[Federal Register Volume 67, Number 41 (Friday, March 1, 2002)]
[Proposed Rules]
[Pages 9418-9420]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-4706]


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DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 948

[Docket No. FV02-948-1 PR]


Irish Potatoes Grown in Colorado; Increase the Minimum Size 
Requirement for Area No. 2

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Proposed rule.

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SUMMARY: This rule would increase the minimum size requirement for all 
varieties of potatoes produced in Area No. 2 of Colorado, except for 
the round varieties, and the Russet Burbank, Russet Norkotah, and 
Silverton Russet varieties. This rule would raise the minimum size 
requirement from 1\7/8\ inches to 2 inches in diameter or 4 ounces in 
weight. This size change is based on a recommendation of the Colorado 
Potato Administrative Committee (Committee), the agency responsible for 
local administration of the marketing order for potatoes grown in 
Colorado. This change is intended to improve the marketing of Colorado 
potatoes and increase returns to producers.

DATES: Comments must be received by April 30, 2002.

ADDRESSES: Interested persons are invited to submit written comments 
concerning this proposed rule. Comments must be sent to the Docket 
Clerk, Marketing Order Administration Branch, Fruit and Vegetable 
Programs, AMS, USDA, room 2525-S, P.O. Box 96456, Washington, DC 20090-
6456; Fax: (202) 720-8938, or E-mail: [email protected]. 
Comments should reference the docket number and the date and page 
number of this issue of the Federal Register and will be 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: Dennis L. West, Northwest Marketing 
Field Office, Marketing Order Administration Branch, Fruit and 
Vegetable Programs, AMS, USDA, 1220 SW Third Avenue, suite 385, 
Portland, Oregon 97204-2807; telephone: (503) 326-2724, Fax: (503) 326-
7440; or George Kelhart, Technical Advisor, Marketing Order 
Administration Branch, Fruit and Vegetable Programs, AMS, USDA, room 
2525-S, P.O. Box 96456, Washington, DC 20090-6456; telephone: (202) 
720-2491, Fax: (202) 720-8938.
    Small businesses may request information on complying with this 
regulation by contacting Jay Guerber, Marketing Order Administration 
Branch, Fruit and Vegetable Programs, AMS, USDA, room 2525-S, P.O. Box 
96456, Washington, DC 20090-6456; telephone: (202) 720-2491, fax: (202) 
720-8938, or e-mail: [email protected].

SUPPLEMENTARY INFORMATION: This rule is issued under Marketing 
Agreement No. 97 and Order No. 948, both as amended (7 CFR part 948), 
regulating the handling of Irish potatoes grown in Colorado, 
hereinafter referred to as the ``order.'' The order is 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. Such 
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.

[[Page 9419]]

