Tomatoes Grown in Florida; Revisions in Requirements for Certificates of Privilege, 53537-53540 [05-17860]
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53537
Rules and Regulations
Federal Register
Vol. 70, No. 174
Friday, September 9, 2005
This section of the FEDERAL REGISTER
contains regulatory documents having general
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Federal Regulations, which is published under
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DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Part 966
[Docket No. FV05–966–1 FR]
Tomatoes Grown in Florida; Revisions
in Requirements for Certificates of
Privilege
Agricultural Marketing Service,
USDA.
ACTION: Final rule.
AGENCY:
SUMMARY: This rule revises the
Certificate of Privilege (COP)
requirements currently 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 requires those interested in
receiving Florida tomatoes shipped
under a COP to apply to the Committee
to become an approved receiver. This
rule also clarifies the definitions for
processing and pickling as used in the
rules and regulations under the order.
These changes will assist the Committee
in assuring that COP tomatoes are
disposed of into COP outlets.
EFFECTIVE DATE: This final rule becomes
effective September 10, 2005.
FOR FURTHER INFORMATION CONTACT:
William G. Pimental, Southeast
Marketing Field Office, Marketing Order
Administration Branch, Fruit and
Vegetable Programs, AMS, USDA;
Telephone: (863) 324–3375; Fax: (863)
325–8793; or George Kelhart, Technical
Advisor, Marketing Order
Administration Branch, Fruit and
Vegetable Programs, AMS, USDA, 1400
Independence Avenue SW., STOP 0237,
Washington, DC 20250–0237;
Telephone: (202) 720–2491; Fax: (202)
720–8938.
Small businesses may request
information on complying with this
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regulation by contacting Jay Guerber,
Marketing Order Administration
Branch, Fruit and Vegetable Programs,
AMS, USDA, 1400 Independence
Avenue SW., STOP 0237, Washington,
DC 20250–0237; Telephone: (202) 720–
2491; Fax: (202) 720–8938; or E-mail:
Jay.Guerber@usda.gov.
SUPPLEMENTARY INFORMATION: This final
rule is issued under Marketing
Agreement No. 125 and Marketing
Order No. 966, both as amended (7 CFR
part 966), 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
(USDA) is issuing this rule in
conformance with Executive Order
12866.
This final 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 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 final rule revises the COP
requirements currently prescribed under
the order. This rule requires all parties
interested in receiving Florida tomatoes
shipped under a COP to apply to the
Committee to become an approved
receiver. This change will assist the
Committee in preventing tomatoes
shipped under a COP from entering
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unauthorized outlets. This rule also
clarifies the definitions for processing
and pickling as used in the rules and
regulations under the order. The
Committee unanimously recommended
these changes at a meeting held on
September 9, 2004.
Section 966.54 of the order provides
authority for the modification,
suspension, and termination of
regulations to facilitate the handling of
tomatoes for special purposes such as
export, charity, processing, or other
purposes as specified by the Committee
and approved by USDA. Section 966.56
of the order provides authority for the
application of adequate safeguards to
prevent tomatoes handled pursuant to
§ 966.54 from entering channels of trade
for other than the specified purpose or
purposes. Sections 966.120–123 of the
order’s rules and regulations specify the
provisions required under a COP to
allow tomatoes for pickling, processing,
charity, relief, export, or experimental
purposes to be shipped free from certain
order requirements. The COP
procedures include safeguards to ensure
that the tomatoes are shipped for these
purposes. The safeguards are also
highlighted in § 966.323(c). Section
966.323(g) specifies the definition of
processing.
This final rule adds § 966.124 to the
order’s rules and regulations. This
section requires that handlers only ship
tomatoes under a COP to receivers
approved by the Committee and
outlines the receiver application
procedures. Section 966.323(c) is also
modified to reflect the new COP
requirements.
The COP provisions allow tomatoes
for pickling, processing, charity, relief,
export, or experimental purposes to be
shipped free from certain order
requirements. Consequently, it is
important that adequate safeguards exist
to assure that such tomatoes are
disposed of properly. For example, the
Committee noted that tomatoes shipped
during the 2003–04 season under a COP
for processing were being shipped into
the domestic fresh market and not for
the intended COP purpose.
The volume of tomatoes shipped for
processing under COPs is significant
enough to negatively impact the market
for fresh tomatoes if these tomatoes are
utilized in markets other than those
specified in the COP. Last season, nearly
500,000 25-pound equivalent units of
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Federal Register / Vol. 70, No. 174 / Friday, September 9, 2005 / Rules and Regulations
Florida tomatoes were shipped under
COPs. Consequently, the Committee
agreed that additional steps need to be
taken to ensure that tomatoes shipped
under a COP are only utilized for the
purposes specified.
Last season, when the issue with COP
tomatoes surfaced, the Committee staff
looked for ways to address the problem.
