Irish Potatoes Grown in Colorado; Modification of the General Cull and Handling Regulation for Area No. 2, 35743-35746 [2013-14175]

Download as PDF 35743 Rules and Regulations Federal Register Vol. 78, No. 115 Friday, June 14, 2013 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. DEPARTMENT OF AGRICULTURE Agricultural Marketing Service 7 CFR Part 948 [Doc. No. AMS–FV–13–0001; FV13–948–1 IR] Irish Potatoes Grown in Colorado; Modification of the General Cull and Handling Regulation for Area No. 2 Agricultural Marketing Service, USDA. ACTION: Interim rule with request for comments. mstockstill on DSK4VPTVN1PROD with RULES AGENCY: SUMMARY: This interim rule modifies the size requirements for potatoes handled under the Colorado potato marketing order, Area No. 2 (order). The order regulates the handling of Irish potatoes grown in Colorado and is administered locally by the Colorado Potato Administrative Committee, Area No. 2 (Committee). This action revises the 1inch minimum to 13⁄4-inch maximum diameter size allowance for U.S. Commercial and better grade potatoes contained in the order’s handling regulation for Area 2 to 3⁄4-inch minimum to 15⁄8-inch maximum diameter. In addition, this action revises the minimum size requirement under the order’s general cull regulation to 3⁄4inch diameter. As required under section 8e of the Agricultural Marketing Agreement Act of 1937, this action also revises the size requirements for imported round type potatoes, other than red-skinned varieties. This change is expected to facilitate the handling and marketing of the Area No. 2 potato crop, provide producers and handlers with increased returns, and offer consumers increased potato purchasing options. DATES: Effective June 15, 2013; comments received by August 13, 2013 will be considered prior to issuance of a final rule. VerDate Mar<15>2010 15:51 Jun 13, 2013 Jkt 229001 Interested persons are invited to submit written comments concerning this interim rule. Comments should be sent to the Docket Clerk, Marketing Order and Agreement Division, Fruit and Vegetable Program, AMS, USDA, 1400 Independence Avenue SW., STOP 0237, Washington, DC 20250–0237; Fax: (202) 720–8938; or Internet: https://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: https:// www.regulations.gov. All comments submitted in response to this interim 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, Marketing Specialist, or Gary Olson, Regional Director, Northwest Marketing Field Office, Marketing Order and Agreement Division, Fruit and Vegetable Program, AMS, USDA; Telephone: (503) 326– 2724, Fax: (503) 326–7440, or Email: Barry.Broadbent@ams.usda.gov or GaryD.Olson@ams.usda.gov. Small businesses may request information on complying with this regulation by contacting Jeffrey Smutny, Marketing Order and Agreement Division, Fruit and Vegetable Program, AMS, USDA, 1400 Independence Avenue SW., STOP 0237, Washington, DC 20250–0237; Telephone: (202) 720– 2491, Fax: (202) 720–8938, or Email: Jeffrey.Smutny@ams.usda.gov. SUPPLEMENTARY INFORMATION: This interim 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.’’ This interim rule is also issued under section 8e of the Act, which provides that whenever certain specified commodities, including potatoes, are regulated under a Federal marketing order, the importation of these ADDRESSES: PO 00000 Frm 00001 Fmt 4700 Sfmt 4700 commodities into the United States is prohibited unless they meet the same or comparable grade, size, quality, or maturity requirements as those in effect for the domestically produced commodities. The Department of Agriculture (USDA) is issuing this interim rule in conformance with Executive Order 12866. This interim rule has been reviewed under Executive Order 12988, Civil Justice Reform. This interim 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 regulation issued under section 8e of the Act. This action modifies the size requirements for potatoes handled under the order’s general cull regulation and handling regulation for Area 2. This interim rule relaxes the 1-inch minimum to 13⁄4-inch maximum size allowance for U.S. Commercial or better grade potatoes handled under the order to 3⁄4-inch minimum to 15⁄8-inch maximum diameter (Creamer size, as designated in the U.S. Standards for Grades of Potatoes). This action also relaxes the minimum size requirement of the general cull regulation to 3⁄4-inch diameter. Prior to this change, the smallest potatoes that could be shipped outside the State of Colorado under the order were 1-inch to 13⁄4-inch diameter potatoes that met or exceeded the requirements of the U.S. Commercial E:\FR\FM\14JNR1.SGM 14JNR1 mstockstill on DSK4VPTVN1PROD with RULES 35744 Federal Register / Vol. 78, No. 115 / Friday, June 14, 2013 / Rules and Regulations grade. Potatoes measuring less than 1inch were not allowed to be shipped outside the State, regardless of grade. This action is a relaxation of the order’s regulations and will allow shipments of Creamer size potatoes (3⁄4-inch to 15⁄8inch diameter), if such potatoes otherwise meet or exceed the requirements of the U.S. Commercial grade. None of the other size requirements contained in the handling regulation are impacted by this action. This change was unanimously recommended by the Committee at a meeting held on December 20, 2012. Section 948.22 authorizes the issuance of grade, size, quality, maturity, pack, and container regulations for potatoes grown in the order’s production area. Section 948.21 authorizes the modification, suspension, or termination of regulations issued pursuant to § 948.22. Section 948.20 establishes the requirements of the general cull regulation. The Secretary may suspend or modify the general cull regulation provisions contained in § 948.20 upon the recommendation of the Committee, or on other available information. Under the Colorado potato marketing order, the State of Colorado is divided into three areas of regulation