45734 Federal Register / Vol. 74, No. 171 / Friday, September 4, 2009 / Rules and Regulations 

was provided to allow interested 

persons to respond to the proposal. 

One comment was received. The 

commenter, representing a Canadian 

association of producers and handlers, 

fully supported the proposal to relax the 

size requirements. 

Accordingly, no changes will be made 

to the rule as proposed, based on the 

comments 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/ 

AMSv1.0/ams.fetchTemplateData.do?

template=TemplateN&page=Marketing

OrdersSmallBusinessGuide. Any 

questions about the compliance guide 

should be sent to Jay Guerber at the 

previously mentioned address in the 

FOR FURTHER INFORMATION CONTACT

section. 

In accordance with section 8e of the 

Act, the United States Trade 

Representative has concurred with the 

issuance of this final rule. 

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. 

List of Subjects in 7 CFR Part 945 

Marketing agreements, Potatoes, 

Reporting and recordkeeping 

requirements. 

■ For the reasons set forth above, 7 CFR 

part 945 is amended as follows: 

PART 945—IRISH POTATOES GROWN 

IN CERTAIN DESIGNATED COUNTIES 

IN IDAHO, AND MALHEUR COUNTY, 

OREGON 

■ 1. The authority citation for 7 CFR 

part 945 continues to read as follows: 

Authority: 7 U.S.C. 601–674. 

■ 2. In § 945.341, paragraphs (a)(2)(i) 

and (a)(2)(iii) are revised to read as 

follows: 

§ 945.341 Handling regulation. 

* * * * * 

(a) * * * 

(2) * * * 

(i) Round varieties. 17⁄8 inches 

minimum diameter, unless otherwise 

specified on the container in connection 

with the grade. 

* * * * * 

(iii) All varieties, U.S. No. 1 grade or 

better. (A) Size B (11⁄2 to 21⁄4 inches 

diameter). 

(B) Creamer (3⁄4 to 15⁄8 inches 

diameter). 

* * * * * 

Dated: August 31, 2009. 

Rayne Pegg, 

Administrator, Agricultural Marketing 

Service. 

[FR Doc. E9–21354 Filed 9–3–09; 8:45 am] 

BILLING CODE 3410–02–P 

DEPARTMENT OF AGRICULTURE 

Agricultural Marketing Service 

7 CFR Part 980 

[Doc. No. AMS FV–08–0097; FV09–980–1 

FR] 

Vegetables, Import Regulations; Partial 

Exemption to the Minimum Grade 

Requirements for Fresh Tomatoes 

AGENCY: Agricultural Marketing Service, 

USDA. 

ACTION: Final rule. 

SUMMARY: This rule provides a partial 

exemption to the minimum grade 

requirements under the tomato import 

regulation. The Florida Tomato 

Committee (Committee), which locally 

administers the marketing order for 

tomatoes grown in Florida (order), 

recommended the change for Florida 

tomatoes. The order’s administrative 

rules and regulations were recently 

revised to exempt Vintage RipesTM

tomatoes (Vintage RipesTM) from the 

shape requirements associated with the 

U.S. No. 2 grade. A corresponding 

change to the import regulation is 

required under section 8e of the 

Agricultural Marketing Agreement Act 

of 1937. This rule provides the same 

partial exemption for Vintage RipesTM

under the import regulation so it 

conforms to the regulations under the 

order. 

DATES: Effective Date: October 5, 2009. 

FOR FURTHER INFORMATION CONTACT: 

Doris Jamieson, Marketing Specialist, or 

Christian Nissen, Regional Manager, 

Southeast Marketing Field Office, 

Marketing Order Administration 

Branch, Fruit and Vegetable Programs, 

AMS, USDA; Telephone: (863) 324– 

3375, Fax: (863) 325–8793; or E-mail: 

Doris.Jamieson@ams.usda.gov or 

Christian.Nissen@ams.usda.gov. 

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@ams.usda.gov. 

SUPPLEMENTARY INFORMATION: This final 

rule is issued under section 8e of the 

Agricultural Marketing Agreement Act 

of 1937, as amended (7 U.S.C. 601–674), 

hereinafter referred to as the ‘‘Act,’’ 

which provides that whenever certain 

specified commodities, including 

tomatoes, are regulated under a Federal 

marketing order, imports of these 

commodities into the United States are 

prohibited unless they meet the same or 

comparable grade, size, quality, or 

maturity requirements as those in effect 

for the domestically produced 

commodity. 

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. 

There are no administrative 

procedures, which must be exhausted 

prior to any judicial challenge to the 

provisions of import regulations issued 

under section 8e of the Act. 

