[Federal Register Volume 60, Number 226 (Friday, November 24, 1995)]
[Rules and Regulations]
[Pages 57904-57906]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-28695]
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DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Part 945
[FV95-945-2IFR]
Irish Potatoes Grown in Certain Designated Counties in Idaho, and
Malheur County, Oregon; Modification of the Handling Regulation
AGENCY: Agricultural Marketing Service, USDA.
ACTION: Interim final rule with request for comments.
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SUMMARY: This interim final rule changes pack requirements and
establishes 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 interim final rule also includes several conforming changes which
recognize that the marketing order regulates shipments of potatoes
within the production area, as well as shipments outside the production
area.
DATES: Effective November 24, 1995. Comments which are received by
December 26, 1995 will be considered prior to the issuance of a final
rule.
ADDRESSES: Interested persons are invited to submit written comments
concerning this action. Comments must be sent in triplicate to the
Docket Clerk, Fruit and Vegetable Division, AMS, USDA, room 2523, South
Building, P.O. Box 96456, Washington, DC 20090-6456; FAX: (202) 720-
5698. All comments should reference the docket number and the date and
page number of this issue of the Federal Register and will be made
available for public inspection in the Office of the Docket Clerk
during regular business hours.
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, DC 20090-6456; telephone: (202) 205-2829, or FAX (202) 720-
5698.
SUPPLEMENTARY INFORMATION: This interim final rule is issued under
Marketing Agreement and Marketing 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 of Agriculture is issuing this rule in conformance
with Executive Order 12866.
This interim final rule has been reviewed under Executive Order
12778, Civil Justice Reform. This rule is not intended to have
retroactive effect. This interim 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.
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
[[Page 57905]]
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. The majority of potato handlers regulated under the
order may be classified as small entities. The majority of producers
may also be classified as small entities.
This rule would amend Sec. 945.341 to: (1) Require that all cartons
(except when used as a master container) be conspicuously marked as to
potato size; (2) require for all varieties that when 50-pound
containers of Idaho-Eastern Oregon potatoes 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) specify that Idaho-Eastern Oregon potatoes
packed in cartons (except when used as a master container) shall be
U.S. No. 1 grade or better.
These changes were recommended by the Committee at its August 9,
1995, meeting. The Committee's recommended revisions are authorized
pursuant to Secs. 945.51 and 945.52 of the order. This action is
expected to improve 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 reports that there
have been many instances when product size in unmarked cartons has been
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 can create market confusion, damage buyer
acceptance, and depress prices.
In addition, this action changes the pack requirements in
Sec. 945.341(c). For several decades, the handling regulation has
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 has been beneficial to
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 second aspect of the change in pack requirements recommended by
the Committee is the establishment of a requirement that all Idaho-
Eastern Oregon potatoes packed in cartons of any size (except when used
as a master container) shall be U.S. No. 1 grade or better. Currently,
the handling regulation requires this of potatoes packed in 50-pound
cartons (except when used as a master container). Some buyers have
indicated that a smaller carton size is more desirable than the
currently used 50-pound carton. These buyers indicate that they need a
smaller carton that takes up less storage space and is easier to lift
and handle. However, these buyers still want to be provided with the
same quality of potatoes; i.e., U.S. No. 1 grade or better. Currently,
the grade of potatoes packed in other than 50-pound cartons must be
U.S. No. 2 grade or better. This change in the handling regulation
reflects the industry's desire of providing a high quality product to
users of potatoes, regardless of carton size desired.
Another order amendment revised Sec. 945.9 to broaden the scope of
the order to authorize regulating shipments of potatoes within the
production area, as well as shipments outside the production area.
Conforming changes are 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 area of production.
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 interim final rule, as hereinafter set forth, will tend
to effectuate the declared policy of the Act.
Pursuant to 5 U.S.C. 553, it is also found and determined upon good
cause that it is impractical, unnecessary and contrary to the public
interest to give preliminary notice prior to putting this rule into
effect, and that good cause exists for not postponing the effective
date of this action until 30 days after publication in the Federal
Register because: (1) This action was recommended at a public meeting
and all interested persons had an opportunity to express their views
and provide input; (2) the 1995-96 shipping season has begun and these
changes should apply to as much of that season as possible; and (3)
this rule provides a 30-day comment period and any comments received
will be considered prior to finalization of this rule.
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
1. The authority citation for 7 CFR part 945 continues to read as
follows:
Authority: 7 U.S.C. 601-674.
2. Section 945.341 is amended by:
(1) Removing the words ``On or after August 16, 1982,'' in the
introductory text,
(2) Removing in paragraph (d)(3) the words ``outside the area of
production'' in the first and second sentences and the words ``outside
the production area'' in the last sentence, and
(3) Revising the heading of paragraph (c), the first sentence of
the introductory text of paragraph (c)(1), paragraph (c)(2), and adding
a new paragraph (c)(3) to read as follows:
Sec. 945.341 Handling regulation.
* * * * *
(c) Pack and marking. (1) When 50-pound containers (except master
containers) of potatoes are marked with a count, size or similar
designation, they must meet the count, average count and weight ranges
for the count designation listed below.
* * * * *
(i) * * *
(ii) * * *
(2) Potatoes packed in cartons (except when used as a master
container) shall be U.S. No. 1 grade or better. However, potatoes of
U.S. Extra No. 1 Grade shall be no smaller than 110 size nor larger
than 60 size.
(3) Size shall be conspicuously marked on all cartons (except when
[[Page 57906]]
used as a master container) consistent with Sec. 51.1545 of the United
States Standards for Grade of Potatoes (7 CFR 51.1540-51.1566).
* * * * *
Dated: November 20, 1995.
Sharon Bomer Lauritsen,
Deputy Director, Fruit and Vegetable Division.
[FR Doc. 95-28695 Filed 11-22-95; 8:45 am]
BILLING CODE 3410-02-P