[Federal Register Volume 67, Number 141 (Tuesday, July 23, 2002)]
[Proposed Rules]
[Pages 48051-48054]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-18572]


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DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Parts 945 and 980

[Docket No. FV00-945-2 PR]


Irish Potatoes Grown in Certain Designated Counties in Idaho, and 
Malheur County, OR, and Irish Potatoes Imported into the United States; 
Proposed Modification of Handling and Import Regulations

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Proposed rule.

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SUMMARY: This proposed rule would remove the reference to Norgold 
variety potatoes from the handling regulation issued under the 
marketing order for Idaho-Eastern Oregon potatoes. The Norgold variety 
is specifically referenced to establish less restrictive maturity 
requirements for early season shipments. Norgold variety potatoes are 
no longer produced in the production area covered under the marketing 
order and the less restrictive requirements are not needed. As required 
under section 608e of the Agricultural Marketing Agreement Act of 1937, 
the maturity requirements for potato imports would be changed 
accordingly.

DATES: Comments must be received by September 23, 2002.

ADDRESSES: Interested persons are invited to submit written comments 
concerning this proposal. Comments must be sent to the Docket Clerk, 
Fruit and Vegetable Programs, AMS, USDA, room 2525-S, 1400 Independence 
Avenue SW., STOP 0237, Washington, DC 20250-0237; Fax: (202) 720-5698, 
or e-mail: [email protected]. 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: Robert Curry, Marketing Specialist, 
Northwest Marketing Field Office, Marketing Order Administration 
Branch, Fruit and Vegetable Programs, AMS, USDA, 1220 SW Third Avenue, 
room 385, Portland, Oregon 97204; telephone: (503) 326-2724, Fax: (503) 
326-7440; or George Kelhart, Technical Advisor, Marketing Order 
Administration Branch, Fruit and Vegetable Programs, AMS, USDA, room 
2525-S, 1400 Independence Avenue SW., STOP 0237, Washington, DC 20250-
0237; telephone: (202) 720-2491, Fax: (202) 720-5698.
    Small businesses may request information on complying with this 
regulation by contacting Jay Guerber, Marketing Order Administration 
Branch, Fruit and Vegetable Programs, AMS, USDA, room 2525-S, 1400 
Independence Avenue SW., STOP 0237, Washington, DC 20250-0237; 
telephone: (202) 720-2491, Fax: (202) 720-5698, or e-mail: 
[email protected].

SUPPLEMENTARY INFORMATION: This proposed rule is issued under Marketing 
Agreement No. 98 and Marketing Order No. 945, both as amended (7 CFR 
part 945), regulating the handling of Irish potatoes grown in certain 
designated counties in Idaho, and Malheur County, Oregon, 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 proposed rule also is issued under Sec. 608e of the Act, which 
provides that whenever certain specified commodities, including 
potatoes, are regulated under a Federal marketing order, imports of 
these commodities into the United States are 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 rule in 
conformance with Executive Order 12866.
    This proposed rule has been reviewed under Executive Order 12988, 
Civil Justice Reform. This action is not intended to have retroactive 
effect. This proposed rule would 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

[[Page 48052]]

