[Federal Register Volume 60, Number 226 (Friday, November 24, 1995)]
[Rules and Regulations]
[Pages 57906-57907]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-28697]
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DEPARTMENT OF AGRICULTURE
7 CFR Part 966
[Docket No. FV95-966-2IFR]
Tomatoes Grown in Florida; Exemption of Specialty Packed Red Ripe
Tomatoes From Container Requirements
AGENCY: Agricultural Marketing Service, USDA.
ACTION: Interim final rule with request for comments.
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SUMMARY: This interim final rule exempts shipments of specialty packed
red ripe tomatoes from the container net weight requirements in the
Florida tomato handling regulation. This exemption was unanimously
recommended by the Florida Tomato Committee which locally administers
the marketing order. This rule will allow handlers to ship specialty
packed red ripe tomatoes in containers with different net weights than
those currently authorized under the order. This will facilitate the
movement of such tomatoes, further the development of this relatively
new market, and is expected to improve returns to producers of Florida
tomatoes.
DATES: Effective November 24, 1995; comments received by December 26,
1995 will be considered prior to issuance of a final rule.
ADDRESSES: Interested persons are invited to submit written comments
concerning this rule. Comments must be sent in triplicate to the Docket
Clerk, Fruit and Vegetable Division, AMS, USDA, room 2525-S, PO Box
96456, Washington, DC 20090-6456. All comments should reference the
docket number and 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, Southeast Marketing Field
Office, Fruit and Vegetable Division, AMS, USDA, PO Box 2276, Winter
Haven, Florida 33883-2276; telephone: 941-299-4770, or FAX: 941-299-
5169; or Mark Kreaggor, Marketing Specialist, Marketing Order
Administration Branch, F&V, AMS, USDA, room 2522-S, PO Box 96456,
Washington, DC 20090-6456: telephone: (202) 720-2431, or FAX: 202-720-
5698.
SUPPLEMENTARY INFORMATION: This rule is issued under Marketing
Agreement No. 125 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 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 (Department) is issuing this rule in
conformance with Executive Order 12866.
This rule has been reviewed under Executive Order 12778, Civil
Justice Reform. This rule 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 request a modification of the order or to be exempted
therefrom. A 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 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 the 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 action 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 tomatoes who are subject to
regulation under the marketing order and approximately 90 producers of
tomatoes in the regulated area. Small agricultural service firms are
defined by the Small Business Administration (13 CFR 121.601) as those
having annual receipts of less than $5,000,000, and small agricultural
producers are defined as those whose annual receipts are less than
$500,000. The majority of handlers and producers of Florida tomatoes
may be classified as small entities.
Under the Florida tomato marketing order, tomatoes produced in the
production area and shipped to fresh market channels outside of the
regulated area are required to meet certain handling requirements
specified in Sec. 966.323. Current requirements include a minimum grade
of U.S. No. 3 and a minimum size of 2\8/32\ inches in diameter. Pack
and container specifications are also in effect. In addition, all lots
are required to be inspected and certified as meeting these grade,
size, pack and container requirements by authorized representatives of
the Federal or Federal-State Inspection Service. 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.
This interim final rule revises paragraph (d) of Sec. 966.323 to
allow handlers to ship specialty packed red ripe tomatoes exempt from
the container net weight requirements in Sec. 966.323(a)(3)(i) and
defines such tomatoes in paragraph (g) of Sec. 966.323. This exemption
is the same as the exemption currently provided for yellow meated
tomatoes in paragraph (d) of Sec. 966.323. The specialty packed red
ripe tomatoes will still be subject to all other provisions of the
handling regulation, including established grade, size, container
marking, condition and inspection requirements. The Florida Tomato
Committee (committee) met September 7, 1995, and unanimously
recommended this exemption.
Section 966.52 of the Florida tomato marketing order provides
authority for the modification, suspension, and termination of
regulations. Section 966.323(a)(3)(i) currently requires certain types
of tomatoes packed by registered handlers to be packed in containers of
10, 20, and 25 pounds designated net weights. The net weight of the
contents cannot be less than the designated weight and cannot exceed
the designated weight by more than two pounds. Section 51.1863 of the
U.S.
[[Page 57907]]
Standards for Grades of Fresh Tomatoes (7 CFR 51.1855 through 51.1877,
hereafter referred to as the ``standards,'') applies.
Specialty packed red ripe tomatoes are a product recently available
from Florida. They are shipped in relatively small volume and marketed
as a specialty item.
