[Federal Register Volume 61, Number 210 (Tuesday, October 29, 1996)]
[Rules and Regulations]
[Pages 55729-55731]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-27724]



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 Rules and Regulations
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  Federal Register / Vol. 61, No. 210 / Tuesday, October 29, 1996 / 
Rules and Regulations  

[[Page 55729]]



DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 966

[Docket No. FV96-966-2 IFR]


Tomatoes Grown in Florida; Partial Exemption From the Handling 
Regulation for Single Layer and Two Layer Place Packed Tomatoes

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Interim final rule with request for comments.

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SUMMARY: This interim final rule provides an exemption to the pack and 
container requirements currently prescribed under the Florida tomato 
marketing order. The marketing order regulates the handling of tomatoes 
grown in Florida and is administered locally by the Florida Tomato 
Committee (Committee). This rule exempts shipments of single layer and 
two layer place packed tomatoes from the container net weight 
requirements under the marketing order. This rule will facilitate the 
movement of single layer and two layer place packed tomatoes and should 
improve returns to producers of Florida tomatoes.

DATES: Effective October 30, 1996; comments received by November 29, 
1996 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, P.O. Box 
96456, Washington, DC 20090-6456, Fax # (202) 720-5698. 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, Marketing Specialist, 
Southeast Marketing Field Office, Fruit and Vegetable Division, 
AMS, USDA, P.O. Box 2276, Winter Haven, Florida 33883-2276; 
telephone: (941) 299-4770, or FAX: (941) 299-5169; or Mark Slupek, 
Marketing Order Administration Branch, F&V, AMS, USDA, room 2525-S, 
P.O. Box 96456, Washington, DC 20090-6456: telephone: (202) 205-
2830, or FAX: (202) 720-5698. Small businesses may request 
information on compliance with this regulation by contacting: Jay 
Guerber, Marketing Order Administration Branch, Fruit and Vegetable 
Division, AMS, USDA, P.O. Box 96456, room 2525-S, Washington, DC 
20090-6456; telephone (202) 720-2491; 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 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 date of the entry of the ruling.
    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.
    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 order and approximately 90 producers of tomatoes 
in the regulated area. Small agricultural service firms, which include 
handlers, 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.
    This rule exempts shipments of single layer and two layer place 
packed tomatoes from container net weight requirements currently 
specified under the order. Place packing requires a certain number of 
tomatoes to fill a container, making it difficult to meet established 
weight requirements. Tomatoes are packed in one or two layers, which 
some industry members believe is superior to the bulk container pack. 
Place packing is labor intensive, with most of the packing being done 
by hand, but it allows handlers to ship higher colored, more mature 
tomatoes. Place packed tomatoes, which are shipped from many domestic 
and foreign growing areas, currently maintain a strong market share.
    This exemption is the same as granted for specialty packed red ripe 
tomatoes and yellow meated tomatoes. This exemption appears to be the 
most viable alternative to present requirements because it facilitates 
the use of place

[[Page 55730]]

