[Federal Register Volume 62, Number 193 (Monday, October 6, 1997)]
[Proposed Rules]
[Pages 52047-52051]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-26510]


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Proposed Rules
                                                Federal Register
________________________________________________________________________

This section of the FEDERAL REGISTER contains notices to the public of 
the proposed issuance of rules and regulations. The purpose of these 
notices is to give interested persons an opportunity to participate in 
the rule making prior to the adoption of the final rules.

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Federal Register / Vol. 62, No. 193 / Monday, October 6, 1997 / 
Proposed Rules

[[Page 52047]]


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DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 966 and 7 CFR Part 980

[Docket No. FV97-966-1 PR]


Tomatoes Grown in Florida and Imported Tomatoes; Proposed Rule To 
Change Minimum Size and Size Designation Requirements

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Proposed rule.

-----------------------------------------------------------------------

SUMMARY: This proposal would increase the minimum diameter size 
requirement for Florida and imported tomatoes. For Florida tomatoes 
alone, the rule would change the size designations from Medium, Large, 
and Extra Large to numeric size designations of 6  x  7, 6  x  6, and 5 
 x  6. The rule also would slightly increase the diameter size ranges 
for the designated sizes. The marketing order regulates the handling of 
tomatoes grown in Florida, and is administered locally by the Florida 
Tomato Committee (Committee). This proposed rule would help the Florida 
tomato industry meet domestic market and industry demands, provide 
handlers more marketing flexibility, and increase returns to producers, 
as well as provide consumers with slightly larger, more mature 
tomatoes. Application of the size requirement increase to imported 
tomatoes is required under section 8e of the Agricultural Marketing 
Agreement Act of 1937.
DATES: Comments must be received by October 16, 1997.

ADDRESSES: Interested persons are invited to submit written comments 
concerning this proposal. 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: Christian Nissen, Southeast Marketing 
Field Office, Marketing Order Administration Branch, Fruit and 
Vegetable Division, AMS, USDA, 301 Third Street, N.W., Suite 206, 
Winter Haven, Florida 33881; telephone: (941) 299-4770, Fax: (941) 299-
5169; and George Kelhart, Marketing Order Administration Branch, Fruit 
and Vegetable Division, 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 compliance with this 
regulation by contacting Jay Guerber, Marketing Order Administration 
Branch, Fruit and Vegetable Division, AMS, USDA, room 2525-S, P.O. Box 
96456,Washington, DC 20090-6456; telephone (202) 720-2491, Fax: (202) 
720-5698.

SUPPLEMENTARY INFORMATION: This proposal is issued under Marketing 
Agreement No. 125 and Marketing Order No. 966, both as amended (7 CFR 
part 966), regulating the handling of tomatoes grown in certain 
designated counties 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 proposal has been reviewed under Executive Order 12988, Civil 
Justice Reform. This rule is not intended to have retroactive effect. 
This proposal 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.
    Section 8e of the Act specifies that whenever certain specified 
commodities, including tomatoes, are regulated under a Federal 
marketing order, imports of those commodities must meet the same or 
comparable grade, size, quality, and maturity requirements as those in 
effect for the domestically produced commodity. There are no 
administrative procedures which must be exhausted prior to any judicial 
challenge to the provisions of import regulations issued under section 
8e of the Act.
    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 are specified in Sec. 966.323 of the handling 
regulations issued under the order. These requirements apply during the 
period October 10 through June 15 each year. The regulated area is the 
entire State of Florida, except the panhandle. The production area is 
part of the regulated area. Specialty packed red ripe tomatoes, yellow 
meated tomatoes, and single and double layer place packed tomatoes are 
exempt from container net weight requirements.
    Under Sec. 966.323, all tomatoes, except for pear shaped, paste, 
cherry, hydroponic, and greenhouse tomatoes, must be inspected as 
specified in the United States Standards for Grades of Fresh Tomatoes 
(7 CFR part 51.1855 through 51.1877; standards). Such tomatoes also 
must be at least 28/32 inches in diameter, and sized with proper 
equipment in one or more of the following ranges of diameters.

