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.

Proposed Rules Federal Register

66312

Vol. 62, No. 243

Thursday, December 18, 1997

DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 966 and 980

[Docket No. FV98–966–1 PR]

Tomatoes Grown in Florida and

Imported Tomatoes; Proposed Rule to

Change Minimum Grade Requirements

AGENCY: Agricultural Marketing Service,

USDA.

ACTION: Proposed rule.

SUMMARY: This proposal would increase

the minimum grade requirements for

Florida and imported tomatoes. The

grade requirements would be changed

from U.S. No. 3 to U.S. No. 2. The

proposed rule would help the Florida

tomato industry meet domestic market

needs, increase returns to producers,

and provide consumers with higher

quality tomatoes. Application of the

increased grade requirements to

imported tomatoes is required under

section 8e of the Agricultural Marketing

Agreement Act of 1937.

DATES: Comments must be received by

January 20, 1998.

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 Programs,

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 Programs, AMS, USDA, 301

Third Street, N.W., Suite 206, Winter

Haven, Florida 33881; telephone: (941)

299–4770, Fax: (941) 299–5169; or

George Kelhart, 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

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.

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 § 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 includes the

portion of the State of Florida which is

bounded by the Suwannee River, the

Georgia border, the Atlantic Ocean, and

the Gulf of Mexico. That 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 § 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 2 8⁄32

inches in diameter, and sized with

proper equipment in one or more of the

following ranges of diameters.

Size designation

Inches

minimum

diameter

Inches

maximum

diameter

Medium ..................... 2 8⁄32 2 17⁄32

Large ......................... 2 16⁄32 2 25⁄32

Extra large ................. 2 24⁄32

These size designations and diameter

ranges are the same as specified in

§ 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
Federal Register / Vol. 62, No. 243 / Thursday, December 18, 1997 / Proposed Rules 66313

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 grades, sizes, and size

designations of tomatoes.

This rule would increase the

minimum grade requirements from U.S.

No. 3 to U.S. No. 2 for all tomatoes

regardless of size. This change in grade

requirements was recommended by the

Florida Tomato Committee (Committee)

on September 5, 1997, by a vote of 10

in favor and 2 opposed. The grade

requirement change would eliminate

shipments of U.S. No. 3 grade tomatoes

from the regulated area. The opponents

of this change stated that there were

good markets for U.S. No. 3 tomatoes in

years of short supply, and when crop

quality was down due to adverse

weather conditions. The members in

favor countered stating that during

normal seasons U.S. No. 3 grade

tomatoes comprised a small share of

total shipments and that such shipments

had a price depressing effect on the

higher quality tomatoes shipped during

those seasons.

At the same meeting, the Committee

unanimously recommended an increase

in the diameter size requirement for

Florida tomatoes from 2 8⁄32 inches to 2 9⁄32 inches, that the size designations of

Medium, Large, and Extra Large be

changed to numeric size designations of

6×7, 6×6, and 5×6, respectively, and that

the diameter size ranges for the

designated sizes be increased slightly.

These size ranges are different from

those specified in § 51.1859 of the

standards. The proposed minimum size

and size designation changes were

addressed in a separate rulemaking

action. That action was published in the

Federal Register on October 6, 1997 (62

FR 52047). Interested persons were

invited to submit written comments

until October 16, 1997. Subsequently,

the period for comments was reopened

until November 5, 1997, by a document

published in the Federal Register on

October 22, 1997 (62 FR 54809).

Based on an analysis of markets and

demands of buyers, the Committee

believes that increasing the minimum

grade from U.S. No. 3 to U.S. No. 2

would improve the marketing of Florida

tomatoes, and help the industry protect

its markets from foreign competition.

The increase in grade requirements is

expected to prevent low-quality

tomatoes from reaching the marketplace,

and improve the overall quality of

tomatoes in fresh market channels.

