[Federal Register Volume 86, Number 35 (Wednesday, February 24, 2021)]
[Rules and Regulations]
[Pages 11091-11094]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-03528]


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DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 946

[Doc. No. AMS-SC-20-0062; SC20-946-1 FR]


Irish Potatoes Grown in Washington; Suspension of Reporting and 
Assessment Requirements

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Final rule.

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SUMMARY: This final rule suspends the reporting and assessment 
requirements prescribed under the marketing order regulating Irish 
potatoes grown in Washington. In a separate action, the State of 
Washington Potato Committee recommended termination of the marketing 
order. This final rule indefinitely suspends the reporting and 
assessment requirements of the marketing order during the period that 
USDA is processing the termination request.

DATES: Effective March 26, 2021 Sec. Sec.  946.143 and 946.248 are 
stayed indefinitely.

FOR FURTHER INFORMATION CONTACT: Gregory A. Breasher, Marketing

[[Page 11092]]

Specialist, or Gary Olson, Regional Director, Northwest Marketing Field 
Office, Marketing Order and Agreement Division, Specialty Crops 
Program, AMS, USDA; Telephone: (503) 326-2724 or Email: 
[email protected] or [email protected].
    Small businesses may request information on complying with this 
regulation by contacting Richard Lower, Marketing Order and Agreement 
Division, Specialty Crops Program, AMS, USDA, 1400 Independence Avenue 
SW, STOP 0237, Washington, DC 20250-0237; Telephone: (202) 720-2491, or 
Email: [email protected].

SUPPLEMENTARY INFORMATION: This action, pursuant to 5 U.S.C. 553, 
amends regulations issued to carry out a marketing order as defined in 
7 CFR 900.2(j). This final rule is issued under Marketing Order No. 
946, as amended (7 CFR part 946), regulating the handling of Irish 
potatoes grown in Washington. Part 946 (referred to as 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 State of Washington Potato Committee (hereinafter referred to 
as the ``Committee'') locally administers the Order and is comprised of 
producers and handlers of Irish potatoes operating within the 
production area.
    The Department of Agriculture (USDA) is issuing this final rule in 
conformance with Executive Orders 13563 and 13175. This action falls 
within a category of regulatory actions that the Office of Management 
and Budget (OMB) exempted from Executive Order 12866 review.
    This final rule has been reviewed under Executive Order 12988, 
Civil Justice Reform. This final 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 a marketing order may file with USDA a 
petition stating that the marketing order, any provision of the 
marketing order, or any obligation imposed in connection with the 
marketing order is not in accordance with law and request a 
modification of the marketing 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.
    The Committee meets regularly to consider recommendations for 
modification, suspension, or termination of the Order's regulatory 
requirements. Committee meetings are open to the public and interested 
persons may express their views at these meetings. USDA reviews 
Committee recommendations, including information provided by the 
Committee and from other available sources, and determines whether 
modification, suspension, or termination of the regulatory requirements 
will tend to effectuate the declared policy of the Act.
    On June 11, 2020, the Committee met and, after much deliberation, 
unanimously recommended that USDA terminate the Order. Additionally, 
the Committee recommended that the Order's reporting and assessment 
requirements--the only regulatory activities of the Order in effect at 
the time--be suspended while the recommendation for termination is 
being processed by USDA. The termination is a separate regulatory 
action from the suspension of administrative requirements.
    Section 946.41 of the Order provides authority for the Committee to 
assess handlers for their pro rata share of the Committee expenses 
authorized each fiscal period. Section 946.70 of the Order authorizes 
the Committee to collect reports and other information necessary for 
the Committee to perform its duties under the Order. This rule 
suspends--or ``stays''--Sec.  946.248, which establishes a continuing 
assessment rate of $0.0025 per hundredweight, effective for the 2013-
2014 and subsequent fiscal periods, and Sec.  946.143, which requires 
monthly reporting of fresh potato shipments from the production area.
    The Order has been in effect since 1949, providing the Washington 
potato industry authority for grade, size, quality, maturity, pack, and 
container requirements, as well as authority for inspection 
requirements. Based on the Committee's recommendation in 2010, USDA 
suspended the Order's handling requirements for Russet potatoes. The 
Committee believed that the costs of inspection outweighed the benefits 
provided from having the Order's regulatory requirements in effect for 
that type potato.
    In 2013, also upon the recommendation of the Committee, USDA 
suspended handling requirements temporarily, through June 30, 2014, for 
all yellow flesh and white type potatoes. The Committee believed that 
the costs of inspection outweighed the benefits provided from 
regulation for these type potatoes as well.
    In 2014, the handling requirements for red type potatoes were 
indefinitely suspended. Also in 2014, the temporary suspension of 
handling requirements for yellow flesh and white types was extended 
indefinitely. The sum of the previous actions effectively suspended the 
handling requirements for all types of Washington potatoes after the 
2013-2014 marketing year. The Committee believed operating without 
handling regulation offered Washington potato handlers a cost savings 
through the elimination of mandatory inspection fees. Also, the 
Committee had determined that the potential negative market impact of 
operating without mandatory quality and inspection requirements was 
minimal.
    Following the suspension of the handling requirements in 2014, the 
Committee continued to levy assessments and to maintain its 
administrative function. The Committee believed that it should continue 
to fund its full operational capability, collect industry statistics on 
an ongoing basis, and maintain the program if regulating quality was 
again deemed necessary.
    The Committee met on June 11, 2020, to discuss the status of the 
Washington potato industry and the relevance of the Order. The 
Committee determined that the suspension of the Order's handling 
requirements has not negatively impacted the industry and that there is 
no longer a need for the Order. Also, the Committee concluded that the 
collection of information under the Order's authority is redundant, as 
the Washington Potato Commission has similar handler reporting 
requirements as the Order, and that the statistical information 
collected by the Commission is provided to the industry. Thus, the 
Committee unanimously recommended terminating the Order.
    In addition, the Committee determined that there is no need to 
continue collecting assessments and requiring reports while USDA 
considers its termination recommendation. Therefore, the Committee also 
unanimously recommended that the assessment and reporting requirements 
of the Order be immediately suspended. This action relieves handlers of 
the assessment and reporting burden during the pendency of the 
termination process.
    At the June meeting, the Committee recommended a budget of $41,150 
for the indefinite period leading up to the termination of the Order. 
The budgeted amount was established based on the funds remaining in the 
Committee's