for marketing order purposes. These include: Area 1, commonly known as the Western Slope; Area 2, commonly known as San Luis Valley; and, Area 3, which consists of the remaining producing areas within the State of Colorado not included in the definition of Area 1 or Area 2. Currently, the order only regulates the handling of potatoes produced in Area 2 and Area 3. Regulation for Area 1 has been suspended. The grade, size, and maturity requirements specific to the handling of potatoes grown in Area 2 are contained in § 948.386 of the order. Additionally, the minimum grade and size requirements established under the order’s general cull regulation are contained in § 948.126. The handling regulation requires that all potatoes handled under the order meet the minimum requirements of the U.S. No. 2 grade, and be 2 inches or greater in diameter. Smaller size potatoes may be handled, if such potatoes otherwise meet the requirements of certain higher grade standards. For all varieties, size B potatoes (11⁄2-inch minimum to 21⁄4-inch maximum diameter as designated in the U.S. Standards for Grade of Potatoes) may be handled under the order, if such potatoes meet or exceed the requirements of the U.S. Commercial grade. In addition, prior to this interim rule, 1-inch to 13⁄4-inch diameter VerDate Mar<15>2010 15:51 Jun 13, 2013 Jkt 229001 potatoes that met or exceeded the requirements of the U.S. Commercial grade were also allowed to be handled under the order. At the December 20, 2012, Committee meeting, industry participants indicated to the Committee that there is an emerging market for smaller size U.S. Commercial grade potatoes sold in consumer packs and included in certain value added potato products. They further stated that the order’s current size requirements (1-inch diameter being the smallest potato allowed to be handled) precludes them from supplying this growing and profitable market. Relaxing the size requirements to allow shipments of such higher grade, smaller size potatoes will allow area handlers to compete with other domestic potato producing regions for this developing market segment. This change effectively lowers the allowable minimum diameter for U.S. Commercial and better grade potatoes to 3⁄4-inch, which is in line with the minimum size requirements contained in the handling regulations of the other domestic potato marketing orders. Relaxing the size requirements to allow shipments of smaller size potatoes will make more small potatoes available to consumers and will allow Area 2 handlers to move more of the area’s potato production into the fresh market. This change is expected to benefit producers, handlers, and consumers of potatoes. Section 8e of the Act provides that when certain domestically produced commodities, including potatoes, are regulated under a Federal marketing order, imports of that commodity must meet the same or comparable grade, size, quality, and maturity requirements as the domestically produced product. Minimum grade, size, quality, and maturity requirements for potatoes imported into the United States are currently in effect under the import regulations contained in § 980.1 (7 CFR 980.1). The import regulations distinguish between each of the three major types of potatoes handled domestically: Red-skinned, round types; long types; and all other round types. Section 980.1(a)(2)(ii) specifies that imports of round type potatoes, other than red-skinned varieties, are in most direct competition with potatoes of the same type produced in Area 2, Colorado (San Luis Valley) and covered by Marketing Order No. 948. Further, section 980.1(b)(2) stipulates that, through the entire year, the grade, size, quality, and maturity requirements of Marketing Order No. 948 applicable to potatoes of the round type, other than red-skinned varieties, shall be the PO 00000 Frm 00002 Fmt 4700 Sfmt 4700 respective grade, size, quality, and maturity requirements for imports of that type potatoes. As such, the relaxation of the size requirements effectuated by this interim rule for domestic potatoes covered by the order likewise relaxes the size requirements for U.S. Commercial and better grade round type potatoes, other than redskinned varieties, that are imported into the U.S. No change to the regulatory text is necessary to accomplish this action. Prior to this action, 1-inch minimum diameter to 13⁄4-inch maximum diameter was the smallest size range of potatoes allowed to be imported. As a result of the change in the order’s handling regulation, and pursuant to section 8e of the Act, importers may now ship Creamer size (3⁄4-inch minimum to 15⁄8-inch maximum diameter) U.S. Commercial and better grade round type potatoes, other than red-skinned varieties, into the U.S. market. This action allows potato handlers and importers to better respond to the changing demands of the U.S. potato market. The consumers’ increasing preference for small size potatoes applies to imported potatoes as well as domestic potatoes. Thus, domestic handlers and importers should benefit by increasing sales to this emerging domestic market segment. 