[Federal Register Volume 61, Number 22 (Thursday, February 1, 1996)]
[Rules and Regulations]
[Pages 3546-3547]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-2065]



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


DEPARTMENT OF AGRICULTURE
7 CFR Part 945

[FV95-945-2FIR]


Irish Potatoes Grown in Certain Designated Counties in Idaho, and 
Malheur County, Oregon; Modification of the Handling Regulation

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Final rule.

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

SUMMARY: The Department of Agriculture (Department) is adopting as a 
final rule, without change, the provisions of an interim final rule 
which changed pack requirements and established marking requirements 
for Idaho-Eastern Oregon potatoes. These changes are expected to 
improve the marketing of such potatoes and increase returns to 
producers. These changes were recommended by the Idaho-Eastern Oregon 
Potato Committee (Committee), the agency responsible for local 
administration of the marketing order program. The rule also included 
several conforming changes to recognize that the marketing order 
regulates shipments of potatoes within, as well as outside, the 
production area.

EFFECTIVE DATE: This final rule becomes effective March 4, 1996.

FOR FURTHER INFORMATION CONTACT: Gary D. Olson, Northwest Marketing 
Field Office, Marketing Order Administration Branch, Fruit and 
Vegetable Division, AMS, USDA, 1220 SW Third Avenue, room 369, 
Portland, Oregon 97204-2807; telephone: (503) 326-2724 or FAX (503) 
326-7440; or Valerie L. Emmer, Marketing Order Administration Branch, 
Fruit and Vegetable Division, AMS, USDA, P.O. Box 96456, room 2523-S, 
Washington, D.C. 20090-6456; telephone: (202) 205-2829, or FAX (202) 
720-5698.

SUPPLEMENTARY INFORMATION: This rule is issued under Marketing 
Agreement and 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.''
    The Department is issuing this rule in conformance with Executive 
Order 12866.
    This rule has been reviewed under Executive Order 12778, Civil 
Justice Reform. This rule is not intended to have retroactive effect. 
This final 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. 

[[Page 3547]]

    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.
    There are approximately 65 handlers of Idaho-Eastern Oregon 
potatoes that are subject to regulation under the order and 
approximately 1,600 producers in the production area. 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 potato handlers 
regulated under the order may be classified as small entities. A 
majority of producers may also be classified as small entities.
    This rule finalizes an interim final rule which amended the 
handling regulation in Sec. 945.341 by specifying that: (1) All cartons 
(except when used as master containers) be conspicuously marked as to 
size of the potatoes in the carton; (2) for all varieties, when 50-
pound containers are marked with a count, size, or similar designation, 
the potatoes contained therein must meet the count, average count, and 
weight ranges established within the handling regulation; and (3) all 
Idaho-Eastern Oregon potatoes packed in cartons of any size (except 
when cartons are used as master containers) shall be U.S. No. 1 grade 
or better. The interim final rule also included several conforming 
changes to recognize that the order regulates shipments of potatoes 
within, as well as outside, the production area.
    These changes were recommended by the Committee at its August 9, 
1995, meeting. The Committee's recommendations are authorized pursuant 
to Secs. 945.51 and 945.52 of the order. This rule will continue the 
improvement in the marketing of Idaho-Eastern Oregon potatoes and 
improve returns to producers.
    A recent order amendment (60 FR 29724; June 5, 1995), added 
authority to Sec. 945.52 to require accurate and uniform marking and 
labeling of containers in which Idaho-Eastern Oregon potatoes are 
shipped. With this authority in the order, the Committee recommended 
requiring that all cartons shall be conspicuously marked as to potato 
size; i.e., marked so that the potato size is noticeable on the carton. 
The Committee recommended this requirement to reduce confusion in the 
marketplace as to the size of the potatoes in cartons. While most 
cartons already are marked as to size, the Committee reported that 
there have been many instances when product size in unmarked cartons 
was misrepresented through the marketing chain; (e.g., 100-count size 
potatoes in 50-pound cartons being represented as 90-count size). This 
type of misrepresentation created market confusion, damaged buyer 
acceptance, and depressed prices. The marking requirement should 
continue in effect to prevent such problems.
    In addition, the interim final rule changed the pack requirements 
in Sec. 945.341(c). For several decades, the handling regulation 
specified that when long varieties of potatoes in 50-pound containers 
are marked with a count, size or similar designation, the potatoes 
contained therein must meet the count, average count and weight ranges 
established within the handling regulation. This benefitted buyers and 
sellers by reducing market confusion and misrepresentation related to 
the marking of count and weight ranges on 50-pound containers. In 
recent years, there has been an increase in the number of plantings of 
round varieties grown in the Idaho-Eastern Oregon production area. 
Therefore, the Committee recommended that this pack requirement, which 
the industry has found to be beneficial for long varieties, be extended 
to all varieties. The extension of the pack requirement to all 
varieties should be continued to further the marketing of potatoes from 
the production area.
    The second aspect of the change in pack requirements recommended by 
the Committee was the establishment of a requirement that all Idaho-
Eastern Oregon potatoes packed in cartons of any size (except when 
cartons are used as master containers) shall be U.S. No. 1 grade or 
better. Previously, the handling regulation required this only of 
potatoes packed in 50-pound cartons (except when used as master 
containers). Some buyers had indicated that a smaller carton size is 
more desirable than the 50-pound carton. Those buyers indicated that 
they need a smaller carton that takes up less storage space and is 
easier to lift and handle. However, those buyers still want to be 
provided with the same quality of potatoes; i.e., U.S. No. 1 grade or 
better. Previously, the grade of potatoes packed in other than 50-pound 
cartons had to be U.S. No. 2 grade or better. This finalization of 
change in the handling regulation reflects the industry's intention to 
provide a high quality product, regardless of carton size used. The 
change should remain in effect so that goal can be met.
    Another order amendment revised Sec. 945.9 to broaden the scope of 
the order to authorize regulating shipments of potatoes within, as well 
as outside, the production area. Conforming changes were made in 
Sec. 945.341(d)(3) regarding inspection and certification procedures so 
these procedures cover all shipments of potatoes, not only shipments 
made outside the production area.
    The changes to the handling regulation were published in the 
Federal Register as an interim final rule on November 24, 1995 (60 FR 
57904). That rule provided that interested persons could file comments 
through December 26, 1995. No comments were received.
    Based on available information, the Administrator of the AMS has 
determined that this action will not have a significant economic impact 
on a substantial number of small entities.
    After consideration of all relevant material presented, including 
the Committee's recommendation and other available 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 945

    Marketing agreements, Potatoes, Reporting and recordkeeping 
requirements.

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

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

    Accordingly, the interim final rule amending 7 CFR part 945 which 
was published at 60 FR 57904 on November 24, 1995, is adopted as a 
final rule without change.

    Dated: January 24, 1996.
Sharon Bomer Lauritsen
Deputy Director, Fruit and Vegetable Division.
[FR Doc. 96-2065 Filed 1-31-96; 8:45 am]
BILLING CODE 3410-02-P