[Federal Register Volume 59, Number 194 (Friday, October 7, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-24901]
[[Page Unknown]]
[Federal Register: October 7, 1994]
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DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Part 966
[Docket No. FV94-966-1IFR]
Tomatoes Grown in Florida; Amendment of Rules and Regulations
AGENCY: Agricultural Marketing Service, USDA.
ACTION: Interim final rule.
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SUMMARY: This interim rule clarifies registered handler application and
approval procedures and the Florida Tomato Committee's (committee)
authority to cancel a handler's certificate of registration for good
cause. The rule also clarifies that only registered handlers of Florida
tomatoes may ship such tomatoes in interstate commerce. This rule also
adds special purpose shipment outlets, redefines one of those outlets,
and brings the order's special purpose shipment provisions into
conformity with each other. Finally, this rule provides that handlers
must report packout information on a daily basis to the committee or an
authorized agent of the committee. This rule is expected to enhance
compliance with the order and regulations and bring the regulations
into conformity with current industry practices. The amendments were
unanimously recommended by the committee. In addition, the Department
of Agriculture (Department) makes conforming changes.
DATES: Effective on October 7, 1994. Comments received by November 7,
1994, will be considered prior to issuance of any final rule.
ADDRESSES: Interested persons are invited to submit written comments
concerning this 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: 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, or 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;
SUPPLEMENTARY INFORMATION: This 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. 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 is issuing this rule in accordance with Executive
Order 12866.
This rule has been reviewed under Executive Order 12778, Civil
Justice Reform and is not intended to have retroactive effect. 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 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 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 50 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 May 31, 1994, the committee met to discuss the difficulty it has
experienced in collecting assessments from a few handlers and in
receiving complete, up-to-date packout information from some handlers.
The committee recommended several modifications to the order's existing
rules and regulations to improve these situations.
Handler Certification
Currently, pursuant to Sec. 966.323 Handling regulation, fresh
market shipments of tomatoes by handlers to points outside the
regulated area must meet grade, size, inspection, and container
requirements. Fresh market shipments within the regulated area are not
subject to such requirements. Fresh market shipments within and outside
the regulated area are subject to assessments. The regulated area is
defined as the portion of the State of Florida which is bounded by the
Suwannee River, the Georgia Border, the Atlantic Ocean, and the Gulf of
Mexico. Basically, it is the entire State of Florida, except the
Panhandle. The production area is part of the regulated area.
Under Sec. 966.113 Registered handler, and for the purpose of this
order, registered handlers are persons who have adequate facilities for
grading tomatoes for market and who assume initial responsibility for
compliance with inspection, assessment, reporting, and other regulatory
requirements concerning tomatoes grown in the production area. Any
person who wishes to become a registered handler is required to make an
application for registration with the committee on forms prescribed by,
and available at the principle office of, the committee. If the
applicant has facilities which are determined by the committee as
adequate for grading tomatoes, the applicant may be approved as a
registered handler. ``Adequate facilities'' are currently defined as
those being in a permanent location with nonportable equipment for the
proper grading, sizing and packing of tomatoes. The committee
recommended two minor additions to the definition: (1) The term
``washing'' should be added to the definition, as that activity is an
integral part of the handling process; and (2) the phrase ``grown in
the production area'' be added at the end of the definition to further
identify the tomatoes being handled.
Most tomatoes produced in Florida are shipped fresh to markets
outside the regulated area. The committee's goal is to avoid marketing
problems associated with poor quality tomato shipments. The industry
has spent substantial sums of money to promote Florida tomatoes to the
trade and consumers. Such expenditures are predicated on the shipment
by handlers of good quality tomatoes, which buyers have come to expect
from Florida.
The committee reported that it has been difficult to collect
assessments from some handlers in the past. One handler indicates no
intention of paying assessments this year. Because of these compliance
difficulties, and to foster shipments of good quality tomatoes, the
committee recommended changes in the rules and regulations to
strengthen the registered handler procedures, clarify handler
responsibilities under the order, and enhance the committee's
compliance capabilities.
