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.

Proposed Rules Federal Register

21492 

Vol. 77, No. 69 

Tuesday, April 10, 2012 

DEPARTMENT OF AGRICULTURE 

Agricultural Marketing Service 

7 CFR Part 966 

[Doc. No. AMS–FV–11–0080; FV11–966–1 

PR] 

Tomatoes Grown in Florida; Increased 

Assessment Rate 

AGENCY: Agricultural Marketing Service, 

USDA. 

ACTION: Proposed rule. 

SUMMARY: This rule would increase the 

assessment rate established for the 

Florida Tomato Committee (Committee) 

for the 2011–12 and subsequent fiscal 

periods from $0.0275 to $0.037 per 25- 

pound carton of tomatoes handled. The 

Committee locally administers the 

marketing order which regulates the 

handling of tomatoes grown in Florida. 

Assessments upon tomato handlers are 

used by the Committee to fund 

reasonable and necessary expenses of 

the program. The fiscal period begins 

August 1 and ends July 31. The 

assessment rate would remain in effect 

indefinitely unless modified, 

suspended, or terminated. 

DATES: Comments must be received by 

April 25, 2012. 

ADDRESSES: Interested persons are 

invited to submit written comments 

concerning this rule. Comments must be 

sent to the Docket Clerk, Marketing 

Order and Agreement Division, Fruit 

and Vegetable Programs, AMS, USDA, 

1400 Independence Avenue SW., STOP 

0237, Washington, DC 20250–0237; Fax: 

(202) 720–8938; or Internet: http:// 

www.regulations.gov. Comments should 

reference the document 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, or can be viewed at: 

http://www.regulations.gov. All 

comments submitted in response to this 

rule will be included in the record and 

will be made available to the public. 

Please be advised that the identity of the 

individuals or entities submitting the 

comments will be made public on the 

Internet at the address provided above. 

FOR FURTHER INFORMATION CONTACT: 

Doris Jamieson, Marketing Specialist, or 

Christian D. Nissen, Regional Manager, 

Southeast Marketing Field Office, 

Marketing Order and Agreement 

Division, Fruit and Vegetable Programs, 

AMS, USDA; Telephone: (863) 324– 

3375, Fax: (863) 325–8793, or Email: 

Doris.Jamieson@ams.usda.gov or 

Christian.Nissen@ams.usda.gov. 

Small businesses may request 

information on complying with this 

regulation by contacting Laurel May, 

Marketing Order and Agreement 

Division, Fruit and Vegetable Programs, 

AMS, USDA, 1400 Independence 

Avenue SW., STOP 0237, Washington, 

DC 20250–0237; Telephone: (202) 720– 

2491, Fax: (202) 720–8938, or Email: 

Laurel.May@ams.usda.gov. 

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 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 Department of Agriculture 

(USDA) 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 proposed herein 

would be applicable to all assessable 

tomatoes beginning on August 1, 2011, 

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 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. 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 rule would increase the 

assessment rate established for the 

Committee for the 2011–12 and 

subsequent fiscal periods from $0.0275 

to $0.037 per 25-pound carton of 

tomatoes. 

The Florida tomato marketing order 

provides authority for the Committee, 

with the approval of USDA, 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. 

For the 2009–10 and subsequent fiscal 

periods, the Committee recommended, 

and USDA approved, an assessment rate 

that would continue in effect from fiscal 

period to fiscal period unless modified, 

suspended, or terminated by USDA 

upon recommendation and information 

submitted by the Committee or other 

information available to USDA. 

The Committee met on August 23, 

2011, and unanimously recommended 

2011–12 expenditures of $1,496,452 and 

an assessment rate of $0.037 per 25- 

pound carton of tomatoes. In 

comparison, last year’s budgeted 

expenditures were $1,496,971. The 

assessment rate of $0.037 is $0.0095 

higher than the rate currently in effect. 

