[Federal Register Volume 75, Number 13 (Thursday, January 21, 2010)]
[Rules and Regulations]
[Pages 3333-3335]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-1000]



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  Federal Register / Vol. 75, No. 13 / Thursday, January 21, 2010 / 
Rules and Regulations  

[[Page 3333]]



DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 948

[Doc. No. AMS-FV-09-0055; FV09-948-3 FR]


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

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: This rule revises 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 rule changes 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 
returns 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: Effective Date: January 22, 2010.

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 final rule 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 final rule 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 final rule revises the minimum size requirement under the 
order. This rule changes 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\ 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 is now 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

[[Page 3334]]

confidence in the marketplace and improve producer returns.
    Under this final rule, potatoes other than round varieties will 
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 will 
meet the revised size requirement. Some potatoes might weigh less than 
4 ounces, but be at least 2 inches in diameter. These potatoes will 
also meet the revised minimum size requirement.

Final 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 final 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 of 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, have 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 each of 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 changes 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 negatively 
affected by this minimum size increase (i.e., that portion of the crop, 
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 
thus no longer meet order requirements. However, due to current 
customer demand, many handlers are already shipping potatoes that 
measure 2-inches or greater. The Committee believes that the expected 
benefits of improved quality, increased purchases and sales volume, and 
increased returns received by producers will 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 have met the needs 
of buyers or provided any benefit to the industry. The Committee 
believes that the change will increase returns to producers while 
supplying the market with a higher percentage of larger high quality 
potatoes.
    This final rule changes the size requirement for all varieties of 
potatoes, except for round varieties. Accordingly, this action will 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.
    As noted in the initial regulatory flexibility analysis, USDA has 
not identified any relevant Federal rules that duplicate, overlap or 
conflict with this final 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.
    A proposed rule concerning this action was published in the Federal 
Register on November 23, 2009 (74 FR 61053). Copies of the rule were e-
mailed or sent via facsimile to all Committee members and potato 
handlers. Finally, the rule was made available through the Internet by 
USDA and the Office of the Federal Register. A 15-day comment period 
ending December 8, 2009, was provided to allow interested persons to 
respond to the proposal. No comments were received.
    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.
    After consideration of all relevant matter presented, including the 
information and recommendation submitted by the Committee and other 
available information, it is hereby found that this rule, as 
hereinafter set forth, will tend to effectuate the declared policy of 
the Act.
    It is further found that good cause exists for not postponing the 
effective date of this rule until 30 days after publication in the 
Federal Register (5 U.S.C. 553) because handlers are already shipping 
potatoes from the 2009-2010 crop. Further, handlers are aware of this 
rule, which was recommended at a public meeting. Also, a 15-day comment 
period was provided for in the proposed rule.

List of Subjects in 7 CFR Part 948

    Marketing agreements, Potatoes, Reporting and recordkeeping 
requirements.


0
For the reasons set forth in the preamble, 7 CFR part 948 is amended as 
follows:

[[Page 3335]]

PART 948--IRISH POTATOES GROWN IN COLORADO

0
1. The authority citation for 7 CFR part 948 continues to read as 
follows:

    Authority:  7 U.S.C. 601-674.


0
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: January 13, 2010.
David R. Shipman,
Acting Administrator, Agricultural Marketing Service.
[FR Doc. 2010-1000 Filed 1-20-10; 8:45 am]
BILLING CODE P