------------------------------------------------------------------------
                                                      Inches     Inches 
                 Size Designation                    minimum    maximum 
                                                     diameter   diameter
------------------------------------------------------------------------
Medium............................................     2 8/32    2 17/32
Large.............................................    2 16/32    2 25/32
Extra Large.......................................    2 24/32  .........
------------------------------------------------------------------------


[[Page 52048]]

    These size designations and diameter ranges are the same as 
specified in Sec. 51.1859 of the standards. All tomatoes in the Medium 
size designation are required to grade at least a U.S. No. 2, while 
tomatoes in the larger size designations are only required to grade at 
least a U.S. No. 3. Section 966.52 of the order provides authority for 
the establishment and modification of regulations applicable to the 
handling of particular sizes and size designations of tomatoes.
    This rule would increase the minimum diameter size requirement for 
Florida tomatoes from 2\8/32\ inches to 2\9/32\ inches and would make 
conforming changes to container marking requirements and the regulation 
for special packed tomatoes. This rule would also rename the size 
designations from Medium, Large, and Extra Large to numeric size 
designations of 6 X 7, 6 X 6, and 5 X 6 (respectively), and increase 
the diameter size ranges for the designated sizes. These size ranges 
are different from those specified in Sec. 51.1859 of the standards. On 
September 5, 1997, the Committee met and unanimously recommended these 
changes. At the same meeting, the Committee recommended by a vote of 10 
to 2 to eliminate shipments of U.S. No. 3 grade tomatoes from the 
regulated area. That proposal will be addressed in a separate 
rulemaking action.
    Based on an analysis of markets and demands of buyers, the 
Committee believes that the increase in minimum size would improve the 
marketing of Florida tomatoes. By increasing the minimum size, the 
tomatoes would be slightly larger and, thus, more mature when packed. 
This follows recent industry trends to ship larger and more mature 
tomatoes. New commercial tomato varieties also have resulted in larger 
sized tomatoes being shipped in response to a strong consumer demand. 
Because of this demand, production of larger tomatoes has been a 
popular method of improving returns among producers as it also 
increases total yields.
    The Committee also recommended the increase in minimum size 
requirements to improve the uniformity and appearance of tomato packs. 
The slightly smaller tomatoes in the Medium packs increase the size 
variability of the pack and are more likely to be immature and have 
less taste. The current minimum size of 2\8/32\ inches allows these 
tomatoes to be combined with more mature tomatoes, which lowers the 
overall quality and price of the pack. This has resulted in complaints 
from buyers throughout the market.
    In the mid-1980's, Dr. Jeffrey K. Brecht, at the University of 
Florida, did a study of smaller tomatoes. According to his findings, 
fully mature green tomatoes begin coloring within a few days of 
harvesting and ripen at 68 degrees Fahrenheit. Since they are not 
easily identified by a surface indicator (color) of full maturity in 
green fruit, pickers are forced to rely on size rather than maturity 
when harvesting tomatoes. The result of this is that tomatoes of 2\8/
32\ of an inch may require two weeks or more to begin ripening. 
Attainment of the full ripe stage requires on average a week to 10 days 
additional time. Hence, the full ripening process could take as long as 
four weeks. Tomatoes that take this long to ripen after harvest have 
been shown to have poor taste. Hence, increasing the minimum size to 
2\9/32\ inches for Medium tomatoes is expected to help reduce this 
problem. Also, consumers are demanding a slightly larger tomato and 
smaller tomatoes with a less uniform pack have poor consumer acceptance 
especially in chain stores.
    The increase in the minimum size from 2\8/32\ inches to 2\9/32\ 
inches is not expected to significantly affect the total number of 
shipments. During the 1996-1997 season, of the 47,879,084 containers of 
25,000 pound equivalent shipments, approximately 15 percent or about 
7,023,239 shipments of 25,000 pound equivalents from Florida were of 
the Medium size designation. The Medium size covers a range of 2\8/32\ 
to 2\17/32\ inches or about \9/32\ of an inch. The \1/32\ increase in 
size requirements is only expected to reduce total shipments by 
approximately 1.5 percent.
    The Committee also recommended the following new designations and 
tomato diameter size ranges:

