[Federal Register Volume 64, Number 161 (Friday, August 20, 1999)]
[Rules and Regulations]
[Pages 45409-45413]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-21674]
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DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Part 966
[Docket No. FV98-966-2 IFR]
Tomatoes Grown in Florida; Partial Exemption From the Handling
Regulation for Producer Field-Packed Tomatoes
AGENCY: Agricultural Marketing Service, USDA.
ACTION: Interim final rule with request for comments.
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SUMMARY: This rule amends a prior interim final rule that changed the
handling requirements prescribed under the Florida tomato marketing
order (order). The order regulates the handling of tomatoes grown in
Florida and is administered locally by the Florida Tomato Committee
(committee). The prior interim final rule exempted shipments of
producer field-packed tomatoes from container net weight requirements
and the requirement that all tomatoes must be packed at registered
handler facilities. This rule exempts shipments of certain-sized
producer field-packed tomatoes from a maximum size requirement
specified in the handling regulation. These changes allow the industry
to pack a higher colored, riper tomato to meet the demand of the
expanding market for vine-ripe tomatoes. This facilitates the movement
of Florida tomatoes and should ultimately improve returns to producers.
DATES: Effective October 10, 1999; comments received by October 19,
1999 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 to the Docket Clerk, Fruit
and Vegetable Programs, AMS, USDA, room 2525-S, P.O. Box 96456,
Washington, DC 20090-6456; Fax: (202) 720-5698; or E-mail:
moab.docketclerk@usda.gov. 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: Christian D. Nissen, Regional Manager,
Southeast Marketing Field Office, F&V, AMS, USDA, P.O. Box 2276, Winter
Haven, Florida 33883-2276; telephone: (941) 299-4770, Fax: (941) 299-
5169; or George Kelhart, Technical Advisor, Marketing Order
Administration
[[Page 45410]]
Branch, F&V, AMS, USDA, room 2522-S, P.O. Box 96456, Washington, DC
20090-6456; telephone: (202) 720-2491, Fax: (202) 720-5698.
SUPPLEMENTARY INFORMATION: Small businesses may request information on
compliance with this regulation by contacting Jay Guerber, Marketing
Order Administration Branch, Fruit and Vegetable Programs, AMS, USDA,
room 2525-S, P.O. Box 96456, Washington, DC 20090-6456; telephone (202)
720-2491, Fax: (202) 720-5698, or E-mail: Jay.Guerber@usda.gov. You may
view the marketing agreement and order small business compliance guide
at the following web site: http://www.ams.usda.gov/fv/moab.html.
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 12988, 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 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.
Under the order, tomatoes produced in the production area and
shipped to fresh market channels outside the regulated area are
required to meet grade, size, inspection, and container requirements.
These requirements apply during the period October 10 through June 15
each year. Current requirements include a minimum grade of U.S. No. 2
and a minimum size of 2\9/32\ inches in diameter. Current pack and
container requirements outline the types of information that needs to
appear on a container, weight restrictions the packed containers must
meet, and that the containers must be packed at registered handler
facilities.
Section 966.52 of the order provides authority for the
modification, suspension, and termination of regulations. It includes
the authority to establish and modify pack and container requirements
for tomatoes grown in the defined production area and handled under the
order. Section 966.323 of the order's rules and regulations specifies
the handling regulation for Florida tomatoes.
This rule amends an interim final rule published in the Federal
Register on October 13, 1998 (63 FR 54556). That rule, which was based
on a unanimous recommendation from the committee made at a meeting on
September 11, 1998, changed the handling regulation under the order by
defining producer field-packed tomatoes and allowing handlers to ship
field-packed tomatoes exempt from net weight requirements. That rule
also exempted producer field-packed tomatoes from the requirement that
all tomatoes be packed at registered handler facilities. Currently,
those tomatoes are subject to all other provisions of the handling
regulation, including established grade, size, pack, and inspection
requirements. Those tomatoes are also subject to assessments.