The committee recommended amending Sec. 966.113 and adopting new
provisions which would: (1) Establish that registered handlers must be
certified by the committee; (2) provide the committee with the
authority, criteria, and procedures for approving registered handler
certifications and for cancelling such certifications for failure to
pay assessments or provide reports to the committee; and (3) allow only
registered handlers to lawfully ship tomatoes outside of the regulated
area. After considering the committee's recommendations, the Department
has determined that the changes in this interim rule are necessary to
effectuate the declared policy of the Act.
New Sec. 966.113 contains an introductory statement explaining the
criteria that a handler must meet to be registered under the order.
These provisions include having adequate facilities and being certified
by the committee as a registered handler, handling tomatoes in
compliance with order requirements, obtaining inspection, submitting
required reports, and paying applicable assessments. Four of these
provisions are currently specified in Sec. 966.113. The provisions for
certification as a registered handler and submission of reports are
added in this rule to help the committee with its compliance
responsibilities and improve marketing assistance provided to handlers
under the order.
New paragraph (a) establishes qualifications for registered handler
certification. The committee or its duly authorized agent inspects
handling facilities to determine if those facilities meet the
requirements for certification. The facilities must be located in the
regulated area and be permanent, non-portable buildings. The equipment
in the facilities must also be nonportable and capable of properly
washing, grading, sizing, and packing of tomatoes grown in the
production area. These requirements are the same as those in the
current definition for Adequate facilities in paragraph (e) of
Sec. 966.323, with the addition of washing as an activity and the
reference to where the tomatoes are produced. The definition is removed
from paragraph (e) of Sec. 966.323 and, as modified, added to new
paragraph (a) of Sec. 966.113 to define, in the appropriate place in
the rules and regulations, the kind of facilities and equipment needed
for certification as a registered handler.
New paragraph (b) of Sec. 966.113 specifies the information
requested by the committee in the application for registered handler
certification. The information requested is common business
identification information.
New paragraph (c) of Sec. 966.113 provides that the committee or an
agent of the committee make the determination that an applicant's
facilities meet requirements. Such certification will be made in
writing by the committee. Denial of certification, and the basis
thereof, will also be made in writing to the applicant by the
committee.
New paragraph (d) of Sec. 966.113 establishes criteria for
cancellation of a registered handler's certification, with the approval
of the Secretary, based on failure to pay assessments on a timely basis
and failure to provide required reports. A registered handler's
certification will also be subject to cancellation, with the approval
of the Secretary, if the handler no longer has adequate facilities, as
that term is defined in Sec. 966.113(a). A cancelled certification will
be reinstated once a handler demonstrates compliance with assessment,
reporting and facility requirements. New paragraph (d) also includes
the exemption, currently in Sec. 966.113, concerning persons who make
deliveries of ungraded tomatoes to handling facilities.
New paragraph (e) of Sec. 966.113 provides that any inspection
certificate of tomatoes offered for inspection by a non-registered
handler contains a statement to that effect. The inspection certificate
for all such tomato lots will read ``Fails to meet the requirements of
Marketing Order No. 966 because the handler is not a registered
handler.'' Such failing certificate will be issued, regardless of the
grade, size or containerization of the tomatoes inspected. The
committee will keep the Federal State Inspection Service (inspection
service) abreast of all handlers' status. Any handler who is denied a
registered handler certificate or who has a registered handler
certificate cancelled, may appeal to the committee for reconsideration.
Such appeal must be made in writing.
The Florida Road Guard Bureau of the Florida Department of
Agriculture and Consumer Services releases tomato shipments for
interstate commerce only if the inspection certificates indicate that
such shipments meet marketing order requirements. Thus, persons or
handlers not certified as a registered handler by the committee will
not be able to ship tomatoes outside the regulated area.
The committee recommended that this provision be included under a
separate title and paragraph. Because inspection certification is
dependent on handler certification, the Department includes this
recommendation as part of the new provision on certified registered
handlers in Sec. 966.113. For emphasis and to provide consistency in
regulations, the Department also adds this requirement to paragraph
(a)(4) Inspection in Sec. 966.323.
Section 966.113 provides that handlers must pay assessments on a
timely basis to maintain their registered handler certification. For
emphasis and to provide consistency in regulations, the Department also
adds this requirement as new paragraph (e) Assessments under
Sec. 966.323.