This rule defines specialty packed red ripe tomatoes as tomatoes
which, at the time of inspection, are light red (#5 color) or red (#6
color) according to color classification requirements in the standards,
have their calyx ends and stems attached, and are cell packed in a
single layer container.
Cell packed tomatoes are placed in containers with fiber board on
plastic compartments for such tomatoes to provide separation and reduce
bruising during transport and handling. This is especially important in
shipping tomatoes at an advanced stage of ripeness when tomatoes have
their calyx ends and stems attached. The separation provided by the
individual compartments permits the tomatoes from moving around inside
the shipping container during transport and handling, thus ensuring
arrival at destination with tomato calyx ends and stems attached and no
tomato stem punctures.
Most tomatoes shipped from Florida are shipped at the mature green
stage without calyx ends and stems, and are packed in volume fill
containers. When volume fill containers are packed, the tomatoes are
placed by hand or machine into the container until the required net
weight is reached. Mature green tomatoes are not as susceptible to
bruising and other damage during transport as red ripe tomatoes. These
specialty tomatoes have to be packaged so that they do not touch each
other. If volume fill containers were used by registered handlers in
Florida to ship specialty tomatoes, serious product bruising and stem
punctures would result, which would detract from the unique appearance
and marketability of these tomatoes.
However, the cell pack method of packaging needed to ensure that
these specialty tomatoes arrive at markets in good condition does not
lend itself well when packing to meet a required net weight. Normally,
such packs are used when the product is packed by count per container.
The tomatoes have to be properly sized to fit snugly in the container.
During the harvesting season, the weight of equal size tomatoes or
the shape of tomatoes of equal weight may vary dramatically. If the red
ripe tomatoes are light in weight, handlers cannot add extra tomatoes
because all cells are full, or if the tomatoes are heavier than normal,
the removal of a tomato by a handler results in an empty cell. Because
the buyer expects a full tray, empty cells are viewed suspiciously and
a marketing problem results.
To overcome this problem and allow this market to be further
developed, the committee unanimously recommended that shipments of
specialty packed red ripe tomatoes as defined herein, be exempt from
the container net weight requirements of the order. As stated earlier,
all other order requirements will apply to such shipments.
This rule reflects the committee's and the Department's appraisal
of the need to exempt specialty packed red ripe tomatoes from the net
weight requirements for tomatoes grown in Florida. The Department's
view is that this action will have a beneficial impact on producers and
handlers since it will allow tomato handlers to make additional
supplies of tomatoes available to meet consumer needs consistent with
crop and market conditions.
Based on these considerations, the Administrator of the AMS has
determined that this action will not have a significant economic impact
on a substantial number of small entities.
After consideration of all relevant material presented, including
the Committee's recommendation, and other available information, it is
found that this interim final 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 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: (1) This action provides an exemption to container
requirements currently in effect for tomatoes grown in Florida; (2)
Florida tomato handlers are aware of this action that was unanimously
recommended by the committee at a public meeting, and they will need no
additional time to take advantage of the exemption; (3) Florida tomato
shipments are currently in progress; and (4) this rule provides a 30-
day comment period and any comments received will be considered prior
to finalization of this rule.
List of Subjects in 7 CFR Part 915
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 966.323 is amended by revising paragraph (d)(1) and the
first sentence in paragraph (g) to read as follows:
Sec. 966.323 Handling regulation.
* * * * *
(d) Exemption--(1) For types. The following types of tomatoes are
exempt from these regulations: Elongated types commonly referred to as
pear shaped or paste tomatoes and including but not limited to San
Marzano, Red Top, and Roma varieties; cerasiform type tomatoes commonly
referred to as cherry tomatoes; hydroponic tomatoes; and greenhouse
tomatoes. Specialty packed red ripe tomatoes and yellow meated tomatoes
are exempt from the container net weight requirements specified in
paragraph (a)(3)(i) of this section, but must meet the other
requirements of this section.
* * * * *
(g) Definitions. Hydroponic tomatoes means tomatoes grown in
solution without soil; greenhouse tomatoes means tomatoes grown
indoors; and specialty packed red ripe tomatoes means tomatoes which at
the time of inspection are #5 or #6 color (according to color
classification requirements in the U.S. tomato standards) with their
calyx ends and stems attached and cell packed in a single layer
container.* * *
Dated: November 20, 1995.
Sharon Bomer Lauritsen,
Deputy Director, Fruit and Vegetable Division.
[FR Doc. 95-28697 Filed 11-22-95; 8:45 am]
BILLING CODE 3410-02-P
