Federal Register / Vol. 74, No. 72 / Thursday, April 16, 2009 / Rules and Regulations 17591 

information requirements and 

duplication by industry and public 

sector agencies. Furthermore, USDA has 

not identified any relevant Federal rules 

that duplicate, overlap or conflict with 

this rule. 

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. 

In addition, the Committee’s meeting 

was widely publicized throughout the 

Colorado Area No. 2 potato 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 

21, 2008, meeting was a public meeting 

and all entities, both large and small, 

were able to express views on this issue. 

Finally, interested persons are invited to 

submit comments on this interim final 

rule, including the regulatory and 

informational impacts of this action on 

small businesses. 

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. 

This rule invites comments on a 

modification of the handling regulation 

currently prescribed under the Colorado 

Area No. 2 potato marketing order. Any 

comments timely received will be 

considered prior to finalization of this 

rule. 

After consideration of all relevant 

material presented, including the 

Committee’s recommendation, and 

other information, it is found that this 

interim final rule, as hereinafter set 

forth, will tend to effectuate the 

declared policy of the Act. 

Pursuant to 5 U.S.C. 553, it is also 

found and determined upon good cause 

that it is impracticable, unnecessary, 

and contrary to the public interest to 

give preliminary notice prior to putting 

this rule into effect and that good cause 

exists for not postponing the effective 

date of this rule until 30 days after 

publication in the Federal Register 

because: (1) This rule relaxes the 

minimum size and weight requirements 

for most long potatoes; (2) handlers are 

already shipping potatoes from the 

2008–2009 crop; (3) the Committee 

recommended this change at a public 

meeting and all interested parties had 

an opportunity to express their views 

and provide input; and (4) this rule 

provides a 60-day comment period and 

any comments received will be 

considered prior to finalization of this 

rule. 

List of Subjects in 7 CFR Part 948 

Marketing agreements, Potatoes, 

Reporting and recordkeeping 

requirements. 

■ For the reasons set forth in the 

preamble, 7 CFR part 948 is amended as 

follows: 

PART 948—IRISH POTATOES GROWN 

IN COLORADO 

■ 1. The authority citation for 7 CFR 

part 948 continues to read as follows: 

Authority: 7 U.S.C. 601–674. 

■ 2. Amend § 948.386 by revising 

paragraph (a)(2) to read as follows: 

§ 948.386 Handling Regulation. 

* * * * * 

(a) * * * 

(2) All other varieties. U.S. No. 2, or 

better grade, 17⁄8 inches minimum 

diameter. 

* * * * * 

Dated: April 9, 2009. 

Robert C. Keeney, 

Acting Associate Administrator, Agricultural 

Marketing Service. 

[FR Doc. E9–8685 Filed 4–15–09; 8:45 am] 

BILLING CODE 

DEPARTMENT OF AGRICULTURE 

Agricultural Marketing Service 

7 CFR Part 966 

[Doc. No. AMS FV–08–0090; FVO9–966–1 

FIR] 

Tomatoes Grown in Florida; Partial 

Exemption to the Minimum Grade 

Requirements 

AGENCY: Agricultural Marketing Service, 

USDA. 

ACTION: Final rule. 

SUMMARY: The Department of 

Agriculture (USDA) is adopting, as a 

final rule, without change, an interim 

final rule providing a partial exemption 

to the minimum grade requirements 

under the marketing order for tomatoes 

grown in Florida (order). The order 

regulates the handling of tomatoes 

grown in Florida and is administered 

locally by the Florida Tomato 

Committee (Committee). Absent an 

exemption, Florida tomatoes covered by 

the order must meet at least a U.S. No. 

2 grade before they can be shipped and 

sold outside the regulated area. This 

rule continues in effect the action that 

exempted Vintage RipesTM tomatoes 

(Vintage RipesTM) from the shape 

requirements associated with the U.S. 

No. 2 grade. This change increases the 

volume of Vintage RipesTM that meets 

the order requirements, and helps 

increase shipments and availability of 

these tomatoes. 

DATES: Effective Date: May 18, 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@usda.gov or 

Christian.Nissen@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@usda.gov. 

SUPPLEMENTARY INFORMATION: This rule 

is issued under Marketing Agreement 

No. 125 and Marketing Order No. 966, 

both as amended (7 CFR part 966), 

regulating the handling of tomatoes 

grown in certain designated counties in 

Florida, hereinafter referred to as the 

‘‘order.’’ The marketing agreement and 

order are effective under the 

Agricultural Marketing Agreement Act 

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

hereinafter referred to as the ‘‘Act.’’ 