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 regulations 
issued under Sec. 608e of the Act.
    Sections 945.51 and 945.52 of the order provide authority for the 
establishment and modification of regulations applicable to the 
handling of potatoes. Section 945.341 establishes minimum maturity and 
pack requirements for potatoes handled subject to the order. Current 
requirements provide, in part, that all potatoes packed in cartons 
shall be inspected and certified as meeting U.S. No. 1 grade or better. 
All varieties shall meet the maturity requirement of slightly skinned 
(except the Norgold variety from August 1-15, and the White Rose and 
red skinned varieties from August 1-December 31 can be moderately 
skinned). During other periods of the year, the White Rose and red 
skinned varieties are not subject to maturity requirements. Size shall 
be conspicuously marked on all cartons (except when used as a master 
container). The grade requirements are based on the U.S. Standards for 
Grades of Potatoes (7 CFR 51.1540-51.1566), and the size must be marked 
consistent with Sec. 51.1545 of the standards.
    This rule would remove the reference to Norgold variety potatoes 
from the maturity requirements in the handling regulation. The Norgold 
variety is specifically referenced to establish less restrictive 
maturity requirements for early season shipments. Norgold variety 
potatoes are no longer produced in the production area covered under 
the marketing order. As required under Sec. 608e of the Act, the 
maturity requirements for potato imports would change accordingly. This 
rule would also remove outdated language and make other conforming 
changes to the handling and import regulations.
    The Idaho-Eastern Oregon Potato Committee (Committee), the agency 
responsible for local administration of the order, met on November 9, 
1999, and unanimously recommended the removal of reference to Norgold 
variety potatoes from the handling regulations.
    Currently, the Norgold variety of potatoes is specifically 
referenced in the handling regulations so a less restrictive maturity 
requirement (moderately skinned) can be applied during a 15-day period 
(August 1-August 15) at the beginning of each shipping season. This 
proposed rule would remove the reference to Norgold potatoes as a 
separate variety from the minimum maturity requirements of the handling 
regulations. The Committee recommended this change in the regulations 
because Norgold variety potatoes are no longer produced in the 
production area.
    Production of this long type variety was discontinued due in part 
to the Norgold variety's inherent propensity to have lighter, thinner 
skin early in the season compared to the varieties produced today. 
Newer replacement varieties are less prone to early season maturity 
problems, which enables the industry to maintain a consistent maturity 
level throughout the entire shipping season.
    In addition, buyers are accustomed to long type potatoes having a 
higher maturity level than this minimum requirement allowed. To meet 
buyer expectations, all varieties of long type potatoes currently 
produced are required to be of a higher maturity level (slightly 
skinned) throughout the marketing year. The degree of skinning or 
maturity is differentiated by the amount of loss of the outer surface 
or skin layer. ``Slightly skinned'' means that up to 10 percent of the 
potatoes in any inspected lot can have one-fourth of the outer skin 
missing, while ``moderately skinned'' potatoes can have one-half of the 
skin missing.
    This proposed change would not have any economic impact upon 
producers or handlers, but would simply update the current handling 
regulations to recognize that the Norgold variety is no longer being 
produced within the production area.
    As mentioned earlier, Sec. 608e 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. Section 608e also provides that whenever two or 
more marketing orders regulating the same commodity produced in 
different areas of the United States are concurrently in effect, a 
determination must be made as to which of the areas produces the 
commodity in most direct competition with the imported commodity. 
Imports must then meet the minimum requirements established for that 
particular area.
    Grade, size, quality, and maturity regulations have been issued 
regularly under the order since it was established. The current import 
regulation in Sec. 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. This proposal would remove reference to 
Norgold variety potatoes from the maturity requirements of the handling 
regulation.
    While no changes are required in the language of Sec. 980.1, 
imports of Norgold variety potatoes from August 1-15 would be required 
to meet the modified maturity requirement of ``slightly skinned.'' This 
proposal is not expected to have any economic impact upon importers. 
Nearly all potato imports come from Canada, and representatives of 
USDA's Market News Service have indicated that their contacts in Canada 
have reported that Norgold variety potatoes are no longer commercially 
produced in Canada.
    This proposed rule also removes Sec. 945.130 of the rules and 
regulations which is obsolete, and revises and updates language in 
Sec. 980.1, Import regulations; Irish potatoes. Sections 945.22 and 
945.23 of the order, regarding committee membership districts within 
the production area and redistricting and committee reapportionment, 
were amended on June 5, 1995 (60 FR 29724), and Sec. 945.130 is no 
longer needed. In addition, this rule would remove references in the 
potato import regulation to the terminated marketing orders for Red 
River Valley and Maine potatoes, remove outdated language regarding 
import regulations in effect during 1970 and 1971, update the list and 
addresses of inspection offices for imports, and update the references 
in the import regulation to government agencies.

Initial Regulatory Flexibility Analysis

    Pursuant to the requirements set forth in the Regulatory 
Flexibility Act (RFA), the Agricultural Marketing Service (AMS) has 
considered the economic impact of this action on small entities. 
Accordingly, AMS has prepared this initial regulatory flexibility 
analysis.

[[Page 48053]]

