[Federal Register Volume 79, Number 151 (Wednesday, August 6, 2014)]
[Rules and Regulations]
[Pages 45673-45675]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-18606]



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Rules and Regulations
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Federal Register / Vol. 79, No. 151 / Wednesday, August 6, 2014 / 
Rules and Regulations

[[Page 45673]]



DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 945

[Doc. No. AMS-FV-14-0046; FV14-945-2 IR]


Irish Potatoes Grown in Certain Designated Counties in Idaho, and 
Malheur County, Oregon; Modification of Container Requirements

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Interim rule with request for comments.

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SUMMARY: This rule modifies the container requirements currently 
prescribed under the Idaho-Eastern Oregon potato marketing order 
(order). The order regulates the handling of potatoes grown in certain 
designated counties in Idaho, and Malheur County, Oregon and is 
administered locally by the Idaho-Eastern Oregon Potato Committee 
(Committee). This rule removes the requirement that fiberboard cartons 
used to pack 50-pound quantities of U.S. No. 2 grade potatoes be of 
one-piece construction. This change is needed to respond to market 
demands and to provide handlers flexibility in shipping U.S. No. 2 
grade potatoes. In addition, this rule makes a change to the order's 
handling regulations to correct a citation reference.

DATES: August 7, 2014; comments received by October 6, 2014 will be 
considered prior to issuance of a final rule.

ADDRESSES: Interested persons are invited to submit written comments 
concerning this rule. Comments must be sent to the Docket Clerk, 
Marketing Order and Agreement Division, Fruit and Vegetable Program, 
AMS, USDA, 1400 Independence Avenue SW., STOP 0237, Washington, DC 
20250-0237; Fax: (202) 720-8938; or Internet: http://www.regulations.gov. All comments should reference the document 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, or can be viewed at: http://www.regulations.gov. All comments submitted in response to this rule 
will be included in the record and will be made available to the 
public. Please be advised that the identity of the individuals or 
entities submitting the comments will be made public on the internet at 
the address provided above.

FOR FURTHER INFORMATION CONTACT: Sue Coleman, Marketing Specialist, or 
Gary D. Olson, Regional Director, Northwest Marketing Field Office, 
Marketing Order and Agreement Division, Fruit and Vegetable Program, 
AMS, USDA; Telephone: (503) 326-2724, Fax: (503) 326-7440, or Email: 
Sue.Coleman@ams.usda.gov or GaryD.Olson@ams.usda.gov.
    Small businesses may request information on complying with this 
regulation by contacting Jeffrey Smutny, Marketing Order and Agreement 
Division, Fruit and Vegetable Program, AMS, USDA, 1400 Independence 
Avenue SW., STOP 0237, Washington, DC 20250-0237; Telephone: (202) 720-
2491, Fax: (202) 720-8938, or Email: Jeffrey.Smutny@ams.usda.gov.

SUPPLEMENTARY INFORMATION: This rule is issued under Marketing 
Agreement No. 98 and 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 Orders 12866, 13563, and 13175.
    This rule has been reviewed under Executive Order 12988, Civil 
Justice Reform. This 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.
    This rule modifies language in the order's administrative rules and 
regulations to remove the requirement that fiberboard cartons used to 
pack 50-pound quantities of U.S. No. 2 grade potatoes must be of one-
piece construction. This change will allow handlers to ship U.S. No. 2 
grade potatoes in 50-pound fiberboard cartons without regard to the 
construction of the carton. The requirement that cartons be of natural 
kraft color and be permanently and conspicuously marked as to grade 
will not change as a result of this rule. This rule will enable 
handlers to respond to market demands and provide greater flexibility 
in shipping U.S. No. 2 grade potatoes. This rule was unanimously 
recommended at a Committee meeting on April 22, 2014. In addition, this 
rule makes a change to the order's handling regulations to correct 
references in Sec.  945.341(b)(3)(i) and (ii), which currently refers 
to a paragraph that does not exist: (b)(4)(iii). The correct reference 
should be (b)(3)(iii).
    Sections 945.51 and 945.52 of the order provide authority for the 
establishment and modification of regulations applicable to the 
handling of potatoes. Section 945.52(a)(3) specifically authorizes the 
regulation of 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.
    Section 945.341 of the order's administrative rules prescribes the 
minimum quality, minimum maturity, pack and marking, and inspection 
requirements for handling fresh market Idaho-Eastern Oregon potatoes. 
Section 945.341(c) prescribes the pack and

