[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: 
[email protected]. 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.G[email protected]. 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