This amended interim final rule, which is based on a unanimous
recommendation from the committee made at a meeting on May 26, 1999,
exempts shipments of certain-sized producer field-packed tomatoes from
a maximum diameter requirement specified in the handling regulation.
Specifically, field-packed tomatoes designated as size ``6 x 6'' may
be larger than 2\27/32\ inches in diameter. This rule makes a related
change to the labeling requirement for 6 x 6-sized field-packed
tomatoes. The field-packed tomato exemption is also revised for
clarity.
Producer field-packed tomatoes are tomatoes which at the time of
inspection are No. 3 color or higher (according to color classification
requirements in the U.S. tomato standards), that are picked and place-
packed in new containers in the field by a producer as defined in
Sec. 966.150 of the rules and regulations. The tomatoes are then
transferred to a registered handler's facility for final preparation
for market and for inspection.
Most tomatoes from Florida are packed and shipped at the mature
green stage. Shipments of mature green tomatoes represented
approximately 88 percent of total fresh shipments during the 1997-98
season. Tomatoes are picked and packed at the mature green stage to
facilitate handling. The vast majority of mature green tomatoes are
packed using a mechanized process. The tomatoes are brought to the
packing house where they are run across sizing equipment, and then are
packed in volume fill containers. At the mature green stage, the
tomatoes are firm and are able to tolerate the packing process. This
process is efficient and facilitates packing in volume.
However, when trying to pack a tomato that is more ripe and mature,
the process used to pack mature greens is not as effective. This is
because as the tomato begins to ripen it begins to soften. Tomatoes of
No. 3 color and above cannot tolerate the rigors of the mechanized
handling process. This packing process bruises and damages riper
tomatoes, increasing the volume of culls and those that fail inspection
for grade.
Under this exemption, producer field-packed tomatoes are only
handled once, when such tomatoes are picked and packed in the field.
Field-packed tomatoes are not subject to the rigors of a mechanical
process. Under this process, the tomatoes are still sized, cleaned, and
packed by hand. This process of picking and packing in the field makes
it substantially easier to pack a tomato of higher color and ripeness.
As per the requirement for all packed tomatoes for shipment outside the
regulated area, new boxes must be used. The tomatoes are delivered to a
registered handler for final preparation for market. The tomatoes are
inspected for grade, size, and proper pack after delivery to the
registered handler's facility.
However, since this exemption has been available and growers and
handlers have been utilizing it, a problem has emerged. Because the
tomatoes are packed in the field, the tomatoes are sized by hand, not
using the precision of sizing belts. While field packed tomatoes are
successfully meeting minimum size requirements, some lots are having
difficulty meeting the maximum size requirements as specified for the 6
x 6 size designation.
Currently, Sec. 966.323(a)(2)(i) specifies that all tomatoes packed
by a registered handler must meet a minimum size requirement of 2\9/32\
inches in diameter. That section also requires that all such
[[Page 45411]]
tomatoes must be sized with proper equipment in one of three specified
ranges of diameter. For example, tomatoes designated as ``6 x 7''
must be a minimum of 2\9/32\ inches in diameter and a maximum of 2\19/
32\ inches in diameter. Tomatoes designated as ``6 x 6'' must be a
minimum of 2\17/32\ inches in diameter and a maximum of 2\27/32\ inches
in diameter. Tomatoes designated as ``5 x 6'' must be a minimum of
2\25/32\ inches in diameter with no maximum size requirement. Finally,
to allow for variations incident to proper sizing, not more than a
total of 10 percent, by count, of the tomatoes in the lot may be
smaller than the specified minimum diameter or larger than the maximum
diameter.
Since the handling regulation was changed in October 1998 to exempt
field-packed tomatoes from certain handling requirements, some 6 x 6-
sized lots have failed inspection due to oversized tomatoes in the
pack. As stated above, 6 x 6-sized lots of tomatoes must meet both
minimum and maximum size requirements, within specified tolerances.
Tomatoes that are run over a sizing belt in a packing house have little
difficulty in meeting these requirements. However, producers packing
tomatoes in the field must use hand-sizers. It is relatively easy to
pick to a minimum size. However, it is much more difficult to pick
tomatoes within a range of fractions of an inch.