USDA is issuing this rule in 

conformance with Executive Order 

12866. 

This rule has been reviewed under 

Executive Order 12988, Civil Justice 

Reform. This rule is not intended to 

have retroactive effect. This rule will 

not preempt any State or local laws, 

regulations, or policies, unless they 

present an irreconcilable conflict with 

this rule. 

The Act provides that administrative 

proceedings must be exhausted before 

parties may file suit in court. Under 

section 608c(15)(A) of the Act, any 

handler subject to an order may file 

with USDA a petition stating that the 

order, any provision of the order, or any 

obligation imposed in connection with 

the order is not in accordance with law 

and request a modification of the order 

or to be exempted therefrom. A handler 

is afforded the opportunity for a hearing 


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17592 Federal Register / Vol. 74, No. 72 / Thursday, April 16, 2009 / Rules and Regulations 

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 rule continues in effect the 

action that added a partial exemption to 

the minimum grade requirements 

prescribed under the order. Absent an 

exemption, Florida tomatoes covered by 

the order must meet at least a U.S. No. 

2 grade before they can be shipped and 

sold outside the regulated area. This 

rule continues to exempt Vintage 

RipesTM from the shape requirements 

associated with the U.S. No. 2 grade. 

This change increases the volume of 

Vintage RipesTM that meets the order 

requirements, and helps increase 

shipments and availability of these 

tomatoes. 

Section 966.52 of the order provides 

the authority for the establishment of 

grade and size requirements for Florida 

tomatoes. Form and shape represent 

part of the elements of grade. Section 

966.323 of the order’s rules and 

regulations specifies, in part, the 

minimum grade requirements for 

Florida tomatoes. The current minimum 

grade requirement for Florida 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 

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 amends § 966.323 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 or 

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 precautions, 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 exempt 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 Vintage 

RipesTM with a partial exemption from 

the grade requirements under the order. 

Consequently, Vintage RipesTM are 

exempt from the shape requirements of 

the grade but 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 order, such as size, pack and 

container, 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. Committee 

members agree that increasing the grade 

requirement has been very beneficial to 

the industry and in the marketing of 

Florida 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 heirloomtype 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 gaining and 

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. 

Therefore, this rule continues in effect 

the action that exempted Vintage 

RipesTM from the shape requirements 

associated with the U.S. No. 2 grade. 

This change increases the volume of 

Vintage RipesTM tomatoes that meets 

order requirements, and helps increase 

shipments and availability of these 

tomatoes. 

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. 

Since this rule provides a partial 

exemption from the minimum grade 

requirements under the domestic 

handling regulations, a corresponding 

change to the import regulations is also 

needed. A final rule providing a similar 

partial exemption to the minimum grade 

requirements under the import 

regulations will be issued as a separate 

action. 

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 


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Federal Register / Vol. 74, No. 72 / Thursday, April 16, 2009 / Rules and Regulations 17593 

unique in that they are brought about 

through group action of essentially 

small entities acting on their own 

behalf. 

There are approximately 100 

producers of tomatoes in the production 

area and approximately 70 handlers 

subject to regulation under the 

marketing order. Small agricultural 

producers are defined by the Small 

Business Administration (SBA) as those 

having annual receipts less than 

$750,000, and small agricultural service 

firms are defined as those whose annual 

receipts are less than $7,000,000 (13 

CFR 121.201). 

Based on industry and Committee 

data, the average annual price for fresh 

Florida tomatoes during the 2007–08 

season was approximately $13.71 per 

25-pound container, and total fresh 

shipments for the 2007–08 season were 

45,177,457 25-pound cartons of 

tomatoes. Committee data indicates that 

around 25 percent of the handlers 

handle 94 percent of the total volume 

shipped outside the regulated area. 

Based on the average price, about 75 

percent of handlers could be considered 

small businesses under SBA’s 

definition. In addition, based on 

production data, grower prices as 

reported by the National Agricultural 

Statistics Service, and the total number 

of Florida tomato growers, the average 

annual grower revenue is below 

$750,000. Thus, the majority of handlers 

and producers of Florida tomatoes may 

be classified as small entities. 

This rule continues in effect the 

action that provided a partial exemption 

to the minimum grade requirements for 

tomatoes grown in Florida. Absent an 

exemption, Florida tomatoes covered by 

the order must meet at least a U.S. No. 

2 grade before they can be shipped and 

sold outside the regulated area. This 

rule continues to exempt Vintage 

RipesTM from the shape requirements 

associated with the U.S. No. 2 grade. 