------------------------------------------------------------------------
                                                      Inches     Inches 
                 Size designation                    minimum    maximum 
                                                     diameter   diameter
------------------------------------------------------------------------
6  x  7 (Currently Medium)........................    2\9/32\   2\19/32\
6  x  6 (Currently Large).........................   2\17/32\   2\27/32\
5  x  6 (Currently Extra Large)...................   2\25/32\           
------------------------------------------------------------------------

    The current size designations have been in place since 1991, and 
were designed to provide a uniform basis for marketing tomatoes. 
However, the numeric designations have continued to be used by 
marketers and retailers of tomatoes and are an important factor in 
negotiating price and other terms of trade. Committee members stated 
that numeric designations are used in negotiating price and other terms 
of trade and is the terminology used primarily in marketing tomatoes. 
Florida tomato handlers found that this difference in terminology 
hindered their negotiations with buyers, and adversely affected handler 
and producer returns. The handlers believe that buyers tend to discount 
Florida tomatoes because the buyers do not have confidence that the 
Medium, Large, and Extra Large designations correctly correspond with 
the industry recognized size designations of 6  x  7, 6  x  6, and 5 
x  6. Thus, the change in size designations would put the Florida 
tomato industry on the same terminology basis as the marketers of 
tomatoes from other growing areas. This also would reduce the chances 
of market confusion and possible problems with market pricing.
    This rule would also increase the minimum and maximum diameter 
ranges of the three size designations. The net increase for the maximum 
diameters for the Medium (6  x  7) and Large (6  x  6) size 
designations would be \1/32\ inch. This would result in a \2/32\'s 
overlap in the maximum diameters in these size designations to the next 
larger size. According to the Committee, this would provide a more even 
distribution of tomato shipments throughout the three size 
designations, which would enable handlers to make better decisions on 
which size of tomatoes to pack. For instance, tomatoes that measure at 
the top end of the Medium size can either be packed with Medium size 
tomatoes or as a smaller tomato with Large tomatoes. The same increased 
flexibility would exist for Large tomatoes packed with Extra Large (5 
x  6) tomatoes. Such decisions could depend on specific buyer or market 
demands, on general crop size, and on condition of the tomatoes and 
prices on each day of packing.
    According to the Committee, problems have evolved in sizing some of 
the newer varieties that are slightly more oblong. To better 
accommodate sizing of the new varieties, the Committee recommended the 
changes to the diameter size ranges for the three size designations.
    Due to strong consumer demand, during the 1996-1997 season 
approximately 80 percent of the tomatoes sold were in the Extra Large 
(5  x  6) size designation. This rule would increase the minimum 
diameter of the Extra Large (5  x  6) designation to 2\25/32\ inches 
from 2\24/32\ inches with no maximum. Increasing the minimum diameter 
size of this designation by \1/32\ inch for Extra Large (5  x  6) 
packs, would reduce the number of smaller sized tomatoes for that size 
designation. Hence, this is expected to decrease size

[[Page 52049]]

