[Federal Register Volume 60, Number 107 (Monday, June 5, 1995)]
[Rules and Regulations]
[Pages 29724-29727]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-13687]




[[Page 29723]]

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Part II





Department of Agriculture





_______________________________________________________________________



Agricultural Marketing Service



_______________________________________________________________________



7 CFR Part 945



Irish Potatoes Grown in Oregon and Idaho; Final Rule

  Federal Register / Vol. 60, No. 107 / Monday, June 5, 1995 / Rules 
and Regulations   
[[Page 29724]] 

DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 945

[Docket No. A0-150-A6; FV92-945-2FR]


Irish Potatoes Grown in Certain Designated Counties in Idaho, and 
Malheur County, Oregon; Order Further Amending Marketing Order

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Final rule.

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

SUMMARY: This final rule further amends the marketing agreement and 
order for potatoes grown in Idaho-Eastern Oregon (order). The 
amendments include authority to: regulate shipments of potatoes within 
the production area, change representation and quorum procedures of the 
committee, set container marking and labeling requirements, and require 
the committee to consider, at least every six years, changes in 
committee size or reapportionment of committee membership. Also, they 
change committee fiscal operations, add confidentiality and 
verification provisions to the order, and make other miscellaneous 
changes that are consistent with the amendments. These changes were 
favored by the subject potato producers in a referendum held from April 
3-17, 1995. The amendments will improve the administration, operation 
and functioning of the marketing order program.

EFFECTIVE DATE: May 31, 1995.

FOR FURTHER INFORMATION CONTACT: Gary Olson, OIC, Northwest Marketing 
Field Office, Marketing Order Administration Branch, Fruit and 
Vegetable Division, AMS, USDA, 1220 S.W. Third Avenue, room 369, 
Portland, Oregon 97204; telephone: 503-326-2725, or Fax 503-326-7440; 
or Valerie L. Emmer or Jim Wendland, Marketing Specialists, Marketing 
Order Administration Branch, Fruit and Vegetable Division, AMS, USDA, 
room 2523-S, P.O. Box 96456, Washington, D.C. 20090-6456, telephone: 
202-205-2829 or 720-2170 respectively, or FAX 202-720-5698.

SUPPLEMENTARY INFORMATION: Prior documents in this proceeding: Notice 
of Hearing issued on August 3, 1993, and published in the Federal 
Register on August 11, 1993 (58 FR 42696). Recommended Decision and 
Opportunity to File Written Exceptions issued on November 23, 1994, and 
published in the Federal Register on November 30, 1994 (59 FR 61286). 
Secretary's Decision and Referendum Order issued March 3, 1995, and 
published in the Federal Register on March 10, 1995 (60 FR 13080).

Preliminary Statement

    This administrative action is governed by the provisions of 
sections 556 and 557 of Title 5 of the United States Code and is 
therefore excluded from the requirements of Executive Order 12866.
    This rule has been reviewed under Executive Order 12778, Civil 
Justice Reform. This action 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 
action.
    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 requesting 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.
    The final rule was formulated on the record of a public hearing 
held in Idaho Falls, Idaho, on September 8, 1993, to consider the 
proposed amendment of the Marketing Agreement and Order No. 945, 
regulating the handling of potatoes grown in designated counties in 
Idaho, and Malheur County, Oregon, hereinafter referred to collectively 
as the ``order.'' Notice of the hearing was published in the August 11, 
1993, issue of the Federal Register (58 FR 42696).
    The hearing was held pursuant to the provisions of the Agricultural 
Marketing Agreement Act of 1937, as amended (7 U.S.C. 601 et seq.), 
hereinafter referred to as the Act, and the applicable rules of 
practice and procedure governing proceedings to formulate marketing 
agreements and marketing orders (7 CFR part 900). The Notice of Hearing 
contained several amendment proposals submitted by the Idaho-Eastern 
Oregon Potato Committee (committee) established under the order to 
assist in local administration of the program.
    The proposals pertained to: (1) Redefining ``ship or handle'' to 
include shipments of potatoes within the production area; (2) providing 
seed producers with representation on the committee and adding 
authority for the committee to recommend to the Secretary changes in 
the committee size and composition; (3) updating committee 
representation districts to show the counties currently in each 
district; (4) requiring the committee to consider, at least every six 
years, whether to recommend changes in committee size or 
reapportionment of committee membership; (5) changing committee quorum 
procedures; (6) removing an outdated assessment limitation of $1 per 
carload and allowing the committee to impose late payment or interest 
fees, or both, on late assessment payments, accept advance payments, 
and borrow monies in an extreme emergency for program administration; 
(7) adding authority for the committee to recommend container marking 
and labeling requirements; and (8) specifying confidentiality 
requirements for handler reports submitted to the committee. The 
Department of Agriculture proposed authority for adding requirements 
regarding verification of reports and to make any necessary conforming 
changes.
    Upon the basis of evidence introduced at the hearing and the record 
thereof, the Acting Assistant Secretary, Marketing and Regulatory 
Programs, on March 2, 1995, filed with the Hearing Clerk, U.S. 
Department of Agriculture, a Secretary's Decision and Referendum Order, 
directing that a referendum be conducted during the period April 3-17, 
1995, among producers of Idaho-Eastern Oregon Potatoes to determine 
whether they favored the proposed amendments to the order. In the 
referendum, all amendment proposals were favored by more than two-
thirds of the producers voting in the referendum. Accordingly, all 
proposed amendments are included in this order further amending the 
order.
    The amended marketing agreement was subsequently mailed to all 
potato handlers in the production area for their approval. The 
marketing agreement was signed by potato handlers representing more 
than 50 percent of the volume of potatoes handled by all handlers 
during the representative period of August 1, 1993, to July 31, 1994.

