[Federal Register Volume 65, Number 34 (Friday, February 18, 2000)]
[Rules and Regulations]
[Pages 8247-8253]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-3875]


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DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 966

[Docket No. FV98-966-2 FIR]


Tomatoes Grown in Florida; Partial Exemption From the Handling 
Regulation for Producer Field-Packed Tomatoes

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Final rule.

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SUMMARY: The Department of Agriculture (Department) is adopting, as a 
final rule, with a change, the provisions of an amended interim final 
rule changing 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). This rule continues to exempt shipments 
of producer field-packed tomatoes from the container net weight 
requirements and the requirement that all tomatoes must be packed at 
registered handler facilities. This rule also continues to exempt 
shipments of certain-sized producer field-packed tomatoes from a

[[Page 8248]]

maximum size requirement specified in the handling regulation. 
Continuation of these exemptions will allow the industry to pack a 
higher colored, riper tomato to meet the demand of the expanding market 
for vine-ripe tomatoes, facilitate the movement of Florida tomatoes, 
and should continue to improve returns to producers.

EFFECTIVE DATE: March 20, 2000.

FOR FURTHER INFORMATION CONTACT: Christian D. Nissen, Southeast 
Marketing Field Office, Marketing Order Administration Branch, F&V, 
AMS, USDA, P.O. Box 2276, Winter Haven, Florida 33883-2276; telephone: 
(863) 299-4770, Fax: (863) 299-5169; or George Kelhart, Technical 
Advisor, 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.
    Small businesses may request information on complying with this 
regulation by contacting Jay Guerber, Marketing Order Administration 
Branch, Fruit and Vegetable Programs, AMS, USDA, P.O. Box 96456, room 
2525-S, Washington, DC 20090-6456; telephone (202) 720-2491, Fax: (202) 
720-5698, or E-mail: [email protected].

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 marketing agreement and order are 
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 need to 
appear on a container, weight restrictions the packed containers must 
meet, and that the containers must be packed at a registered handler's 
facility.
    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.
    The order's handling regulation, Sec. 966.323, specifies the 
regulations for Florida tomatoes. Section 966.323(a)(3)(i) requires 
that certain types of tomatoes packed by registered handlers be packed 
in containers of 10, 20, and 25 pounds designated net weights. The net 
weight cannot be less than the designated weight or exceed the 
designated weight by more than two pounds. Section 966.323(a)(3)(ii) 
currently requires that certain types of tomatoes be packed by 
registered handlers in containers that are marked with the designated 
net weight and with the name and address of the registered handler, and 
that such containers must be packed at the registered handler's 
facilities.
    This rule continues in effect changes to the handling regulation 
under the order. This rule continues to define producer field-packed 
tomatoes and allows handlers to ship field-packed tomatoes exempt from 
the net weight requirements. This rule also continues to exempt 
producer field-packed tomatoes from the requirement that all tomatoes 
be packed at a registered handler's facility.
    In addition, this rule continues to exempt 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 continues to make a related change 
to the labeling requirement for 6 x 6-sized field-packed tomatoes. The 
field-packed tomato exemption also was revised for clarity, and is 
continued in effect.
    These tomatoes will still be subject to all other provisions of the 
handling regulation, including established grade, size, container, 
pack, and inspection requirements. These tomatoes also will continue to 
be subject to assessments. The committee met September 11, 1998, and 
May 26, 1999, and unanimously recommended these changes.
    In its discussion of this rule, the committee recognized that the 
market for red, ripe tomatoes or vine-ripes is continuing to grow. 
Place packed vine-ripe tomatoes are shipped from many foreign and 
domestic growing areas, and currently maintain a strong and growing 
market share. Committee members stated that the popularity of the red, 
ripe tomato is evident in the increasing popularity of greenhouse and 
hydroponic tomatoes. These tomatoes tend to be marketed at a red, 
mature stage. Customer studies have shown that consumers prefer 
tomatoes that are of high color, and that are mature and ready to eat. 
According to a committee study, retailers believe that the vine-ripe 
tomato is the tomato of the future. The committee stated that this is 
the fastest growing market segment.

