound equivalent cartons of
tomatoes. Committee data indicates that approximately 25 percent of the
handlers handle 94 percent of the total volume shipped outside the
regulated area. Based on the average annual price of $9.59 per 25-pound
container, about 75 percent of handlers could be considered small
businesses under SBA s definition. Therefore, the majority of handlers
of Florida tomato handlers may be classified as small entities. It also
is believed that the majority of Florida tomato producers may be
classified as small entities.
This rule increases the assessment rate established for the
Committee and collected from handlers for the 2003-04 and subsequent
fiscal periods from $0.02 to $0.025 per 25-pound container of tomatoes.
The Committee unanimously recommended 2003-04 expenditures of
$1,773,100 and an assessment rate of $0.025 per 25-pound container or
equivalent. The assessment rate of $0.025 is $0.005 higher than the
2002-03 rate. The quantity of assessable tomatoes for the 2003-04
season is estimated at 50 million 25-pound cartons or equivalents.
Thus, the $0.025 rate should provide $1,250,000 in assessment income.
Income derived from handler assessments, along with interest income and
funds from the Committee s authorized reserve, should be adequate to
cover budgeted expenses.
The major expenditures recommended by the Committee for the 2003-04
fiscal period include $700,000 for education and promotion, $405,000
for salaries, $320,000 for research, $49,000 for employee health
insurance, and $61,000 for employee retirement. Budgeted expenses for
these items in 2002-03 were $900,000 for education and promotion,
$370,730 for salaries, $320,000 for research, $38,250 for employee
health insurance, and $54,860 for employee retirement, respectively.
As previously mentioned, the number of assessable containers during
2003-04 is estimated to be 50 million and the recommended assessment
rate would generate $1,250,000 in income. The Committee s financial
reserve is now estimated to be $1,767,427 and is available to cover the
deficit in assessment income. The increased assessment rate will allow
the Committee to maintain its financial reserve at a level it deems
appropriate.
The Committee reviewed and unanimously recommended 2003-04
expenditures of $1,773,100 which included increases in administrative
and office salaries, research, and education and promotion programs.
Prior to arriving at this budget, the Committee considered information
from various sources, such as the Committee's Executive Subcommittee,
Finance Subcommittee, Research Subcommittee, and Education and
Promotion Subcommittee. Alternative expenditure levels were discussed
by these groups, based upon the relative value of various research
projects to the tomato industry. The assessment rate of $0.025 per 25-
pound container or equivalent of tomatoes was then determined by
examining the anticipated expenses and expected shipments and
considering available reserves. The recommended assessment rate should
generate $1,250,000 in income. This is approximately $523,100 below the
anticipated expenses, which the Committee determined to be acceptable.
A review of historical information and preliminary information
pertaining to the upcoming season indicates that the grower price for
the 2003-04 season could range between $6.45 and $10.37 per 25-pound
container of tomatoes. Therefore, the estimated assessment revenue for
the 2003-04 season as a percentage of total grower revenue could range
between .4 and .2 percent, respectively.
This action increases the assessment obligation imposed on
handlers. While assessments impose some additional costs on handlers,
the costs are minimal and uniform on all handlers. Some of the
additional costs may be passed on to producers. However, these costs
are offset by the benefits derived by the operation of the marketing
order. In addition, the Committee's meeting was widely publicized
throughout the Florida tomato industry and all interested persons were
invited to attend the meeting and participate in Committee
deliberations on all issues. Like all Committee meetings, the September
4, 2003, meeting was a public meeting and all entities, both large and
small, were able to express views on this issue.
[[Page 70691]]
This 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 rule.
A proposed rule concerning this action was published in the Federal
Register on October 27, 2003 (68 FR 61146). Copies of the proposed rule
were also mailed or sent via facsimile to all tomato handlers. Finally,
the proposal was made available through the Internet by the Office of
the Federal Register and USDA. A 30-day comment period ending November
26, 2003, was provided for interested persons to respond to the
proposal. No comments were received.
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/fv/moab.html.
Any questions about the compliance
guide should be sent to Jay Guerber 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 is hereby found that this rule, as
hereinafter set forth, will tend to effectuate the declared policy of
the Act.
Pursuant to 5 U.S.C. 553, it also found and determined that good
cause exists for not postponing the effective date of this rule until
30 days after publication in the Federal Register because handlers are
already receiving 2003-04 crop tomatoes from growers. The 2003-04
fiscal period began on August 1, 2003, and the marketing order requires
that the rate of assessment for each fiscal period apply to all
assessable tomatoes handled during such fiscal period. Further,
handlers are aware of this rule which was recommended at a public
meeting. Also, a 30-day comment period was provided for in the proposed
rule and no comments were received.
List of Subjects in 7 CFR Part 966
Marketing agreements, Reporting and recordkeeping requirements,
Tomatoes.
0
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. Section 966.234 is revised to read as follows:
Sec. 966.234 Assessment rate.
On and after August 1, 2003, an assessment rate of $0.025 per 25-
pound container or equivalent is established for Florida tomatoes.
Dated: December 15, 2003.
A.J. Yates,
Administrator, Agricultural Marketing Service.
[FR Doc. 03-31265 Filed 12-18-03; 8:45 am]
BILLING CODE 3410-02-P