[Federal Register Volume 86, Number 174 (Monday, September 13, 2021)]
[Rules and Regulations]
[Pages 50837-50839]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-19678]



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 Rules and Regulations
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  Federal Register / Vol. 86, No. 174 / Monday, September 13, 2021 / 
Rules and Regulations  

[[Page 50837]]



DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 945

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


Modification of Handling Regulations for Irish Potatoes Grown in 
Designated Idaho and Eastern Oregon Counties

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Final rule.

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

DATES: Effective October 13, 2021.

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) 326-2054, 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, 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 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 945 (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 potato producers and handlers operating within the production area.
    The Department of Agriculture (USDA) is issuing this final 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.
    This final 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 that this final 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 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 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 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 
rule revises provisions of 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 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.
    This rule relaxes 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. Revised size requirements are not 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, round types, in 
particular. Institutional customers have indicated that they

[[Page 50838]]

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 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 for 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 size requirements to meet needs of potato buyers will 
facilitate the growth of the emerging market for small profile, non-
Russet potato varieties. This change is expected to improve the 
marketing of Idaho-Eastern Oregon potatoes and enhance overall returns 
to handlers and producers.

Final 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 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 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 assuming a normal 
distribution, most 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, assuming a normal distribution, it has been concluded that 
most Idaho-Eastern Oregon potato handlers may be classified as small 
entities.
    This final rule revises size requirements for non-Russet type 
potatoes handled under the Order. Specifically, this action relaxes 
size requirements to allow shipment of non-Russet type, U.S. No. 2 or 
better grade, Size B potatoes. All other provisions of handling 
regulations will remain the same.
    This 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 change is expected to improve the 
marketability of Idaho-Eastern Oregon potatoes and increase returns to 
handlers and producers. Authority for this 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 change to size 
requirements is a relaxation in regulation. The regulatory change is 
expected to have a neutral to positive economic impact on industry 
participants.
    The Committee relied on opinions of producers and handlers familiar 
with the industry to draw its conclusions regarding the recommended 
change in handling regulations. 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 will help them to move what has traditionally been a 
difficult size profile to market.
    The Committee believes that this change will increase the quantity 
of potatoes in the Size B profile that are available to the fresh 
market, potentially increasing producer and handler revenues. 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 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 handling regulations. The Committee 
also discussed further relaxing 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 alternatives, the Committee believed that changes 
contained herein 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. Finally, interested persons were invited to submit comments 
on the proposed rule, including regulatory and information-collection 
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, Vegetable 
and Specialty Crops. No changes are necessary in these requirements as 
a result of this action. Should any changes become necessary, they 
would be submitted to OMB for approval.
    This final rule does not impose any additional reporting or 
recordkeeping requirements on either small or large potato handlers. As 
with all Federal

[[Page 50839]]

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 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.
    A proposed rule concerning this action was published in the Federal 
Register on April 23, 2021 (86 FR 21667). 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 June 22, 
2021, was provided to allow interested persons to respond to the 
proposal. No comments were received. 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: 
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.
    After consideration of all relevant material presented, including 
the information and recommendation submitted by the Committee and other 
available information, it was found that this rule effectuates the 
declared policy of the Act.

List of Subjects in 7 CFR Part 945

    Marketing agreements, Potatoes, Reporting and recordkeeping 
requirements.

    For 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 part 945 continues to read as follows:

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

0
2. 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 requirements of 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. 2021-19678 Filed 9-10-21; 8:45 am]
BILLING CODE P