Tomatoes Grown in Florida; Decreased Assessment Rate, 57057-57060 [E9-26462]
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57057
Rules and Regulations
Federal Register
Vol. 74, No. 212
Wednesday, November 4, 2009
This section of the FEDERAL REGISTER
contains regulatory documents having general
applicability and legal effect, most of which
are keyed to and codified in the Code of
Federal Regulations, which is published under
50 titles pursuant to 44 U.S.C. 1510.
development, contact Mrs. Kris Caraher,
User Fee Section, Financial Services
Branch, Financial Management
Division, MRPBS, APHIS, 4700 River
Road Unit 55, Riverdale, MD 20737–
1232; (301) 734–0882.
Done in Washington, DC, this 30th day of
October 2009.
Kevin Shea,
Acting Administrator, Animal and Plant
Health Inspection Service.
[FR Doc. E9–26518 Filed 10–30–09; 4:15 pm]
The Code of Federal Regulations is sold by
the Superintendent of Documents. Prices of
new books are listed in the first FEDERAL
REGISTER issue of each week.
SUPPLEMENTARY INFORMATION:
BILLING CODE 3410–34–P
Background
DEPARTMENT OF AGRICULTURE
Animal and Plant Health Inspection
Service
7 CFR Part 354
[Docket No. APHIS–2009–0048]
RIN 0579–AC99
User Fees for Agricultural Quarantine
and Inspection Services
Animal and Plant Health
Inspection Service, USDA.
ACTION: Interim rule; withdrawal.
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AGENCY:
SUMMARY: This document withdraws the
interim rule published in the Federal
Register on September 28, 2009,
adjusting the user fees charged for
certain agricultural quarantine and
inspection services provided in
connection with certain commercial
vessels, commercial trucks, commercial
railroad cars, commercial aircraft, and
international airline passengers arriving
at ports in the customs territory of the
United States. That interim rule was
originally scheduled to become effective
on October 1, 2009, but on October 2,
2009, we published in the Federal
Register a second document delaying
the effective date until November 1,
2009. We have now decided to
withdraw the interim rule in order to
explore other regulatory alternatives.
DATES: The withdrawal of the interim
rule amending 7 CFR part 354 published
at 74 FR 49311–49315 on September 28,
2009, and delayed in a document
published at 74 FR 50915 on October 2,
2009, is effective October 30, 2009.
FOR FURTHER INFORMATION CONTACT: For
information concerning program
operations, contact Mr. William E.
Thomas, Director, Quarantine Policy,
Analysis, and Support, PPQ, APHIS,
4700 River Road Unit 131, Riverdale,
MD 20737; (301) 7345214. For
information concerning rate
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DEPARTMENT OF AGRICULTURE
In an interim rule 1 published in the
Federal Register on September 28, 2009
(74 FR 49311–49315, Docket No.
APHIS–2009–0048), we amended the
user fee regulations in 7 CFR part 354
by adjusting the fees charged for certain
agricultural quarantine and inspection
(AQI) services that are provided in
connection with certain commercial
vessels, commercial trucks, commercial
railroad cars, commercial aircraft, and
international airline passengers arriving
at ports in the customs territory of the
United States. The rule was scheduled
to become effective on October 1, 2009.
On October 2, 2009, however, we
published a second document in the
Federal Register (74 FR 50915, Docket
No. APHIS–2009–0048) delaying the
effective date of the interim rule until
November 1, 2009. The delay was
intended to provide entities affected by
the changes in AQI user fees additional
time to make the necessary preparations
to comply with the new fees. In
conjunction with the delay, public
meetings on the interim rule were held
in Riverdale, MD, on October 15 and
October 27, 2009. Transcripts of the
meetings will be made available on the
Regulations.gov Web site.2
We have now decided to withdraw
the interim rule in order to explore
other regulatory alternatives.
