This section of the FEDERAL REGISTER

contains notices to the public of the proposed

issuance of rules and regulations. The

purpose of these notices is to give interested

persons an opportunity to participate in the

rule making prior to the adoption of the final

rules.

Proposed Rules Federal Register

53842 

Vol. 76, No. 168 

Tuesday, August 30, 2011 

DEPARTMENT OF AGRICULTURE 

Agricultural Marketing Service 

7 CFR Part 948 

[Doc. No. AMS–FV–11–0051; FV11–948–1 

PR] 

Irish Potatoes Grown in Colorado; 

Modification of the Handling 

Regulation for Area No. 3 

AGENCY: Agricultural Marketing Service, 

USDA. 

ACTION: Proposed rule. 

SUMMARY: This rule invites comments 

on revisions to the size requirements 

currently prescribed under the Colorado 

potato marketing order (order). The 

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 

would modify the size requirements for 

handling small potatoes that measure 

under 17⁄8 inches in diameter. This rule 

would allow the handling of two size 

ranges, 3⁄4-inch minimum diameter to 

17⁄8 inches maximum diameter and Size 

B (11⁄2 to 21⁄4 inches), if such potatoes 

otherwise meet the requirements of the 

U.S. No. 1 grade. The revisions would 

promote orderly marketing by ensuring 

that only potatoes of certain similar size 

profiles are packed and shipped in the 

same container. This rule is expected to 

benefit the producers, handlers, and 

consumers of Colorado potatoes. 

DATES: Comments must be received by 

October 31, 2011. 

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 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: 

Barry Broadbent 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: 

Barry.Broadbent@ams.usda.gov or 

GaryD.Olson@ams.usda.gov. 

Small businesses may request 

information on complying with this 

regulation by contacting Laurel May, 

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: 

Laurel.May@ams.usda.gov. 

SUPPLEMENTARY INFORMATION: This 

proposal 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 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 proposal invites comments on 

revisions to the size requirements 

currently prescribed under the order. 

This proposed rule would revise the 

size requirements for small U.S. No. 1 

grade potatoes handled under the 

Colorado Area 3 handling regulations. 

The rule would modify the current size 

requirements to establish allowable size 

ranges for potatoes that measure less 

than 17⁄8 inches. This rule would allow 

potatoes that measure 3⁄4-inch minimum 

diameter to 17⁄8 inches maximum 

diameter to be handled if such potatoes 

otherwise meet the requirements of the 

U.S. No. 1 grade. In addition, Size B 

potatoes (11⁄2 inches minimum diameter 

to 21⁄4 inches maximum diameter) 

would also be allowed to be handled if 

they otherwise meet the U.S. No. 1 

grade requirements. The size 

requirements for U.S. No. 2 and better 

grade potatoes that are 17⁄8 inches 

minimum diameter and larger would 

not be affected by this proposed change. 

The rule was unanimously 

recommended by the Committee at a 

meeting on May 12, 2011. The proposed 

changes are expected to enhance orderly 

marketing conditions and increase 

returns for producers and handlers. 

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 


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Federal Register / Vol. 76, No. 168 / Tuesday, August 30, 2011 / Proposed Rules 53843 

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. 

Section 948.387(a) currently requires 

that all varieties of potatoes handled 

under the order must be U.S. No. 2 or 

better grade and 17⁄8 inches minimum 

diameter or 4 ounces minimum weight, 

except that potatoes that meet the 

requirements of the U.S. No. 1 grade 

may be 3⁄4-inch minimum diameter. 

The Committee met on May 12, 2011, 

to discuss revising the size requirements 

in the handling regulations. As a result 

of the deliberations, the Committee 

unanimously recommended modifying 

the size requirements for potatoes that 

meet the U.S. No. 1 grade. Specifically, 

the Committee recommended 

establishing allowable size ranges for 

small size (under 17⁄8 inches in 

diameter) U.S. No. 1 grade and better 

potatoes. Two allowable size ranges, 3⁄4- 

inch minimum diameter to 17⁄8 inches 

maximum diameter and Size B (11⁄2

inches minimum diameter to 21⁄4 inches 

maximum diameter), would be 

established for potatoes that otherwise 

meet or exceed the minimum 

requirements of the U.S. No. 1 grade 

standard. The proposed allowable size 

ranges would replace the current 3⁄4- 

inch minimum diameter size 

requirement allowance now in effect. 

The proposed revision would not 

prohibit the handling of any of the small 

size potatoes that are currently allowed 

to be handled under the order. All 

potatoes that measure 3⁄4-inch minimum 

diameter and larger and meet the 

requirements of the U.S. No. 1 grade 

could continue to be handled under the 

order. However, in the future, such 

small potatoes would be required to be 

handled subject to the new size 

requirements, with like size potatoes 

packed into certain size profiles. The 

handling of all other potatoes currently 

permitted under the order would 

continue without change, subject to the 

U.S. No. 2 or better, 17⁄8 inches 

minimum diameter size or 4 ounces 

minimum weight requirements. 

