This section of the FEDERAL REGISTER

contains regulatory documents having general

applicability and legal effect, most of which

are keyed to and codified in the Code of

Federal Regulations, which is published under

50 titles pursuant to 44 U.S.C. 1510.

The Code of Federal Regulations is sold by

the Superintendent of Documents. Prices of

new books are listed in the first FEDERAL

REGISTER issue of each week.

Rules and Regulations Federal Register

17589 

Vol. 74, No. 72 

Thursday, April 16, 2009 

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. 

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 17⁄8 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 17⁄8 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 § 948.22. 

Section 948.40 provides that 

whenever the handling of potatoes is 

regulated pursuant to §§ 948.20 through 


tjames on PRODPC75 with RULES
17590 Federal Register / Vol. 74, No. 72 / Thursday, April 16, 2009 / Rules and Regulations 

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 § 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 17⁄8 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 §§ 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 


tjames on PRODPC75 with RULES
Federal Register / Vol. 74, No. 72 / Thursday, April 16, 2009 / Rules and Regulations 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=Marketing

OrdersSmallBusinessGuide. 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. 

■ For the reasons set forth in the 

preamble, 7 CFR part 948 is 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. Amend § 948.386 by revising 

paragraph (a)(2) to read as follows: 

§ 948.386 Handling Regulation. 

* * * * * 

(a) * * * 

(2) All other varieties. U.S. No. 2, or 

better grade, 17⁄8 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] 

BILLING CODE 

DEPARTMENT OF AGRICULTURE 

Agricultural Marketing Service 

7 CFR Part 966 

[Doc. No. AMS FV–08–0090; FVO9–966–1 

FIR] 

Tomatoes Grown in Florida; Partial 

Exemption to the Minimum Grade 

Requirements 

AGENCY: Agricultural Marketing Service, 

USDA. 

ACTION: Final rule. 

SUMMARY: The Department of 

Agriculture (USDA) is adopting, as a 

final rule, without change, an interim 

final rule providing a partial exemption 

to the minimum grade requirements 

under the marketing order for tomatoes 

grown in Florida (order). The order 

regulates the handling of tomatoes 

grown in Florida and is administered 

locally by the Florida Tomato 

Committee (Committee). Absent an 

exemption, Florida tomatoes covered by 

the order must meet at least a U.S. No. 

2 grade before they can be shipped and 

sold outside the regulated area. This 

rule continues in effect the action that 

exempted Vintage RipesTM tomatoes 

(Vintage RipesTM) from the shape 

requirements associated with the U.S. 

No. 2 grade. This change increases the 

volume of Vintage RipesTM that meets 

the order requirements, and helps 

increase shipments and availability of 

these tomatoes. 

DATES: Effective Date: May 18, 2009. 

FOR FURTHER INFORMATION CONTACT: 

Doris Jamieson, Marketing Specialist, or 

Christian Nissen, Regional Manager, 

Southeast Marketing Field Office, 

Marketing Order Administration 

Branch, Fruit and Vegetable Programs, 

AMS, USDA; Telephone: (863) 324– 

3375, Fax: (863) 325–8793, or e-mail: 

Doris.Jamieson@usda.gov or 

Christian.Nissen@usda.gov. 

Small businesses may request 

information on complying with this 

regulation by contacting Jay Guerber, 

Marketing Order Administration 

Branch, Fruit and Vegetable Programs, 

AMS, USDA, 1400 Independence 

Avenue, SW., STOP 0237, Washington, 

DC 20250–0237; Telephone: (202) 720– 

2491, Fax: (202) 720–8938, or e-mail: 

Jay.Guerber@usda.gov. 

SUPPLEMENTARY INFORMATION: This rule 

is issued under Marketing Agreement 

No. 125 and Marketing Order No. 966, 

both as amended (7 CFR part 966), 

regulating the handling of tomatoes 

grown in certain designated counties in 

Florida, hereinafter referred to as the 

‘‘order.’’ The marketing agreement and 

order are effective under the 

Agricultural Marketing Agreement Act 

of 1937, as amended (7 U.S.C. 601–674), 

hereinafter referred to as the ‘‘Act.’’ 

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 


tjames on PRODPC75 with RULES