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 approximately 80 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 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. (13 CFR 121.201) E:\FR\FM\14JNR1.SGM 14JNR1 mstockstill on DSK4VPTVN1PROD with RULES Federal Register / Vol. 78, No. 115 / Friday, June 14, 2013 / Rules and Regulations During the 2011–2012 marketing year, the most recent full marketing year for which statistics are available, 15,072,963 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 $12.60 per hundredweight, the Committee estimates that 66 Area No. 2 handlers, or about 83 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, the average producer price for the 2011 Colorado fall potato crop was $10.70 per hundredweight. Multiplying $10.70 by the shipment quantity of 15,072,963 hundredweight yields an annual crop revenue estimate of $161,280,704. The average annual fresh potato revenue for each of the 180 Colorado Area No. 2 potato producers is therefore calculated to be approximately $896,000 ($161,280,704 divided by 180), which is greater than the SBA threshold of $750,000. Consequently, on average, many of the Area No. 2 Colorado potato producers may not be classified as small entities. This interim rule relaxes the size allowance for U.S. Commercial and better grade potatoes in the order’s handling regulation and modifies the size requirement in the order’s general cull regulation. Prior to this action, the smallest size range allowed to be handled under the order was 1-inch minimum diameter to 13⁄4-inch maximum diameter if the potatoes were otherwise U.S. Commercial or better grade. As a result of this interim rule, Creamer size (3⁄4-inch to 15⁄8-inch diameter) U.S. Commercial and better grade potatoes are now allowed be handled under the order. All other size requirements in the order’s handling regulation remain unchanged. Authority for this action is contained in §§ 948.20, 948.21, and 948.22. This relaxation is expected to benefit the producers, handlers, and consumers of Colorado Area 2 potatoes by allowing a greater quantity of fresh potatoes from the production area to enter the market. This anticipated increase in volume is expected to translate into greater returns for handlers and producers, and more purchasing options for consumers. After discussing possible alternatives to this interim rule, the Committee determined that a relaxation in the size requirement for U.S. Commercial and better grade potatoes will meet the industry’s current needs while maintaining the potato quality VerDate Mar<15>2010 15:51 Jun 13, 2013 Jkt 229001 objectives of the order. During its deliberations, the Committee considered making no changes to the handling regulation, as well as relaxing the size requirement for all U.S. No. 2 and better grade potatoes. The Committee believes that a relaxation in the handling regulation for small potatoes is necessary to allow handlers to pursue new markets, but lowering the size requirements for all potatoes that are U.S. No. 2 and better grade could erode the quality reputation of the area’s production. Therefore, the Committee found that there were no other viable alternatives to the relaxation of the size requirements as recommended. 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 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 (Generic Vegetable and Specialty Crops). 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 interim rule will not impose any additional reporting or recordkeeping requirements on either small or large potato handlers and 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. In addition, USDA has not identified any relevant Federal rules that duplicate, overlap, or conflict with this interim 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 December 20, 2012, 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 interim 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: www.ams.usda.gov/ PO 00000 Frm 00003 Fmt 4700 Sfmt 4700 35745 MarketingOrdersSmallBusinessGuide. Any questions about the compliance guide should be sent to Jeffrey Smutny at the previously mentioned address in the FOR FURTHER INFORMATION CONTACT section. This interim rule invites comments on a modification of the size requirements prescribed under the Colorado potato marketing order. Any comments received will be considered prior to the finalization of this interim rule. After consideration of all relevant material presented, including the Committee’s recommendation, and other information, it is hereby found that this interim rule, as hereinafter set forth, will tend to effectuate the declared policy of the Act. In accordance with section 8e of the Act, the United States Trade Representative has concurred with the issuance of this interim rule. 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 interim rule into effect and that good cause exists for not postponing the effective date of this interim rule until 30 days after publication in the Federal Register because: (1) This action is a relaxation of the current handling regulations; (2) handlers are already shipping potatoes from the 2012–2013 crop and may want to take advantage of this relaxation as soon as possible; (3) handlers are aware of this interim rule, which was initiated by the industry and unanimously recommended by the Committee at a public meeting during which interested parties had an opportunity to provide input; and (4) this interim rule provides a 60-day comment period and any comments received will be considered prior to finalization of this interim 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. In § 948.126, paragraph (a) is revised to read as follows: ■ § 948.126 General cull regulation. (a) No handler shall handle potatoes grown in the State of Colorado which do E:\FR\FM\14JNR1.SGM 14JNR1 35746 Federal Register / Vol. 78, No. 115 / Friday, June 14, 2013 / Rules and Regulations not meet the requirements of U.S. No. 2 or better grade, or are less than 3⁄4-inch in diameter. * * * * * ■ 3. In § 948.386, the heading of paragraph (a)(4) is revised to read as follows: § 948.386 Handling regulation. * * * * * (a) * * * (4) 3⁄4-inch minimum diameter to 15⁄8inch maximum diameter (Creamer). * * * * * * * * Dated: June 11, 2013. Rex A. Barnes, Associate Administrator, Agricultural Marketing Service. [FR Doc. 2013–14175 Filed 6–13–13; 8:45 am] BILLING CODE 3410–02–P NUCLEAR REGULATORY COMMISSION 10 CFR Parts 71 and 73 [NRC–1999–0005] RIN 3150–AG41 Advance Notification to Native American Tribes of Transportation of Certain Shipments of Nuclear Waste Nuclear Regulatory Commission. ACTION: Final rule; implementation. mstockstill on DSK4VPTVN1PROD with RULES AGENCY: SUMMARY: The U.S. Nuclear Regulatory Commission (NRC) licensees are