[Federal Register Volume 86, Number 77 (Friday, April 23, 2021)]
[Proposed Rules]
[Pages 21667-21669]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-08408]


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 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. 86, No. 77 / Friday, April 23, 2021 / 
Proposed Rules  

[[Page 21667]]



DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 945

[Doc. No. AMS-SC-20-0074; SC20-945-1 PR]


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

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Proposed rule.

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SUMMARY: This proposed rule invites comments on a recommendation from 
the Idaho-Eastern Oregon Potato Committee (Committee) to revise the 
size requirements for Irish potatoes grown in certain designated 
counties of Idaho, and Malheur County, Oregon. The Committee 
recommended this action to improve the handling and marketing of Idaho-
Eastern Oregon potatoes and increase returns to producers.

DATES: Comments must be received by June 22, 2021.

ADDRESSES: Interested persons are invited to submit written comments 
concerning this proposed rule. Comments must be sent to the Docket 
Clerk, Marketing Order and Agreement Division, Specialty Crops Program, 
AMS, USDA, 1400 Independence Avenue SW, STOP 0237, Washington, DC 
20250-0237; Fax: (202) 720-8938; or internet: https://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 https://www.regulations.gov. All comments submitted in response to this 
proposed rule 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 the comments will be made public on the internet 
at the address provided above.

FOR FURTHER INFORMATION CONTACT: Gregory A. Breasher, Marketing 
Specialist, or Gary D. Olson, Regional Manager, Northwest Marketing 
Field Office, Marketing Order and Agreement Division, Specialty Crops 
Program, AMS, USDA; Telephone: (503) 326-20544, Fax: (503) 326-7440, 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, 
Fax: (202) 720-8938, or email: [email protected].

SUPPLEMENTARY INFORMATION: This action, pursuant to 5 U.S.C. 553, 
proposes an amendment to regulations issued to carry out a marketing 
order as defined in 7 CFR 900.2(j). This proposed rule is issued under 
Marketing Agreement 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. Part 985 
(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 Committee locally 
administers the Marketing Order and is comprised of potato producers 
and handlers operating within the production area.
    The Department of Agriculture (USDA) is issuing this proposed 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 proposed rule has been reviewed under Executive Order 12988, 
Civil Justice Reform. This action 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.
    Under the terms of the Order, fresh market shipments of Idaho-
Eastern Oregon potatoes are required to be inspected and are subject to 
minimum grade, size, quality, maturity, pack, and container 
requirements. This proposed rule invites comments on revising certain 
provisions of the previously established size requirements for potatoes 
handled under the Order.
    At its meeting on August 6, 2020, the Committee unanimously 
recommended revising the Order's size requirements to allow shipment of 
Size B, U.S. No. 2 or better grade, non-Russet type potatoes. Sections 
945.51 and 945.52 of the Order provide authority for the establishment 
and modification of grade, size, quality, and maturity regulations 
applicable to the handling of potatoes.
    Section 945.341 of the Order establishes minimum grade, size, 
quality, maturity, pack, and container requirements for potatoes 
handled subject to the Order. The Order's handling regulations 
currently require that U.S. No. 2 or better grade, non-Russet type 
potatoes meet a minimum size of 1 \7/8\ inches diameter, unless 
otherwise specified on the container in connection with the grade. 
Additionally, all varieties of potatoes that meet the requirements of 
the U.S. No. 1 grade or better may be Size B (1\1/2\ to 2\1/4\ inches) 
or Creamer (\3/4\ to 1\5/8\ inches) size.
    If implemented, this proposed rule would relax the size 
requirements to allow handlers to ship Size B (1\1/2\ to 2\1/4\ 
inches), U.S. No. 2 or better grade, non-Russet variety potatoes. The 
revised size requirements would not be applicable to Russet type 
potatoes.
    Committee members reported that the Idaho-Eastern Oregon potato 
industry has been producing and shipping an increasing number of non-
Russet potato varieties--yellow and red skinned,

[[Page 21668]]

round types, in particular. Institutional customers have indicated that 
they would like to purchase more of these potatoes, especially in the 
smaller size profiles like Size B. Currently, Size B potatoes of all 
varieties are required to meet the requirements of the U.S. No. 1 grade 
or better. The Committee believes that this requirement is too 
restrictive for non-Russet type potatoes and that market demand exists 
for Size B, non-Russet type potatoes in the U.S. No. 2 or better grade.
    The Committee believes that potato size is a significant 
consideration of potato buyers. Providing potato buyers with the size 
and grade of potato desired by their customers is important to 
promoting potato sales. The Committee believes that size requirements 
intended to facilitate orderly marketing should not unintentionally 
inhibit a market segment, even if that segment is a minor one. 
Modifying the size requirements to meet the intent of the Committee 
would facilitate the growth of the emerging market for small profile, 
non-Russet potato varieties. This proposed change is expected to 
improve the marketing of Idaho-Eastern Oregon potatoes and enhance 
overall returns to handlers and producers.