Certificates of Privilege
The committee recommended changing an incorrect citation in the
first sentence of Sec. 966.120 Application for Certificate of Privilege
which incorrectly refers to Sec. 966.53 of the order. The committee
states that the intent of the section is to require Certificates of
Privilege for special purpose shipments authorized in Sec. 966.54
Shipments for special purposes. Thus, Sec. 966.54 is referenced in the
first sentence of the paragraph. This adjustment does not change
current practices as the committee's use of Certificates of Privilege
is consistent with Sec. 966.54 of the order.
This rule also changes Sec. 966.120 to be consistent with the
outlets specified in Sec. 966.323 Handling regulations. One outlet
currently specified in Sec. 966.120 is changed and three new outlets
are added. The term ``processing'' replaces the term ``canning'' to
make the regulations consistent with current industry practice.
Pickling, experimental purposes and export, which are currently
specified in Sec. 966.323(b), are added to Sec. 966.120. The committee
also proposed that it have the authority, with the Secretary's
approval, to add other outlets to meet changing food technologies and
services which could benefit from receiving tomatoes shipped under
Certificate of Privilege. This authority is added to Sec. 966.120.
The Department makes conforming changes to paragraph (b) of
Sec. 966.323 to make that paragraph consistent with the changes to
Sec. 966.120. The term ``canning'' is changed to ``processing'' and
committee authority to add special purpose outlets, with the
Secretary's approval, is added as conforming changes.
The Department also adds a definition for ``processing'' to
paragraph (e) Sec. 966.323 Definitions. ``Processing'' is defined as
the manufacture of any tomato product which has been converted into
juice, or preserved by any commercial process, including canning,
dehydrating, drying, and the addition of chemical substances. Also,
paragraph (e) of Sec. 966.323, as provided herein, is redesignated as
paragraph (g).
Packout Reports
The committee also recommended that all handlers be required to
present daily packout reports to the inspection service. The inspection
service currently collects these reports from most handlers for
inspection billing purposes and sends a daily packout report to the
committee.
Currently, all handlers maintain records of their daily packout
activity based on the grade, size, and containers of tomatoes handled.
The inspection service collects this data at the end of each work day
for inspection billing purposes. As a service to the committee and
tomato handlers, the inspection service compiles this information
(received from its various inspectors) and reports it to the committee
at the end of the day or the following morning. The committee compiles
this data into a daily, industry-wide, packout report. The report is
considered an indispensable tool for handlers to assess daily tomato
market conditions and is disseminated, upon request, to registered
handlers.
However, some handlers fail to provide their packout data to the
inspection service on a timely basis to allow inclusion of the
handler's data in each daily, industry-wide report. To be a useful
tool, the industry-wide report must be accurate and include, to the
extent possible, the total industry packout. Because the report is such
a valuable marketing tool for handlers, the committee voted unanimously
to propose that each registered handler be required to report the
handler's daily packout data to the inspection service in a timely
manner.
The packout data that handlers provide to the inspection service,
to the committee directly, or to another agent of the committee is data
that is routinely compiled by each handler as part of the handler's
normal, daily operating records. The reporting deadline of the end of
the working day, as designated by the committee, will not present an
undue burden on handlers because the data requested is routinely
recorded by handlers at the end of each working day. Individual handler
data collated and disseminated in an industry-wide report will not
disclose confidential information or the business position of
individual handlers.
The committee recommended that this change be added to the rules
and regulations as a separate, new number, title and paragraph.
However, because the new provision establishes a reporting requirement
on handlers, the Department inserts the provision as a separate, new
paragraph under current Sec. 966.323. Thus, a new paragraph (e) is
added to the handling regulation and current paragraph (e) Definitions
is redesignated as paragraph (g).
Assessments
Finally, the committee recommended that a clarification be added to
the rules and regulations to clearly state that handlers must pay
assessments to maintain their certification as registered handlers.
Failure of some handlers to pay their assessments places an unfair
burden upon those handlers who comply with order requirements. The
Department adds that this clarification to Sec. 966.323 handling
regulation because payment of assessments is a requirement of handlers
under the order. A new paragraph (f) Assessments is added to
Sec. 966.323. This paragraph stated that failure of a registered
handler to pay assessments in a timely manner will result in
cancellation of the registered handler's status, thus, making that
handler ineligible to ship tomatoes outside of the regulated area.