currently required to provide advance notice to participating Federallyrecognized Tribal governments regarding shipments of irradiated reactor fuel and certain nuclear wastes that pass within or across their reservations. Agreement State licensees will be required to provide advance notifications for certain shipments of radioactive material at the time the applicable Agreement State implements its requirements. The NRC is maintaining and providing a list of Tribal contacts and an interactive map of Tribal boundaries of participating Federally-recognized Tribes that is available on the NRC’s public Web site. The list will be published annually in the Federal Register. DATES: This document is effective on June 14, 2013. ADDRESSES: Please refer to Docket ID NRC–1999–0005 when contacting the NRC about the availability of information for this document. You may access information related to this document, which the NRC possesses VerDate Mar<15>2010 15:51 Jun 13, 2013 Jkt 229001 and is publicly available, by any of the following methods: • Federal Rulemaking Web site: Go to https://www.regulations.gov and search for Docket ID NRC–1999–0005. Address questions about NRC dockets to Carol Gallagher; telephone: 301–492–3668; email: Carol.Gallagher@nrc.gov. For technical questions, contact the individual(s) listed in the FOR FURTHER INFORMATION CONTACT section of this final rule. • NRC’s Agencywide Documents Access and Management System (ADAMS): You may access publicly available documents online in the NRC Library at https://www.nrc.gov/readingrm/adams.html. To begin the search, select ‘‘ADAMS Public Documents’’ and then select ‘‘Begin Web-based ADAMS Search.’’ For problems with ADAMS, please contact the NRC’s Public Document Room (PDR) reference staff at 1–800–397–4209, 301–415–4737, or by email to pdr.resource@nrc.gov. The ADAMS accession number for each document referenced in this document (if that document is available in ADAMS) is provided the first time that a document is referenced. • NRC’s PDR: You may examine and purchase copies of public documents at the NRC’s PDR, Room O1–F21, One White Flint North, 11555 Rockville Pike, Rockville, Maryland 20852. FOR FURTHER INFORMATION CONTACT: James Firth, Office of Federal and State Materials and Environmental Management Programs; U.S. Nuclear Regulatory Commission, Washington, DC 20555–0001; telephone: 301–415– 6628; email: James.Firth@nrc.gov. SUPPLEMENTARY INFORMATION: On January 6, 1982 (47 FR 596 and 47 FR 600), the NRC published regulations that require licensees to provide advance notice of certain shipments of irradiated reactor fuel and nuclear waste to State Governors or their designees. On June 11, 2012 (77 FR 34194), the NRC amended the advance notification requirements of parts 71 and 73 of Title 10 of the Code of Federal Regulations (10 CFR) requiring licensees to provide advance notice to participating Federally-recognized Tribal governments regarding shipments of irradiated reactor fuel and certain nuclear wastes that pass within or across their reservations (i.e., Advance Tribal Notification Rule). The NRC’s licensees are currently required to provide advance notification to participating Federally-recognized Tribal governments. Agreement State licensees will be required to provide advance notifications for certain shipments of radioactive material at the PO 00000 Frm 00004 Fmt 4700 Sfmt 4700 time the applicable Agreement State implements its requirements. The licensees must provide to participating Tribal officials, or their designees, advance notice of shipments of irradiated reactor fuel meeting the 10 CFR 73.37 criteria and other nuclear wastes meeting the criteria in 10 CFR 71.97 before passing through or crossing the border of their reservations. Specifically, 10 CFR 71.97 requires licensees to provide advance notice of shipments of certain licensed material that meet the following requirements: (1) The material is required to be shipped in Type B packaging; (2) the licensed material is being transported within or across the boundary of the Tribe’s reservation and the shipment is being transported outside of the licensee’s place of use en route to a disposal facility or to a collection point for transport to a disposal facility; and (3) the quantity of licensed material in a single package exceeds at least one of the following: (a) 3000 times the A1 value of the radionuclides as specified in appendix A, Table A–1 in 10 CFR part 71 for special form radioactive material; (b) 3000 times the A2 value of the radionuclides as specified in appendix A, Table A–1 in 10 CFR part 71 for normal form radioactive material; or (c) 1000 terabecquerels (27,000 curies). As required by 10 CFR 73.37, licensees must provide advance notice of shipments of irradiated reactor fuel in excess of 100 grams in net weight of irradiated fuel, which has a total external radiation dose rate in excess of 1 Gray (100 rad) per hour at a distance of 0.91 meters (3 feet) from any accessible surface without intervening shielding. The licensee is required to make this notification to any Tribe for which the irradiated reactor fuel is being transported within its Tribal reservation or across its Tribal reservation boundaries. Since the publication of the Advance Tribal Notification Rule, the NRC revised the advance notification requirements for certain shipments of irradiated reactor fuel in 10 CFR 73.37— ‘‘Physical Protection of Byproduct Material’’ (March 19, 2013; 78 FR 16922). The revision requires licensees to provide advance notification for certain shipments of irradiated reactor fuel that are 100 grams or less in net weight of irradiated fuel. The compliance date of this new regulatory provision is March 19, 2014. For the purposes of the Advance Tribal Notification Rule, an ‘‘Indian tribe’’ is defined as an Indian or Alaska Native tribe, band, nation, pueblo, village, or community that the Secretary E:\FR\FM\14JNR1.SGM 14JNR1