Using the current safeguard procedures,
those handlers who had shipped to
receivers that had used tomatoes
shipped under a COP for purposes
different than specified had their COPs
canceled. Some handlers noted that they
had shipped the tomatoes to their
receiver in good faith, and that the
receiver was responsible for the
problem. Further, because the handlers
had used COPs to ship to more than one
receiver, those handlers affected were
no longer able to take advantage of the
exemptions provided under the COP
provisions.
Considering this, the Committee
believes one way to help ensure that
tomatoes shipped under a COP are not
being misused is to provide for
safeguards on receivers. To address the
situation, the Committee recommended
that all receivers interested in receiving
tomatoes shipped under a COP be
required to apply to the Committee to
become an approved receiver. In
addition, handlers are only able to ship
under a COP to those approved
receivers.
Should a receiver utilize the tomatoes
for purposes other than specified under
the COP, their status as an approved
receiver with the Committee will be
rescinded. As a result, such a receiver
will no longer be eligible to receive
tomatoes from any handler under a
COP, but will only be able to receive
tomatoes meeting the existing grade and
size requirements under the order.
Under the provisions added by this
rule, anyone interested in receiving
tomatoes under a COP will have to file
an application with the Committee for
review and approval. This includes
persons acquiring tomatoes for
processing or pickling, as well as
tomatoes acquired for relief or charity,
for export, for experimental purposes, or
for other purposes specified by the
Committee. This application includes
the name, address, telephone number,
and e-mail address of applicant
(receiver), the purpose for which the
COP tomatoes will be used, physical
address where the stated privilege
purpose will be accomplished, an
indication of whether or not the receiver
packs, repacks, or sells fresh tomatoes,
a statement that the tomatoes obtained
will only be used for the purposes stated
in the COP, a statement agreeing to
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15:11 Sep 08, 2005
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undergo random inspections by the
Committee, and an agreement to submit
reports as required. The Committee
believes that this additional information
will be valuable in helping to verify
legitimate receivers.
The Committee staff will use the
information in the application to
investigate and approve receivers
wanting to receive tomatoes under
COPs. The approved receivers and the
tomatoes shipped under the COP
provisions will be monitored
throughout the year. If during the season
an approved receiver is found to be
handling tomatoes in ways other than
specified under the COP, that receiver’s
approval will be rescinded. The
Committee believes this change will
help better assure that COP tomatoes are
shipped into the intended COP outlets.
Moreover, handlers who may have
shipped to non-compliant receivers will
still be able to ship to other approved
COP receivers.
This rule also amends the definition
for processing contained in § 966.323
and adds a definition for pickling. Over
the past few years, there have been an
increasing number of questions
surrounding what constitutes a fresh
product and what constitutes
processing. To help reduce any
confusion and to ensure uniformity, the
Committee believes it is important to
make the definitions for processing and
pickling in the order’s rules and
regulations as clear as possible.
Currently, processing is defined as the
manufacture of any tomato product
which has been converted into juice, or
preserved by any commercial process,
including canning, dehydrating, drying,
and the addition of chemical
substances. This rule amends this
definition to specify further that all
processing procedures must result in a
product that does not require
refrigeration until opened.
In addition to the changes to the
definition for processing, a specific
definition for pickling is also added.
Pickling is defined as tomatoes
preserved in a brine or vinegar solution.
These clarifications should lessen the
chance of confusion between handlers
and purchasers regarding tomatoes
covered under a COP.
The Committee believes this rule will
strengthen the existing safeguard
provisions and will help deter the use
of Florida COP tomatoes for
unauthorized purposes. By requiring
persons who wish to receive tomatoes
under COPs to apply to the Committee
to become approved receivers, the
Committee has additional information
regarding receivers and the ability to
rescind their approved receiver status, if
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necessary. The Committee also believes
enhancing the definitions for processed
and pickled tomatoes helps further
clarify the appropriate uses of tomatoes
shipped under a COP. Therefore, the
Committee voted unanimously to make
these changes.
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 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 100
producers of tomatoes in the production
area and approximately 80 handlers
subject to regulation under the
marketing 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 $6,000,000 (13
CFR 121.201). Currently, there are about
20 receivers who obtain tomatoes under
COPs.
Based on industry and Committee
data, the average annual price for fresh
Florida tomatoes during the 2003–04
season was approximately $8.04 per 25pound container, and fresh shipments
for the 2003–04 season totaled
57,989,624 25-pound cartons of
tomatoes. Committee data indicates
approximately 25 percent of the
handlers handle 94 percent of the total
volume shipped outside the regulated
area. Based on the average price, about
75 percent of handlers could be
considered small businesses under
SBA’s definition. Therefore, the
majority of Florida tomato handlers may
be classified as small entities. It is
believed that the majority of Florida
tomato receivers and producers may be
classified as small entities.
