[Federal Register: November 4, 2009 (Volume 74, Number 212)]
[Rules and Regulations]
[Page 57057-57060]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr04no09-2]
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DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Part 966
[Doc. No. AMS-FV-09-0063; FV09-966-2 IFR]
Tomatoes Grown in Florida; Decreased Assessment Rate
AGENCY: Agricultural Marketing Service, USDA.
ACTION: Interim final rule.
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SUMMARY: This rule decreases the assessment rate established for the
Florida Tomato Committee (Committee) for the 2009-10 and subsequent
fiscal periods from $0.0375 to $0.0275 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
Florida 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 November 5, 2009. Comments received by January 4,
2010, will be considered prior to issuance of a final rule.
ADDRESSES: Interested persons are invited to submit written comments
concerning this rule. Comments must be sent to the Docket Clerk,
Marketing Order Administration Branch, Fruit and Vegetable Programs,
AMS, USDA, 1400 Independence Avenue, SW., STOP 0237, Washington, DC
20250-0237; Fax: (202) 720-8938; or Internet: http://
www.regulations.gov. Comments should reference the document number and
the date and page number of this issue of the Federal Register and will
be 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
[[Page 57058]]
rule 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: Doris Jamieson, 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: Doris.Jamieson@ams.usda.gov or Christian.Nissen@ams.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@ams.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 Florida tomatoes
beginning August 1, 2009, and continue until amended, suspended, or
terminated.
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 decreases the assessment rate established for the
Committee for the 2009-10 and subsequent fiscal periods from $0.0375
per 25-pound carton to $0.0275 per 25-pound carton of Florida 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 2008-09 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 20, 2009, and unanimously recommended
2009-10 expenditures of $1,910,500 and an assessment rate of $0.0275
per 25-pound carton of tomatoes. In comparison, last year's budgeted
expenditures were $2,438,200. The assessment rate of $0.0275 is $0.01
lower than the rate currently in effect. The Committee recommended the
decrease in assessment rate due to a reduction in expenditures for
education and promotion.
The major expenditures recommended by the Committee for the 2009-10
year include $700,000 for education and promotion, $475,500 for
salaries, $320,000 for research, and $70,000 for employee retirement.
Budgeted expenses for these items in 2008-09 were $1,200,000, $505,500,
$320,000, and $77,000, respectively.
The assessment rate recommended by the Committee was derived by
dividing anticipated expenses by expected shipments of Florida
tomatoes. Tomato shipments for the year are estimated at 50 million
cartons, which should provide $1,375,000 in assessment income. Income
derived from handler assessments, along with interest income and income
from the USDA Market Access Program (MAP), will be adequate to cover
budgeted expenses. Funds in the reserve (currently $502,000) will be
kept 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 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 2009-10 budget and those
for subsequent fiscal periods will be reviewed and, as appropriate,
approved by USDA.
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 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
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 (SBA) as those having annual receipts less than
$750,000, and small agricultural service firms are defined as those
whose annual
[[Page 57059]]
receipts are less than $7,000,000 (13 CFR 121.201).
Based on industry and Committee data, the average annual price for
fresh Florida tomatoes during the 2008-09 season was approximately
$8.13 per 25-pound carton, and total fresh shipments for the 2008-09
season were 47,054,853 25-pound cartons of tomatoes. Committee data
indicates 10 percent of the handlers handle 56 percent of the total
volume shipped outside the regulated area. Based on the average price
and the other data available, a majority 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 decreases the assessment rate established for the
Committee and collected from handlers for the 2009-10 and subsequent
fiscal periods from $0.0375 to $0.0275 per 25-pount carton of tomatoes.
The Committee unanimously recommended 2009-10 expenditures of
$1,910,500 and an assessment rate of $0.0275 per 25-pound container.
The assessment rate of $0.0275 is $0.01 lower than the 2008-09 rate.
The quantity of assessable tomatoes for the 2009-10 season is estimated
at 50 million. Thus, the $0.0275 rate should provide $1,375,000 in
assessment income. Income derived from handler assessment income, along
with interest income and funds from the MAP program will be adequate to
cover budgeted expenses.
The major expenditures recommended by the Committee for the 2009-10
year include $700,000 for education and promotion, $475,500 for
salaries, $320,000 for research, and $70,000 for employee retirement.
Budgeted expenses for these items in 2008-09 were $1,200,000, $505,500,
$320,000, and $77,000, respectively.
The Committee recommended the decrease in assessment rate due to a
reduction in expenditures for education and promotion.
The Committee reviewed and unanimously recommended 2009-10
expenditures of $1,910,500 which included decreases in education and
promotion, salaries, employee retirement, and payroll expenses. Prior
to arriving at this budget, the Committee considered information from
various sources, such as the Committee's Finance, Research, and
Education and Promotion Subcommittees. Alternative expenditure levels
were discussed by these groups, based upon the relative value of
various projects to the tomato industry. The assessment rate of $0.0275
per 25-pound carton of assessable tomatoes was then determined by
dividing the total recommended budget by the quantity of assessable
commodity, estimated at 50 million 25-pound cartons for the 2009-10
season. Considering income from assessments, interest, and income from
other sources, total income will be approximately $41,500 above the
anticipated expenses, which the Committee determined to be acceptable.
A review of historical information and preliminary information
pertaining to the upcoming fiscal period indicates that the grower
price for the 2009-10 season could range between $3.89 and $19.01 per
25-pound carton of tomatoes. Therefore, the estimated assessment
revenue for the 2009-10 season as a percentage of total grower revenue
could range between .1 and .7 percent.
This action decreases 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
20, 2009, meeting was a public meeting and all entities, both large and
small, were able to express views on this issue. Finally, interested
persons are invited to submit comments on this interim final rule,
including the regulatory and informational impacts of this action on
small businesses.
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.
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 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/AMSv1.0/
ams.fetchTemplateData.do?template=TemplateN&page=MarketingOrdersSmallBus
inessGuide. 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 is also found and determined upon good
cause that it is impracticable, unnecessary, and contrary to the public
interest to give preliminary notice prior to putting this rule into
effect, and that good cause exists for not postponing the effective
date of this rule until 30 days after publication in the Federal
Register because: (1) The 2009-10 fiscal year began on August 1, 2009,
and the marketing order requires that the rate of assessment for each
fiscal period apply to all assessable tomatoes handled during such
fiscal period; (2) this action decreases the assessment rate for
Florida tomatoes beginning with the 2009-10 fiscal period; (3) handlers
are aware of this action which was unanimously recommended by the
Committee at a public meeting and is similar to other assessment rate
actions issued in past years; and (4) this interim final rule provides
a 60-day comment period, and all comments timely received will be
considered prior to finalization of this rule.
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, 2009, an assessment rate of $0.0275 per 25-
pound
[[Page 57060]]
carton is established for Florida tomatoes.
Dated: October 27, 2009.
Rayne Pegg,
Administrator, Agricultural Marketing Service.
[FR Doc. E9-26462 Filed 11-3-09; 8:45 am]
BILLING CODE 3410-02-P