[Federal Register: February 18, 2000 (Volume 65, Number 34)]
[Rules and Regulations]
[Page 8247-8253]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr18fe00-2]
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DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Part 966
[Docket No. FV98-966-2 FIR]
Tomatoes Grown in Florida; Partial Exemption From the Handling
Regulation for Producer Field-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, with a change, the provisions of an amended interim final
rule changing the handling requirements prescribed under the Florida
tomato marketing order (order). The order regulates the handling of
tomatoes grown in Florida and is administered locally by the Florida
Tomato Committee (committee). This rule continues to exempt shipments
of producer field-packed tomatoes from the container net weight
requirements and the requirement that all tomatoes must be packed at
registered handler facilities. This rule also continues to exempt
shipments of certain-sized producer field-packed tomatoes from a
[[Page 8248]]
maximum size requirement specified in the handling regulation.
Continuation of these exemptions will allow the industry to pack a
higher colored, riper tomato to meet the demand of the expanding market
for vine-ripe tomatoes, facilitate the movement of Florida tomatoes,
and should continue to improve returns to producers.
EFFECTIVE DATE: March 20, 2000.
FOR FURTHER INFORMATION CONTACT: Christian D. Nissen, Southeast
Marketing Field Office, Marketing Order Administration Branch, F&V,
AMS, USDA, P.O. Box 2276, Winter Haven, Florida 33883-2276; telephone:
(863) 299-4770, Fax: (863) 299-5169; or George Kelhart, Technical
Advisor, 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 complying with this
regulation by contacting Jay Guerber, Marketing Order Administration
Branch, Fruit and Vegetable Programs, AMS, USDA, P.O. Box 96456, room
2525-S, Washington, DC 20090-6456; telephone (202) 720-2491, Fax: (202)
720-5698, or E-mail: Jay.Guerber@usda.gov.
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 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. 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 the date of the entry of the ruling.
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 apply during the period October 10 through June 15
each year. Current requirements include a minimum grade of U.S. No. 2
and a minimum size of 2\9/32\; inches in diameter. Current pack and
container requirements outline the types of information that need to
appear on a container, weight restrictions the packed containers must
meet, and that the containers must be packed at a registered handler's
facility.
Section 966.52 of the order provides authority for the
modification, suspension, and termination of regulations. It includes
the authority to establish and modify pack and container requirements
for tomatoes grown in the defined production area and handled under the
order.
The order's handling regulation, Sec. 966.323, specifies the
regulations for Florida tomatoes. Section 966.323(a)(3)(i) requires
that certain types of tomatoes packed by registered handlers be packed
in containers of 10, 20, and 25 pounds designated net weights. The net
weight cannot be less than the designated weight or exceed the
designated weight by more than two pounds. Section 966.323(a)(3)(ii)
currently requires that certain types of tomatoes be packed by
registered handlers in containers that are marked with the designated
net weight and with the name and address of the registered handler, and
that such containers must be packed at the registered handler's
facilities.
This rule continues in effect changes to the handling regulation
under the order. This rule continues to define producer field-packed
tomatoes and allows handlers to ship field-packed tomatoes exempt from
the net weight requirements. This rule also continues to exempt
producer field-packed tomatoes from the requirement that all tomatoes
be packed at a registered handler's facility.
In addition, this rule continues to exempt shipments of certain-
sized producer field-packed tomatoes from a maximum diameter
requirement specified in the handling regulation. Specifically, field-
packed tomatoes designated as size ``6 x 6'' may be larger than 2\27/
32\; inches in diameter. This rule continues to make a related change
to the labeling requirement for 6 x 6-sized field-packed tomatoes. The
field-packed tomato exemption also was revised for clarity, and is
continued in effect.
These tomatoes will still be subject to all other provisions of the
handling regulation, including established grade, size, container,
pack, and inspection requirements. These tomatoes also will continue to
be subject to assessments. The committee met September 11, 1998, and
May 26, 1999, and unanimously recommended these changes.
In its discussion of this rule, the committee recognized that the
market for red, ripe tomatoes or vine-ripes is continuing to grow.
