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[Federal Register Volume 76, Number 106 (Thursday, June 2, 2011)]
[Rules and Regulations]
[Pages 31787-31790]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-13485]

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DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 51

[Doc.  AMS-FV-08-0023]

United States Standards for Grades of Potatoes

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Final rule.

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SUMMARY: This rule revises the United States Standards for Grades of 
Potatoes. These standards are issued under the Agricultural Marketing 
Act of 1946. The Agricultural Marketing Service (AMS) is amending the 
similar varietal characteristic requirement to allow mixed colors and/
or types of potatoes when designated as a mixed or specialty pack. 
Additionally, AMS is adding restrictive tolerances for permanent 
defects in the en route/at destination tolerances, removing the 
unneeded definition for injury, and clarifying the scoring guide for 
sprouts. AMS is also adding table numbers to the definitions of 
``Damage,'' ``Serious Damage,'' and ``External Defects,'' amending 
table headings, replacing omitted language in the definition for 
bruises and amending language in the tolerance section to ensure soft 
rot tolerances are applied correctly. The purpose of this revision is 
to update and revise the standards to more accurately represent today's 
marketing practices and to clarify existing language.

DATES: Effective June 3, 2011.

FOR FURTHER INFORMATION CONTACT: Dr. Carl Newell, Standardization and 
Training Section, Fresh Products Branch, (540) 361-1120. The United 
States Standards for Grades of Potatoes are available through the Fresh 
Products Branch Web site at http://www.ams.usda.gov/freshinspection.

SUPPLEMENTARY INFORMATION: 

Executive Order 12866 and 12988

    The Office of Management and Budget has waived the review process 
required by Executive Order 12866 for this action. This rule has been 
reviewed under Executive Order 12988, Civil Justice Reform. This action 
is not intended to have retroactive effect. There are no administrative 
procedures which must be exhausted prior to any judicial challenge to 
the provisions of the rule.

Regulatory Flexibility Act and Paperwork Reduction Act

    Pursuant to the requirements set forth in the Regulatory 
Flexibility Act (RFA) (5 U.S.C. 601-612) and in the Paperwork Reduction 
Act (PRA), AMS has considered the economic impact of the amended 
actions on small entities. The purpose of the RFA is to fit regulatory 
actions to the scale of businesses subject to such actions in order 
that small businesses will not be unduly or disproportionately 
burdened. Accordingly, AMS has prepared this final regulatory 
flexibility analysis. Interested parties are invited to submit 
information on the regulatory and informational impacts of these 
actions on small businesses.
    This rule revises the U.S. Standards for Grades of Potatoes that 
were issued under the Agricultural Marketing Act of 1946 (7 U.S.C. 
1621-1627). Standards issued under the 1946 Act are voluntary.
    Small agricultural service firms, which include handlers and 
importers, have been 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. Using annual data from 
the National Agricultural Statistics Service (NASS), the average potato 
crop value for 2006-2008 was $3.482 billion. Dividing that figure by 
15,014 farms yields an average potato crop value per farm of just under 
$232,000. Since this is well under the SBA threshold of annual receipts 
of $750,000, it can be concluded that the majority of these producers 
may be classified as small entities. Furthermore, there are 
approximately 180 handlers of potatoes and approximately 168 importers 
of potatoes that may be classified as small entities and may be 
affected by this rule.
    Additional evidence comes from closely examining the Agricultural 
Census acreage breakdown. Out of a total of 15,014 potato farms in 
2007, 19 percent were less than 10 acres and 66 percent were less than 
100 acres. An estimate of the number of acres that it would take to 
produce a crop valued at $750,000 can be made by dividing the 2006-08 
average crop value of $3.482 billion by the three-year average bearing 
acres of 1.097 million, yielding an average potato revenue per acre 
estimate of $3,174. Dividing $750,000 by $3,174 shows that farms with 
236 acres received at least the average price in 2006-08 producing 
crops valued at $750,000 or more, and would therefore be considered 
large potato farms under the SBA definition. Looking at farm numbers 
for additional census size categories shows that 11,718 potato farms 
(78 percent) are under 220 acres and 11,994 (80 percent) are less than 
260 acres. Since a farm with 236 acres of potatoes falls within this 
range, it can be concluded that the proportion of small potato farms 
under the SBA definition is between 78 and 80 percent of all U.S. 
potato farms. The effects of this rule are not expected to be 
disproportionately greater or smaller for small handlers, producers, or 
importers than for larger entities.
    This rule will amend the similar varietal characteristic 
requirement, add restrictive tolerances for permanent defects in the 
enroute/at destination tolerances, remove the definition for injury, 
and clarify the scoring guides for sprouts. Additionally, this rule 
will add table numbers to the definitions of ``Damage,'' ``Serious 
Damage,'' and ``External Defects,'' amend table headings, replace 
omitted language in the definition for bruises, and amend the tolerance 
section to ensure soft rot tolerances are applied correctly. These 
actions will make the standard more consistent and uniform with 
marketing trends and practices. These actions will not impose any 
additional reporting or recordkeeping requirements on either small or 
large potato producers, handlers, or importers.
    USDA has not identified any Federal rules that duplicate, overlap, 
or conflict with this rule. However, there are marketing programs which 
regulate the handling of potatoes under 7 CFR parts 945-948 and 953. 
Potatoes under a marketing order have to meet certain requirements set 
forth in the grade standards. In addition, potatoes are subject to 
section 8e import requirements under the Agricultural Marketing Act of 
1937, as amended (7 U.S.C. 601-674) which requires imported potatoes to 
meet grade, size, and quality under the applicable marketing order (7 
CFR part 980).

