Federal Register / Vol. 75, No. 64 / Monday, April 5, 2010 / Rules and Regulations 17031 

paragraphs (a)(2), (a)(3), (a)(5), and (a)(6) 

to read as follows: 

§ 917.459 California peach grade and size 

regulation. 

(a) * * * 

(2) Any package or container of 

Earlitreat, Snow Angel, Supechfifteen, 

or Super Lady variety peaches unless: 

* * * * * 

(3) Any package or container of Island 

Prince, Snow Peak, Spring Princess, or 

Super Rich variety peaches unless: 

* * * * * 

(5) Any package or container of 

Babcock, Bev’s Red, Bright Princess, 

Brittney Lane, Burpeachone (Spring 

Flame® 21), Burpeachfourteen (Spring 

Flame® 20), Burpeachnineteen (Spring 

Flame® 22), Candy Red, Crimson Lady, 

Crown Princess, Early May Crest, 

Flavorcrest, Honey Sweet, Ivory 

Duchess, Ivory Queen, June Lady, 

Magenta Queen, May Crest, May Sweet, 

Prima Peach IV, Queencrest, Rich May, 

Sauzee Queen, Scarlet Queen, Sierra 

Snow, Snow Brite, Springcrest, Spring 

Lady, Spring Snow, Springtreat 

(60EF32), Sugar Time (214LC68), 

Supecheight (012–094), Supechnine, 

Sweet Scarlet, or Zee Diamond variety 

peaches unless: 

* * * * * 

(6) Any package or container of 

116LM397, 382LN469, August Lady, 

August Saturn, Autumn Flame, Autumn 

Jewel, Autumn Red, Autumn Rich, 

Autumn Rose, Autumn Snow, Autumn 

Sun, Burpeachtwo (Henry II®), 

Burpeachthree (September Flame®), 

Burpeachfour (August Flame®), 

Burpeachfive (July Flame®), 

Burpeachsix (June Flame®), 

Burpeachseven (Summer Flame® 29), 

Burpeachfifteen (Summer Flame® 34), 

Burpeachtwenty (Summer Flame®), 

Burpeachtwentyone (Summer Flame®

26), Candy Princess, Country Sweet, 

Crimson Jewel, Diamond Candy, 

Diamond Princess, Earlirich, Early 

Elegant Lady, Elegant Lady, Fancy Lady, 

Fay Elberta, Full Moon, Galaxy, Glacier 

White, Golden Moon, Henry III, Henry 

IV, Ice Princess, Ivory King, Ivory 

Princess, Jasper Gem, Jillie White, 

Joanna Sweet, John Henry, Kaweah, 

Klondike, Last Tango, Natures #10, 

O’Henry, Peach-N-Cream, Pearl 

Princess, Pink Giant, Pink Moon, Prima 

Gattie 8, Prima Peach 13, Prima Peach 

XV, Prima Peach 20, Prima Peach 23, 

Prima Peach XXVII, Queen Jewel, Rich 

Lady, Ruby Queen, Ryan Sun, Saturn 

(Donut), September Blaze, September 

Snow, September Sun, Sierra Gem, 

Sierra Rich, Snow Beauty, Snow Blaze, 

Snow Duchess, Snow Fall, Snow Gem, 

Snow Giant, Snow Jewel, Snow King, 

Snow Magic, Snow Princess, Sprague 

Last Chance, Strawberry, Sugar Crisp, 

Sugar Giant, Summer Dragon, Summer 

Fling, Summer Lady, Summer Sweet, 

Summer Zee, Sweet Blaze, Sweet 

Dream, Sweet Henry, Sweet September, 

Tra Zee, Valley Sweet, Vista, White 

Lady, or Zee Lady variety peaches 

unless: 

* * * * * 

Dated: March 30, 2010. 

Rayne Pegg, 

Administrator, Agricultural Marketing 

Service. 

[FR Doc. 2010–7569 Filed 4–2–10; 8:45 am] 

BILLING CODE P 

DEPARTMENT OF AGRICULTURE 

Agricultural Marketing Service 

7 CFR Parts 925 and 944 

[Doc. No. AMS–FV–09–0085; FV10–925–1 

IFR] 

Grapes Grown in a Designated Area of 

Southeastern California and Imported 

Table Grapes; Relaxation of Handling 

Requirements 

AGENCY: Agricultural Marketing Service, 

USDA. 