Small Business Considerations

    In accordance with the provisions of the Regulatory Flexibility Act 
(RFA) (5 U.S.C. 601 et seq.), the Administrator of the Agricultural 
Marketing Service has determined that this action will not have a 
significant economic impact on a substantial number of small entities. 
[[Page 29725]] Small agricultural service firms, which include handlers 
regulated under this order, have been defined by the Small Business 
Administration (SBA) (13 CFR 121.601) as those having annual receipts 
of less than $5,000,000. Small agricultural producers are defined as 
those having annual receipts of less than $500,000.
    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 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 the RFA and the Act have small entity orientation 
and compatibility. Interested persons were invited to present evidence 
at the hearing on the probable impact that the proposed amendments to 
the order would have on small businesses.
    During the 1992-93 crop year, 66 handlers were regulated under 
Marketing Order No. 945. In addition, there are about 1,600 producers 
of potatoes in the production area. The Act requires the application of 
uniform rules on regulated handlers. Since handlers covered under the 
potato marketing order are predominantly small businesses, the order 
itself is tailored to the size and nature of these small businesses. 
Marketing orders and amendments thereto, are unique in that they are 
normally brought about through group action of essentially small 
entities for their own benefit. Thus, both the RFA and the Act are 
compatible with respect to small entities.
    This final rule amends certain provisions of the order including:
    Sec. 945.20  Establishment and membership pertaining to operations 
of the committee, including providing seed producers representation on 
the committee; Sec. 945.23 Redistricting and reapportionment 
authorizing changes in committee size, composition, and representation; 
Sec. 945.30 Procedure regarding quorum requirements; and Sec. 945.42 
Assessments removing a $1 per carload maximum assessment rate and 
allowing the committee to impose late payment and interest fees on late 
assessment payments and borrow monies in an extreme emergency for 
program administration. The record indicates these changes will provide 
an opportunity for a broader based representation on the committee and 
more flexibility to adjust to future changes in industry structure, 
potato production and financial operations. These changes are also 
designed to enhance the administration and functioning of the order and 
will have negligible, if any, economic impact on small businesses.
    This final rule amends Sec. 945.9 Ship or handle by revising the 
definition of these terms to include the handling of potatoes in the 
current of commerce within the counties covered by the order's 
production area, broadening the scope of the order. This will require 
all regulated shipments of potatoes for fresh market to be inspected 
and meet order requirements, including grade, size, quality, pack, and 
payment of assessments. This final rule will improve the market for 
potatoes handled within the production area. This will benefit both 
producers and handlers because minimum grade, size and quality 
requirements established under the order are important to the industry 
in fostering consumer satisfaction, increasing the demand for Idaho-
Eastern Oregon potatoes, and improving industry returns; and the 
additional assessment income would improve the financial operations of 
the order. Any added burden on small businesses should be outweighed by 
the added benefits accruing to them.
    The change to allow the rate of assessment to be based on a 
hundredweight of potatoes rather than an outdated maximum amount of $1 
per railroad carload will improve the financial operations of the order 
and not adversely impact small businesses. This change will provide 
more efficient funding of order operations and activities. Fresh potato 
shipments have stabilized in recent years and the current maximum rate 
specified will likely not be sufficient to properly fund committee 
operating costs beyond the next few years if costs continue to rise.
    Another change will amend Sec. 945.52 Issuance of regulations to 
add authority to require accurate and uniform marking and labeling of 
the containers in which production area potatoes are shipped. The 
benefits of the expected higher returns that could result from 
increases in buyer and consumer satisfaction due to accurate marking 
and labeling should outweigh any potential burden on small businesses.
    Another amendment, to Sec. 945.80 Reports, will provide 
confidentiality requirements for reports submitted to the committee. 
This will safeguard handlers' proprietary information, including that 
for small businesses, without imposing any burden on them. 
Additionally, new Sec. 945.80 provisions will add authority for the 
Secretary and the committee to verify the correctness of reports filed 
by handlers, and to verify handler compliance with recordkeeping 
requirements. The requirement will not have a significant impact on 
small entities in the industry.
    The final rule to make other miscellaneous changes that will be 
consistent with the changed amendments is necessary so that all 
sections of the order will be consistent. These changes include 
deleting and redesignating certain sections of the order.
    All these changes are designed to enhance the administration and 
functioning of the marketing agreement and order to the benefit of the 
industry. Accordingly, it is determined that the revisions of the order 
will not have a significant economic impact on handlers or producers.
    In compliance with Office of Management and Budget (OMB) 
regulations (5 CFR Part 1320) which implement the Paperwork Reduction 
Act of 1980 (44 U.S.C. 35), any reporting and recordkeeping 
requirements that may result from these amendments will be submitted to 
OMB for approval.