This final rule revises the COP
requirements currently prescribed under
the order. This rule requires those
interested in receiving Florida tomatoes
shipped under a COP to apply to the
Committee to become an approved
receiver. This change will assist the
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Federal Register / Vol. 70, No. 174 / Friday, September 9, 2005 / Rules and Regulations
Committee in assuring that tomatoes
shipped under COPs are used for the
intended COP purposes. This rule also
clarifies the definitions for processing
and pickling as used in the rules and
regulations under the order. These
clarifications will help reduce confusion
between handlers and purchasers of
tomatoes covered under a COP. The
Committee unanimously recommended
these changes at a meeting held on
September 9, 2004. This rule adds
§ 966.124 to the rules and regulations,
amends the safeguard provisions
specified in § 966.323(c), and revises the
definitions specified in § 966.323(g).
Authority for these actions is provided
for in §§ 966.54 and 966.56 of the order.
These changes are not expected to
result in any increased costs for
growers, handlers, or receivers who
comply with COP requirements. The
Committee recommended these changes
to improve compliance with the
provisions established under COPs.
Because nearly 99 percent of Florida
tomato shipments are utilized in the
domestic fresh market, it is important to
assure that tomatoes shipped under
COPs are disposed of properly.
Adequate safeguards are needed for this
purpose.
This action will have a beneficial
impact on producers, handlers, and
receivers in that it will continue to
allow approved receivers to obtain COP
tomatoes. Handlers shipping to
approved COP receivers also benefit
because the non-compliant receivers
will be removed from the Committee’s
approved receiver list and the handler
can continue to take advantage of the
exemptions by shipping to other
approved COP receivers. Clarifying the
definitions of processing and pickling
also helps alleviate some of the
questions and any confusion concerning
what constitutes these procedures. 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.
However, requiring receivers to
register with the Committee imposes an
additional reporting burden on both
small and large receivers. Requiring
receivers to apply annually will increase
the annual burden by five minutes per
receiver, for a total burden of 1.67 hours
(5 minutes per response × 1 response
per receiver × 20 receivers). Although
this action places an additional burden
on receivers of Florida COP tomatoes,
the benefits of having the additional
information regarding receivers
outweigh the increase in reporting
burden.
The Committee discussed alternatives
to this action. One alternative
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53539
considered was to further restrict
handlers when shipping tomatoes under
a COP. The Committee recognized that
some industry members have developed
markets for these tomatoes, which
would otherwise be discarded.
Therefore, the Committee voted to make
the changes in this rule rather than
further restricting this outlet. Another
alternative considered was to only
require processors and picklers to apply
to the Committee. However, the
Committee believed that the application
process should be applicable to all
parties receiving tomatoes under a COP.
Consequently, this alternative was
rejected.
As noted in the initial regulatory
flexibility analysis, USDA has not
identified any relevant Federal rules
that duplicate, overlap, or conflict with
this final rule. 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.
In addition, the Committee’s meeting
was widely publicized throughout the
tomato industry and all interested
persons were invited to attend the
meeting and participate in Committee
deliberations. Like all Committee
meetings, the September 9, 2004,
meeting was a public meeting and all
entities, both large and small, were able
to express their views on this issue.
A proposed rule concerning this
action was published in the Federal
Register on May 27, 2005 (70 FR 30647).
Copies of the rule were mailed or sent
via facsimile to all Committee members
and tomato handlers. Finally, the rule
was made available through the Internet
by the Office of the Federal Register. A
60-day comment period ending July 26,
2005, was provided to allow interested
persons to respond to the proposal. No
comments were received.
A small business guide on complying
with fruit, vegetable, and specialty crop
marketing agreements and orders may
be viewed at: https://www.ams.usda.gov/
fv/moab.html. Any questions about the
compliance guide should be sent to Jay
Guerber at the previously mentioned
address in the FOR FURTHER INFORMATION
CONTACT section.
As mentioned previously, this action
requires an additional collection of
information. These information
collection requirements are discussed in
the following section.
rule were approved by the Office of
Management and Budge (OMB), under
OMB No. 0581–0231. The information
collection has been merged into OMB
No. 0581–0178, Vegetable and Specialty
Crops Marketing Orders, which expires
October 31, 2007.
In summary, this final rule establishes
reporting requirements authorized
under the Florida tomato order.
Information would be reported on form
number FTC–111. These additional
reporting requirements will enable the
Committee to collect information from
persons wishing to receive Florida
tomatoes exempt from certain order
requirements under a COP. The
Committee will evaluate this
information and determine whether an
entity is qualified to receive COP
tomatoes. This form will help ensure
compliance with the regulations and
assist the Committee and USDA with
oversight and planning. The estimated
burden due to this form required of each
entity annually is 5 minutes per person,
with a total increased burden estimated
at 1.67 hours.
Paperwork Reduction Act
In accordance with the Paperwork
Reduction Act of 1995 (44 U.S.C. 3501
et seq.), the information collection
requirements that are contained in this
Marketing agreements, Reporting and
recordkeeping requirements, Tomatoes.
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Sfmt 4700
Government Paperwork Elimination
Act Compliance
The Agricultural Marketing Service
(AMS) is committed to compliance with
the Government Paperwork Elimination
Act (GPEA), which requires Government
agencies in general to provide the public
the option of submitting information or
transacting business electronically to
the maximum extent possible.
