[Federal Register Volume 74, Number 171 (Friday, September 4, 2009)]
[Rules and Regulations]
[Pages 45734-45736]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-21353]


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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.

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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 Ripes<SUP>TM</SUP> tomatoes (Vintage 
Ripes<SUP>TM</SUP>) 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 
Ripes<SUP>TM</SUP> 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: <a href="/cdn-cgi/l/email-protection#6d29021f041e43270c0004081e02032d0c001e43181e090c430a021b"><span class="__cf_email__" data-cfemail="1b5f7469726835517a76727e6874755b7a7668356e687f7a357c746d">[email protected]</span></a> or <a href="/cdn-cgi/l/email-protection#8ac9e2f8e3f9fee3ebe4a4c4e3f9f9efe4caebe7f9a4fff9eeeba4ede5fc"><span class="__cf_email__" data-cfemail="1152796378626578707f3f5f786262747f51707c623f646275703f767e67">[email protected]</span></a>.
    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: <a href="/cdn-cgi/l/email-protection#5e143f2770192b3b2c3c3b2c1e3f332d702b2d3a3f70393128"><span class="__cf_email__" data-cfemail="145e756d3a53617166767166547579673a616770753a737b62">[email protected]</span></a>.

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 Ripes<SUP>TM</SUP> 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 Ripes<SUP>TM</SUP> 
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

[[Page 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 Sec.  980.212 to 
exempt Vintage Ripes<SUP>TM</SUP> from these shape requirements as 
specified under the grade for a U.S. No. 2.
    Vintage Ripes<SUP>TM</SUP> 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 Ripes<SUP>TM</SUP> are often 
shaped differently from other round tomatoes. Depending on the time of 
year and the weather, Vintage Ripes<SUP>TM</SUP> 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 Ripes<SUP>TM</SUP> 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 Ripes<SUP>TM</SUP> are easily damaged, requiring 
additional care during picking and handling. These tomatoes are also 
more susceptible to disease. Consequently, Vintage Ripes<SUP>TM</SUP> 
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 Ripes<SUP>TM</SUP>. 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 Ripes<SUP>TM</SUP> 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 Ripes<SUP>TM</SUP> 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 Ripes<SUP>TM</SUP> with a 
partial exemption from the grade requirements under the import 
regulation. Consequently, Vintage Ripes<SUP>TM</SUP> 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 Ripes<SUP>TM</SUP> 
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 Ripes<SUP>TM</SUP> 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 
Ripes<SUP>TM</SUP> maintaining positive program status under the IP 
program and continuing to meet program requirements. As such, this 
should help ensure that only Vintage Ripes<SUP>TM</SUP> 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 Ripes<SUP>TM</SUP> 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 Sec.  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 Ripes<SUP>TM</SUP> 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 
Ripes<SUP>TM</SUP> 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

[[Page 45736]]

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 Ripes<SUP>TM</SUP>, primarily from costs associated with 
developing and maintaining an IP program. However, the costs are 
minimal. This results in increased sales of Vintage Ripes<SUP>TM</SUP>. 
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 
Ripes<SUP>TM</SUP>, 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=MarketingOrdersSmallBusinessGuide. 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.

0
For the reasons set forth in the preamble, 7 CFR part 980 is amended as 
follows:

PART 980--VEGETABLES; IMPORT REGULATIONS

0
1. The authority citation for 7 CFR part 980 continues to read as 
follows:

    Authority:  7 U.S.C. 601-674.

Sec.  980.212  [Amended]

0
2. In Sec.  980.212, paragraph (b)(1) all references to 
``UglyRipe<SUP>TM</SUP>'' are revised to read ``UglyRipe<SUP>TM</SUP> 
and Vintage Ripes<SUP>TM</SUP>''.

    Dated: August 31, 2009.
Rayne Pegg,
Administrator.
[FR Doc. E9-21353 Filed 9-3-09; 8:45 am]
BILLING CODE 3410-02-P


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