The Committee has observed that, in 

recent years, consumer demand has 

been increasing for smaller size potatoes 

and that those size potatoes often 

command premium prices. The 

Committee previously responded to this 

trend by modifying the size 

requirements in the handling 

regulations to allow for the handling of 

3⁄4-inch minimum diameter and larger 

size potatoes, if the potatoes otherwise 

meet the requirements of the U.S. No. 1 

grade. However, the current 3⁄4-inch 

minimum size requirement has no other 

parameters associated with it and allows 

for the commingling of small size 

potatoes (under 17⁄8 inches in diameter) 

with larger size potatoes (over 17⁄8

inches in diameter). 

The Committee reiterated that quality 

assurance is important to the industry 

and to consumers. Providing consistent, 

high quality potatoes is necessary to 

maintain consumer confidence. The 

potential for mixing small size potatoes 

with larger size potatoes in the same 

container is perceived by the Committee 

as being contrary to the goals of 

maintaining orderly marketing 

conditions and ensuring that only 

consistent, high quality potatoes from 

the production area enter the market. As 

such, the Committee felt that 

implementing the proposed revisions to 

the size requirements would help to 

maintain the consistency and quality of 

the product while still allowing the 

industry the maneuverability to respond 

to changing consumer preferences. 

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 rules issued thereunder, are 

unique in that they are brought about 

through group action of essentially 

small entities acting on their own 

behalf. 

Based on Committee data, there are 

eight producers (the majority of whom 

are also handlers) in the regulated area 

and eight handlers (the majority of 

whom are also producers) subject to 

regulation under the order. Small 

agricultural producers are defined by 

the Small Business Administration (13 

CFR 121.201) as those having annual 

receipts of less than $750,000, and small 

agricultural service firms are defined as 

those having annual receipts of less than 

$7,000,000. 

According to the Committee, 981,609 

hundredweight of Colorado Area No. 3 

potatoes were produced for the fresh 

market during the 2009–2010 season. 

Based on National Agricultural 

Statistics Service (NASS) data, the 

average producer price for Colorado 

summer potatoes for that season was 

$6.90 per hundredweight. The average 

annual producer revenue for the eight 

Colorado Area No. 3 potato producers is 

therefore calculated to be approximately 

$846,637. Using Committee data 

regarding each individual handler’s 

total shipments during the 2009–2010 

fiscal period and a Committee estimated 

average f.o.b. price for 2010 of $9.10 per 

hundredweight ($6.90 per 

hundredweight producer price plus 

estimated packing and handling costs of 

$2.20 per hundredweight), none of the 

Colorado Area No. 3 potato handlers 

ship over $7,000,000 worth of potatoes. 

Thus, all of the handlers and many of 

the producers of Colorado Area No. 3 

potatoes may be classified as small 

entities. 

This rule would revise the current 

size requirements contained in the 

order’s handling regulations. The rule 

would revise the size requirements to 

establish two allowable size ranges, 3⁄4- 

inch minimum to 17⁄8 inches maximum 

diameter and Size B, if such potatoes 

otherwise meet the requirements of the 

U.S. No. 1 grade standard. The revisions 

would promote orderly marketing by 

ensuring that only potatoes of a similar 

size profile are shipped in the same 

container. 

The authority for regulating grade and 

size is provided in § 948.22 of the order. 

Section 948.387(a) of the order’s 

administrative rules and regulations 

prescribes the applicable size 

requirements. 

This rule is expected to have a 

beneficial impact on handlers and 

producers by maintaining the superior 

reputation of the industry and ensuring 

that only consistent, high quality 

potatoes are shipped from the 

production area. There should be no 

extra cost to producers or handlers as a 

result of the proposed changes because 

current harvesting and handling 

methods can accommodate the sorting 

of these smaller potatoes. The 

Committee believes that this revision 

should translate into greater returns for 

handlers and producers over time. 

Neither NASS nor the Committee 

compiles statistics relating to the 


srobinson on DSK4SPTVN1PROD with PROPOSALS
53844 Federal Register / Vol. 76, No. 168 / Tuesday, August 30, 2011 / Proposed Rules 

production of potatoes measuring less 

than 17⁄8 inches in diameter. The 

Committee has relied on information 

provided by producers and handlers 

familiar with the small potato market for 

its recommendation. 

As small potatoes have grown in 

popularity with consumers, high quality 

potatoes from Colorado have been in 

demand. The Committee believes that 

modifying the size requirements for 

such small potatoes would maintain 

their consistency and increase their 

quality reputation in the market. The 

proposed changes are expected to 

increase sales of Colorado potatoes and 

to benefit the Colorado potato industry. 

The benefits of this rule are not 

expected to be disproportionately 

greater or lesser for small entities than 

for large entities. 

