Tomatoes Grown in Florida; Modification of Handling Regulations
| Published date | 16 April 2019 |
| Citation | 84 FR 15528 |
| Record Number | 2019-07530 |
| Section | Proposed rules |
| Court | Agricultural Marketing Service,Agriculture Department |
Federal Register, Volume 84 Issue 73 (Tuesday, April 16, 2019)
[Federal Register Volume 84, Number 73 (Tuesday, April 16, 2019)]
[Proposed Rules]
[Pages 15528-15531]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-07530]
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Proposed Rules
Federal Register
________________________________________________________________________
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.
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Federal Register / Vol. 84, No. 73 / Tuesday, April 16, 2019 /
Proposed Rules
[[Page 15528]]
DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Part 966
[Doc. No. AMS-SC-18-0075; SC19-966-1 PR]
Tomatoes Grown in Florida; Modification of Handling Regulations
AGENCY: Agricultural Marketing Service, USDA.
ACTION: Proposed rule.
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SUMMARY: This proposed rule would implement a recommendation from the
Florida Tomato Committee (Committee) to change the handling regulations
under the Marketing Order regulating the handling of tomatoes grown in
Florida. This action would remove the standard weight requirements for
tomato containers under the handling regulations.
DATES: Comments must be received by May 16, 2019.
ADDRESSES: Interested persons are invited to submit written comments
concerning this proposal. Comments must be sent to the Docket Clerk,
Marketing Order and Agreement Division, Specialty Crops Program, AMS,
USDA, 1400 Independence Avenue SW, STOP 0237, Washington, DC 20250-
0237; Fax: (202) 720-8938; or internet: http://www.regulations.gov. All
comments should reference the document 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, or can be viewed at: http://www.regulations.gov. All
comments submitted in response to this proposal will be included in the
record and will be made available to the public. Please be advised that
the identity of the individuals or entities submitting the comments
will be made public on the internet at the address provided above.
FOR FURTHER INFORMATION CONTACT: Steven W. Kauffman, Marketing
Specialist, or Christian D. Nissen, Regional Director, Southeast
Marketing Field Office, Marketing Order and Agreement Division,
Specialty Crops Program, AMS, USDA; Telephone: (863)324-3375, Fax:
(863) 291-8614, or Email: [email protected] or
[email protected].
Small businesses may request information on complying with this
regulation by contacting Richard Lower, Marketing Order and Agreement
Division, Specialty Crops Program, AMS, USDA, 1400 Independence Avenue
SW, STOP 0237, Washington, DC 20250-0237; Telephone: (202) 720-2491,
Fax: (202) 720-8938, or Email: [email protected].
SUPPLEMENTARY INFORMATION: This action, pursuant to 5 U.S.C. 553,
proposes an amendment to regulations issued to carry out a marketing
order as defined in 7 CFR 900.2(j). This proposed rule is issued under
Marketing Agreement No. 125 and Order No. 966, as amended (7 CFR part
966), regulating the handling of tomatoes grown in Florida. Part 966
(referred to as 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 Committee locally
administers the Order and is comprised of producers operating within
the production area.
The Department of Agriculture (USDA) is issuing this proposed rule
in conformance with Executive Orders 13563 and 13175. This action falls
within a category of regulatory actions that the Office of Management
and Budget (OMB) exempted from Executive Order 12866 review.
Additionally, because this proposed rule does not meet the definition
of a significant regulatory action, it does not trigger the
requirements contained in Executive Order 13771. See OMB's Memorandum
titled ``Interim Guidance Implementing Section 2 of the Executive Order
of January 30, 2017, titled `Reducing Regulation and Controlling
Regulatory Costs'[thinsp]'' (February 2, 2017).
This proposed rule has been reviewed under Executive Order 12988,
Civil Justice Reform. This proposed rule is not intended to have
retroactive effect.
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 USDA 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, USDA 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 USDA's ruling on the petition,
provided an action is filed not later than 20 days after the date of
the entry of the ruling.
This proposed rule invites comments on eliminating the standard
weight certification requirement established under the Order for the
2019-20 and subsequent fiscal periods. This action would reduce time
and costs associated with tomato inspection at handling facilities. The
Committee unanimously approved this recommendation at public meetings
held on August 24, 2018, and on September 6, 2018.
