Tomatoes Grown in Florida; Proposed Amendments to the Marketing Order No. 966 and Referendum Order, 10096-10099 [2020-03369]

Agencies

• Agricultural Marketing Service
• DEPARTMENT OF AGRICULTURE

[Federal Register Volume 85, Number 35 (Friday, February 21, 2020)]
[Proposed Rules]
[Pages 10096-10099]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-03369]


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Proposed Rules
                                                Federal Register
________________________________________________________________________

This section of the FEDERAL REGISTER contains notices to the public of 
the proposed issuance of rules and regulations. The purpose of these 
notices is to give interested persons an opportunity to participate in 
the rule making prior to the adoption of the final rules.

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Federal Register / Vol. 85, No. 35 / Friday, February 21, 2020 / 
Proposed Rules

[[Page 10096]]



DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 966

[Doc. No.: AMS-SC-19-0068; SC19-966-3]


Tomatoes Grown in Florida; Proposed Amendments to the Marketing 
Order No. 966 and Referendum Order

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Proposed rule and referendum order.

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SUMMARY: This rulemaking proposes amendments to Marketing Order No. 
966, which regulates the handling of tomatoes grown in Florida. The 
proposed amendments would change the Florida Tomato Committee's 
(Committee) size, length of the terms of office, and quorum 
requirements.

DATES: The referendum will be conducted from May 11, 2020, through June 
1, 2020. The representative period for the referendum is October 1, 
2018, through September 30, 2019.

ADDRESSES: Interested persons with questions may send comments to the 
Docket Clerk, Marketing Order and Agreement Division, Specialty Crops 
Program, AMS, USDA, 1400 Independence Avenue SW, STOP 0237, Washington, 
DC 20250-0237; Fax: (202) 720-8938.

FOR FURTHER INFORMATION CONTACT: Geronimo Quinones, Marketing 
Specialist, or Andrew Hatch, Rulemaking Services Branch Chief, 
Marketing Order and Agreement Division, Specialty Crops Program, AMS, 
USDA, 1400 Independence Avenue SW, Stop 0237, Washington, DC 20250-
0237; Telephone: (202) 720-2491, Fax: (202) 720-8938, or Email: 
[email protected] or [email protected].
    Small businesses may request information on complying with this 
regulation by contacting Richard Lower, Marketing Order and Agreement 
Division, Specialty Crops Program, AMS, USDA, 1400 Independence Avenue 
SW, STOP 0237, Washington, DC 20250-0237; Telephone: (202) 720-2491, 
Fax: (202) 720-8938, or Email: [email protected].

SUPPLEMENTARY INFORMATION: This proposal, pursuant to 5 U.S.C. 553, 
proposes amendments to regulations issued to carry out a marketing 
order as defined in 7 CFR 900.2(j). This proposal is issued under 
Marketing Order No. 966, as amended (7 CFR part 966), regulating the 
handling of tomatoes grown in Florida. Part 966 (referred to as the 
``Order'') is effective under the Agricultural Marketing Agreement Act 
of 1937, as amended (7 U.S.C. 601-674), hereinafter referred to as the 
``Act.'' The Committee locally administers the Order and is comprised 
of tomato producers and handlers operating within the area of 
production.
    The Department of Agriculture (USDA) is issuing this proposed rule 
in conformance with Executive Orders 13563 and 13175. This action falls 
within a category of regulatory actions that the Office of Management 
and Budget (OMB) exempted from Executive Order 12866 review. 
Additionally, because this proposed rule does not meet the definition 
of a significant regulatory action, it does not trigger the 
requirements contained in Executive Order 13771. See OMB's Memorandum 
titled ``Interim Guidance Implementing Section 2 of the Executive Order 
of January 30, 2017, titled `Reducing Regulation and Controlling 
Regulatory Costs' '' (February 2, 2017).
    This proposal has been reviewed under Executive Order 12988, Civil 
Justice Reform. This proposed rule is not intended to have retroactive 
effect. This proposed rule shall not be deemed to preclude, preempt, or 
supersede any State program covering tomatoes grown in Florida.
    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 no later than 20 days after the date of 
entry of the ruling.
    Section 1504 of the Food, Conservation, and Energy Act of 2008 
(2008 Farm Bill) (Pub. L. 110-246) amended section 8c(17) of the Act, 
which in turn required the addition of supplemental rules of practice 
to 7 CFR part 900 (73 FR 49307; August 21, 2008). The amendment of 
section 8c(17) of the Act and additional supplemental rules of practice 
authorize the use of informal rulemaking (5 U.S.C. 553) to amend 
Federal fruit, vegetable, and nut marketing agreements and orders. USDA 
may use informal rulemaking to amend marketing orders based on the 
nature and complexity of the proposed amendment, the potential 
regulatory and economic impacts on affected entities, and any other 
relevant matters.
    AMS has considered these factors and has determined that the 
amendments proposed are not unduly complex and the nature of the 
proposed amendments is appropriate for utilizing the informal 
rulemaking process to amend the Order.
    The proposed amendments were unanimously recommended by the 
Committee following deliberations at two public meetings held on 
November 1, 2018, and February 27, 2019. The proposals would amend the 
Order by changing the Committee's size, the length of term of office, 
and quorum requirements.
    A proposed rule soliciting comments on the proposed amendments was 
issued on September 23, 2019 and published in the Federal Register on 
October 1, 2019 (84 FR 52044). No comments were received. AMS will 
conduct a producer referendum to determine support for the proposed 
amendments. If appropriate, a final rule will then be issued to 
effectuate the amendments if they are favored by producers in the 
referendum.
    The Committee's proposals would amend the Order by changing the 
Committee's size, the length of term of office, and quorum 
requirements.