[[Page 31788]]

    Alternatives to this rule were considered including the option of 
not issuing the rule. However, the need for revision has increased as a 
result of changing market characteristics, and this final rule 
represents input from the potato industry.
    A proposed rule regarding these revisions to the United States 
Standards for Grades of Potatoes was published in the Federal Register 
on April 30, 2010 [75 FR 22707]. A comment period of thirty days was 
issued which closed June 1, 2010.

Comments

    In response to the request for comments, AMS received comments from 
nine respondents. Six comments were from national or state trade 
associations representing potato growers, shippers, and receivers, of 
which two supported the proposal and four partially supported the 
proposal. One supporting comment was from a nationwide produce retail 
chain. Another supporting comment was from a foreign government agency 
representing its agricultural inspection service. One comment came from 
a non-supporting consumer, who opposed the proposal in general without 
providing any specific information. Additionally, one national trade 
association proposed an additional revision.
    AMS proposed to amend the similar varietal characteristic 
requirement to allow mixed colors and/or types of potatoes when 
designated as a mixed or specialty pack. Supporting comments were 
received from five national or state trade associations representing 
potato growers, shippers, and receivers, one nationwide produce retail 
chain, and one foreign government agency. One supportive commenter 
stated that there should only be a U.S. No. 1 mixed or specialty pack 
as allowing a U.S. No. 2 mixed or specialty pack downgrades the pack. 
The same commenter also suggested only allowing mixed colors and not 
mixed types of potatoes. AMS believes that allowing for both U.S. No. 1 
and No. 2 mixed grade potatoes and to be mixed colors and/or types of 
potatoes allows for the appropriate amount of flexibility within the 
industry to meet current demand of consumers. Therefore, no changes 
were made to the standards based on these suggestions.
    One objection came from a state trade association that believes 
consumers will prepare potatoes from the same container using one 
cooking step. This respondent does not find it acceptable for packers 
and repackers of Idaho potatoes to allow mixed types that perform 
differently, when cooked, to be packed in one bag. However, there were 
seven supporting commenters that believed that allowing mixed colors 
and/or types of potatoes when designated as a mixed or specialty pack 
will bring the standards in sync with current marketing practices and 
consumer demands in the United States and Canada. AMS agrees with these 
seven commenters. Therefore, AMS is revising the similar varietal 
characteristic requirement as proposed.
    AMS also proposed to add restrictive tolerances for permanent 
defects in the en route/at destination tolerances. Two national trade 
associations representing potato growers and receivers and one 
nationwide produce retail chain supported the proposal. Four national 
and state trade associations representing potato growers and shippers 
opposed this revision. The opposing commenters believe that the new 
language will add confusion to the standards by causing market 
inspectors to misinterpret the difference between condition and 
permanent defects. Also, since permanent defects do not change over 
time, these commenters believe the restrictive tolerances are 
unnecessary.
    On March 21, 2008, a final rule was published in the Federal 
Register (73 FR 15052) that added ``en route'' or ``at destination'' 
tolerances to the U.S. No. 1 and No. 2 grades. Prior to that 