List of Subjects in 7 CFR Part 945

    Marketing agreements, Potatoes, Reporting and recordkeeping 
requirements.

Order Further Amending the Order Regulating the Handling of Irish 
Potatoes Grown in Certain Designated Counties in Idaho, and Malheur 
County, Oregon

Findings and Determinations

    The findings and determinations hereinafter set forth are 
supplementary and in addition to the findings and determinations 
previously made in connection with the issuance of the order; and all 
of said previous findings and determinations are hereby ratified and 
affirmed, except insofar as such findings and determinations may be in 
conflict with the findings and determinations set forth herein.
    (a) Findings and Determinations Upon the Basis of the Hearing 
Record. Pursuant to the provisions of the Agricultural Marketing 
Agreement Act of 1937, as amended (7 U.S.C. 601 et seq.), and the 
applicable rules of practice and procedure effective thereunder (7 CFR 
part 900), a public hearing was held upon the amendments to the 
Marketing Agreement and Order No. 945 (7 CFR part 945), regulating the 
handling of Irish potatoes grown in certain designated counties in 
Idaho, and Malheur County, Oregon.
    Upon the basis of the evidence introduced at such hearing and the 
record thereof, it is found that:
    (1) The order, as amended, as hereby further amended, and all of 
the terms [[Page 29726]] and conditions thereof, will tend to 
effectuate the declared policy of the Act;
    (2) The order, as amended, as hereby further amended, regulates the 
handling of Irish potatoes grown in the production area in the same 
manner as, and is applicable only to persons in the respective classes 
of commercial and industrial activity specified in the marketing order 
upon which hearings have been held;
    (3) The order, as amended, as hereby further amended, is limited in 
application to the smallest regional production area which is 
practicable, consistent with carrying out the declared policy of the 
Act, and the issuance of several orders applicable to subdivisions of 
the production area would not effectively carry out the declared policy 
of the Act;
    (4) The order, as amended, as hereby further amended, prescribes, 
insofar as practicable, such different terms applicable to different 
parts of the production area as are necessary to give due recognition 
to the differences in the production and marketing of potatoes grown in 
the production area; and
    (5) All handling of potatoes grown in the production area is in the 
current of interstate or foreign commerce or directly burdens, 
obstructs, or affects such commerce.
    (b) Additional findings. It is necessary and in the public interest 
to make these order amendments effective not later than May 31, 1995.
    A later effective date would unnecessarily delay the implementation 
of the order amendments and the improvement in operation of the 
marketing order program. The committee, producers and handlers need as 
much time as possible to make plans to implement the amended order and 
discuss needed changes to its handling regulation and committee 
operating procedures before its June 6, 1995, annual organizational 
meeting, when it recommends actions for the fast approaching 1995-96 
season. The harvesting and marketing of the 1995 crop is expected to 
begin in August 1995. Hence, Department and industry implementation 
activities must begin promptly. Some of the committee recommendations 
for the 1995-96 season will require informal rulemaking by the 
Department to be implemented.
    In view of the foregoing, it is hereby found and determined that 
good cause exists for making these order amendments effective May 31, 
1995, and that it would be contrary to the public interest to delay the 
effective date of these order amendments for 30 days after its 
publication in the Federal Register (Sec. 553(d), Administrative 
Procedure Act; 5 U.S.C. 551-559).
    (c) Determinations. It is hereby determined that:
    (1) Handlers (excluding cooperative associations of producers who 
are not engaged in processing, distributing, or shipping potatoes 
covered by the said order, as amended, as hereby further amended) who, 
during the period August 1, 1993, through July 31, 1994, handled 50 
percent or more of the volume of such potatoes covered by the said 
order, as amended, as hereby further amended, have signed an amended 
marketing agreement; and
    (2) The issuance of this amendatory order, further amending the 
aforesaid order, is favored or approved by at least two-thirds of the 
producers who participated in a referendum on the question of its 
approval and who, during the period August 1, 1993, through July 31, 
1994 (which has been deemed to be a representative period), have been 
engaged within the Idaho-Eastern Oregon Potato production area in the 
production of such potatoes for fresh market.