[[Page 11093]]

monetary reserve and expected future expenses. The budget, in its 
entirety, will provide for such operating expenses as are necessary 
during the termination process, including a final financial review and 
management compensation.

Final Regulatory Flexibility Analysis

    Pursuant to 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 final rule 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 
businesses 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 approximately 250 producers of Washington potatoes and 
approximately 26 fresh potato handlers in the production area subject 
to regulation by the Order.
    Small agricultural service firms are defined by the Small Business 
Administration (13 CFR 121.201) as those having annual receipts of less 
than $30,000,000, and small agricultural producers are defined as those 
having annual receipts of less than $1,000,000.
    According to USDA Market News, the average shipping point price for 
fresh Washington potatoes during the 2019 shipping season was 
approximately $15.79 per hundredweight. The Committee reported 2019-
2020 marketing year fresh potato shipments were 9,687,170 
hundredweight. Using the average price and shipment information along 
with the number of handlers, average annual receipts for a handler were 
significantly less than $30,000,000 ($15.79 times 9,687,170 
hundredweight equals $152,960,414, divided by 26 handlers equals 
$5,883,093 per handler).
    In addition, USDA National Agricultural Statistics Service reported 
an average producer price of $8.20 per hundredweight for the 2019 crop. 
Given the number of Washington potato producers, the average annual 
producer revenue is well below $1,000,000 ($8.20 times 9,687,170 
hundredweight equals $79,434,794, divided by 250 producers equals 
$317,739 per producer). Therefore, most handlers and producers of fresh 
Washington potatoes may be classified as small agricultural businesses.
    This final rule suspends the reporting and assessment requirements 
of the Order. The handler reporting requirement that is suspended is 
the monthly collection of Washington fresh potato shipment information. 
The assessment rate that is suspended is the $0.0025 per hundredweight 
rate that was established beginning July 1, 2013. The Committee also 
recommended a budget of expenditures of $41,150 for the period 
beginning July 1, 2020 and ending with termination of the Order. The 
budget was based on the Committee's estimated financial resources on 
June 30, 2020. Budgeted expenditures include administrative expenses 
and a final financial review.
    The Committee made the recommendation to suspend the reporting and 
assessment requirements as an adjunct to the recommendation to 
terminate the Order. As such, the only other alternative discussed by 
the Committee was to maintain the status quo, continue to assess 
handlers, and to require monthly handling reports. After consideration, 
the Committee determined that the Order is no longer beneficial to the 
industry and that the best recourse was to cease operations and 
terminate the Order.
    This action suspends the Order's reporting and assessment 
obligations imposed on handlers. When in effect, assessments are 
applied uniformly on all handlers, and some of those costs may be 
passed on to producers. Suspension of the reporting and assessment 
requirements reduces the regulatory burden on handlers and is also 
expected to reduce the burden on producers.
    In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 
Chapter 35), the Order's information collection requirements have been 
previously approved by OMB and assigned OMB No. 0581-0178 Vegetable and 
Specialty Crops. This final rule suspends those information collection 
requirements, and any reporting and recordkeeping requirements under 
the Order.
    As with all Federal marketing order programs, reports and forms are 
periodically reviewed to reduce information requirements and 
duplication by industry and public sector agencies. In addition, USDA 
has not identified any relevant Federal rules that duplicate, overlap 
or conflict with this final 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 
Washington potato industry, and all interested persons were invited to 
attend the meeting and participate in Committee deliberations on all 
issues. Like all Committee meetings, the June 11, 2020, meeting was a 
public meeting, and all entities, both large and small, were able to 
express their views on these issues.
    A proposed rule concerning this action was published in the Federal 
Register on October 13, 2020 (85 FR 64415). Copies of the proposal were 
provided by the Committee to members and handlers. Finally, the 
proposed rule was made available through the internet by USDA and the 
Office of the Federal Register. A 60-day comment period ending December 
14, 2020, was provided to allow interested persons to respond to the 
proposal. No comments were submitted. Accordingly, no changes have been 
made to the rule as proposed.
    A small business guide on complying with fruit, vegetable, and 
specialty crop marketing agreements and orders may be viewed at: http://www.ams.usda.gov/rules-regulations/moa/small-businesses. Any questions 
about the compliance guide should be sent to Richard Lower 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 will tend to 
effectuate the declared policy of the Act.

List of Subjects in 7 CFR Part 946

    Marketing agreements, Potatoes, Reporting and recordkeeping 
requirements.

    For the reasons set forth in the preamble, the Agriculture 
Marketing Service amends 7 CFR part 946 as follows:

PART 946--IRISH POTATOES GROWN IN WASHINGTON

0
1. The authority citation for 7 CFR part 946 continues to read as 
follows:

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

[[Page 11094]]

Sec. Sec.  946.143 and 946.248  [Stayed]

0
2. Stay Sec. Sec.  946.143 and 946.248 indefinitely.

Bruce Summers,
Administrator, Agricultural Marketing Service.
[FR Doc. 2021-03528 Filed 2-23-21; 8:45 am]
BILLING CODE P