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Rules and Regulations Federal Register

Vol. 70, No. 174

Friday, September 9, 2005

This section of the FEDERAL REGISTER regulation by contacting Jay Guerber, unauthorized outlets. This rule also
contains regulatory documents having general Marketing Order Administration clarifies the definitions for processing
applicability and legal effect, most of which Branch, Fruit and Vegetable Programs, and pickling as used in the rules and
are keyed to and codified in the Code of AMS, USDA, 1400 Independence regulations under the order. The
Federal Regulations, which is published under Avenue SW., STOP 0237, Washington, Committee unanimously recommended
50 titles pursuant to 44 U.S.C. 1510.
DC 20250–0237; Telephone: (202) 720– these changes at a meeting held on
The Code of Federal Regulations is sold by 2491; Fax: (202) 720–8938; or E-mail: September 9, 2004.
the Superintendent of Documents. Prices of Section 966.54 of the order provides
new books are listed in the first FEDERAL SUPPLEMENTARY INFORMATION: This final authority for the modification,
REGISTER issue of each week. suspension, and termination of
rule is issued under Marketing
Agreement No. 125 and Marketing regulations to facilitate the handling of
Order No. 966, both as amended (7 CFR tomatoes for special purposes such as
DEPARTMENT OF AGRICULTURE export, charity, processing, or other
part 966), regulating the handling of
tomatoes grown in Florida, hereinafter purposes as specified by the Committee
Agricultural Marketing Service and approved by USDA. Section 966.56
referred to as the ‘‘order.’’ The order is
effective under the Agricultural of the order provides authority for the
7 CFR Part 966 application of adequate safeguards to
Marketing Agreement Act of 1937, as
[Docket No. FV05–966–1 FR] amended (7 U.S.C. 601–674), hereinafter prevent tomatoes handled pursuant to
referred to as the ‘‘Act.’’ § 966.54 from entering channels of trade
Tomatoes Grown in Florida; Revisions for other than the specified purpose or
The Department of Agriculture
in Requirements for Certificates of purposes. Sections 966.120–123 of the
(USDA) is issuing this rule in
Privilege order’s rules and regulations specify the
conformance with Executive Order
AGENCY: Agricultural Marketing Service, 12866. provisions required under a COP to
USDA. This final rule has been reviewed allow tomatoes for pickling, processing,
ACTION: Final rule. under Executive Order 12988, Civil charity, relief, export, or experimental
Justice Reform. This rule is not intended purposes to be shipped free from certain
SUMMARY: This rule revises the to have retroactive effect. This rule will order requirements. The COP
Certificate of Privilege (COP) not preempt any State or local laws, procedures include safeguards to ensure
requirements currently prescribed under regulations, or policies, unless they that the tomatoes are shipped for these
the Florida tomato marketing order present an irreconcilable conflict with purposes. The safeguards are also
(order). The order regulates the handling this rule. highlighted in § 966.323(c). Section
of tomatoes grown in Florida and is The Act provides that administrative 966.323(g) specifies the definition of
administered locally by the Florida proceedings must be exhausted before processing.
Tomato Committee (Committee). This parties may file suit in court. Under This final rule adds § 966.124 to the
rule requires those interested in section 608c(15)(A) of the Act, any order’s rules and regulations. This
receiving Florida tomatoes shipped handler subject to an order may file section requires that handlers only ship
under a COP to apply to the Committee with USDA a petition stating that the tomatoes under a COP to receivers
to become an approved receiver. This order, any provision of the order, or any approved by the Committee and
rule also clarifies the definitions for obligation imposed in connection with outlines the receiver application
processing and pickling as used in the the order is not in accordance with law procedures. Section 966.323(c) is also
rules and regulations under the order. and request a modification of the order modified to reflect the new COP
These changes will assist the Committee or to be exempted therefrom. A handler requirements.