After consideration of all relevant
matter presented, including the
information and recommendation
submitted by the Committee and other
available information, it is hereby found
that this rule, as hereinafter set forth,
will tend to effectuate the declared
policy of the Act.
It is further found that good cause
exists for not postponing the effective
date of this rule until 30 days after
publication in the Federal Register (5
U.S.C. 553) because the final rule
should be effective by the start of the
2005–06 season, which begins October
10, 2005. Further, handlers are aware of
this rule, which was recommended at a
public meeting. Also, a 60-day comment
period was provided for in the proposed
rule. No comments were received.
List of Subjects in 7 CFR Part 966
For the reasons set forth in the
preamble, 7 CFR part 966 is amended as
follows:
I
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09SER1
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Federal Register / Vol. 70, No. 174 / Friday, September 9, 2005 / Rules and Regulations
PART 966—TOMATOES GROWN IN
FLORIDA
definition for Pickling to read as
follows:
1. The authority citation for 7 CFR
part 966 continues to read as follows:
§ 966.323
I
Authority: 7 U.S.C. 601–674.
2. In part 966, a new § 966.124 is
added to read as follows:
I
§ 966.124
Approved receiver.
(a) Approved receiver. Any person
who desires to acquire, as an approved
receiver, tomatoes for purposes as set
forth in § 966.120(a), shall annually,
prior thereto, file an application with
the committee on a form approved by it,
which shall contain, but not be limited
to, the following information:
(1) Name, address, contact person,
telephone number, and e-mail address
of applicant;
(2) Purpose of shipment;
(3) Physical address of where
manufacturing or other specified
purpose is to occur;
(4) Whether or not the receiver packs,
repacks or sells fresh tomatoes;
(5) A statement that the tomatoes
obtained exempt from the fresh tomato
regulations will not be resold or
transferred for resale, directly or
indirectly, but will be used only for the
purpose specified in the corresponding
certificate of privilege;
(6) A statement agreeing to undergo
random inspection by the committee;
(7) A statement agreeing to submit
such reports as is required by the
committee.
(b) The committee, or its duly
authorized agents, shall give prompt
consideration to each application for an
approved receiver and shall determine
whether the application is approved or
disapproved and notify the applicant
accordingly.
(c) The committee, or its duly
authorized agents, may rescind a
person’s approved receiver status upon
proof satisfactory that such a receiver
has handled tomatoes contrary to the
provisions established under the
Certificate of Privilege. Such action
rescinding approved receiver status
shall apply to and not exceed a
reasonable period of time as determined
by the committee or its duly authorized
agents. Any person who has been
denied as an approved receiver or who
has had their approved receiver status
rescinded, may appeal to the committee
for reconsideration. Such an appeal
shall be made in writing.
I 3. In § 966.323, a new paragraph (5) is
added to paragraph (c), and paragraph
(g) is amended by revising the
definitions of Processing and U.S.
tomato Standards, and by adding a
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15:11 Sep 08, 2005
Jkt 205001
Handling regulations.
*
*
*
*
*
(c) * * *
(5) Make shipments only to those who
have qualified with the committee as
approved receivers.
*
*
*
*
*
(g) * * *Processing as used in
§§ 966.120 and 966.323 means the
manufacture of any tomato product
which has been converted into juice, or
preserved by any commercial process,
including canning, dehydrating, drying,
and the addition of chemical
substances. Further, all processing
procedures must result in a product that
does not require refrigeration until
opened. Pickling as used in §§ 966.120
and 966.323 means to preserve tomatoes
in a brine or vinegar solution. U.S.
tomato standards means the revised
United States Standards for Fresh
Tomatoes (7 CFR 51.1855 through
51.1877), effective October 1, 1991, as
amended, or variations thereof specified
in this section. 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: September 2, 2005.
Lloyd C. Day,
Administrator, Agricultural Marketing
Service.
[FR Doc. 05–17860 Filed 9–8–05; 8:45 am]
BILLING CODE 3410–02–P
DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Part 39
[Docket No. FAA–2005–22309; Directorate
Identifier 2005–NM–159–AD; Amendment
39–14254; AD 2005–18–14]
RIN 2120–AA64
Airworthiness Directives; Avions
Marcel Dassault-Breguet Model Falcon
10 Airplanes
Federal Aviation
Administration (FAA), Department of
Transportation (DOT).
ACTION: Final rule; request for
comments.