Section 966.52 of the Order provides authority to the Committee to
establish pack and container requirements for tomatoes grown within the
regulated area. This includes fixing the size, weight, capacity,
dimensions, markings, or pack of the container which may be used in the
packaging, transportation, sale, shipment, or other handling of
tomatoes.
Section 966.323 sets forth the handling regulations for Florida
tomatoes. Section 966.323(a)(3)(i) designates the container
requirements for weight and that Section 51.1863 of the U.S. Tomato
Standards (7 CFR 51.1863), which specifies the standard weight
requirement, shall apply to all containers.
Section 966.60 requires Florida tomatoes to be inspected and
certified by authorized representatives of the Federal or Federal-State
Inspection Service (FSIS), or such other inspection service as the
Secretary shall designate. The Florida Department of Agriculture and
Consumer Services is an agency employing state workers who collaborate
with the USDA to provide inspection services to areas not serviced by
federal employees. FSIS currently certifies to standard weight as part
of the inspection process.
[[Page 15529]]
The Committee met on August 24, 2018, and on September 6, 2018, to
discuss current standard weight procedures and compliance with the
standard weight certification requirements. Representatives from USDA's
Specialty Crop Inspection Division (SCI) and from FSIS were present to
participate in the discussion. These representatives informed Committee
members that some handling facilities were not maintaining compliance
with the standard weight certification requirements.
The current inspection sampling rate for standard weight
certification is 36 containers sampled based on a lot size of 1600
containers. FSIS currently samples eight tomato containers from each
lot for grade and size inspection, and these containers are also
weighed as part of the sampling for standard weight. In order to comply
with standard weight certification procedures, an additional 28
containers need to be weighed. To lower the inspection time and cost,
many tomato handlers provide an employee to sample and weigh the
additional 28 containers to reach the total 36 samples required for the
standard weight certification of each lot.
The containers weighed must meet the prescribed inspection
requirements in Sec. 51.1863 for certification of the lot. Section
51.1863 specifies that when packages are marked to a net weight of 15
pounds or more, the net weight of the contents shall not be less than
the designated net weight and shall not exceed the designated weight by
more than 2 pounds. In order to allow for variations incident to proper
sizing, not more than 15 percent, by count, of the packages in any lot
may fail to meet the requirements for standard weight. Most of the
tomatoes produced in the production area are packed in 25-pound
containers.
In their discussion, Committee members stated the current sampling
rate requires costly labor and is a time-consuming process that is
difficult to maintain due to the handling volume in many operations.
One industry member stated that the volume of lots inspected at some
handling operations can total around 50 lots in a single 24-hour
period. If 50 lots were inspected in one day this would equal a total
of 1800 samples selected for recording the weight. The handler's
employee would be responsible for pulling and weighing 1400 of these
25-pound samples to meet the standard weight requirement. Thus, high
volume handlers may have to employ multiple people to perform the
weight inspections.
The labor provided by the handler expedites the certification
process and is lower than the cost of having FSIS inspectors weigh the
additional cartons. However, standard weight certification is still
expensive to maintain. One member stated that providing the necessary
employees at their handling facility to properly administer the
certification program cost an extra $80,000 a year above the fees
charged by FSIS inspection.
The Committee asked if it might be possible to lower the sampling
rate while maintaining the certification process as the container
sampling size for standard weight is several times greater than the
number of containers sampled by FSIS when certifying for grade and
size. SCI stated that certification at a rate lower than 36 samples
would require a study that could statistically support a new sampling
rate. SCI indicated a study would possibly take a year to develop,
implement, and to analyze the results. Committee members expressed
concern over the time and cost of carrying out such a study, and that
the best course of action may be to remove the requirement for standard
weight inspection.
In discussing the value of the weight certification program,
Committee members stated that receivers of Florida tomato shipments
still perform weight inspections regardless of the required weight
certification. Even with the standard weight certification, there are
occasions when weight is an issue and the shipper often rectifies any
discrepancies by making an adjustment to the shipment for the receiver.
At both meetings, Committee members expressed that handling operations
are spending thousands of dollars annually to meet the certification
requirement without realizing a significant benefit from the program.
Committee members stated that the expense of labor and inspection time
for certification is difficult to justify since the handler already
makes an adjustment for the receiver regardless of the certification.