Place packed vine-ripe tomatoes are shipped from many foreign and
domestic growing areas, and currently maintain a strong and growing
market share. Committee members stated that the popularity of the red,
ripe tomato is evident in the increasing popularity of greenhouse and
hydroponic tomatoes. These tomatoes tend to be marketed at a red,
mature stage. Customer studies have shown that consumers prefer
tomatoes that are of high color, and that are mature and ready to eat.
According to a committee study, retailers believe that the vine-ripe
tomato is the tomato of the future. The committee stated that this is
the fastest growing market segment.
Field-Packed Tomatoes Defined
Currently, the majority of Florida tomatoes are shipped at the
mature green stage. Vine-ripe tomatoes represent only about 15.5
percent of total fresh shipments (8,791,389 of 56,706,685 25-pound
containers shipped during the 1998-99 season). In an effort to put the
industry in a more advantageous position to take advantage of this
growing market, and to improve returns to producers, the committee
recommended changes to the order's handling regulation. These changes
were recommended to help facilitate the movement of more vine-ripe
tomatoes from Florida. To accomplish this, the committee recommended
changes to the regulations to define a producer field-packed tomato and
provide exemptions for such tomatoes to facilitate their movement.
Producer field-packed tomatoes are defined as tomatoes which at the
time of inspection are No. 3 color or higher (according to color
classification requirements in the U.S. tomato standards), that are
picked and
[[Page 8249]]
place packed in new containers in the field by a producer as defined in
Sec. 966.150 of the rules and regulations. The tomatoes are then
transferred to the registered handler's facilities for final
preparation for market and for inspection.
Shipments of mature green tomatoes represented approximately 84.5
percent of total fresh shipments during the 1998-99 season. Tomatoes
are picked and packed at the mature green stage to facilitate handling.
The vast majority of mature green tomatoes are packed using a
mechanized process. The tomatoes are brought to the packing house where
they are washed, run across sizing equipment, and then are packed in
volume fill containers. At the mature green stage, the tomatoes are
firm and are able to handle the packing process. This is an efficient
process that facilitates packing in volume.
However, when trying to pack a tomato that is more ripe and mature,
the process used to pack mature greens is not as effective. This is
because as the tomato begins to ripen it begins to soften. Tomatoes of
No. 3 color and above cannot handle the rigors of the mechanized
handling process. This packing process bruises and damages more mature
tomatoes, increasing the volume of culls and those that fail inspection
for grade.
To provide a better way to handle mature tomatoes, and to provide
for a greater volume of such tomatoes from Florida, the committee
recommended developing a producer field-packed tomato. To facilitate
the handling of this tomato, the committee recommended that it be
exempt from certain parts of the handling regulations. This rule
continues to exempt producer field-packed tomatoes from the requirement
that tomatoes be packed at a registered handler's facility, and the
designated net weight requirements. It also continues in effect the
requirement that 6 x 6-sized producer field-packed tomatoes be exempt
from the 2\27/32\ inch maximum diameter.
Field-Packed Tomatoes Exempt From Being Packed at Registered
Handler Facilities
Section 966.323(a)(3)(ii) specifies, in part, that all tomatoes are
to be packed at a registered handler's facilities. This rule continues
to exempt producer field-packed tomatoes from this requirement. By
providing this exemption, the number of times the tomato is handled is
reduced. Mature green tomatoes can withstand the multiple handling
involved in this process, a more mature tomato cannot. Under this
exemption, the producer field-packed tomato only needs to be handled
once, when it is picked and packed in the field. It is not subjected to
the rigors of a mechanical process. Under the producer field-packed
process, the tomatoes are sized, cleaned, and packed by hand. This
process of picking and packing in the field makes it substantially
easier to pack a tomato of higher color and maturity. All tomatoes for
shipment outside the regulated area must be packed in new boxes. The
tomatoes are delivered to a registered handler for final preparation
for market. The tomatoes are inspected for grade, size, and proper pack
after delivery to the registered handler's facility.
Field-Packed Tomatoes Exempt From Net Weight Requirements
This rule also continues to exempt producer field-packed tomatoes
from the net weight requirements specified in the rules and
regulations. Section 966.323(a)(3)(i) currently requires that certain
types of tomatoes packed by registered handlers be packed in containers
of 10, 20, and 25 pounds designated net weights. The net weight cannot
be less than the designated weight or exceed the designated weight by
more than two pounds.
