Irish Potatoes Grown in Colorado; Change in Handling Regulation for Area No. 2

DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 948

[Docket No. FV97-948-1 FIR]

Irish Potatoes Grown in Colorado; Change in Handling Regulation

for Area No. 2

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Final rule.

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SUMMARY: The Department of Agriculture (Department) is adopting as a

final rule, without change, the provisions of an interim final rule

which changed the size requirement from a 2 inch minimum diameter or 4

ounce minimum weight to a 1\7/8\ inch minimum diameter for Centennial

Russet variety potatoes grown in Area No. 2 of Colorado. The size

requirement for Centennial Russets had been larger than the requirement

for similar long varieties. The change recognized the similarity among

all long varieties and provided potato handlers with more marketing

flexibility, growers with increased returns, and consumers with a

greater supply of potatoes.

EFFECTIVE DATE: January 20, 1998.

FOR FURTHER INFORMATION CONTACT: Dennis L. West, Northwest Marketing

Field Office, Marketing Order Administration Branch, F&V, AMS, USDA,

1220 SW Third Avenue, room 369, Portland, Oregon 97204; telephone:

(503) 326-2724, Fax: (503) 326-7440, or Anne M. Dec, Marketing Order

Administration Branch, F&V, AMS, USDA, room 2525-S, P.O. Box 96456,

Washington, DC 20090-6456; telephone: (202) 720-2491, Fax: (202) 205-

6632. Small businesses may request information on compliance with this

regulation by contacting Jay Guerber, Marketing Order Administration

Branch, Fruit and Vegetable Programs, AMS, USDA, room 2525-S, P.O. Box

96456, Washington, DC 20090-6456; telephone: (202) 720-2491, Fax: (202)

205-6632.

SUPPLEMENTARY INFORMATION: This rule is issued under Marketing

Agreement No. 97 and Marketing Order No. 948 (7 CFR part 948), both as

amended, regulating the handling of Irish potatoes grown in Colorado.

The marketing agreement and order are authorized by the Agricultural

Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674),

hereinafter referred to as the ``Act.''

The Department 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 the Secretary 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 the Secretary 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 the Secretary's

ruling on the petition, provided an action is filed not later than 20

days after date of the entry of the ruling.

The interim rule relaxed the size requirement for Centennial Russet

variety potatoes grown in Area No. 2 from the current 2 inch minimum

diameter or 4-ounce minimum weight to a 1\7/8\ inch minimum diameter

with no minimum weight option. This change enabled handlers to market a

larger portion of the crop in fresh market outlets and improved the

marketing of Colorado potatoes. Further, all Russet varieties are now

required to meet the same size specifications.

Section 948.22 (7 CFR 948.22) authorizes the issuance of

regulations for grade, size, quality, maturity, and pack for any

variety or varieties of potatoes grown in different portions of the

production area during any period.

Section 948.4 of the order defines the counties included in Area

No. 2, which is commonly known as the San Luis Valley. The Colorado

Potato Administrative Committee, San Luis Valley Office (Area No. 2)

(Committee), is the agency responsible for local administration of the

Federal marketing order in Area No. 2.

Size regulations for potatoes grown in Area No. 2 are currently in

effect under Sec. 948.386. Centennial Russet variety potatoes had to be

2 inches minimum diameter or 4 ounces minimum weight. Other long

varieties, which include other Russet varieties, had to be 1\7/8\ inch

minimum diameter with no minimum weight option. The interim final rule

amended that section by removing the weight requirement option for

Centennial Russets and reducing the minimum diameter requirement for

Centennial Russets to 1\7/8\ inches. Thus, all Russet varieties are now

required to meet the same minimum diameter. The Committee unanimously

recommended this change at its August 21, 1997, meeting.

When the previous size regulations were established, the Centennial

Russet was the dominant variety in the San Luis Valley (Area No. 2),

accounting for approximately 65-75 percent of the crop. The other major

Russet variety grown in the San Luis Valley was the Russet Burbank, a

slimmer potato which was required to meet the 1\7/8\ inch minimum

diameter. Today, the Russet

[[Page 66498]]

Burbank has been phased out completely and the Centennial Russet

accounts for less than 10 percent of the crop. The Burbank and the

Centennial have been replaced by other varieties, including new Russet

varieties which have the same bulky features as the Centennial.