Order Relative to Handling

    It is therefore ordered, That on and after the effective date 
hereof, all handling of Irish potatoes grown in certain designated 
counties in Idaho, and Malheur County, Oregon, shall be in conformity 
to, and in compliance with, the terms and conditions of the said order 
as hereby further amended as follows:
    The provisions of the proposed marketing order amendments further 
amending the order contained in the Recommended Decision issued by the 
Administrator on November 23, 1994, and published in the Federal 
Register on November 30, 1994 (59 FR 61286), and in the Secretary's 
Decision issued on March 2, 1995, and published in the Federal Register 
on March 10, 1995 (60 FR 13080), shall be and are the terms and 
provisions of this order further amending the order, and are set forth 
in full herein.

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 945.9 is revised as follows:


Sec. 945.9  Ship or handle.

    Ship or handle means to pack, sell, consign, transport or in any 
other way to place potatoes grown in the production area, or cause such 
potatoes to be placed, in the current of commerce within the production 
area or between the production area and any point outside thereof, so 
as to directly burden, obstruct, or affect any such commerce: Provided, 
That the definition of ship or handle shall not include the 
transportation of ungraded potatoes within the production area for the 
purpose of having such potatoes stored or prepared for market, except 
that the committee may impose safeguards pursuant to Sec. 945.53 with 
respect to such potatoes.
    3. Section 945.20 is amended by revising paragraph (a) and adding a 
new paragraph (d) to read as follows:


Sec. 945.20  Establishment and membership.

    (a) The Idaho-Eastern Oregon Potato Committee is hereby established 
consisting of eight members, of whom four shall currently be producers 
of potatoes for the fresh market who produced such potatoes during at 
least three of the last five years; at least one member shall be a 
producer predominately of potatoes for seed during a similar period; 
and three shall be handlers. For each member of the committee, there 
shall be an alternate who shall have the same qualifications as the 
member. The number of producer and/or handler members and alternates on 
the committee may be increased and the composition of the committee 
between producers and handlers may be changed as provided in 
Sec. 945.23.
* * * * *
    (d) At least every six years, the committee shall review committee 
size, composition, and representation and recommend to the Secretary 
whether changes should be made, as provided in Sec. 945.23.
    4. Sections 945.22 through 945.24 are revised to read as follows:


Sec. 945.22  Districts.

    For the purpose of selecting committee members and alternate 
members, the following districts of the production area are hereby 
established: Provided, That these districts may be changed as provided 
in Sec. 945.23.
    (a) District No. 1: The counties of Bonneville, Butte, Clark, 
Fremont, Jefferson, Madison, and Teton;
    (b) District No. 2: The counties of Bannock, Bear Lake, Bingham, 
Caribou, Franklin, Oneida, and Power; and
    (c) District No. 3: Malheur County, Oregon, and the remaining 
designated counties in Idaho included in the production area, and not 
included in District No. 1 or District No. 2. [[Page 29727]] 


Sec. 945.23  Redistricting and reapportionment.