in assuring that COP tomatoes are is afforded the opportunity for a hearing The COP provisions allow tomatoes
disposed of into COP outlets. on the petition. After the hearing USDA for pickling, processing, charity, relief,
EFFECTIVE DATE: This final rule becomes would rule on the petition. The Act export, or experimental purposes to be
effective September 10, 2005. provides that the district court of the shipped free from certain order
FOR FURTHER INFORMATION CONTACT: United States in any district in which requirements. Consequently, it is
William G. Pimental, Southeast the handler is an inhabitant, or has his important that adequate safeguards exist
Marketing Field Office, Marketing Order or her principal place of business, has to assure that such tomatoes are
Administration Branch, Fruit and jurisdiction to review USDA’s ruling on disposed of properly. For example, the
Vegetable Programs, AMS, USDA; the petition, provided an action is filed Committee noted that tomatoes shipped
Telephone: (863) 324–3375; Fax: (863) not later than 20 days after the date of during the 2003–04 season under a COP
325–8793; or George Kelhart, Technical the entry of the ruling. for processing were being shipped into
Advisor, Marketing Order This final rule revises the COP the domestic fresh market and not for
Administration Branch, Fruit and requirements currently prescribed under the intended COP purpose.
Vegetable Programs, AMS, USDA, 1400 the order. This rule requires all parties The volume of tomatoes shipped for
Independence Avenue SW., STOP 0237, interested in receiving Florida tomatoes processing under COPs is significant
Washington, DC 20250–0237; shipped under a COP to apply to the enough to negatively impact the market
Telephone: (202) 720–2491; Fax: (202) Committee to become an approved for fresh tomatoes if these tomatoes are
720–8938. receiver. This change will assist the utilized in markets other than those
Small businesses may request Committee in preventing tomatoes specified in the COP. Last season, nearly
information on complying with this shipped under a COP from entering 500,000 25-pound equivalent units of

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53538 Federal Register / Vol. 70, No. 174 / Friday, September 9, 2005 / Rules and Regulations

Florida tomatoes were shipped under undergo random inspections by the necessary. The Committee also believes
COPs. Consequently, the Committee Committee, and an agreement to submit enhancing the definitions for processed
agreed that additional steps need to be reports as required. The Committee and pickled tomatoes helps further
taken to ensure that tomatoes shipped believes that this additional information clarify the appropriate uses of tomatoes
under a COP are only utilized for the will be valuable in helping to verify shipped under a COP. Therefore, the
purposes specified. legitimate receivers. Committee voted unanimously to make
Last season, when the issue with COP The Committee staff will use the these changes.
tomatoes surfaced, the Committee staff information in the application to
looked for ways to address the problem. investigate and approve receivers Final Regulatory Flexibility Analysis
Using the current safeguard procedures, wanting to receive tomatoes under Pursuant to requirements set forth in
those handlers who had shipped to COPs. The approved receivers and the the Regulatory Flexibility Act (RFA), the
receivers that had used tomatoes tomatoes shipped under the COP Agricultural Marketing Service (AMS)
shipped under a COP for purposes provisions will be monitored has considered the economic impact of
different than specified had their COPs throughout the year. If during the season this action on small entities.
canceled. Some handlers noted that they an approved receiver is found to be Accordingly, AMS has prepared this
had shipped the tomatoes to their handling tomatoes in ways other than final regulatory flexibility analysis.
receiver in good faith, and that the specified under the COP, that receiver’s The purpose of the RFA is to fit
receiver was responsible for the approval will be rescinded. The regulatory actions to the scale of
problem. Further, because the handlers Committee believes this change will business subject to such actions in order
had used COPs to ship to more than one help better assure that COP tomatoes are that small businesses will not be unduly
receiver, those handlers affected were shipped into the intended COP outlets. or disproportionately burdened.