AGENCY:
SUMMARY: The FAA is superseding an
existing airworthiness directive (AD)
that applies to all Dassault Model
Falcon 10 series airplanes. The existing
AD currently requires revising the
airplane flight manual (AFM) and
installing a placard in the flight deck to
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prohibit flight into known or forecasted
icing conditions. In lieu of the AFM
revision and placard installation, that
AD allows identifying the part number
of each flexible hose in the wing (slat)
anti-icing system, performing repetitive
inspections of each hose for
delamination, and performing corrective
actions if necessary. This AD adds the
following actions (also in lieu of the
AFM revision and placard installation):
New repetitive inspections for
delamination at reduced intervals,
corrective actions if necessary, and an
additional AFM revision to include a
statement to track flight cycles when the
slat anti-icing system is activated. This
AD also provides an option to
repetitively replace the existing flexible
hoses with improved flexible hoses,
which terminates the repetitive
inspection requirements. This AD
results from a report of in-service
delamination of a flexible hose in the
slat anti-icing system at a time earlier
than previously reported. We are issuing
this AD to prevent collapse of the
flexible hoses in the slat anti-icing
system, which could lead to insufficient
anti-icing capability and, if icing is
encountered in this situation, could
result in reduced controllability of the
airplane.
This AD becomes effective
September 26, 2005.
The Director of the Federal Register
approved the incorporation by reference
of certain publications listed in the AD
as of September 26, 2005.
On April 26, 2005 (70 FR 18282, April
11, 2005), the Director of the Federal
Register approved the incorporation by
reference of Dassault Alert Service
Bulletin F10–A312, dated February 25,
2005, including the Service Bulletins
Compliance Card.
We must receive any comments on
this AD by November 8, 2005.
ADDRESSES: Use one of the following
addresses to submit comments on this
AD.
• DOT Docket Web site: Go to
https://dms.dot.gov and follow the
instructions for sending your comments
electronically.
• Government-wide rulemaking Web
site: Go to https://www.regulations.gov
and follow the instructions for sending
your comments electronically.
• Mail: Docket Management Facility,
U.S. Department of Transportation, 400
Seventh Street, SW., Nassif Building,
Room PL–401, Washington, DC 20590.
• Fax: (202) 493–2251.
• Hand Delivery: Room PL–401 on
the plaza level of the Nassif Building,
400 Seventh Street, SW., Washington,
DATES:
E:\FR\FM\09SER1.SGM
09SER1
Agencies
[Federal Register Volume 70, Number 174 (Friday, September 9, 2005)]
[Rules and Regulations]
[Pages 53537-53540]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 05-17860]
========================================================================
Rules and Regulations
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains regulatory documents
having general applicability and legal effect, most of which are keyed
to and codified in the Code of Federal Regulations, which is published
under 50 titles pursuant to 44 U.S.C. 1510.
The Code of Federal Regulations is sold by the Superintendent of Documents.
Prices of new books are listed in the first FEDERAL REGISTER issue of each
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Federal Register / Vol. 70, No. 174 / Friday, September 9, 2005 /
Rules and Regulations
[[Page 53537]]
DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Part 966
[Docket No. FV05-966-1 FR]
Tomatoes Grown in Florida; Revisions in Requirements for
Certificates of Privilege
AGENCY: Agricultural Marketing Service, USDA.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This rule revises the Certificate of Privilege (COP)
requirements currently 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 requires those interested in receiving Florida
tomatoes shipped under a COP to apply to the Committee to become an
approved receiver. This rule also clarifies the definitions for
processing and pickling as used in the rules and regulations under the
order. These changes will assist the Committee in assuring that COP
tomatoes are disposed of into COP outlets.
EFFECTIVE DATE: This final rule becomes effective September 10, 2005.
FOR FURTHER INFORMATION CONTACT: William G. Pimental, Southeast
Marketing Field Office, Marketing Order Administration Branch, Fruit
and Vegetable Programs, AMS, USDA; Telephone: (863) 324-3375; Fax:
(863) 325-8793; or George Kelhart, Technical Advisor, Marketing Order
Administration Branch, Fruit and Vegetable Programs, AMS, USDA, 1400
Independence Avenue SW., STOP 0237, Washington, DC 20250-0237;
Telephone: (202) 720-2491; Fax: (202) 720-8938.
Small businesses may request information on complying with this
regulation by contacting Jay Guerber, Marketing Order Administration
Branch, Fruit and Vegetable Programs, AMS, USDA, 1400 Independence
Avenue SW., STOP 0237, Washington, DC 20250-0237; Telephone: (202) 720-
2491; Fax: (202) 720-8938; or E-mail: Jay.Guerber@usda.gov.
SUPPLEMENTARY INFORMATION: This final rule is issued under Marketing
Agreement No. 125 and Marketing Order No. 966, both as amended (7 CFR
part 966), 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 (USDA) is issuing this rule in
conformance with Executive Order 12866.
This final 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 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 final rule revises the COP requirements currently prescribed
under the order. This rule requires all parties interested in receiving
Florida tomatoes shipped under a COP to apply to the Committee to
become an approved receiver. This change will assist the Committee in
preventing tomatoes shipped under a COP from entering unauthorized
outlets. This rule also clarifies the definitions for processing and
pickling as used in the rules and regulations under the order. The
Committee unanimously recommended these changes at a meeting held on
September 9, 2004.