Field-Packed Tomatoes Defined

    Currently, the majority of Florida tomatoes are shipped at the 
mature green stage. Vine-ripe tomatoes represent only about 15.5 
percent of total fresh shipments (8,791,389 of 56,706,685 25-pound 
containers shipped during the 1998-99 season). In an effort to put the 
industry in a more advantageous position to take advantage of this 
growing market, and to improve returns to producers, the committee 
recommended changes to the order's handling regulation. These changes 
were recommended to help facilitate the movement of more vine-ripe 
tomatoes from Florida. To accomplish this, the committee recommended 
changes to the regulations to define a producer field-packed tomato and 
provide exemptions for such tomatoes to facilitate their movement. 
Producer field-packed tomatoes are defined as 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

[[Page 8249]]

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 the registered handler's facilities for final 
preparation for market and for inspection.
    Shipments of mature green tomatoes represented approximately 84.5 
percent of total fresh shipments during the 1998-99 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 washed, 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 handle the packing process. This is an efficient 
process that 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 handle the rigors of the mechanized 
handling process. This packing process bruises and damages more mature 
tomatoes, increasing the volume of culls and those that fail inspection 
for grade.
    To provide a better way to handle mature tomatoes, and to provide 
for a greater volume of such tomatoes from Florida, the committee 
recommended developing a producer field-packed tomato. To facilitate 
the handling of this tomato, the committee recommended that it be 
exempt from certain parts of the handling regulations. This rule 
continues to exempt producer field-packed tomatoes from the requirement 
that tomatoes be packed at a registered handler's facility, and the 
designated net weight requirements. It also continues in effect the 
requirement that 6  x  6-sized producer field-packed tomatoes be exempt 
from the 2\27/32\ inch maximum diameter.

Field-Packed Tomatoes Exempt From Being Packed at Registered 
Handler Facilities

    Section 966.323(a)(3)(ii) specifies, in part, that all tomatoes are 
to be packed at a registered handler's facilities. This rule continues 
to exempt producer field-packed tomatoes from this requirement. By 
providing this exemption, the number of times the tomato is handled is 
reduced. Mature green tomatoes can withstand the multiple handling 
involved in this process, a more mature tomato cannot. Under this 
exemption, the producer field-packed tomato only needs to be handled 
once, when it is picked and packed in the field. It is not subjected to 
the rigors of a mechanical process. Under the producer field-packed 
process, the tomatoes are 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 maturity. All tomatoes for 
shipment outside the regulated area must be packed in new boxes. 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.

Field-Packed Tomatoes Exempt From Net Weight Requirements

    This rule also continues to exempt producer field-packed tomatoes 
from the net weight requirements specified in the rules and 
regulations. Section 966.323(a)(3)(i) currently requires that certain 
types of tomatoes packed by registered handlers be packed in containers 
of 10, 20, and 25 pounds designated net weights. The net weight cannot 
be less than the designated weight or exceed the designated weight by 
more than two pounds.
    By definition, producer field-packed tomatoes will be place packed 
in the field. 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.
    Most tomatoes shipped in 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. Mature green 
tomatoes are not as susceptible to bruising and other damage during 
packing and transport as are producer field-packed tomatoes. If volume 
fill was used to pack producer field-packed tomatoes, serious product 
bruising would result which would detract from the appearance and 
marketability of these tomatoes.
    However, place packing does not lend itself well to meeting a 
required net weight. The tomatoes have to be properly sized and placed 
to fit snugly in the container. During the harvesting season, the 
weight of equal size tomatoes may vary dramatically. When tomatoes are 
place-packed, the handler cannot add extra tomatoes when the container 
weight is light. Because the tomatoes are packed in layers, when a 
layer is complete there are no spaces for additional tomatoes. 
Similarly, when the tomatoes are heavy, the handler cannot remove a 
tomato to meet a 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 and would be a marketing 
problem. To overcome this problem, the committee recommended that 
shipments of producer field-packed tomatoes as defined herein, be 
exempt from the container net weight requirements of the rules and 
regulations.

``6  x  6'' Field-Packed Tomatoes Maximum Size Requirement 
Exemption

    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 were having difficulty meeting the maximum size requirements 
as specified for the 6  x  6 size designation.
    Currently, section 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 
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\. Tomatoes, other than producer field-packed 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 variation 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 failed inspection due to oversized tomatoes in the pack. As 
stated above, 6  x  6-sized lots of tomatoes previously had to meet 
both minimum and maximum size requirements, within specified 
tolerances. Tomatoes that are run over a sizing belt in a packing house

[[Page 8250]]

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 the 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. The 
amended interim final rule published on August 20, 1999 (64 FR 45409) 
implemented the recommendation and this action continues to 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.

