[Federal Register: February 29, 2008 (Volume 73, Number 41)]
[Rules and Regulations]
[Page 10976-10978]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr29fe08-4]
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DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Part 966
[Docket No. AMS-FV-07-0014; FV07-966-2 FIR]
Tomatoes Grown in Florida; Decreased Assessment Rate
AGENCY: Agricultural Marketing Service, USDA.
ACTION: Final rule.
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SUMMARY: The Department of Agriculture (USDA) is adopting, as a final
rule, without change, an interim final rule which decreased the
assessment rate established for the Florida Tomato Committee
(Committee) for the 2007-08 and subsequent fiscal periods from $0.035
to $0.0325 per 25-pound carton of tomatoes handled. The Committee
locally administers the marketing order which regulates the handling of
tomatoes grown in Florida. Assessments upon tomato handlers are used by
the Committee to fund reasonable and necessary expenses of the program.
The fiscal period begins August 1 and ends July 31. The assessment rate
will remain in effect indefinitely unless modified, suspended, or
terminated.
DATES: Effective Date: March 31,2008.
FOR FURTHER INFORMATION CONTACT: William G. Pimental, Marketing
Specialist or Christian D. Nissen, Regional Manager, Southeast
Marketing Field Office, Marketing Order Administration Branch, Fruit
and Vegetable Programs, AMS, USDA; Telephone: (863) 324-3375, Fax:
(863) 325-8793, or E-mail: William.Pimental@usda.gov or
Christian.Nissen@usda.gov.
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.''
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, 2007, 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. 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.
[[Page 10977]]
This rule continues in effect the action that decreased the
assessment rate established for the Committee for the 2007-08 and
subsequent fiscal periods from $0.035 per 25-pound carton to $0.0325
per 25-pound carton 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 2006-07 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.
The Committee met on August 23, 2007, and unanimously recommended
2007-08 expenditures of $2,101,000.00 and an assessment rate of $0.0325
per 25-pound carton of tomatoes. In comparison, last year's budgeted
expenditures were $2,193,700. The assessment rate of $0.0325 is $0.0025
lower than the rate previously in effect. Last season the industry
shipped 2.6 million 25-pound cartons more than the Committee had
anticipated, providing greater revenues than expected from assessments.
The Committee's 2006-07 expenses were $200,000 less than budgeted, and
they utilized less from reserves than anticipated. The Committee also
recommended a reduced budget for 2007-08. Therefore, the Committee
voted to recommend a reduced assessment rate.
The major expenditures recommended by the Committee for the 2007-08
year include $900,000 for education and promotion, $467,000 for
salaries, $320,000 for research, and $71,000 for employee retirement.
Budgeted expenses for these items in 2006-07 were $1,000,000, $445,900,
$320,000, and $67,000, respectively.
The assessment rate recommended by the Committee was derived by
dividing anticipated expenses, less carry-in and reserve revenues
totaling $476,000, by expected shipments of Florida tomatoes. Tomato
shipments for the year are estimated at 50 million 25-pound cartons,
which should provide $1,625,000 in assessment income. Income derived
from handler assessments, along with interest income and funds from the
Committee's authorized reserve will be adequate to cover budgeted
expenses. Funds in the reserve (currently approximately $780,000) will
be kept within the maximum permitted by Sec. 966.44 of the order,
which states that excess funds cannot exceed one fiscal period's
expenses.
The assessment rate 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 is effective 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 2007-08 budget and those
for subsequent fiscal periods will 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 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
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.
There are approximately 100 producers of tomatoes in the production
area and approximately 70 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 $6,500,000.
Based on industry and Committee data, the average annual price for
fresh Florida tomatoes during the 2006-07 season was approximately
$7.69 per 25-pound container, and total fresh shipments for the 2006-07
season were 52,505,687 25-pound 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 price, about 75 percent of handlers could be considered
small businesses under SBA's definition. In addition, based on
production data, grower prices as reported by the National Agricultural
Statistics Service, and the total number of Florida tomato growers, the
average annual grower revenue is below $750,000. Thus, the majority of
handlers and producers of Florida tomatoes may be classified as small
entities.