no longer able to take advantage of the Moreover, handlers who may have Marketing orders issued pursuant to the
exemptions provided under the COP shipped to non-compliant receivers will Act, and rules issued thereunder, are
provisions. still be able to ship to other approved unique in that they are brought about
Considering this, the Committee COP receivers. through group action of essentially
believes one way to help ensure that This rule also amends the definition small entities acting on their own
tomatoes shipped under a COP are not for processing contained in § 966.323 behalf. Thus, both statutes have small
being misused is to provide for and adds a definition for pickling. Over entity orientation and compatibility.
safeguards on receivers. To address the the past few years, there have been an There are approximately 100
situation, the Committee recommended increasing number of questions producers of tomatoes in the production
that all receivers interested in receiving surrounding what constitutes a fresh area and approximately 80 handlers
tomatoes shipped under a COP be product and what constitutes subject to regulation under the
required to apply to the Committee to processing. To help reduce any marketing order. Small agricultural
become an approved receiver. In confusion and to ensure uniformity, the producers are defined by the Small
addition, handlers are only able to ship Committee believes it is important to Business Administration (SBA) as those
under a COP to those approved make the definitions for processing and having annual receipts less than
receivers. pickling in the order’s rules and $750,000, and small agricultural service
Should a receiver utilize the tomatoes regulations as clear as possible. firms are defined as those whose annual
for purposes other than specified under Currently, processing is defined as the receipts are less than $6,000,000 (13
the COP, their status as an approved manufacture of any tomato product CFR 121.201). Currently, there are about
receiver with the Committee will be which has been converted into juice, or 20 receivers who obtain tomatoes under
rescinded. As a result, such a receiver preserved by any commercial process, COPs.
will no longer be eligible to receive including canning, dehydrating, drying, Based on industry and Committee
tomatoes from any handler under a and the addition of chemical data, the average annual price for fresh
COP, but will only be able to receive substances. This rule amends this Florida tomatoes during the 2003–04
tomatoes meeting the existing grade and definition to specify further that all season was approximately $8.04 per 25-
size requirements under the order. processing procedures must result in a pound container, and fresh shipments
Under the provisions added by this product that does not require for the 2003–04 season totaled
rule, anyone interested in receiving refrigeration until opened. 57,989,624 25-pound cartons of
tomatoes under a COP will have to file In addition to the changes to the tomatoes. Committee data indicates
an application with the Committee for definition for processing, a specific approximately 25 percent of the
review and approval. This includes definition for pickling is also added. handlers handle 94 percent of the total
persons acquiring tomatoes for Pickling is defined as tomatoes volume shipped outside the regulated
processing or pickling, as well as preserved in a brine or vinegar solution. area. Based on the average price, about
tomatoes acquired for relief or charity, These clarifications should lessen the 75 percent of handlers could be
for export, for experimental purposes, or chance of confusion between handlers considered small businesses under
for other purposes specified by the and purchasers regarding tomatoes SBA’s definition. Therefore, the
Committee. This application includes covered under a COP. majority of Florida tomato handlers may
the name, address, telephone number, The Committee believes this rule will be classified as small entities. It is
and e-mail address of applicant strengthen the existing safeguard believed that the majority of Florida
(receiver), the purpose for which the provisions and will help deter the use tomato receivers and producers may be
COP tomatoes will be used, physical of Florida COP tomatoes for classified as small entities.