variability and improve uniformity of this premium pack. Thus, 
improvements in this size category are expected to further enhance 
consumer demand resulting in increased returns to producers.
    Also, a study conducted by Dr. John J. VanSickle at the University 
of Florida, estimates that size increases could result in an increase 
in the overall price of Florida tomatoes. The study indicates that if 
increasing the size limits shifted 1 percent of the Extra Large (5  x  
6) tomatoes into the smaller size categories then prices for Extra 
Large (5  x  6) tomatoes would increase. The price of Extra Large (5 
x  6) tomatoes could increase by .25 percent, the price of Large (6  x  
6) tomatoes by .15 percent, and the price of Medium (6  x  7) tomatoes 
by .07 percent. The increase in price would occur because of the 
redistribution of larger sized tomatoes into the smaller size 
designations which responds to consumer demand for a more consistent 
pack and slightly larger tomatoes.
    This rule would also make conforming changes to Sec. 966.323 
paragraphs (a)(2)(iii) concerning container marking requirements and 
(d)(3) for special packed tomatoes. This would increase the currently 
applied minimum size of 2\8/32\ to 2\9/32\ inches in diameter.
    Thus, these changes are expected to increase returns to producers 
by improving size consistency, quality, and maturity, and, thus, 
encourage repeat purchases from consumers. The new size designations 
would allow handlers to respond better to market preferences which is 
expected to benefit producers and handlers of Florida tomatoes.
    Section 8e of the Act requires that when certain domestically 
produced commodities, including tomatoes, are regulated under a Federal 
marketing order, imports of that commodity must meet the same or 
comparable grade, size, quality, or maturity requirements for the 
domestically produced commodity. The current import regulations are 
specified in 7 CFR 980.212. Similar to the order, regulations apply 
during the period October 10 through June 15 when the Florida handling 
requirements are in effect. Because this proposal would increase the 
minimum size for domestic tomato shipments, this increase would be 
applicable to imported tomatoes.
    Florida tomatoes must be packed in accordance with three specified 
size designations, and tomatoes falling into different size 
designations may not be commingled in a single container. These pack 
restrictions do not apply to imported tomatoes. Because pack 
requirements do not apply, different sizes of imported tomatoes may be 
commingled in the same container.
    However, the handling requirements also specify that tomatoes that 
are designated as Medium (6 X 7) must meet a U.S. No. 2 grade, while 
the larger sizes are required to meet a U.S. No. 3 grade. The more 
stringent grade requirements are applied to the Medium (6 X 7) size 
designation because of quality problems with smaller tomatoes.
    Similarly, current import requirements specify that all lots with a 
minimum diameter of 2 \17/32\ inches and larger shall meet at least a 
U.S. No. 3 grade. All other tomatoes shall meet at least a U.S. No. 2 
grade. Any lot with more than 10 percent of its tomatoes less than 2 
\17/32\ inches in diameter is required to grade at least U.S. No. 2. 
This proposed rule would change these requirements to reflect the 
changes to the handling requirements by requiring that all lots with a 
minimum diameter of 2 \19/32\ inches and larger meet at least a U.S. 
No. 3 grade. All other tomatoes would need to meet at least a U.S. No. 
2 grade. Any lot with more than 10 percent of its tomatoes less than 2 
\19/32\ inches in diameter would have to grade at least U.S. No. 2.
    These changes are expected to benefit the marketers of both Florida 
and imported tomatoes by providing consumers with better quality, 
higher maturity, and slightly larger tomatoes. The Department has 
contacted a few tomato importers concerning imports. The importers 
indicated that they are importing larger sizes of tomatoes. Thus, the 
Department believes that the proposed increase will not limit the 
quantity of imported tomatoes or place an undue burden on exporters, or 
importers of tomatoes. The expected increase in customer satisfaction 
should benefit all tomato importers regardless of size.
    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, the 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 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. Import regulations issued under 
the Act are based on those established under Federal marketing orders 
which regulate the handling of domestically produced products.
    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. In addition, at least 170 importers of 
tomatoes are subject to import regulations and would be affected by 
this proposed rule. Small agricultural service firms have been defined 
by the Small Business Administration (SBA) (13 CFR 121.601) 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.
    Committee data indicates that approximately 20 percent of the 
Florida handlers handle 80 percent of the total volume. Based on this 
information, the shipment information for the 1996-97 season, and the 
1996-97 season average price of $7.97 per 25,000 pound equivalent 
carton, the majority of handlers would be classified as small entities 
as defined by the SBA. The majority of producers of Florida tomatoes 
may be classified as small entities. The Department also believes that 
most importers may be classified as small entities.
    Under Sec. 966.52 of the Florida tomato marketing order, the 
Committee has authority to increase the minimum size requirement and 
change the size designations for Florida tomatoes grown in the defined 
production area and handled under the order. This proposed rule, 
unanimously recommended by the Committee at its September 5, 1997, 
meeting, would increase the minimum size, change size designations and 
corresponding diameter size ranges. As provided under the Agricultural 
Marketing Agreement Act of 1937, the proposed increases in the minimum 
diameter size requirements would apply to imported tomatoes.
    Based on analysis of markets and demands of buyers, the Committee 
recommended increasing the minimum size from 2\8/32\ inches to 2\9/32\ 
inches in diameter and the corresponding minimum sizes for the other 
two size designations. The Committee believes these size increases will 
improve the marketing of Florida tomatoes. By increasing the minimum 
sizes, the tomatoes would be slightly larger and, thus, more mature 
when packed. This follows recent industry trends to ship larger and 
more mature tomatoes. Current trends in cultural practices and new 
commercial tomato varieties also have resulted in larger sized tomatoes 
being shipped in response to consumer demand for such tomatoes. Because 
of