Committee members also stated that tomato handlers outside the
regulated area are not required to maintain standard weight
certification. One member indicated that eliminating the standard
weight requirement on Florida tomato handlers would allow the
industry's inspection procedures to be more comparable to handlers
outside the regulated area. Another commenter stated that most handlers
are now using in-line scales to weigh each container and did not see
the benefit of requiring standard weight certification.
Removing the standard weight requirement would allow handlers to
avoid the time and labor costs associated with the certification
process. The Committee believes there is no longer enough benefit to
justify maintaining the standard weight certification, and unanimously
recommended eliminating the standard weight requirements for the 2019-
20 and subsequent fiscal periods.
Committee members agreed that maintaining the individual net weight
requirements for containers is still a valuable component of the Order.
The current net weight requirements state all tomatoes packed by a
registered handler shall be packed in containers of 10, 20, and 25
pounds designated net weights. The net weight of the contents shall not
be less than the designated net weight and shall not exceed the
designated net weight by more than two pounds. This action would not
modify that requirement.
With this action, FSIS would still sample the required containers
to perform size and grade inspection along with recording the weights
from each sample. FSIS could provide a record of the weights from the
eight samples inspected for size and grade upon request. The Committee
noted that the eight samples weighed by FSIS would provide an
independent record to reference in addition to the in-line automated
weighing systems used by many handlers. The Committee believes the
eight samples weighed by FSIS in conjunction with the automated
weighing systems would provide ample information regarding the
container weights for each lot. Further, eliminating the standard
weight requirement would not preclude the handler from requesting a
standard weight inspection.
Section 8e of the Act (7 U.S.C. 608e-1) provides 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, and maturity requirements.
No corresponding change to the import regulations is required as this
is a proposal to change the container requirements.
Initial Regulatory Flexibility Analysis
Pursuant to requirements set forth in the Regulatory Flexibility
Act (RFA) (5 U.S.C. 601-612), the Agricultural Marketing Service (AMS)
has considered the economic impact of this proposed rule on small
entities. Accordingly, AMS has prepared this initial regulatory
flexibility analysis.
[[Page 15530]]
The purpose of the RFA is to fit regulatory actions to the scale of
businesses 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.
There are approximately 75 producers of Florida tomatoes in the
production area and 37 handlers subject to regulation under the Order.
Small agricultural producers are defined by the Small Business
Administration (SBA) as those having annual receipts less than
$750,000, and small agricultural service firms are defined as those
whose annual receipts are less than $7,500,000 (13 CFR 121.201).
According to industry and Committee data, the average annual price
for fresh Florida tomatoes during the 2017-18 season was approximately
$12.56 per 25-pound container, and total fresh shipments were 25.9
million containers. Using the average price and shipment information,
the number of handlers, and assuming a normal distribution, the
majority of handlers have average annual receipts of more than
$7,500,000, ($12.56 times 25.9 million containers equals $325,304,000
divided by 37 handlers equals $8,792,000 per handler).
In addition, based on production data, an estimated producer price
of $6.00 per 25-pound container, the number of Florida tomato
producers, and assuming a normal distribution, the average annual
producer revenue is above $750,000 ($6.00 times 25.9 million containers
equals $155,400,000 divided by 75 producers equals $2,072,000 per
producer). Thus, the majority of handlers and producers of Florida
tomatoes may be classified as large entities.
This proposed rule would eliminate the standard weight
certification requirement under the Order. The Committee determined
there is no longer sufficient benefit to justify the cost and time
required for the standard weight certification. This proposed action
would enable handlers to reduce inspection time and labor costs
associated with the standard weight program. This rule would revise
Sec. 966.323. Authority for these changes is provided in Sec. 966.52.
It is not anticipated that this action would impose additional
costs on handlers or growers, regardless of size. The proposed changes
are intended to reduce expenses incurred for labor and inspection time
associated with the certification process for standard weight.
The current inspection sampling rate for standard weight
certification based on a lot size of 1600 containers is 36 containers.
FSIS currently samples eight tomato containers from each lot for grade
and size inspection, and these containers are also weighed as part of
the sampling for standard weight. In order to comply with standard
weight certification procedures, an additional 28 containers need to be
weighed. To lower the inspection time and cost, many tomato handlers
provide an employee to sample and weigh the additional 28 containers to
reach the total 36 samples required for the standard weight
certification of each lot.