Current committee collection procedures are: (1) Weekly assessment
billings during the harvest season; (2) payment within 30 days; (3)
followed by a demand letter specifying the end of a 15 day extended
notice period; and (4) referral to the Department for legal action.
Under this rule, a handler who has not paid assessments after
expiration of the extended notice period provided in the demand letter
will be considered out of compliance and will be reported to the
inspection service as a non-registered handler.
Based on the above, the Administrator of the AMS has determined
that this interim rule will not have a significant economic impact on a
substantial number of small entities.
In accordance with the Paper Work Reduction Act of 1980, [44 U.S.C.
Chapter 35], the information collection requirement contained in this
rule has been submitted to the Office of Management and Budget (OMB)
for approval and has been assigned OMB No. 0581-0073. Because handlers
currently complete a form to be certified as a registered handler, no
additional OMB approval is needed for such registration. However, this
rule provides that each registered handler, at the end of each day in
which tomatoes are handled by the registered handler, furnish the
committee or it's designated agent an accurate accounting of the number
of tomato containers packed that day. This report provides the grade,
size, and containers of tomatoes packed by the handler each packing
day. Because the information is readily available from each day's
packout, the report takes five minutes to complete. The committee needs
this information to compile a daily packout report which is used by
handlers in their marketing efforts. This provision is consistent with
current industry practice. It is estimated that 50 handlers currently
submit daily reports and receive marketing assistance during the
marketing period October 10, through June 15 each year.
Pursuant to 5 U.S.C. 553, it is 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 rule until 30 days after publication in the Federal
Register because this rule: (1) clarifies order regulations and makes
those regulations consistent with current conditions in the industry;
(2) is expected to improve compliance with order requirements; (3)
needs to be in effect as soon as possible because the marketing season
begins on October 10, 1994; (4) was unanimously recommended by the
committee at a public meeting; and (5) provides a 30-day comment period
and all comments timely received will be considered prior to the
finalization of this rule.
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. Section 966.113 is revised to read as follows:
Sec. 966.113 Registered handler certification.
Each handler who handles tomatoes grown in the production area must
be certified as a registered handler by the committee in order to ship
such tomatoes outside of the regulated area. A handler who is certified
as a registered handler is a handler who has adequate facilities to
meet the requirements for preparing tomatoes for market, obtains
inspection on tomatoes handled, agrees to handle tomatoes in compliance
with the order's grade, size and container requirements, pays
applicable assessments on a timely basis, submits reports required by
the committee, and agrees to comply with other regulatory requirements
on the handling of tomatoes grown in the production area.
(a) Based on the criteria specified in this section, the committee
shall determine eligibility for certification as a registered handler.
The committee or its authorized agent shall inspect a handler's
facilities to determine if the facilities are adequate for preparing
tomatoes for market. In order to be adequate for such purposes, the
facilities must be permanent, nonportable buildings located in the
production area with equipment that is nonportable for the proper
washing, grading, sizing and packing of tomatoes grown in the
production area.
(b) Application for certification shall be executed by the handler
and filed with the committee on a form, prescribed by and available at
the principal office of the committee, containing the following
information:
(1) Business name,
(2) Address of handling facilities (including telephone and
facsimile number),
(3) Mailing address (if different from handling facility),
(4) Number of years in tomato business in Florida,
(5) Type of business, and
(6) Names of senior officers, partners, or principal owners with
financial interest in the business.
(c) If the committee determines from available information that an
applicant meets the criteria specified in this section, such applicant
shall be certified as a registered handler and shall be so informed by
written notice from the committee. If certification is denied, such
denial shall be made by the committee in writing, stating the reasons
for denial.
(d) A registered handler's certification shall be cancelled by the
committee, with the approval of the Secretary, if the handler fails to
pay assessments within 45 days of the end of the assessment billing
period, fails to provide reports, or no longer has adequate facilities
as described in this section. Cancellation of a handler's registration
shall be made in writing to the handler and shall specify the reason(s)
for and effective date of such cancellation. The committee shall
recertify the handler's registration at such time as the handler
corrects the deficiencies which resulted in the cancellation.
