Tomatoes Grown in Florida; Assessment Rate

SUMMARY: The Department of Agriculture (Department) is adopting as a

final rule, without change, the provisions of an interim final rule

establishing an assessment rate for the Florida Tomato Committee

(Committee) under Marketing Order No. 966 for the 1996-97 and

subsequent fiscal periods. The Committee is responsible for local

administration of the marketing order which regulates the handling of

tomatoes grown in Florida. Authorization to assess Florida tomato

handlers enables the Committee to incur expenses that are reasonable

and necessary to administer the program.

EFFECTIVE DATE: August 1, 1996.

FOR FURTHER INFORMATION CONTACT: Doris Jamieson, Marketing Assistant,

Southeast Marketing Field Office, Fruit and Vegetable Division, AMS,

USDA, P.O. Box 2276, Winter Haven, FL 33883-2276, telephone 941-299-

4770; FAX 941-299-5169, or Martha Sue Clark, Program Assistant,

Marketing Order Administration Branch, Fruit and Vegetable Division,

AMS, USDA, P.O. Box 96456, room 2525-S, Washington, DC 20090-6456,

telephone 202-720-9918, FAX 202-720-5698. Small businesses may request

information on compliance with this regulation by contacting: Jay

Guerber, Marketing Order Administration Branch, Fruit and Vegetable

Division, AMS, USDA, P.O. Box 96456, room 2525-S, Washington, DC 20090-

6456; telephone 202-720-2491; FAX 202-720-5698.

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 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 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, 1996, and continuing until amended, suspended, or

terminated. This 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 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 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 to review the

Secretary's ruling on the petition, provided an action is filed not

later than 20 days after the date of the entry of the ruling.

Pursuant to requirements set forth in the Regulatory Flexibility

Act (RFA), 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

entity orientation and compatibility.

There are approximately 90 producers of Florida tomatoes in the

production area and approximately 75 handlers subject to regulation

under the marketing order. Small agricultural producers have been

defined by the Small Business Administration (13 CFR 121.601) as those

having annual receipts 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 Florida tomato marketing order provides authority for the

Committee, with the approval of the Department, 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.

The Committee met on September 5, 1996, and unanimously recommended

1996-97 expenditures of $1,189,000 and an assessment rate of $0.03 per

25-pound container of tomatoes. In comparison, last year's budgeted

expenditures were $2,025,000. The assessment rate of $0.03 is $0.01

less than last year's established rate. Major expenditures recommended

by the Committee for the 1996-97 fiscal period compared to those

budgeted for 1995-96 (in parentheses) include: $500,000 for education

and promotion ($1,225,000), $5,000 for miscellaneous promotion

($5,000), $284,650 for office salaries ($319,100), $180,000 for

research ($245,000), $45,500 for employees' retirement program

($50,500), $30,000 for employees' travel ($30,000), $24,500

[[Page 6852]]

for office rent ($24,500), $22,150 for payroll taxes ($22,150), $20,000

for employees' health insurance ($29,500), $19,150 for depreciation on

the office furniture and automobiles ($19,000), $14,000 for

communications ($12,000), $12,000 for Committee member travel

($12,000), $9,000 for supplies and printing ($8,500), $8,000 for

insurance and bonds ($8,000), and $7,000 for postage ($7,000).

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 40,000,000 25-

pound containers which should provide $1,200,000 in assessment income,

which will be adequate to cover projected expenses.

An interim final rule regarding this action was published in the

November 29, 1996, issue of the Federal Register (61 FR 60510). That

rule provided for a 30-day comment period. No comments were received.

This action will reduce the assessment obligation imposed on

handlers. While this rule will impose some additional costs on

handlers, the costs are in the form of uniform assessments on all

handlers. Some of the additional costs may be passed on to producers.

However, these costs will be offset by the benefits derived from the

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

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

substantial number of small entities.

The assessment rate established in this rule will continue in

effect indefinitely unless modified, suspended, or terminated by the

Secretary 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 the

Department. Committee meetings are open to the public and interested

persons may express their views at these meetings. The Department will

evaluate Committee recommendations and other available information to

determine whether modification of the assessment rate is needed. The

Committee's 1996-97 budget and those for subsequent fiscal periods will

be reviewed and, as appropriate, approved by the Department.

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 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

Committee needs to have sufficient funds to pay its expenses which are

incurred on a continuous basis; (2) the 1996-97 fiscal period began on

August 1, 1996, and the marketing order requires that the rate of

assessment for each fiscal period apply to all assessable tomatoes

handled during such 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) an interim final rule was published on this action and

provided for a 30-day comment period; no comments were received.

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:

Note: This action will appear in the Code of Federal

Regulations.

PART 966--TOMATOES GROWN IN FLORIDA

Accordingly, the interim final rule amending 7 CFR part 966 which

was published at 61 FR 60510 on November 29, 1996, is adopted as a

final rule without change.

Dated: February 10, 1997.

Robert C. Keeney

Director, Fruit and Vegetable Division.

[FR Doc. 97-3793 Filed 2-13-97; 8:45 am]

BILLING CODE 3410-02-P