[[Page 52050]]

this demand, production of larger tomatoes has been a popular method of 
improving returns among producers as it also increases total yields and 
total pounds. While yields increase with larger fruit, the labor costs 
associated with picking these tomatoes remains fairly constant because 
producers pick relatively the same number of fruit.
    The change in the minimum size was recommended because demand for 
larger tomatoes has increased over the last five years. This in part is 
due to the fact that size continues to be a major influence on price. 
According to Dr. John J. VanSickle of the University of Florida, the 
percent of Extra Large (5 X 6) tomatoes shipped has increased steadily 
since 1992-1993 from 43.2 percent to 50 percent in 1996-1997 for mature 
green tomatoes. Mature green tomatoes are green but are developed 
enough to continue to fully ripen. Meanwhile, the percent marketed in 
the Extra Large (5 X 6) size for vine ripe tomatoes has increased from 
66.6 percent to 79.2 percent. Vine ripe tomatoes have at least started 
to break into color from green to tannish-yellow, pink, or red.
    The increase in the minimum size from 2\8/32\ inches to 2\9/32\ 
inches is not expected to significantly affect the total number of 
Florida shipments. During the 1996-1997 season, of the 47,879,084 
shipments of 25,000 pound equivalents, approximately 15 percent or 
about 7,023,239 shipments of 25,000 pound equivalents from Florida were 
in the minimum size designation of Medium. The Medium size currently 
covers a range of 2\8/32\ to 2\17/32\ inches or about 9/32 of an inch. 
Because Florida tomatoes are sizing larger than in the past, the 
proposed increase in size requirements is expected to have a minimal 
impact on total shipments. As mentioned earlier, the expected decrease 
is only about 1.5 percent.
    Also, this rule would change the size designations from Medium, 
Large, and Extra Large to numeric size designations of 6 X 7, 6 X 6, 
and 5 X 6. The rule also would slightly increase the diameter size 
ranges for the designated sizes.
    The Committee stated that, absent a change in the regulations, the 
erosion of market confidence and producer income could occur. 
Furthermore, the majority of Committee members stated that voluntary 
measures had not been effective.
    Direct costs associated with this rule would be the purchase of new 
sizing belts. Sizing belts convey and size fruit during the packing 
process. Sizing belts, depending on the amount of use, can last a 
season or may need to be replaced two to three times a season. 
Estimated prices associated with these purchases could range from 
$450.00 for a small handler to $19,000 for very large handlers. While 
there are short-term costs associated with the new sizing designations, 
the benefits are expected to outweigh the costs.
    A study conducted by Dr. John J. VanSickle at the University of 
Florida, estimates that size increases would result in an increase in 
the overall price for Florida tomatoes, and better returns to 
producers. The study indicates that increasing the size limits would 
shift some of the Extra Large (5  x  6) tomatoes into the smaller size 
categories. As a result, a 1 percent decline in the volume of Extra 
Large (5  x  6) tomatoes would increase in price by .25 percent, the 
price of Large (6  x  6) tomatoes by .15 percent, and the price of 
Medium (6  x  7) tomatoes by .07 percent. The increase in price would 
occur because of the redistribution of larger sized tomatoes into the 
smaller size designations which responds to consumer demand for a more 
consistent pack with slightly larger tomatoes. The costs to the 
industry associated with the minimum size and size designation changes 
would include purchases of new equipment and adjustments to operate 
under the new requirements. These costs are expected to be minimal 
relative to the benefits expected.
    Returning to the previously used numeric size designations should 
not have a negative impact on any packer regardless of size. This is a 
return to common size designations (6  x  7, 6  x  6, and 5  x  6) used 
throughout the industry, and would help Florida handlers respond to 
market and consumer demand. The more standard size designations should 
benefit both small and large businesses in the industry.
    This proposed rule may impose some additional costs on handlers, 