    (a) The Secretary, upon recommendation of the committee, may 
reestablish districts within the production area, may reapportion 
committee membership among the various districts, may increase the 
number of producer and/or handler members and alternates on the 
committee, and may change the composition of the committee by changing 
the ratio between producer and handler members, including their 
alternates. At least every six years, the committee shall review 
committee size, composition and representation and recommend to the 
Secretary whether changes should be made. In recommending any such 
changes, the committee shall give consideration to:
    (1) Shifts in potato acreage within districts and within the 
production area during recent years;
    (2) the importance of new potato production in its relation to 
existing districts;
    (3) the equitable relationship between committee membership and 
districts;
    (4) economies to result for producers in promoting efficient 
administration due to redistricting or reapportionment of members 
within districts; and
    (5) other relevant factors.
    (b) Membership of the committee shall be apportioned among the 
districts of the production area so as to provide the following 
representation or such other representation as recommended by the 
committee and approved by the Secretary:
    (1) Three producer members, including at least one who 
predominately produces seed potatoes, and one handler member, with 
their respective alternates, from District No. 1;
    (2) One producer member and one handler member, with their 
respective alternates, from District No. 2; and
    (3) One producer member and one handler member, with their 
respective alternates, from District No. 3.


Sec. 945.24  Selection.

    Members and alternates of the committee shall be selected by the 
Secretary on the basis specified in Sec. 945.23 (b) from nominations 
made pursuant to Sec. 945.25 or from other eligible persons.
    5. In Sec. 945.30, paragraph (a) is revised to read as follows:


Sec. 945.30  Procedure.

    (a) A simple majority of all members of the committee, including 
alternates acting for members, shall be necessary to constitute a 
quorum or to pass any motion or approve any committee action, except 
any motion regarding a change in committee size shall require a 
unanimous vote. At any assembled meeting, all votes shall be cast in 
person.
* * * * *
    6. In Sec. 945.42, paragraph (b) is revised and new paragraphs (d) 
and (e) are added to read as follows:


Sec. 945.42  Assessments.

* * * * *
    (b) Assessments shall be levied upon handlers at a rate per 
hundredweight of potatoes or equivalent established by the Secretary. 
Such rate may be established upon the basis of the committee's budget 
recommendations, and other available information.
* * * * *
    (d) The committee may impose a late payment charge or an interest 
charge, or both, on any handler who fails to pay, on or before the due 
date established by the Secretary, the total assessment for which such 
handler is liable. Such due date and the late payment fee and interest 
rate shall be recommended by the committee and approved by the 
Secretary.
    (e) In order to provide funds to carry out its function, after the 
effective date of this subpart the committee may accept advance 
assessments from handlers. Advance assessments received from a handler 
shall be credited toward assessments levied against that handler during 
that fiscal period. In the case of an extreme emergency, the committee 
may also borrow money on a short term basis to provide funds for the 
administration of this part. Any such borrowed money shall only be used 
to meet the committee's current financial obligations, and the 
committee shall repay all borrowed money by the end of the next fiscal 
period from assessment income.
    7. In Sec. 945.52, paragraph (a)(3) is revised to read as follows:


Sec. 945.52  Issuance of regulations.

    (a) * * *
    (3) Fix the size, capacity, weight, dimensions, pack, labeling or 
marking of the container, or containers, which may be used in the 
packaging or handling of potatoes, or both; or
* * * * *
    8. Section 945.80 is amended by designating the existing 
undesignated text as paragraph (a) and adding new paragraphs (b) 
through (d) to read as follows:


Sec. 945.80  Reports.

* * * * *
    (b) All data or other information constituting a trade secret, or 
disclosing a trade position or business condition of a particular 
handler shall be treated as confidential and shall at all times be 
received by and kept in the custody and under the control of one or 
more designated employees of the committee. Information which would 
reveal the circumstances of a single handler shall be disclosed to no 
person other than the Secretary.
    (c) Each handler shall maintain for at least two succeeding fiscal 
periods such records of potatoes received and of potatoes disposed of 
by such handler as may be necessary to verify reports required pursuant 
to this section. The committee, with the approval of the Secretary, may 
prescribe rules and regulations issued pursuant to this section 
specifying handler records and reports which the committee may need to 
perform its functions.
    (d) For the purpose of assuring compliance and checking and 
verifying reports filed by handlers, the Secretary and the committee, 
through its duly authorized agents, shall have access to any premises 
where applicable records are maintained, where potatoes are held, and, 
at any time during reasonable business hours, shall be permitted to 
inspect such handlers' premises and any and all records of such 
handlers with respect to matters within the purview of this part.

    Dated: May 31, 1995.
Patricia Jensen,
Acting Assistant Secretary, Marketing and Regulatory Programs.
[FR Doc. 95-13687 Filed 6-2-95; 8:45 am]
BILLING CODE 3410-02-P