[Federal Register Volume 72, Number 237 (Tuesday, December 11, 2007)]
[Proposed Rules]
[Pages 70244-70247]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-23839]


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DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 948

[Docket No. AMS-FV-07-0115; FV08-948-1 PR]


Irish Potatoes Grown in Colorado; Modification of the Handling 
Regulation for Area No. 2

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Proposed rule.

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SUMMARY: This rule invites comments on a modification of the minimum 
size requirements under the Colorado potato marketing order, Area No. 
2. The marketing order regulates the handling of Irish potatoes grown 
in Colorado, and is administered locally by the Colorado Potato 
Administrative Committee, Area No. 2 (Committee). The minimum size 
requirements for Area No. 2 potatoes currently allow the handling of 
potatoes that are at least 2 inches in diameter or 4 ounces minimum 
weight, except that round potatoes may be of any weight, and Russet 
Burbank, Russet Norkotah,

[[Page 70245]]

and Silverton Russet varieties may be a minimum of 1\7/8\ inches in 
diameter or 4 ounces in weight. This rule would remove the exception 
that Russet Burbank, Russet Norkotah, and Silverton Russet varieties 
may be 1\7/8\ inches in diameter, thus requiring these varieties to 
also meet the minimum requirements of 2 inches in diameter or 4 ounces 
in weight. This change is intended to facilitate the handling and 
marketing of Colorado Area No. 2 potatoes.

DATES: Comments must be received by December 26, 2007.

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, 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 available for public inspection in the Office of the Docket 
Clerk during regular business hours, or can be viewed at: http://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Teresa Hutchinson or Gary Olson, 
Northwest Marketing Field Office, Marketing Order Administration 
Branch, Fruit and Vegetable Programs, AMS, USDA, Telephone: (503) 326-
2724, Fax: (503) 326-7440, or E-mail: [email protected] or 
[email protected].
    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: [email protected].

SUPPLEMENTARY INFORMATION: This proposal is issued under Marketing 
Agreement No. 97 and Marketing 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 proposal has been reviewed under Executive Order 12988, Civil 
Justice Reform. This rule is not intended to have retroactive effect. 
This proposal 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 proposal invites comments on a modification of the minimum 
size requirements under the order. The minimum size requirements for 
Area No. 2 potatoes currently allow the handling of potatoes that are 
at least 2 inches in diameter or 4 ounces minimum weight, except that 
round potatoes may be of any weight, and Russet Burbank, Russet 
Norkotah, and Silverton Russet varieties may be a minimum of 1\7/8\ 
inches in diameter or 4 ounces in weight. This rule would remove the 
exception that Russet Burbank, Russet Norkotah, and Silverton Russet 
varieties may be 1\7/8\ inches in diameter. This rule was recommended 
by the Committee at a meeting on August 16, 2007.
    Section 948.22 authorizes the issuance of grade, size, quality, 
maturity, pack, and container regulations for potatoes grown in the 
production area. Section 948.21 further authorizes the modification, 
suspension, or termination of requirements issued pursuant to Sec.  
948.22.
    Section 948.40 provides that whenever the handling of potatoes is 
regulated pursuant to Sec. Sec.  948.20 through 948.24, such potatoes 
must be inspected by the Federal-State Inspection Service, and 
certified as meeting the applicable requirements of such regulations.
    Under the order, the State of Colorado is divided into three areas 
of regulation for marketing order purposes. These include: Area No. 1, 
commonly known as the Western Slope, includes and consists of the 
counties of Routt, Eagle, Pitkin, Gunnison, Hinsdale, La Plata, and all 
counties west thereof; Area No. 2, commonly known as the San Luis 
Valley, includes and consists of the counties of Sanguache, Huerfano, 
Las Animas, Mineral, Archuleta, and all counties south thereof; and, 
Area No. 3 includes and consists of all the remaining counties in the 
State of Colorado which are not included in Area No. 1 or Area No. 2. 
The order currently regulates the handling of potatoes grown in Areas 
No. 2 and No. 3 only; regulation for Area No. 1 is currently not 
active.
    Grade, size, and maturity regulations specific to the handling of 
potatoes grown in Area No. 2 are contained in Sec.  948.386 of the 
order.
    On August 16, 2001, the Committee recommended increasing the 
minimum size requirements from 1\7/8\ inches to 2 inches in diameter or 
4 ounces minimum weight for all varieties of potatoes, except for round 
varieties and the Russet Burbank, Russet Norkotah, and Silverton Russet 
varieties. This recommendation was made effective July 15, 2002 (67 FR 
40844). The Russet Burbank, Russet Norkotah, and Silverton Russet 
varieties were left at 1\7/8\ inches minimum diameter.
    The Committee believes that the demand for fresh potatoes has 
decreased for the last several years and there are abundant supplies in 
the marketplace. Consumers prefer larger, higher quality potatoes. 
After reviewing market data over the past six years, the Committee 
decided to recommend removing the minimum size exception for Russet 
Burbank, Russet Norkotah, and Silverton Russet varieties. The Committee 
reports that potato size is important to consumers and that providing 
the sizes desired is necessary to maintain consumer confidence in the 
marketplace. The Committee believes that quality assurance is very 
important to the Colorado potato industry. The Committee also believes 
that most Colorado potato handlers are shipping Russet varieties at a 
minimum size of 2 inches in diameter or 4 ounces minimum weight. 
Providing customers with acceptable quality produce on a consistent 
basis is necessary to maintain buyer confidence in the marketplace and 
improve producer returns.
    Under this proposal, Russet 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, 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