    This rule would increase the minimum size requirement for all 
varieties of potatoes produced in Area No. 2 of Colorado, except for 
the round varieties, and the Russet Burbank, Russet Norkotah, and 
Silverton Russet varieties. This rule would raise the minimum size 
requirement from 1\7/8\ inches in diameter to 2 inches in diameter or 4 
ounces in weight. This action is based on a recommendation of the 
Committee made on August 16, 2001.
    Section 948.4 of the order defines the counties included in Area 
No. 2, which is commonly known as the San Luis Valley. Section 948.22 
of the order authorizes the issuance of regulations for grade, size, 
quality, maturity, and pack for any variety or varieties of potatoes 
grown in different portions of the production area during any period. 
Section 948.23 authorizes the issuance of regulations that modify, 
suspend, or terminate requirements issued under Sec. 948.22. Size 
regulations for potatoes grown in Area No. 2 are currently in effect 
under Sec. 948.386. Current regulations prescribe minimum size 
requirements of 2 inches in diameter for round varieties and 1\7/8\ 
inches in diameter for long varieties.
    This proposed rule would increase the minimum size requirement for 
all varieties of potatoes from 1 \7/8\ inches in diameter to 2 inches 
in diameter or 4 ounces in weight, except for the round varieties and 
the Russet Burbank, Russet Norkotah, and Silverton Russet varieties. 
Potatoes subject to minimum size requirements would meet the size 
requirements if they are at least 2 inches in diameter or 4 ounces in 
weight. Some long and thin potatoes might be smaller than 2 inches in 
diameter, but weigh at least 4 ounces. These potatoes would meet the 
proposed size requirements. Some potatoes might weigh less than 4 
ounces, but be at least 2 inches in diameter. These potatoes also would 
meet the proposed minimum size requirements.
    According to the Committee, quality assurance is very important to 
the Colorado potato industry and to its customers. Providing the public 
with acceptable quality produce that is appealing to the consumer on a 
consistent basis is necessary to maintain buyer confidence in the 
marketplace. The Committee reports that potato size is important to 
buyers and that providing the sizes desired is necessary to promote 
sales. Overall producer prices during the period 1995 through 1999 
averaged $4.26 per hundredweight.
    Nine members voted in favor of the recommendation, two members 
voted in opposition and one member abstained. The Committee made the 
recommendation to provide buyers with the sizes they prefer and to 
maintain buyer confidence. The Committee also believes that this would 
help improve the marketing of Colorado potatoes under the order and 
help improve producer returns.
    To obtain additional information on the need for the change, the 
Committee conducted a producer survey. The survey indicated that 58 
percent of the producers supported an increase in the minimum size to 2 
inches in diameter or 4 ounces in weight for all varieties of potatoes, 
except for the round varieties and the Russet Burbank, Russet Norkotah, 
and Silverton Russet varieties.
    The Committee further believes that the current minimum size 
requirement of 2 inches in diameter for all round varieties of potatoes 
continues to be appropriate. The Russet Burbank, Russet Norkotah, and 
Silverton Russet are long and thin varieties of potatoes. Because of 
their shape, these varieties have a tendency, when sitting on end, to 
fall through the potato sizing equipment, even when the potatoes are of 
good size (e.g., 4 ounces or larger). This is particularly a problem 
when the sizing equipment is set at larger size settings such as 2 or 
2\1/4\ inches in diameter. Because of this problem, the Committee 
decided that the current minimum size requirement for these varieties 
of 1\7/8\ inches in diameter continues to be appropriate. However, one 
Committee member who opposed the recommendation believed all potato 
varieties should have a minimum size requirement of 2 inches in 
diameter or 4 ounces in weight. The Committee believes that handlers 
might lose a high percentage of acceptable potatoes of these varieties 
through the sizing equipment if the minimum size requirement on such 
potatoes was increased to 2 inches in diameter or 4 ounces in weight. 
Another Committee member opposing the recommendation did not believe 
that the producer survey results supporting an increase was a 
sufficient reason for the Committee to recommend an increase in the 
minimum size requirements. While the survey provided information for 
the Committee to make its recommendation, the primary purposes for the 
change are to better meet the needs of buyers and consumers, improve 
the image of Colorado potatoes, and improve sales and prices.

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 rule 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.
    There are approximately 230 producers of Colorado Area No. 2 
potatoes and approximately 80 handlers subject to regulation under the 
marketing order. Small agricultural producers are defined by the Small 
Business Administration (13 CFR 121.201) as those having annual 
receipts of less than $750,000, and small agricultural service firms 
are defined as those whose annual receipts are less than $5,000,000.
    Information provided by the National Agricultural Statistics 
Service was considered in determining the number of large and small 
producers by acreage, production, and producer prices. According to the 
information provided, the recent average yield per acre was 335 
hundredweight, the average farm size was 306 acres of potatoes, and the 
recent season average producer price was $4.20 per hundredweight. This 
equates to average gross annual producer receipts of approximately 
$430,542 each. In addition, based upon information provided by the 
Committee, all handlers of Area No. 2 potatoes have shipped under 
$5,000,000 worth of potatoes during the most recent season for which 
statistics are available. Based on the foregoing, it can be concluded 
that a majority of producers and handlers of Area No. 2 potatoes may be 
classified as small entities.
    The National Agricultural Statistics Service estimated planted 
acreage for the 2001-02 crop in Area No. 2 at 68,100 acres, a decrease 
of 7,500 acres when compared with the 75,600 acres harvested in 2000-
01. Approximately 90 percent of the potatoes harvested enter into the 
fresh market (including potatoes produced for seed).
    Russet varieties accounted for 81.4 percent of the acres planted 
for the 2001-02 crop year. Russet Norkotah, the most popular variety, 
was planted on 53.8 percent of the total potato acreage. Other Russet 
varieties accounted for 27.6 percent of the total acres planted, with 
various other varieties making up