Section 966.54 of the order provides authority for the
modification, suspension, and termination of regulations to facilitate
the handling of tomatoes for special purposes such as export, charity,
processing, or other purposes as specified by the Committee and
approved by USDA. Section 966.56 of the order provides authority for
the application of adequate safeguards to prevent tomatoes handled
pursuant to Sec. 966.54 from entering channels of trade for other than
the specified purpose or purposes. Sections 966.120-123 of the order's
rules and regulations specify the provisions required under a COP to
allow tomatoes for pickling, processing, charity, relief, export, or
experimental purposes to be shipped free from certain order
requirements. The COP procedures include safeguards to ensure that the
tomatoes are shipped for these purposes. The safeguards are also
highlighted in Sec. 966.323(c). Section 966.323(g) specifies the
definition of processing.
This final rule adds Sec. 966.124 to the order's rules and
regulations. This section requires that handlers only ship tomatoes
under a COP to receivers approved by the Committee and outlines the
receiver application procedures. Section 966.323(c) is also modified to
reflect the new COP requirements.
The COP provisions allow tomatoes for pickling, processing,
charity, relief, export, or experimental purposes to be shipped free
from certain order requirements. Consequently, it is important that
adequate safeguards exist to assure that such tomatoes are disposed of
properly. For example, the Committee noted that tomatoes shipped during
the 2003-04 season under a COP for processing were being shipped into
the domestic fresh market and not for the intended COP purpose.
The volume of tomatoes shipped for processing under COPs is
significant enough to negatively impact the market for fresh tomatoes
if these tomatoes are utilized in markets other than those specified in
the COP. Last season, nearly 500,000 25-pound equivalent units of
[[Page 53538]]
Florida tomatoes were shipped under COPs. Consequently, the Committee
agreed that additional steps need to be taken to ensure that tomatoes
shipped under a COP are only utilized for the purposes specified.
Last season, when the issue with COP tomatoes surfaced, the
Committee staff looked for ways to address the problem. Using the
current safeguard procedures, those handlers who had shipped to
receivers that had used tomatoes shipped under a COP for purposes
different than specified had their COPs canceled. Some handlers noted
that they had shipped the tomatoes to their receiver in good faith, and
that the receiver was responsible for the problem. Further, because the
handlers had used COPs to ship to more than one receiver, those
handlers affected were no longer able to take advantage of the
exemptions provided under the COP provisions.
Considering this, the Committee believes one way to help ensure
that tomatoes shipped under a COP are not being misused is to provide
for safeguards on receivers. To address the situation, the Committee
recommended that all receivers interested in receiving tomatoes shipped
under a COP be required to apply to the Committee to become an approved
receiver. In addition, handlers are only able to ship under a COP to
those approved receivers.
Should a receiver utilize the tomatoes for purposes other than
specified under the COP, their status as an approved receiver with the
Committee will be rescinded. As a result, such a receiver will no
longer be eligible to receive tomatoes from any handler under a COP,
but will only be able to receive tomatoes meeting the existing grade
and size requirements under the order.
Under the provisions added by this rule, anyone interested in
receiving tomatoes under a COP will have to file an application with
the Committee for review and approval. This includes persons acquiring
tomatoes for processing or pickling, as well as tomatoes acquired for
relief or charity, for export, for experimental purposes, or for other
purposes specified by the Committee. This application includes the
name, address, telephone number, and e-mail address of applicant
(receiver), the purpose for which the COP tomatoes will be used,
physical address where the stated privilege purpose will be
accomplished, an indication of whether or not the receiver packs,
repacks, or sells fresh tomatoes, a statement that the tomatoes
obtained will only be used for the purposes stated in the COP, a
statement agreeing to undergo random inspections by the Committee, and
an agreement to submit reports as required. The Committee believes that
this additional information will be valuable in helping to verify
legitimate receivers.
The Committee staff will use the information in the application to
investigate and approve receivers wanting to receive tomatoes under
COPs. The approved receivers and the tomatoes shipped under the COP
provisions will be monitored throughout the year. If during the season
an approved receiver is found to be handling tomatoes in ways other
than specified under the COP, that receiver's approval will be
rescinded. The Committee believes this change will help better assure
that COP tomatoes are shipped into the intended COP outlets. Moreover,
handlers who may have shipped to non-compliant receivers will still be
able to ship to other approved COP receivers.
This rule also amends the definition for processing contained in
Sec. 966.323 and adds a definition for pickling. Over the past few
years, there have been an increasing number of questions surrounding
what constitutes a fresh product and what constitutes processing. To
help reduce any confusion and to ensure uniformity, the Committee
believes it is important to make the definitions for processing and
pickling in the order's rules and regulations as clear as possible.
Currently, processing is defined as the manufacture of any tomato
product which has been converted into juice, or preserved by any
commercial process, including canning, dehydrating, drying, and the
addition of chemical substances. This rule amends this definition to
specify further that all processing procedures must result in a product
that does not require refrigeration until opened.
