[Federal Register Volume 60, Number 107 (Monday, June 5, 1995)]
[Rules and Regulations]
[Pages 29724-29727]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-13687]
[[Page 29723]]
_______________________________________________________________________
Part II
Department of Agriculture
_______________________________________________________________________
Agricultural Marketing Service
_______________________________________________________________________
7 CFR Part 945
Irish Potatoes Grown in Oregon and Idaho; Final Rule
Federal Register / Vol. 60, No. 107 / Monday, June 5, 1995 / Rules
and Regulations
[[Page 29724]]
DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Part 945
[Docket No. A0-150-A6; FV92-945-2FR]
Irish Potatoes Grown in Certain Designated Counties in Idaho, and
Malheur County, Oregon; Order Further Amending Marketing Order
AGENCY: Agricultural Marketing Service, USDA.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This final rule further amends the marketing agreement and
order for potatoes grown in Idaho-Eastern Oregon (order). The
amendments include authority to: regulate shipments of potatoes within
the production area, change representation and quorum procedures of the
committee, set container marking and labeling requirements, and require
the committee to consider, at least every six years, changes in
committee size or reapportionment of committee membership. Also, they
change committee fiscal operations, add confidentiality and
verification provisions to the order, and make other miscellaneous
changes that are consistent with the amendments. These changes were
favored by the subject potato producers in a referendum held from April
3-17, 1995. The amendments will improve the administration, operation
and functioning of the marketing order program.
EFFECTIVE DATE: May 31, 1995.
FOR FURTHER INFORMATION CONTACT: Gary Olson, OIC, Northwest Marketing
Field Office, Marketing Order Administration Branch, Fruit and
Vegetable Division, AMS, USDA, 1220 S.W. Third Avenue, room 369,
Portland, Oregon 97204; telephone: 503-326-2725, or Fax 503-326-7440;
or Valerie L. Emmer or Jim Wendland, Marketing Specialists, Marketing
Order Administration Branch, Fruit and Vegetable Division, AMS, USDA,
room 2523-S, P.O. Box 96456, Washington, D.C. 20090-6456, telephone:
202-205-2829 or 720-2170 respectively, or FAX 202-720-5698.
SUPPLEMENTARY INFORMATION: Prior documents in this proceeding: Notice
of Hearing issued on August 3, 1993, and published in the Federal
Register on August 11, 1993 (58 FR 42696). Recommended Decision and
Opportunity to File Written Exceptions issued on November 23, 1994, and
published in the Federal Register on November 30, 1994 (59 FR 61286).
Secretary's Decision and Referendum Order issued March 3, 1995, and
published in the Federal Register on March 10, 1995 (60 FR 13080).
Preliminary Statement
This administrative action is governed by the provisions of
sections 556 and 557 of Title 5 of the United States Code and is
therefore excluded from the requirements of Executive Order 12866.
This rule has been reviewed under Executive Order 12778, Civil
Justice Reform. This action 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
action.
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 the Secretary 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 requesting 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, the Secretary 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 in equity to review the
Secretary's ruling on the petition, provided a bill in equity is filed
not later than 20 days after the date of the entry of the ruling.
The final rule was formulated on the record of a public hearing
held in Idaho Falls, Idaho, on September 8, 1993, to consider the
proposed amendment of the Marketing Agreement and Order No. 945,
regulating the handling of potatoes grown in designated counties in
Idaho, and Malheur County, Oregon, hereinafter referred to collectively
as the ``order.'' Notice of the hearing was published in the August 11,
1993, issue of the Federal Register (58 FR 42696).
The hearing was held pursuant to the provisions of the Agricultural
Marketing Agreement Act of 1937, as amended (7 U.S.C. 601 et seq.),
hereinafter referred to as the Act, and the applicable rules of
practice and procedure governing proceedings to formulate marketing
agreements and marketing orders (7 CFR part 900). The Notice of Hearing
contained several amendment proposals submitted by the Idaho-Eastern
Oregon Potato Committee (committee) established under the order to
assist in local administration of the program.