Proposal 1--Reduce Committee Size

    Section 966.22 provides that the Committee consists of 12 members 
and, for each member of the Committee,

[[Page 10097]]

there must be an alternate who has the same qualifications as the 
member. This proposal would amend Sec.  966.22 by reducing the size of 
the Committee from 12 to 10 members. The requirement that each member 
have an alternate with the same qualifications as the member would 
remain unchanged.
    Since promulgation of the Order in 1995, the Florida tomato 
industry has seen reductions of about 80% in the number of tomato 
producers and 33% of registered handlers. Industry consolidation and 
land development pressure have also contributed to this decline. 
Decreasing the Committee's size from 12 members to 10 members would 
make Committee membership more reflective of today's industry and 
enable it to fulfill quorum requirements.

Proposal 2--Revise Term of Office

    Section 966.23 requires Committee members and their alternates to 
serve for one year.
    This proposal would change Sec.  966.23 by revising the term of 
office for producer members from one year to two years beginning on 
August 1 and ending as of July 31. Currently, the nominating process 
for the 12 members and alternate members is conducted annually. This 
proposed change would reduce the annual turnover on the Committee and 
provide time for new members and alternates to learn the details of 
Committee operations and business.

Proposal 3--Revise Quorum Requirements

    Currently, Sec.  966.32 states that eight members of the Committee 
shall constitute a quorum, and the same number of concurring votes 
shall be required to pass any motion or approve any Committee action.
    The proposed change would modify Sec.  966.32 to allow six members 
to constitute a quorum. The requirement that the same number of 
concurring votes (six) shall be required to pass any motion or approve 
any Committee action would remain unchanged. The Committee is 
experiencing difficulties filling all seats and obtaining a quorum at 
meetings since several seats have been vacant. Adjusting the current 
requirements would enable the Committee to operate fully and increase 
the chance of reaching a quorum during scheduled meetings. These 
changes would help to streamline the Committee's operations and 
increase its effectiveness.

