[Federal Register Volume 59, Number 152 (Tuesday, August 9, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-19385]


[[Page Unknown]]

[Federal Register: August 9, 1994]


                                                   VOL. 59, NO. 152

                                            Tuesday, August 9, 1994

DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 945

[Docket No. FV94-945-2PR]

 

Irish Potatoes Grown in Certain Designated Counties in Idaho, and 
Malheur County, Oregon, and Imported Irish Potatoes; Modification of 
Minimum Size Requirements

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Proposed rule.

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SUMMARY: This proposed rule would modify the minimum size requirements 
for all varieties of potatoes, except round reds, grown in certain 
designated counties in Idaho, and Malheur County, Oregon, and for 
imported long type potatoes. Currently, the minimum size requirement 
for all varieties, except round reds, is 2 inches in diameter, or 4 
ounces in weight. This rule would specify that, in addition, at least 
40 percent of the potatoes in each lot, by weight, must be 5 ounces or 
heavier. Requiring handlers to ship heavier potatoes could correct a 
marketing problem by providing the heavier potatoes demanded by the 
market and increase returns to producers and handlers. As provided 
under the Agricultural Marketing Agreement Act of 1937, the proposed 
changes would also apply to imported potatoes.

DATES: Comments must be received by August 24, 1994.

ADDRESSES: Interested persons are invited to submit written comments 
concerning this proposal. Comments must be sent in triplicate to the 
Docket Clerk, Fruit and Vegetable Division, AMS, USDA, P.O. Box 96456, 
Room 2523-S, Washington, DC 20090-6456 or by Fax at (202) 720-5698. All 
comments should reference the docket 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.

FOR FURTHER INFORMATION CONTACT: Gary D. Olson, Northwest Marketing 
Field Office, Fruit and Vegetable Division, AMS, USDA, 1220 SW Third 
Avenue, Room 369, Portland, OR 97204; telephone: (503) 326-2724 or Fax 
(503) 326-7440; or Valerie L. Emmer, Marketing Order Administration 
Branch, Fruit and Vegetable Division, Agricultural Marketing Service, 
U.S. Department of Agriculture, P.O. Box 96456, Room 2523-S, 
Washington, DC 20090-6456; telephone: (202) 205-2829 or Fax (202) 720-
5698.