The Committee discussed alternatives 

to this recommendation, including 

taking no action on the matter. One 

alternative discussed was to use other 

size ranges other than the ranges 

proposed. The Committee believed that 

the size ranges proposed offered the best 

compromise between regulatory control 

and accommodation for the marketing 

needs of the handlers. Another 

alternative was to establish just one 3⁄4- 

inch to 17⁄8 inches size range for small 

potatoes. However, that alternative was 

rejected because it would not have 

accommodated the mid-size range 

potatoes that some handlers prefer to 

ship. Thus, the Committee unanimously 

agreed that their recommendation 

reflected the best alternative available to 

achieve the desired result. 

In accordance with the Paperwork 

Reduction Act of 1995, (44 U.S.C. 

Chapter 35), the order’s information 

collection requirements have been 

previously approved by the Office of 

Management and Budget (OMB) and 

assigned OMB No. 0581–0178. No 

changes in those requirements as a 

result of this action are necessary. 

Should any changes become necessary, 

they would be submitted to OMB for 

approval. 

This action would 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. In addition, USDA has 

not identified any relevant Federal rules 

that duplicate, overlap or conflict with 

this proposed 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 

potato industry, and all interested 

persons were invited to attend the 

meeting and participate in Committee 

deliberations. Like all Committee 

meetings, the May 12, 2011, meeting 

was a public meeting and all entities, 

both large and small, were able to 

express their views on this issue. 

Finally, interested persons are invited to 

submit comments on this proposed 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/ 

MarketingOrdersSmallBusinessGuide. 

Any questions about the compliance 

guide should be sent to Laurel May at 

the previously mentioned address in the 

FOR FURTHER INFORMATION CONTACT

section. 

A 60-day comment period is provided 

to allow interested persons to respond 

to this proposal. All written comments 

timely received will be considered 

before a final determination is made on 

this matter. 

List of Subjects in 7 CFR Part 948 

Marketing agreements, Potatoes, 

Reporting and recordkeeping 

requirements. 

For the reasons set forth in the 

preamble, 7 CFR part 948 is proposed to 

be amended as follows: 

PART 948—IRISH POTATOES GROWN 

IN COLORADO 

1. The authority citation for 7 CFR 

part 948 continues to read as follows: 

Authority: 7 U.S.C. 601–674. 

2. In § 948.387, revise paragraph (a) 

and add paragraphs (a)(1) through (a)(3) 

to read as follows: 

§ 948.387 Handling regulation. 

* * * * * 

(a) Minimum grade and size 

requirements—All varieties. (1) U.S. No. 

2 or better grade, 17⁄8 inches minimum 

diameter or 4 ounces minimum weight. 

(2) U.S. No.1 grade, Size B (11⁄2 inches 

minimum to 21⁄4 inches maximum 

diameter). 

(3) U.S. No.1 grade, 3⁄4-inch minimum 

to 17⁄8 inches maximum diameter. 

* * * * * 

Dated: August 19, 2011. 

David R. Shipman, 

Acting Administrator, Agricultural Marketing 

Service. 

[FR Doc. 2011–22111 Filed 8–29–11; 8:45 am] 

BILLING CODE 3410–02–P 

DEPARTMENT OF AGRICULTURE 

Agricultural Marketing Service 

7 CFR Part 1150 

[Document No. AMS–DA–11–0007; DA–11– 

02] 

National Dairy Promotion and 

Research Program; Invitation To 

Submit Comments on Proposed 

Amendments to the Order 

AGENCY: Agricultural Marketing Service, 

USDA. 

ACTION: Proposed rule. 

SUMMARY: This document invites 

comments on a proposed amendment to 

the Dairy Promotion and Research Order 

(Dairy Order). The proposal would 

modify the number of National Dairy 

Promotion and Research Board (Dairy 

Board) members in eight regions, merge 

Region 8 and Region 10, merge Region 

12 and Region 13, and apportion Idaho 

as a separate region. The total number 

of domestic Dairy Board members 

would remain the same at 36 and the 

total number of regions would be 

reduced from 13 to 12. This 

modification was requested by the Dairy 

Board, which administers the Dairy 

Order, to better reflect the geographic 

distribution of milk production in the 

United States. 

DATES: Comments must be submitted on 

or before September 14, 2011. 

ADDRESSES: Comments on this proposed 

rule should be identified with the 

docket number AMS–DA–11–0007; DA– 

11–02. Commenters should identify the 

date and page number of the issue of the 

Proposed Rule. Interested persons may 

comment on this proposed rule using 

either of the following procedures: 

• Mail: Comments may be submitted 

by mail to Whitney A. Rick, Chief, 

Promotion and Research Branch, Dairy 

Programs, AMS, USDA, 1400 

Independence Ave., SW., Room 2958–S, 

Stop 0233, Washington, DC 20250– 

0233. 

• Fax: Comments may be faxed to 

(202) 720–0285. 

• E-mail: Comments may be e-mailed 

to Whitney.Rick@ams.usda.gov. 

• Internet: http:// 

www.regulations.gov. 

All comments to this proposed rule, 

submitted by the above procedures will 


srobinson on DSK4SPTVN1PROD with PROPOSALS