Certification is permanent until the committee determines, based on
criteria herein, that cancellation is warranted. Persons who make
deliveries of ungraded tomatoes to such certified registered handlers
are hereby determined to be exempt from otherwise applicable
regulations pursuant to this part.
(e) During any period in which the handling of tomatoes is
regulated pursuant to this part, no handler shall obtain an inspection
certifying that said handler's tomatoes meet the requirements of the
marketing order unless said handler has been certified as a registered
handler. Any person who is not certified as a registered handler may
receive inspection on tomatoes from the Federal-State Inspection
Service. Such inspection certificate shall state ``Fails to meet the
requirements of Marketing Order No. 966 because the handler is not a
registered handler.''
3. In Sec. 966.120, paragraph (a) is revised to read as follows:
Sec. 966.120 Application for Certificate of Privilege.
(a) Whenever handling is regulated pursuant to Sec. 966.54, each
handler desiring to make shipments of tomatoes for any of the following
purposes shall, prior thereto, apply to the committee for and obtain a
Certificate of Privilege permitting such shipment:
(1) For pickling, or
(2) For processing, or
(3) For experimental purposes, or
(4) For relief or charity, or
(5) For export, or
(6) For other purposes which may be specified by the committee,
with the approval of the Secretary.
* * * * *
4. Section 966.323 is amended by revising paragraphs (a)(4) and
(b), redesignating paragraph (e) as paragraph (g), revising
redesignated paragraph (g), and adding new paragraphs (e) and (f) to
read as follows:
Sec. 966.323 Handling regulation.
* * * * *
(a) * * *
(4) Inspection. Tomatoes shall be inspected and certified pursuant
to the provisions of Sec. 966.60. Each handler who applies for
inspection shall register with the committee pursuant to Sec. 966.113.
Persons not certified by the committee as a registered handler shall be
issued inspection certificates on shipments handled by such persons
stating ``Fails to meet the requirements of Marketing Order No. 966
because the handler is not a registered handler.'' Evidence of
inspection must accompany truck shipments.
(b) Special purpose shipments. The requirements of paragraph (a) of
this section shall not be applicable to shipments of tomatoes for
pickling, processing, experimental purposes, relief, charity, export,
or other outlets recommended by the committee and approved by the
Secretary, if the handler thereof complies with the safeguard
requirements of paragraph (c) of this section. Shipments for processing
are also exempt from the assessment requirements of this part.
* * * * *
(e) Report of packouts. Each registered handler shall, at the end
of each day during which handling activities have been conducted, or
the following morning as the committee may prescribe, provide to the
committee or its designated agent a complete and accurate accounting of
the number of containers of tomatoes packed that day. The report shall
include an accounting of the grade, size, maturity, and net weight of
the containers packed in each such category. The total packout report
shall be provided to the committee or its authorized agent in a timely
fashion that allows the committee to compile a daily, industry-wide
packout report.
(f) Assessments. Handlers shall pay assessments as provided in
Sec. 966.42. Assessment will be based on inspection certificates
supplied to the committee by the Federal-State Inspection Service.
(g) Definitions. Hydroponic tomatoes means tomatoes grown in
solution without soil; greenhouse tomatoes means tomatoes grown
indoors. A Certified Tomato Repacker is a repacker of tomatoes in the
regulated area who has the facilities for handling, regrading,
resorting, and repacking tomatoes into consumer sized packages and has
been certified as such by the committee. Processing as used in
Secs. 966.120 and 966.323 means the manufacture of any tomato product
which has been converted into juice, or preserved by any commercial
process, including canning, dehydrating, drying, and the addition of
chemical substances. U.S. tomato standards means the revised United
States Standards for Fresh Tomatoes (7 CFR 51.1855 through 51.1877),
effective October 1, 1991, as amended, or variations thereof specified
in this section. Other terms in this section shall have the same
meaning as when used in Marketing Agreement No. 125, as amended, and
this part, and the U.S. tomato standards.
Dated: October 4, 1994.
Eric M. Forman,
Deputy Director, Fruit and Vegetable Division.
[FR Doc. 94-24901 Filed 10-6-94; 8:45 am]
BILLING CODE 3410-02-P
