DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Part 966
[Doc. No. AMS-SC-23-0063]
Tomatoes Grown in Florida; Increased Assessment Rate
AGENCY: Agricultural Marketing Service, USDA.
ACTION: Final rule.
SUMMARY: This rulemaking implements a recommendation from the Florida Tomato
Committee (Committee) to increase the assessment rate established for the 2023-2024
and subsequent fiscal periods from $0.025 to $0.035 per 25-pound container of tomatoes
or equivalent. The assessment rate will remain in effect indefinitely unless modified,
suspended, or terminated.
DATES: Effective [INSERT DATE 30 DAYS AFTER DATE OF PUBLICATION IN
THE FEDERAL REGISTER].
FOR FURTHER INFORMATION CONTACT: Steven W. Kauffman, Marketing
Specialist, or Christian D. Nissen, Chief, Southeast Region Branch, Market Development
Division, Specialty Crops Program, AMS, USDA; Telephone: (863) 324-3375, Fax:
(863) 291-8614, or Email: Steven.Kauffman@usda.gov or Christian.Nissen@usda.gov.
Small businesses may request information on complying with this regulation by
contacting Richard Lower, Market Development Division, Specialty Crops Program,
AMS, USDA, 1400 Independence Avenue SW, STOP 0237, Washington, DC 202500237; Telephone: (202) 720-8085, or Email: Richard.Lower@usda.gov.
SUPPLEMENTARY INFORMATION: This action, pursuant to 5 U.S.C. 553, amends
regulations issued to carry out a marketing order as defined in 7 CFR 900.2(j). This
rulemaking is issued under Marketing Agreement No. 125 and 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 producers of fresh tomatoes
operating within the area of production.
The Agricultural Marketing Service (AMS) is issuing this rulemaking in
conformance with Executive Orders 12866, 13563, and 14094. Executive Orders 12866
and 13563 direct agencies to assess all costs and benefits of available regulatory
alternatives and, if regulation is necessary, to select regulatory approaches that maximize
net benefits (including potential economic, environmental, public health and safety
effects, distributive impacts, and equity). Executive Order 13563 emphasizes the
importance of quantifying both costs and benefits, reducing costs, harmonizing rules, and
promoting flexibility. Executive Order 14094 reaffirms, supplements, and updates
Executive Order 12866 and further directs agencies to solicit and consider input from a
wide range of affected and interested parties through a variety of means. This action falls
within a category of regulatory actions that the Office of Management and Budget
(OMB) exempted from Executive Order 12866 review.
This rulemaking has been reviewed under Executive Order 13175 - Consultation
and Coordination with Indian Tribal Governments, which requires agencies to consider
whether their rulemaking actions would have Tribal implications. AMS has determined
that this rulemaking is unlikely to have substantial direct effects on one or more Indian
Tribes, on the relationship between the Federal Government and Indian Tribes, or on the
distribution of power and responsibilities between the Federal Government and Indian
Tribes.
This rulemaking has been reviewed under Executive Order 12988 - Civil Justice
Reform. Under the 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 will be applicable to all assessable tomatoes for the
2023-2024 fiscal period, 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 8c(15)(A) of the Act (7 U.S.C. 608c(15)(A)),
any handler subject to an order may file with the U.S. Department of Agriculture (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 rulemaking increases the assessment rate for Florida tomatoes handled under
the Order from $0.025 per 25-pound container or equivalent, the rate established for the
2017-2018 and subsequent fiscal periods, to a rate of $0.035 per 25-pound container or
equivalent for the 2023-2024 and subsequent fiscal periods.
Sections 966.41 and 966.42 authorize the Committee, with the approval of AMS,
to formulate an annual budget of expenses and collect assessments from handlers to
administer the program. The members are familiar with the Committee's needs and with
the costs of goods and services in their local area and are able to formulate an appropriate
budget and assessment rate. The assessment rate is formulated and discussed in a public
meeting, and all directly affected persons have an opportunity to participate and provide
input.
For the 2017-2018 and subsequent fiscal periods, the Committee recommended,
and AMS approved, an assessment rate of $0.025 per 25-pound container or equivalent of