[[Page 70246]]

diameter. These potatoes would also meet the proposed minimum size 
requirements.
    Twelve members voted in favor of the proposed change and one member 
voted in opposition. The dissenting member was concerned that some 
industry members who produce smaller Russet potatoes might not support 
the change. The Committee made the recommendation to provide buyers 
with the sizes they prefer and to maintain buyer confidence. The 
Committee believes that this change would facilitate the handling and 
marketing of Colorado Area No. 2 potatoes and help improve producer 
returns.

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.
    There are approximately 77 handlers of Colorado Area No. 2 potatoes 
subject to regulation under the order and approximately 180 producers 
in the regulated production area. Small agricultural service firms are 
defined by the Small Business Administration (13 CFR 121.201) as those 
having annual receipts are less than $6,500,000, and small agricultural 
producers are defined as those having annual receipts of less than 
$750,000.
    During the 2006-2007 marketing year, approximately 16,061,432 
hundredweight of Colorado Area No. 2 potatoes were inspected under the 
order and sold into the fresh market. Based on an estimated average 
f.o.b. price of $11.00 per hundredweight, the Committee estimates that 
66 Area No. 2 handlers, or about 86 percent, had annual receipts of 
less than $6,500,000. In view of the foregoing, the majority of 
Colorado Area No. 2 potato handlers may be classified as small 
entities.
    In addition, based on information provided by the National 
Agricultural Statistics Service (NASS), the average producer price for 
Colorado potatoes for 2006 was $8.80 per hundredweight. The average 
annual fresh potato revenue for the Colorado Area No. 2 potato 
producers is therefore calculated to be approximately $785,226. 
Consequently, on average, the majority of the Area No. 2 Colorado 
potato producers may not be classified as small entities.
    This rule would remove the exception that Russet Burbank, Russet 
Norkotah, and Silverton Russet varieties of Area No. 2 Colorado 
potatoes may be 1\7/8\ inches in diameter. This rule would thus have 
the effect of increasing the minimum size requirements for Russet 
potatoes from 1\7/8\ inches in diameter to 2 inches in diameter or 4 
ounces in weight. Authority for this action is contained in Sec. Sec.  
948.21, 948.22, 948.40, and 948.386.
    NASS estimated planted acreage for the 2006 crop in Area No. 2 at 
59,900 acres, an increase of 1,700 acres when compared with 58,200 
acres planted in 2005. In 2006, NASS data shows that Russet Norkotah, 
the most popular variety, was planted on 60.3 percent of the total 
potato acreage. Other Russet varieties accounted for 20.6 percent of 
the total acres planted, with various other varieties making up the 
remaining 19.1 percent.
    Based on Committee records, 89.6 percent of Area No. 2 potatoes 
entered the fresh market during the 2006-2007 marketing year (including 
potatoes produced for seed). Of those potatoes, Russet potato varieties 
accounted for 89.2 percent.
    Only a small portion of the crop is expected to be affected by the 
proposed size increase (i.e., that portion of Russet Burbank, Russet 
Norkotah, or Silverton Russet varieties smaller than 2 inches in 
diameter or 4 ounces in weight, but larger than 1\7/8\ inches in 
diameter). Based on current customer demand, many handlers are already 
shipping 2-inch minimum diameter Russet potatoes. 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.
    After discussing possible alternatives to this rule, the Committee 
determined that an increase in the minimum size for Russet varieties 
would increase returns to growers while supplying the market with a 
higher percentage of larger high quality potatoes. The Committee 
believes that the expected benefits are improved quality, increased 
purchases and sales volume, and increased returns received by 
producers. During its deliberations, the Committee also considered 
increasing the minimum size to 2\1/8\ inches or 5 ounces in weight for 
Russet varieties. However, the Committee decided that increasing the 
minimum size from 1\7/8\ inches diameter to 2\1/8\ inches in diameter 
would be too restrictive at this time.
    This proposed rule would increase the size requirements for Russet 
varieties of potatoes under the order. Accordingly, this action would 
not impose any additional reporting or recordkeeping requirements on 
either small or large Russet 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.
    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.
    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 August 
16, 2007, 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 proposed 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/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.
    A 15-day comment period is provided to allow interested persons to 
respond to this proposal. Fifteen days is deemed appropriate because 
this rule would need to be in place as soon as possible since handlers 
are already shipping potatoes from the 2007-2008 crop. All written 
comments timely received will be considered before a final 
determination is made on this matter.

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:

[[Page 70247]]

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


Sec.  948.386  Handling Regulation.

* * * * *
    (a) * * *
    (2) All other varieties. U.S. No. 2, or better grade, 2 inches 
minimum diameter or 4 ounces minimum weight.
* * * * *

    Dated: December 4, 2007.
Lloyd C. Day,
Administrator, Agricultural Marketing Service.
 [FR Doc. E7-23839 Filed 12-10-07; 8:45 am]
BILLING CODE 3410-02-P