Final Regulatory Flexibility Analysis

    Pursuant to the requirements set forth in the Regulatory 
Flexibility Act (RFA) (5 U.S.C. 601-612), 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 
businesses subject to such actions so that small businesses will not be 
unduly or disproportionately burdened. Marketing orders issued pursuant 
to the Act, and rules issued thereunder, are unique in that they are 
brought about through group action of essentially small entities acting 
on their own behalf.
    There are approximately 75 producers of Florida tomatoes in the 
production area and 37 handlers subject to regulation under the Order. 
Small agricultural producers are defined by the Small Business 
Administration (SBA) as those having annual receipts less than 
$1,000,000, and small agricultural service firms are defined as those 
whose annual receipts are less than $30,000,000 (13 CFR 121.201).
    According to industry and Committee data, the average annual price 
for fresh Florida tomatoes during the 2017-18 season was approximately 
$12.56 per 25-pound container, and total fresh shipments were 25.9 
million containers. Using the average price and shipment information, 
the number of handlers, and assuming a normal distribution, the 
majority of handlers have average annual receipts less than $30,000,000 
($12.56 times 25.9 million containers equals $325,304,000 divided by 37 
handlers equals $8,792,000 per handler) and may be classified as small 
entities.
    With an estimated producer price of $6.00 per 25-pound container, 
the number of Florida tomato producers, and assuming a normal 
distribution, the average annual producer revenue is above $1,000,000 
($6.00 times 25.9 million containers equals $155,400,000 divided by 75 
producers equals $2,072,000 per producer). Thus, the majority of 
producers of Florida tomatoes may be classified as large entities.
    The proposed amendments would change the Committee's size, the 
length of term of office, and quorum requirements.
    The Committee unanimously recommended the proposed amendments at 
public meetings on November 1, 2018 and February 27, 2019. If these 
proposals are approved in a referendum, there would be no direct 
financial effects on producers or handlers. However, these proposed 
changes would decrease administrative costs to producers and Committee 
staff. This action would save time and work for producers and Committee 
staff, by avoiding the annual requirement to prepare multiple 
nomination notices and meetings, and the administrative and travel 
expenses that are required to carry out these annual duties.
    Since 1995, the number of producers and handlers operating in the 
industry has decreased, which makes it difficult to find enough members 
to fill positions on the Committee. Decreasing the Committee's size 
would make it more reflective of today's industry. No economic impact 
is expected if the proposed amendments are approved because they would 
not establish any new regulatory requirements on handlers, nor would 
they have any assessment or funding implications. There would be no 
change in financial costs, reporting, or recordkeeping requirements if 
this proposal is approved.
    Alternatives to this proposal, including making no changes at this 
time, were considered by the Committee. Due to changes in the industry, 
AMS believes the proposals are justified and necessary to ensure the 
Committee's ability to locally administer the program. Reducing the 
size of the Committee would enable it to satisfy membership and quorum 
requirements fully, thereby ensuring a more efficient and orderly flow 
of business.

Paperwork Reduction Act

    In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 
Chapter 35), the Order's information collection requirements have been 
previously approved by OMB and assigned OMB No. 0581-0178 (Vegetable 
and Specialty Crops). No changes in those requirements are necessary 
because of this action. Should any changes become necessary, they would 
be submitted to OMB for approval.
    This proposed rule would impose 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 action.

[[Page 10098]]

    The Committee's meeting was widely publicized throughout the 
Florida tomato production area. All interested persons were invited to 
attend the meeting and encouraged to participate in Committee 
deliberations on all issues. Like all Committee meetings, the November 
1, 2018, and February 27, 2019, meetings were public, and all entities, 
both large and small, were encouraged to express their views on the 
proposals.
    A proposed rule concerning this action was published in the Federal 
Register on October 1, 2019 (84 FR 52044). Copies of the rule were 
mailed or sent via facsimile to all Committee members and Florida 
tomato handlers. Finally, the proposed rule was made available through 
the internet by USDA and the Office of the Federal Register. A 60-day 
comment period ending December 2, 2019, was provided to allow 
interested persons to respond to the proposal. No comments were 
received, so no changes will be made to the amendments as proposed.
    A small business guide on complying with fruit, vegetable, and 
specialty crop marketing agreements and orders may be viewed at: https://www.ams.usda.gov/rules-regulations/moa/small-businesses. Any questions 
about the compliance guide should be sent to Richard Lower at the 
previously mentioned address in the FOR FURTHER INFORMATION CONTACT 
section.

Findings and Conclusions

    The findings and conclusions and general findings and 
determinations included in the proposed rule set forth in the October 
1, 2019, issue of the Federal Register are hereby approved and adopted.

Marketing Order

    Annexed hereto and made a part hereof is the document entitled 
``Order Amending the Order Regulating the Handling of Tomatoes Grown in 
Florida.'' This document has been decided upon as the detailed and 
appropriate means of effectuating the foregoing findings and 
conclusions. It is hereby ordered, that this entire proposed rule be 
published in the Federal Register.