The Committee estimates the 2011– 

2012 crop to be approximately 35 

million 25-pound cartons, down from 

the 45 million cartons estimated for last 

year. At the current assessment rate, 

assessment income would equal only 

$962,500, an amount insufficient to 

cover the Committee’s anticipated 

expenditures. Therefore, the Committee 

voted to increase the assessment rate in 


tkelley on DSK3SPTVN1PROD with PROPOSALS
Federal Register / Vol. 77, No. 69 / Tuesday, April 10, 2012 / Proposed Rules 21493 

order to generate sufficient funds to 

meet Committee expenses. 

The major expenditures 

recommended by the Committee for the 

2011–12 year include $575,000 for 

education and promotion, $436,372 for 

salaries, $250,000 for research, and 

$64,000 for office space. Budgeted 

expenses for these items in 2010–11 

were $535,500, $436,372, $250,000, and 

$62,283, respectively. 

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 

35 million 25-pound cartons which 

should provide $1,295,000 in 

assessment income. Income derived 

from handler assessments, along with 

interest income, USDA Market Access 

Program (MAP) funds, and funds from 

the Committee’s authorized reserve, 

would be adequate to cover budgeted 

expenses. Funds in the reserve 

(approximately $200,000) would be kept 

within the maximum permitted by the 

order of not to exceed one fiscal period’s 

expenses as stated in § 966.44. 

The proposed assessment rate would 

continue in effect indefinitely unless 

modified, suspended, or terminated by 

USDA upon recommendation and 

information submitted by the 

Committee or other available 

information. 

Although this assessment rate would 

be in effect for an indefinite period, the 

Committee would 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 

USDA. Committee meetings are open to 

the public and interested persons may 

express their views at these meetings. 

USDA would evaluate Committee 

recommendations and other available 

information to determine whether 

modification of the assessment rate is 

needed. Further rulemaking would be 

undertaken as necessary. The 

Committee’s 2011–12 budget and those 

for subsequent fiscal periods would be 

reviewed and, as appropriate, approved 

by USDA. 

Initial Regulatory Flexibility Analysis 

Pursuant to requirements set forth in 

the Regulatory Flexibility Act (RFA) (5 

U.S.C. 601–612), the Agricultural 

Marketing Service (AMS) has 

considered the economic impact of this 

rule on small entities. Accordingly, 

AMS has prepared this initial regulatory 

flexibility analysis. 

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. 

There are approximately 100 

producers of tomatoes in the production 

area and approximately 80 handlers 

subject to regulation under the 

marketing order. Small agricultural 

producers are defined by the Small 

Business Administration (SBA) as those 

having annual receipts less than 

$750,000, and small agricultural service 

firms are defined as those whose annual 

receipts are less than $7,000,000 (13 

CFR 121.201). 

Based on industry and Committee 

data, the average annual price for fresh 

Florida tomatoes during the 2010–11 

season was approximately $13.88 per 

25-pound container, and total fresh 

shipments for the 2010–11 season were 

36,100,637 25-pound cartons of 

tomatoes. Committee data indicates that 

approximately 21 percent of the 

handlers handle 90 percent of the total 

volume shipped. Based on the average 

price, about 80 percent of handlers 

could be considered small businesses 

under SBA’s definition. In addition, 

based on production data, grower prices 

as reported by the National Agricultural 

Statistics Service, and the total number 

of Florida tomato growers, the average 

annual grower revenue is below 

$750,000. Thus, the majority of handlers 

and producers of Florida tomatoes may 

be classified as small entities. 

This rule would increase the 

assessment rate established for the 

Committee and collected from handlers 

for the 2011–12 and subsequent fiscal 

periods from $0.0275 to $0.037 per 25- 

pound carton of tomatoes. The 

Committee unanimously recommended 

2011–12 expenditures of $1,496,452 and 

an assessment rate of $0.037 per 25- 

pound carton of tomatoes. The proposed 

assessment rate of $0.037 is $0.0095 

higher than the 2010–11 rate. The 

quantity of assessable tomatoes for the 

2011–12 season is estimated at 35 

million cartons. Thus, the $0.037 rate 

should provide $1,295,000 in 

assessment income. Income derived 

from handler assessments, along with 

interest income, MAP funds, and funds 

from the Committee’s authorized reserve 

fund, would be adequate to meet this 

year’s expenses. 