By definition, producer field-packed tomatoes will be place packed
in the field. 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.
Most tomatoes shipped in 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. Mature green
tomatoes are not as susceptible to bruising and other damage during
packing and transport as are producer field-packed tomatoes. If volume
fill was used to pack producer field-packed tomatoes, serious product
bruising would result which would detract from the appearance and
marketability of these tomatoes.
However, place packing does not lend itself well to meeting a
required net weight. The tomatoes have to be properly sized and placed
to fit snugly in the container. During the harvesting season, the
weight of equal size tomatoes may vary dramatically. When tomatoes are
place-packed, the handler cannot add extra tomatoes when the container
weight is light. Because the tomatoes are packed in layers, when a
layer is complete there are no spaces for additional tomatoes.
Similarly, when the tomatoes are heavy, the handler cannot remove a
tomato to meet a 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 and would be a marketing
problem. To overcome this problem, the committee recommended that
shipments of producer field-packed tomatoes as defined herein, be
exempt from the container net weight requirements of the rules and
regulations.
``6 x 6'' Field-Packed Tomatoes Maximum Size Requirement
Exemption
Because the tomatoes are packed in the field, the tomatoes are
sized by hand, not using the precision of sizing belts. While field-
packed tomatoes are successfully meeting minimum size requirements,
some lots were having difficulty meeting the maximum size requirements
as specified for the 6 x 6 size designation.
Currently, section 966.323(a)(2)(i) specifies that all tomatoes
packed by a registered handler must meet a minimum size requirement of
2\9/32\ inches in diameter. That section also requires that all such
tomatoes must be sized with proper equipment in one of three specified
ranges of diameter. For example, tomatoes designated as ``6 x 7''
must be a minimum of 2\9/32\ inches in diameter and a maximum of 2\19/
32\. Tomatoes, other than producer field-packed tomatoes, designated as
``6 x 6'' must be a minimum of 2\17/32\ inches in diameter and a
maximum of 2\27/32\ inches in diameter. Tomatoes designated as ``5 x
6'' must be a minimum of 2\25/32\ inches in diameter with no maximum
size requirement. Finally, to allow for variation incident to proper
sizing, not more than a total of 10 percent, by count, of the tomatoes
in the lot may be smaller than the specified minimum diameter or larger
than the maximum diameter.
Since the handling regulation was changed in October 1998 to exempt
field-packed tomatoes from certain handling requirements, some 6 x 6-
sized lots failed inspection due to oversized tomatoes in the pack. As
stated above, 6 x 6-sized lots of tomatoes previously had to meet
both minimum and maximum size requirements, within specified
tolerances. Tomatoes that are run over a sizing belt in a packing house
[[Page 8250]]
have little difficulty in meeting these requirements. However,
producers packing tomatoes in the field must use hand-sizers. It is
relatively easy to pick to a minimum size. However, it is much more
difficult to pick tomatoes within a range of fractions of an inch.
Presenting a packed lot of tomatoes for inspection, and having it
fail is costly. The handler can either find an outlet other than the
fresh market for the tomatoes or rework the lot so it passes
inspection. In the case of field-packed tomatoes, reworking a lot is
substantially more difficult. The tomatoes cannot be dumped then run
across the machinery again to ensure that they meet inspection, but
must be sorted through by hand. This is extremely time-consuming, and
because the fruit is ripe, can cause additional bruising. In most
cases, it is one or two tomatoes in a box that cause it to fail for
size. Thus, the committee met in May 1999 and recommended the change
for producer field-packed tomatoes.
The committee recommended that 6 x 6-sized producer field-packed
tomatoes be exempt from the 2\27/32\ inch maximum diameter requirement
specified in Sec. 966.323(a)(2)(i) of the handling regulation. The
amended interim final rule published on August 20, 1999 (64 FR 45409)
implemented the recommendation and this action continues to allow for
additional oversized tomatoes, without the lot failing for size. While
this change does allow for additional larger tomatoes to be included in
the 6 x 6 pack, there is still a distinction between it and the 5 x 6.