rulemaking, there were only shipping point tolerances: For U.S. No. 1 a 
total of 8 percent, and for U.S. No. 2 a total of 10 percent. En route/
at destination tolerances added for U.S. No. 1 potatoes allowed a total 
of 10 percent permanent defects, and for U.S. No. 2 potatoes a total of 
12 percent permanent defects. AMS did not add restrictive tolerances to 
the en route/at destination tolerances in the 2008 final rule. 
Therefore 2 percent more permanent defects were allowed for both U.S. 
No. 1 and No. 2 between shipping point and at destination. This 
rulemaking adds a restrictive tolerance of not more than 8 percent for 
permanent defects in the U.S. No. 1 tolerances and not more than 10 
percent for permanent tolerances in U.S. No. 2 that will ensure that 
shipping point and en route/at destination tolerances are properly the 
same.
    In addition, AMS proposed to clarify the scoring guide for sprouts. 
Two national trade associations representing growers and receivers, one 
nationwide produce retail chain, and one foreign government agency were 
in favor of, but four national or state trade associations expressed 
concern regarding the phrase ``or have numerous individual and/or 
clusters of sprouts which materially detract from the appearance of the 
potato.'' Those commenters opposed to the change stated that the 
wording is too subjective and may nullify the length requirements for 
shipping point and destination. Currently, the wording in the standards 
can be interpreted to allow any cluster, no matter how small, to not 
only be scored as damage but also as serious damage. To ensure clarity, 
AMS proposed that clusters must be numerous and must materially or 
seriously detract from the appearance before being scored. Further, 
numerous individual sprouts that do not exceed the length requirements 
were also included. AMS believes that even though a potato may have 
sprouts, either individuals and/or clusters, not exceeding the length 
requirements, the appearance can be materially or seriously affected 
due to the sprouts being so numerous. Additionally, scoring numerous 
individual and/or clusters of sprouts based on materially or seriously 
detracting from the appearance does not nullify the length requirements 
for single individual sprouts or clusters. Therefore, AMS is revising 
the scoring guideline for sprouts as proposed.
    Finally, one commenter pointed out that although AMS proposed to 
replace the omission of ``or 6 oz.'' in the definition of bruises in 
Table III--External Defects, it appears to be already included in this 
definition within the Standards. Upon further analysis, AMS determined 
that ``or 6 oz.'' was never omitted, and therefore does not need to be 
added back into the standards. However, the language ``2\1/2\ inch or'' 
in the bruises definition was in fact inadvertently omitted as part of 
a previous rulemaking (73 FR 70585; November 21, 2008) but appear in 
the Standards. This rulemaking action is intended to rectify this 
error.
    Therefore, AMS will revise the following as proposed: Remove the 
definition for injury, add table numbers to the definitions of 
``Damage,'' ``Serious Damage,'' and ``External Defects,'' amend table 
headings, replace omission of ``2\1/2\ inch or'' in the definition for 
bruises, and amend language in the tolerance section to ensure soft rot 
tolerances are applied correctly.
    In addition to the comments on these proposed revisions, one 
national trade association representing potato receivers suggested that 
AMS reinstitute the 1 percent soft rot en route/at destination 
tolerance for the U.S. No. 1 and U.S. No. 2 grades. This proposal is 
outside the scope of this rulemaking but may be considered at a later 
time.