The new varieties, however, were required only to meet the 1\7/8\

inch minimum diameter, not the 2 inch minimum diameter or 4 ounce

minimum weight requirements that Centennial Russets were required to

meet. The industry was concerned that Centennial Russets could be

misrepresented as one of the new Russet varieties, so as to comply only

with the smaller size requirement. The interim final rule, by

establishing the same size requirements for all Russet varieties,

eliminated that possibility.

Reducing the size requirement allowed handlers to market a larger

portion of the Centennial Russet crop in fresh outlets. That change

improved the marketing of Colorado potatoes and increased returns to

producers.

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 final regulatory flexibility analysis.

There are approximately 118 handlers of Colorado Area 2 potatoes

who are subject to regulation under the marketing order and

approximately 280 producers of Colorado potatoes in the regulated area.

Small agricultural service firms have been defined by the Small

Business Administration (13 CFR 121.601) as those having annual

receipts of less than $5,000,000, and small agricultural producers are

defined as those whose annual receipts are less than $500,000. The

majority of potato producers and handlers regulated under the marketing

agreement and order may be classified as small entities.

Section 948.22 of the order authorizes the issuance of handling

regulations for potatoes grown in Colorado. The interim final rule

relaxed the size requirement for Centennial Russet variety potatoes

grown in Area No. 2 from a 2 inch minimum diameter or 4-ounce minimum

weight to a 1\7/8\ minimum diameter with no weight option. This change

enabled handlers to market a larger portion of the crop in fresh market

outlets and improved the marketing of Colorado potatoes. There is no

available information detailing how many potatoes this relaxation

allowed to be marketed which could not have been marketed prior to this

action.

The rule also eliminated a potential compliance problem, as all

Russet varieties are now required to meet the same size specifications.

Other Russet varieties were required only to meet the smaller size

regulation of 1\7/8\ inch diameter. Because some of the new Russet

varieties with characteristics very similar to Centennials faced the

smaller size requirement and have surpassed Centennials in popularity,

there was a possibility that Centennials could have been misrepresented

as one of the new Russet varieties.

The only viable alternative to reducing the size requirement for

Centennials was to increase the size requirement for all other long

potatoes, including all other Russets. The Committee surveyed 270

growers from Area No. 2 concerning the grade and size regulation. Both

options for equalizing the size regulations for all long potatoes were

included in the survey. The participating growers rejected increasing

the size requirements for all other long potatoes, which would have

reduced the number of Colorado potatoes on the market, in favor of the

size requirement reduction established by the interim final rule.

This rule will 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 sectors. In addition, the Department 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 Colorado potato industry and all interested persons were invited to

attend the meeting and participate in Committee deliberations. Like all

Committee meetings, the August 21, 1997, meeting was a public meeting

and all entities, both large and small, were able to express their

views on this issue. The Committee itself is composed of 12 members, of

which 5 are handlers and 7 are producers, the majority of whom are

small entities.

Also, the Committee surveyed 270 producers in Area No. 2, the

majority of whom are small entities, concerning regulation during the

1997-98 potato shipping season. This rule reflects the outcome of that

survey of predominantly small growers.

An interim final rule concerning this action was published in the

Federal Register on September 26, 1997 (62 FR 50479). Copies of the

rule were mailed or sent via facsimile to all Committee members and

Area 2 potato producers and handlers. Finally, the rule was made

available through the Internet by the Office of the Federal Register. A

60-day comment period was provided. No comments were received.

After consideration of all relevant material presented, including

the Committee's recommendation, and other information, it is found that

this rule, as hereinafter set forth, will tend to effectuate the

declared policy of the Act.

List of Subjects in 7 CFR Part 948

Marketing agreements, Potatoes, Reporting and recordkeeping

requirements.

PART 948--IRISH POTATOES GROWN IN COLORADO

Accordingly, the interim final rule amending 7 CFR part 948 which

was published at 62 FR 50479 on September 26, 1997, is adopted as a

final rule without change.

Dated: December 15, 1997.

Robert C. Keeney,

Deputy Administrator, Fruit and Vegetable Programs.

[FR Doc. 97-33167 Filed 12-18-97; 8:45 am]

BILLING CODE 3410-02-P