The 6 x 6 pack is an opportunity to sell a smaller tomato. This change
provides some additional flexibility to address sizing problems
relating to packing in the field. The 5 x 6 tomato is still the premium
size, demanding the higher price. For this reason, the vast majority of
tomatoes that meet the size requirements for 5 x 6 will continue to be
packed in a 5 x 6 container. Also according to the committee, buyers
should not object to oversized fruit in the 6 x 6 pack because they
have the option of grading it out for a premium product or passing it
on to their customers as a larger tomato at a less expensive price.
``6 x 6'' Field-Packed Tomatoes Must Be Labeled as ``6 x 6 and
Larger''
The committee also recommended a related change in the labeling
requirement specified in Sec. 966.323(a)(2)(iii) of the handling
regulation. Previously, that section required that only ``6 x 7,'' ``6
x 6,'' or ``5 x 6'' be used to indicate the respective size designation
on containers of tomatoes. The committee recommended that shipments of
6 x 6-sized producer field-packed tomatoes be marked as ``6 x 6 and
larger'' to more accurately reflect the contents of the container which
could include 5 x 6-sized tomatoes. The words ``and larger'' are not
required on 5 x 6-sized field-packed tomatoes because that is the
largest designated size defined by a minimum diameter and includes all
sizes above the minimum.
In evaluating alternatives to this change, such as increasing the
percentage tolerance for oversize, it was concluded that the changes
provided in the amended interim final rule are the better and more
effective way to accomplish the committee's goal. Containers will be
marked ``6 x 6 and larger'' which will separate them from the standard
6 x 6 and will tell buyers that the package includes some larger
tomatoes. And, as stated earlier, while this does provide for
additional larger tomatoes to be packed in a 6 x 6 pack, it should not
blur the distinction between a 6 x 6 and 5 x 6.
The committee continues to focus on ways to be competitive, develop
new markets, and increase grower returns. The committee believes these
changes will continue to provide the industry with more flexibility and
additional marketing opportunities.
The committee continues to believe that producer field-packed
tomatoes will increase the volume of vine-ripe tomatoes available from
Florida. This has been a market that has been expanding and not
traditionally served by much volume from the Florida tomato industry.
The committee also continues to believe that this change will allow
producers to harvest tomatoes that might otherwise have been left in
the field. There is also an indication that handlers will be willing to
pay a higher price for producer field-packed tomatoes. The committee
continues to believe that the higher prices combined with additional
tomato sales should continue to increase returns to producers.
Other changes are continued by this rule. Yellow meated tomatoes,
specialty packed red ripe tomatoes, single layer and two layer place
packed tomatoes, and now producer field-packed tomatoes as well, are
exempt from the container net weight requirement in
Sec. 966.323(a)(3)(i). In its discussions, the committee said that
Sec. 966.323(a)(3)(ii) states that each container or lid shall be
marked to indicate the designated net weight. They said that in the
past, there had been some confusion as to how this applies to those
tomatoes exempt from net weight. The committee voted unanimously to
exempt those tomatoes exempt from net weight from the requirement that
net weight appear on the container or lid to rectify this problem. This
rule continues to make this change. Also, the deletion of unnecessary
language in the first sentence of Sec. 966.323(d)(1) continues in
effect.
In addition, a minor change is being made in Sec. 966.140 of the
order's rules and regulations. The change removes the reference to the
form number (FV-418) for the transfer clearance receipt. This form may
accompany truck shipments of tomatoes, in place of an inspection
certificate. This is a Florida State form, not a Committee form, used
in verifying that the load of tomatoes had been previously inspected
and certified. The form now has a different number from that referenced
in Sec. 966.140 and the number could change again without the
committee's knowledge. Thus, the reference to the form number is being
removed.
Section 8e 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. However, the Act does
not authorize the imposition of container requirements on imports, when
such requirements are in effect under a domestic marketing order.
Therefore, no change is necessary in the tomato import regulation as a
result of this action.
Final Regulatory Flexibility Analysis
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, AMS has
prepared this final 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 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 65 handlers of Florida tomatoes who are
subject to regulation under the order and approximately 75 tomato
producers in the regulated area. Small agricultural service firms,
which include handlers, have been defined by the Small Business
Administration (SBA) as those
[[Page 8251]]
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 (13 CFR 121.601).