Accordingly, the interim rule
amending 7 CFR part 354 published at
74 FR 49311–49315 on September 28,
2009, and delayed in a document
published at 74 FR 50915 on October 2,
2009, is withdrawn effective October 30,
2009.
Authority: 7 U.S.C. 7701–7772, 7781–
7786, and 8301–8317; 21 U.S.C. 136 and
136a; 49 U.S.C. 80503; 7 CFR 2.22, 2.80, and
371.3.
1 To view the interim rule and the delay of
effective date, go to: https://www.regulations.gov/
fdmspublic/component/
main?main=DocketDetail&d=APHIS-2009-0048.
2 See footnote 1.
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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.
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 25pound 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: https://
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:
https://www.regulations.gov. All
comments submitted in response to this
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57058
Federal Register / Vol. 74, No. 212 / Wednesday, November 4, 2009 / Rules and Regulations
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
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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 25pound 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
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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 § 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
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Federal Register / Vol. 74, No. 212 / Wednesday, November 4, 2009 / Rules and Regulations
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 25pound 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
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15:16 Nov 03, 2009
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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 25pound 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.
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57059
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/
AMSv1.0/
ams.fetchTemplateData.do?template=
TemplateN&page=MarketingOrders
SmallBusinessGuide. 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.
For the reasons set forth in the
preamble, 7 CFR part 966 is amended as
follows:
■
PART 966—TOMATOES GROWN IN
FLORIDA
1. The authority citation for 7 CFR
part 966 continues to read as follows:
■
Authority: 7 U.S.C. 601–674.
2. Section 966.234 is revised to read
as follows:
■
§ 966.234
Assessment rate.
On and after August 1, 2009, an
assessment rate of $0.0275 per 25-pound
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57060
Federal Register / Vol. 74, No. 212 / Wednesday, November 4, 2009 / Rules and Regulations
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
DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Part 23
[Docket No. CE300; Special Conditions No.
23–240–SC]
Special Conditions: Cessna Aircraft
Company, Model 525C; Flight
Performance, Flight Characteristics,
and Operating Limitations
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AGENCY: Federal Aviation
Administration (FAA), DOT.
ACTION: Final special conditions; request
for comments.
SUMMARY: These special conditions are
issued for the Cessna Aircraft Company,
Model 525C airplane. This airplane will
have a novel or unusual design
feature(s) associated with turbofan
engines, engine location, and certain
performance characteristics necessary
for this type of airplane that were not
envisioned by the existing regulations.
The applicable airworthiness
regulations do not contain adequate or
appropriate safety standards for this
design feature. These special conditions
contain the additional safety standards
that the Administrator considers
necessary to establish a level of safety
equivalent to that established by the
existing airworthiness standards.
DATES: The effective date of these
special conditions is November 4, 2009.
We must receive your comments by
December 4, 2009.
ADDRESSES: Mail two copies of your
comments to: Federal Aviation
Administration, Regional Counsel,
ACE–7, Attn: Rules Docket No. CE300,
901 Locust, Kansas City, MO 64106.
You may deliver two copies to the
Regional Counsel at the above address.
Mark your comments: Docket No.
CE300. You may inspect comments in
the Rules Docket weekdays, except
Federal holidays, between 7:30 a.m. and
4 p.m.
FOR FURTHER INFORMATION CONTACT: Mr.
Lowell Foster, Federal Aviation
Administration, Small Airplane
Directorate, Aircraft Certification
Service, 901 Locust, Room 301, Kansas
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15:16 Nov 03, 2009
Jkt 220001
City, MO 64106; telephone (816) 329–
4125; facsimile (816) 329–4090.
SUPPLEMENTARY INFORMATION: The FAA
has determined that notice and
opportunity for prior public comment
hereon are impracticable because these
procedures would significantly delay
issuance of the approval design and
thus delivery of the affected aircraft. In
addition, the substance of these special
conditions has been subject to the
public comment process in several prior
instances with no substantive comments
received. The FAA therefore finds that
good cause exists for making these
special conditions effective upon
issuance.