This rule continues in effect the action that decreased the
assessment rate established for the Committee and collected from
handlers for the 2007-08 and subsequent fiscal periods from $0.035 to
$0.0325 per 25-pound carton of tomatoes. The Committee unanimously
recommended 2007-08 expenditures of $2,101,000 and an assessment rate
of $0.0325 per 25-pound carton. The assessment rate of $0.0325 is
$0.0025 lower than the 2006-07 rate. The quantity of assessable
tomatoes for the 2007-08 season is estimated at 50 million 25-pound
cartons. Thus, the $0.0325 rate should provide $1,625,000 in assessment
income. Income derived from handler assessments, along with interest
income and funds from the Committee's authorized reserve will be
adequate to cover budgeted expenses.
The major expenditures recommended by the Committee for the 2007-08
year include $900,000 for education and promotion, $467,000 for
salaries, $320,000 for research, and $71,000 for employee retirement.
Budgeted expenses for these items in 2006-07 were $1,000,000, $445,900,
$320,000, and $67,000, respectively.
Last season the industry shipped 2.6 million 25-pound cartons more
than the Committee had anticipated, providing greater revenues than
expected from assessments. The Committee's 2006-07 expenses were
$200,000 less than budgeted, and they utilized less from reserves than
anticipated. The Committee also recommended a reduced budget for 2007-
08. Therefore,
[[Page 10978]]
the Committee voted to recommend a reduced assessment rate.
The Committee reviewed and unanimously recommended 2007-08
expenditures of $2,101,000, which included a decrease in the education
and promotion budget. 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 $0.0325 per 25-pound carton of assessable tomatoes was then
determined by dividing the total recommended budget, less carry-in and
reserve revenues totaling $476,000, by the quantity of tomatoes,
estimated at 50 million 25-pound cartons for the 2007-08 fiscal period.
A review of historical information and preliminary information
pertaining to the upcoming 2007-08 fiscal period indicates that the
grower price for the 2007-08 season could range between $3.89 and
$16.05 per 25-pound carton of tomatoes. Therefore, the estimated
assessment revenue for the 2007-08 fiscal period as a percentage of
total grower revenue could range between 0.2 and 0.8 percent.
This action continues in effect the action that decreased the
assessment obligation imposed on handlers. Assessments are applied
uniformly on all handlers, and some of the costs may be passed on to
producers. However, decreasing the assessment rate reduces the burden
on handlers, and may reduce the burden on producers. 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 August 23, 2007, meeting was a public meeting
and all entities, both large and small, were able to express views on
this issue.
This action 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. In addition, as
noted in the initial regulatory flexibility analysis, USDA has not
identified any relevant Federal rules that duplicate, overlap, or
conflict with this 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, and for other purposes.
An interim final rule concerning this action was published in the
Federal Register on November 15, 2007 (72 FR 64123). Copies of that
rule were also mailed or sent via facsimile to all Florida tomato
handlers. Finally, the interim final rule was made available through
the Internet by USDA and the Office of the Federal Register. A 60-day
comment period was provided for interested persons to respond to the
interim final rule. The comment period ended January 14, 2008, and 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.
List of Subjects in 7 CFR Part 966
Marketing agreements, Reporting and recordkeeping requirements,
Tomatoes.
PART 966--TOMATOES GROWN IN FLORIDA
0
Accordingly, the interim final rule amending 7 CFR part 966 which was
published at 72 FR 64123 on November 15, 2007, is adopted as a final
rule without change.
Dated: February 25, 2008.
Lloyd C. Day,
Administrator, Agricultural Marketing Service.
[FR Doc. E8-3801 Filed 2-28-08; 8:45 am]
BILLING CODE 3410-02-P