This final rule provides a partial 

exemption to the minimum grade 

requirements for Vintage RipesTM

imported into the United States. Absent 

an exemption, the import requirements 

specify that tomatoes must meet at least 

a U.S. No. 2 grade before they can be 

shipped and sold into the fresh market. 

A final rule amending the rules and 

regulations under the order exempting 

Vintage RipesTM from the shape 

requirements associated with the U.S. 

No. 2 grade was issued separately by 

USDA (74 FR 17591, April 16, 2009). 

This rule provides the same partial 

exemption under the import regulation 

so it conforms to the regulations under 

the order. 

Section 966.52 of the order provides 

the authority to establish grade 

requirements for Florida tomatoes. 

Section 966.323 of the order specifies, 

in part, the minimum grade 

requirements for tomatoes grown in 

Florida. Section 980.212 specifies the 

corresponding import requirements. 

Form and shape represent part of the 

elements of grade. The current 

minimum grade requirement for Florida 

tomatoes and for imported tomatoes is 

a U.S. No. 2. The specifics of this grade 

requirement are listed under the U.S. 

Standards for Grades of Fresh Tomatoes 

(7 CFR 51.1855–51.1877). 

The U.S. Standards for Grades of 

Fresh Tomatoes (Standards) specify the 

criteria tomatoes must meet to grade a 

U.S. No. 2, including that they must be 


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Federal Register / Vol. 74, No. 171 / Friday, September 4, 2009 / Rules and Regulations 45735 

reasonably well formed, and not more 

than slightly rough. These two elements 

relate specifically to the shape of the 

tomato. The definitions section of the 

Standards defines reasonably well 

formed as not decidedly kidney shaped, 

lopsided, elongated, angular, or 

otherwise decidedly deformed. The 

term slightly rough means that the 

tomato is not decidedly ridged or 

grooved. This rule would amend 

§ 980.212 to exempt Vintage RipesTM

from these shape requirements as 

specified under the grade for a U.S. No. 

2. 

Vintage RipesTM are a trademarked 

tomato variety bred to look and taste 

like an heirloom-type tomato. One of the 

characteristics of this variety is its 

appearance. Vintage RipesTM are often 

shaped differently from other round 

tomatoes. Depending on the time of year 

and the weather, Vintage RipesTM are 

concave on the stem end with deep, 

ridged shoulders. They can also be very 

misshapen, appearing kidney shaped 

and lopsided. Because of this variance 

in shape and appearance, Vintage 

RipesTM have difficulty meeting the 

shape requirements of the U.S. No. 2 

grade. 

In addition, the cost of production 

and handling for these tomatoes tends to 

be higher when compared to standard 

commercial varieties. The shoulders on 

Vintage RipesTM are easily damaged, 

requiring additional care during picking 

and handling. These tomatoes are also 

more susceptible to disease. 

Consequently, Vintage RipesTM require 

greater care in production to keep 

injuries and blemishes to a minimum. 

Still, when compared to standard 

commercial varieties, even with taking 

special precaution, larger quantities of 

these tomatoes are left in the field or 

need to be eliminated in the 

packinghouse to ensure a quality 

product. Losses can approach 50 

percent or higher for Vintage RipesTM. 

With the higher production costs and 

the reduced packout, these tomatoes 

tend to sell at a higher price point than 

standard round tomatoes. 

Heirloom-type tomatoes have been 

gaining favor with consumers. Vintage 

RipesTM were bred specifically to 

address this demand. However, with its 

difficulty in meeting established shape 

requirements, and its increased cost of 

production, producing these tomatoes 

for market may not be financially viable 

without an exemption. In order to make 

more of these specialty tomatoes 

available for consumers, the Committee 

agreed to a change which provides an 

exemption for Vintage RipesTM from the 

shape requirements of the U.S. No. 2 

grade. This exemption is the same as 

previously provided for a similar type 

tomato (72 FR 1919, January 17, 2007). 

This rule only provides imported 

Vintage RipesTM with a partial 

exemption from the grade requirements 

under the import regulation. 

Consequently, Vintage RipesTM are only 

exempt from the shape requirements of 

the grade and are still required to meet 

all other aspects of the U.S. No. 2 grade. 

Vintage RipesTM also continue to be 

required to meet all other requirements 

under the import regulation, such as 

size and inspection. 

Prior to the 1998–99 season, the 

Committee recommended that the 

minimum grade be increased from a 

U.S. No. 3 to a U.S. No. 2. A conforming 

change was also made to the import 

regulation. Committee members agree 

that increasing the grade requirement 

has been very beneficial to the industry 

and in the marketing of tomatoes. It is 

important to the Committee that these 

benefits be maintained. There was some 

industry concern that providing a 

partial exemption for shape for an 

heirloom-type tomato could result in the 

shipment of U.S. No. 3 grade tomatoes 

of standard commercial varieties, 

contrary to the objectives of the 

exemption and the order. 

