[Federal Register Volume 67, Number 212 (Friday, November 1, 2002)]
[Rules and Regulations]
[Pages 66529-66532]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-27767]


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DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Parts 945 and 980

[Docket No. FV00-945-2 FR]


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

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Final rule.

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SUMMARY: This rule removes the reference to Norgold variety potatoes 
from the handling regulation issued under the marketing order for 
Idaho-Eastern Oregon potatoes. The Norgold variety was specifically 
referenced to establish less restrictive maturity requirements for 
early season shipments. However, 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 are changed accordingly.

EFFECTIVE DATE: This final rule becomes effective December 2, 2002.

FOR FURTHER INFORMATION CONTACT: Robert Curry, Northwest Marketing 
Field Office, Marketing Order Administration Branch, Fruit and 
Vegetable Programs, AMS, USDA, 1220 SW Third Avenue, suite 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 final 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 rule also is issued under section 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 rule has been reviewed under Executive Order 12988, 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 
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 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 section 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. 
Requirements in effect prior to this final rule provided, in part, that 
all potatoes packed in cartons were to be inspected and certified as 
meeting U.S. No. 1 grade or better. All varieties were to 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 were allowed to be moderately skinned). During 
other periods of the year, the White Rose and red skinned varieties are 
not subject to maturity requirements. Size is to 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 section 51.1545 of these standards.
    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.
    Prior to this final rule, the Norgold variety of potatoes was 
specifically referenced in the handling regulations so a less 
restrictive maturity requirement (moderately skinned) could be applied 
during a 15-day period (August 1-August 15) at the beginning of each 
shipping season. This rule removes the reference to Norgold potatoes as 
a separate variety from the minimum maturity requirements of the 
handling regulations. As required under section 608e of the Act, the 
maturity requirements for potato imports are changed accordingly. This 
rule also removes outdated language and makes other conforming changes 
to the handling and import regulations. The Committee recommended this 
change in the regulations because Norgold variety

[[Page 66530]]

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 change will not have any economic impact upon producers or 
handlers, as it simply updates the 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. 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 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 rule removes 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, any 
potential imports of long type potatoes, including the Norgold variety, 
during the period from August 1-15 will be required to meet the 
modified maturity requirement of ``slightly skinned.''
    This rule 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 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 removes references in the potato import regulation 
to the terminated marketing orders for Red River Valley and Maine 
potatoes, removes outdated language regarding import regulations in 
effect during 1970 and 1971, updates the list and addresses of 
inspection offices for imports, and updates the references in the 
import regulation to government agencies.

Final 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 final 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 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 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 removes the reference to Norgold variety potatoes from 
the maturity requirements in the handling regulation. The Norgold 
variety was specifically referenced to establish less restrictive 
maturity requirements for early season shipments. However, Norgold 
variety potatoes are no longer produced in the production area covered 
under the marketing order. As required under section 608e of the Act, 
the maturity requirements for potato imports are also changed.
    The Committee met on November 9, 1999, and unanimously recommended 
the removal of the reference to Norgold variety potatoes from the 
handling regulations.
    Prior to this final rule, the Norgold variety of potatoes was 
specifically referenced in the handling regulations so a less 
restrictive maturity requirement (moderately skinned) could be applied 
during a 15-day period (August 1-15) at the beginning of each shipping 
season. This final rule removes the reference to Norgold potatoes as a 
separate variety from the minimum maturity requirements of the handling 
regulations. As earlier stated, 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 change will not 
have any economic impact upon producers or handlers, as it simply 
updates the 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

[[Page 66531]]

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 rule removes 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, all potential imports of long type potatoes, including the 
Norgold variety, during the period from August 1-15 would be required 
to meet the modified maturity requirement of ``slightly skinned.''
    This rule is not expected to have an economic impact upon importers 
as there are currently 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 an alternative to this rule, the Committee discussed leaving the 
handling regulations unchanged. The Committee rejected this idea 
because it would have left outdated language in the rules and 
regulations.
    This rule does 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 
final 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.
    A proposed rule concerning this action was published in the Federal 
Register on July 23, 2002 (67 FR 48051). A copy of the rule was mailed 
to the Committee's manager who in turn provided copes to all Committee 
members. The proposed rule was also made available through the Internet 
by the Office of the Federal Register and USDA. A 60-day comment period 
ending September 23, 2002, was provided to allow interested persons the 
opportunity to respond to the proposal as well as to submit information 
on the regulatory and informational impacts of the action on small 
businesses. No comments were received.
    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.
    After consideration of all relevant matter presented, including the 
information and recommendation submitted by the Committee and other 
available information, it is hereby found that this rule, as 
hereinafter set forth, will tend to effectuate the declared policy of 
the Act.
    In accordance with section 608e of the Act, the United States Trade 
Representative has concurred with the issuance of this rule.

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 
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 (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

[[Page 66532]]

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 will 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 20250-0240 (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 (Sec. Sec.  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: October 28, 2002.
A.J. Yates,
Administrator, Agricultural Marketing Service.
[FR Doc. 02-27767 Filed 10-31-02; 8:45 am]
BILLING CODE 3410-02-P