Tomatoes Grown in Florida; Expenses and Assessment Rate

DEPARTMENT OF AGRICULTURE

7 CFR Part 966

[Docket No. FV94-966-2IFR]

Tomatoes Grown in Florida; Expenses and Assessment Rate

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Interim final rule with request for comments.

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SUMMARY: This interim final rule authorizes expenditures and

establishes an assessment rate under Marketing Order No. 966 for the

1994-95 fiscal period. Authorization of this budget enables the Florida

Tomato Committee (Committee) to incur expenses that are reasonable and

necessary to administer the program. Funds to administer this program

are derived from assessments on handlers.

DATES: Effective August 1, 1994, through July 31, 1995. Comments

received by December 5, 1994, will be considered prior to issuance of a

final rule.

ADDRESSES: Interested persons are invited to submit written comments

concerning this action. Comments must be sent in triplicate to the

Docket Clerk, Fruit and Vegetable Division, AMS, USDA, P.O. Box 96456,

room 2523-S, Washington, DC 20090-6456, FAX 202-720-5698. Comments

should reference the docket 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.

FOR FURTHER INFORMATION CONTACT: Martha Sue Clark, Marketing Order

Administration Branch, Fruit and Vegetable Division, AMS, USDA, P.O.

Box 96456, room 2523-S, Washington, DC 20090-6456, telephone 202-720-

9918, or Aleck J. Jonas, Southeast Marketing Field Office, Fruit and

Vegetable Division, AMS, USDA, P.O. Box 2276, Winter Haven, FL 33883-

2276, telephone 813-299-4770.

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. The marketing

agreement and order are 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 (Department) is issuing this rule in

conformance with Executive Order 12866.

This interim final rule has been reviewed under Executive Order

12778, Civil Justice Reform. Under the provisions of the marketing

order now in effect, Florida tomatoes are subject to assessments. It is

intended that the assessment rate as issued herein will be applicable

to all assessable tomatoes handled during the 1994-95 fiscal period,

which began August 1, 1994, and ends July 31, 1995. This interim final

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 the Secretary 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 requesting 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 the Secretary 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 in equity to review

the Secretary's ruling on the petition, provided a bill in equity is

filed not later than 20 days after the date of the entry of the ruling.

Pursuant to the requirements set forth in the Regulatory

Flexibility Act (RFA), the Administrator of the Agricultural Marketing

Service (AMS) has considered the economic impact of this rule on small

entities.

The purpose of the RFA is to fit regulatory actions to the scale of

business subject to such actions in order that small businesses will

not be unduly or disproportionately burdened. Marketing orders issued

pursuant to the Act, and the rules issued thereunder, are unique in

that they are brought about through group action of essentially small

entities acting on their own behalf. Thus, both statutes have small

orientation and compatibility.

There are approximately 250 producers of Florida tomatoes under

this marketing order, and approximately 50 handlers. Small agricultural

producers have been defined by the Small Business Administration (13

CFR 121.601) as those having annual receipts of less than $500,000, and

small agricultural service firms are defined as those whose annual

receipts are less than $5,000,000. The majority of Florida tomato

producers and handlers may be classified as small entities.

The budget of expenses for the 1994-95 fiscal period was prepared

by the Florida Tomato Committee, the agency responsible for local

administration of the marketing order, and submitted to the Department

for approval. The members of the Committee are producers of Florida

tomatoes. They are familiar with the Committee's needs and with the

costs of goods and services in their local area and are thus in a

position to formulate an appropriate budget. The budget was formulated

and discussed in a public meeting. Thus, all directly affected persons

have had an opportunity to participate and provide input.

The assessment rate recommended by the Committee was derived by

dividing anticipated expenses by expected shipments of Florida

tomatoes. Because that rate will be applied to actual shipments, it

must be established at a rate that will provide sufficient income to

pay the Committee's expenses.

The Committee met September 8, 1994, and unanimously recommended a

1994-95 budget of $2,215,000, $467,000 less than the previous year.

Budget items for 1994-95 which have increased compared to those

budgeted for 1993-94 (in parentheses) are: Office salaries, $297,300

($276,000), depreciation, $18,200 ($16,200), communications, $12,000

($10,000), employee's retirement program, $46,600 ($37,300), insurance

and bonds, $7,000 ($5,000), office rent, $24,700 ($22,600), social

security tax, $20,000 ($19,000), supplies and printing, $7,500

($6,500), and audit, $2,500 ($2,300). Items which have decreased

compared to those budgeted for 1993-94 (in parentheses) are: Research

expense, $192,100 ($200,000), and education and promotion expense,

$1,500,000 ($2,000,000). All other items are budgeted at last year's

amounts.

The Committee also unanimously recommended an assessment rate of

$0.04 per 25-pound container, the same as last year. This rate, when

applied to anticipated shipments of 55,000,000 25-pound containers,

will yield $2,200,000 in assessment income. This, along with $15,000 in

interest and other income, will be adequate to cover budgeted expenses.

While this action will impose some additional costs on handlers,

the costs are in the form of uniform assessments on handlers. Some of

the additional costs may be passed on to producers. However, these

costs will be offset by the benefits derived by the operation of the

marketing order. Therefore, the Administrator of the AMS has determined

that this action will not have a significant economic impact on a

substantial number of small entities.

After consideration of all relevant matter presented, including the

information and recommendations 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 action until 30 days after publication in the Federal Register

because: (1) The Committee needs to have sufficient funds to pay its

expenses which are incurred on a continuous basis; (2) the fiscal

period began on August 1, 1994, and the marketing order requires that

the rate of assessment for the fiscal period apply to all assessable

tomatoes handled during the fiscal period; (3) handlers are aware of

this action which was unanimously recommended by the Committee at a

public meeting and it is similar to other budget actions issued in past

years; and (4) this interim final rule provides a 30-day comment

period, and all comments timely received will be considered prior to

finalization of this action.

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. A new Sec. 966.232 is added to read as follows:

Note: This section will not appear in the Code of Federal

Regulations.

Sec. 966.232 Expenses and assessment rate.

Expenses of $2,215,000 by the Florida Tomato Committee are

authorized, and an assessment rate of $0.04 per 25-pound container of

Florida tomatoes is established for the fiscal period ending July 31,

1995. Unexpended funds may be carried over as a reserve.

Dated: October 28, 1994.

Larry B. Lace,

Acting Deputy Director, Fruit and Vegetable Division.

[FR Doc. 94-27233 Filed 11-2-94; 8:45 am]

BILLING CODE 3410-02-P