The proposals pertained to: (1) Redefining ``ship or handle'' to
include shipments of potatoes within the production area; (2) providing
seed producers with representation on the committee and adding
authority for the committee to recommend to the Secretary changes in
the committee size and composition; (3) updating committee
representation districts to show the counties currently in each
district; (4) requiring the committee to consider, at least every six
years, whether to recommend changes in committee size or
reapportionment of committee membership; (5) changing committee quorum
procedures; (6) removing an outdated assessment limitation of $1 per
carload and allowing the committee to impose late payment or interest
fees, or both, on late assessment payments, accept advance payments,
and borrow monies in an extreme emergency for program administration;
(7) adding authority for the committee to recommend container marking
and labeling requirements; and (8) specifying confidentiality
requirements for handler reports submitted to the committee. The
Department of Agriculture proposed authority for adding requirements
regarding verification of reports and to make any necessary conforming
changes.
Upon the basis of evidence introduced at the hearing and the record
thereof, the Acting Assistant Secretary, Marketing and Regulatory
Programs, on March 2, 1995, filed with the Hearing Clerk, U.S.
Department of Agriculture, a Secretary's Decision and Referendum Order,
directing that a referendum be conducted during the period April 3-17,
1995, among producers of Idaho-Eastern Oregon Potatoes to determine
whether they favored the proposed amendments to the order. In the
referendum, all amendment proposals were favored by more than two-
thirds of the producers voting in the referendum. Accordingly, all
proposed amendments are included in this order further amending the
order.
The amended marketing agreement was subsequently mailed to all
potato handlers in the production area for their approval. The
marketing agreement was signed by potato handlers representing more
than 50 percent of the volume of potatoes handled by all handlers
during the representative period of August 1, 1993, to July 31, 1994.
Small Business Considerations
In accordance with the provisions of the Regulatory Flexibility Act
(RFA) (5 U.S.C. 601 et seq.), the Administrator of the Agricultural
Marketing Service has determined that this action will not have a
significant economic impact on a substantial number of small entities.
[[Page 29725]] Small agricultural service firms, which include handlers
regulated under this order, have been defined by the Small Business
Administration (SBA) (13 CFR 121.601) as those having annual receipts
of less than $5,000,000. Small agricultural producers are defined as
those having annual receipts of less than $500,000.
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 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 the RFA and the Act have small entity orientation
and compatibility. Interested persons were invited to present evidence
at the hearing on the probable impact that the proposed amendments to
the order would have on small businesses.
During the 1992-93 crop year, 66 handlers were regulated under
Marketing Order No. 945. In addition, there are about 1,600 producers
of potatoes in the production area. The Act requires the application of
uniform rules on regulated handlers. Since handlers covered under the
potato marketing order are predominantly small businesses, the order
itself is tailored to the size and nature of these small businesses.
Marketing orders and amendments thereto, are unique in that they are
normally brought about through group action of essentially small
entities for their own benefit. Thus, both the RFA and the Act are
compatible with respect to small entities.
This final rule amends certain provisions of the order including:
Sec. 945.20 Establishment and membership pertaining to operations
of the committee, including providing seed producers representation on
the committee; Sec. 945.23 Redistricting and reapportionment
authorizing changes in committee size, composition, and representation;
Sec. 945.30 Procedure regarding quorum requirements; and Sec. 945.42
Assessments removing a $1 per carload maximum assessment rate and
allowing the committee to impose late payment and interest fees on late
assessment payments and borrow monies in an extreme emergency for
program administration. The record indicates these changes will provide
an opportunity for a broader based representation on the committee and
more flexibility to adjust to future changes in industry structure,
potato production and financial operations. These changes are also
designed to enhance the administration and functioning of the order and
will have negligible, if any, economic impact on small businesses.
This final rule amends Sec. 945.9 Ship or handle by revising the
definition of these terms to include the handling of potatoes in the
current of commerce within the counties covered by the order's
production area, broadening the scope of the order. This will require
all regulated shipments of potatoes for fresh market to be inspected
and meet order requirements, including grade, size, quality, pack, and
payment of assessments. This final rule will improve the market for
potatoes handled within the production area. This will benefit both
producers and handlers because minimum grade, size and quality
requirements established under the order are important to the industry
in fostering consumer satisfaction, increasing the demand for Idaho-
Eastern Oregon potatoes, and improving industry returns; and the
additional assessment income would improve the financial operations of
the order. Any added burden on small businesses should be outweighed by
the added benefits accruing to them.
The change to allow the rate of assessment to be based on a
hundredweight of potatoes rather than an outdated maximum amount of $1
per railroad carload will improve the financial operations of the order
and not adversely impact small businesses. This change will provide
more efficient funding of order operations and activities. Fresh potato
shipments have stabilized in recent years and the current maximum rate
specified will likely not be sufficient to properly fund committee
operating costs beyond the next few years if costs continue to rise.