and producers. However, the costs are expected to be minimal, and would 
be offset by the benefits of the proposal. This proposal is expected to 
similarly impact importers of tomatoes as far as the slight increase in 
minimum size is concerned. The Committee believes that this proposed 
modification would benefit consumers, producers, handlers, and 
importers. The benefits of this rule are not expected to be 
disproportionately greater or lesser for small entities than for large 
entities.
    The Committee discussed alternatives to this recommendation, 
including leaving the regulations as currently issued. All Committee 
members agreed that some change to the size designations was necessary 
to improve pack appearance and compete in the present market. The 
amount of change became a concern, with a portion of the Committee 
favoring a larger size increase and another portion favoring small 
incremental moves over a period of time. The Committee recommended a 
compromise to allow individual packing houses leeway to implement the 
amount of change through a \2/32\ overlap in sizes.
    Mexico is the largest exporter of tomatoes to the United States. 
Over the last 10 years, Mexican exports to the United States averaged 
32,527 containers of 25,000 pound equivalents per season (October 5-
July 5) and comprised about 99 percent of all imported tomatoes to the 
United States during that time. Total imports during that period 
averaged 32,752 containers of 25,000 pound equivalents (October 5-July 
5). Some of the imports from Mexico may have been transhipped to 
Canada. Domestic shipments or consumption for the past 10 years 
averaged 108,577 containers of 25,000 pound equivalents (October 5-July 
5). Florida shipments averaged 52,977 containers of 25 pound 
equivalents or approximately 48 percent of the total shipments or 
domestic consumption for the same period. This information is from AMS 
Market News Branch data that most closely approximates the Florida 
shipping season.
    These changes are expected to benefit the marketers of both Florida 
and imported tomatoes by providing consumers with better quality, 
higher maturity, and slightly larger tomatoes. The Department has 
contacted a few tomato importers concerning imports. The importers 
indicated that they are importing larger sizes of tomatoes. Thus, the 
Department believes that the proposed increase will not limit the 
quantity of imported tomatoes or place an undue burden on exporters, or 
importers of tomatoes. The expected increase in customer satisfaction 
should benefit all tomato importers regardless of size.
    This action would not impose any additional reporting or record 
keeping requirements on either small or large handlers. As with all 
Federal marketing order programs, reports and forms are periodically 
reviewed to reduce information requirements and duplication by industry 
and public sector agencies.
    The Department has not identified any relevant Federal rules that 
duplicate, overlap or conflict with this proposed rule.
    In addition, the Committee's meeting was widely publicized 
throughout the Florida tomato industry and all interested persons were 
invited to attend the meeting and participate in Committee 
deliberations on all issues.

[[Page 52051]]

Like all Committee meetings, the September 5, 1997, meeting was a 
public meeting and all entities, both large and small, were able to 
express views on this issue. Finally, interested persons are invited to 
submit information on the regulatory and informational impacts of this 
action on small businesses.
    In accordance with section 8e of the Act, the United States Trade 
Representative has concurred with the issuance of this proposed rule.
    A 10-day comment period is provided to allow interested persons to 
respond to this proposal. Ten days is deemed appropriate because this 
rule, if adopted, needs to be in place as soon as possible since 
handlers will begin shipping tomatoes in October. In addition, because 
of the nature of this rule, handlers need time to adjust their 
equipment and purchase new equipment to accommodate the new size ranges 
and designations. Florida tomato handlers are aware of this issue, 
which has been widely discussed at various industry and association 
meetings and was unanimously recommended by the Committee. All comments 
received in a timely manner will be considered prior to finalization of 
this rule.

