[Federal Register Volume 62, Number 34 (Thursday, February 20, 1997)]
[Rules and Regulations]
[Pages 7657-7659]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-4110]


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DEPARTMENT OF AGRICULTURE
7 CFR Part 966

[Docket No. FV96-966-2 FIR]


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

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Final rule.

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SUMMARY: The Department of Agriculture (Department) is adopting as a 
final rule, without change, the provisions of an interim final rule 
providing an exemption to the pack and container requirements currently 
prescribed under the Florida tomato marketing order. The marketing 
order regulates the handling of tomatoes grown in Florida and is 
administered locally by the Florida Tomato Committee (Committee). This 
rule exempts shipments of single layer and two layer place packed 
tomatoes from the container net weight requirements under the marketing 
order. This rule facilitates the movement of single layer and two layer 
place packed tomatoes and should improve returns to producers of 
Florida tomatoes.

EFFECTIVE DATE: March 24, 1997.

FOR FURTHER INFORMATION CONTACT: Aleck Jonas, Marketing Specialist, 
Southeast Marketing Field Office, Fruit and Vegetable Division, AMS, 
USDA, P.O. Box 2276, Winter Haven, Florida 33883-2276; telephone: (941) 
299-4770, or FAX: (941) 299-5169; or Mark Slupek, Marketing Order 
Administration Branch, F&V, AMS, USDA, room 2525-S, P.O. Box 96456, 
Washington, DC 20090-6456: telephone: (202) 205-2830, or FAX: (202) 
720-5698. Small businesses may request information on compliance with 
this regulation by contacting: Jay Guerber, Marketing Order 
Administration Branch, Fruit and Vegetable Division, AMS, USDA, P.O. 
Box 96456, room 2523-S, Washington, DC 20090-6456; telephone (202) 720-
2491; Fax # (202) 720-5698.

SUPPLEMENTARY INFORMATION: This rule is issued under Marketing 
Agreement No. 125 and Order No. 966 (7 CFR part 966), both as amended, 
regulating the handling of tomatoes grown in Florida, hereinafter 
referred to as the order. The order is effective under the Agricultural 
Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), 
hereinafter referred to as the Act.
    The Department of Agriculture is issuing this rule in conformance 
with Executive Order 12866.
    This rule has been reviewed under Executive Order 12988, Civil 
Justice Reform. This rule is not intended to have retroactive effect. 
This rule will not preempt any State or local laws, regulations, or 
policies, unless they present an irreconcilable conflict with this 
rule.
    The Act provides that administrative proceedings must be exhausted 
before parties may file suit in court. Under section 608c(15)(A) of the 
Act, any handler subject to an order may file with the Secretary a 
petition stating that the order, any provision of the order, or any 
obligation imposed in connection with the order is not in accordance 
with law and request a modification of the order or to be exempted 
therefrom. A handler is afforded the opportunity for a hearing on the 
petition. After the hearing the Secretary would rule on the petition. 
The Act provides that the district court of the United States in any 
district in which the handler is an inhabitant, or has his or her 
principal place of business, has jurisdiction to review the Secretary's 
ruling on the petition, provided an action is filed not later than 20 
days after date of the entry of the ruling.
    Pursuant to requirements set forth in the Regulatory Flexibility 
Act (RFA), the Agricultural Marketing Service (AMS)

[[Page 7658]]