In addition to the changes to the definition for processing, a
specific definition for pickling is also added. Pickling is defined as
tomatoes preserved in a brine or vinegar solution. These clarifications
should lessen the chance of confusion between handlers and purchasers
regarding tomatoes covered under a COP.
The Committee believes this rule will strengthen the existing
safeguard provisions and will help deter the use of Florida COP
tomatoes for unauthorized purposes. By requiring persons who wish to
receive tomatoes under COPs to apply to the Committee to become
approved receivers, the Committee has additional information regarding
receivers and the ability to rescind their approved receiver status, if
necessary. The Committee also believes enhancing the definitions for
processed and pickled tomatoes helps further clarify the appropriate
uses of tomatoes shipped under a COP. Therefore, the Committee voted
unanimously to make these changes.
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 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 100 producers of tomatoes in the production
area and approximately 80 handlers subject to regulation under the
marketing 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 $6,000,000 (13 CFR 121.201).
Currently, there are about 20 receivers who obtain tomatoes under COPs.
Based on industry and Committee data, the average annual price for
fresh Florida tomatoes during the 2003-04 season was approximately
$8.04 per 25-pound container, and fresh shipments for the 2003-04
season totaled 57,989,624 25-pound cartons of tomatoes. Committee data
indicates approximately 25 percent of the handlers handle 94 percent of
the total volume shipped outside the regulated area. Based on the
average price, about 75 percent of handlers could be considered small
businesses under SBA's definition. Therefore, the majority of Florida
tomato handlers may be classified as small entities. It is believed
that the majority of Florida tomato receivers and producers may be
classified as small entities.
This final rule revises the COP requirements currently prescribed
under the order. This rule requires those interested in receiving
Florida tomatoes shipped under a COP to apply to the Committee to
become an approved receiver. This change will assist the
[[Page 53539]]
Committee in assuring that tomatoes shipped under COPs are used for the
intended COP purposes. This rule also clarifies the definitions for
processing and pickling as used in the rules and regulations under the
order. These clarifications will help reduce confusion between handlers
and purchasers of tomatoes covered under a COP. The Committee
unanimously recommended these changes at a meeting held on September 9,
2004. This rule adds Sec. 966.124 to the rules and regulations, amends
the safeguard provisions specified in Sec. 966.323(c), and revises the
definitions specified in Sec. 966.323(g). Authority for these actions
is provided for in Sec. Sec. 966.54 and 966.56 of the order.
These changes are not expected to result in any increased costs for
growers, handlers, or receivers who comply with COP requirements. The
Committee recommended these changes to improve compliance with the
provisions established under COPs. Because nearly 99 percent of Florida
tomato shipments are utilized in the domestic fresh market, it is
important to assure that tomatoes shipped under COPs are disposed of
properly. Adequate safeguards are needed for this purpose.
This action will have a beneficial impact on producers, handlers,
and receivers in that it will continue to allow approved receivers to
obtain COP tomatoes. Handlers shipping to approved COP receivers also
benefit because the non-compliant receivers will be removed from the
Committee's approved receiver list and the handler can continue to take
advantage of the exemptions by shipping to other approved COP
receivers. Clarifying the definitions of processing and pickling also
helps alleviate some of the questions and any confusion concerning what
constitutes these procedures. 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.
However, requiring receivers to register with the Committee imposes
an additional reporting burden on both small and large receivers.
Requiring receivers to apply annually will increase the annual burden
by five minutes per receiver, for a total burden of 1.67 hours (5
minutes per response x 1 response per receiver x 20 receivers).
Although this action places an additional burden on receivers of
Florida COP tomatoes, the benefits of having the additional information
regarding receivers outweigh the increase in reporting burden.
The Committee discussed alternatives to this action. One
alternative considered was to further restrict handlers when shipping
tomatoes under a COP. The Committee recognized that some industry
members have developed markets for these tomatoes, which would
otherwise be discarded. Therefore, the Committee voted to make the
changes in this rule rather than further restricting this outlet.
Another alternative considered was to only require processors and
picklers to apply to the Committee. However, the Committee believed
that the application process should be applicable to all parties
receiving tomatoes under a COP. Consequently, this alternative was
rejected.
As noted in the initial regulatory flexibility analysis, USDA has
not identified any relevant Federal rules that duplicate, overlap, or
conflict with this final rule. 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.
In addition, the Committee's meeting was widely publicized
throughout the tomato industry and all interested persons were invited
to attend the meeting and participate in Committee deliberations. Like
all Committee meetings, the September 9, 2004, meeting was a public
meeting and all entities, both large and small, were able to express
their views on this issue.
A proposed rule concerning this action was published in the Federal
Register on May 27, 2005 (70 FR 30647). Copies of the rule were mailed
or sent via facsimile to all Committee members and tomato handlers.
Finally, the rule was made available through the Internet by the Office
of the Federal Register. A 60-day comment period ending July 26, 2005,
was provided to allow interested persons to respond to the proposal. No
comments were received.