List of Subjects in 7 CFR Part 966 and 7 CFR Part 980

    Marketing agreements, Reporting and record keeping requirements, 
Tomatoes.

    For the reasons set forth in the preamble, 7 CFR parts 966 and 980 
are proposed to be 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 paragraphs (a)(1), 
(a)(2)(i) and the table immediately following it, (a)(2)(iii), and 
(d)(3) to read as follows:


Sec. 966.323  Handling regulation.

* * * * *
    (a) Grade, size, container, and inspection requirements.
    (1) Grade. Tomatoes shall be graded and meet the requirements 
specified for U.S. No. 1, U.S. Combination, U.S. No. 2, or U.S. No. 3, 
of the U.S. Standards for Grades of Fresh Tomatoes, except that all 
shipments of 6  x  7 size tomatoes must grade U.S. No. 2 or better. 
When not more than 15 percent of the tomatoes in any lot fail to meet 
the requirements of U.S. No. 1 grade and not more than one-third of 
this 15 percent (or 5 percent) are comprised of defects causing very 
serious damage including not more than 1 percent of tomatoes which are 
soft or affected by decay, such tomatoes may be shipped and designated 
as at least 85 percent U.S. No. 1 grade.
    (2) Size. (i) All tomatoes packed by a registered handler shall be 
at least 2\9/32\ inches in diameter and shall be sized with proper 
equipment in one or more of the following ranges of diameters. Tomatoes 
shipped outside the regulated area shall also be sized with proper 
equipment in one or more of the following ranges of diameters. 
Measurements of diameters shall be in accordance with the methods 
prescribed in Sec. 51.1859 of the U.S. Standards for Grades of Fresh 
Tomatoes.

------------------------------------------------------------------------
                                                      Inches     Inches 
                 Size Designation                    Minimum    Maximum 
                                                     diameter   diameter
------------------------------------------------------------------------
6  x  7...........................................    2\9/32\   2\19/32\
6  x  6...........................................   2\17/32\   2\27/32\
5  x  6...........................................   2\25/32\  .........
------------------------------------------------------------------------

* * * * *
    (iii) Only 6  x  7, 6  x  6, 5  x  6, may be used to indicate the 
above listed size designations or containers of tomatoes.
* * * * *
    (d) * * *
    (3) For special packed tomatoes. Tomatoes which met the inspection 
requirements of paragraph (a)(4) of this section which are resorted, 
regraded, and repacked by a handler who has been designated as a 
``Certified Tomato Repacker'' by the committee are exempt from:
    (i) The tomato grade classifications of paragraph (a)(1) of this 
section;
    (ii) The size classifications of paragraph (a)(2) of this section, 
except that the tomatoes shall be at least 2\9/32\ inches in diameter; 
and
    (iii) The container weight requirements of paragraph (a)(3) of this 
section.
* * * * *


Sec. 980.212  [Amended]

    3. Section 980.212 is amended by revising paragraph (b)(1) to read 
as follows:
* * * * *
    (b) * * *
    (1) From October 10 through June 15 of each season, tomatoes 
offered for importation shall be at least 2\9/32\ inches in diameter. 
Not more than 10 percent, by count, in any lot may be smaller than the 
minimum specified diameter. All lots with a minimum diameter of 2\19/
32\ inches and larger shall be at least U.S. No. 3 grade. All other 
tomatoes shall be at least U.S. No. 2 grade. Any lot with more than 10 
percent of its tomatoes less than 2\19/32\ inches in diameter shall 
grade at least U.S. No. 2.
* * * * *
    Dated: October 2, 1997.

Robert C. Kenney,
Deputy Administrator, Fruit and Vegetable Programs.
[FR Doc. 97-26510 Filed 10-3-97; 8:45 am]
BILLING CODE 3410-02-P