Florida tomatoes within the production area. That rate continues in effect from fiscal
period to fiscal period until modified, suspended, or terminated by AMS upon
recommendation and information submitted by the Committee or other information
available to AMS.
The Committee met on September 20, 2023, and unanimously recommended
2023-2024 fiscal period expenditures of $1,155,764 and an assessment rate of $0.035 per
25-pound container or equivalent of Florida tomatoes handled for the 2023-2024 and
subsequent fiscal periods. In comparison, last fiscal period’s budgeted expenditures were
$1,156,773. The assessment rate of $0.035 per 25-pound container or equivalent is $0.01
higher than the rate currently in effect. The Committee has used financial reserves in
previous seasons to help pay for budgeted expenses. Increasing the assessment rate will
allow the Committee to replenish and maintain their financial reserves at the desired level
of $250,000. The Committee projects handler receipts of approximately 22,000,000 25pound containers or equivalent of assessable Florida tomatoes for the 2023-2024 fiscal
period, an increase from the 21,815,350 containers handled for the 2022-2023 fiscal
period.
The major expenditures recommended by the Committee for the 2023-2024 fiscal
period include $350,000 for research; $340,000 for education and promotions; and
$277,393 for management and staff. By comparison, budgeted expenses for these items
during the 2022-2023 fiscal period were $350,000; $330,000; and $274,105, respectively.
At the current assessment rate of $0.025, the expected 22,000,000 25-pound
containers or equivalent of assessable Florida tomatoes would generate $550,000 in
assessment revenue (22,000,000 multiplied by $0.025 assessment rate). By increasing
the assessment rate by $0.01 to $0.035, assessment income should generate $770,000 in
assessment revenue (22,000,000 multiplied by $0.035 assessment rate) for the 2023-2024
fiscal period. This amount should be appropriate to ensure the Committee has sufficient

revenue, along with an anticipated $265,501 in funds awarded through the Foreign
Agricultural Service Market Access Program and $129,071 in other income, to fully fund
its recommended 2023-2024 fiscal period budgeted expenditures, while maintaining
financial reserves at around $250,000.
The Committee derived the recommended assessment rate by considering
anticipated fiscal period expenses, expected shipments of Florida tomatoes, anticipated
grant funds, and the amount of funds available in financial reserve. Income derived from
handler assessments ($770,000), Foreign Agricultural Service Market Access Program
grants ($265,501), and other sources including administrative and interest income
($129,071), should be adequate to cover budgeted expenses ($1,155,764). Funds
available in the financial reserve (currently about $241,000) will be kept within the
maximum permitted by the Order (approximately one fiscal period’s expenses as
authorized in § 966.44).
The assessment rate will continue in effect indefinitely unless modified,
suspended, or terminated by AMS upon recommendation and information submitted by
the Committee or other available information.
Although this assessment rate will be in effect 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
AMS. Committee meetings are open to the public and interested persons may express
their views at these meetings. AMS 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 2023-2024 fiscal
period budget, and those for subsequent fiscal periods, will be reviewed and, as
appropriate, approved by AMS.

Final Regulatory Flexibility Analysis
Pursuant to requirements set forth in the Regulatory Flexibility Act (RFA) (5
U.S.C. 601-612), AMS has considered the economic impact of this rulemaking 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 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 38 handlers of Florida tomatoes subject to regulation under the Order
and approximately 50 producers of Florida tomatoes in the production area. At the time
this analysis was prepared, the Small Business Administration (SBA) defined small
agricultural producers of tomatoes as those having annual receipts of less than $3,500,000
(NAICS code 111339, Other Non-citrus Fruit Farming), and small agricultural service
firms as those whose annual receipts are less than $34,000,000 (NAICS code 115114,
Postharvest Crop Activities) (13 CFR 121.201).
According to data from the AMS Market News Tomato Fax Report, the average
price for fresh Florida tomatoes for the 2022–2023 season was approximately $21.94 per
25-pound container, with total shipments of around 21,815,350 25-pound containers.
Based on the average terminal market price and shipment information, the number of
handlers, and assuming a normal distribution, the majority of tomato handlers have
estimated average annual receipts of significantly less than $34,000,000 ($21.94
multiplied by 21,815,350 containers equals $478,628,779, divided by 38 handlers equals
$12,595,494 per handler).
In addition, based on data from the National Agricultural Statistics Service
(NASS), the average price producers received for fresh Florida tomatoes at the point of

first sale during the 2022–2023 season was approximately $11.08 per 25-pound
container, with total shipments of around 21,815,350 containers. Using the average price
producers received and shipment information, the number of producers, and assuming a
normal distribution, the majority of producers have estimated average annual receipts
greater than $3.5 million ($11.08 multiplied by 21,815,350 containers equals
$241,714,078, divided by 50 producers equals $4,834,282 per producer). Thus, a
majority of producers of Florida tomatoes may be classified as large entities, while a
majority of handlers may be classified as small entities.
This rulemaking will increase the assessment rate collected from handlers for the
2023-2024 and subsequent fiscal periods from $0.025 to $0.035 per 25-pound container
or equivalent of Florida tomatoes. The Committee unanimously recommended 20232024 fiscal period expenditures of $1,155,764 and an assessment rate of $0.035 per 25pound container or equivalent of Florida tomatoes. The assessment rate of $0.035 is
$0.01 higher than the current rate. The Committee expects industry to handle 22,000,000
25-pound containers or equivalent of Florida tomatoes during the 2023-2024 fiscal
period. Thus, the $0.035 rate per 25-pound container or equivalent should provide
$770,000 in assessment income (22,000,000 containers multiplied by $0.035). The
Committee expects to use an anticipated $265,501 in funds awarded through the Foreign
Agricultural Service Market Access Program and $129,071 in other sources to cover
remaining expenses. Income derived from handler assessments, Foreign Agricultural
Service Market Access Program grants, and other sources including member fees and
interest income, should be adequate to cover budgeted expenses.
The major expenditures recommended by the Committee for the 2023-2024 fiscal
period include $350,000 for research; $340,000 for education and promotions; and
$277,393 for management and staff. By comparison, budgeted expenses for these items
during the 2022-2023 fiscal period were $350,000; $330,000; and $274,105, respectively.