Presenting a packed lot of tomatoes for inspection, and having it
fail is costly. The handler can either find an outlet other than the
fresh market for the tomatoes or rework the lot so it passes
inspection. In the case of field packed tomatoes, reworking a lot is
substantially more difficult. The tomatoes cannot be dumped then run
across the machinery again to ensure that they meet inspection, but
must be sorted through by hand. This is extremely time-consuming, and
because the fruit is ripe, can cause additional bruising. In most
cases, it is one or two tomatoes in a box that cause it to fail for
size. Thus, the committee met in May 1999 and recommended this change
for producer field-packed tomatoes.
The committee recommended that 6 x 6-sized producer field-packed
tomatoes be exempt from the 2\27/32\ inch maximum diameter requirement
specified in Sec. 966.323(a)(2)(i) of the handling regulation. This
change will allow for additional oversized tomatoes, without the lot
failing for size. While this change does allow for additional larger
tomatoes to be included in the 6 x 6 pack, there is still a
distinction between it and the 5 x 6. The 6 x 6 pack is an
opportunity to sell a smaller tomato. This change provides some
additional flexibility to address sizing problems relating to packing
in the field. The 5 x 6 tomato is still the premium size, demanding
the higher price. For this reason, the vast majority of tomatoes that
meet the size requirements for 5 x 6 will continue to be packed in a
5 x 6 container. Also, according to the committee, buyers should not
object to oversized fruit in the 6 x 6 pack because they have the
option of grading it out for a premium product or passing it on to
their customers as a larger tomato at a less expensive price.
The committee also recommended a related change in the labeling
requirement specified in Sec. 966.323(a)(2)(iii) of the handling
regulation. Currently, that section requires that only ``6 x 7,'' ``6
x 6,'' or ``5 x 6'' be used to indicate the respective size
designation on containers of tomatoes. The committee recommended that
shipments of 6 x 6-sized producer field-packed tomatoes be marked as
``6 x 6 and larger'' to more accurately reflect the contents of the
container which could include 5 x 6-sized tomatoes. The words ``and
larger'' will not be required on 5 x 6-sized field-packed tomatoes
because that is the largest designated size defined by a minimum
diameter and includes all sizes above that minimum.
In evaluating alternatives to this change, such as increasing the
percentage tolerance for oversize, it was concluded that the changes
provided in this amended interim final rule are the better and more
effective way to accomplish the committee's goal. Containers will be
marked ``6 x 6 and larger'' which will separate them from the
standard 6 x 6 and will tell buyers that the package includes some
larger tomatoes. And, as stated earlier, while this does provide for
additional larger tomatoes to be packed in a 6 x 6 pack, it should
not blur the distinction between a 6 x 6 and 5 x 6.
The committee continues to focus on ways to be competitive, develop
new markets, and increase producer returns. The October 1998 changes
which added a definition of field-packed tomatoes to the handling
regulation, along with certain exemptions for such tomatoes, have
provided the industry with more flexibility and additional marketing
opportunities. The committee believes that the availability of producer
field-packed tomatoes will increase the volume of vine-ripe tomatoes
available from Florida. This has been a market that has been expanding
and not traditionally served by much volume from the Florida tomato
industry. The October 1998 changes have allowed producers to harvest
tomatoes that might otherwise have been left in the field. Handlers may
be willing to pay a higher price for producer field-packed tomatoes
which, when combined with additional tomato sales, should increase
returns to producers. The additional exemptions for field-packed
tomatoes designated as size 6 x 6 recommended by the committee in May
1999 will provide even more opportunities for the Florida tomato
industry to market such tomatoes.
Section 8e of the Act requires that whenever grade, size, quality
or maturity requirements are in effect for certain commodities under a
domestic marketing order, including tomatoes, imports of that commodity
must meet the same or comparable requirements. However, the Act does
not authorize the imposition of pack and container requirements on
imports, when such requirements are in effect under a domestic
marketing order. Therefore, no change is necessary in the tomato import
regulation as a result of this action.