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/fv/moab.html. Any questions about the compliance
guide should be sent to Jay Guerber at the previously mentioned address
in the FOR FURTHER INFORMATION CONTACT section.
As mentioned previously, this action requires an additional
collection of information. These information collection requirements
are discussed in the following section.
Paperwork Reduction Act
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C.
3501 et seq.), the information collection requirements that are
contained in this rule were approved by the Office of Management and
Budge (OMB), under OMB No. 0581-0231. The information collection has
been merged into OMB No. 0581-0178, Vegetable and Specialty Crops
Marketing Orders, which expires October 31, 2007.
In summary, this final rule establishes reporting requirements
authorized under the Florida tomato order. Information would be
reported on form number FTC-111. These additional reporting
requirements will enable the Committee to collect information from
persons wishing to receive Florida tomatoes exempt from certain order
requirements under a COP. The Committee will evaluate this information
and determine whether an entity is qualified to receive COP tomatoes.
This form will help ensure compliance with the regulations and assist
the Committee and USDA with oversight and planning. The estimated
burden due to this form required of each entity annually is 5 minutes
per person, with a total increased burden estimated at 1.67 hours.
Government Paperwork Elimination Act Compliance
The Agricultural Marketing Service (AMS) is committed to compliance
with the Government Paperwork Elimination Act (GPEA), which requires
Government agencies in general to provide the public the option of
submitting information or transacting business electronically to the
maximum extent possible.
After consideration of all relevant matter presented, including the
information and recommendation submitted by the Committee and other
available information, it is hereby found that this rule, as
hereinafter set forth, will tend to effectuate the declared policy of
the Act.
It is further found that good cause exists for not postponing the
effective date of this rule until 30 days after publication in the
Federal Register (5 U.S.C. 553) because the final rule should be
effective by the start of the 2005-06 season, which begins October 10,
2005. Further, handlers are aware of this rule, which was recommended
at a public meeting. Also, a 60-day comment period was provided for in
the proposed rule. No comments were received.
List of Subjects in 7 CFR Part 966
Marketing agreements, Reporting and recordkeeping requirements,
Tomatoes.
0
For the reasons set forth in the preamble, 7 CFR part 966 is amended as
follows:
[[Page 53540]]
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. In part 966, a new Sec. 966.124 is added to read as follows:
Sec. 966.124 Approved receiver.
(a) Approved receiver. Any person who desires to acquire, as an
approved receiver, tomatoes for purposes as set forth in Sec.
966.120(a), shall annually, prior thereto, file an application with the
committee on a form approved by it, which shall contain, but not be
limited to, the following information:
(1) Name, address, contact person, telephone number, and e-mail
address of applicant;
(2) Purpose of shipment;
(3) Physical address of where manufacturing or other specified
purpose is to occur;
(4) Whether or not the receiver packs, repacks or sells fresh
tomatoes;
(5) A statement that the tomatoes obtained exempt from the fresh
tomato regulations will not be resold or transferred for resale,
directly or indirectly, but will be used only for the purpose specified
in the corresponding certificate of privilege;
(6) A statement agreeing to undergo random inspection by the
committee;
(7) A statement agreeing to submit such reports as is required by
the committee.
(b) The committee, or its duly authorized agents, shall give prompt
consideration to each application for an approved receiver and shall
determine whether the application is approved or disapproved and notify
the applicant accordingly.
(c) The committee, or its duly authorized agents, may rescind a
person's approved receiver status upon proof satisfactory that such a
receiver has handled tomatoes contrary to the provisions established
under the Certificate of Privilege. Such action rescinding approved
receiver status shall apply to and not exceed a reasonable period of
time as determined by the committee or its duly authorized agents. Any
person who has been denied as an approved receiver or who has had their
approved receiver status rescinded, may appeal to the committee for
reconsideration. Such an appeal shall be made in writing.
0
3. In Sec. 966.323, a new paragraph (5) is added to paragraph (c), and
paragraph (g) is amended by revising the definitions of Processing and
U.S. tomato Standards, and by adding a definition for Pickling to read
as follows:
Sec. 966.323 Handling regulations.
* * * * *
(c) * * *
(5) Make shipments only to those who have qualified with the
committee as approved receivers.
* * * * *
(g) * * *Processing as used in Sec. Sec. 966.120 and 966.323 means
the manufacture of any tomato product which has been converted into
juice, or preserved by any commercial process, including canning,
dehydrating, drying, and the addition of chemical substances. Further,
all processing procedures must result in a product that does not
require refrigeration until opened. Pickling as used in Sec. Sec.
966.120 and 966.323 means to preserve tomatoes in a brine or vinegar
solution. U.S. tomato standards means the revised United States
Standards for Fresh Tomatoes (7 CFR 51.1855 through 51.1877), effective
October 1, 1991, as amended, or variations thereof specified in this
section. 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: September 2, 2005.
Lloyd C. Day,
Administrator, Agricultural Marketing Service.
[FR Doc. 05-17860 Filed 9-8-05; 8:45 am]
BILLING CODE 3410-02-P