[[Page 9420]]

the remaining 18.6 percent. While exact acreage is not known, plantings 
of Russet Burbank and Silverton Russet varieties of potatoes are 
estimated to make up only a small percentage of the total potato 
acreage.
    This rule would increase the minimum size requirement for all 
varieties of potatoes produced in Area No. 2 of Colorado, except for 
the round varieties and the Russet Burbank, Russet Norkotah, and 
Silverton Russet varieties. This rule would raise the minimum size 
requirement from 1\7/8\ inches in diameter to 2 inches in diameter or 4 
ounces in weight. Only a small portion of the crop (i.e., that portion 
smaller than 2 inches in diameter or 4 ounces in weight but larger than 
1\7/8\ inches in diameter) is expected to be affected by the proposed 
size increase. The Committee believes that the expected benefits of 
improved quality, increased purchases and sales volume, and increased 
returns received by producers would greatly outweigh the costs related 
to the regulation.
    Alternatives considered by the Committee included increasing the 
minimum size requirement for all Russet varieties or not making any 
changes. The Committee does not believe it is desirable to increase the 
minimum size requirement for the Russet Burbank, Russet Norkotah, and 
Silverton Russet varieties because these long and thin varieties have a 
tendency, when sitting on end, to fall through the potato sizing 
equipment even when the potatoes are of good size. This is particularly 
a problem when the sizing equipment is set at larger size settings such 
as 2 or 2\1/4\ inches. Because of this problem, the Committee decided 
that the current minimum size requirement for these varieties of 1\7/8\ 
inches in diameter continues to be appropriate. The Committee believes 
that handlers might lose a high percentage of acceptable potatoes 
through the sizing equipment if the minimum size requirement on such 
potatoes was increased to 2 inches in diameter or 4 ounces in weight.
    The alternative of taking no action would not have addressed the 
marketing problems.
    This rule would change the size requirements currently prescribed 
under the marketing order. Accordingly, this action would not impose 
any additional reporting or recordkeeping requirements on either small 
or large potato 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.
    USDA has not identified any relevant Federal rules that duplicate, 
overlap or conflict with this proposed rule.
    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 Committee 
meeting on August 16, 2001, 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 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.

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 
proposed to be 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. Section 948.386 is amended by revising the introductory text and 
paragraph (a) to read as follows:


Sec. 948.386  Handling regulation.

    No person shall handle any lot of potatoes grown in Area No. 2 
unless such potatoes meet the requirements of paragraphs (a), (b), and 
(c) of this section, or unless such potatoes are handled in accordance 
with paragraphs (d) and (e), or (f) of this section.
    (a) Minimum grade and size requirements-- (1) Round varieties. U.S. 
No. 2, or better grade, 2 inches minimum diameter.
    (2) All other varieties. U.S. No. 2, or better grade, 2 inches 
minimum diameter or 4 ounces minimum weight: Provided, That the Russet 
Burbank, Russet Norkotah, and Silverton Russet varieties, shall be 1\7/
8\ inches minimum diameter.
    (3) All varieties. Size B, if U.S. No. 1 grade.
    (4) All varieties. 1-inch minimum diameter to 1\3/4\ inches maximum 
diameter, if at least U.S. No. 1 grade.
    (5) None of the categories of potatoes identified in paragraphs 
(a)(1) through (a)(4) of this section may be commingled in the same bag 
or other container.
* * * * *

    Dated: February 22, 2002.
Kenneth C. Clayton,
Acting Administrator, Agricultural Marketing Service.
[FR Doc. 02-4706 Filed 2-28-02; 8:45 am]
BILLING CODE 3410-02-P