Comments Invited
We invite interested people to take
part in this rulemaking by sending
written comments, data, or views. The
most helpful comments reference a
specific portion of the special
conditions, explain the reason for any
recommended change, and include
supporting data. We ask that you send
us two copies of written comments.
We will file in the docket all
comments we receive, as well as a
report summarizing each substantive
public contact with FAA personnel
about these special conditions. You can
inspect the docket before and after the
comment closing date. If you wish to
review the docket in person, go to the
address in the ADDRESSES section of this
preamble between 7:30 a.m. and 4 p.m.,
Monday through Friday, except Federal
holidays.
We will consider all comments we
receive by the closing date for
comments. We will consider comments
filed late if it is possible to do so
without incurring expense or delay. We
may change these special conditions
based on the comments we receive.
If you want us to let you know we
received your comments on these
special conditions, send us a preaddressed, stamped postcard on which
the docket number appears. We will
stamp the date on the postcard and mail
it back to you.
Background
On June 28, 2007, Cessna Aircraft
Company applied for a type certificate
for their new Model Cessna Model
525C. The Cessna Model 525C is a
commuter category derivative
configuration of the Model 525B
airplane with unique turbofan engines,
engine location, and certain
performance characteristics necessary
for this type of airplane. Unlike similar
commuter category jet projects, these
special conditions reflect the model
history of the model 525 back through
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normal category for consistency in
training.
Type Certification Basis
Under the provisions of 14 CFR, part
21, § 21.17, Cessna Aircraft Company
must show that the Cessna Model 525C
meets the applicable provisions of part
23, as amended by Amendment 23–1
through 23–59 thereto.
If the Administrator finds that the
applicable airworthiness regulations
(i.e., 14 CFR part 23) do not contain
adequate or appropriate safety standards
for the Model 525C because of a novel
or unusual design feature, special
conditions are prescribed under the
provisions of § 21.16.
In addition to the applicable
airworthiness regulations and special
conditions, the Model 525C must
comply with the fuel vent and exhaust
emission requirements of 14 CFR part
34 and the noise certification
requirements of 14 CFR part 36; and the
FAA must issue a finding of regulatory
adequacy under § 611 of Public Law 92–
574, the ‘‘Noise Control Act of 1972.’’
The FAA issues special conditions, as
defined in § 11.19, under § 11.38 and
they become part of the type
certification basis under § 21.17(a)(2).
Special conditions are initially
applicable to the model for which they
are issued. Should the type certificate
for that model be amended later to
include any other model that
incorporates the same novel or unusual
design feature, the special conditions
would also apply to the other model.
Novel or Unusual Design Features
The Cessna Model 525C will
incorporate the following novel or
unusual design features: Two aft
mounted Williams International FJ44–
4A turbofan engines rated at 3,400
pounds of thrust with a Full Authority
Digital Engine Control (FADEC) system
and other performance characteristics
that were not envisioned by the
regulations when the Model 525 was
originally certificated.
Applicability
As discussed above, these special
conditions are applicable to the Cessna
Model 525C. Should Cessna Aircraft
Company apply at a later date for a
change to the type certificate to include
another model incorporating the same
novel or unusual design feature, the
special conditions would apply to that
model as well.
Conclusion
This action affects only certain novel
or unusual design features on one model
of airplane. It is not a rule of general
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]]>Agencies
[Federal Register Volume 74, Number 212 (Wednesday, November 4, 2009)]
[Rules and Regulations]
[Pages 57057-57060]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-26462]
-----------------------------------------------------------------------
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.
-----------------------------------------------------------------------
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: https://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: https://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: https://www.ams.usda.gov/AMSv1.0/ams.fetchTemplateData.do?template=TemplateN&page=MarketingOrdersSmallBusinessGuide. 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