Tomatoes grading U.S. No. 3 must be

well developed, may be misshapen, and

cannot be seriously damaged by

sunscald (7 CFR 51.1858). Tomatoes

grading U.S. No. 2 have to be well

developed, reasonably well-formed, and

free from sunscald (7 CFR 51.1857).

Sunscald is an injury which usually

occurs on the sides or upper half of the

tomato, but may occur wherever the

rays of the sun strike most directly.

Sunscald results in the formation of a

whitish, shiny, blistered area on the

tomato. The affected tissue gradually

collapses, forming a slight sunken area

that may become pale yellow, and

wrinkle or shrivel as the tomato ripens.

This detracts from the overall quality of

the tomato.

The difference between tomatoes

grading U.S. No. 3 and U.S. No. 2 with

regard to development, shape, and

sunscald is especially noticeable in

smaller sized tomatoes, but also

noticeable in larger sized tomatoes. U.S.

No. 3 grade tomatoes are generally of

very poor quality, and are not desired by

the consumer.

The Committee indicated that when

tomatoes of this quality are offered for

sale to consumers in a normal season

these tomatoes have an adverse affect on

the demand and sale of other Florida

tomatoes. The increase in grade

requirements is expected to improve the

quality of the tomato packs shipped

from Florida.

The proponents of the change

indicated that the marketplace is

changing and that the Florida industry

has been shipping fewer U.S. No. 3

grade tomatoes than it had in past

seasons in response to those changes.

During the last three shipping seasons,

the quantity of U.S. No. 3 grade

tomatoes shipped as a percentage of

total shipments ranged from a low of 4.4

percent to a high of 7.6 percent.

At the meeting, the Committee

discussed whether eliminating U.S. No.

3 tomatoes would diminish the quality

of the U.S. No. 2 grade pack by handlers

trying to commingle more U.S. No. 3

grade as U.S. No. 2 grade. The

proponents acknowledged that some of

the tomatoes currently being sold at the

U.S. No. 3 grade could be reworked to

make U.S. No. 2 grade. They stated,

however, that they were interested in

eliminating the true U.S. No. 3 grade

which in normal seasons has tended to

detract from the overall pack and

depress prices for higher quality

tomatoes.

The proposed grade increase is

expected to improve the overall tomato

pack, provide consumers with the

quality of tomatoes desired, and, thus,

encourage repeat purchases. In other

words, the new grade requirements

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 grade 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.

Current import requirements specify

that all lots with a minimum diameter

of 217⁄32 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 217⁄32

inches in diameter is required to grade

at least U.S. No. 2. This proposed rule

would change these requirements to

reflect the size and size designation

changes proposed in the October 6 and

22, 1997, issue of the Federal Register

by requiring all lots of imported

tomatoes to grade at least U.S. No. 2,

regardless of size.

This change is expected to benefit the

marketers of both Florida and imported

tomatoes by providing consumers with

the higher quality tomatoes they desire.

The Department has contacted a few

tomato importers concerning imports.

The importers indicated that they will

not have difficulty meeting the U.S. No.

2 grade requirements. 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.
66314 Federal Register / Vol. 62, No. 243 / Thursday, December 18, 1997 / Proposed Rules

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. Thus, this proposed rule

would have small entity orientation,

and would impact both small and large

business entities in a manner

comparable to those rules issued under

marketing orders.

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 shipped outside the regulated

area. Based on this information, the

shipment information for the 1996–97

season, and the 1996–97 season average

price of $7.97 per 25 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 also may be

classified as small entities. Moreover,

the Department believes that most

importers may be classified as small

entities.

Under § 966.52 of the Florida tomato

marketing order, the Committee, among

other things, has authority to increase

the minimum grade requirements for

tomatoes grown in the defined

production area and handled under the

order. This proposed rule would

increase the minimum grade from U.S.

No. 3 to U.S. No. 2. As provided under

section 8e of the Agricultural Marketing

Agreement Act of 1937, the proposed

grade increase would apply to imported

tomatoes.