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[Federal Register Volume 78, Number 115 (Friday, June 14, 2013)]
[Rules and Regulations]
[Pages 35743-35746]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-14175]

========================================================================
Rules and Regulations
Federal Register
________________________________________________________________________

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.

========================================================================

Federal Register / Vol. 78, No. 115 / Friday, June 14, 2013 / Rules
and Regulations

[[Page 35743]]

DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 948

[Doc. No. AMS-FV-13-0001; FV13-948-1 IR]

Irish Potatoes Grown in Colorado; Modification of the General
Cull and Handling Regulation for Area No. 2

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Interim rule with request for comments.

-----------------------------------------------------------------------

SUMMARY: This interim rule modifies the size requirements for potatoes
handled under the Colorado potato marketing order, Area No. 2 (order).
The order regulates the handling of Irish potatoes grown in Colorado
and is administered locally by the Colorado Potato Administrative
Committee, Area No. 2 (Committee). This action revises the 1-inch
minimum to 1\3/4\-inch maximum diameter size allowance for U.S.
Commercial and better grade potatoes contained in the order's handling
regulation for Area 2 to \3/4\-inch minimum to 1\5/8\-inch maximum
diameter. In addition, this action revises the minimum size requirement
under the order's general cull regulation to \3/4\-inch diameter. As
required under section 8e of the Agricultural Marketing Agreement Act
of 1937, this action also revises the size requirements for imported
round type potatoes, other than red-skinned varieties. This change is
expected to facilitate the handling and marketing of the Area No. 2
potato crop, provide producers and handlers with increased returns, and
offer consumers increased potato purchasing options.