    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 63 handlers of Idaho-Eastern Oregon 
potatoes who are subject to regulation under the order and about 1,600 
potato producers in the regulated area. There are approximately 161 
importers of potatoes. Small agricultural service firms, which include 
potato handlers and importers, are defined by the Small Business 
Administration (13 CFR 121.201) as those having annual receipts of less 
than $5,000,000, and small agricultural producers are defined as those 
whose annual receipts are less than $750,000. A majority of these 
handlers, importers, and producers may be classified as small entities.
    This rule would remove the reference to Norgold variety potatoes 
from the maturity requirements in the handling regulation. The Norgold 
variety is specifically referenced to establish less restrictive 
maturity requirements for early season shipments. Norgold variety 
potatoes are no longer produced in the production area covered under 
the marketing order. As required under Sec. 608e of the Act, the 
maturity requirements for potato imports would be changed accordingly.
    The Committee met on November 9, 1999, and unanimously recommended 
the removal of the reference to Norgold variety potatoes from the 
handling regulations.
    Currently, the Norgold variety of potatoes is specifically 
referenced in the handling regulations so a less restrictive maturity 
requirement (moderately skinned) can be applied during a 15-day period 
(August 1-15) at the beginning of each shipping season. This proposed 
rule would remove the reference to Norgold potatoes as a separate 
variety from the minimum maturity requirements of the handling 
regulations. The Committee recommended this change in the regulations 
because Norgold variety potatoes are no longer produced in the 
production area. In addition, buyers have become accustomed to long 
type potatoes (such as Norgold variety potatoes) having a higher 
maturity level than this minimum requirement allowed. To meet buyer 
expectations, all varieties of long type potatoes currently produced 
are required to be of a higher maturity level (slightly skinned) 
throughout the marketing year. ``Slightly skinned'' means that up to 10 
percent of the potatoes in any inspected lot can have one-fourth of the 
outer skin missing, while ``moderately skinned'' potatoes can have one-
half of the skin missing. This proposed change would not have any 
economic impact upon producers or handlers, but would simply update the 
current handling regulations to recognize that the Norgold variety is 
no longer being produced within the production area.
    As mentioned earlier, section 608e 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. The current import regulation 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. This proposal 
would remove reference to Norgold variety potatoes from the maturity 
requirements of the handling regulation. While no changes are required 
in the language of Sec. 980.1, imports of Norgold variety potatoes from 
August 1-15 would be required to meet the modified maturity requirement 
of ``slightly skinned.''
    This proposal is not expected to have an economic impact upon 
importers. There are no potato imports during the period of August 1-
15. In addition, representatives of the USDA Market News Service have 
indicated that their contacts in Canada have reported that Norgold 
variety potatoes are no longer commercially produced in Canada. Nearly 
all potato imports come from Canada, but there are no shipments until 
the latter part of September.
    The removal of the references to Norgold variety potatoes is not 
expected to impose any additional costs on handlers, importers, or 
producers.
    As alternatives to the proposal, the Committee discussed leaving 
the handling regulation as currently issued. The Committee rejected 
this idea because it would have left outdated language in the rules and 
regulations.
    This rule would 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 sectors. USDA has not identified any 
relevant Federal rules that duplicate, overlap, or conflict with this 
proposed rule.
    Further, the Committee's meeting was widely publicized throughout 
the potato industry, and all interested persons were invited to attend 
the meeting and participate in Committee deliberations. Like all 
Committee meetings, the November 9, 1999, 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 
information on 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 the 
following Web site: http://www.ams.usda.gov/fv/moab.html. Any questions 
about the compliance guide should be sent to Jay Guerber at the 
previously mentioned address in the FOR FURTHER INFORMATION CONTACT 
section.
    In accordance with section 608e of the Act, the United States Trade 
Representative has concurred with the issuance of this proposed rule.
    A 60-day comment period is provided to allow interested persons to 
respond to this proposal. All written comments timely received will be 
considered before a final determination is made on this matter.

List of Subjects

7 CFR Part 945

    Marketing agreements, Potatoes, Reporting and recordkeeping 
requirements.

7 CFR Part 980

    Food grades and standards, Imports, Marketing agreements, Onions, 
Potatoes, Tomatoes.

    For the reasons set forth above, 7 CFR parts 945 and 980 are 
proposed to be amended as follows:
    1. The authority citation for 7 CFR parts 945 and 980 continues to 
read as follows:

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

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


Sec. 945.130  [Removed]

    2. Section 945.130 is removed.


Sec. 945.341  [Amended]

    3. In Sec. 945.341, paragraph (b)(2) is removed, and paragraphs 
(b)(3) and

[[Page 48054]]

(b)(4) are redesignated as paragraphs (b)(2) and (b)(3), respectively.

PART 980--VEGETABLES; IMPORT REGULATIONS

    4. Section 980.1 is amended as follows:
    a. Revise paragraphs (a)(1)(i), (a)(2)(ii), (b)(2), (e), (f), and 
(g)(1)(ii).
    b. Redesignate paragraph (i) as paragraph (j).
    c. Redesignate paragraphs (h)(1) and (h)(2) as paragraphs (i)(1) 
and (i)(2) and revise newly designated paragraphs (i)(1) and (i)(2). 
The revisions read as follows:


Sec. 980.1  Import regulations; Irish potatoes.

