[Federal Register Volume 86, Number 170 (Tuesday, September 7, 2021)]
[Proposed Rules]
[Pages 49930-49932]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-19238]


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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. 170 / Tuesday, September 7, 2021 / 
Proposed Rules  

[[Page 49930]]



DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 946

[Doc. No. AMS-SC-20-0095; SC21-946-1 PR]


Termination of the Marketing Order for Irish Potatoes Grown in 
Washington State

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Proposed rule.

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SUMMARY: This rule invites comments on the proposed termination of the 
Federal marketing order regulating the handling of Irish potatoes grown 
in Washington, and the rules and regulations issued thereunder. The 
marketing order is administered locally by the State of Washington 
Potato Committee (Committee), which unanimously recommended its 
termination at a meeting held on June 11, 2020. This recommendation is 
based on the Committee's determination that the marketing order is no 
longer an effective marketing tool for the Washington potato industry 
and that termination would best serve the current needs of the industry 
by eliminating the cost associated with its operation.

DATES: Comments must be received by November 8, 2021.

ADDRESSES: Interested persons are invited to submit written comments 
concerning this proposal. Comments must be submitted to the Docket 
Clerk electronically by Email: [email protected] or 
internet: https://www.regulations.gov. All comments should reference 
the document number and the date and page number of this issue of the 
Federal Register and can be viewed at: https://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: Gregory A. Breasher, Marketing 
Specialist, or Gary Olson, Regional Director, Northwest Marketing Field 
Office, Marketing Order and Agreement Division, Specialty Crops 
Program, AMS, USDA; Telephone: (503) 326-2054 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 the termination of regulations issued to carry out a marketing 
order as defined in 7 CFR 900.2(j). This proposed rule is issued under 
Marketing Order No. 946, as amended (7 CFR part 946), regulating the 
handling of 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 Committee locally administers the Order and is comprised 
of producers and handlers operating within the production area.
    The Department of Agriculture (USDA) is issuing this proposed rule 
in conformance with Executive Orders 12866 and 13563. Executive Orders 
12866 and 13563 direct agencies to assess all costs and benefits of 
available regulatory alternatives and, if regulation is necessary, to 
select regulatory approaches that maximize net benefits (including 
potential economic, environmental, public health and safety effects, 
distributive impacts and equity). Executive Order 13563 emphasizes the 
importance of quantifying both costs and benefits, reducing costs, 
harmonizing rules, and promoting flexibility. This action falls within 
a category of regulatory actions that the Office of Management and 
Budget (OMB) exempted from Executive Order 12866 review.
    In addition, this proposed rule has been reviewed under Executive 
Order 13175--Consultation and Coordination with Indian Tribal 
Governments, which requires agencies to consider whether their 
rulemaking actions would have tribal implications. The Agricultural 
Marketing Service (AMS) has determined this proposed rule is unlikely 
to have substantial direct effects on one or more Indian tribes, on the 
relationship between the Federal Government and Indian tribes, or on 
the distribution of power and responsibilities between the Federal 
Government and Indian tribes.
    This proposed rule 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 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.
    This rule proposes to terminate the Order and rules and regulations 
issued thereunder. The Order contains authority for the regulation of 
Irish potatoes grown in Washington. At a virtual meeting held on June 
11, 2020, the Committee unanimously recommended termination of the 
Order.
    Section 946.63(b) 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. 
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,

[[Page 49931]]

USDA is required to notify Congress no later than 60 days before the 
date on which the Order would be terminated.
    Marketing Order No. 946 has been in effect since 1949 and has 
provided the potato industry in Washington with authority for grade, 
size, quality, maturity, pack, and container regulations, as well as 
authority for mandatory product inspection. The Committee has met 
regularly to evaluate the current status of the Washington potato 
industry and to consider recommendations for modification, suspension, 
or termination of the Order's regulatory requirements, which have been 
issued on a continuing basis. Committee meetings are open to the public 
and interested persons may express their views at these meetings. The 
USDA reviews Committee recommendations, including information provided 
by the Committee and from other available sources, and determines 
whether modification, suspension, or termination of the Order's 
regulatory requirements would tend to effectuate the declared policy of 
the Act.
    Handling regulations requiring potatoes to be inspected and meet 
mandatory minimum grade, size, maturity, quality, pack, and container 
requirements were in effect for all types of potatoes until 2010. USDA 
temporarily suspended handling regulations for Russet type potatoes for 
one-year, effective July 24, 2010 (75 FR 43042), and subsequently 
extended that suspension indefinitely effective July 1, 2011 (76 FR 
27850). Further, USDA temporarily suspended handling regulations for 
yellow fleshed and white type potatoes effective October 24, 2013 (78 
FR 62967), also extending that suspension indefinitely effective July 
1, 2014 (79 FR 26109). Lastly, USDA indefinitely suspended handling 
regulations for all red types of potatoes effective February 15, 2014 
(79 FR 8253). The cumulative effect of these suspensions was the total 
suspension of handling regulations for all fresh potatoes under the 
Order after July 1, 2014. All suspensions listed above were conducted 
upon the recommendation of the Committee.
    Following these regulatory suspensions, the Committee continued to 
levy assessments in order to maintain its functionality. The Committee 
felt that it should continue to fund its full operational capability in 
order to collect handler reports, track industry data, and preserve the 
authority to regulate handling, should that become relevant to the 
industry again sometime in the future.
    The Committee met on January 22 and June 11, 2020, to discuss the 
current marketing environment of the Washington potato industry and the 
status of the Order. The Committee determined that the suspension of 
the Order's handling regulations have not negatively impacted the 
industry and that there is no longer a need for the Order. In addition, 
the Committee concluded that data collection and reporting functions of 
the Order are duplicative of the services provided to the industry by 
the Washington State Potato Commission and that termination of the 
Order would not materially impact the collection and dissemination of 
essential industry data.
    At the meeting held via conference call on June 11, 2020, the 
Committee unanimously voted in favor of recommending that USDA to 
terminate the Order. In addition, the Committee recommended the Order's 
reporting and assessment requirements--the only regulatory activities 
still in effect--be suspended while USDA processes termination of the 
Order. The recommendation to suspend all remaining Order activities is 
a separate regulatory action from this rule. A proposed rule to suspend 
the Order's reporting and assessment requirements was published in the 
Federal Register October 13, 2020 (85 FR 64415).