Based on the industry and committee data, the average annual f.o.b.
price for fresh Florida tomatoes during the 1998-99 season was around
$7.40 per 25-pound carton or equivalent, and total fresh shipments for
the 1998-99 season were 56,706,685 25-pound equivalent cartons of
tomatoes. Based on this information, the shipment information for the
1998-99 season, and the 1998-99 season average price, 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.
Under Sec. 966.52 of the Florida tomato marketing order, the
committee, among other things, has authority to establish and modify
pack and container requirements for tomatoes grown in the defined
production area and handled under the order. This rule continues to
define a producer field-packed tomato and provide exemptions for such
tomatoes from the net weight requirements and the requirements that
tomatoes be packed at a registered handler's facilities. This rule
continues to allow for the place packing of ripe tomatoes in the field.
Vine ripe tomatoes represent only about 15.5 percent of total fresh
shipments (8,791,389 of 56,706,685 25-pound containers shipped during
the 1998-99 season).
In addition, this rule continues to exempt shipments of field-
packed tomatoes designated as size 6 x 6 from a maximum diameter
requirement of 2\27/32\ inches specified in Sec. 966.323(a)(2)(i). This
rule continues to make a related change in the labeling requirement
specified in Sec. 966.323(a)(2)(iii) whereby shipments of 6 x 6-sized
producer field-packed tomatoes must be marked as ``6 x 6 and larger''
to more accurately reflect the contents of the container. It also
continues to clarify net weight labeling requirements. Authority for
these changes also is provided in Sec. 966.52 of the order.
The committee recommended these changes to improve the marketing of
Florida tomatoes and follow the trend of increased demand for red,
mature tomatoes. This trend is in response to a strong consumer demand
for such tomatoes. This rule continues to allow the industry to pack a
higher colored, riper tomato to meet the demand of the expanding market
for vine-ripe tomatoes. This action will continue to facilitate the
movement of Florida tomatoes and should continue to improve returns to
producers.
Producer field-packed tomatoes are defined as tomatoes which at the
time of inspection are No. 3 color or higher (according to color
classification requirements in the U.S. tomato standards), that are
picked and place packed in new containers in the field by a producer as
defined in Sec. 966.150 of the rules and regulations. The tomatoes are
then transferred to the registered handler's facilities for final
preparation for market and for inspection.
This rule will continue to have a positive impact on affected
entities. The changes were recommended to provide additional
flexibility in the packing of tomatoes of higher color and maturity.
Providing an exemption for producer field-packed tomatoes from the
requirement that tomatoes be packed at a registered handler's
facilities, reduces the number of times the tomato is handled. It also
facilitates the packing of producer field-packed tomatoes free from the
mechanized process of grading and sizing used for mature green
tomatoes. Tomatoes of No. 3 color and above cannot handle the rigors of
the mechanized handling process. This packing process bruises and
damages more mature tomatoes, increasing the volume of culls and those
that fail inspection for grade. By providing this exemption, the
producer field-packed tomato will only be handled once, when it is
picked and packed in the field. This exemption will continue to make it
substantially easier to pack a tomato of higher color and maturity in
the field.
The exemption from the net weight requirements will continue to
allow producer field-packed tomatoes to be place packed. It is very
difficult to pack to a specified weight when place packing containers.
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. The
majority of place packed tomatoes are sold by count per container
rather than by weight. However, the place pack method of packaging does
not lend itself well when packing to meet a required net weight.
During the harvesting season, the weight of equal size tomatoes may
vary dramatically. If the producer field-packed tomatoes are light in
weight, handlers cannot add extra tomatoes to meet net weight because
the pack is full, or if the tomatoes are heavier than normal, removing
a tomato to meet net weight would mean leaving an empty space. 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
and would be a marketing problem. To overcome this problem, the
committee recommended that shipments of producer field-packed tomatoes
as defined herein, be exempt from the container net weight requirements
of the rules and regulations, and this action continues that exemption.