The Committee recommended the

grade increase to improve the marketing

of Florida tomatoes and follow the

recent industry trend of shipping higher

grade tomatoes. This trend is in

response to a strong consumer demand

for such tomatoes. The Committee noted

that a tomato can be unattractive and

still meet the requirements of the U.S.

No. 3 grade, and that this can have a

negative impact on the market for higher

quality tomatoes.

According to the Committee, when

supplies are not short or crop quality is

not lowered due to adverse weather

conditions, U.S. No. 3 grade tomatoes

comprise a small share of total

shipments. During the last three

shipping seasons, the quantity of U.S.

No. 3 grade shipped as a percentage of

total shipments ranged from a low of 4.4

percent to a high of 7.6 percent. Thus,

the increase in the minimum grade

requirements is not expected to

significantly impact the total number of

Florida shipments. It is, however,

expected to have a positive effect in the

marketplace by providing a strong price

base for the industry. As mentioned

earlier, the Committee believes that U.S.

No. 3’s have a price depressing effect on

higher grade shipments.

According to the Committee, during

the 1996–1997 season, about 47.9

million 25 pound equivalents were

shipped from Florida. Of that amount,

only 4.9 percent were U.S. No. 3 grade.

The value of all sales during that season

totaled about $381.4. The value of the

U.S. No. 3 grade tomatoes totaled about

$16.6 million, or about 4.4 percent of

total sales during that season. In 1995–

96, the total of all tomatoes shipped was

47.3 million 25 pound equivalents. The

U.S. No. 3 grade portion was 7.9

percent. That season, the value of all

sales totaled about $369.7 million, and

the U.S. No. 3’s comprised 7.6 percent

of the total value. The percentages for

the 1994–95 season were similar with

U.S. No. 3’s making up about 6.8

percent of the total shipments, and the

sales value of the U.S. No. 3 grade

making up about 6.1 percent of the total

value. That season, total industry

shipments totaled about 55.5 million 25

pound equivalents, and the total value

was about $388.3 million.

The Committee also noted that a

recent voluntary elimination of U.S. No.

3 grade by the industry had been

successful in strengthening the market

and in supporting grower returns. This

proposal is expected to continue those

successes. Without an increase in grade

requirements, the Committee believes

that an erosion of market confidence

and producer returns could occur.

The raising of the minimum grade

from U.S. No. 3 to U.S. No. 2 is expected

to impact all handlers uniformly,

whether small or large, because all

handlers, regardless of size, currently

pack about the same percentage of U.S.

No. 3 grade tomatoes. The benefits of

the higher prices resulting from

eliminating the U.S. No. 3’s will be

distributed evenly among all handlers,

and are expected to be greater than the

minimal costs expected to be incurred.

Direct costs to the industry associated

with the minimum grade requirement

increase would include sorting and

packing line adjustments to operate

under the new requirements. These

costs are expected to be minimal

relative to the benefits expected. Other

costs would include possible losses

from tomatoes not meeting the U.S. No.

2 grade requirements. These losses also

are expected to be minimal when

compared to marketplace benefits

expected, and the fact that tomatoes

lower in quality than U.S. No. 2 could

continue to be shipped within the

regulated area, as defined in the

marketing order, or shipped for

processing.

This proposal is expected to similarly

impact importers of tomatoes as far as

the grade increase is concerned. That is,

tomatoes lower in grade than U.S. No.

2 could be marketed outside the United

States. Additionally, the marketplace

price and quality benefits expected for

Florida growers and handlers as a result

of this proposal would also benefit

exporters and importers of tomatoes.

Consumers would also benefit as a

result of the higher quality product

available in the marketplace. As

mentioned earlier, 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 grade requirements

unchanged. However, after thoroughly

discussing the issue the majority of the

Committee members agreed that the

grade increase was necessary to improve

pack appearance and effectively

compete in the present market. During

the discussion, most Committee

members acknowledged that U.S. No. 3

grade tomatoes could be important to

the market in years of short supply and

lower than normal quality resulting

from adverse weather conditions.

However, those members also pointed

out that during normal seasons U.S. No.