``6 x 6'' Field-Packed Tomatoes Must Be Labeled as ``6 x 6 and 
Larger''

    The committee also recommended a related change in the labeling 
requirement specified in Sec. 966.323(a)(2)(iii) of the handling 
regulation. Previously, that section required 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'' are not 
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 the minimum.
    In evaluating alternatives to this change, such as increasing the 
percentage tolerance for oversize, it was concluded that the changes 
provided in the 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 grower returns. The committee believes these 
changes will continue to provide the industry with more flexibility and 
additional marketing opportunities.
    The committee continues to believe that 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 committee also continues to believe that this change will allow 
producers to harvest tomatoes that might otherwise have been left in 
the field. There is also an indication that handlers will be willing to 
pay a higher price for producer field-packed tomatoes. The committee 
continues to believe that the higher prices combined with additional 
tomato sales should continue to increase returns to producers.
    Other changes are continued by this rule. Yellow meated tomatoes, 
specialty packed red ripe tomatoes, single layer and two layer place 
packed tomatoes, and now producer field-packed tomatoes as well, are 
exempt from the container net weight requirement in 
Sec. 966.323(a)(3)(i). In its discussions, the committee said that 
Sec. 966.323(a)(3)(ii) states that each container or lid shall be 
marked to indicate the designated net weight. They said that in the 
past, there had been some confusion as to how this applies to those 
tomatoes exempt from net weight. The committee voted unanimously to 
exempt those tomatoes exempt from net weight from the requirement that 
net weight appear on the container or lid to rectify this problem. This 
rule continues to make this change. Also, the deletion of unnecessary 
language in the first sentence of Sec. 966.323(d)(1) continues in 
effect.
    In addition, a minor change is being made in Sec. 966.140 of the 
order's rules and regulations. The change removes the reference to the 
form number (FV-418) for the transfer clearance receipt. This form may 
accompany truck shipments of tomatoes, in place of an inspection 
certificate. This is a Florida State form, not a Committee form, used 
in verifying that the load of tomatoes had been previously inspected 
and certified. The form now has a different number from that referenced 
in Sec. 966.140 and the number could change again without the 
committee's knowledge. Thus, the reference to the form number is being 
removed.
    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 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.

Final Regulatory Flexibility Analysis

    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 final 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 include handlers, have been defined by the Small Business 
Administration (SBA) as those

[[Page 8251]]