DATES: Effective June 15, 2013; comments received by August 13, 2013
will be considered prior to issuance of a final rule.

ADDRESSES: Interested persons are invited to submit written comments
concerning this interim rule. Comments should be sent to the Docket
Clerk, Marketing Order and Agreement Division, Fruit and Vegetable
Program, AMS, USDA, 1400 Independence Avenue SW., STOP 0237,
Washington, DC 20250-0237; Fax: (202) 720-8938; or Internet: https://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: https://www.regulations.gov. All comments submitted in response to this
interim 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, Marketing Specialist,
or Gary Olson, Regional Director, Northwest Marketing Field Office,
Marketing Order and Agreement Division, Fruit and Vegetable Program,
AMS, USDA; Telephone: (503) 326-2724, Fax: (503) 326-7440, or Email:
Barry.Broadbent@ams.usda.gov or GaryD.Olson@ams.usda.gov.
Small businesses may request information on complying with this
regulation by contacting Jeffrey Smutny, Marketing Order and Agreement
Division, Fruit and Vegetable Program, AMS, USDA, 1400 Independence
Avenue SW., STOP 0237, Washington, DC 20250-0237; Telephone: (202) 720-
2491, Fax: (202) 720-8938, or Email: Jeffrey.Smutny@ams.usda.gov.

SUPPLEMENTARY INFORMATION: This interim 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.''
This interim rule is also issued under section 8e of the Act, which
provides that whenever certain specified commodities, including
potatoes, are regulated under a Federal marketing order, the
importation of these commodities into the United States is prohibited
unless they meet the same or comparable grade, size, quality, or
maturity requirements as those in effect for the domestically produced
commodities.
The Department of Agriculture (USDA) is issuing this interim rule
in conformance with Executive Order 12866.
This interim rule has been reviewed under Executive Order 12988,
Civil Justice Reform. This interim 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 regulation
issued under section 8e of the Act.
This action modifies the size requirements for potatoes handled
under the order's general cull regulation and handling regulation for
Area 2. This interim rule relaxes the 1-inch minimum to 1\3/4\-inch
maximum size allowance for U.S. Commercial or better grade potatoes
handled under the order to \3/4\-inch minimum to 1\5/8\-inch maximum
diameter (Creamer size, as designated in the U.S. Standards for Grades
of Potatoes). This action also relaxes the minimum size requirement of
the general cull regulation to \3/4\-inch diameter.
Prior to this change, the smallest potatoes that could be shipped
outside the State of Colorado under the order were 1-inch to 1\3/4\-
inch diameter potatoes that met or exceeded the requirements of the
U.S. Commercial

[[Page 35744]]

