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

SUMMARY: This interim final rule provides 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 will facilitate the

movement of single layer and two layer place packed tomatoes and should

improve returns to producers of Florida tomatoes.

DATES: Effective October 30, 1996; comments received by November 29,

1996 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, 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: 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 2525-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) 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 exempts 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

[[Page 55730]]

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. Interested persons are invited to

submit information on the regulatory and informational impacts of this

action on small businesses.

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 interim 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 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, including

the Committee's recommendation, and other available information, it is

found that this interim final rule, as hereinafter set forth, will tend

to effectuate the declared policy of the Act.

This rule invites comments on an exemption to the pack and

container requirements currently prescribed under the Florida tomato

marketing order. Any comments received will be considered prior to

finalization of this rule.

Pursuant to 5 U.S.C. 553, it is also found and determined upon good

cause that it is impracticable, unnecessary, and contrary to the public

interest to give preliminary notice prior to putting this rule into

effect and that good cause exists for not postponing the effective date

of this rule until 30 days after publication in the Federal Register

because: (1) This action provides an exemption to container

requirements currently in effect for tomatoes grown in Florida; (2)

Florida tomato handlers are aware of this action that was unanimously

recommended by the Committee at a public meeting, and they will need no

additional time to comply with the exemption requirements; (3) Florida

tomato shipments begin October 10; and (4) this rule provides a 30-day

comment period and any comments received will be considered prior to

finalization of this rule.

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:

[[Page 55731]]

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 paragraph (d)(1) to read

as follows:

Sec. 966.323 Handling regulations

* * * * *

(d) Exemption. (1) For types. The following types of tomatoes are

exempt from the regulations in this part: Elongated types commonly

referred to as pear shaped or paste tomatoes and including but not

limited to San Marzano, Red Top, and Roma varieties; cerasiform type

tomatoes commonly referred to as cherry tomatoes; hydroponic tomatoes;

and greenhouse tomatoes. Specialty packed red ripe tomatoes, yellow

meated tomatoes, and single layer and two layer place packed tomatoes

are exempt from the container net weight requirements specified in

paragraph (a)(3)(i) of this section, but must meet the other

requirements of this section.

* * * * *

Dated: October 22, 1996.

Sharon Bomer Lauritsen,

Acting Director, Fruit and Vegetable Division.

[FR Doc. 96-27724 Filed 10-28-96; 8:45 am]

BILLING CODE 3410-02-P