ACTION: Interim rule with request for 

comments. 

SUMMARY: This rule relaxes the handling 

requirements prescribed under the 

California table grape marketing order 

(order) and the table grape import 

regulation. The order regulates the 

handling of table grapes grown in a 

designated area of southeastern 

California and is administered locally 

by the California Desert Grape 

Administrative Committee (committee). 

The import regulation is authorized 

under section 8e of the Agricultural 

Marketing Agreement Act of 1937 and 

regulates the importation of table grapes 

into the United States. This rule relaxes 

the one-quarter pound minimum bunch 

size requirement for the 2010 and 

subsequent seasons for grapes packed in 

consumer packages holding 2 pounds 

net weight or less. Under the relaxation, 

up to 20 percent of the weight of such 

containers may consist of single clusters 

of at least five berries each. This action 

continues the relaxation that was 

prescribed on a one-year test basis in 

2009 and provides California desert 

grape handlers and importers the 

flexibility to respond to an ongoing 

marketing opportunity to meet 

consumer needs. 

DATES: Effective April 8, 2010; 

comments received by May 5, 2010 will 

be considered prior to issuance of a final 

rule. 

ADDRESSES: Interested persons are 

invited to submit written comments 

concerning this rule. 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 

made 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: Jerry 

Simmons, Marketing Specialist, or Kurt 

J. Kimmel, Regional Manager, California 

Marketing Field Office, Marketing Order 

Administration Branch, Fruit and 

Vegetable Programs, AMS, USDA; 

Telephone: (559) 487–5901, Fax: (559) 

487–5906, or E-mail: 

Jerry.Simmons@ams.usda.gov or 

Kurt.Kimmel@ams.usda.gov. 

Small businesses may request 

information on complying with this 

regulation by contacting Antoinette 

Carter, 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: 

Antoinette.Carter@ams.usda.gov. 

SUPPLEMENTARY INFORMATION: This rule 

is issued under Marketing Order No. 

925, as amended (7 CFR part 925), 

regulating the handling of grapes grown 

in a designated area of southeastern 

California, 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.’’ 

This rule is also issued under section 

8e of the Act, which provides that 

whenever certain specified 

commodities, including table grapes, are 

regulated under a Federal marketing 

order, imports of these commodities 

into the United States are prohibited 

unless they meet the same or 

comparable grade, size, quality, or 

maturity requirements as those in effect 

for the domestically produced 

commodities. 


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17032 Federal Register / Vol. 75, No. 64 / Monday, April 5, 2010 / Rules and Regulations 

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. 

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. 

There are no administrative 

procedures which must be exhausted 

prior to any judicial challenge to the 

provisions of import regulations issued 

under section 8e of the Act. 

This rule relaxes the one-quarter 

pound minimum bunch size 

requirement for the 2010 and 

subsequent seasons for grapes packed in 

containers holding 2 pounds net weight 

or less. Under the relaxation, up to 20 

percent of the weight of such containers 

may consist of single clusters weighing 

less than one-quarter pound, but with at 

least five berries each. This action 

continues the relaxation that was 

prescribed on a test basis for the 2009 

regulatory period and provides 

California desert grape handlers and 

importers the flexibility to respond to an 

ongoing marketing opportunity to meet 

consumer needs. The committee met on 

November 12, 2009, and unanimously 

recommended the change for California 

desert grapes. The change in the import 

regulation is required under section 8e 

of the Act. 

Section 925.52(a)(1) of the order 

provides authority to regulate the 

handling of any grade, size, quality, 

maturity, or pack of any and all varieties 

of grapes during the season. Section 

925.53 provides authority for the 

committee to recommend to USDA 

changes to regulations issued pursuant 

to § 925.52. Section 925.55 specifies that 

when grapes are regulated pursuant to 

§ 925.52, such grapes must be inspected 

by the Federal or Federal-State 

inspection service to ensure they meet 

applicable requirements. 