To ensure this exemption does not 

result in the shipment of U.S. No. 3 

grade tomatoes of other varieties, this 

exemption only applies to Vintage 

RipesTM covered under the Agricultural 

Marketing Service’s Identity 

Preservation (IP) program. The IP 

program was developed by the 

Agricultural Marketing Service to assist 

companies in marketing products 

having unique traits. The program 

provides independent, third-party 

verification of the segregation of a 

company’s unique product at every 

stage, from seed, production and 

processing, to distribution. This 

exemption is contingent upon the 

Vintage RipesTM maintaining positive 

program status under the IP program 

and continuing to meet program 

requirements. As such, this should help 

ensure that only Vintage RipesTM are 

shipped under this exemption. 

Section 8e of the Act 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. 

A final rule amending the rules and 

regulations under the order exempting 

Vintage RipesTM from the shape 

requirements associated with the U.S. 

No. 2 grade was issued separately by 

USDA on April 16, 2009 (74 FR 17591). 

This rule amends § 980.212 of the 

import requirements to bring the tomato 

import regulation into conformity with 

the changes to the regulations issued 

under the order. 

Final 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 

action on small entities. Accordingly, 

AMS has prepared this final regulatory 

flexibility analysis. 

The purpose of the RFA is to fit 

regulatory actions to the scale of 

business subject to such actions in order 

that small businesses will not be unduly 

or disproportionately burdened. 

Marketing orders issued pursuant to the 

Act, and the rules issued thereunder, are 

unique in that they are brought about 

through group action of essentially 

small entities acting on their own 

behalf. Import regulations issued under 

the Act are based on those established 

under Federal marketing orders. 

There are approximately 200 

importers of tomatoes subject to the 

regulation. Small agricultural service 

firms, which include tomato importers, 

are defined by the Small Business 

Administration (SBA) as those having 

annual receipts of less than $7,000,000 

(13 CFR 121.201). Based on information 

from the Foreign Agricultural Service, 

USDA, the dollar value of imported 

fresh tomatoes ranged from around 

$1.07 billion in 2005 to $1.22 billion in 

2007. Using these numbers, the majority 

of tomato importers may be classified as 

small entities. 

Mexico, Canada, and the Netherlands 

are the major tomato producing 

countries exporting tomatoes to the 

United States. In 2007, shipments of 

tomatoes imported into the United 

States totaled 1.7 million metric tons. 

Mexico accounted for 949,695 metric 

tons, 111,697 metric tons were imported 

from Canada, and 5,147 metric tons 

arrived from the Netherlands. 

This final rule provides a partial 

exemption to the minimum grade 

requirements for Vintage RipesTM

imported into the United States. Absent 

an exemption, the import requirements 

for tomatoes specify that tomatoes must 

meet at least a U.S. No. 2 grade before 

they can be shipped and sold into the 

fresh market. A final rule amending the 

rules and regulations under the order 

exempting Vintage RipesTM from the 

shape requirements associated with the 

U.S. No. 2 grade was issued separately 

by USDA (74 FR 17591, April 16, 2009). 

Under section 8e of the Act, imports of 

tomatoes have to meet the same grade, 

size, quality, and maturity requirements 


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45736 Federal Register / Vol. 74, No. 171 / Friday, September 4, 2009 / Rules and Regulations 

as under the order. This rule provides 

the same partial exemption under the 

import regulation so it conforms to the 

changes under the order. 

This action represents a small 

increase in costs for imports of Vintage 

RipesTM, primarily from costs associated 

with developing and maintaining an IP 

program. However, the costs are 

minimal. This results in increased sales 

of Vintage RipesTM. Consequently, the 

benefits of this action more than offset 

the associated costs. 

This final rule will not impose any 

additional reporting or recordkeeping 

requirements beyond the IP program on 

either small or large tomatoes importers. 

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. 

Additionally, except for applicable 

domestic regulations, USDA has not 

identified any relevant Federal rules 

that duplicate, overlap or conflict with 

this final rule. Further, the public 

comment received concerning the 

proposal did not address the initial 

regulatory flexibility analysis. 

A proposed rule concerning this 

action was published in the Federal 

Register on March 9, 2009 (74 FR 9969). 

The rule was made available through 

the Internet by USDA and the Office of 

the Federal Register. A 60-day comment 

period ending May 8, 2009, was 

provided to allow interested persons to 

respond to the proposal. 

