[Federal Register Volume 78, Number 140 (Monday, July 22, 2013)]
[Proposed Rules]
[Pages 43827-43829]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-17464]


 ========================================================================
 Proposed Rules
                                                 Federal Register
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 This section of the FEDERAL REGISTER contains notices to the public of 
 the proposed issuance of rules and regulations. The purpose of these 
 notices is to give interested persons an opportunity to participate in 
 the rule making prior to the adoption of the final rules.
 
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 

  Federal Register / Vol. 78, No. 140 / Monday, July 22, 2013 / 
Proposed Rules  

[[Page 43827]]



DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 947

[Doc. No. AMS-FV-13-0036; FV13-947-1 PR]


Irish Potatoes Grown in Modoc and Siskiyou Counties, California, 
and in All Counties in Oregon, Except Malheur County; Termination of 
Marketing Order No. 947

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Proposed rule.

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SUMMARY: This proposed rule invites comments on the termination of 
Marketing Order No. 947 (order), which regulates the handling of Irish 
potatoes grown in Modoc and Siskiyou Counties, California, and in all 
counties in Oregon, except Malheur County, and the rules and 
regulations issued thereunder. The order is administered locally by the 
Oregon-California Potato Committee (Committee), which recommended 
termination of the marketing order at a meeting held on March 7, 2013. 
This recommendation is based on the Committee's determination that the 
order is no longer an effective marketing tool for the Oregon-
California potato industry, and that termination would best serve the 
current needs of the industry while also eliminating the costs 
associated with operating the marketing order.

DATES: Comments must be received by September 20, 2013.

ADDRESSES: Interested persons are invited to submit written comments 
concerning this proposal. Comments must be sent to the Docket Clerk, 
Marketing Order and Agreement Division, Fruit and Vegetable Program, 
AMS, USDA, 1400 Independence Avenue SW., STOP 0237, Washington, DC 
20250-0237; Fax: (202) 720-8938; or Internet: http://www.regulations.gov. Comments should reference the document 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.regulations.gov. All comments submitted in response to this 
proposal will be included in the record and will be made available to 
the public. Please be advised that the identity of the individuals or 
entities submitting comments will be made public on the Internet at the 
address provided above.

FOR FURTHER INFORMATION CONTACT: Kathleen Bright, Marketing Order and 
Agreement Division, Fruit and Vegetable Program, AMS, USDA; 1400 
Independence Avenue SW., Stop 0237, Washington, DC 20250-0237; 
Telephone: (202) 205-2830, Fax: (202) 720-8938 or Email: 
[email protected] or Michelle Sharrow, Marketing Order and 
Agreement Division, Fruit and Vegetable Program, AMS, USDA; 1400 
Independence Avenue SW., Stop 0237, Washington, DC 20250-0237; 
Telephone: (202) 720-9921, Fax: (202) 720-8938 or Email: 
[email protected].
    Small businesses may request information on complying with this 
regulation by contacting Jeffrey Smutny, Marketing Order and Agreement 
Division, Fruit and Vegetable Program, AMS, USDA, 1400 Independence 
Avenue SW., STOP 0237, Washington, DC 20250-0237; Telephone: (202) 720-
2491, Fax: (202) 720-8938, or Email: [email protected].

SUPPLEMENTARY INFORMATION: This proposal is governed by Sec.  
608c(16)(A) of the Agricultural Marketing Agreement Act of 1937, as 
amended (7 U.S.C. 601-674), hereinafter referred to as the ``Act'', and 
Sec.  947.71 of Marketing Agreement No. 114 and Marketing Order No. 
947, both as amended (7 CFR part 947), effective under the Act and 
hereinafter referred to as the ``order''.
    The Department of Agriculture (USDA) is issuing this proposed rule 
in conformance with Executive Order 12866.
    This proposal to terminate the order has been reviewed under 
Executive Order 12988, Civil Justice Reform. This proposed rule is not 
intended to have retroactive effect. '
    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 proposal invites comments on the termination of the order and 
the rules and regulations issued thereunder. The order authorizes 
regulation of the handling of Oregon-California potatoes. At a meeting 
held in Salem, Oregon, on March 7, 2013, the Committee recommended 
termination of the order.
    Section 947.71 of the order provides, in pertinent part, that USDA 
terminate or suspend any or all provisions of the order when a finding 
is made that the order does not tend to effectuate the declared policy 
of the Act. In addition, section 608c(16)(A) of the Act provides that 
USDA terminate or suspend the operation of any order whenever the order 
or any provision thereof obstructs or does not tend to effectuate the 
declared policy of the Act. Additionally, USDA is required to notify 
Congress not later than 60 days before the date the order would be 
terminated.
    The order has been in effect since 1942 and provides the Oregon-
California potato industry with authority to establish grade, size, 
maturity, quality, pack and inspection requirements. The order also 
authorizes marketing research and development projects, the collection 
of assessments, and reporting and recordkeeping requirements.
    Based on the Committee's recommendation, USDA suspended the order's 
handling, reporting, and assessment collection regulations effective 
July 1, 1999 (64 FR 49352). The suspended handling regulations (Sec.  
947.340) consist of minimum quality requirements for potatoes produced 
within the regulated production area. When the Committee made the