Section 925.304(a) of the order’s rules 

and regulations requires grapes to meet 

the minimum grade and size 

requirements of U.S. No. 1 Table, or 

U.S. No. 1 Institutional, or to meet all 

the requirements of U.S. No. 1 

Institutional, except that a tolerance of 

33 percent is provided for off-size 

bunches. The requirements for the U.S. 

No. 1 Table and U.S. No. 1 Institutional 

grades are set forth in the United States 

Standards for Grades of Table Grapes 

(European or Vinifera Type) (7 CFR 

51.880 through 51.914) (Standards). In 

addition, § 925.304(a) prescribes relaxed 

handling requirements for the 2009 

regulatory period for U.S. No. 1 Table 

grapes packed in individual consumer 

packages containing 2 pounds net 

weight or less. The regulatory period 

runs from April 10 through July 10 each 

year. 

Prior to the 2009 regulatory period, 

U.S. No. 1 Table grade grapes were 

required to meet a minimum bunch size 

requirement of one-quarter pound. 

Since 2009, there has been interest in 

packing grapes in individual consumer 

packages known as clamshells. These 

containers have been most commonly 

used to pack strawberries in the past but 

are also being used for other fruit. They 

are made of a clear, rigid plastic and 

vary in size, typically holding two 

pounds of fruit or less. Some retailers 

prefer these containers because they are 

a consistent net weight and can be 

scanned at check-out. This is 

particularly convenient for retailers that 

do not have facilities for weighing 

produce, such as convenience stores 

and fast food outlets. Some consumers 

also prefer the convenience of 

prepackaged individual portions of 

fruit. 

It is difficult to fill these small 

containers to the desired weight using 

complete bunches weighing one-quarter 

pound or more. Smaller portions of 

bunches are needed to combine with the 

larger bunches to fill the containers to 

the desired weight. 

In response to this new market 

demand, the minimum bunch size 

requirements were relaxed for the 

regulatory period April 10 through July 

10, 2009, on a test basis to allow 

California grape handlers to pack 

consumer packages containing 2 pounds 

net weight or less with portions of 

bunches weighing less than one-quarter 

pound. The final rule was published in 

the Federal Register on August 3, 2009 

(74 FR 38323). These smaller portions 

were needed to fill the containers to the 

weights they were designed to hold. 

Based on the positive results of the 

2009 relaxation and an ongoing 

marketing opportunity, the committee 

unanimously recommended continuing 

relaxation of the one-quarter pound 

minimum bunch size requirement for 

the 2010 and subsequent seasons for 

U.S. No. 1 Table grade grapes packed in 

consumer packages containing 2 pounds 

net weight or less. Under this relaxation, 

up to 20 percent of the weight of such 

containers may consist of single clusters 

weighing less than one-quarter pound, 

but with at least five berries each. This 

action will continue to provide handlers 

with the flexibility to respond to an 

ongoing marketing opportunity to meet 

consumer needs. Section 925.304(a) is 

modified accordingly. 

Under section 8e of the Act, minimum 

grade, size, quality, and maturity 

requirements for table grapes imported 

into the United States are established 

under Table Grape Import Regulation 4 

(7 CFR 944.503) (import regulation). The 

change in the California Desert Grape 

Regulation 6 minimum bunch size 

requirement for the 2010 and 

subsequent seasons requires a 

corresponding change to the minimum 

bunch size requirement for imported 

table grapes. Similar to the domestic 

industry, this action will continue to 

allow importers the flexibility to 

respond to an ongoing marketing 

opportunity to meet consumer needs. 

Section 944.503(a)(1) is revised 

accordingly. 

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 the 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 about 15 handlers of 

southeastern California grapes who are 

subject to regulation under the order 

and about 50 grape producers in the 

production area. In addition, there are 

about 100 importers of grapes. 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 


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Federal Register / Vol. 75, No. 64 / Monday, April 5, 2010 / Rules and Regulations 17033 

and small agricultural producers are 

defined as those whose annual receipts 

are less than $750,000. Four of the 15 

handlers subject to regulation have 

annual grape sales of more than 

$7,000,000. Based on data from the 

National Agricultural Statistics Service 

and the committee, the average crop 

value for 2009 was about $55,000,000. 