The major expenditures 

recommended by the Committee for the 

2011–12 year include $575,000 for 

Education and Promotion, $436,372 for 

salaries, $250,000 for research, and 

$64,000 for office space. Budgeted 

expenses for these items in 2010–11 

were $535,500, $436,372, $250,000, and 

$62,283, respectively. 

The Committee estimates the 2011– 

2012 crop to be approximately 35 

million 25-pound cartons, down from 

the 45 million cartons estimated for last 

year. At the current assessment rate, 

assessment income would equal only 

$962,500, an amount insufficient to 

cover the Committee’s anticipated 

expenditures. Therefore, the Committee 

voted to increase the assessment rate in 

order to generate sufficient funds to 

meet Committee expenses. 

The Committee reviewed and 

unanimously recommended 2011–12 

expenditures of $1,496,452. Prior to 

arriving at this budget, the Committee 

considered information from various 

sources, such as the Committee’s 

Executive Subcommittee, Finance 

Subcommittee, and Education and 

Promotion Subcommittee. Alternative 

expenditure levels were discussed by 

these groups, based upon the relative 

value of various education and 

promotion projects to the tomato 

industry. The assessment rate of $0.037 

per 25-pound carton of assessable 

tomatoes was then determined by 

dividing the total recommended budget 

by the quantity of assessable tomatoes, 

estimated at 35 million 25-pound 

cartons for the 2011–12 year. The 

increased assessment rate should 

provide $1,295,000 in assessment 

income. This is approximately $201,452 

below the anticipated expenses, which 

the Committee determined to be 

acceptable. 

A review of historical information and 

preliminary information pertaining to 

the upcoming crop year indicates that 

the grower price for the 2011–12 season 

could range between $32.80 and $4.83 

per 25-pound carton of tomatoes. 

Therefore, the estimated assessment 

revenue for the 2011–12 crop year as a 

percentage of total grower revenue 

could range between .1 and .8 percent. 

This action would increase the 

assessment obligation imposed on 

handlers. While assessments impose 

some additional costs on handlers, the 

costs are minimal and uniform on all 

handlers. Some of the additional costs 

may be passed on to producers. 

However, these costs would be offset by 

the benefits derived by the operation of 

the marketing order. In addition, the 

Committee’s meeting was widely 

publicized throughout the Florida 

tomato industry and all interested 

persons were invited to attend the 


tkelley on DSK3SPTVN1PROD with PROPOSALS
21494 Federal Register / Vol. 77, No. 69 / Tuesday, April 10, 2012 / Proposed Rules 

1The NPR refers to these activities as ‘‘activities 

that are financial in nature under Title I.’’ 

2See section 113 of the Dodd-Frank Act; 12 

U.S.C. 5323. 

3See id. 

4See section 102(a)(4)(B) of the Dodd-Frank Act 

(emphasis added); 12 U.S.C. 5311(a)(4)(B) 

(emphasis added). Besides bank holding companies, 

meeting and participate in Committee 

deliberations on all issues. Like all 

Committee meetings, the August 23, 

2011, meeting was a public meeting and 

all entities, both large and small, were 

able to express views on this issue. 

Finally, interested persons are invited to 

submit comments on this proposed rule, 

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 the Office of 

Management and Budget (OMB) and 

assigned OMB No. 0581–0178 Vegetable 

and Specialty Crops. No changes in 

those requirements as a result of this 

action are necessary. 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 rule. 

A small business guide on complying 

with fruit, vegetable, and specialty crop 

marketing agreements and orders may 

be viewed at: www.ams.usda.gov/ 

MarketingOrdersSmallBusinessGuide. 

Any questions about the compliance 

guide should be sent to Laurel May at 

the previously-mentioned address in the 

FOR FURTHER INFORMATION CONTACT

section. 

A 15-day comment period is provided 

to allow interested persons to respond 

to this proposed rule. Fifteen days is 

deemed appropriate because: (1) The 

2011–12 fiscal period began on August 

1, 2011, and the marketing order 

requires that the rate of assessment for 

each fiscal period apply to all assessable 

tomatoes handled during such fiscal 

period; (2) the Committee needs to have 

sufficient funds to pay its expenses 

which are incurred on a continuous 

basis; and (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. 

