[Federal Register: April 16, 2009 (Volume 74, Number 72)]
[Rules and Regulations]
[Page 17589-17591]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr16ap09-1]
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Rules and Regulations
Federal Register
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[[Page 17589]]
DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Part 948
[Doc. No. AMS-FV-08-0094; FV09-948-1 IFR]
Irish Potatoes Grown in Colorado; Modification of the Handling
Regulation for Area No. 2
AGENCY: Agricultural Marketing Service, USDA.
ACTION: Interim final rule with request for comments.
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SUMMARY: This rule modifies 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,
Area No. 2 (Committee). Currently, Colorado Area No. 2 potatoes must be
U.S. No. 2 or better grade and most varieties must be at least 2 inches
in diameter or 4 ounces in weight, except that round potatoes may be of
any weight. For most long potato varieties, this rule changes the
minimum size requirement from 2 inches in diameter to 1\7/8\ inches in
diameter and removes the minimum weight requirement. This change is
intended to improve the marketing of Colorado Area No. 2 potatoes and
increase returns to producers as well as provide consumers with
increased supplies of potatoes.
DATES: Effective April 17, 2009; comments received by June 15, 2009
will be considered prior to issuance of a final rule.
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 document 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: Teresa.Hutchinson@ams.usda.gov or
GaryD.Olson@ams.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@ams.usda.gov.
SUPPLEMENTARY INFORMATION: This 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 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 rule modifies the minimum size requirement for most potatoes
handled under the order. The exceptions to these requirements are for
potatoes handled under the size designations referred to in the U.S.
Standards as ``Size B'' and ``creamers.'' The revisions described in
this rule are made to the handling regulations for all regulated
potatoes except those potatoes considered ``Size B'' or ``creamers.''
The current size requirements for ``Size B'' and ``creamers'' remain
unchanged. The discussion hereafter is intended to reflect the same.
Except as explained above, the minimum size requirement for
Colorado Area No. 2 potatoes currently allows the handling of potatoes
that are at least 2 inches in diameter or 4 ounces in weight (round
potatoes may be of any weight). For long potato varieties, this rule
changes the minimum size requirement from 2 inches in diameter to 1\7/
8\ inches in diameter and removes the minimum weight requirement. This
rule was recommended by the Committee at a meeting on August 21, 2008.
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
[[Page 17590]]
948.24, such potatoes must be inspected by the Federal-State Inspection
Service, and certified as meeting the applicable requirements of such
regulations.
For marketing order purposes, the State of Colorado is divided into
three areas. 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. 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
Colorado potatoes grown in Area No. 2 are contained in Sec. 948.386 of
the order's rules and regulations.
According to the Committee, quality assurance is very important to
the industry and its customers. Providing the public with acceptable
quality potatoes that are appealing to the consumer on a consistent
basis is necessary to maintain buyer confidence in the marketplace.
The growing season for Colorado Area No. 2 is normally very short
because potatoes are grown in the San Luis Valley at an altitude of
7,600 feet. Adverse weather has a large impact on yield and potato size
at high altitudes. In spring 2008, wet weather delayed planting and
emergence of the crop. An early June frost, when potato plants were
just emerging, further damaged the crop. Numerous hail storms,
including a severe storm in mid-August, caused significant damage to
nearly 20 percent of the Area No. 2 potato acreage. In all, adverse
weather conditions were responsible for significantly lower crop yields
in the 2008 season.
U.S. potato acreage in 2008 is estimated to be 8 percent lower than
in 2007, resulting in limited supplies of potatoes nationwide. The
production of alternate rotation crops, such as wheat and corn, has
become more profitable than the production of potatoes, causing
producers to reduce potato acreage. These conditions have resulted in
the smallest supply of potatoes in nearly 20 years.
In 2007, the Committee recommended tightening the minimum size
requirements from 1\7/8\ inches to 2 inches in diameter or 4 ounces
minimum weight for all non-excepted varieties potatoes, except that
round varieties could be handled without weight limitations. This
action was based in part on the higher yield and sales of the 2006
season. This change was effective on January 31, 2008 (73 FR 5422).