Dividing this figure by the number of 

producers (50) yields an average annual 

producer revenue estimate of 

$1,100,000, which is above the SBA 

threshold of $750,000. Based on the 

foregoing, it may be concluded that a 

majority of grape handlers and none of 

the producers may be classified as small 

entities. It is estimated that the average 

importer receives $3.2 million in 

revenue from the sale of grapes. Also, it 

may be concluded that the majority of 

importers may be classified as small 

entities. 

This rule revises § 925.304(a) of the 

rules and regulations of the California 

desert grape order and § 944.503(a)(1) of 

the table grape import regulation. This 

rule relaxes the one-quarter pound 

minimum bunch size requirement for 

the 2010 and subsequent seasons for 

U.S. No. 1 Table grade grapes packed in 

small consumer packages containing 2 

pounds net weight or less. Under the 

relaxation, up to 20 percent of the 

weight of each consumer package 

weighing two pounds or less may 

consist of single clusters weighing less 

than one-quarter pound, but with at 

least five berries each. Authority for the 

change to the California desert grape 

order is provided in §§ 925.52(a)(1) and 

925.53. Authority for the change to the 

table grape import regulation is 

provided in section 8e of the Act. 

There is general agreement in the 

industry for the need to continue to 

relax the minimum bunch size 

requirement for grapes packed in these 

consumer packages to allow for more 

packaging options. No additional 

alternatives were considered because 

the 2009 one-year test relaxation 

produced the desired results with no 

identified problems. The committee 

unanimously agreed that the relaxation 

for grapes packed in consumer packages 

containing 2 pounds net weight or less 

was appropriate to prescribe for the 

2010 and subsequent seasons. 

Regarding the impact of this rule on 

affected entities, this rule provides both 

California desert grape handlers and 

importers the flexibility to continue to 

respond to an ongoing marketing 

opportunity to meet consumer needs. 

This marketing opportunity initially 

existed in the 2009 season, and the 

minimum bunch size regulations were 

relaxed accordingly during that time on 

a test basis. As in 2009, handlers and 

importers will be able to provide buyers 

in the retail sector more packaging 

choices. The relaxation may result in 

increased shipments of consumer-sized 

grape packages, which would have a 

positive impact on producers, handlers, 

and importers. 

This rule will not impose any 

additional reporting or recordkeeping 

requirements on either small or large 

grape handlers or importers. 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. 

In addition, USDA has not identified 

any relevant Federal rules that 

duplicate, overlap or conflict with this 

rule. 

Further, the committee’s meeting was 

widely publicized throughout the grape 

industry, and all interested persons 

were invited to attend the meeting and 

participate in committee deliberations. 

Like all committee meetings, the 

November 12, 2009 meeting was a 

public meeting, and all entities, both 

large and small, were able to express 

their views on this issue. Also, the 

World Trade Organization, the Chilean 

Technical Barriers to Trade inquiry 

point for notifications under the U.S.- 

Chile Free Trade Agreement, the 

embassies of Argentina, Brazil, Canada, 

Chile, Costa Rica, Egypt, Italy, Mexico, 

Morocco, Peru, and South Africa, and 

known grape importers were notified of 

this action. 

Finally, interested persons are invited 

to submit comments on this 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=MarketingOrdersSmallBusiness

Guide. Any questions about the 

compliance guide should be sent to 

Antoinette Carter at the previously 

mentioned address in the FOR FURTHER

INFORMATION CONTACT section. 

This rule invites comments on the 

continued relaxation of the handling 

requirements currently prescribed under 

the marketing order for grapes grown in 

southeastern California and for grapes 

imported into the United States. Any 

comments received will be considered 

prior to finalization of this rule. 

In accordance with section 8e of the 

Act, the United States Trade 

Representative has concurred with the 

issuance of this rule. 

After consideration of all relevant 

material presented, including the 

committee’s recommendation, and other 

information, it is found that this interim 

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 action continues the 

2009 season test relaxation of the 

handling requirements for grapes grown 

in a designated area of southeastern 

California and for grapes imported into 

the United States for the 2010 and 

subsequent seasons; (2) California desert 

grape handlers are aware of this action, 

which was unanimously recommended 

by the committee at a public meeting; 

(3) the regulatory period begins on April 

10, 2010; and (4) this rule provides a 30- 

day comment period and any comments 

received will be considered prior to 

finalization of this rule. 

