[Federal Register: June 29, 2006 (Volume 71, Number 125)]
[Proposed Rules]
[Page 37016-37018]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr29jn06-14]
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DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Part 980
[Docket No. FV06-980-1 PR]
Vegetables, Import Regulations; Partial Exemption to the Minimum
Grade Requirements for Fresh Tomatoes
AGENCY: Agricultural Marketing Service, USDA.
ACTION: Proposed rule.
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SUMMARY: This rule invites comments on a proposed partial exemption to
the minimum grade requirements under the tomato import regulation. The
import regulation is authorized under section 8e of the Agricultural
Marketing Agreement Act of 1937 (Act). Section 8e requires imported
tomatoes to meet the same or comparable grade and size requirements as
those in effect under Federal Marketing Order No. 966 (order). The
order regulates the handling of tomatoes grown in Florida. A separate
proposed rule to amend the rules and regulations under the order to
exempt UglyRipe (UglyRipe) tomatoes from the shape requirements
associated with the U.S. No. 2 grade is being issued by Department of
Agriculture (USDA). This rule would provide the same partial exemption
under the import regulation so it would conform to the regulations for
Florida tomatoes under the order.
[[Page 37017]]
DATES: Comments must be received by August 28, 2006.
ADDRESSES: Interested persons are invited to submit written comments
concerning this proposal. Comments must be sent to the Docket Clerk,
Marketing Order Administration Branch, Fruit and Vegetable Programs,
AMS, USDA, 1400 Independence Avenue, SW., STOP 0237, Washington, DC
20250-0237; Fax: (202) 720-8938; E-mail: moab.docketclerk@usda.gov; or
Internet: http://www.regulations.gov. All comments should reference the
docket 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:
http://www.ams.usda.gov/fv/moab.html.
FOR FURTHER INFORMATION CONTACT: William Pimental or Christian Nissen,
Southeast Marketing Field Office, Marketing Order Administration
Branch, Fruit and Vegetable Programs, AMS, USDA; telephone: (863) 324-
3375, Fax: (863) 325-8793; e-mail:
william.pimental@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 proposed 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 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 proposed rule would provide a partial exemption to the minimum
grade requirements for UglyRipe tomatoes imported into the United
States. The import requirements for tomatoes specify that tomatoes must
meet at least a U.S. No. 2 grade. A proposed rule to amend the rules
and regulations under the order to exempt UglyRipe tomatoes from the
shape requirements associated with the U.S. No. 2 grade is being issued
separately by USDA. This rule would provide the same partial exemption
under the import regulation so it would conform to the regulations for
Florida tomatoes under the order.
The order provides the authority for the establishment of grade
requirements for Florida tomatoes. Section 966.323 of the order
specifies, in part, the minimum grade requirements for tomatoes grown
in Florida. 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 factors 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.
UglyRipe tomatoes 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. UglyRipe tomatoes are often shaped
differently from other round tomatoes. Depending on the time of year
and the weather, UglyRipe tomatoes are concave on the stem end with
deep, ridged shoulders. They can also appear kidney shaped and
lopsided. Because of this variance in shape and appearance, UglyRipe
tomatoes can have difficulty meeting the shape requirements of the U.S.
No. 2 grade.
This rule would provide UglyRipe tomatoes with a partial exemption
from the grade requirements under the import regulation. UglyRipe
tomatoes would only be exempt from the shape requirements of the grade
and would still be required to meet all other aspects of the U.S. No. 2
grade. The UglyRipe tomato also continues to be required to meet all
other requirements under the import regulation, such as size and
inspection.
Prior to the 1998-99 season, the Florida Tomato Committee
(Committee), which locally administers the order, 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. Some
Committee members have stated that a large part of the volume of the
standard commercial varieties of tomatoes which fail to make the grade
are rejected because of their shape and appearance. Consequently, there
was some industry concern that providing an exemption for the UglyRipe
tomato could result in the shipment of U.S. No. 3 grade tomatoes of
other varieties, contrary to the objectives of the exemption and the
order.
To address this concern, the producers of UglyRipe tomatoes pursued
entry into USDA's Identity Preservation (IP) program. This 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. The UglyRipe tomato was granted positive program status
in early 2006.
This partial exemption would only extend to UglyRipe tomatoes
covered under the IP program. As such, this should help ensure that
only UglyRipe tomatoes would be shipped under the proposed exemption.
In addition, this exemption would be contingent upon imported UglyRipe
tomatoes continuing to meet the specific requirements related to
imports established under the IP program.