[[Page 45674]]

marking requirements for domestic and export shipments of potatoes. 
Under those requirements, cartons of U.S. No. 2 grade potatoes must be 
packed in one-piece 50-pound fiberboard cartons of natural kraft color 
provided the cartons are permanently and conspicuously marked as to 
grade. Grade requirements are based on the U.S. Standards for Grades of 
Potatoes (7 CFR 51.1540-51.1566).
    At its telephone meeting on April 22, 2014, the Committee 
unanimously recommended the relaxation of the order's container 
requirements to remove the one-piece construction prerequisite for 50-
pound fiberboard cartons. The change was recommended to allow handlers 
to ship U.S. No. 2 grade potatoes in any type of 50-pound fiberboard 
cartons of natural kraft color, provided the cartons are permanently 
and conspicuously marked as to grade.
    Handlers reported that food service customers are very concerned 
about the one-piece 50-pound cartons because they are often damaged in 
transit. The one-piece 50-pound carton has a structure that is weaker 
than that of a two-piece 50-pound carton with a bottom and a lid. 
Despite the structure, the two-piece 50-pound carton is less costly 
than the one-piece construction and could save handlers between $400 
and $1,600 per load, depending on the transportation method utilized.
    Additionally, handlers expressed the need for the mandatory grade 
markings to only be required on the top portion of a multi-piece 50-
pound carton. This would enable handlers to save money by allowing them 
to use a uniform, unmarked bottom piece for different grades of 
potatoes. The lid of the multi-piece 50-pound carton would continue to 
be required to have the grade permanently and conspicuously marked.

Initial Regulatory Flexibility Analysis

    Pursuant to requirements set forth in the Regulatory Flexibility 
Act (RFA) (5 U.S.C. 601-612), the Agricultural Marketing Service (AMS) 
has considered the economic impact of this action on small entities. 
Accordingly, AMS has prepared this initial 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 the rules issued thereunder, are unique in 
that they are brought about through group action of essentially small 
entities acting on their own behalf.
    There are approximately 450 producers of potatoes in the production 
area and approximately 32 handlers subject to regulation under the 
marketing order. Small agricultural producers are defined by the Small 
Business Administration (SBA) as those having annual receipts of less 
than $750,000, and small agricultural service firms are defined as 
those whose annual receipts are less than $7,000,000 (13 CFR 121.201).
    During the 2012-2013 fiscal period, the most recent for which 
statistics are available, 35,148,900 hundredweight of Idaho-Eastern 
Oregon potatoes were inspected under the order and sold into the fresh 
market. Based on information provided by the National Agricultural 
Statistics Service, the average producer price for the 2012 Idaho 
potato crop was $5.30 per hundredweight. Multiplying $5.30 by the 
shipment quantity of 35,148,900 hundredweight yields an annual crop 
revenue estimate of $186,289,170. The average annual fresh potato 
revenue for each of the 450 producers is therefore calculated to be 
$413,396 ($186,289,170 divided by 450), which is less than the SBA 
threshold of $750,000. Consequently, on average almost all of the 
Idaho-Eastern Oregon potato producers may be classified as small 
entities.
    In addition, based on information reported by USDA's Market News 
Service, the average f.o.b. shipping point price for the 2012 Idaho 
potato crop was $5.87 per hundredweight. Multiplying $5.87 by the 
shipment quantity of 35,148,900 hundredweight yields an annual crop 
revenue estimate of $206,324,043. The average annual fresh potato 
revenue for each of the 32 handlers is therefore calculated to be 
$6,447,626 ($206,324,043 divided by 32), which is less than the SBA 
threshold of $7,000,000. Consequently, on average most all of the 
Idaho-Eastern Oregon potato handlers may be classified as small 
entities.
    This rule relaxes the container requirements to allow handlers to 
ship U.S. No. 2 grade potatoes in any type of 50-pound fiberboard 
cartons of natural kraft color, provided the cartons are permanently 
and conspicuously marked as to grade. This will enable handlers to 
respond to market demands and to provide greater flexibility in 
shipping U.S. No. 2 grade potatoes. In addition, this rule makes 
changes to the order's handling regulations to correct a citation 
reference.
    The authority for the establishment of pack and marking 
requirements is provided in Sec.  945.52 of the order. Section 
945.341(c) of the order's administrative rules prescribes the pack and 
marking requirements for domestic and export shipments of potatoes.
    The Committee believes that the recommendation should increase the 
sale of U.S. No. 2 grade potatoes. This action is expected to further 
increase the shipments of U.S. No. 2 potatoes to the food service 
industry and help the Idaho-Eastern Oregon potato industry benefit from 
the recent increased growth in demand from the food service industry 
sector. The benefits of this rule are not expected to be 
disproportionately greater or lesser for small entities than large 
entities.
    Prior to arriving at this container recommendation, the Committee 
considered information from the Idaho Potato Commission and the Idaho 
Grower Shippers Association. The Committee also discussed several 
alternatives to this recommendation including leaving the current 
requirement in place. However, the Committee believed that it was 
important to be able to respond to changing market conditions and meet 
customer needs. The Committee will monitor the quantity of U.S. No. 2 
grade potatoes shipped in multi-piece 50-pound fiberboard cartons of 
natural kraft color and evaluate if any further modification to the 
order's container requirements is necessary.
    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 the Office of Management and Budget (OMB) and 
assigned OMB No. 0581-0178 (Generic Vegetable and Specialty Crops). No 
changes in those requirements as a result of this action are necessary. 
Should any changes become necessary, they would be submitted to OMB for 
approval.
    This rule will not impose any additional reporting or recordkeeping 
requirements on either small or large Idaho-Eastern Oregon potato 
handlers. As with all Federal marketing order programs, reports and 
forms are periodically reviewed to reduce information requirements and 
duplication by industry and public sector agencies.
    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, and for other purposes.
    In addition, USDA has not identified any relevant Federal rules 
that duplicate, overlap or conflict with this rule.