The Committee unanimously recommended increasing the assessment rate after
drawing down financial reserves in previous seasons. The Committee desires to maintain
a financial reserve of around $250,000, and without increasing the assessment rate, the
Committee will not be able to maintain financial reserves at this level. The Committee
estimates production for the 2023-2024 fiscal period to be 22,000,000 25-pound
containers or equivalent of Florida tomatoes. At the current assessment rate, assessment
income should equal $550,000 (22,000,000 containers multiplied by $0.025). By
increasing the assessment rate by $0.01, assessment income should be $770,000
(22,000,000 containers multiplied by $0.035). This amount, along with Foreign
Agricultural Service Market Access Program grants, and other income, should provide
sufficient funds to meet anticipated 2023-2024 fiscal period expenses, while maintaining
financial reserves at around $250,000.
Prior to arriving at this budget and assessment rate, the Committee considered
maintaining the current assessment rate of $0.025. However, the Committee would need
to further draw down reserves to meet its expenses. The Committee members did not
want to utilize additional funds from reserves to meet 2023-2024 fiscal period expenses.
Consequently, the alternative of maintaining the current assessment rate was rejected.
A review of historical and preliminary information pertaining to the upcoming
fiscal period indicates the average grower price for the 2023-2024 season should be
approximately $11.00 per 25-pound container of tomatoes or equivalent. Therefore, the
estimated assessment revenue for the 2023-2024 crop year as a percentage of total grower
revenue should be about 0.32 percent ($0.035 divided by $11.00 multiplied by 100).
This action increases the assessment obligation imposed on Florida tomato
handlers. Assessments are applied uniformly on all handlers, and some of the costs may
be passed on to producers. However, these costs are expected to be offset by the benefits
derived from the operation of the Order.

The Committee’s meetings are widely publicized throughout the Florida tomato
industry and all interested persons are invited to attend the meeting and participate in
Committee deliberations on all issues. Like all Committee meetings, the September 20,
2023, meeting was a public meeting and all entities, both large and small, were able to
express views on this issue. Finally, interested persons were invited to submit comments
on this rulemaking, including the regulatory and informational impacts of this action on
small businesses.
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 would be necessary as a result of this rulemaking. Should any changes
become necessary, they would be submitted to OMB for approval.
This rulemaking will not impose any 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.
AMS has not identified any relevant Federal rules that duplicate, overlap, or
conflict with this rulemaking.
A proposed rule concerning this action was published in the Federal Register on
March 7, 2024 (89 FR 16471). Copies of the proposed rule were provided to all Florida
tomato handlers. The proposal was also made available through the internet by USDA
and the Office of the Federal Register. A 30-day comment period ending April 8, 2024,
was provided for interested persons to respond to the proposal. AMS received three

comments during the comment period. Two commentors supported the action and one
commenter did not address the merits of the proposed rule. Accordingly, AMS made no
changes to the rule 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/rulesregulations/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.
After consideration of all relevant material presented, including the information
and recommendations submitted by the Committee and other available information, AMS
has determined that this rulemaking is consistent with and will effectuate the purposes of
the Act.
List of Subjects in 7 CFR Part 966
Marketing agreements, Reporting and recordkeeping requirements, Tomatoes.
For the reasons set forth in the preamble, the Agricultural Marketing Service
amends 7 CFR part 966 as follows:
PART 966—TOMATOES GROWN IN FLORIDA
1. The authority citation for part 966 continues to read as follows:
Authority: 7 U.S.C. 601-674.
2. Revise § 966.234 to read as follows:
§ 966.234 Assessment rate.
On and after August 1, 2023, an assessment rate of $0.035 per 25-pound container
or equivalent is established for Florida tomatoes.
Melissa Bailey,
Associate Administrator,
Agricultural Marketing Service.

[FR Doc. 2024-14551 Filed: 7/2/2024 8:45 am; Publication Date: 7/3/2024]