Initial Regulatory Flexibility Analysis

    Pursuant to requirements set forth in the Regulatory Flexibility 
Act (RFA) (5 U.S.C. 601-612), 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.
    There are approximately 26 handlers of Washington potatoes and 
approximately 250 potato producers in the production area subject to 
regulation by the Order.
    Small agricultural service firms 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 
having annual receipts of less than $1,000,000 (13 CFR 121.201).
    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 that 
2019-2020 marketing year fresh potato shipments were 9,687,170 
hundredweight. Using the average price and shipment information, the 
number of handlers, and assuming a normal distribution, most handlers 
had average annual receipts of 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). Thus, AMS concludes that the majority 
of handlers would meet the SBA definition of a small business.
    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 and assuming a normal 
distribution, average annual producer revenue is 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 producers of 
fresh Washington potatoes may be classified as small businesses under 
the SBA definition.
    This rule proposes to terminate the Federal marketing order for 
Irish potatoes grown in Washington, and rules and regulations issued 
thereunder. The Order contains authority to regulate the handling of 
Irish potatoes grown in Washington. The Committee determined that 
regulating the handling of potatoes under the Order is no longer an 
effective marketing tool for the Washington potato industry. Evidence 
from the past 6 years of operating with suspended handling regulations 
showed that potatoes can be shipped from the production area in the 
absence of the Order's minimum requirements without a negative economic 
impact on the industry.
    Secondly, the Committee determined that the data collection and 
reporting function of the Order is duplicative of the services provided 
to the industry by the Washington State Potato Commission. The 
termination of the Order would not materially impact the collection and 
dissemination of essential industry data to Washington State potato 
growers.
    As such, the Committee concluded that the cost associated with the 
administration of the Order outweigh benefits of continuing the Order. 
This conclusion is based on the Committee's analysis of the 6-year 
period of regulatory suspension and findings that termination is not 
expected to

[[Page 49932]]

negatively impact the marketing of fresh Washington potatoes because 
this action reduces costs to both handlers and producers. Therefore, in 
an action taken on June 11, 2020, the Committee unanimously recommended 
that USDA terminate the Order.
    Section 946.63(b) of the Order provides that USDA to 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 on which order would be 
terminated.
    The Committee considered alternatives to this rule, including 
taking no action (which would keep the Order active but with the 
handling regulations suspended) and suspending all of the Order's 
remaining regulatory provisions but not terminating the Order. The 
Committee determined that neither option was a viable long-term 
solution, and subsequently, 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 information prior to 
making a final action on this matter.
    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. Termination of the Order and reporting requirements 
prescribed therein, would reduce the reporting burden on Washington 
potato handlers by an estimated 9.7 hours per handler. Handlers would 
no longer be required to file forms with the Committee, which is 
expected to reduce industry expenses. This 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. 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.
    Committee meetings are widely publicized throughout the Washington 
potato industry, and all interested persons are invited to attend the 
meetings and participate in Committee deliberations on all issues. Like 
all Committee meetings, the January 22 and June 11, 2020, meetings were 
public meetings, and all entities, both large and small, were able to 
express their views on these issues. Interested persons are invited to 
submit comments on this proposed rule, including regulatory and 
information collection impacts of this proposed action on small 
businesses.
    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.
    This rule invites comments on the proposed termination of Marketing 
Order 946, which regulates the handling of Irish potatoes grown in 
Washington. 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 action is made on this 
matter.
    Based on the foregoing and pursuant to Sec.  608c(16)(A) of the Act 
and Sec.  946.63 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 Committee affairs 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 946

    Marketing agreements, Potatoes, Reporting and recordkeeping 
requirements.

    For reasons set forth in the preamble, part 946 is proposed to be 
removed.

PART 946--IRISH POTATOES GROWN IN WASHINGTON--[REMOVED]

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

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

0
2. Accordingly, part 946 is removed.

Erin Morris,
Administrator, Agricultural Marketing Service.
[FR Doc. 2021-19238 Filed 9-3-21; 8:45 am]
BILLING CODE 3410-02-P