Taking into account lower estimated 2008 U.S. potato acreage and
poor weather conditions in Area No. 2, the Committee recommended
relaxing the minimum size regulation. The Committee believes that the
size relaxation should increase the volume of potatoes meeting the
order's handling requirements, thus fulfilling market demands.
Twelve members voted in favor of the modification and one member
voted in opposition. The dissenting member was concerned that, even
though his crop would be small, the shipper who packs his potatoes
would want larger potatoes. However, the majority of the Committee
believes that this change will provide potato handlers with more
marketing flexibility, producers with increased returns, and consumers
with a greater supply of Colorado Area No. 2 potatoes.
This rule will not impact imported potatoes covered by section
608(e) of the Act.
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 73 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 $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, approximately 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
62 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 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.
For long potatoes that are considered neither ``Size B'' nor
``creamer'' size potatoes, this rule changes the minimum size
requirement from 2 inches in diameter to 1 7/8 inches in diameter and
removes the minimum weight requirement. Authority for this action is
contained in Sec. Sec. 948.21 and 948.22.
In 2007, handlers were unable to adequately supply the fresh market
because of low yields due to poor weather conditions and because of
more restrictive regulations. Adverse weather conditions have
contributed to lower yields and short supplies of potatoes for the
market again in the 2008-2009 season. The Committee believes that
relaxing the minimum size and weight requirements on long potato
varieties will allow handlers to market a larger portion of the crop in
fresh market outlets, and thus better meet demand. This change is
expected to foster increased consumption and have a positive impact on
the Colorado potato industry.
This change is expected to improve returns to producers. This rule
is a relaxation of the current size regulation and, as such, should
have a positive impact on industry participants. The Committee believes
that this change would not negatively impact either handlers or
producers.
The Committee discussed alternatives to this rule. One alternative
included making no change at all to the current regulation. The
Committee did not believe this alternative would meet the needs of
buyers or benefit the industry.
This rule will not impose any additional reporting or recordkeeping
requirements on either small or large Colorado Area No. 2 potato
handlers. As with all Federal marketing order programs, reports and
forms are periodically reviewed to reduce
[[Page 17591]]
information requirements and duplication by industry and public sector
agencies. Furthermore, USDA has not identified any relevant Federal
rules that duplicate, overlap or conflict with this rule.
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.
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
21, 2008, 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 interim final 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=MarketingOrdersSmallBus
inessGuide. Any questions about the compliance guide should be sent to
Jay Guerber at the previously mentioned address in the FOR FURTHER
INFORMATION CONTACT section.
This rule invites comments on a modification of the handling
regulation currently prescribed under the Colorado Area No. 2 potato
marketing order. Any comments timely received will be considered prior
to finalization of this rule.
After consideration of all relevant material presented, including
the Committee's recommendation, and other information, it is found that
this interim final rule, as hereinafter set forth, will tend to
effectuate the declared policy of the Act.
Pursuant to 5 U.S.C. 553, it is also found and determined upon good
cause that it is impracticable, unnecessary, and contrary to the public
interest to give preliminary notice prior to putting this rule into
effect and that good cause exists for not postponing the effective date
of this rule until 30 days after publication in the Federal Register
because: (1) This rule relaxes the minimum size and weight requirements
for most long potatoes; (2) handlers are already shipping potatoes from
the 2008-2009 crop; (3) the Committee recommended this change at a
public meeting and all interested parties had an opportunity to express
their views and provide input; and (4) this rule provides a 60-day
comment period and any comments received will be considered prior to
finalization of this 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, 1\7/8\ inches
minimum diameter.
* * * * *
Dated: April 9, 2009.
Robert C. Keeney,
Acting Associate Administrator, Agricultural Marketing Service.
[FR Doc. E9-8685 Filed 4-15-09; 8:45 am]