Pursuant to requirements set forth in the Regulatory Flexibility
Act (RFA), the Agricultural Marketing Service (AMS) has considered the
economic impact of this action 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. Thus, both statutes have small
entity orientation and compatibility.
There are approximately 65 handlers of Florida tomatoes who are
subject to regulation under the order and approximately 75 tomato
producers in the regulated area. Small agricultural service firms,
which includes handlers, have been defined by the Small Business
Administration (SBA) as those having annual receipts of less than
$5,000,000, and small agricultural producers are defined as those
having annual receipts of less than $500,000 (13 CFR 121.601).
Based on available industry and committee data, the average annual
f.o.b. price for fresh Florida tomatoes during the 1997-98 season was
around $9.11 per 25 pound equivalent, and total fresh shipments for the
1997-98 season are estimated at 47.6 million 25 pound equivalent
cartons of tomatoes.
[[Page 45412]]
Committee data indicates that approximately 20 percent of the Florida
handlers handle 80 percent of the total volume shipped outside the
regulated area. Based on this information, the shipment information for
the 1997-98 season, and the 1997-98 season average price, the majority
of handlers would be classified as small entities as defined by the
SBA. The majority of producers of Florida tomatoes also may be
classified as small entities.
This rule amends a prior interim final rule that changed the
handling regulation specified in Sec. 966.323 under the order. The
prior interim final rule was published in the Federal Register on
October 13, 1998 (63 FR 54556). That rule modified Sec. 966.323 by
adding a definition for producer field-packed tomatoes, and exempting
such tomatoes from container net weight requirements and the
requirement that all tomatoes must be packed at registered handler
facilities.
In addition, this amended interim final rule exempts shipments of
field-packed tomatoes designated as size 6 x 6 from a maximum
diameter requirement of 2\27/32\ inches specified in
Sec. 966.323(a)(2)(i). This rule makes a related change in the labeling
requirement specified in Sec. 966.323(a)(2)(iii) whereby shipments of 6
x 6-sized producer field-packed tomatoes must be marked as ``6 x 6
and larger'' to more accurately reflect the contents of the container.
Authority for these changes is provided in Sec. 966.52 of the order.
This amendment with its additional flexibility is expected to have
a positive impact on affected entities. The committee believes that
allowing ripe tomatoes to be place packed in the field has enabled the
Florida tomato industry to meet a strong and growing consumer demand
for red, mature tomatoes. This has facilitated the movement of Florida
tomatoes and helped to improve producer returns.
This rule will provide additional handling flexibility and cost
savings. While field packed tomatoes are successfully meeting minimum
size requirements, some lots are having difficulty meeting the maximum
size requirements as specified for the 6 x 6 size designation.
Tomatoes designated as ``6 x 6'' must be a minimum of 2\17/32\ inches
in diameter and a maximum of 2\27/32\ inches in diameter. Tomatoes that
are run over a sizing belt in a packing house have little difficulty in
meeting these requirements. However, producers packing tomatoes in the
field must use hand-sizers. It is relatively easy to pick to a minimum
size. However, it is much more difficult to pick tomatoes within a
range of fractions of an inch. Presenting a packed lot of tomatoes for
inspection, and having it fail is costly. The handler can either find
an outlet other than the fresh market for the tomatoes or rework the
lot so it passes inspection. In the case of field packed tomatoes,
reworking a lot is substantially more difficult. The tomatoes cannot be
dumped then run across the machinery again to ensure that they meet
inspection, but must be sorted through by hand. This is costly and
time-consuming, and because the fruit is ripe, can cause additional
bruising. This change will allow for additional oversized tomatoes,
without the lot failing for size, providing additional flexibility and
reducing reworking costs.
These changes are intended to provide additional flexibility for
all those covered under the order. The opportunities and benefits of
this rule are expected to be equally available to all tomato handlers
and producers regardless of their size of operation. These changes have
a beneficial impact on producers and handlers since tomato handlers can
make additional supplies of tomatoes available to meet consumer needs
consistent with crop and market conditions.