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 the industry and committee data, the average annual f.o.b. 
price for fresh Florida tomatoes during the 1998-99 season was around 
$7.40 per 25-pound carton or equivalent, and total fresh shipments for 
the 1998-99 season were 56,706,685 25-pound equivalent cartons of 
tomatoes. Based on this information, the shipment information for the 
1998-99 season, and the 1998-99 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.
    Under Sec. 966.52 of the Florida tomato marketing order, the 
committee, among other things, has authority to establish and modify 
pack and container requirements for tomatoes grown in the defined 
production area and handled under the order. This rule continues to 
define a producer field-packed tomato and provide exemptions for such 
tomatoes from the net weight requirements and the requirements that 
tomatoes be packed at a registered handler's facilities. This rule 
continues to allow for the place packing of ripe tomatoes in the field. 
Vine ripe tomatoes represent only about 15.5 percent of total fresh 
shipments (8,791,389 of 56,706,685 25-pound containers shipped during 
the 1998-99 season).
    In addition, this rule continues to exempt 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 continues to make 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. It also 
continues to clarify net weight labeling requirements. Authority for 
these changes also is provided in Sec. 966.52 of the order.
    The committee recommended these changes to improve the marketing of 
Florida tomatoes and follow the trend of increased demand for red, 
mature tomatoes. This trend is in response to a strong consumer demand 
for such tomatoes. This rule continues to allow the industry to pack a 
higher colored, riper tomato to meet the demand of the expanding market 
for vine-ripe tomatoes. This action will continue to facilitate the 
movement of Florida tomatoes and should continue to improve returns to 
producers.
    Producer field-packed tomatoes are defined as 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 the registered handler's facilities for final 
preparation for market and for inspection.
    This rule will continue to have a positive impact on affected 
entities. The changes were recommended to provide additional 
flexibility in the packing of tomatoes of higher color and maturity.
    Providing an exemption for producer field-packed tomatoes from the 
requirement that tomatoes be packed at a registered handler's 
facilities, reduces the number of times the tomato is handled. It also 
facilitates the packing of producer field-packed tomatoes free from the 
mechanized process of grading and sizing used for mature green 
tomatoes. Tomatoes of No. 3 color and above cannot handle the rigors of 
the mechanized handling process. This packing process bruises and 
damages more mature tomatoes, increasing the volume of culls and those 
that fail inspection for grade. By providing this exemption, the 
producer field-packed tomato will only be handled once, when it is 
picked and packed in the field. This exemption will continue to make it 
substantially easier to pack a tomato of higher color and maturity in 
the field.
    The exemption from the net weight requirements will continue to 
allow producer field-packed tomatoes to be place packed. It is very 
difficult to pack to a specified weight when place packing containers. 
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. The 
majority of place packed tomatoes are sold by count per container 
rather than by weight. However, the place pack method of packaging does 
not lend itself well when packing to meet a required net weight.
    During the harvesting season, the weight of equal size tomatoes may 
vary dramatically. If the producer field-packed tomatoes are light in 
weight, handlers cannot add extra tomatoes to meet net weight because 
the pack is full, or if the tomatoes are heavier than normal, removing 
a tomato to meet net weight would mean leaving an empty space. 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 
and would be a marketing problem. To overcome this problem, the 
committee recommended that shipments of producer field-packed tomatoes 
as defined herein, be exempt from the container net weight requirements 
of the rules and regulations, and this action continues that exemption.
    Continuing to provide an exemption for field-packed tomatoes 
designated as size 6  x  6 from a maximum diameter requirement of 2\27/
32\ inches will allow handlers of field-packed tomatoes to successfully 
meet minimum size requirements. Currently, tomatoes (other than those 
field-packed by producers) 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 continue 
to allow for additional oversized tomatoes, without the lot failing for 
size, providing additional flexibility and reducing reworking costs.
    This rule also continues to make 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. 
The clarification of container net weight labeling also is continued in 
effect. Authority for these changes is provided in Sec. 966.52 of the 
order.
    In an effort to put the industry in a more advantageous position to 
take advantage of this growing market, and to improve returns to 
producers, the committee recommended these changes. According to 
committee funded

[[Page 8252]]

