[Federal Register Volume 71, Number 35 (Wednesday, February 22, 2006)]
[Proposed Rules]
[Pages 9002-9004]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-2436]


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DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Parts 945

[Docket No. FV06-945-1 PR]


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

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Proposed rule.

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SUMMARY: This proposed rule invites comments on removing the exception 
for yellow fleshed Finnish-type potatoes from the minimum quantity 
exemption paragraph of the handling regulations issued under the Idaho-
Eastern Oregon potato marketing order. The marketing order regulates 
the handling of Irish potatoes grown in certain designated counties in 
Idaho, and Malheur County, Oregon, and is administered locally by the 
Idaho-Eastern Oregon Potato Committee (Committee). A minimum quantity 
shipment exemption of up to 200 hundredweight is provided for yellow 
fleshed Finnish-type potatoes. Because yellow fleshed Finnish-type 
potatoes are no longer produced in the production area covered under 
the marketing order, the exemption is no longer necessary.

DATES: Comments must be received by April 24, 2006.

ADDRESSES: Interested persons are invited to submit written comments 
concerning this rule. Comments must be sent to the Docket Clerk, 
Marketing Order Administration Branch, Fruit and Vegetable Programs, 
AMS, USDA, 1400 Independence Avenue SW., STOP 0237, Washington, DC 
20250-0237; Fax: (202) 720-8938; E-mail: [email protected]; or 
Internet: http://www.regulations.gov. Comments should reference the 
docket number and the date and page number of this issue of the Federal 
Register and will be available for public inspection in the Office of 
the Docket Clerk during regular business hours, or can be viewed at: 
http://www.ams.usda.gov/fv/moab.html.

FOR FURTHER INFORMATION CONTACT: Barry Broadbent, Marketing Specialist, 
Northwest Marketing Field Office, Marketing Order Administration 
Branch, Fruit and Vegetable Programs, AMS, USDA, 1220 SW. Third Avenue, 
Suite 385, Portland, OR 97204; Telephone: (503) 326-2724, Fax: (503) 
326-7440; or George J. Kelhart, Technical Advisor, Marketing Order 
Administration Branch, Fruit and Vegetable Programs, AMS, USDA, 1400 
Independence Avenue SW., STOP 0237, Washington, DC 20250-0237; 
Telephone: (202) 720-2491, Fax: (202) 720-8938.
    Small businesses may request information on complying with this 
regulation by contacting Jay Guerber, Marketing Order Administration 
Branch, Fruit and Vegetable Programs, AMS, USDA, 1400 Independence 
Avenue SW., STOP 0237, Washington, DC 20250-0237; Telephone: (202) 720-
2491, Fax: (202) 720-8938, 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.''
    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 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.
    This proposed rule invites comments on removing the exception for 
yellow fleshed Finnish-type potatoes from the minimum quantity 
exemption paragraph of the handling regulations issued under the order. 
The minimum quantity exemption in the regulation allows handlers to 
ship up to five hundredweight of potatoes without regard to the 
inspection and assessment requirements of the order. Included in the 
minimum quantity exemption is an exception for yellow fleshed Finnish-
type potatoes which allows up to 200 hundredweight to be shipped 
without regard to inspection or assessment requirements. The Committee 
unanimously recommended the removal of the exception at its meeting on 
November 2, 2005.
    Section 945.42 of the order provides the authority to assess first 
handlers of potatoes to provide funds to cover the expenses of the 
Committee. Sections 945.51 and 945.52 provide the authority for the 
establishment and modification of regulations applicable to the 
handling of potatoes, including required inspections. Section 945.54 
provides the authority to establish exemptions from the regulations 
based on shipment size.
    Section 945.341 establishes minimum quality, maturity, pack, and 
inspection requirements for potatoes handled subject to the order. 
Paragraphs (e), (f), and (g) of Sec.  945.341 delineate the 
circumstances in which the shipment of potatoes subject to the order 
may be granted an exemption from the regulation. Paragraph (g) of that 
section specifies that shipments of potatoes, except yellow fleshed 
Finnish-type, weighing five hundredweight or less may be shipped 
without regard to the inspection or assessment requirements of the 
order. An exception included in that paragraph increases the minimum 
quantity exemption threshold to 200 hundredweight for yellow fleshed 
Finnish-type potatoes.
    At its meeting on November 2, 2005, the Committee unanimously 
recommended the removal of the special