List of Subjects in 7 CFR Part 51

    Agricultural commodities, Food grades and standards, Fruits, Nuts,

[[Page 31789]]

Reporting and recordkeeping requirements, Trees, Vegetables.

    For reasons set forth in the preamble, 7 CFR part 51 is amended as 
follows:

PART 51--[AMENDED]

0
1. The authority citation for part 51 continues to read as follows:

    Authority:  7 U.S.C. 1621-1627.

0
2. In Sec.  51.1541, paragraph (a) is revised to read as follows:

Sec.  51.1541  U.S. No. 1.

* * * * *
    (a) Similar varietal characteristics, except when designated as a 
mixed or specialty pack;
* * * * *

0
3. In Sec.  51.1543, paragraph (a) is revised to read as follows:

Sec.  51.1543   U.S. No. 2.

* * * * *
    (a) Similar varietal characteristics, except when designated as a 
mixed or specialty pack;
* * * * *

0
4. In Sec.  51.1546, paragraph (a) is revised to read as follows:

Sec.  51.1546  Tolerances.

* * * * *
    (a) For defects--(1) U.S. No. 1. (i) At Shipping Point: A total of 
8 percent for potatoes in any lot which fail to meet the requirements 
for the grade: Provided, That included in this tolerance not more than 
the following percentages shall be allowed for the defects listed:
    (A) 5 percent for external defects;
    (B) 5 percent for internal defects; and
    (C) Not more than a total of 1 percent for potatoes which are 
frozen or affected by soft rot or wet breakdown. See Sec.  51.1547.
    (ii) En route or at destination: A total of 10 percent for potatoes 
in any lot which fail to meet the requirements for the grade: Provided, 
That included in this tolerance not more than a total of 8 percent 
shall be allowed for permanent defects: And provided further, the 
following percentages shall be allowed for the defects listed:
    (A) 7 percent for external defects, including therein not more than 
5 percent for permanent external defects;
    (B) 7 percent for internal defects, including therein not more than 
5 percent for permanent internal defects; and
    (C) Not more than a total of 2 percent for potatoes which are 
frozen or affected by soft rot or wet breakdown. See Sec.  51.1547.
    (2) U.S. Commercial: A total of 20 percent for potatoes in any lot 
which fail to meet the requirements for the grade: Provided, That 
included in this tolerance not more than the following percentages 
shall be allowed for the defects listed:
    (i) 10 percent for potatoes which fail to meet the requirements for 
U.S. No. 2 grade, including therein not more than:
    (ii) 6 percent for external defects;
    (iii) 6 percent for internal defects; and
    (iv) Not more than a total of 1 percent for potatoes which are 
frozen or affected by soft rot or wet breakdown. See Sec.  51.1547.
    (3) U.S. No. 2. (i) At Shipping Point: A total of 10 percent for 
potatoes in any lot which fail to meet the requirements for the grade: 
Provided, That included in this tolerance not more than the following 
percentages shall be allowed for the defects listed:
    (A) 6 percent for external defects;
    (B) 6 percent for internal defects; and
    (C) Not more than a total of 1 percent for potatoes which are 
frozen or affected by soft rot or wet breakdown. See Sec.  51.1547.
    (ii) En route or at destination: A total of 12 percent for potatoes 
in any lot which fail to meet the requirements for the grade: Provided, 
That included in this tolerance not more than a total of 10 percent 
shall be allowed for permanent defects: And provided further, the 
following percentages shall be allowed for the defects listed:
    (A) 8 percent for external defects, including therein not more than 
6 percent for permanent external defects;
    (B) 8 percent for internal defects, including therein not more than 
6 percent for permanent internal defects; and
    (C) Not more than a total of 2 percent for potatoes which are 
frozen or affected by soft rot or wet breakdown. See Sec.  51.1547.
* * * * *

Sec.  51.1559  [Removed and Reserved]

0
5. Section 51.1559 is removed and reserved.