This change increases the volume of 

Vintage RipesTM that meets the order 

requirements, and helps increase 

shipments and availability of these 

tomatoes. This rule amends the 

provisions of § 966.323. Authority for 

this action is provided in § 966.52 of the 

order. 

This change represents a small 

increase in costs for producers and 

handlers of Vintage RipesTM, primarily 

from costs associated with developing 

and maintaining the IP program. 

However, this rule makes additional 

volumes of Vintage RipesTM available 

for shipment. This should result in 

increased sales of Vintage RipesTM. 

Consequently, the benefits of this action 

are expected to more than offset the 

associated costs. 

One alternative to this action that was 

considered was to not provide an 

exemption from shape requirements for 

Vintage RipesTM. However, providing 

the exemption increases the volume of 

Vintage RipesTM that meets the order 

requirements, and helps increase 

shipments and availability of these 

tomatoes for consumers. Further, the 

same exemption had been provided 

previously for a similar tomato. 

Therefore, this alternative was rejected. 

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. 

This rule will not impose any 

additional reporting or recordkeeping 

requirements beyond the IP program on 

either small or large 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. In addition, as noted in 

the initial regulatory flexibility analysis, 

USDA has not identified any relevant 

Federal rules that duplicate, overlap or 

conflict with this rule. 

Further, the Committee’s meeting was 

widely publicized throughout the 

Florida tomato industry and all 

interested persons were invited to 

attend the meeting and participate in 

Committee deliberations. Like all 

Committee meetings, the September 4, 

2008, meeting was a public meeting and 

all entities, both large and small, were 

able to express their views on this issue. 

An interim final rule concerning this 

action was published in the Federal 

Register on December 16, 2008 (73 FR 

75537). Copies of the rule were mailed 

by the Committee’s staff to all 

Committee members and Florida tomato 

handlers. In addition, the rule was made 

available through the Internet by USDA 

and the Office of the Federal Register. 

That rule provided for a 60-day 

comment period which ended February 

17, 2009. No comments were received. 

A small business guide on complying 

with fruit, vegetable, and specialty crop 

marketing agreements and orders may 

be viewed at: http://www.ams.usda.gov/ 

AMSv1.0/ams.fetchTemplateData.

do?template=TemplateN&

page=MarketingOrdersSmall

BusinessGuide. Any questions about the 

compliance guide should be sent to Jay 

Guerber at the previously mentioned 

address in the FOR FURTHER INFORMATION

CONTACT section. 

After consideration of all relevant 

material presented, including the 

Committee’s recommendation, and 

other information, it is found that 

finalizing the interim final rule, without 

change, as published in the Federal 

Register (73 FR 76191, December 16, 

2008) will tend to effectuate the 

declared policy of the Act. 

List of Subjects in 7 CFR Part 966 

Marketing agreements, Reporting and 

recordkeeping requirements, Tomatoes. 

PART 966—TOMATOES GROWN IN 

FLORIDA 

■ Accordingly, the interim final rule 

amending 7 CFR part 966 which was 

published at 73 FR 76191 on December 

16, 2008, is adopted as a final rule 

without change. 

Dated: April 9, 2009. 

Robert C. Keeney, 

Acting Associate Administrator, Agricultural 

Marketing Service. 

[FR Doc. E9–8684 Filed 4–15–09; 8:45 am] 

BILLING CODE 3410–02–P 

DEPARTMENT OF TRANSPORTATION 

Federal Aviation Administration 

14 CFR Part 39 

[Docket No. FAA–2009–0350; Directorate 

Identifier 2009–SW–07–AD; Amendment 39– 

15885; AD 2009–07–52] 

RIN 2120–AA64 

Airworthiness Directives; Bell 

Helicopter Textron Canada Limited 

Model 206A Series, 206B Series, 206L 

Series, 407, and 427 Helicopters 

AGENCY: Federal Aviation 

Administration, DOT. 

ACTION: Final rule; request for 

comments. 

SUMMARY: This document publishes in 

the Federal Register an amendment 

adopting Airworthiness Directive (AD) 

2009–07–52 and supersedes Emergency 

AD 2009–07–51, issued March 17, 2009, 

which was sent previously to all known 

U.S. owners and operators of Bell 

Helicopter Textron Canada Limited 

(Bell) Model 206A series, 206B series, 

206L series, 407, and 427 helicopters by 

individual letters. This AD requires, 

before further flight, inspecting each 

cyclic control lever assembly (lever 

assembly) that has less than 50 hours 

time-in-service (TIS) to determine if it is 

correctly installed and properly staked 

in the lever assembly. This amendment 

is prompted by a Transport Canada AD 


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