Another change will amend Sec. 945.52 Issuance of regulations to
add authority to require accurate and uniform marking and labeling of
the containers in which production area potatoes are shipped. The
benefits of the expected higher returns that could result from
increases in buyer and consumer satisfaction due to accurate marking
and labeling should outweigh any potential burden on small businesses.
Another amendment, to Sec. 945.80 Reports, will provide
confidentiality requirements for reports submitted to the committee.
This will safeguard handlers' proprietary information, including that
for small businesses, without imposing any burden on them.
Additionally, new Sec. 945.80 provisions will add authority for the
Secretary and the committee to verify the correctness of reports filed
by handlers, and to verify handler compliance with recordkeeping
requirements. The requirement will not have a significant impact on
small entities in the industry.
The final rule to make other miscellaneous changes that will be
consistent with the changed amendments is necessary so that all
sections of the order will be consistent. These changes include
deleting and redesignating certain sections of the order.
All these changes are designed to enhance the administration and
functioning of the marketing agreement and order to the benefit of the
industry. Accordingly, it is determined that the revisions of the order
will not have a significant economic impact on handlers or producers.
In compliance with Office of Management and Budget (OMB)
regulations (5 CFR Part 1320) which implement the Paperwork Reduction
Act of 1980 (44 U.S.C. 35), any reporting and recordkeeping
requirements that may result from these amendments will be submitted to
OMB for approval.
List of Subjects in 7 CFR Part 945
Marketing agreements, Potatoes, Reporting and recordkeeping
requirements.
Order Further Amending the Order Regulating the Handling of Irish
Potatoes Grown in Certain Designated Counties in Idaho, and Malheur
County, Oregon
Findings and Determinations
The findings and determinations hereinafter set forth are
supplementary and in addition to the findings and determinations
previously made in connection with the issuance of the order; and all
of said previous findings and determinations are hereby ratified and
affirmed, except insofar as such findings and determinations may be in
conflict with the findings and determinations set forth herein.
(a) Findings and Determinations Upon the Basis of the Hearing
Record. Pursuant to the provisions of the Agricultural Marketing
Agreement Act of 1937, as amended (7 U.S.C. 601 et seq.), and the
applicable rules of practice and procedure effective thereunder (7 CFR
part 900), a public hearing was held upon the amendments to the
Marketing Agreement and Order No. 945 (7 CFR part 945), regulating the
handling of Irish potatoes grown in certain designated counties in
Idaho, and Malheur County, Oregon.
Upon the basis of the evidence introduced at such hearing and the
record thereof, it is found that:
(1) The order, as amended, as hereby further amended, and all of
the terms [[Page 29726]] and conditions thereof, will tend to
effectuate the declared policy of the Act;
(2) The order, as amended, as hereby further amended, regulates the
handling of Irish potatoes grown in the production area in the same
manner as, and is applicable only to persons in the respective classes
of commercial and industrial activity specified in the marketing order
upon which hearings have been held;
(3) The order, as amended, as hereby further amended, is limited in
application to the smallest regional production area which is
practicable, consistent with carrying out the declared policy of the
Act, and the issuance of several orders applicable to subdivisions of
the production area would not effectively carry out the declared policy
of the Act;
(4) The order, as amended, as hereby further amended, prescribes,
insofar as practicable, such different terms applicable to different
parts of the production area as are necessary to give due recognition
to the differences in the production and marketing of potatoes grown in
the production area; and
(5) All handling of potatoes grown in the production area is in the
current of interstate or foreign commerce or directly burdens,
obstructs, or affects such commerce.
(b) Additional findings. It is necessary and in the public interest
to make these order amendments effective not later than May 31, 1995.
A later effective date would unnecessarily delay the implementation
of the order amendments and the improvement in operation of the
marketing order program. The committee, producers and handlers need as
much time as possible to make plans to implement the amended order and
discuss needed changes to its handling regulation and committee
operating procedures before its June 6, 1995, annual organizational
meeting, when it recommends actions for the fast approaching 1995-96
season. The harvesting and marketing of the 1995 crop is expected to
begin in August 1995. Hence, Department and industry implementation
activities must begin promptly. Some of the committee recommendations
for the 1995-96 season will require informal rulemaking by the
Department to be implemented.