SUPPLEMENTARY INFORMATION: This proposed rule is issued under Marketing 
Agreement and Marketing Order No. 945 [7 CFR part 945], as amended, 
hereinafter referred to as the ``order,'' regulating the handling of 
Irish potatoes grown in certain designated counties in Idaho, and 
Malheur County, Oregon. 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 proposed rule, which would also affect the import requirements 
for long type Irish potatoes, is also issued pursuant to section 8e of 
the Act. The provisions of section 8e and the potato import regulation 
are discussed later in this proposed rule.
    The U.S. Department of Agriculture (Department) is issuing this 
rule in conformance with Executive Order 12866.
    This proposal has been reviewed under Executive Order 12778, Civil 
Justice Reform. This rule is not intended to have retroactive effect. 
This proposed 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 in equity to review the 
Secretary's ruling on the petition, provided a bill in equity 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 regulations 
issued under section 8e of the Act.
    Pursuant to requirements set forth in the Regulatory Flexibility 
Act (RFA), the Administrator of the Agricultural Marketing Service 
(AMS) has considered the economic impact of this action on small 
entities.
    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. Thus, both statutes have small 
entity orientation and compatibility. Import regulations issued under 
the Act are based on those established under Federal marketing orders.
    There are approximately 60 handlers of Idaho-Eastern Oregon 
potatoes that are subject to regulation under the order, and 
approximately 2,000 producers in the production area. In addition, at 
least 75 importers of Irish potatoes are subject to import regulations 
and would be affected by this rule. Small agricultural service firms, 
which include handlers of Idaho-Eastern Oregon potatoes, have been 
defined by the Small Business Administration [13 CFR 121.601] as those 
whose annual receipts are less than $5,000,000, and small agricultural 
producers are defined as those whose annual receipts are less than 
$500,000. A majority of these handlers and producers may be classified 
as small entities. The majority of the importers of potatoes may also 
be classified as small entities.
    This action would amend paragraph (a)(2)(ii) of Sec. 945.341 
Handling regulation of the order's rules and regulations. The proposal 
is based on a unanimous recommendation made by the Idaho-Eastern Oregon 
Potato Committee (committee), the agency responsible for local 
administration of the order, at its June 7, 1994, public meeting. The 
committee's recommended revision is authorized pursuant to Secs. 945.51 
and 945.52 of the order.
    Quality assurance is very important to the Idaho-Eastern Oregon 
potato industry. Providing the public with acceptable quality produce 
which is appealing to the consumer on a consistent basis is necessary 
to maintain buyer confidence in the marketplace. The committee reports 
that potato size is important to buyers.
    For several decades, the minimum size requirement for all varieties 
of Idaho-Oregon potatoes, except round reds, has been 2 inches in 
diameter, or 4 ounces in weight. However, the committee reports that 
the industry has been losing its share of the potato market, because 
the market in recent years has been demanding potatoes larger than this 
minimum size. Consumers now expect some baker size potatoes in the 
packages they buy. In spite of an industry campaign to encourage 
handlers to voluntarily ship larger potatoes, a number of handlers have 
continued to ship potatoes that barely meet the minimum size 
requirement, depressing the price for other potatoes. These potatoes 
are generally shipped in consumer packs (e.g., 5- or 10-pound bags) or 
in 100-pound sacks for later repackaging into consumer packs.
    These shipments have resulted in disappointment by buyers and 
consumers in recent years, hurting the quality image of Idaho-Eastern 
Oregon potatoes, reducing repeat purchases and overall sales volume, 
and resulting in declines in prices, which has hurt the overall sales 
volume.
    To better meet market demand regarding the size of potatoes, the 
committee recommended an additional requirement that at least 40 
percent of the potatoes in each lot must weigh at least 5 ounces. It is 
anticipated that requiring handlers to ship such heavier potatoes would 
enable the industry to regain its lost share of the market and increase 
returns to producers and handlers.
    Section 8e of the Act requires that when certain domestically 
produced commodities, including Irish potatoes, are regulated under a 
Federal marketing order, imports of that commodity must meet the same 
or comparable grade, size, quality, or maturity requirements, subject 
to concurrence by the U.S. Trade Representative. Section 8e also 
provides that whenever two or more marketing orders regulating a 
commodity produced in different areas of the United States are 
concurrently in effect, the Secretary shall determine which of the 
areas produces the commodity in more direct competition with the 
imported commodity. Imports, then must meet the quality standards set 
for the particular area.
    In the case of potatoes, the current import regulation [7 CFR 
980.1] specifies that import requirements for long type potatoes be 
based on those in effect for potatoes grown in certain designated 
counties in Idaho, and Malheur County, Oregon, during each month of the 
marketing year. While no changes are required in the language of 
Sec. 980.1, imports of long type potatoes would have to meet the 
increased minimum weight requirements proposed herein.
    Section 945.341(i) Applicability to imports is proposed to be 
removed from the handling regulations. That paragraph states the same 
information that is contained in Sec. 980.1 of the import regulations. 
Since the same information applicable to imported potatoes is contained 
in the import regulations, paragraph (i) in the domestic handling 
regulations should be deleted to eliminate duplication or confusion.
    Based on available information, the Administrator of the AMS has 
determined that this action would not have a significant economic 
impact on a substantial number of small entities.
    A 15-day comment period is provided to allow interested persons to 
respond to this proposal. All written comments received within the 
comment period will be considered before a final determination is made 
on this matter. The committee unanimously recommended that this rule 
become effective by September 1, 1994, to ensure that implementation be 
in place early in the 1994-95 shipping season. Implementation of this 
rule by this date will provide ample opportunity for handlers and the 
industry to make marketing and promotional plans for the upcoming 
season.
    In accordance with section 8e of the Act, the United States Trade 
Representative has concurred with the issuance of this proposed rule.

List of Subjects in 7 CFR Part 945

    Marketing agreements, Potatoes, Reporting and recordkeeping 
requirements.

    For the reasons set forth in the preamble, 7 CFR part 945 is 
proposed to be amended as follows:

PART 945--IRISH POTATOES GROWN IN CERTAIN DESIGNATED COUNTIES IN 
IDAHO, AND MALHEUR COUNTY, OREGON

    1. The authority citation for 7 CFR part 945 continues to read as 
follows:

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

    2. Section 945.341 is amended by revising paragraph (a)(2)(ii) to 
read as follows and removing paragraph (i):


Sec. 945.341  Handling regulation.

* * * * *
    (a) * * *
    (2) * * *
    (ii) All other varieties. 2 inches minimum diameter, or 4 ounces 
minimum weight: Provided, That at least 40 percent of the potatoes in 
each lot shall be 5 ounces or heavier.
* * * * *
    Dated: August 2, 1994.
Terry C. Long,
Acting Deputy Director Fruit and Vegetable Division.
[FR Doc. 94-19385 Filed 8-8-94; 8:45 am]
BILLING CODE 3410-02-P