* * * * *
    (a) * * *
    (1) * * *
    (i) Grade, size, quality, and maturity regulations have been issued 
from time to time pursuant to the following marketing orders: No. 945 
(part 945 of this chapter), No. 948 (part 948 of this chapter), No. 947 
(part 947 of this chapter), No. 946 (part 946 of this chapter), and No. 
953 (part 953 of this chapter).
* * * * *
    (2) * * *
    (ii) Imports of all other round type potatoes during the period 
June 5 through July 31 are in most direct competition with the 
marketing of the same type of potatoes produced in the Southeastern 
States covered by Order No. 953 (part 953 of this chapter); and during 
the period of August 1 through June 4 of the following year they are in 
most direct competition with all other round type potatoes produced in 
Area No. 3, Colorado (Northern Colorado) covered by Marketing Order No. 
948, as amended (part 948 of this chapter).
* * * * *
    (b) * * *
    (2) During the period June 5 through July 31 of each marketing 
year, the grade, size, quality, and maturity requirements of Marketing 
Order No. 953 (part 953 of this chapter) applicable to potatoes of the 
round type shall be the respective grade, size, quality, and maturity 
requirements for imports of other round type potatoes; and during the 
period August 1 through the following June 4 of each year the grade, 
size, quality, and maturity requirements of Area No. 3, Colorado 
(Northern Colorado) covered by Marketing Order No. 948, as amended 
(part 948 of this chapter) shall be the respective grade, size, 
quality, and maturity requirements for imports of all other round type 
potatoes.
* * * * *
    (e) Certified seed. Certified seed potatoes shall include only 
those potatoes which are officially certified and tagged as seed 
potatoes by the Plant Health and Production Division, Plant Products 
Directorate, Canadian Food Inspection Agency, and which are 
subsequently used as seed.
    (f) Designation of governmental inspection services. The Federal or 
Federal-State Inspection Service, Fruit and Vegetable Programs, 
Agricultural Marketing Service, U.S. Department of Agriculture and the 
Food of Plant Origin Division, Plant Products Directorate, Canadian 
Food Inspection Agency, are hereby designated as governmental 
inspection services for the purpose of certifying the grade, size, 
quality, and maturity of Irish potatoes that are imported, or to be 
imported, into the United States under the provisions of Sec. 608e of 
the Act.
    (g) * * *
    (1) * * *
    (ii) Since inspectors may not be stationed in the immediate 
vicinity of a port, or point of entry, an importer of uninspected and 
uncertified Irish potatoes should make advance arrangements for 
inspection. Each importer should give at least the specified advance 
notice to one of the following applicable inspection offices prior to 
the time the Irish potatoes would be imported.

------------------------------------------------------------------------
                                                               Advance
         Ports and points             Inspection offices        notice
                                                                (days)
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All Maine ports and points of      In-Charge, Post Office              1
 entry.                             Box 1058, Presque Isle,
                                    ME 04767 (PH 207-764-
                                    2100).
Port of Boston, MA...............  In-Charge, Boston Market            1
                                    Terminal Building, Room
                                    1, 34 Market Street,
                                    Everett, MA 02149 (PH
                                    617-389-2480).
Port of New York, NY.............  In-Charge, 465B New York            1
                                    City Terminal Market,
                                    Bronx, NY 10474 (PH 718-
                                    991-7665).
Port of Philadelphia, PA.........  In-Charge, 210 Produce              1
                                    Building, 3301 South
                                    Galloway Street,
                                    Philadelphia, PA 19148
                                    (PH 215-336-0845.
All other ports and points of      Head, Field Operations              3
 entry..                            Section, Fresh Products
                                    Branch, Fruit and
                                    Vegetable Programs,
                                    AMS, USDA, Washington,
                                    DC 20250 (PH 1-800-811-
                                    2373).
------------------------------------------------------------------------

* * * * *
    (i) Definitions. (1) For the purpose of this part potatoes meeting 
the requirements of Canada No. 1 grade and Canada No. 2 grade shall be 
deemed to comply with the requirements of the U.S. No. 1 grade and U.S. 
No. 2 grade, respectively, and the tolerances for size, as set forth in 
the U.S. Standards for Grades of Potatoes (Secs. 51.1540 to 51.1556, 
inclusive of this title) may be used.
    (2) Importation means release from the custody of the U.S. Customs 
Service.
* * * * *

    Dated: July 17, 2002.
A.J. Yates,
Administrator, Agricultural Marketing Service.
[FR Doc. 02-18572 Filed 7-22-02; 8:45 am]
BILLING CODE 3410-02-P