grade. Potatoes measuring less than 1-inch were not allowed to be
shipped outside the State, regardless of grade. This action is a
relaxation of the order's regulations and will allow shipments of
Creamer size potatoes (\3/4\-inch to 1\5/8\-inch diameter), if such
potatoes otherwise meet or exceed the requirements of the U.S.
Commercial grade. None of the other size requirements contained in the
handling regulation are impacted by this action. This change was
unanimously recommended by the Committee at a meeting held on December
20, 2012.
Section 948.22 authorizes the issuance of grade, size, quality,
maturity, pack, and container regulations for potatoes grown in the
order's production area. Section 948.21 authorizes the modification,
suspension, or termination of regulations issued pursuant to Sec.
948.22. Section 948.20 establishes the requirements of the general cull
regulation. The Secretary may suspend or modify the general cull
regulation provisions contained in Sec. 948.20 upon the recommendation
of the Committee, or on other available information.
Under the Colorado potato marketing order, the State of Colorado is
divided into three areas of regulation for marketing order purposes.
These include: Area 1, commonly known as the Western Slope; Area 2,
commonly known as San Luis Valley; and, Area 3, which consists of the
remaining producing areas within the State of Colorado not included in
the definition of Area 1 or Area 2. Currently, the order only regulates
the handling of potatoes produced in Area 2 and Area 3. Regulation for
Area 1 has been suspended.
The grade, size, and maturity requirements specific to the handling
of potatoes grown in Area 2 are contained in Sec. 948.386 of the
order. Additionally, the minimum grade and size requirements
established under the order's general cull regulation are contained in
Sec. 948.126. The handling regulation requires that all potatoes
handled under the order meet the minimum requirements of the U.S. No. 2
grade, and be 2 inches or greater in diameter. Smaller size potatoes
may be handled, if such potatoes otherwise meet the requirements of
certain higher grade standards. For all varieties, size B potatoes
(1\1/2\-inch minimum to 2\1/4\-inch maximum diameter as designated in
the U.S. Standards for Grade of Potatoes) may be handled under the
order, if such potatoes meet or exceed the requirements of the U.S.
Commercial grade. In addition, prior to this interim rule, 1-inch to
1\3/4\-inch diameter potatoes that met or exceeded the requirements of
the U.S. Commercial grade were also allowed to be handled under the
order.
At the December 20, 2012, Committee meeting, industry participants
indicated to the Committee that there is an emerging market for smaller
size U.S. Commercial grade potatoes sold in consumer packs and included
in certain value added potato products. They further stated that the
order's current size requirements (1-inch diameter being the smallest
potato allowed to be handled) precludes them from supplying this
growing and profitable market. Relaxing the size requirements to allow
shipments of such higher grade, smaller size potatoes will allow area
handlers to compete with other domestic potato producing regions for
this developing market segment. This change effectively lowers the
allowable minimum diameter for U.S. Commercial and better grade
potatoes to \3/4\-inch, which is in line with the minimum size
requirements contained in the handling regulations of the other
domestic potato marketing orders.
Relaxing the size requirements to allow shipments of smaller size
potatoes will make more small potatoes available to consumers and will
allow Area 2 handlers to move more of the area's potato production into
the fresh market. This change is expected to benefit producers,
handlers, and consumers of potatoes.
Section 8e of the Act provides that when certain domestically
produced commodities, including potatoes, are regulated under a Federal
marketing order, imports of that commodity must meet the same or
comparable grade, size, quality, and maturity requirements as the
domestically produced product. Minimum grade, size, quality, and
maturity requirements for potatoes imported into the United States are
currently in effect under the import regulations contained in Sec.
980.1 (7 CFR 980.1). The import regulations distinguish between each of
the three major types of potatoes handled domestically: Red-skinned,
round types; long types; and all other round types.
Section 980.1(a)(2)(ii) specifies that imports of round type
potatoes, other than red-skinned varieties, are in most direct
competition with potatoes of the same type produced in Area 2, Colorado
(San Luis Valley) and covered by Marketing Order No. 948. Further,
section 980.1(b)(2) stipulates that, through the entire year, the
grade, size, quality, and maturity requirements of Marketing Order No.
948 applicable to potatoes of the round type, other than red-skinned
varieties, shall be the respective grade, size, quality, and maturity
requirements for imports of that type potatoes. As such, the relaxation
of the size requirements effectuated by this interim rule for domestic
potatoes covered by the order likewise relaxes the size requirements
for U.S. Commercial and better grade round type potatoes, other than
red-skinned varieties, that are imported into the U.S. No change to the
regulatory text is necessary to accomplish this action.
Prior to this action, 1-inch minimum diameter to 1\3/4\-inch
maximum diameter was the smallest size range of potatoes allowed to be
imported. As a result of the change in the order's handling regulation,
and pursuant to section 8e of the Act, importers may now ship Creamer
size (\3/4\-inch minimum to 1\5/8\-inch maximum diameter) U.S.
Commercial and better grade round type potatoes, other than red-skinned
varieties, into the U.S. market.
This action allows potato handlers and importers to better respond
to the changing demands of the U.S. potato market. The consumers'
increasing preference for small size potatoes applies to imported
potatoes as well as domestic potatoes. Thus, domestic handlers and
importers should benefit by increasing sales to this emerging domestic
market segment.