List of Subjects 

7 CFR Part 925 

Grapes, Marketing agreements and 

orders, Reporting and recordkeeping 

requirements. 

7 CFR Part 944 

Avocados, Food grades and standards, 

Grapefruit, Grapes, Imports, Kiwifruit, 

Limes, Olives, Oranges. 

■ For the reasons set forth in the 

preamble, 7 CFR parts 925 and 944 are 

amended as follows: 

■ 1. The authority citation for 7 CFR 

parts 925 and 944 continues to read as 

follows: 

Authority: 7 U.S.C. 601–674. 

PART 925—GRAPES GROWN IN A 

DESIGNATED AREA OF 

SOUTHEASTERN CALIFORNIA 

§ 925.304 [Amended] 

■ 2. Amend § 925.304 by removing 

‘‘during the period April 10 through July 

10, 2009,’’ from the fourth sentence in 

paragraph (a). 


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17034 Federal Register / Vol. 75, No. 64 / Monday, April 5, 2010 / Rules and Regulations 

PART 944—FRUITS; IMPORT 

REQUIREMENTS 

■ 3. Amend § 944.503 by removing 

‘‘during the period April 10 through July 

10, 2009,’’ from the fourth sentence in 

paragraph (a)(1). 

Dated: March 26, 2010. 

David R. Shipman, 

Acting Administrator, Agricultural Marketing 

Service. 

[FR Doc. 2010–7563 Filed 4–2–10; 8:45 am] 

BILLING CODE P 

DEPARTMENT OF AGRICULTURE 

Agricultural Marketing Service 

7 CFR Part 948 

[Doc. No. AMS–FV–08–0115; FV09–948–2 

IFR] 

Irish Potatoes Grown in Colorado; 

Relaxation of the Handling Regulation 

for Area No. 3 

AGENCY: Agricultural Marketing Service, 

USDA. 

ACTION: Interim rule with request for 

comments. 

SUMMARY: This rule relaxes the size 

requirement prescribed under the 

Colorado potato marketing order. 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. 3 (Committee). This rule 

provides for the handling of all varieties 

of potatoes with a minimum diameter of 

3⁄4 inch, if the potatoes otherwise meet 

U.S. No. 1 grade. This change is 

intended to provide potato handlers 

with greater marketing flexibility, 

producers with increased returns, and 

consumers with a greater supply of 

potatoes. 

DATES: Effective April 6, 2010; 

comments received by June 4, 2010 will 

be considered prior to issuance of a final 

rule. 

ADDRESSES: Interested persons are 

invited to submit written comments 

concerning this rule. 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 

made 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 Antoinette 

Carter, 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: 

Antoinette.Carter@ams.usda.gov. 

SUPPLEMENTARY INFORMATION: This rule 

is issued under Marketing Agreement 

No. 97 and 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. 

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 there from. 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 relaxes the size requirement 

for all varieties of Colorado Area No. 3 

potatoes by allowing the handling of 

potatoes with a minimum diameter of 3⁄4

inch, if the potatoes otherwise meet U.S. 

No. 1 grade. This change is intended to 

provide potato handlers with greater 

marketing flexibility, producers with 

increased returns, and consumers with 

a greater supply of potatoes. 

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 § 948.22. 

Section 948.40 provides that 

whenever the handling of potatoes is 

regulated pursuant to §§ 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 separate regulatory 

areas 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 Saguache, 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 Colorado 

potatoes grown in Area No. 3 are 

contained in § 948.387 of the order’s 

administrative rules and regulations. 

The Committee met on June 4, 2009, 

and again on November 17, 2009, to 

discuss decreasing the minimum size 

requirement for certain potatoes. As a 

consequence of these deliberations, the 

Committee unanimously recommended 

on November 17 that § 948.387(a) of the 

order’s handling regulation be revised to 

provide for the handling of all varieties 

of potatoes with a minimum diameter of 

3⁄4 inch, if the potatoes otherwise meet 

U.S. No. 1 grade requirements (a potato 

meeting all the requirements of a U.S. 

No. 1 grade potato as defined in the U.S. 

Standards for Grades of Potatoes would 

have a minimum size of 17⁄8 inches). 

This recommendation provides for the 

handling of potatoes within both the 


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