[Federal Register Volume 71, Number 99 (Tuesday, May 23, 2006)]
[Rules and Regulations]
[Pages 29565-29567]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-4748]



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 Rules and Regulations
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  Federal Register / Vol. 71, No. 99 / Tuesday, May 23, 2006 / Rules 
and Regulations  

[[Page 29565]]



DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 945

[Docket No. FV06-945-1 FR]


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

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Final rule.

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

SUMMARY: This rule removes the minimum quantity exemption for yellow 
fleshed Finnish-type potatoes from 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 per day 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 from handling and assessment regulations is no longer 
necessary.

DATES: Effective Date: This final rule becomes effective May 24, 2006.

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.
    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 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.''
    The Department of Agriculture (USDA) is issuing this rule in 
conformance with Executive Order 12866.
    This final rule has been reviewed under Executive Order 12988, 
Civil Justice Reform. This rule 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.
    This final rule removes 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. An exception for yellow fleshed 
Finnish-type potatoes is included in the exemption which allows up to 
200 hundredweight per day 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 authority to assess first 
handlers of potatoes to provide funds to cover the expenses of the 
Committee. Sections 945.51 and 945.52 provide authority for the 
establishment and modification of regulations applicable to the 
handling of potatoes, including required inspections. Section 945.54 
provides 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 regulation. Paragraph (g) of that 
section specifies the five hundredweight or less per day shipment 
exemption, and the exception of up to 200 hundredweight per day for 
yellow fleshed Finnish-type potatoes.
    At its meeting on November 2, 2005, the Committee unanimously 
recommended the removal of the special 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 of the burden of 
inspection and assessment. In spite of this advantage, 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.

[[Page 29566]]

Since the niche market for which the exception was intended no longer 
exists, and there remains the potential for misunderstanding within the 
industry, the Committee believes that the exception should be removed 
from the handling regulations.

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.
    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 $6,500,000, 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 $6,500,000 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 final rule removes 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 this type potato has shifted to other potato producing 
regions. Consequently, yellow fleshed Finnish-type potatoes currently 
are 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 minimum quantity exemptions 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 it was 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 and applied to other colored flesh type 
potatoes that are not yellow fleshed Finnish-type. No other 
alternatives were discussed.
    This final rule does 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 final rule.
    AMS is committed to compliance with the Government Paperwork 
Elimination Act (GPEA), which requires Government agencies in general 
to provide the public the option of submitting information or 
transacting business electronically to the maximum extent possible.
    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 were invited to submit 
information on the regulatory and informational impacts of this action 
on small businesses.
    A proposed rule concerning this action was published in the Federal 
Register on February 22, 2006 (71 FR 9002). Copies of the rule were 
mailed or sent via facsimile to all Committee members and potato 
handlers. Finally, the rule was made available through the Internet by 
the Office of the Federal Register. A 60-day comment period ending 
April 24, 2006, was provided to allow interested persons to respond to 
the proposal. 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 material 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.
    It is further found that good cause exists for not postponing the 
effective date of this rule until 30 days after publication in the 
Federal Register (5 U.S.C. 553) because this rule removes provisions 
that are no longer necessary. Further, handlers are shipping potatoes 
from the 2005-2006 crop. Moreover, handlers are aware of this rule, 
which was recommended at a public meeting. Also, a 60-day comment 
period was provided in the proposed rule and no comments were received.

List of Subjects in 7 CFR Part 945

    Marketing agreements, Potatoes, Reporting and recordkeeping 
requirements.


0
For the reasons set forth above, 7 CFR part 945 is amended as follows:

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

0
1. The authority citation for 7 CFR part 945 continues to read as 
follows:

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


[[Page 29567]]



0
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.
* * * * *

    Dated: May 17, 2006.
Lloyd C. Day,
Administrator, Agricultural Marketing Service.
[FR Doc. 06-4748 Filed 5-22-06; 8:45 am]
BILLING CODE 3410-02-P