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 approximately 80 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 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. (13 CFR
121.201)

[[Page 35745]]

During the 2011-2012 marketing year, the most recent full marketing
year for which statistics are available, 15,072,963 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
$12.60 per hundredweight, the Committee estimates that 66 Area No. 2
handlers, or about 83 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, the average producer price for the
2011 Colorado fall potato crop was $10.70 per hundredweight.
Multiplying $10.70 by the shipment quantity of 15,072,963 hundredweight
yields an annual crop revenue estimate of $161,280,704. The average
annual fresh potato revenue for each of the 180 Colorado Area No. 2
potato producers is therefore calculated to be approximately $896,000
($161,280,704 divided by 180), which is greater than the SBA threshold
of $750,000. Consequently, on average, many of the Area No. 2 Colorado
potato producers may not be classified as small entities.
This interim rule relaxes the size allowance for U.S. Commercial
and better grade potatoes in the order's handling regulation and
modifies the size requirement in the order's general cull regulation.
Prior to this action, the smallest size range allowed to be handled
under the order was 1-inch minimum diameter to 1\3/4\-inch maximum
diameter if the potatoes were otherwise U.S. Commercial or better
grade. As a result of this interim rule, Creamer size (\3/4\-inch to
1\5/8\-inch diameter) U.S. Commercial and better grade potatoes are now
allowed be handled under the order. All other size requirements in the
order's handling regulation remain unchanged. Authority for this action
is contained in Sec. Sec. 948.20, 948.21, and 948.22.
This relaxation is expected to benefit the producers, handlers, and
consumers of Colorado Area 2 potatoes by allowing a greater quantity of
fresh potatoes from the production area to enter the market. This
anticipated increase in volume is expected to translate into greater
returns for handlers and producers, and more purchasing options for
consumers.
After discussing possible alternatives to this interim rule, the
Committee determined that a relaxation in the size requirement for U.S.
Commercial and better grade potatoes will meet the industry's current
needs while maintaining the potato quality objectives of the order.
During its deliberations, the Committee considered making no changes to
the handling regulation, as well as relaxing the size requirement for
all U.S. No. 2 and better grade potatoes. The Committee believes that a
relaxation in the handling regulation for small potatoes is necessary
to allow handlers to pursue new markets, but lowering the size
requirements for all potatoes that are U.S. No. 2 and better grade
could erode the quality reputation of the area's production. Therefore,
the Committee found that there were no other viable alternatives to the
relaxation of the size requirements as recommended.
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 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 (Generic Vegetable and Specialty Crops). 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 interim rule will not impose any additional reporting or
recordkeeping requirements on either small or large potato handlers and
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. In addition, USDA
has not identified any relevant Federal rules that duplicate, overlap,
or conflict with this interim 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 December 20, 2012, 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 interim 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:
www.ams.usda.gov/MarketingOrdersSmallBusinessGuide. Any questions about
the compliance guide should be sent to Jeffrey Smutny at the previously
mentioned address in the FOR FURTHER INFORMATION CONTACT section.
This interim rule invites comments on a modification of the size
requirements prescribed under the Colorado potato marketing order. Any
comments received will be considered prior to the finalization of this
interim rule.
After consideration of all relevant material presented, including
the Committee's recommendation, and other information, it is hereby
found that this interim rule, as hereinafter set forth, will tend to
effectuate the declared policy of the Act.
In accordance with section 8e of the Act, the United States Trade
Representative has concurred with the issuance of this interim rule.
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 interim rule
into effect and that good cause exists for not postponing the effective
date of this interim rule until 30 days after publication in the
Federal Register because: (1) This action is a relaxation of the
current handling regulations; (2) handlers are already shipping
potatoes from the 2012-2013 crop and may want to take advantage of this
relaxation as soon as possible; (3) handlers are aware of this interim
rule, which was initiated by the industry and unanimously recommended
by the Committee at a public meeting during which interested parties
had an opportunity to provide input; and (4) this interim rule provides
a 60-day comment period and any comments received will be considered
prior to finalization of this interim 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

0
1. The authority citation for 7 CFR part 948 continues to read as
follows:

Authority: 7 U.S.C. 601-674.

0
2. In Sec. 948.126, paragraph (a) is revised to read as follows:

Sec. 948.126 General cull regulation.

(a) No handler shall handle potatoes grown in the State of Colorado
which do

[[Page 35746]]

not meet the requirements of U.S. No. 2 or better grade, or are less
than \3/4\-inch in diameter.
* * * * *

0
3. In Sec. 948.386, the heading of paragraph (a)(4) is revised to read
as follows:

Sec. 948.386 Handling regulation.

* * * * *
(a) * * *
(4) \3/4\-inch minimum diameter to 1\5/8\-inch maximum diameter
(Creamer). * * *
* * * * *

Dated: June 11, 2013.
Rex A. Barnes,
Associate Administrator, Agricultural Marketing Service.
[FR Doc. 2013-14175 Filed 6-13-13; 8:45 am]
BILLING CODE 3410-02-P

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