address where the stated privilege unauthorized purposes. By requiring This final rule revises the COP
purpose will be accomplished, an persons who wish to receive tomatoes requirements currently prescribed under
indication of whether or not the receiver under COPs to apply to the Committee the order. This rule requires those
packs, repacks, or sells fresh tomatoes, to become approved receivers, the interested in receiving Florida tomatoes
a statement that the tomatoes obtained Committee has additional information shipped under a COP to apply to the
will only be used for the purposes stated regarding receivers and the ability to Committee to become an approved
in the COP, a statement agreeing to rescind their approved receiver status, if receiver. This change will assist the

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Federal Register / Vol. 70, No. 174 / Friday, September 9, 2005 / Rules and Regulations 53539

Committee in assuring that tomatoes considered was to further restrict rule were approved by the Office of
shipped under COPs are used for the handlers when shipping tomatoes under Management and Budge (OMB), under
intended COP purposes. This rule also a COP. The Committee recognized that OMB No. 0581–0231. The information
clarifies the definitions for processing some industry members have developed collection has been merged into OMB
and pickling as used in the rules and markets for these tomatoes, which No. 0581–0178, Vegetable and Specialty
regulations under the order. These would otherwise be discarded. Crops Marketing Orders, which expires
clarifications will help reduce confusion Therefore, the Committee voted to make October 31, 2007.
between handlers and purchasers of the changes in this rule rather than In summary, this final rule establishes
tomatoes covered under a COP. The further restricting this outlet. Another reporting requirements authorized
Committee unanimously recommended alternative considered was to only under the Florida tomato order.
these changes at a meeting held on require processors and picklers to apply Information would be reported on form
September 9, 2004. This rule adds to the Committee. However, the number FTC–111. These additional
§ 966.124 to the rules and regulations, Committee believed that the application reporting requirements will enable the
amends the safeguard provisions process should be applicable to all
Committee to collect information from
specified in § 966.323(c), and revises the parties receiving tomatoes under a COP.
persons wishing to receive Florida
definitions specified in § 966.323(g). Consequently, this alternative was
tomatoes exempt from certain order
Authority for these actions is provided rejected.
As noted in the initial regulatory requirements under a COP. The
for in §§ 966.54 and 966.56 of the order.
These changes are not expected to flexibility analysis, USDA has not Committee will evaluate this
result in any increased costs for identified any relevant Federal rules information and determine whether an
growers, handlers, or receivers who that duplicate, overlap, or conflict with entity is qualified to receive COP
comply with COP requirements. The this final rule. As with all Federal tomatoes. This form will help ensure
Committee recommended these changes marketing order programs, reports and compliance with the regulations and
to improve compliance with the forms are periodically reviewed to assist the Committee and USDA with
provisions established under COPs. reduce information requirements and oversight and planning. The estimated
Because nearly 99 percent of Florida duplication by industry and public burden due to this form required of each
tomato shipments are utilized in the sector agencies. entity annually is 5 minutes per person,
domestic fresh market, it is important to In addition, the Committee’s meeting with a total increased burden estimated
assure that tomatoes shipped under was widely publicized throughout the at 1.67 hours.
COPs are disposed of properly. tomato industry and all interested Government Paperwork Elimination
Adequate safeguards are needed for this persons were invited to attend the Act Compliance
purpose. meeting and participate in Committee
This action will have a beneficial deliberations. Like all Committee The Agricultural Marketing Service
impact on producers, handlers, and meetings, the September 9, 2004, (AMS) is committed to compliance with
receivers in that it will continue to meeting was a public meeting and all the Government Paperwork Elimination
allow approved receivers to obtain COP entities, both large and small, were able Act (GPEA), which requires Government
tomatoes. Handlers shipping to to express their views on this issue. agencies in general to provide the public
approved COP receivers also benefit A proposed rule concerning this the option of submitting information or
because the non-compliant receivers action was published in the Federal transacting business electronically to
will be removed from the Committee’s Register on May 27, 2005 (70 FR 30647). the maximum extent possible.
approved receiver list and the handler Copies of the rule were mailed or sent After consideration of all relevant
can continue to take advantage of the via facsimile to all Committee members matter presented, including the
exemptions by shipping to other and tomato handlers. Finally, the rule information and recommendation
approved COP receivers. Clarifying the was made available through the Internet submitted by the Committee and other
definitions of processing and pickling by the Office of the Federal Register. A available information, it is hereby found
also helps alleviate some of the 60-day comment period ending July 26, that this rule, as hereinafter set forth,
questions and any confusion concerning 2005, was provided to allow interested will tend to effectuate the declared
what constitutes these procedures. The persons to respond to the proposal. No policy of the Act.
