[Federal Register: May 23, 2006 (Volume 71, Number 99)]
[Rules and Regulations]
[Page 29565-29567]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr23my06-1]
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Rules and Regulations
Federal Register
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[[Page 29565]]
DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Part 945
[Docket No. FV06-945-1 FR]
Irish Potatoes Grown in Certain Designated Counties in Idaho, and
Malheur County, Oregon; Modification of Handling Regulation
AGENCY: Agricultural Marketing Service, USDA.
ACTION: Final rule.
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SUMMARY: This rule removes the minimum quantity exemption for yellow
fleshed Finnish-type potatoes from the handling regulations issued
under the Idaho-Eastern Oregon potato marketing order. The marketing
order regulates the handling of Irish potatoes grown in certain
designated counties in Idaho, and Malheur County, Oregon, and is
administered locally by the Idaho-Eastern Oregon Potato Committee
(Committee). A minimum quantity shipment exemption of up to 200
hundredweight per day is provided for yellow fleshed Finnish-type
potatoes. Because yellow fleshed Finnish-type potatoes are no longer
produced in the production area covered under the marketing order, the
exemption from handling and assessment regulations is no longer
necessary.
DATES: Effective Date: This final rule becomes effective May 24, 2006.
FOR FURTHER INFORMATION CONTACT: Barry Broadbent, Marketing Specialist,
Northwest Marketing Field Office, Marketing Order Administration
Branch, Fruit and Vegetable Programs, AMS, USDA, 1220 SW., Third
Avenue, Suite 385, Portland, OR 97204; Telephone: (503) 326-2724, Fax:
(503) 326-7440.
Small businesses may request information on complying with this
regulation by contacting Jay Guerber, Marketing Order Administration
Branch, Fruit and Vegetable Programs, AMS, USDA, 1400 Independence
Avenue, SW., STOP 0237, Washington, DC 20250-0237; Telephone: (202)720-
2491, Fax: (202) 720-8938, or E-mail: Jay.Guerber@usda.gov.
SUPPLEMENTARY INFORMATION: This final rule is issued under Marketing
Agreement No. 98 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, hereinafter
referred to as the ``order.'' 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 Department of Agriculture (USDA) is issuing this rule in
conformance with Executive Order 12866.
This final rule has been reviewed under Executive Order 12988,
Civil Justice Reform. This rule is not intended to have retroactive
effect. This rule will not preempt any State or local laws,
regulations, or policies, unless they present an irreconcilable
conflict with this rule.
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 final rule removes the exception for yellow fleshed Finnish-
type potatoes from the minimum quantity exemption paragraph of the
handling regulations issued under the order. The minimum quantity
exemption in the regulation allows handlers to ship up to five
hundredweight of potatoes without regard to the inspection and
assessment requirements of the order. An exception for yellow fleshed
Finnish-type potatoes is included in the exemption which allows up to
200 hundredweight per day to be shipped without regard to inspection or
assessment requirements. The Committee unanimously recommended the
removal of the exception at its meeting on November 2, 2005.
Section 945.42 of the order provides authority to assess first
handlers of potatoes to provide funds to cover the expenses of the
Committee. Sections 945.51 and 945.52 provide authority for the
establishment and modification of regulations applicable to the
handling of potatoes, including required inspections. Section 945.54
provides authority to establish exemptions from the regulations based
on shipment size.
Section 945.341 establishes minimum quality, maturity, pack, and
inspection requirements for potatoes handled subject to the order.
Paragraphs (e), (f), and (g) of Sec. 945.341 delineate the
circumstances in which the shipment of potatoes subject to the order
may be granted an exemption from regulation. Paragraph (g) of that
section specifies the five hundredweight or less per day shipment
exemption, and the exception of up to 200 hundredweight per day for
yellow fleshed Finnish-type potatoes.
At its meeting on November 2, 2005, the Committee unanimously
recommended the removal of the special exception for yellow fleshed
Finnish-type from the handling regulations. In its deliberations, the
Committee commented that yellow fleshed Finnish-type potatoes are no
longer produced within the production area and that the exception is no
longer needed.
The exception to the minimum quantity exemption for yellow fleshed
Finnish-type potatoes was added to the regulation in 1987, specifically
to promote the production and marketing of this new type potato by
relieving shipments of less than 200 hundredweight of the burden of
inspection and assessment. In spite of this advantage, the production
of yellow fleshed Finnish-type potatoes declined over time and is
currently nonexistent. The Committee noted, however, that the
production of other colorful varieties (some with yellow flesh but not
Finnish-type) has increased and that the exception, if retained, may
cause confusion to industry participants.
[[Page 29566]]
Since the niche market for which the exception was intended no longer
exists, and there remains the potential for misunderstanding within the
industry, the Committee believes that the exception should be removed
from the handling regulations.
Final Regulatory Flexibility Analysis
Pursuant to the requirements set forth in the Regulatory
Flexibility Act (RFA), the Agricultural Marketing Service (AMS) has
considered the economic impact of this action 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
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 rules issued thereunder, are unique in that
they are brought about through group action of essentially small
entities acting on their own behalf. Thus, both statutes have small
entity orientation and compatibility.
