Federal Register / Vol. 62, No. 34 / Thursday, February 20, 1997 / Rules and Regulations 7657

producers and handlers with smaller

fruit this season. Thus, the Committee

unanimously recommended this action.

This rule relaxes size requirements

under the order and the grapefruit

import regulations. Accordingly, this

action will not impose any additional

reporting or recordkeeping requirements

on either small or large Florida citrus

handlers or grapefruit importers. As

with all Federal marketing order

programs and companion import

regulations, 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

rule. In addition to minimum size

requirements, Florida and imported

grapefruit is required to meet minimum

grade requirements that are based on the

U.S. Standards for Grades of Florida

Grapefruit (7 CFR 51.750 through

51.784) which are issued under the

Agricultural Marketing Act of 1946 (7

U.S.C. 1621 through 1627).

Additionally, the Department of Citrus

for the State of Florida regulates citrus

through the Citrus Fruit Laws, Chapter

601, Florida Citrus Code of 1949.

The Committee’s meeting was widely

publicized throughout the Florida citrus

industry and all interested persons were

invited to attend the meeting and

participate in Committee deliberations

on all issues. Like all Committee

meetings, the October 8, 1996, meeting

was a public meeting and all entities,

both large and small, were able to

express views on this issue. The

Committee itself is composed of 18

members, of which 9 are producers, 8

are handlers and 1 is a public member.

The majority of Committee members

represent small entities.

The interim final rule was issued on

November 27, 1996, and published in

the Federal Register (61 FR 64251,

December 4, 1996), with an effective

date of November 11, 1996. That rule

amended §§ 905.306 and 944.106 of the

rules and regulations in effect. That rule

provided a 30-day comment period

which ended January 3, 1997. No

comments were received.

In accordance with section 8e of the

Act, the United States Trade

Representative has concurred with the

issuance of this final rule.

After consideration of all relevant

material presented, including the

Committee’s recommendation, and

other available information, it is found

that finalizing the interim final rule,

without change, as published in the

Federal Register (61 FR 64251,

December 4, 1996) will tend to

effectuate the declared policy of the Act.

List of Subjects

7 CFR Part 905

Grapefruit, Marketing agreements,

Oranges, Reporting and recordkeeping

requirements, Tangelos, Tangerines.

7 CFR Part 944

Avocados, Food grades and standards,

Grapefruit, Grapes, Imports, Kiwifruit,

Limes, Olives, Oranges.

For the reasons set forth above, 7 CFR

parts 905 and 944 are amended as

follows:

PART 905—ORANGES, GRAPEFRUIT,

TANGERINES, AND TANGELOS

GROWN IN FLORIDA

PART 944—FRUITS; IMPORT

REGULATIONS

Accordingly, the interim final rule

amending 7 CFR parts 905 and 944

which was published at 61 FR 64251 on

December 4, 1996, is adopted as a final

rule without change.

Dated: February 13, 1997.

Robert C. Keeney,

Director, Fruit and Vegetable Division.

[FR Doc. 97–4113 Filed 2–19–97; 8:45 am]

BILLING CODE 3410–02–P

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.

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)
7658 Federal Register / Vol. 62, No. 34 / Thursday, February 20, 1997 / Rules and Regulations

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

§ 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 § 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
Federal Register / Vol. 62, No. 34 / Thursday, February 20, 1997 / Rules and Regulations 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

7 CFR Part 979

[Docket No. FV97–979–1 IFR]

Melons Grown in South Texas;

Assessment Rate

AGENCY: Agricultural Marketing Service,

USDA.

ACTION: Interim final rule with request

for comments.

SUMMARY: This interim final rule

establishes an assessment rate for the

South Texas Melon Committee

(Committee) under Marketing Order No.

979 for the 1996–97 and subsequent

fiscal periods. The Committee is

responsible for local administration of

the marketing order which regulates the

handling of melons grown in South

Texas. Authorization to assess Texas

melon handlers enables the Committee

to incur expenses that are reasonable

and necessary to administer the

program.

DATES: Effective on October 1, 1996.

Comments received by March 24, 1997,

will be considered prior to issuance of

a final rule.

ADDRESSES: Interested persons are

invited to submit written comments

concerning this rule. Comments must be

sent in triplicate to the Docket Clerk,

Fruit and Vegetable Division, AMS,

USDA, P.O. Box 96456, room 2525–S,

Washington, DC 20090–6456, FAX 202–

720–5698. Comments should reference

the docket number and the date and

page number of this issue of the Federal

Register and will be available for public

inspection in the Office of the Docket

Clerk during regular business hours.

FOR FURTHER INFORMATION CONTACT:

Belinda G. Garza, Marketing Specialist,

McAllen Marketing Field Office, Fruit

and Vegetable Division, AMS, USDA,

1313 East Hackberry, McAllen, TX

78501, telephone 210–682–2833, FAX

210–682–5942, or Martha Sue Clark,

Program Assistant, Marketing Order

Administration Branch, Fruit and

Vegetable Division, AMS, USDA, P.O.

Box 96456, room 2525–S, Washington,

DC 20090–6456; telephone 202–720–

9918; 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 2525–S, Washington,

DC 20090–6456; telephone 202–720–

2491; FAX 202–720–5698.

SUPPLEMENTARY INFORMATION: This rule

is issued under Marketing Agreement

No. 156 and Order No. 979, both as

amended (7 CFR part 979), regulating

the handling of melons grown in South

Texas, 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. Under the marketing order now

in effect, South Texas melon handlers

are subject to assessments. It is intended

that the assessment rate as issued herein

will be applicable to all assessable

melons beginning October 1, 1996, and

continuing until amended, suspended,

or terminated. 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. Such

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.

Pursuant to requirements set forth in

the Regulatory Flexibility Act (RFA), the

Agricultural Marketing Service (AMS)

has considered the economic impact of

this rule 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 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 32 producers

of South Texas melons in the

production area and approximately 24

handlers subject to regulation under the

marketing order. Small agricultural

producers have been defined by the

Small Business Administration (13 CFR

121.601) as those having annual receipts

less than $500,000 and small

agricultural service firms are defined as

those whose annual receipts are less

than $5,000,000. The majority of South

Texas melon producers and handlers

may be classified as small entities.

The melon marketing order provides

authority for the Committee, with the

approval of the Department, to

formulate an annual budget of expenses

and collect assessments from handlers

to administer the program. The

members of the Committee are

producers and handlers of South Texas

melons. They are familiar with the

Committee’s needs and with the costs

for goods and services in their local area

and are thus in a position to formulate

an appropriate budget and assessment

rate. The assessment rate is formulated

and discussed in a public meeting.