3 tomatoes were not popular in the

marketplace, and that the lower grade

had a price depressing effect on better

grade tomatoes.
Federal Register / Vol. 62, No. 243 / Thursday, December 18, 1997 / Proposed Rules 66315

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. Small quantities of tomatoes are

imported from Caribbean Basin

countries. Domestic shipments for the

past 10 years averaged 108,577

containers of 25,000 pound equivalents

(October 5–July 5). Florida shipments

comprised about 48 percent of the total

shipments for the same period. This

information is from AMS Market News

Branch data that most closely

approximates the Florida shipping

season.

The grade increase is expected to

benefit the marketers of both Florida

and imported tomatoes by providing

consumers with higher quality

tomatoes. The Department has contacted

a few tomato importers concerning

imports. The importers indicated that

they would not have undue difficulty

meeting the higher grade requirements.

Also, Department fresh products

inspectors at the Port of Nogales,

Arizona, the port were most Mexican

produced tomatoes enter the United

States, estimated that only 2 to 3 percent

of the total tomato imports from Mexico

were U.S. No. 3 grade. The remainder

were U.S. No. 2 grade and higher. 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 and

more positive marketplace atmosphere

resulting from providing the desired

quality 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.

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 30-day comment period is provided

to allow interested persons to respond

to this proposal. Florida tomato

handlers began shipping tomatoes in

October. Thirty days is deemed

appropriate because this rule, if

adopted, needs to be in place as soon as

possible to cover as much of the 1997–

98 shipping season as feasible. In

addition, handlers need time to adjust

their sorting and packing line

equipment to meet the higher grade

requirements. Florida tomato handlers

are aware of this issue, which has been

widely discussed at various industry

and association meetings and was

recommended by a majority of the

Committee. All comments received in a

timely manner will be considered prior

to finalization of this rule.

List of Subjects in 7 CFR Parts 966 and

980

Marketing agreements, Reporting and

recordkeeping 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

PART 980—VEGETABLES; IMPORT

REGULATIONS

1. The authority citation for 7 CFR

parts 966 and 980 continue to read as

follows:

Authority: 7 U.S.C. 601–674.

2. Section 966.323 is amended by

revising paragraph (a)(1) to read as

follows:

§ 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, or U.S. No. 2 of the

U.S. Standards for Grades of Fresh

Tomatoes. 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.

* * * * *

3. Section 980.212 is amended by

revising paragraph (b)(1) to read as

follows:

§ 980.212 Import regulations; tomatoes.

* * * * *

(b) * * *

(1) From October 10 through June 15

of each season, tomatoes offered for

importation shall be at least 2 8/32

inches in diameter. Not more than 10

percent, by count, in any lot may be

smaller than the minimum specified

diameter. All lots of tomatoes shall be

at least U.S. No. 2 grade.

* * * * *

Dated: December 12, 1997.

Eric M. Forman,

Acting Deputy Administrator, Fruit and

Vegetable Programs.

[FR Doc. 97–33004 Filed 12–17–97; 8:45 am]

BILLING CODE 3410–02–P

DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Part 39

[Docket No. 97–NM–289–AD]

RIN 2120–AA64

Airworthiness Directives; Saab Model

SAAB 2000 Series Airplanes

AGENCY: Federal Aviation

Administration, DOT.

ACTION: Notice of proposed rulemaking

(NPRM).

SUMMARY: This document proposes the

adoption of a new airworthiness

directive (AD) that is applicable to

certain Saab Model SAAB 2000 series

airplanes. This proposal would require

application of sealant to the auxiliary

power unit (APU) firezone bulkhead.

This proposal is prompted by issuance

of mandatory continued airworthiness

information by a foreign civil

airworthiness authority. The actions

specified by the proposed AD are

intended to prevent hazardous amounts

of flame, fuel, and vapor from entering

the passenger compartments due to

unsealed openings in the firezone

bulkhead, which could result in a fire

outside the APU firezone compartment.