There are approximately 48 handlers of Idaho-Eastern Oregon
potatoes who are subject to regulation under the order and about 1,000
potato producers in the regulated area. Small agricultural service
firms, which include potato handlers, are defined by the Small Business
Administration (SBA)(13 CFR 121.201) as those having annual receipts of
less than $6,500,000, and small agricultural producers are defined as
those whose annual receipts are less than $750,000.
Based on a three-year average fresh potato production of 33,623,000
hundredweight as calculated from Committee records, a three-year
average of producer prices of $4.64 per hundredweight reported by the
National Agricultural Statistics Service, and 1,000 Idaho-Eastern
Oregon potato producers, the average annual producer revenue is
approximately $156,000. It can be concluded, therefore, that a majority
of these producers would be classified as small entities.
In addition, based on Committee records and 2004-05 f.o.b. shipping
point prices ranging from about $4.00 to $28.00 per hundredweight
reported by USDA's Market News Service, most of the Idaho-Eastern
Oregon potato handlers do not ship over $6,500,000 worth of potatoes.
In view of the foregoing, it can be concluded that a majority of the
handlers would be classified as small entities as defined by the SBA.
This final rule removes the exception for yellow fleshed Finnish-
type potatoes from the minimum quantity exemption in the order. The
exception was added to the regulation in 1987 to allow less restrictive
requirements for yellow fleshed Finnish-type potatoes. The intent was
to facilitate the production and marketing of this new experimental
type potato. In the years that have followed, though, the production
and marketing of this type potato has shifted to other potato producing
regions. Consequently, yellow fleshed Finnish-type potatoes currently
are not produced within the production area covered by the order and
the exception to the minimum quantity exemption in handling regulations
is no longer warranted. Authority for the establishment and
modification of minimum quantity exemptions is provided in Sec. 945.54
of the order.
At the November 2, 2005, meeting, the Committee discussed the
impact of this change on producers and handlers. Since there currently
is not any production of the type of potato covered by the exception,
producers and handlers should not be adversely impacted. In addition,
there should be no increased costs associated with this modification of
the handling regulations.
As an alternative to the proposal, the Committee discussed leaving
the handling regulation as it was issued. The Committee rejected this
idea because it would have left outdated language in the rules and
regulations. They also felt that the exception, if unchanged, could be
misinterpreted by the industry and applied to other colored flesh type
potatoes that are not yellow fleshed Finnish-type. No other
alternatives were discussed.
This final rule does not impose any additional reporting or
recordkeeping requirements on either small or large potato handlers or
importers. As with all Federal marketing order programs, reports and
forms are periodically reviewed to reduce information requirements and
duplication by industry and public sectors. The USDA has not identified
any relevant Federal rules that duplicate, overlap, or conflict with
this final rule.
AMS is committed to compliance with the Government Paperwork
Elimination Act (GPEA), which requires Government agencies in general
to provide the public the option of submitting information or
transacting business electronically to the maximum extent possible.
Further, 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 November 2, 2005, 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
information on the regulatory and informational impacts of this action
on small businesses.
A proposed rule concerning this action was published in the Federal
Register on February 22, 2006 (71 FR 9002). Copies of the rule were
mailed or sent via facsimile to all Committee members and potato
handlers. Finally, the rule was made available through the Internet by
the Office of the Federal Register. A 60-day comment period ending
April 24, 2006, was provided to allow interested persons to respond to
the proposal. No comments were received.
A small business guide on complying with fruit, vegetable, and
specialty crop marketing agreements and orders may be viewed at the
following Web site: http://www.ams.usda.gov/fv/moab.html. Any questions
about the compliance guide should be sent to Jay Guerber 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, as
hereinafter set forth, will tend to effectuate the declared policy of
the Act.
It is further found that good cause exists for not postponing the
effective date of this rule until 30 days after publication in the
Federal Register (5 U.S.C. 553) because this rule removes provisions
that are no longer necessary. Further, handlers are shipping potatoes
from the 2005-2006 crop. Moreover, handlers are aware of this rule,
which was recommended at a public meeting. Also, a 60-day comment
period was provided in the proposed rule and no comments were received.
List of Subjects in 7 CFR Part 945
Marketing agreements, Potatoes, Reporting and recordkeeping
requirements.
0
For the 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 7 CFR part 945 continues to read as
follows:
Authority: 7 U.S.C. 601-674.
[[Page 29567]]
0
2. In Sec. 945.341, paragraph (g) is revised to read as follows:
Sec. 945.341 Handling regulation.
* * * * *
(g) Minimum quantity exemption. Each handler may ship up to, but
not to exceed, five hundredweight of potatoes any day without regard to
the inspection and assessment requirements of this part, but this
exception shall not apply to any shipment that exceeds five
hundredweight of potatoes.
* * * * *
Dated: May 17, 2006.
Lloyd C. Day,
Administrator, Agricultural Marketing Service.
[FR Doc. 06-4748 Filed 5-22-06; 8:45 am]
BILLING CODE 3410-02-P