research, retailers consider vine-ripe tomatoes to be the tomato type 
of the future. The vine-ripe tomato market has been expanding and it is 
a market where the Florida tomato industry has room to grow and expand 
its market share. The committee continues to believe that producer 
field-packed tomatoes will continue to increase the volume of vine-ripe 
tomatoes available from Florida and that it will allow producers to 
harvest tomatoes that might otherwise have been left in the field. 
There is also an indication that handlers will be willing to pay a 
higher price for producer field-packed tomatoes. The higher prices 
combined with additional tomato sales would continue to increase 
returns to producers.
    There are some additional costs associated with packing in the 
field. Picking, grading, and sizing by hand is more time consuming and 
costly than by machine. However, there are indications that producer 
field-packed tomatoes will command a higher price as the market grows. 
Also, the regulated industry is not required to use this exemption. 
Therefore, the additional costs are voluntary.
    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 growers regardless of their size of operation. This action will 
continue to 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.
    Regarding alternatives to the recommended actions, the committee 
concluded that providing certain exemptions for shipments of field-
packed tomatoes will allow the Florida tomato industry to meet a 
growing consumer demand for vine-ripe tomatoes. The exemptions from the 
net weight container requirement and the requirement that all tomatoes 
must be packed at registered handler facilities have been working well. 
In addition, the committee concluded that continuing to require 6  x  
6-sized field-packed tomatoes to meet a maximum size requirement could 
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 the amended interim final rule were the 
better and more effective way to accomplish the committee's goal. 
Containers are marked ``6  x  6 and larger'' which separates them from 
the standard 6  x  6 and tells 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 changes 
regarding the field packing of 6  x  6 and larger tomatoes and marking 
the containers were determined to be the most viable course of action.
    A minor change in Sec. 966.140 of the order's rules and regulations 
is also being made to remove the reference to the form number for the 
transfer clearance receipt which accompanies truck shipments of 
tomatoes. This is a Florida State form, not a committee form. The form 
now has a different number from that referenced and the number could 
change again without the committee's knowledge. Removing the reference 
to the number will prevent this from happening. Further, a reference to 
the form number is not necessary.
    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 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 11, 1998, and May 23, 1999, meetings 
were public meetings and all entities, both large and small, were able 
to express their views on these issues.
    The interim final rule and an amended interim final rule concerning 
this action were published in the Federal Register on October 13, 1998 
(63 FR 54556), and August 20, 1999 (64 FR 45409), respectively. Copies 
of the rules were mailed by the committee's staff to all committee 
members and tomato handlers. In addition, the rules were made available 
through the Internet by the Office of the Federal Register. Both rules 
provided for a 60-day comment period which ended December 14, 1998, and 
October 19, 1999, respectively.
    Three comments to the interim final rule were received supporting 
the rule, and two comments to the amended interim final rule were 
received, also in support of the rule. In addition, an E-mail 
expressing a concern about cleanliness was received by the Department 
prior to publication of the October 1998 rule. The Department 
considered this in this rulemaking action.
    In summary, the three commenters supporting the committee's 
September 1998 recommendation and the two commenters supporting the 
August 1999 amendment commented on the increasing demand for field-
packed tomatoes. Three of the commenters stated that consumers prefer a 
full, red ripe tomato, and that tomatoes with color are the fastest 
growing segment of all types of fresh tomatoes offered for sale at the 
retail level.
    Another commenter mentioned that growers are benefiting from the 
rule because, prior to the October 1998 action, field-packed tomatoes 
could only be sold within the regulated area and most were not 
inspected. According to the commenter, market gluts of poor quality 
field-packed tomatoes were common in the regulated area and prices were 
low. Since October 1998, the quality of field-packed tomatoes has 
greatly improved because such tomatoes can be shipped outside the 
regulated area, provided they meet all of the order's requirements 
except for net weight. Even failed lots of field-packed tomatoes 
shipped within the regulated area are returning higher prices because 
of improved quality and increased demand.
    Lastly, with regard to the issue of cleanliness and food safety as 
expressed in the E-mail, although vine-ripe tomatoes are place-packed 
in the field, final preparation includes inspection and certification 
by Federal-State Inspection Service fresh products inspectors to assure 
that the tomatoes meet the minimum grade and size requirements 
implemented under the order. One of the quality factors against which 
tomatoes are scored is cleanliness. The tomatoes must be clean. 
According to the U.S. tomato standards, the term ``clean'' means that 
the tomato is practically free from dirt or other foreign material. 
Further, applicable Federal, State, or local food and sanitary laws and 
regulations would be applicable to the extent appropriate.
    A small business guide on complying with fruit, vegetable, and 
speciality crop marketing agreements and orders may be viewed at the 
following web site: http://www.ams.usda.gov/fv/moab.html. Any questions 
about the compliance guide should be sent to Jay Guerber at the 
previously mentioned

[[Page 8253]]

address for the FOR FURTHER INFORMATION CONTACT section.
    After consideration of all relevant material presented, including 
the committee's recommendation, the comments received in response to 
the October 1998 and August 1999 interim final rules, and other 
information, it is found that finalizing the interim final rule, 
without change, as published in the Federal Register (63 FR 54556, 
October 13, 1998) and the amended interim final rule, with a change, as 
published in the Federal Register (64 FR 45409, August 29, 1999) will 
tend to effectuate the declared policy of the Act.

List of Subjects in 7 CFR Part 966

    Marketing agreements, Reporting and recordkeeping requirements, 
Tomatoes.

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.

    Accordingly, the interim final rule which was published at 63 FR 
54556 on October 13, 1998, and the amended interim final rule amending 
7 CFR part 966 which was published at 64 FR 45409 on August 20, 1999, 
are adopted as a final rule with the following change:
    2. In Sec. 966.140, the words ``(Form FV-418)'' are removed.

    Dated: February 14, 2000.
Eric M. Forman,
Acting Deputy Administrator, Fruit and Vegetable Programs.
[FR Doc. 00-3875 Filed 2-17-00; 8:45 am]
BILLING CODE 3410-02-P