One comment was received during 

the comment period in response to the 

proposal. The commenter agreed that 

heirloom tomatoes are gaining favor in 

the marketplace, and recognized that 

such tomatoes have difficulty meeting 

size and shape requirements under the 

order. He stated that the exemption 

provided in this rule should include all 

heirloom tomatoes. 

As previously discussed, the 

Committee is concerned that granting 

broad exemptions for unspecified 

heirloom-type tomatoes could result in 

the shipment of U.S. No. 3 grade 

tomatoes of standard commercial 

varieties, weakening the integrity and 

the effectiveness of the order. To 

prevent this and ensure that only the 

specified varieties are shipped under 

the exemption granted, the exemption 

has been tied to continued participation 

in the IP program developed by USDA. 

Further, this is the second exemption of 

this type to be issued, and other 

producers of heirloom-type tomatoes are 

free to seek similar exemptions. 

Therefore, this rule exempts only 

Vintage RipesTM, and the exemption is 

contingent upon maintenance of 

positive program status under USDA’s 

IP program. 

Accordingly, no changes will be made 

to the rule as proposed, based on the 

comment 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

/AMSv1.o/ams.fetchTemplateData.do?

template=TemplateN&page=Marketing

OrdersSmallBusinessGuide. Any 

questions about the compliance guide 

should be sent to Jay Guerber at the 

previously mentioned address in the 

FOR FURTHER INFORMATION CONTACT

section. 

In accordance with section 8e of the 

Act, the United States Trade 

Representative has concurred with the 

issuance of this final rule. 

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. 

List of Subjects in 7 CFR Part 980 

Food grades and standards, Imports, 

Marketing agreements, Onions, Potatoes, 

Tomatoes. 

■ For the reasons set forth in the 

preamble, 7 CFR part 980 is amended as 

follows: 

PART 980—VEGETABLES; IMPORT 

REGULATIONS 

■ 1. The authority citation for 7 CFR 

part 980 continues to read as follows: 

Authority: 7 U.S.C. 601–674. 

§ 980.212 [Amended] 

■ 2. In § 980.212, paragraph (b)(1) all 

references to ‘‘UglyRipeTM’’ are revised 

to read ‘‘UglyRipeTM and Vintage 

RipesTM’’. 

Dated: August 31, 2009. 

Rayne Pegg, 

Administrator. 

[FR Doc. E9–21353 Filed 9–3–09; 8:45 am] 

BILLING CODE 3410–02–P 

DEPARTMENT OF AGRICULTURE 

Cooperative State Research, 

Education, and Extension Service 

7 CFR Part 3430 

RIN 0524–AA28 

Competitive and Noncompetitive NonFormula Federal Assistance 

Programs—General Award 

Administrative Provisions and 

Program-Specific Administrative 

Provisions for the Specialty Crop 

Research Initiative 

AGENCY: Cooperative State Research, 

Education, and Extension Service, 

USDA. 

ACTION: Final rule. 

SUMMARY: The Cooperative State 

Research, Education, and Extension 

Service (CSREES) is publishing as a 

final rule one set of administrative 

requirements that contain elements 

common to all of the competitive and 

noncompetitive non-formula Federal 

assistance programs the Agency 

administers. In a relatively short period 

of time, this allows CSREES to apply 

basic rules to Federal assistance 

programs that had been operating 

without them, including new nonformula Federal assistance programs 

created by the enactment of the Food, 

Conservation, and Energy Act of 2008 

(FCEA) and to efficiently implement 

changes to programs with existing 

regulations as required by FCEA. The 

provisions in subparts A through E 

serve as a single Agency resource 

codifying current practices simply and 

coherently for almost all CSREES 

competitive and noncompetitive nonformula Federal assistance programs 

except the Small Business Innovation 

Research (SBIR) Program and the 

Veterinary Medicine Loan Repayment 

Program (VMLRP). As specific rules are 

developed for each CSREES Federal 

assistance program, CSREES will 

propose adding a subpart for that 

Federal assistance program to this 

regulation. This final rule is published 

with a first set of program-specific 

Federal assistance regulations as subpart 

F for the Specialty Crop Research 

Initiative, authorized under section 412 

of the Agricultural Research, Extension, 

and Education Reform Act of 1998, as 

added by section 7311 of FCEA. 

DATES: Effective Date: September 4, 

2009, except that §§ 3430.56 and 

3430.58(b) shall apply only to a grant or 

cooperative agreement awarded on or 

after September 4, 2009 or to a grant or 

cooperative agreement awarded prior to 

that date that receives additional funds 


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