[Federal Register Volume 61, Number 22 (Thursday, February 1, 1996)]
[Rules and Regulations]
[Pages 3546-3547]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-2065]
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DEPARTMENT OF AGRICULTURE
7 CFR Part 945
[FV95-945-2FIR]
Irish Potatoes Grown in Certain Designated Counties in Idaho, and
Malheur County, Oregon; Modification of the Handling Regulation
AGENCY: Agricultural Marketing Service, USDA.
ACTION: Final rule.
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SUMMARY: The Department of Agriculture (Department) is adopting as a
final rule, without change, the provisions of an interim final rule
which changed pack requirements and established marking requirements
for Idaho-Eastern Oregon potatoes. These changes are expected to
improve the marketing of such potatoes and increase returns to
producers. These changes were recommended by the Idaho-Eastern Oregon
Potato Committee (Committee), the agency responsible for local
administration of the marketing order program. The rule also included
several conforming changes to recognize that the marketing order
regulates shipments of potatoes within, as well as outside, the
production area.
EFFECTIVE DATE: This final rule becomes effective March 4, 1996.
FOR FURTHER INFORMATION CONTACT: Gary D. Olson, Northwest Marketing
Field Office, Marketing Order Administration Branch, Fruit and
Vegetable Division, AMS, USDA, 1220 SW Third Avenue, room 369,
Portland, Oregon 97204-2807; telephone: (503) 326-2724 or FAX (503)
326-7440; or Valerie L. Emmer, Marketing Order Administration Branch,
Fruit and Vegetable Division, AMS, USDA, P.O. Box 96456, room 2523-S,
Washington, D.C. 20090-6456; telephone: (202) 205-2829, or FAX (202)
720-5698.
SUPPLEMENTARY INFORMATION: This rule is issued under Marketing
Agreement and Order No. 945 (7 CFR part 945), as amended, hereinafter
referred to as the ``order,'' regulating the handling of Irish potatoes
grown in certain designated counties in Idaho, and Malheur County,
Oregon. 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 is issuing this rule in conformance with Executive
Order 12866.
This rule has been reviewed under Executive Order 12778, Civil
Justice Reform. This rule is not intended to have retroactive effect.
This final 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 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 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 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.
[[Page 3547]]
Pursuant to requirements set forth in the Regulatory Flexibility
Act (RFA), the Administrator of the Agricultural Marketing Service
(AMS) has considered the economic impact of this action on small
entities.
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 65 handlers of Idaho-Eastern Oregon
potatoes that are subject to regulation under the order and
approximately 1,600 producers in the production area. Small
agricultural service firms, which include handlers of Idaho-Eastern
Oregon potatoes, have been defined by the Small Business Administration
(13 CFR 121.601) as those whose annual receipts are less than
$5,000,000, and small agricultural producers are defined as those whose
annual receipts are less than $500,000. A majority of potato handlers
regulated under the order may be classified as small entities. A
majority of producers may also be classified as small entities.
This rule finalizes an interim final rule which amended the
handling regulation in Sec. 945.341 by specifying that: (1) All cartons
(except when used as master containers) be conspicuously marked as to
size of the potatoes in the carton; (2) for all varieties, when 50-
pound containers are marked with a count, size, or similar designation,
the potatoes contained therein must meet the count, average count, and
weight ranges established within the handling regulation; and (3) all
Idaho-Eastern Oregon potatoes packed in cartons of any size (except
when cartons are used as master containers) shall be U.S. No. 1 grade
or better. The interim final rule also included several conforming
changes to recognize that the order regulates shipments of potatoes
within, as well as outside, the production area.
These changes were recommended by the Committee at its August 9,
1995, meeting. The Committee's recommendations are authorized pursuant
to Secs. 945.51 and 945.52 of the order. This rule will continue the
improvement in the marketing of Idaho-Eastern Oregon potatoes and
improve returns to producers.