opportunities and benefits of this rule comments were received.
are expected to be equally available to A small business guide on complying It is further found that good cause
all tomato handlers and growers with fruit, vegetable, and specialty crop exists for not postponing the effective
regardless of their size of operation. marketing agreements and orders may date of this rule until 30 days after
However, requiring receivers to be viewed at: publication in the Federal Register (5
register with the Committee imposes an fv/moab.html. Any questions about the U.S.C. 553) because the final rule
additional reporting burden on both compliance guide should be sent to Jay should be effective by the start of the
small and large receivers. Requiring Guerber at the previously mentioned 2005–06 season, which begins October
receivers to apply annually will increase address in the FOR FURTHER INFORMATION 10, 2005. Further, handlers are aware of
the annual burden by five minutes per CONTACT section. this rule, which was recommended at a
receiver, for a total burden of 1.67 hours As mentioned previously, this action public meeting. Also, a 60-day comment
(5 minutes per response × 1 response requires an additional collection of period was provided for in the proposed
per receiver × 20 receivers). Although information. These information rule. No comments were received.
this action places an additional burden collection requirements are discussed in List of Subjects in 7 CFR Part 966
on receivers of Florida COP tomatoes, the following section.
the benefits of having the additional Marketing agreements, Reporting and
information regarding receivers Paperwork Reduction Act
recordkeeping requirements, Tomatoes.
outweigh the increase in reporting In accordance with the Paperwork
burden. Reduction Act of 1995 (44 U.S.C. 3501 ■ For the reasons set forth in the
The Committee discussed alternatives et seq.), the information collection preamble, 7 CFR part 966 is amended as
to this action. One alternative requirements that are contained in this follows:

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53540 Federal Register / Vol. 70, No. 174 / Friday, September 9, 2005 / Rules and Regulations

PART 966—TOMATOES GROWN IN definition for Pickling to read as prohibit flight into known or forecasted
FLORIDA follows: icing conditions. In lieu of the AFM
revision and placard installation, that
■ 1. The authority citation for 7 CFR § 966.323 Handling regulations. AD allows identifying the part number
part 966 continues to read as follows: * * * * * of each flexible hose in the wing (slat)
Authority: 7 U.S.C. 601–674. (c) * * * anti-icing system, performing repetitive
(5) Make shipments only to those who inspections of each hose for
■ 2. In part 966, a new § 966.124 is have qualified with the committee as delamination, and performing corrective
added to read as follows: approved receivers. actions if necessary. This AD adds the
§ 966.124 Approved receiver. * * * * * following actions (also in lieu of the
(g) * * *Processing as used in AFM revision and placard installation):
(a) Approved receiver. Any person
§§ 966.120 and 966.323 means the New repetitive inspections for
who desires to acquire, as an approved
manufacture of any tomato product delamination at reduced intervals,
receiver, tomatoes for purposes as set
which has been converted into juice, or corrective actions if necessary, and an
forth in § 966.120(a), shall annually,
preserved by any commercial process, additional AFM revision to include a
prior thereto, file an application with
including canning, dehydrating, drying, statement to track flight cycles when the
the committee on a form approved by it,
and the addition of chemical slat anti-icing system is activated. This
which shall contain, but not be limited
substances. Further, all processing AD also provides an option to
to, the following information:
(1) Name, address, contact person, procedures must result in a product that repetitively replace the existing flexible
telephone number, and e-mail address does not require refrigeration until hoses with improved flexible hoses,
of applicant; opened. Pickling as used in §§ 966.120 which terminates the repetitive
(2) Purpose of shipment; and 966.323 means to preserve tomatoes inspection requirements. This AD
(3) Physical address of where in a brine or vinegar solution. U.S. results from a report of in-service
manufacturing or other specified tomato standards means the revised delamination of a flexible hose in the
purpose is to occur; United States Standards for Fresh slat anti-icing system at a time earlier
(4) Whether or not the receiver packs, Tomatoes (7 CFR 51.1855 through than previously reported. We are issuing
repacks or sells fresh tomatoes; 51.1877), effective October 1, 1991, as this AD to prevent collapse of the
(5) A statement that the tomatoes amended, or variations thereof specified flexible hoses in the slat anti-icing
obtained exempt from the fresh tomato in this section. Other terms in this system, which could lead to insufficient
regulations will not be resold or section shall have the same meaning as anti-icing capability and, if icing is
transferred for resale, directly or when used in Marketing Agreement No. encountered in this situation, could
indirectly, but will be used only for the 125, as amended, and this part, and the result in reduced controllability of the
purpose specified in the corresponding U.S. tomato standards. airplane.