Regarding alternatives to the recommended action, the committee
concluded that providing certain exemptions for field-packed tomatoes
would allow the Florida tomato industry to meet a growing consumer
demand for vine-ripe tomatoes. In addition, continuing to require 6 x
6-sized field-packed tomatoes to meet a maximum size requirement would
discourage producers from packing such fruit because some of the packs
would fail inspection. In evaluating alternatives to this change, such
as increasing the percentage tolerance for oversize, it was concluded
that the changes provided in this amended interim final rule are the
better and more effective way to accomplish the committee's goal.
Containers will be marked ``6 x 6 and larger'' which will separate
them from the standard 6 x 6 and will tell buyers that the package
includes some larger tomatoes. And, as stated earlier, while this does
provide for additional larger tomatoes to be packed in a 6 x 6 pack,
it does not blur the distinction between a 6 x 6 and 5 x 6. Thus,
the recommended change was determined to be the most viable course of
action.
This rule will not impose any additional reporting or recordkeeping
requirements on either small or large 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 sectors. In addition, the Department has not identified any
relevant Federal rules that duplicate, overlap or conflict with this
rule.
Further, the committee's meetings on September 11, 1998, and May
23, 1999, were widely publicized throughout the tomato industry and all
interested persons were invited to attend the meetings and participate
in committee deliberations. Like all committee meetings, the September
1998 and May 1999 meetings were public meetings and all entities, both
large and small, were able to express their views on this issue.
Finally, interested persons are invited to submit information on the
regulatory and informational impacts of this action on small
businesses.
As previously stated, an interim final rule regarding field-packed
tomatoes was published in the Federal Register on October 13, 1998 (63
FR 54556). A 60-day comment period was provided to allow interested
persons to respond to the rule. Copies of the rule were mailed by
committee staff to all committee members and tomato handlers. In
addition, the rule was made available through the Internet by the
Office of the Federal Register. Four comments were received regarding
the rule. These comments and any submitted regarding this amendment
will be addressed in the rule finalizing this action. This interim
final rule is effective October 10, 1999. This date is the beginning of
the new Florida tomato shipping season.
After consideration of all relevant material presented, including
the committee's recommendations and other information, it is found that
this rule, as hereinafter set forth, will tend to effectuate the
declared policy of the Act.
This rule invites comments on changes to the handling requirements
currently prescribed under the Florida tomato marketing order. Any
comments received will be considered prior to finalization of this
rule.
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 because: (1) These changes relax current requirements; (2) the
1999-2000 Florida tomato season begins October 10; (3) the committee
unanimously recommended these changes at public meetings and interested
parties had an opportunity to provide input; and (4) this rule provides
a 60-day comment period and any comments received will be considered
prior to finalization of this rule.
[[Page 45413]]
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 966.323 is amended by revising the last sentence of
paragraph (d)(1) to read as follows:
Sec. 966.323 Handling regulation.
* * * * *
(d) Exemption. (1) * * * Producer field-packed tomatoes must meet
all of the requirements of this section except for the following: the
container net weight requirements specified in paragraph (a)(3)(i) of
this section; the requirement that each container or lid shall be
marked to indicate the designated net weight specified in paragraph
(a)(3)(ii) of this section; the requirement that all containers must be
packed at registered handler facilities as specified in paragraph
(a)(3)(ii) of this section; the requirement that such tomatoes
designated as size 6 x 6 must meet the maximum diameter requirement
specified in paragraph (a)(2)(i) of this section and the labeling
requirement specified in paragraph (a)(2)(iii) of this section:
Provided, That ``6 x 6 and larger'' is used to indicate the listed
size designation on containers.
* * * * *
Dated: August 17, 1999.
Eric M. Forman,
Deputy Administrator, Fruit and Vegetable Programs.
[FR Doc. 99-21674 Filed 8-19-99; 8:45 am]
BILLING CODE 3410-02-P