Continuing to provide an exemption for field-packed tomatoes
designated as size 6 x 6 from a maximum diameter requirement of 2\27/
32\ inches will allow handlers of field-packed tomatoes to successfully
meet minimum size requirements. Currently, tomatoes (other than those
field-packed by producers) designated as "6 x 6" must be a minimum of
2\17/32\ inches in diameter and a maximum of 2\27/32\ inches in
diameter. Tomatoes that are run over a sizing belt in a packing house
have little difficulty in meeting these requirements. However,
producers packing tomatoes in the field must use hand-sizers. It is
relatively easy to pick to a minimum size. However, it is much more
difficult to pick tomatoes within a range of fractions of an inch.
Presenting a packed lot of tomatoes for inspection, and having it fail
is costly. The handler can either find an outlet other than the fresh
market for the tomatoes or rework the lot so it passes inspection. In
the case of field-packed tomatoes, reworking a lot is substantially
more difficult. The tomatoes cannot be dumped then run across the
machinery again to ensure that they meet inspection, but must be sorted
through by hand. This is costly and time-consuming, and because the
fruit is ripe, can cause additional bruising. This change will continue
to allow for additional oversized tomatoes, without the lot failing for
size, providing additional flexibility and reducing reworking costs.
This rule also continues to make a related change in the labeling
requirement specified in Sec. 966.323(a)(2)(iii) whereby shipments of 6
x 6-sized producer field-packed tomatoes must be marked as ``6 x 6
and larger'' to more accurately reflect the contents of the container.
The clarification of container net weight labeling also is continued in
effect. Authority for these changes is provided in Sec. 966.52 of the
order.
In an effort to put the industry in a more advantageous position to
take advantage of this growing market, and to improve returns to
producers, the committee recommended these changes. According to
committee funded
[[Page 8252]]
research, retailers consider vine-ripe tomatoes to be the tomato type
of the future. The vine-ripe tomato market has been expanding and it is
a market where the Florida tomato industry has room to grow and expand
its market share. The committee continues to believe that producer
field-packed tomatoes will continue to increase the volume of vine-ripe
tomatoes available from Florida and that it will allow producers to
harvest tomatoes that might otherwise have been left in the field.
There is also an indication that handlers will be willing to pay a
higher price for producer field-packed tomatoes. The higher prices
combined with additional tomato sales would continue to increase
returns to producers.
There are some additional costs associated with packing in the
field. Picking, grading, and sizing by hand is more time consuming and
costly than by machine. However, there are indications that producer
field-packed tomatoes will command a higher price as the market grows.
Also, the regulated industry is not required to use this exemption.
Therefore, the additional costs are voluntary.
These changes are intended to provide additional flexibility for
all those covered under the order. The opportunities and benefits of
this rule are expected to be equally available to all tomato handlers
and growers regardless of their size of operation. This action will
continue to have a beneficial impact on producers and handlers since it
will allow tomato handlers to make additional supplies of tomatoes
available to meet consumer needs consistent with crop and market
conditions.
Regarding alternatives to the recommended actions, the committee
concluded that providing certain exemptions for shipments of field-
packed tomatoes will allow the Florida tomato industry to meet a
growing consumer demand for vine-ripe tomatoes. The exemptions from the
net weight container requirement and the requirement that all tomatoes
must be packed at registered handler facilities have been working well.
In addition, the committee concluded that continuing to require 6 x
6-sized field-packed tomatoes to meet a maximum size requirement could
discourage producers from packing such fruit because some of the packs
would fail inspection. In evaluating alternatives to this change, such
as increasing the percentage tolerance for oversize, it was concluded
that the changes provided in the amended interim final rule were the
better and more effective way to accomplish the committee's goal.
Containers are marked ``6 x 6 and larger'' which separates them from
the standard 6 x 6 and tells buyers that the package includes some
larger tomatoes. And, as stated earlier, while this does provide for
additional larger tomatoes to be packed in a 6 x 6 pack, it does not
blur the distinction between a 6 x 6 and 5 x 6. Thus, the changes
regarding the field packing of 6 x 6 and larger tomatoes and marking
the containers were determined to be the most viable course of action.
A minor change in Sec. 966.140 of the order's rules and regulations
is also being made to remove the reference to the form number for the
transfer clearance receipt which accompanies truck shipments of
tomatoes. This is a Florida State form, not a committee form. The form
now has a different number from that referenced and the number could
change again without the committee's knowledge. Removing the reference
to the number will prevent this from happening. Further, a reference to
the form number is not necessary.