In view of the foregoing, it is hereby found and determined that
good cause exists for making these order amendments effective May 31,
1995, and that it would be contrary to the public interest to delay the
effective date of these order amendments for 30 days after its
publication in the Federal Register (Sec. 553(d), Administrative
Procedure Act; 5 U.S.C. 551-559).
(c) Determinations. It is hereby determined that:
(1) Handlers (excluding cooperative associations of producers who
are not engaged in processing, distributing, or shipping potatoes
covered by the said order, as amended, as hereby further amended) who,
during the period August 1, 1993, through July 31, 1994, handled 50
percent or more of the volume of such potatoes covered by the said
order, as amended, as hereby further amended, have signed an amended
marketing agreement; and
(2) The issuance of this amendatory order, further amending the
aforesaid order, is favored or approved by at least two-thirds of the
producers who participated in a referendum on the question of its
approval and who, during the period August 1, 1993, through July 31,
1994 (which has been deemed to be a representative period), have been
engaged within the Idaho-Eastern Oregon Potato production area in the
production of such potatoes for fresh market.
Order Relative to Handling
It is therefore ordered, That on and after the effective date
hereof, all handling of Irish potatoes grown in certain designated
counties in Idaho, and Malheur County, Oregon, shall be in conformity
to, and in compliance with, the terms and conditions of the said order
as hereby further amended as follows:
The provisions of the proposed marketing order amendments further
amending the order contained in the Recommended Decision issued by the
Administrator on November 23, 1994, and published in the Federal
Register on November 30, 1994 (59 FR 61286), and in the Secretary's
Decision issued on March 2, 1995, and published in the Federal Register
on March 10, 1995 (60 FR 13080), shall be and are the terms and
provisions of this order further amending the order, and are set forth
in full herein.
PART 945--IRISH POTATOES GROWN IN CERTAIN DESIGNATED COUNTIES IN
IDAHO, AND MALHEUR COUNTY, OREGON
1. The authority citation for 7 CFR part 945 continues to read as
follows:
Authority: 7 U.S.C. 601-674.
2. Section 945.9 is revised as follows:
Sec. 945.9 Ship or handle.
Ship or handle means to pack, sell, consign, transport or in any
other way to place potatoes grown in the production area, or cause such
potatoes to be placed, in the current of commerce within the production
area or between the production area and any point outside thereof, so
as to directly burden, obstruct, or affect any such commerce: Provided,
That the definition of ship or handle shall not include the
transportation of ungraded potatoes within the production area for the
purpose of having such potatoes stored or prepared for market, except
that the committee may impose safeguards pursuant to Sec. 945.53 with
respect to such potatoes.
3. Section 945.20 is amended by revising paragraph (a) and adding a
new paragraph (d) to read as follows:
Sec. 945.20 Establishment and membership.
(a) The Idaho-Eastern Oregon Potato Committee is hereby established
consisting of eight members, of whom four shall currently be producers
of potatoes for the fresh market who produced such potatoes during at
least three of the last five years; at least one member shall be a
producer predominately of potatoes for seed during a similar period;
and three shall be handlers. For each member of the committee, there
shall be an alternate who shall have the same qualifications as the
member. The number of producer and/or handler members and alternates on
the committee may be increased and the composition of the committee
between producers and handlers may be changed as provided in
Sec. 945.23.
* * * * *
(d) At least every six years, the committee shall review committee
size, composition, and representation and recommend to the Secretary
whether changes should be made, as provided in Sec. 945.23.
4. Sections 945.22 through 945.24 are revised to read as follows:
Sec. 945.22 Districts.
For the purpose of selecting committee members and alternate
members, the following districts of the production area are hereby
established: Provided, That these districts may be changed as provided
in Sec. 945.23.
(a) District No. 1: The counties of Bonneville, Butte, Clark,
Fremont, Jefferson, Madison, and Teton;
(b) District No. 2: The counties of Bannock, Bear Lake, Bingham,
Caribou, Franklin, Oneida, and Power; and
(c) District No. 3: Malheur County, Oregon, and the remaining
designated counties in Idaho included in the production area, and not
included in District No. 1 or District No. 2. [[Page 29727]]
Sec. 945.23 Redistricting and reapportionment.