A recent order amendment (60 FR 29724; June 5, 1995), added
authority to Sec. 945.52 to require accurate and uniform marking and
labeling of containers in which Idaho-Eastern Oregon potatoes are
shipped. With this authority in the order, the Committee recommended
requiring that all cartons shall be conspicuously marked as to potato
size; i.e., marked so that the potato size is noticeable on the carton.
The Committee recommended this requirement to reduce confusion in the
marketplace as to the size of the potatoes in cartons. While most
cartons already are marked as to size, the Committee reported that
there have been many instances when product size in unmarked cartons
was misrepresented through the marketing chain; (e.g., 100-count size
potatoes in 50-pound cartons being represented as 90-count size). This
type of misrepresentation created market confusion, damaged buyer
acceptance, and depressed prices. The marking requirement should
continue in effect to prevent such problems.
In addition, the interim final rule changed the pack requirements
in Sec. 945.341(c). For several decades, the handling regulation
specified that when long varieties of potatoes in 50-pound containers
are marked with a count, size or similar designation, the potatoes
contained therein must meet the count, average count and weight ranges
established within the handling regulation. This benefitted buyers and
sellers by reducing market confusion and misrepresentation related to
the marking of count and weight ranges on 50-pound containers. In
recent years, there has been an increase in the number of plantings of
round varieties grown in the Idaho-Eastern Oregon production area.
Therefore, the Committee recommended that this pack requirement, which
the industry has found to be beneficial for long varieties, be extended
to all varieties. The extension of the pack requirement to all
varieties should be continued to further the marketing of potatoes from
the production area.
The second aspect of the change in pack requirements recommended by
the Committee was the establishment of a requirement that all Idaho-
Eastern Oregon potatoes packed in cartons of any size (except when
cartons are used as master containers) shall be U.S. No. 1 grade or
better. Previously, the handling regulation required this only of
potatoes packed in 50-pound cartons (except when used as master
containers). Some buyers had indicated that a smaller carton size is
more desirable than the 50-pound carton. Those buyers indicated that
they need a smaller carton that takes up less storage space and is
easier to lift and handle. However, those buyers still want to be
provided with the same quality of potatoes; i.e., U.S. No. 1 grade or
better. Previously, the grade of potatoes packed in other than 50-pound
cartons had to be U.S. No. 2 grade or better. This finalization of
change in the handling regulation reflects the industry's intention to
provide a high quality product, regardless of carton size used. The
change should remain in effect so that goal can be met.
Another order amendment revised Sec. 945.9 to broaden the scope of
the order to authorize regulating shipments of potatoes within, as well
as outside, the production area. Conforming changes were made in
Sec. 945.341(d)(3) regarding inspection and certification procedures so
these procedures cover all shipments of potatoes, not only shipments
made outside the production area.
The changes to the handling regulation were published in the
Federal Register as an interim final rule on November 24, 1995 (60 FR
57904). That rule provided that interested persons could file comments
through December 26, 1995. No comments were received.
Based on available information, the Administrator of the AMS has
determined that this action will not have a significant economic impact
on a substantial number of small entities.
After consideration of all relevant material presented, including
the Committee's recommendation and other available information, it is
found that this rule, as hereinafter set forth, will tend to effectuate
the declared policy of the Act.
List of Subjects in 7 CFR Part 945
Marketing agreements, Potatoes, Reporting and recordkeeping
requirements.
For the reasons set forth in the preamble, 7 CFR part 945 is
amended as follows:
PART 945--IRISH POTATOES GROWN IN CERTAIN DESIGNATED COUNTIES IN
IDAHO, AND MALHEUR COUNTY, OREGON
Accordingly, the interim final rule amending 7 CFR part 945 which
was published at 60 FR 57904 on November 24, 1995, is adopted as a
final rule without change.
Dated: January 24, 1996.
Sharon Bomer Lauritsen
Deputy Director, Fruit and Vegetable Division.
[FR Doc. 96-2065 Filed 1-31-96; 8:45 am]
BILLING CODE 3410-02-P