has considered the economic impact of this action on small entities.
    The purpose of the RFA is to fit regulatory actions to the scale of 
business subject to such actions in order that small businesses will 
not be unduly or disproportionately burdened. Marketing orders issued 
pursuant to the Act, and rules issued thereunder, are unique in that 
they are brought about through group action of essentially small 
entities acting on their own behalf. Thus, both statutes have small 
entity orientation and compatibility.
    There are approximately 75 handlers of tomatoes who are subject to 
regulation under the order and approximately 90 producers of tomatoes 
in the regulated area. Small agricultural service firms, which include 
handlers, are defined by the Small Business Administration (13 CFR 
121.601) as those having annual receipts of less than $5,000,000, and 
small agricultural producers are defined as those whose annual receipts 
are less than $500,000. The majority of handlers and producers of 
Florida tomatoes may be classified as small entities.
    This rule finalizes an exemption for shipments of single layer and 
two layer place packed tomatoes from container net weight requirements 
currently specified under the order. Place packing requires a certain 
number of tomatoes to fill a container, making it difficult to meet 
established weight requirements. Tomatoes are packed in one or two 
layers, which some industry members believe is superior to the bulk 
container pack. Place packing is labor intensive, with most of the 
packing being done by hand, but it allows handlers to ship higher 
colored, more mature tomatoes. Place packed tomatoes, which are shipped 
from many domestic and foreign growing areas, currently maintain a 
strong market share.
    This exemption is the same as granted for specialty packed red ripe 
tomatoes and yellow meated tomatoes. This exemption appears to be the 
most viable alternative to present requirements because it facilitates 
the use of place packing in Florida, and provides handlers an 
additional shipping option. Also, while we lack sufficient information 
necessary to quantify these benefits at this time, we believe that this 
exemption will be beneficial to the industry. After the industry 
operates under the relaxed requirements for a time, additional 
information will be available. Because the exemption and the packing 
techniques required affect both small and large handlers equally, both 
will benefit proportionally from the exemption. Therefore, the AMS has 
determined that this action will not have a significant economic impact 
on a substantial number of small entities.
    The interim final rule was issued on October 29, 1996, and 
published in the Federal Register (61 FR 55729, October 29, 1996), with 
an effective date of October 30, 1996. That rule amended Sec. 966.323 
of the rules and regulations in effect under the order. That rule 
provided a 30-day comment period which ended November 29, 1996. No 
comments were received.
    Under the Florida tomato marketing order, tomatoes produced in the 
production area and shipped to fresh market channels are required to 
meet certain handling requirements. These requirements include minimum 
grade, size, and pack and container specifications.
    This final rule revises Sec. 966.323 paragraph (d) of the rules and 
regulations to make single layer and two layer place packed tomatoes 
exempt from the current net weight requirements. This exemption is the 
same as granted for specialty packed red ripe tomatoes and yellow 
meated tomatoes. The exemption is from net weight only. The tomatoes 
are still subject to all other provisions of the handling regulation, 
including established grade, size, pack, and inspection requirements. 
The Committee met September 5, 1996, and unanimously recommended this 
change.
    Section 966.52 of the Florida tomato marketing order provides 
authority for the modification, suspension, and termination of 
regulations. Section 966.323(a)(3)(i) of the order's rules and 
regulations defines the net weight container requirements. These 
requirements specify that all tomatoes be packed in containers of 10, 
20, and 25 pound designated net weights. The net weight cannot be less 
than the designated weight or exceed the designated weight by more than 
two pounds.
    Most tomatoes from Florida are shipped at the mature green stage, 
and are packed in volume fill containers. When volume fill containers 
are packed, the tomatoes are placed by hand or machine into the 
container until the required net weight is reached. This procedure, by 
design, works well when packing to meet a specified weight.
    In contrast, it is very difficult to pack to a specified weight 
when place packing in a single layer or two layer pack. Place packing a 
container requires a fixed number of tomatoes to fill the container. In 
place packing, the tomatoes are packed in layers, with the fill 
determined by the size of the tomato, dimensions of the container, and 
the way the tomatoes are positioned in the box. To facilitate this type 
of pack, most handlers use plastic cells, cardboard partitions, or 
trays to position the tomatoes. The majority of place packed tomatoes 
are sold by count per container rather than by weight.
    Throughout the harvesting season, the weight of equal size tomatoes 
may vary dramatically. When tomatoes are place packed into a container, 
the handler cannot add extra tomatoes if the container's net weight is 
light. Because the tomatoes are packed in layers, when a layer is 
complete there are no spaces for adding additional tomatoes. Similarly, 
when the tomatoes are heavy, the handler cannot remove a tomato to meet 
a maximum weight requirement. Buyers expect a full pack with no spaces, 
and a missing tomato could result in a loose pack which could allow 
shifting or bruising during transport.
    The Committee made this recommendation to overcome this problem and 
allow the industry to develop this market. This change allows the 
industry to place pack single layer and two layer packs exempt from the 
current net weight requirements. However, all other packs must continue 
to meet the requirements.
    Single layer and two layer place packed tomatoes are common in 
today's markets. Many tomato growing areas within the United States 
utilize them, as do most shippers of Mexican tomatoes. Buyer demand for 
this type of container is well established. Tomatoes packed in single 
layer and two layer containers have a strong market share. Some 
Committee members stated that this pack provides a superior 
presentation of the tomatoes when compared to the bulk net weight 
container. Committee members believe that Florida tomato shippers can 
compete well in this market.
    Another advantage of the place pack is that a more mature tomato 
can be shipped if desired. The Committee expressed interest in 
beginning to ship a higher colored, more mature tomato. Volume packing 
such a tomato could cause bruising or other damage. Place packing in 
single layer or two layer packs would prevent damage and help a mature 
tomato arrive at market in good condition.
    The Committee is focusing on ways to continue to be competitive, 
develop new markets, and increase grower returns. The Committee 
believes this change will provide the industry with more flexibility 
and additional marketing opportunities.
    Section 8(e) of the Act requires that whenever grade, size, 
quality, or maturity requirements are in effect for certain commodities 
under a domestic

[[Page 7659]]

marketing order, including tomatoes, imports of that commodity must 
meet the same or comparable requirements. Since the Act does not 
authorize the imposition of pack or container requirements on imports, 
even when such requirements are in effect under a domestic marketing 
order, no change is necessary in the tomato import regulations as a 
result of this action.
    After consideration of all relevant material presented, the 
information and recommendations submitted by the Committee, and other 
available information, it is found that finalizing, without change, the 
interim final rule as published in the Federal Register (61 FR 55729, 
October 29, 1996) 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.

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

PART 966--TOMATOES GROWN IN FLORIDA

    Accordingly, the interim final rule amending 7 CFR part 966 which 
was published at 61 FR 55729 on October 29, 1996, is adopted as a final 
rule without change.

    Dated: February 12, 1997.
Robert C. Kenney,
Director, Fruit and Vegetable Division.
[FR Doc. 97-4110 Filed 2-19-97; 8:45 am]
BILLING CODE 3410-02-P