Tomatoes Grown in Florida; Reapportionment of Membership on the Florida Tomato Committee

DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 966

[Docket No. FV94-966-3PR]

Tomatoes Grown in Florida; Reapportionment of Membership on the

Florida Tomato Committee

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Proposed rule.

-----------------------------------------------------------------------

SUMMARY: This proposed rule would reapportion producer membership on

the 12-member Florida Tomato Committee (Committee) established under

the Federal marketing order regulating the handling of tomatoes grown

in Florida. For the purposes of membership, the production area is

divided into four geographic districts. The membership in District 1

would be reduced from three to two members and the membership in

District 3 would be increased from three members to four members. This

reapportionment reflects shifts in acreage within the districts and

shipments from the districts in recent years, and the desire of the

Committee to provide equitable representation on the Committee. This

proposal was unanimously recommended by the Committee, which is

responsible for local administration of the marketing order.

DATES: Comments must be received by December 29, 1994.

ADDRESSES: Interested persons are invited to submit written comments

concerning this proposed rule. Comments must be sent in triplicate to

the Docket Clerk, Marketing Order Administration Branch, F&V, AMS,

USDA, Room 2523-S, P.O. Box 96456, Washington, DC 20090-6456, FAX (202)

720-5698. Comments should reference the docket number, the date and

page number of this issue of the Federal Register and will be made

available for public inspection in the Office of the Docket Clerk

during regular business hours.

FOR FURTHER INFORMATION CONTACT: Shoshana Avrishon, Marketing

Specialist, Marketing Order Administration Branch, Fruit and Vegetable

Division, AMS, USDA, Room 2523-S., P.O. Box 96456, Washington, DC

20090-6456; telephone: (202) 720-3610, or FAX (202) 720-5698; or Aleck

Jonas, Marketing Specialist, Southeast Marketing Field Office, Fruit

and Vegetable Division, AMS, USDA, P.O. Box 2276, Winter Haven, Florida

33883-2276; (813) 299-4770 or FAX (813) 299-5169.

SUPPLEMENTARY INFORMATION: This proposed rule is issued under Marketing

Agreement and Order No. 966 [7 CFR part 966], both as amended,

regulating the handling of tomatoes grown in Florida, hereinafter

referred to as the ``order''. The order is authorized by 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 proposed

rule in conformance with Executive Order 12866.

This proposed rule has been reviewed under Executive Order 12778,

Civil Justice Reform. This action is not intended to have retroactive

effect. This proposed rule would 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. A handler is afforded the opportunity for a hearing on the

petition. After a 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 entry of the ruling.

Pursuant to requirements set forth in the Regulatory Flexibility

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

(AMS) has considered the economic impact of this proposed 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 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

entity orientation and compatibility.

There are approximately 75 handlers of Florida tomatoes subject to

regulation under the marketing order and approximately 250 producers in

the production area. Small agricultural service firms, including tomato

handlers, are defined by the Small Business Administration [13 CFR

121.601] as those whose annual receipts are less than $5,000,000, and

small agricultural producers have been defined as those having annual

receipts of less than $500,000. The majority of the tomato handlers and

producers may be classified as small entities.

On September 8, 1994, the Committee met to discuss, among other

issues, Committee representation among the four production area

districts, and to determine whether any changes were warranted to

foster more equitable representation.

Section 966.22 of the order establishes a Committee consisting of

12 producer members. Each member has an alternate. Each person selected

as a Committee member and alternate is required to be a producer, or an

officer or an employee of a corporate producer, in the district for

which selected and a resident of the production area. The four

districts in the production area are defined in Sec. 966.24.

Section 966.161 of the rules and regulations currently provides for

representation among the four districts as follows: (a) District 1--

three members and alternates; (b) District 2--two members and

alternates; (c) District 3--three members and alternates; and (d)

District 4--four members and alternates. Section 966.25 provides that

the Committee may recommend and pursuant thereto, the Secretary may

approve, the reapportionment of members among districts within the

production area. In recommending any such changes, the Committee is

required to give consideration to various factors, including shifts in

tomato acreage within districts during recent years, and the equitable

relationship of committee membership and districts.

In recent years, District 1 has represented about 12 percent of

total industry shipments and 12 percent of total acres harvested.

Because of this, the Committee believes that a 25 percent level of

committee representation (four of the 12 Committee positions) is too

high for this district. District 3 is now the largest producing

district with about 44 percent of the total acres harvested, and 39

percent of total industry shipments. Thus, with only 25 percent of the

Committee members, District 3 is thought to be under-represented on the

Committee.

To provide all growers within the production area with more

equitable representation, the Committee unanimously recommended that

one member position be transferred from District 1 to District 3.

District 3 would then be represented by four members and have 33

percent of the Committee members, while District 1 would have two

members, representing about 17 percent of the Committee members. The

proposed change would bring representation from these districts more in

line with the percentages of acres harvested and production shipped

over the last four seasons.

Districts 2 and 4 currently are represented by two members (16

percent of total committee members) and four members (33 percent of

total committee members), respectively.

In recent seasons, District 2 has represented about 10 percent of

total harvested acreage and 13 percent of the shipments. District 4 has

represented about 32 percent of the harvested acreage and 36 percent of

the shipments. On the basis of this information, the Committee

concluded that current representation is fair and appropriate for these

two districts.

To implement the recommended reapportionment for Districts 1 and 3,

paragraphs (a) and (c) of Sec. 966.161 of Subpart--Rules and

Regulations (7 CFR parts 966.100 to 966.323) would be revised

accordingly.

This proposed rule is intended to provide for equitable and

balanced representation on the Committee, and would not impose

additional costs on growers and handlers.

Based on the above, the Administrator of the AMS has determined

that this proposed rule would not have a significant economic impact on

a substantial number of small entities.

Interested persons are invited to submit their views and comments

on this proposal. A 30-day comment period is provided. All comments

timely received will be considered prior to finalization of this rule.

List of Subjects in 7 CFR 966

Marketing agreements, Reporting and recordkeeping requirements,

Tomatoes.

For the reasons set forth in the preamble, 7 CFR Part 966 is

proposed to be 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 966.161 is amended by revising paragraphs (a) and (c) to

read as follows:

Sec. 966.161 [Amended]

* * * * *

(a) District 1--two members and their alternates.

* * * * *

(c) District 3--four members and their alternates.

* * * * *

Dated: November 21, 1994.

Martha B. Ransom,

Acting Deputy Director, Fruit and Vegetable Division.

[FR Doc. 94-29363 Filed 11-28-94; 8:45 am]

BILLING CODE 3410-02-P