[[Page 9003]]

exception for yellow fleshed Finnish-type from the handling 
regulations. In its deliberations, the Committee commented that yellow 
fleshed Finnish-type potatoes are no longer produced within the 
production area and that the exception is no longer needed.
    The exception to the minimum quantity exemption for yellow fleshed 
Finnish-type potatoes was added to the regulation in 1987, specifically 
to promote the production and marketing of this new type potato by 
relieving shipments of less than 200 hundredweight from inspection and 
assessment requirements. Nonetheless, the production of yellow fleshed 
Finnish-type potatoes declined over time and is currently nonexistent. 
The Committee noted, however, that the production of other colorful 
varieties (some with yellow flesh but not Finnish-type) has increased 
and that the exception, if retained, may cause confusion to industry 
participants. Since the niche market for which the exception was 
intended no longer exists, and there is the potential for 
misunderstanding within the industry, the Committee believes the 
exception should be removed from the regulation.

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.
    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 48 handlers of Idaho-Eastern Oregon 
potatoes who are subject to regulation under the order and about 1,000 
potato producers in the regulated area. Small agricultural service 
firms, which include potato handlers, are defined by the Small Business 
Administration (SBA) (13 CFR 121.201) as those having annual receipts 
of less than $6,000,000, and small agricultural producers are defined 
as those whose annual receipts are less than $750,000.
    Based on a three-year average fresh potato production of 33,623,000 
hundredweight as calculated from Committee records, a three-year 
average of producer prices of $4.64 per hundredweight reported by the 
National Agricultural Statistics Service, and 1,000 Idaho-Eastern 
Oregon potato producers, the average annual producer revenue is 
approximately $156,000. It can be concluded, therefore, that a majority 
of these producers would be classified as small entities.
    In addition, based on Committee records and 2004-05 f.o.b. shipping 
point prices ranging from about $4.00 to $28.00 per hundredweight 
reported by USDA's Market News Service, most of the Idaho-Eastern 
Oregon potato handlers do not ship over $6,000,000 worth of potatoes. 
In view of the foregoing, it can be concluded that a majority of the 
handlers would be classified as small entities as defined by the SBA.
    This rule would remove the exception for yellow fleshed Finnish-
type potatoes from the minimum quantity exemption in the order. The 
exception was added to the regulation in 1987 to allow less restrictive 
requirements for yellow fleshed Finnish-type potatoes. The intent was 
to facilitate the production and marketing of this new experimental 
type potato. In the years that have followed, though, the production 
and marketing of that type potato has shifted to other potato producing 
regions. Consequently, yellow fleshed Finnish-type potatoes are 
currently not produced within the production area covered by the order 
and the exception to the minimum quantity exemption in handling 
regulations is no longer warranted. Authority for the establishment and 
modification of a minimum quantity exemption is provided in Sec.  
945.54 of the order.
    At the November 2, 2005, meeting, the Committee discussed the 
impact of this change on producers and handlers. Since there currently 
is not any production of the type of potato covered by the exception, 
producers and handlers should not be adversely impacted. In addition, 
there should be no increased costs associated with this modification of 
the handling regulations.
    As an alternative 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. They also felt that the exception, if unchanged, could be 
misinterpreted by the industry. No other alternatives were discussed.
    This rule would not impose any additional reporting or 
recordkeeping requirements on either small or large potato handlers or 
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. The 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 2, 2005, 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.
    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 in 7 CFR Part 945

    Marketing agreements, Potatoes, Reporting and recordkeeping 
requirements.

    For the reasons set forth above, 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. In Sec.  945.341, paragraph (g) is revised to read as follows:


Sec.  945.341  Handling regulation.

* * * * *
    (g) Minimum quantity exemption. Each handler may ship up to, but 
not to exceed, five hundredweight of potatoes any day without regard to 
the inspection and assessment requirements of this part, but this 
exception shall not apply to any shipment that exceeds five 
hundredweight of potatoes.
* * * * *


[[Page 9004]]


    Dated: February 15, 2006.
Lloyd C. Day,
Administrator, Agricultural Marketing Service.
 [FR Doc. E6-2436 Filed 2-21-06; 8:45 am]
BILLING CODE 3410-02-P