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 proposed 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 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 rules issued 
thereunder, are unique in that they are brought about through group 
action of essentially small entities acting on their own behalf. Import 
regulations issued under the Act are based on those established under 
Federal marketing orders.
    There are approximately 32 handlers of Idaho-Eastern Oregon 
potatoes who are subject to regulation under the Order and about 450 
potato producers in the regulated area. Small agricultural service 
firms, which include potato handlers, are defined by the Small Business 
Administration (SBA) as those having annual receipts of less than 
$30,000,000, and small agricultural producers are defined as those 
whose annual receipts are less than $1,000,000 (13 CFR 121.201).
    During the 2019-2020 fiscal period, the most recent full year of 
statistics available, 34,306,700 hundredweight of Idaho-Eastern Oregon 
potatoes were inspected as required by the Order and sold into the 
fresh market. Based on information provided by the National 
Agricultural Statistics Service (NASS), the average producer price for 
the 2019 Idaho potato crop (the most recent full marketing year 
recorded) was $8.41 per hundredweight. Multiplying $8.41 by the 
shipment quantity of 34,306,700 hundredweight yields an annual crop 
revenue estimate of $288,519,347. The average annual fresh potato 
revenue for each of the 450 producers is therefore calculated to be 
$641,154 ($288,519,347 divided by 450), which is less than the SBA 
threshold of $1,000,000. Consequently, on average and given a normal, 
bell curve distribution, most of the Idaho-Eastern Oregon potato 
producers may be classified as small entities.
    In addition, based on information reported by USDA's Market News 
Service (Market News), the average Free on Board shipping point price 
for the 2019-2020 Idaho potato crop was $11.90 per hundredweight. 
Multiplying $11.90 by the shipment quantity of 34,306,700 hundredweight 
yields an annual crop revenue estimate of $408,249,730. The average 
annual fresh potato revenue for each of the 32 handlers is therefore 
calculated to be $12,757,804 ($408,249,730 divided by 32), which is 
below the SBA threshold of $30,000,000 for agricultural service firms. 
Therefore, according to a normal bell curve distribution, it can be 
concluded that most of the Idaho-Eastern Oregon potato handlers may be 
classified as small entities.
    This proposed rule would revise the size requirements for non-
Russet type potatoes handled under the Order. Specifically, this action 
would relax the size requirements to allow shipment of non-Russet type, 
U.S. No. 2 or better grade, Size B potatoes. All other provisions of 
the handling regulations would remain the same.
    This proposed action was recommended by the Committee to ensure 
that consumers are able to purchase the size and grade of potatoes that 
they prefer and are familiar with. This proposed change is expected to 
improve the marketability of Idaho-Eastern Oregon potatoes and increase 
returns to handlers and producers. Authority for this proposed rule is 
provided in Sec. Sec.  945.51 and 945.52 of the Order.
    At the August 6, 2020, meeting, the Committee discussed the impact 
of this change on handlers and producers. The proposed change to the 
size requirements is a relaxation in regulation. The proposed 
regulatory change is expected to have a positive, or neutral, economic 
impact on industry participants.
    The Committee relied on the opinions of producers and handlers 
familiar with the industry to draw its conclusions regarding the 
recommended handling regulation change. The Committee received 
anecdotal evidence from industry members at the August 6, 2020, meeting 
that customers were already familiar with the Size B potato profile and 
the U.S. No. 2 grade standards. Allowing industry members to pack and 
ship such potatoes would help them to move what has traditionally been 
a difficult size profile to market.
    The Committee believes that this change would increase the quantity 
of potatoes in the Size B profile that are available to the fresh 
market, potentially increasing producer, and handler revenue. The 
benefits derived from this rule change are not expected to be 
disproportionately more or less for small handlers or producers than 
for larger entities.
    The Committee discussed alternatives to this proposed change. One 
consideration was making no change at all to the current requirements. 
Another alternative was to further differentiate between various 
varieties and types of potatoes in the handling regulations. The 
Committee also discussed further relaxing the handling regulations to 
allow shipment of U.S. No. 2 or better grade, Creamer size, non-Russet 
type potatoes in addition to its recommendation for Size B potatoes. 
After consideration of all the alternatives, the Committee believed 
that the proposed changes contained herein would provide the greatest 
benefit to producers and handlers while maintaining the integrity of 
the Order.
    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 August 6, 2020, meeting was a public meeting and all 
entities, both large and small, were able to express their views on 
this issue. Interested persons are invited to submit comments on this 
proposed rule, including the regulatory and informational impacts of 
this action on small businesses.
    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,

[[Page 21669]]

Vegetable and Specialty Crops. No changes are necessary in those 
requirements as a result of this action. Should any changes become 
necessary, they would be submitted to OMB for approval.
    This proposed rule would not impose any additional reporting or 
recordkeeping requirements on either small or large potato handlers. 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. USDA has not 
identified any relevant Federal rules that duplicate, overlap, or 
conflict with this proposed 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.
    A small business guide on complying with fruit, vegetable, and 
specialty crop marketing agreements and orders may be viewed at: 
https://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.
    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, AMS proposes to amend 7 CFR part 
945 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.

0
1. In Sec.  945.341, revise paragraphs (a)(2)(i) through (iii) to read 
as follows:


Sec.  945.341  Handling regulation.

* * * * *
    (a) * * *
    (2) * * *
    (i) All varieties, except Russet types.
    (A) 1\7/8\ inches minimum diameter, unless otherwise specified on 
the container in connection with the grade.
    (B) Size B (1\1/2\ to 2\1/4\ inches diameter).
    (ii) Russet types.
    (A) 2 inches minimum diameter, or 4 ounces minimum weight: 
Provided, That at least 40 percent of the potatoes in each lot shall be 
5 ounces or heavier.
    (B) Size B (1\1/2\ to 2\1/4\ inches diameter), if the potatoes 
otherwise meet the requirements of the U.S. No. 1 grade or better.
    (iii) All varieties, U.S. No. 1 grade or better. Creamer (\3/4\ to 
1\5/8\ inches diameter).
* * * * *

Erin Morris,
Associate Administrator, Agricultural Marketing Service.
[FR Doc. 2021-08408 Filed 4-22-21; 8:45 am]
BILLING CODE 3410-02-P