[[Page 43828]]

recommendation to suspend the handling regulations, the industry 
believed that the costs of inspections outweighed the benefits of 
having the regulatory requirements in effect. At that time, the 
Committee also suspended the collection of assessments because there 
were sufficient funds in the monetary reserve to support the 
Committee's administrative functions. Suspension of Sec. Sec.  947.247 
and 947.180 suspended the collection of assessments and the reporting 
provision that provided a basis for assessment collection. The 
Committee also decided to evaluate its finances and the marketing 
conditions annually thereafter to determine whether to continue with 
the suspension or take some other action.
    After almost 14 years of evaluating the effects of operating 
without the handling, reporting, and collection of assessment 
regulations, the Committee has determined that suspension of the 
regulations has not adversely impacted the Oregon-California potato 
industry. Analysis of the marketing conditions over the past 14 years, 
and analysis of statistics showing that the Oregon-California potato 
industry has steadily declined over the past several years, led the 
Committee to conclude that the order is no longer an effective 
marketing tool. Termination would relieve the industry of the costs and 
burdens associated with the order.
    Evidence reflecting the industry's steady decline include 
statistics showing that the Oregon-California potato industry has fewer 
producers and handlers today than there were 30 years ago, and that 
acreage and production have significantly decreased. For example, USDA 
Marketing Order and Agreement Division records from a continuance 
referendum in 1978 indicate that there were approximately 464 producers 
of potatoes in the order's production area, while the most recent 
information received from the Committee indicates that there are now 
only 130 active producers. Furthermore, Committee records indicate that 
there were 47 handlers in 1978. Currently, there are only 16 handlers 
operating. Committee records also indicate that 6,810,195 hundredweight 
of Oregon-California potatoes were shipped in 1978 as compared to the 
3,430,548 hundredweight shipped in 2011.
    The proposed termination of the order is intended to solicit input 
and any additional information available from interested parties 
regarding whether the order should be terminated. USDA will evaluate 
all available information prior to making a final determination on this 
matter. Termination of the order would become effective only after a 
60-day notification to Congress as required by law.

Initial Regulatory Flexibility Analysis

    Pursuant to the requirements set forth in the Regulatory 
Flexibility Act (RFA) (5 U.S.C. 601-612), the Agricultural Marketing 
Service (AMS) has considered the economic impact of this rule 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 the rules issued thereunder, are unique in 
that they are brought about through group action of essentially small 
entities acting on their own behalf.
    There are 16 handlers of potatoes subject to regulation under the 
order and approximately 130 potato producers in the regulated 
production area. Small agricultural service firms are defined by the 
Small Business Administration (SBA) as those having annual receipts of 
less than $7,000,000, and small agricultural producers are defined as 
those having annual receipts of less than $750,000. (13 CFR 121.201)
    During the 2011 marketing year, the Committee reports that 
3,430,548 hundredweight of Oregon-California potatoes were shipped into 
the fresh market. Based on information from the National Agricultural 
Statistics Service, the average producer prices for Oregon and 
California potatoes in 2011 were $8.05 and $14.70 per hundredweight, 
respectively. Multiplying the 2011 shipment quantity times each of the 
two state average producer prices, the average gross annual revenue for 
the 130 Oregon-California potato producers is calculated to range 
between $212,430 and $387,916.
    Typical f.o.b. shipper prices were estimated to be about $2.00 
higher than the average grower price per hundredweight. The Committee 
estimated handler annual receipts from the sale of potatoes by 
multiplying the estimated shipper prices by individual handler shipment 
quantities. Based on those computations, the Committee estimated that 
15 out of the 16 handlers, or approximately 94 percent, had annual 
receipts of less than $7,000,000. In view of the foregoing, the 
majority of Oregon-California potato producers and handlers may be 
classified as small entities.
    This proposed rule would terminate the Federal marketing order for 
Oregon-California potatoes and the rules and regulations issued 
thereunder. The order authorizes regulation of the handling of Oregon-
California potatoes. The Committee has determined that the order is no 
longer an effective marketing tool for the Oregon-California potato 
industry. Evidence shows that suspension of the handling regulations 
has not adversely impacted the shipment of potatoes and that the costs 
associated with the order outweigh the benefits. The Committee also 
believes that the decline in the number of handlers and producers, and 
the acreage and volume of Oregon-California potatoes supports 
termination of the order. As a consequence, in a vote at a meeting on 
March 7, 2013, the Committee recommended that USDA terminate the order.
    Section 947.71 of the order provides that USDA terminate or suspend 
any or all provisions of the order when a finding is made that the 
order does not tend to effectuate the declared policy of the Act. 
Furthermore, Sec.  608c(16)(A) of the Act provides that USDA shall 
terminate or suspend the operation of any order whenever the order or 
provision thereof obstructs or does not tend to effectuate the declared 
policy of the Act. An additional provision requires that Congress be 
notified not later than 60 days before the date the order would be 
terminated.
    The proposed termination of the order is a regulatory relaxation 
and would reduce the costs to both handlers and producers (while 
marketing order requirements are applied to handlers, the costs of such 
requirements are often passed on to producers). Furthermore, following 
a period of approximately 14 years of regulatory suspension, the 
Committee has determined that termination of the order would not 
adversely impact the Oregon-California potato industry.
    The Committee considered alternatives to this rule, including 
continuing with the suspension of the handling regulations, which would 
require no regulatory action at this time; however, this would require 
the Committee to continue collecting assessments and enforcing the 
reporting requirements. The Committee also considered requesting a 
producer continuance referendum. The Committee did not support either 
option, and instead recommended that the order be terminated.
    This proposed rule is intended to solicit input and other available 
information from interested parties on whether the order should be 
terminated. USDA will evaluate all available