packing in Florida, and provides handlers an additional shipping 
option. Also, while we lack sufficient information necessary to 
quantify these benefits at this time, we believe that this exemption 
will be beneficial to the industry. After the industry operates under 
the relaxed requirements for a time, additional information will be 
available. Because the exemption and the packing techniques required 
affect both small and large handlers equally, both will benefit 
proportionally from the exemption. Therefore, the AMS has determined 
that this action will not have a significant economic impact on a 
substantial number of small entities. Interested persons are invited to 
submit information on the regulatory and informational impacts of this 
action on small businesses.
    Under the Florida tomato marketing order, tomatoes produced in the 
production area and shipped to fresh market channels are required to 
meet certain handling requirements. These requirements include minimum 
grade, size, and pack and container specifications.
    This interim final rule revises Sec. 966.323 paragraph (d) of the 
rules and regulations to make single layer and two layer place packed 
tomatoes exempt from the current net weight requirements. This 
exemption is the same as granted for specialty packed red ripe tomatoes 
and yellow meated tomatoes. The exemption is from net weight only. The 
tomatoes are still subject to all other provisions of the handling 
regulation, including established grade, size, pack, and inspection 
requirements. The Committee met September 5, 1996, and unanimously 
recommended this change.
    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) of the order's rules and 
regulations defines the net weight container requirements. These 
requirements specify that all tomatoes be packed in containers of 10, 
20, and 25 pound designated net weights. The net weight cannot be less 
than the designated weight or exceed the designated weight by more than 
two pounds.
    Most tomatoes from Florida are shipped at the mature green stage, 
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. This procedure, by 
design, works well when packing to meet a specified weight.
    In contrast, it is very difficult to pack to a specified weight 
when place packing in a single layer or two layer pack. Place packing a 
container requires a fixed number of tomatoes to fill the container. In 
place packing, the tomatoes are packed in layers, with the fill 
determined by the size of the tomato, dimensions of the container, and 
the way the tomatoes are positioned in the box. To facilitate this type 
of pack, most handlers use plastic cells, cardboard partitions, or 
trays to position the tomatoes. The majority of place packed tomatoes 
are sold by count per container rather than by weight.
    Throughout the harvesting season, the weight of equal size tomatoes 
may vary dramatically. When tomatoes are place packed into a container, 
the handler cannot add extra tomatoes if the container's net weight is 
light. Because the tomatoes are packed in layers, when a layer is 
complete there are no spaces for adding additional tomatoes. Similarly, 
when the tomatoes are heavy, the handler cannot remove a tomato to meet 
a maximum weight requirement. Buyers expect a full pack with no spaces, 
and a missing tomato could result in a loose pack which could allow 
shifting or bruising during transport.
    The Committee made this recommendation to overcome this problem and 
allow the industry to develop this market. This change allows the 
industry to place pack single layer and two layer packs exempt from the 
current net weight requirements. However, all other packs must continue 
to meet the requirements.
    Single layer and two layer place packed tomatoes are common in 
today's markets. Many tomato growing areas within the United States 
utilize them, as do most shippers of Mexican tomatoes. Buyer demand for 
this type of container is well established. Tomatoes packed in single 
layer and two layer containers have a strong market share. Some 
Committee members stated that this pack provides a superior 
presentation of the tomatoes when compared to the bulk net weight 
container. Committee members believe that Florida tomato shippers can 
compete well in this market.
    Another advantage of the place pack is that a more mature tomato 
can be shipped if desired. The Committee expressed interest in 
beginning to ship a higher colored, more mature tomato. Volume packing 
such a tomato could cause bruising or other damage. Place packing in 
single layer or two layer packs would prevent damage and help a mature 
tomato arrive at market in good condition.
    The Committee is focusing on ways to continue to be competitive, 
develop new markets, and increase grower returns. The Committee 
believes this change will provide the industry with more flexibility 
and additional marketing opportunities.
    Section 8(e) 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. Since the Act 
does not authorize the imposition of pack or container requirements on 
imports, even when such requirements are in effect under a domestic 
marketing order, no change is necessary in the tomato import 
regulations as a result of this action.
    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.
    This rule invites comments on an exemption to the pack and 
container 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 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 comply with the exemption requirements; (3) Florida 
tomato shipments begin October 10; 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 966

    Marketing agreements, Reporting and recordkeeping requirements, 
Tomatoes.

    For the reasons set forth in the preamble, 7 CFR part 966 is 
amended as follows:

[[Page 55731]]

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) to read 
as follows:


Sec. 966.323  Handling regulations

* * * * *
    (d) Exemption. (1) For types. The following types of tomatoes are 
exempt from the regulations in this part: 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, yellow 
meated tomatoes, and single layer and two layer place packed 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.
* * * * *
    Dated: October 22, 1996.
Sharon Bomer Lauritsen,
Acting Director, Fruit and Vegetable Division.
[FR Doc. 96-27724 Filed 10-28-96; 8:45 am]
BILLING CODE 3410-02-P