This proposed rule would exempt imported UglyRipe tomatoes from the
shape requirements associated with the U.S. No. 2 grade. This change
would increase the volume of UglyRipe tomatoes that would meet order
requirements, and would help increase shipments and availability of
these tomatoes.
This rule would bring the tomatoes import regulation into
conformity with the proposed changes to the domestic order making the
import requirements correspond to the domestic requirements under the
order by amending 7 CFR 980.212 of the import requirements.
[[Page 37018]]
Initial Regulatory Flexibility Analysis
Pursuant to requirements set forth in the Regulatory Flexibility
Act (RFA), the Agricultural Marketing Service (AMS) has considered the
economic impact of this action on small entities. Accordingly, AMS has
prepared this initial 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 rules issued thereunder, are unique in that
they are brought about through group action of essentially small
entities acting on their own behalf. Thus, both statutes have small
entity orientation and compatibility. Import regulations issued under
the Act are based on those established under Federal marketing orders.
There are approximately 225 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 $6,500,000 (13 CFR 121.201).
Based on information from the Foreign Agricultural Service, USDA, the
dollar value of imported tomatoes ranged from around $1.05 billion in
2003 to $1.08 billion in 2005. Using these numbers, the majority of
tomatoes 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 2005, shipments
of tomatoes imported into the United States totaled 951,787 metric
tons. Mexico accounted for 801,408 metric tons, 141,642 metric tons
were imported from Canada, and 6,249 metric tons arrived from the
Netherlands.
This proposed rule would provide a partial exemption to the minimum
grade requirements for UglyRipe tomatoes imported into the United
States. 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 proposed rule which would amend the rules and
regulations under the order to exempt UglyRipe tomatoes from the shape
requirements associated with the U.S. No. 2 grade is being issued by
USDA. Accordingly, under section 8e of the Act, imports of tomatoes
would have to meet the same or comparable grade, size, quality, and
maturity requirements as the domestic product. This rule would provide
the same partial exemption for UglyRipe tomatoes under the import
regulation so it would conform to the domestic regulation.
This change would represent a small increase in costs for importers
of UglyRipe tomatoes, primarily from costs associated with developing
and maintaining an IP program. However, the majority of importers
associated with UglyRipe tomatoes were involved with the IP program
prior to this proposed rule and have already received a successful
audit. Therefore, the additional costs associated with this action
would be those costs related to maintaining and complying with the IP
program. It is anticipated that these costs would be minimal.
In addition, this rule would make additional volumes of UglyRipe
tomatoes available for shipment. This should result in increased sales
of UglyRipe tomatoes. Consequently, the benefits of this action should
more than offset the associated costs.
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 a
proposed rule is being initiated that would provide a partial exemption
to the minimum grade requirements under the domestic handling
regulations, a corresponding change to the import regulations would
also need to be accomplished.
This rule would impose no additional reporting or recordkeeping
requirements beyond the IP program on either small or large tomato
importers. Reports and forms required under the import regulations for
tomatoes are periodically reviewed to reduce information requirements
and duplication by industry and public sector agencies.
AMS is committed to compliance with the Government Paperwork
Elimination Act, which requires Government agencies in general to
provide the public the option of submitting information or transacting
business electronically to the maximum extent possible.
Additionally, except for applicable domestic regulations, USDA has
not identified any relevant Federal rules that duplicate, overlap, or
conflict with this rule. Finally, all interested persons are invited to
submit information on 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/fv/moab.html.
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 proposed rule.
This rule invites comments on a proposed partial exemption to the
minimum grade requirements for imported tomatoes. A 60-day comment
period is provided to allow interested persons to respond to this rule.
All comments received will be considered prior to finalization of this
rule.
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
proposed to be 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.
2. Amend Sec. 980.212, by adding a sentence at the end of
paragraph (b)(1) to read as follows:
Sec. 980.212 Import regulation; tomatoes.
* * * * *
(b) * * *
(1) * * * Provided, That UglyRipeTM tomatoes shall be
graded and at least meet the requirements specified for U.S. No. 2
under the U.S. Standards for Grades of Fresh Tomatoes, except they are
exempt from the requirements that they be reasonably well formed and
not more than slightly rough, and Provided, Further that the
UglyRipeTM tomatoes meet the requirements of the Identity
Preservation program, Fresh Products Branch, Fruit and Vegetable
Programs, AMS, USDA.
* * * * *
Dated: June 26, 2006.
Lloyd C. Day,
Administrator, Agricultural Marketing Service.
[FR Doc. 06-5832 Filed 6-27-06; 12:01 pm]
BILLING CODE 3410-02-P