certificate of privilege; Dated: September 2, 2005. DATES: This AD becomes effective
(6) A statement agreeing to undergo Lloyd C. Day, September 26, 2005.
random inspection by the committee; Administrator, Agricultural Marketing The Director of the Federal Register
(7) A statement agreeing to submit Service. approved the incorporation by reference
such reports as is required by the [FR Doc. 05–17860 Filed 9–8–05; 8:45 am] of certain publications listed in the AD
committee. BILLING CODE 3410–02–P as of September 26, 2005.
(b) The committee, or its duly
On April 26, 2005 (70 FR 18282, April
authorized agents, shall give prompt
11, 2005), the Director of the Federal
consideration to each application for an
DEPARTMENT OF TRANSPORTATION Register approved the incorporation by
approved receiver and shall determine
reference of Dassault Alert Service
whether the application is approved or Federal Aviation Administration Bulletin F10–A312, dated February 25,
disapproved and notify the applicant
2005, including the Service Bulletins
accordingly. 14 CFR Part 39
(c) The committee, or its duly Compliance Card.
authorized agents, may rescind a [Docket No. FAA–2005–22309; Directorate We must receive any comments on
person’s approved receiver status upon Identifier 2005–NM–159–AD; Amendment this AD by November 8, 2005.
39–14254; AD 2005–18–14] ADDRESSES: Use one of the following
proof satisfactory that such a receiver
has handled tomatoes contrary to the RIN 2120–AA64 addresses to submit comments on this
provisions established under the AD.
Certificate of Privilege. Such action Airworthiness Directives; Avions • DOT Docket Web site: Go to
rescinding approved receiver status Marcel Dassault-Breguet Model Falcon and follow the
shall apply to and not exceed a 10 Airplanes instructions for sending your comments
reasonable period of time as determined AGENCY: Federal Aviation electronically.
by the committee or its duly authorized Administration (FAA), Department of • Government-wide rulemaking Web
agents. Any person who has been Transportation (DOT). site: Go to
denied as an approved receiver or who and follow the instructions for sending
ACTION: Final rule; request for
has had their approved receiver status your comments electronically.
rescinded, may appeal to the committee • Mail: Docket Management Facility,
for reconsideration. Such an appeal SUMMARY: The FAA is superseding an U.S. Department of Transportation, 400
shall be made in writing. existing airworthiness directive (AD) Seventh Street, SW., Nassif Building,
■ 3. In § 966.323, a new paragraph (5) is that applies to all Dassault Model Room PL–401, Washington, DC 20590.
added to paragraph (c), and paragraph Falcon 10 series airplanes. The existing • Fax: (202) 493–2251.
(g) is amended by revising the AD currently requires revising the • Hand Delivery: Room PL–401 on
definitions of Processing and U.S. airplane flight manual (AFM) and the plaza level of the Nassif Building,
tomato Standards, and by adding a installing a placard in the flight deck to 400 Seventh Street, SW., Washington,

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