Referendum Order

    It is hereby directed that a referendum be conducted in accordance 
with the procedure for the conduct of referenda (7 CFR part 900.400-
407) to determine whether the annexed order amending the Order 
regulating the handling of tomatoes grown in Florida is approved by 
growers, as defined under the terms of the Order, who during the 
representative period were engaged in the production of tomatoes in the 
production area. The representative period for the conduct of such 
referendum is hereby determined to be October 1, 2018, through 
September 30, 2019.
    The agents designated by the Secretary to conduct the referendum 
are Steven Kauffman and Christian D. Nissen, Southeast Marketing Field 
Office, Marketing Order and Agreement Division, Specialty Crops 
Program, AMS, USDA; Telephone: (863) 324-3375, Fax: (863) 325-8793, or 
Email: [email protected] or [email protected], 
respectively.

Order Amending the Order Regulating the Handling of Tomatoes Grown in 
Florida 1
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    \1\ This order shall not become effective unless and until the 
requirements of Sec.  900.14 of the rules of practice and procedure 
governing proceedings to formulate marketing agreements and 
marketing orders have been met.
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Findings and Determinations

    The findings hereinafter set forth are supplementary to the 
findings and determinations which were previously made in connection 
with the issuance of the Order; and all said previous findings and 
determinations are hereby ratified and affirmed, except insofar as such 
findings and determinations may be in conflict with the findings and 
determinations set forth herein.
    1. The Order, as amended, and as hereby proposed to be further 
amended, and all the terms and conditions thereof, would tend to 
effectuate the declared policy of the Act;
    2. The Order, as amended, and as hereby proposed to be further 
amended, regulates the handling of tomatoes grown in Florida in the 
same manner as, and is applicable only to, persons in the respective 
classes of commercial and industrial activity specified in the Order;
    3. The Order, as amended, and as hereby proposed to be further 
amended, is limited in application to the smallest regional production 
area which is practicable, consistent with carrying out the declared 
policy of the Act, and the issuance of several orders applicable to 
subdivisions of the production area would not effectively carry out the 
declared policy of the Act;
    4. The Order, as amended, and as hereby proposed to be further 
amended, prescribes, insofar as practicable, such different terms 
applicable to different parts of the production area as are necessary 
to give due recognition to the differences in the production and 
marketing of tomatoes produced in the production area; and
    5. All handling of tomatoes produced or packed in the production 
area as defined in the Order is in the current of interstate or foreign 
commerce or directly burdens, obstructs, or affects such commerce.

Order Relative to Handling

    It is therefore ordered, that on and after the effective date 
hereof, all handling of tomatoes grown in Florida shall be in 
conformity to, and in compliance with, the terms and conditions of the 
said Order as hereby proposed to be amended as follows:
    The provisions of the proposed marketing order amending the Order 
contained in the proposed rule issued by the Administrator on September 
23, 2019 and published in the Federal Register (84 FR 52044) on October 
1, 2019, will be and are the terms and provisions of this order 
amending the Order and are set forth in full herein.

List of Subjects in 7 CFR Part 966

    Tomatoes, Marketing agreements, Reporting and recordkeeping 
requirements.

    Dated: February 14, 2020.
Bruce Summers,
Administrator, Agricultural Marketing Service.

    For the reasons set forth in the preamble, the Agricultural 
Marketing Service proposes to amend 7 CFR part 966 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. In Sec.  966.22 revise paragraph (a) to read as follows:


Sec.  966.22  Establishment and membership.

    (a) The Florida Tomato Committee, consisting of 10 producer 
members, is hereby established. For each member of the committee there 
shall be an alternate who shall have the same qualifications as the 
member.
* * * * *
0
3. In Sec.  966.23 revise paragraph (a) as follows:


Sec.  966.23  Term of office.

    (a) The term of office of committee members, and their respective 
alternates, shall be for 2 years and shall begin as of August 1 and end 
as of July 31.
* * * * *

[[Page 10099]]

0
4. In Sec.  966.32 revise paragraph (a) as follows:


Sec.  966.32  Procedure.

    (a) Six members of the committee shall be necessary to constitute a 
quorum and the same number of concurring votes shall be required to 
pass any motion or approve any committee action.
* * * * *
[FR Doc. 2020-03369 Filed 2-20-20; 8:45 am]
BILLING CODE 3410-02-P