Tomatoes Grown in Florida; Modification of Handling Regulations, 15528-15531 [2019-07530]
Download as PDF
<![CDATA[
15528
Proposed Rules
Federal Register
Vol. 84, No. 73
Tuesday, April 16, 2019
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.
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
Agricultural Marketing Service,
USDA.
ACTION: Proposed rule.
AGENCY:
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: https://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: https://
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
khammond on DSKBBV9HB2PROD with PROPOSALS
SUMMARY:
VerDate Sep<11>2014
23:15 Apr 15, 2019
Jkt 247001
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: Steven.Kauffman@usda.gov or
Christian.Nissen@usda.gov.
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:
Richard.Lower@ams.usda.gov.
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’ ’’ (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
PO 00000
Frm 00001
Fmt 4702
Sfmt 4702
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.
E:\FR\FM\16APP1.SGM
16APP1
khammond on DSKBBV9HB2PROD with PROPOSALS
Federal Register / Vol. 84, No. 73 / Tuesday, April 16, 2019 / Proposed Rules
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 § 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 timeconsuming 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.
VerDate Sep<11>2014
23:15 Apr 15, 2019
Jkt 247001
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.
PO 00000
Frm 00002
Fmt 4702
Sfmt 4702
15529
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.
E:\FR\FM\16APP1.SGM
16APP1
khammond on DSKBBV9HB2PROD with PROPOSALS
15530
Federal Register / Vol. 84, No. 73 / Tuesday, April 16, 2019 / Proposed Rules
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
§ 966.323. Authority for these changes is
provided in § 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
VerDate Sep<11>2014
23:15 Apr 15, 2019
Jkt 247001
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.
PO 00000
Frm 00003
Fmt 4702
Sfmt 4702
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: https://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:
E:\FR\FM\16APP1.SGM
16APP1
Federal Register / Vol. 84, No. 73 / Tuesday, April 16, 2019 / Proposed Rules
PART 966—TOMATOES GROWN IN
FLORIDA
1. The authority citation for 7 CFR
part 966 continues to read as follows:
■
Authority: 7 U.S.C. 601–674.
2. Amend § 966.323 by revising
paragraphs (a)(3)(i) and the last two
sentences of paragraph (g) to read as
follows:
■
§ 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
(§§ 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
DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Part 25
[Docket No. FAA–2019–0235; Notice No. 25–
19–02–SC]
Special Conditions: Airbus Model A330
Series Airplanes; Seats With Inertia
Locking Devices
Federal Aviation
Administration (FAA), DOT.
ACTION: Notice of proposed special
conditions.
khammond on DSKBBV9HB2PROD with PROPOSALS
AGENCY:
This action proposes special
conditions for Airbus Model A330 series
airplanes. These airplanes will have a
novel or unusual design feature when
compared to the state of technology
envisioned in the airworthiness
SUMMARY:
VerDate Sep<11>2014
23:15 Apr 15, 2019
Jkt 247001
standards for transport-category
airplanes. This design feature is seats
with inertia locking devices. The
applicable airworthiness regulations do
not contain adequate or appropriate
safety standards for this design feature.
These proposed special conditions
contain the additional safety standards
that the Administrator considers
necessary to establish a level of safety
equivalent to that established by the
existing airworthiness standards.
DATES: Send comments on or before
May 16, 2019.
ADDRESSES: Send comments identified
by Docket No. FAA–2019–0235 using
any of the following methods:
• Federal eRegulations Portal: Go to
https://www.regulations.gov/ and follow
the online instructions for sending your
comments electronically.
• Mail: Send comments to Docket
Operations, M–30, U.S. Department of
Transportation (DOT), 1200 New Jersey
Avenue SE, Room W12–140, West
Building Ground Floor, Washington, DC
20590–0001.
• Hand Delivery or Courier: Take
comments to Docket Operations in
Room W12–140 of the West Building
Ground Floor at 1200 New Jersey
Avenue SE, Washington, DC, between 9
a.m. and 5 p.m., Monday through
Friday, except Federal holidays.
• Fax: Fax comments to Docket
Operations at 202–493–2251.
Privacy: The FAA will post all
comments it receives, without change,
to https://www.regulations.gov/,
including any personal information the
commenter provides. Using the search
function of the docket website, anyone
can find and read the electronic form of
all comments received into any FAA
docket, including the name of the
individual sending the comment (or
signing the comment for an association,
business, labor union, etc.). DOT’s
complete Privacy Act Statement can be
found in the Federal Register published
on April 11, 2000 (65 FR 19477–19478).
Docket: Background documents or
comments received may be read at
https://www.regulations.gov/ at any time.
Follow the online instructions for
accessing the docket or go to Docket
Operations in Room W12–140 of the
West Building Ground Floor at 1200
New Jersey Avenue SE, Washington,
DC, between 9 a.m. and 5 p.m., Monday
through Friday, except Federal holidays.
FOR FURTHER INFORMATION CONTACT:
Shannon Lennon, Cabin and Airframe
Safety Section, AIR–675, Transport
Standards Branch, Policy and
Innovation Division, Aircraft
Certification Service, Federal Aviation
Administration, 2200 South 216th
PO 00000
Frm 00004
Fmt 4702
Sfmt 4702
15531
Street, Des Moines, Washington 98198;
telephone and fax 206–231–3209; email
shannon.lennon@faa.gov.
SUPPLEMENTARY INFORMATION:
Comments Invited
We invite interested people to take
part in this rulemaking by sending
written comments, data, or views. The
most helpful comments reference a
specific portion of the special
conditions, explain the reason for any
recommended change, and include
supporting data.
We will consider all comments we
receive by the closing date for
comments. We may change these special
conditions based on the comments we
receive.
Background
On February 13, 2019, Airbus applied
for a change to Type Certificate No.
A46NM for seats with inertia locking
devices in Model A330 series airplanes.
The Model A330 series airplane is a
twin-engine, transport-category airplane
with a maximum takeoff weight of
533,518 pounds and seating for 440
passengers.
Type Certification Basis
Under the provisions of title 14, Code
of Federal Regulations (14 CFR) 21.101,
Airbus must show that the Model A330
series airplanes, as changed, continue to
meet the applicable provisions of the
regulations listed in Type Certificate No.
A46NM, or the applicable regulations in
effect on the date of application for the
change, except for earlier amendments
as agreed upon by the FAA.
If the Administrator finds that the
applicable airworthiness regulations
(i.e., 14 CFR part 25) do not contain
adequate or appropriate safety standards
for Airbus Model A330 series airplanes
because of a novel or unusual design
feature, special conditions are
prescribed under the provisions of
§ 21.16.
Special conditions are initially
applicable to the model for which they
are issued. Should the type certificate
for that model be amended later to
include any other model that
incorporates the same novel or unusual
design feature, or should any other
model already included on the same
type certificate be modified to
incorporate the same novel or unusual
design feature, these special conditions
would also apply to the other model
under § 21.101.
In addition to the applicable
airworthiness regulations and special
conditions, Airbus Model A330 series
airplanes must comply with the fuelvent and exhaust-emission requirements
E:\FR\FM\16APP1.SGM
16APP1
]]>Agencies
[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]
========================================================================
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.
========================================================================
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.
-----------------------------------------------------------------------
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: https://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: https://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: https://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
