[Federal Register: December 16, 2008 (Volume 73, Number 242)]
[Rules and Regulations]
[Page 76191-76193]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr16de08-1]
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Rules and Regulations
Federal Register
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[[Page 76191]]
DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Part 966
[Docket No. AMS FV-08-0090; FVO9-966-1 IFR]
Tomatoes Grown in Florida; Partial Exemption to the Minimum Grade
Requirements
AGENCY: Agricultural Marketing Service, USDA.
ACTION: Interim final rule with request for comments.
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SUMMARY: This rule provides 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 exempts Vintage Ripes\TM\
tomatoes (Vintage Ripes\TM\) from the shape requirements associated
with the U.S. No. 2 grade. This change increases the volume of Vintage
Ripes\TM\ that will meet the order requirements, and will help increase
shipments and availability of these tomatoes.
DATES: Effective December 17, 2008; comments received by February 17,
2009 will be considered prior to issuance of a final rule.
ADDRESSES: Interested persons are invited to submit written comments
concerning this rule. 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; 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.regulations.gov. All comments submitted in response to this rule
will be included in the record and will be made available to the
public. Please be advised that the identity of the individuals or
entities submitting the comments will be made public on the Internet at
the address provided above.
FOR FURTHER INFORMATION CONTACT: William Pimental, 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: 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 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.''
The Department of Agriculture (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 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 adds 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 exempts Vintage Ripes\TM\ from the shape requirements associated
with the U.S. No. 2 grade. This change increases the volume of Vintage
Ripes\TM\ that will meet the order requirements, and will help 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 Sec. 966.323 to
exempt Vintage Ripes\TM\ from these
[[Page 76192]]
shape requirements as specified under the grade for a U.S. No. 2.
Vintage Ripes\TM\ 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\TM\ are often shaped
differently from other round tomatoes. Depending on the time of year
and the weather, Vintage Ripes\TM\ 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 Ripes\TM\ 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\TM\ are easily damaged, requiring additional
care during picking and handling. These tomatoes are also more
susceptible to disease. Consequently, Vintage Ripes\TM\ 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
Ripes\TM\. 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\TM\ 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 Ripes\TM\ 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 Ripes\TM\ with a partial exemption
from the grade requirements under the order. Consequently, Vintage
Ripes\TM\ will be exempt from the shape requirements of the grade but
will still be required to meet all other aspects of the U.S. No. 2
grade. Vintage Ripes\TM\ 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 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\TM\ 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 would be contingent upon the Vintage Ripes\TM\ gaining
positive program status under the IP program and continuing to meet
program requirements. As such, this should help ensure that only
Vintage Ripes\TM\ are shipped under this exemption.
Therefore, this rule exempts Vintage Ripes\TM\ from the shape
requirements associated with the U.S. No. 2 grade. This change
increases the volume of Vintage Ripes\TM\ tomatoes that will meet order
requirements, and will help 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 rule providing a similar partial
exemption to the minimum grade requirements under the import
regulations will be issued as a separate action.
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 the rules issued thereunder, are 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 provides 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 exempts Vintage Ripes\TM\ from the shape requirements
associated with the U.S. No. 2 grade. This change increases the volume
of Vintage Ripes\TM\ that will meet the order requirements, and will
help increase shipments and availability of these tomatoes. This rule
amends the provisions of Sec. 966.323. Authority for this action is
provided in Sec. 966.52 of the order.
[[Page 76193]]
This change represents a small increase in costs for producers and
handlers of Vintage Ripes\TM\, primarily from costs associated with
developing and maintaining the IP program. However, this rule will make
additional volumes of Vintage Ripes\TM\ available for shipment. This
should result in increased sales of Vintage Ripes\TM\. 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 Ripes\TM\.
However, providing the exemption will increase the volume of Vintage
Ripes\TM\ that will meet the order requirements, and will help 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.
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.
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, 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.
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=MarketingOrdersSmallBus
inessGuide. 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 partial exemption to the minimum
grade requirements prescribed under the order. A 60-day comment period
is provided to allow interested persons to respond to this rule. All
written comments timely received will be considered before a final
determination is made on this matter.
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) The shipment of Florida Vintage Ripes\TM\ begins in
November, 2008; (2) this rule relaxes requirements prescribed in the
order; (3) the Committee unanimously recommended this change at a
public meeting and interested parties had an opportunity to 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 966
Marketing agreements, Reporting and recordkeeping requirements,
Tomatoes.
0
For the reasons set forth in the preamble, 7 CFR part 966 is amended as
follows:
PART 966--TOMATOES GROWN IN FLORIDA
0
1. The authority citation for 7 CFR part 966 continues to read as
follows:
Authority: 7 U.S.C. 601-674.
0
2. In Sec. 966.323, paragraph (d)(5) all references to
``UglyRipe\TM\'' are revised to read ``UglyRipe\TM\ and Vintage
Ripes\TM\''.
Dated: December 10, 2008.
James E. Link,
Administrator, Agricultural Marketing Service.
[FR Doc. E8-29658 Filed 12-15-08; 8:45 am]
BILLING CODE 3410-02-P