[Federal Register Volume 74, Number 224 (Monday, November 23, 2009)]
[Proposed Rules]
[Pages 61053-61055]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-28131]


 ========================================================================
 Proposed Rules
                                                 Federal Register
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 This section of the FEDERAL REGISTER contains notices to the public of 
 the proposed issuance of rules and regulations. The purpose of these 
 notices is to give interested persons an opportunity to participate in 
 the rule making prior to the adoption of the final rules.
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  Federal Register / Vol. 74, No. 224 / Monday, November 23, 2009 / 
Proposed Rules  

[[Page 61053]]



DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 948

[Doc. No. AMS-FV-09-0055; FV09-948-3 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 proposed rule invites comments on a modification of the 
minimum size requirement 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 for Area No. 2 (Committee). This 
proposed rule would change the minimum size requirement from 1\7/8\ 
inches in diameter to 2 inches in diameter or 4 ounces minimum weight 
for all long varieties of potatoes. This change would return the 
minimum size requirement to the standard that had been in place prior 
to the 2008-2009 season, when adverse weather conditions damaged the 
crop and resulted in the Committee recommending a temporary relaxation 
in the minimum size requirement.

DATES: Comments must be received by December 8, 2009.

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. 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: 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.
    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 requirement under the order. This rule would change the minimum 
size requirement from 1\7/8\ inches in diameter to 2 inches in diameter 
or 4 ounces minimum weight for all varieties of potatoes, except for 
round varieties. This rule was recommended by the Committee at a 
meeting on June 25, 2009.
    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. 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 June 25, 2009, the Committee unanimously recommended changing 
the minimum size requirement from 1\7/8\

[[Page 61054]]

inches to 2 inches in diameter or 4 ounces minimum weight for all 
varieties of potatoes, except for round varieties. This had been the 
industry standard in place prior to the 2008-2009 season. Because 
severe and adverse weather conditions in 2008 significantly decreased 
yields and damaged the crop, the Committee had recommended for the 
2008-2009 marketing season that the minimum size be reduced from 2 
inches in diameter or 4 ounces minimum weight to 1\7/8\ inches in 
diameter for all varieties of potatoes, except round varieties. The 
Committee believes it would now be appropriate to return to the size 
regulations that were in place prior to the 2008-2009 season.
    The Committee believes that quality assurance is very important to 
the Colorado potato industry. Providing acceptable quality produce that 
is appealing to consumers on a consistent basis is necessary to 
maintain buyer confidence in the marketplace and improve producer 
returns.
    Under this proposal, potatoes other than round varieties would meet 
the size requirement 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 requirement. Some potatoes might weigh less than 
4 ounces, but be at least 2 inches in diameter. These potatoes would 
also meet the proposed minimum size requirement.

Initial 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 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 72 handlers of Colorado Area No. 2 potatoes 
subject to regulation under the order and approximately 175 producers 
in the regulated production area. Small agricultural service firms are 
defined by the Small Business Administration (SBA) (13 CFR 121.201) as 
those having annual receipts are less than $7,000,000, and small 
agricultural producers are defined as those having annual receipts of 
less than $750,000.
    During the 2007-2008 marketing year, 14,225,568 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 
$12.05 per hundredweight, the Committee estimates that 61 Area No. 2 
handlers, or about 85 percent, had annual receipts of less than 
$7,000,000. 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 2007 was $9.85 per hundredweight. The average 
annual fresh potato revenue for the 175 Colorado Area No. 2 potato 
producers is therefore calculated to be approximately $778,455. 
Consequently, on average, the majority of the Area No. 2 Colorado 
potato producers may not be classified as small entities.
    This rule would change the minimum size requirement from 1\7/8\ 
inches in diameter to 2 inches in diameter or 4 ounces minimum weight 
for all potato varieties, except round varieties. Authority for this 
action is contained in Sec. Sec.  948.21 and 948.22.
    NASS estimated planted acreage for the 2007 crop in Area No. 2 at 
59,200 acres, a decrease of 700 acres when compared with 59,900 acres 
planted in 2006. Based on Committee records, 88.4 percent of Area No. 2 
potatoes entered the fresh market during the 2007-2008 marketing year 
(including potatoes produced for seed). Of those potatoes, Russet or 
long potato varieties accounted for 88.3 percent.
    Only a small portion of the crop is expected to be affected by the 
proposed minimum size increase (i.e., that portion of varieties, other 
than round varieties, smaller than 2 inches in diameter or 4 ounces 
minimum weight, but larger than 1\7/8\ inches in diameter) and would no 
longer meet order requirements. However, due to current customer 
demand, many handlers are already shipping 2-inch minimum diameter 
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.
    The Committee discussed alternatives to this rule. One alternative 
included making no change at all to the current regulation. However, 
the Committee did not believe this alternative would meet the needs of 
buyers or benefit the industry. The Committee believes that the change 
would increase returns to producers while supplying the market with a 
higher percentage of larger high quality potatoes.
    This proposed rule would change the size requirement for all 
varieties of potatoes, except for round varieties. 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.
    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 June 25, 
2009, 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/AMSv1.0/ams.fetchTemplateData.do?template=TemplateN&page=MarketingOrdersSmallBusinessGuide. 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, as handlers 
will begin shipping potatoes from the 2009-2010 crop in September. 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.


[[Page 61055]]


    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. Amend Sec.  948.386 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: November 17, 2009.
Rayne Pegg,
Administrator, Agricultural Marketing Service.
[FR Doc. E9-28131 Filed 11-19-09; 4:15 pm]
BILLING CODE P