[[Page 43829]]

information prior to making a final determination on this matter.
    In accordance with the Paperwork Reduction Act of 1995, (44 U.S.C. 
Chapter 35), the information collection requirements being terminated 
were approved previously by the Office of Management and Budget (OMB) 
and assigned OMB No. 0581-0178, Generic Vegetable and Specialty Crops. 
Termination of the reporting requirements under the marketing order 
would reduce the reporting and recordkeeping burden on California and 
Oregon potato handlers by 316.42 hours, and should further reduce 
industry expenses.
    Since handlers would no longer be required to file forms with the 
Committee, this proposed rule would not impose any additional reporting 
or recordkeeping requirements on either small or large entities.
    In addition, USDA has not identified any relevant Federal rules 
that duplicate, overlap or conflict with this rule.
    AMS is committed to complying with the E-Government Act, to promote 
the use of the Internet and other information technologies to provide 
increased opportunities for citizen access to Government information 
and services, and for other purposes.
    The Committee's meeting was widely publicized throughout the 
Oregon-California potato industry, and all interested persons were 
invited to attend the meeting and participate in the Committee's 
deliberations. Like all Committee meetings, the March 7, 2013, meeting 
was a public meeting, and all entities, both large and small, were able 
to express their views on this issue. Additionally, 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: 
www.ams.usda.gov/MarketingOrdersSmallBusinessGuide. Any questions about 
the compliance guide should be sent to Jeffrey Smutny at the previously 
mentioned address in the FOR FURTHER INFORMATION CONTACT section.
    This proposal invites comments on the termination of Marketing 
Order No. 947, which regulates the handling of Irish potatoes grown in 
Modoc and Siskiyou Counties, California, and in all counties in Oregon, 
except Malheur County. All written comments received in a timely manner 
will be considered before a final determination is made on this matter.
    Based on the foregoing, and pursuant to Sec.  608c(16)(A) of the 
Act and Sec.  947.71 of the order, USDA is considering termination of 
the order. If USDA decides to terminate the order, trustees would be 
appointed to conclude and liquidate the affairs of the Committee, and 
would continue in that capacity until discharged by USDA. In addition, 
USDA would notify Congress 60 days in advance of termination pursuant 
to Sec.  608c(16)(A) of the Act.

List of Subjects in 7 CFR Part 947

    Marketing agreements, Potatoes, Reporting and recordkeeping 
requirements.

PART 947--[REMOVED]

0
For the reasons set forth in the preamble, under the authority of 7 
U.S.C. 601-674, 7 CFR part 947 is proposed to be removed.

    Dated: July 16, 2013.
Rex A. Barnes,
Associate Administrator, Agricultural Marketing Service.
[FR Doc. 2013-17464 Filed 7-19-13; 8:45 am]
BILLING CODE 3410-02-P