[[Page 45675]]

    Further, the Committee meeting was widely publicized throughout the 
Idaho-Eastern Oregon potato industry and all interested persons were 
invited to attend the meeting and participate in Committee 
deliberations. Like all Committee meetings, the April 22, 2014, meeting 
was a public meeting and all entities, both large and small, were able 
to express their views on this issue. Finally, interested persons are 
invited to submit comments on this interim rule, including the 
regulatory and informational impacts of this action on small 
businesses.
    A small business guide on complying with fruit, vegetable, and 
specialty crop marketing agreements and orders may be viewed at: http://www.ams.usda.gov/MarketingOrdersSmallBusinessGuide. Any questions 
about the compliance guide should be sent to Jeffrey Smutny at the 
previously mentioned address in the FOR FURTHER INFORMATION CONTACT 
section.
    This rule invites comments on a change to the container 
requirements currently prescribed under the Idaho-Eastern Oregon potato 
marketing order. Any comments received will be considered prior to 
finalization of this rule.
    After consideration of all relevant material presented, including 
the Committee's recommendation, and other information, it is found that 
this interim 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 impracticable, 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 rule until 30 days after publication in the Federal Register 
because: (1) Handlers are currently shipping Idaho-Eastern Oregon 
potatoes; (2) this action relaxes current container requirements; (3) 
the Committee unanimously recommended this change at a public meeting 
and interested parties had an opportunity to provide input; and (4) 
this rule provides a 60-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

0
1. The authority citation for 7 CFR part 945 continues to read as 
follows:


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


Sec.  945.341  [Amended]

0
2. In Sec.  945.341(b)(3)(i) and (ii), remove the reference 
``(b)(4)(iii)'' and add in its place the reference ``(b)(3)(iii)''.

0
3. In Sec.  945.341(c)(2)(ii), remove the word ``one-piece''.

    Dated: July 31, 2014.
Rex A. Barnes,
Associate Administrator, Agricultural Marketing Service.
[FR Doc. 2014-18606 Filed 8-5-14; 8:45 am]
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