[Federal Register: January 30, 2008 (Volume 73, Number 20)]
[Rules and Regulations]
[Page 5422-5424]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr30ja08-2]
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DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Part 948
[Docket No. AMS-FV-07-0115; FV08-948-1 FR]
Irish Potatoes Grown in Colorado; Modification of the Handling
Regulation for Area No. 2
AGENCY: Agricultural Marketing Service, USDA.
ACTION: Final rule.
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SUMMARY: This rule modifies 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 specify that potatoes handled under the marketing order must
be at least 2 inches in diameter or 4 ounces in weight, with exceptions
allowing the handling of round potatoes of any weight, and Russet
Burbank, Russet Norkotah, and Silverton Russet potato varieties with a
minimum of 1\7/8\ inches in diameter or 4 ounces in weight. This rule
removes the exception that Russet Burbank, Russet Norkotah, and
Silverton Russet potato 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: Effective Date: January 31, 2008.
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:
Teresa.Hutchinson@usda.gov or GaryD.Olson@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 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. 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 final rule modifies the minimum size requirements under the
order. The minimum size requirements for Area No. 2 potatoes specify
that potatoes handled under the marketing order must be at least 2
inches in diameter or 4 ounces in weight with exceptions allowing the
handling of round potatoes of any weight, and Russet Burbank, Russet
Norkotah, and Silverton Russet potato varieties with a minimum of 1\7/
8\ inches in diameter or 4 ounces in weight. This rule removes the
exception that Russet Burbank, Russet Norkotah, and Silverton Russet
potato 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
[[Page 5423]]
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 over the last several years and that there are currently
abundant supplies in the marketplace. Market data also shows that
consumers prefer larger, higher quality potatoes. After reviewing such
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 believes that
providing the sizes desired is necessary to maintain consumer
confidence in the marketplace. The Committee also believes that most
Colorado potato handlers have already been shipping Russet varieties
with a minimum size of 2 inches in diameter or 4 ounces in weight.
Russet potatoes subject to the order's handling regulation will
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 revised size requirements. Some potatoes might weigh less than
4 ounces, but be at least 2 inches in diameter. These potatoes would
also meet the revised minimum size requirements.
Twelve members voted in favor of the modification 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, thus
facilitating the handling and marketing of Colorado Area No. 2 potatoes
and improving producer returns.
Final 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 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 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 of 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 each Colorado Area No. 2 potato
producer 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 final rule removes from the handling regulation 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 will thus have the effect of increasing the minimum size
requirement for Russet potatoes from 1\7/8\ inches in diameter or 4
ounces in weight 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
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 will 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 producers 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 final rule increases the size requirements for Russet
varieties of potatoes under the order. Accordingly, this action will
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.
[[Page 5424]]
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 August
16, 2007, 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 December 11, 2007 (72 FR 70244). Copies of the rule were
mailed or sent via facsimile to all Committee members and handlers. The
rule was also made available through the Internet by USDA and the
Office of the Federal Register. A 15-day comment period ending December
26, 2007, 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/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.
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 2007-2008 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:
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 24, 2008.
Lloyd C. Day,
Administrator, Agricultural Marketing Service.
[FR Doc. E8-1570 Filed 1-29-08; 8:45 am]
BILLING CODE 3410-02-P