This rule will not impose any additional reporting or recordkeeping
requirements on either small or large tomato handlers. As with all
Federal marketing order programs, reports and forms are periodically
reviewed to reduce information requirements and duplication by industry
and public sectors. In addition, the Department has not identified any
relevant Federal rules that duplicate, overlap or conflict with this
rule.
Further, the committee's meetings were widely publicized throughout
the tomato industry and all interested persons were invited to attend
the meetings and participate in committee deliberations. Like all
committee meetings, the September 11, 1998, and May 23, 1999, meetings
were public meetings and all entities, both large and small, were able
to express their views on these issues.
The interim final rule and an amended interim final rule concerning
this action were published in the Federal Register on October 13, 1998
(63 FR 54556), and August 20, 1999 (64 FR 45409), respectively. Copies
of the rules were mailed by the committee's staff to all committee
members and tomato handlers. In addition, the rules were made available
through the Internet by the Office of the Federal Register. Both rules
provided for a 60-day comment period which ended December 14, 1998, and
October 19, 1999, respectively.
Three comments to the interim final rule were received supporting
the rule, and two comments to the amended interim final rule were
received, also in support of the rule. In addition, an E-mail
expressing a concern about cleanliness was received by the Department
prior to publication of the October 1998 rule. The Department
considered this in this rulemaking action.
In summary, the three commenters supporting the committee's
September 1998 recommendation and the two commenters supporting the
August 1999 amendment commented on the increasing demand for field-
packed tomatoes. Three of the commenters stated that consumers prefer a
full, red ripe tomato, and that tomatoes with color are the fastest
growing segment of all types of fresh tomatoes offered for sale at the
retail level.
Another commenter mentioned that growers are benefiting from the
rule because, prior to the October 1998 action, field-packed tomatoes
could only be sold within the regulated area and most were not
inspected. According to the commenter, market gluts of poor quality
field-packed tomatoes were common in the regulated area and prices were
low. Since October 1998, the quality of field-packed tomatoes has
greatly improved because such tomatoes can be shipped outside the
regulated area, provided they meet all of the order's requirements
except for net weight. Even failed lots of field-packed tomatoes
shipped within the regulated area are returning higher prices because
of improved quality and increased demand.
Lastly, with regard to the issue of cleanliness and food safety as
expressed in the E-mail, although vine-ripe tomatoes are place-packed
in the field, final preparation includes inspection and certification
by Federal-State Inspection Service fresh products inspectors to assure
that the tomatoes meet the minimum grade and size requirements
implemented under the order. One of the quality factors against which
tomatoes are scored is cleanliness. The tomatoes must be clean.
According to the U.S. tomato standards, the term ``clean'' means that
the tomato is practically free from dirt or other foreign material.
Further, applicable Federal, State, or local food and sanitary laws and
regulations would be applicable to the extent appropriate.
A small business guide on complying with fruit, vegetable, and
speciality crop marketing agreements and orders may be viewed at the
following web site: http://www.ams.usda.gov/fv/moab.html. Any questions
about the compliance guide should be sent to Jay Guerber at the
previously mentioned
[[Page 8253]]
address for the FOR FURTHER INFORMATION CONTACT section.
After consideration of all relevant material presented, including
the committee's recommendation, the comments received in response to
the October 1998 and August 1999 interim final rules, and other
information, it is found that finalizing the interim final rule,
without change, as published in the Federal Register (63 FR 54556,
October 13, 1998) and the amended interim final rule, with a change, as
published in the Federal Register (64 FR 45409, August 29, 1999) 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.
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.
Accordingly, the interim final rule which was published at 63 FR
54556 on October 13, 1998, and the amended interim final rule amending
7 CFR part 966 which was published at 64 FR 45409 on August 20, 1999,
are adopted as a final rule with the following change:
2. In Sec. 966.140, the words ``(Form FV-418)'' are removed.
Dated: February 14, 2000.
Eric M. Forman,
Acting Deputy Administrator, Fruit and Vegetable Programs.
[FR Doc. 00-3875 Filed 2-17-00; 8:45 am]
BILLING CODE 3410-02-P
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