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 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 966.234 is revised to read 

as follows: 

§ 966.234 Assessment rate. 

On and after August 1, 2011, an 

assessment rate of $0.037 per 25-pound 

carton is established for Florida 

tomatoes. 

Dated: April 4, 2012. 

Robert C. Keeney, 

Acting Administrator, Agricultural Marketing 

Service. 

[FR Doc. 2012–8532 Filed 4–9–12; 8:45 am] 

BILLING CODE 3410–02–P 

FEDERAL RESERVE SYSTEM 

12 CFR Part 225 

[Regulation Y; Docket No. R–1405] 

RIN 7100–AD64 

Definition of ‘‘Predominantly Engaged 

in Financial Activities’’ 

AGENCY: Board of Governors of the 

Federal Reserve System (Board). 

ACTION: Supplemental notice of 

proposed rulemaking and request for 

comment. 

SUMMARY: On February 11, 2011, the 

Board published a notice of proposed 

rulemaking (‘‘February 2011 NPR’’) that 

would amend Regulation Y to establish 

the criteria for determining whether a 

company is ‘‘predominantly engaged in 

financial activities’’ and define the 

terms ‘‘significant nonbank financial 

company’’ and ‘‘significant bank 

holding company’’ for purposes of Title 

I of the Dodd-Frank Wall Street Reform 

and Consumer Protection Act of 2010 

(the ‘‘Dodd-Frank Act’’ or ‘‘Act’’). Based 

on comments received, the Board 

believes that clarification is needed 

regarding the scope of activities that 

would be considered to be financial 

activities under that proposal. 

Accordingly, this notice supplements 

the February 2011 NPR amending 

specific portions of the regulation for 

clarity. 

DATES: Comments should be received on 

or before May 25, 2012. 

FOR FURTHER INFORMATION CONTACT: 

Laurie S. Schaffer, Associate General 

Counsel, (202) 452–2272, Paige E. 

Pidano, Senior Attorney, (202) 452– 

2803 or Christine E. Graham, Senior 

Attorney, (202) 452–3005, Legal 

Division; Mark Van Der Weide, Senior 

Associate Director, (202) 452–2263, 

Division of Banking Supervision and 

Regulation, Board of Governors of the 

Federal Reserve System, 20th Street and 

Constitution Avenue NW, Washington, 

DC 20551. Users of Telecommunication 

Device for Deaf (TDD) only, call (202) 

263–4869. 

SUPPLEMENTARY INFORMATION: 

I. Background 

This Notice of Proposed Rulemaking 

(‘‘NPR’’) amends the February 2011 NPR 

and invites public comment on the 

definition of activities that are financial 

solely for purposes of determining 

whether a company qualifies as a 

nonbank financial company under Title 

I of the Dodd-Frank Act.1

The Dodd-Frank Act established the 

Council, which, among other authorities 

and duties, may require that a ‘‘nonbank 

financial company’’ become subject to 

supervision by the Board and prudential 

standards if the Council determines that 

the material financial distress of the 

company, or the nature, scope, size, 

scale, concentration, 

interconnectedness, or mix of the 

company’s activities, could pose a threat 

to the financial stability of the United 

States.2 Nonbank financial companies 

that are designated by the Council under 

section 113 of the Dodd-Frank Act are 

referred to as ‘‘nonbank financial 

companies supervised by the Board.’’ 3

Title I of the Dodd-Frank Act defines 

a ‘‘nonbank financial company’’ to 

include both a U.S. nonbank financial 

company and a foreign nonbank 

financial company. The statute, in turn, 

defines a ‘‘U.S. nonbank financial 

company’’ as a company (other than a 

bank holding company and certain other 

specified types of entities) that is (i) 

incorporated or organized under the 

laws of the United States or any State; 

and (ii) predominantly engaged in 

financial activities.4 A ‘‘foreign nonbank 


tkelley on DSK3SPTVN1PROD with PROPOSALS