Total fresh shipments of Florida tomatoes for the 2017-18 season
were 25.9 million 25-pound containers. This volume represents
approximately 16,188 normal lots of tomatoes requiring inspection for
standard weight. Using 2017-18 volume, this change would eliminate the
requirement that inspection personnel or handler employees lift, weigh,
and record approximately 453,265 25-pound containers during a similar
season. This analysis illustrates the laborious nature involved in the
standard weight inspection and certification process.
Avoiding the time and labor costs associated with standard weight
certification would reduce expenses for the Florida tomato industry.
This proposed action would reduce the labor required for the inspection
process by thousands of hours every year, reducing the cost for
handlers. The expense of labor for inspection can vary widely between
handler employees and the FSIS. However, one Committee member stated
that this action would save his handling operation $80,000 every year.
This proposed action is expected to lower handler cost associated with
the inspection process. The benefits of this rule are expected to be
equally available to all Florida fresh tomato handlers, regardless of
size.
The Committee considered an alternative to this proposed action.
Prior to this recommendation, the Committee discussed lowering the
sampling size for the standard weight certification program with the
SCI. However, after further discussion on the inspection process and
the time it could possibly take to review, the Committee determined the
standard weight program no longer provided sufficient benefit to
justify the cost and time required for certification. Therefore, the
alternative was rejected.
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C.
Chapter 35), the Order's information collection requirements have been
previously approved by OMB and assigned OMB No. 0581-0178 Vegetable and
Specialty Crops. No changes are necessary in those requirements as a
result of this proposed action. Should any changes become necessary,
they would be submitted to OMB for approval.
This proposed rule would not impose any additional reporting or
recordkeeping requirements on either small or large Florida 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 sector agencies.
AMS is committed to complying with the E-Government Act, to promote
the use of the internet and other information technologies to provide
increased opportunities for citizen access to Government information
and services, and for other purposes.
USDA has not identified any relevant Federal rules that duplicate,
overlap or conflict with this proposed rule.
The Committee's meetings were 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 August 24 and September 6,
2018, meetings were public meetings, and all entities, both large and
small, were able to express their views on this issue. Interested
persons are invited to submit comments on this proposed rule, including
the regulatory and information collection impacts of this proposed
action on small businesses.
A small business guide on complying with fruit, vegetable, and
specialty crop marketing agreements and orders may be viewed at: http://www.ams.usda.gov/rules-regulations/moa/small-businesses. Any questions
about the compliance guide should be sent to Richard Lower at the
previously mentioned address in the FOR FURTHER INFORMATION CONTACT
section.
A 30-day comment period is provided to allow interested persons to
respond to this proposal. All written comments timely received will be
considered before a final determination is made on this matter.
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
proposed to be amended as follows:
[[Page 15531]]
PART 966--TOMATOES GROWN IN FLORIDA
0
1. The authority citation for 7 CFR part 966 continues to read as
follows:
Authority: 7 U.S.C. 601-674.
0
2. Amend Sec. 966.323 by revising paragraphs (a)(3)(i) and the last
two sentences of paragraph (g) to read as follows:
Sec. 966.323 Handling Regulations.
* * * * *
(a) * * *
(3) * * *
(i) All tomatoes packed by a registered handler shall be packed in
containers of 10, 20, and 25 pounds designated net weights. The net
weight of the contents shall not be less than the designated net weight
and shall not exceed the designated net weight by more than two pounds.
* * * * *
(g) * * * U.S. tomato standards means the revised United States
Standards for Fresh Tomatoes (Sec. Sec. 51.1855 through 51.1877)
effective October 1, 1991, as amended, or variations thereof specified
in this section, Provided that 51.1863 shall not apply to tomatoes
covered by this part. Other terms in this section shall have the same
meaning as when used in Marketing Agreement No. 125, as amended, and
this part, and the U.S. tomato standards.
Dated: April 11, 2019.
Bruce Summers,
Administrator, Agricultural Marketing Service.
[FR Doc. 2019-07530 Filed 4-15-19; 8:45 am]
BILLING CODE 3410-02-P