(a) The Secretary, upon recommendation of the committee, may
reestablish districts within the production area, may reapportion
committee membership among the various districts, may increase the
number of producer and/or handler members and alternates on the
committee, and may change the composition of the committee by changing
the ratio between producer and handler members, including their
alternates. At least every six years, the committee shall review
committee size, composition and representation and recommend to the
Secretary whether changes should be made. In recommending any such
changes, the committee shall give consideration to:
(1) Shifts in potato acreage within districts and within the
production area during recent years;
(2) the importance of new potato production in its relation to
existing districts;
(3) the equitable relationship between committee membership and
districts;
(4) economies to result for producers in promoting efficient
administration due to redistricting or reapportionment of members
within districts; and
(5) other relevant factors.
(b) Membership of the committee shall be apportioned among the
districts of the production area so as to provide the following
representation or such other representation as recommended by the
committee and approved by the Secretary:
(1) Three producer members, including at least one who
predominately produces seed potatoes, and one handler member, with
their respective alternates, from District No. 1;
(2) One producer member and one handler member, with their
respective alternates, from District No. 2; and
(3) One producer member and one handler member, with their
respective alternates, from District No. 3.
Sec. 945.24 Selection.
Members and alternates of the committee shall be selected by the
Secretary on the basis specified in Sec. 945.23 (b) from nominations
made pursuant to Sec. 945.25 or from other eligible persons.
5. In Sec. 945.30, paragraph (a) is revised to read as follows:
Sec. 945.30 Procedure.
(a) A simple majority of all members of the committee, including
alternates acting for members, shall be necessary to constitute a
quorum or to pass any motion or approve any committee action, except
any motion regarding a change in committee size shall require a
unanimous vote. At any assembled meeting, all votes shall be cast in
person.
* * * * *
6. In Sec. 945.42, paragraph (b) is revised and new paragraphs (d)
and (e) are added to read as follows:
Sec. 945.42 Assessments.
* * * * *
(b) Assessments shall be levied upon handlers at a rate per
hundredweight of potatoes or equivalent established by the Secretary.
Such rate may be established upon the basis of the committee's budget
recommendations, and other available information.
* * * * *
(d) The committee may impose a late payment charge or an interest
charge, or both, on any handler who fails to pay, on or before the due
date established by the Secretary, the total assessment for which such
handler is liable. Such due date and the late payment fee and interest
rate shall be recommended by the committee and approved by the
Secretary.
(e) In order to provide funds to carry out its function, after the
effective date of this subpart the committee may accept advance
assessments from handlers. Advance assessments received from a handler
shall be credited toward assessments levied against that handler during
that fiscal period. In the case of an extreme emergency, the committee
may also borrow money on a short term basis to provide funds for the
administration of this part. Any such borrowed money shall only be used
to meet the committee's current financial obligations, and the
committee shall repay all borrowed money by the end of the next fiscal
period from assessment income.
7. In Sec. 945.52, paragraph (a)(3) is revised to read as follows:
Sec. 945.52 Issuance of regulations.
(a) * * *
(3) Fix the size, capacity, weight, dimensions, pack, labeling or
marking of the container, or containers, which may be used in the
packaging or handling of potatoes, or both; or
* * * * *
8. Section 945.80 is amended by designating the existing
undesignated text as paragraph (a) and adding new paragraphs (b)
through (d) to read as follows:
Sec. 945.80 Reports.
* * * * *
(b) All data or other information constituting a trade secret, or
disclosing a trade position or business condition of a particular
handler shall be treated as confidential and shall at all times be
received by and kept in the custody and under the control of one or
more designated employees of the committee. Information which would
reveal the circumstances of a single handler shall be disclosed to no
person other than the Secretary.
(c) Each handler shall maintain for at least two succeeding fiscal
periods such records of potatoes received and of potatoes disposed of
by such handler as may be necessary to verify reports required pursuant
to this section. The committee, with the approval of the Secretary, may
prescribe rules and regulations issued pursuant to this section
specifying handler records and reports which the committee may need to
perform its functions.
(d) For the purpose of assuring compliance and checking and
verifying reports filed by handlers, the Secretary and the committee,
through its duly authorized agents, shall have access to any premises
where applicable records are maintained, where potatoes are held, and,
at any time during reasonable business hours, shall be permitted to
inspect such handlers' premises and any and all records of such
handlers with respect to matters within the purview of this part.
Dated: May 31, 1995.
Patricia Jensen,
Acting Assistant Secretary, Marketing and Regulatory Programs.
[FR Doc. 95-13687 Filed 6-2-95; 8:45 am]
BILLING CODE 3410-02-P