0
6. Section 51.1560 is revised to read as follows:

Sec.  51.1560  Damage.

    ``Damage'' means any defect, or any combination of defects, which 
materially detracts from the edible or marketing quality, or the 
internal or external appearance of the potato, or any external defect 
which cannot be removed without a loss of more than 5 percent of the 
total weight of the potato. See Tables III, IV, V and VI in Sec.  
51.1564 and Table VII in Sec.  51.1565.

0
7. Section 51.1561 is revised to read as follows:

Sec.  51.1561  Serious damage.

    ``Serious damage'' means any defect, or any combination of defects, 
which seriously detracts from the edible or marketing quality, or the 
internal or external appearance of the potato, or any external defect 
which cannot be removed without a loss of more than 10 percent of the 
total weight of the potato. See Tables III, IV, V and VI in Sec.  
51.1564 and Table VII in 5Sec.  1.1565.

0
8. Section 51.1564 is amended by:
0
A. Amending the introductory text by removing the reference ``Table 
III'', and by adding the reference ``Tables III, IV, V and VI'', in its 
place.
0
B. Amending Table III by revising the column headings; and
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C. Amending Table III by revising the entries for ``Bruises (Not 
including pressure bruise and sunken discolored areas)'' and 
``Sprouts''.
    The revisions read as follows.

Sec.  51.1564  External defects.

* * * * *

                                           Table III--External Defects
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                Defects                                Damage                         Serious damage\1\
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
Bruises (Not including pressure bruise  When removal causes a loss of more   When removal causes a loss of more
 and sunken discolored areas).           than 5 percent of the total weight   than 10 percent of the total
                                         of the potato or when the area       weight of the potato or when the
                                         affected is more than 5 percent of   area affected is more than 10
                                         the surface in the aggregate         percent of the surface in the
                                         (i.e., \3/4\ inch on a 2\1/2\ inch   aggregate (i.e., 1\1/4\ inches on
                                         or 6 oz. potato). Correspondingly    a 2\1/2\ inch or 6 oz. potato).
                                         lesser or greater areas in smaller   Correspondingly lesser or greater
                                         or larger potatoes.                  areas in smaller or larger
                                                                              potatoes.
 

[[Page 31790]]

 
                                                  * * * * * * *
Sprouts...............................  When more than 5 percent of the      When more than 10 percent of the
                                         potatoes in any lot have any         potatoes in any lot have any
                                         sprout more than \1/4\ inch in       sprout more than \1/2\ inch in
                                         length at shipping point; more       length at shipping point; more
                                         than \1/2\ inch in length at         than 1 inch in length at
                                         destination; or have numerous        destination; or have numerous
                                         individual and/or clusters of        individual and/or clusters of
                                         sprouts which materially detract     sprouts which seriously detract
                                         from the appearance of the potato.   from the appearance of the potato.
                                                                              Serious damage by sprouts shall
                                                                              only be scored against the U.S.
                                                                              Commercial and U.S. No. 2 grades.
 
                                                  * * * * * * *
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\1\ The following defects are considered serious damage when present in any degree: 1. Freezing. 2. Late blight.
  3. Ring rot. 4. Southern bacterial wilt. 5. Soft rot. 6. Wet breakdown.

Sec.  51.1565  [Amended]

0
9. Section 51.1565 is amended by:
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A. Amending the introductory text by removing the reference ``Table 
IV'', and by adding the reference ``Table VII'', in its place; and
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B. Amending Table VII by removing the column heading ``Damage maximum 
allowed'' and adding the column heading ``Damage Maximum Allowed'' in 
its place, and by removing the column heading ``Serious damage maximum 
allowed'', and by adding the column heading ``Serious Damage Maximum 
Allowed'' in its place.

    Dated: May 24, 2011.
Rayne Pegg,
Administrator, Agricultural Marketing Service.
[FR Doc. 2011-13485 Filed 6-1-11; 8:45 am]
BILLING CODE 3410-02-P
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