Proposed Rule2021-19676
Amendments to the United States Potato Board Membership and Assessment Methods
Primary source
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Published
September 16, 2021
Issuing agencies
Agriculture DepartmentAgricultural Marketing Service
Abstract
This proposal invites comments on amendments to the Potato Research and Promotion Plan (Plan) as recommended by the National Potato Promotion Board (Board) and the Secretary of the U.S. Department of Agriculture (USDA). The Board administers the Plan with oversight provided by USDA's Agricultural Marketing Service (AMS). The Board recommends changing approved sources of potato production data used to determine the number of Board seats, expanding payment methods used to remit assessments to include electronic submission, and updating the table of Harmonized Tariff Schedule of the United States (HTS) codes and assessment rates for imported potatoes and potato products. Finally, proposed amendments would insert new language eliminating the need to amend the Plan just to update the list of relevant HTS codes.
Full Text
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<title>Federal Register, Volume 86 Issue 177 (Thursday, September 16, 2021)</title>
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[Federal Register Volume 86, Number 177 (Thursday, September 16, 2021)]
[Proposed Rules]
[Pages 51626-51629]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2021-19676]
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DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Part 1207
[Document Number AMS-SC-21-0032]
Amendments to the United States Potato Board Membership and
Assessment Methods
AGENCY: Agricultural Marketing Service, USDA.
ACTION: Proposed rule.
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SUMMARY: This proposal invites comments on amendments to the Potato
Research and Promotion Plan (Plan) as recommended by the National
Potato Promotion Board (Board) and the Secretary of the U.S. Department
of Agriculture (USDA). The Board administers the Plan with oversight
provided by USDA's Agricultural Marketing Service (AMS). The Board
recommends changing approved sources of potato production data used to
determine the number of Board seats, expanding payment methods used to
remit assessments to include electronic submission, and updating the
table of Harmonized Tariff Schedule of the United States (HTS) codes
and assessment rates for imported potatoes and potato products.
Finally, proposed amendments would insert new language eliminating the
need to amend the Plan just to update the list of relevant HTS codes.
DATES: Comments must be received by October 18, 2021.
ADDRESSES: Interested persons are invited to submit written comments
concerning this proposed rule. All comments must be submitted through
the Federal e-rulemaking portal at: <a href="http://www.regulations.gov">http://www.regulations.gov</a> and
should reference the document number, date, and page number of this
issue of the Federal Register. Comments submitted in response to this
proposed rule will be included in the rulemaking record and will be
made available to the public. Please be advised that the identity of
individuals or entities submitting comments will be made public on the
internet at: <a href="http://www.regulations.gov">http://www.regulations.gov</a>.
FOR FURTHER INFORMATION CONTACT: Stacy Jones King, Marketing
Specialist, Promotion and Economics Division, Specialty Crop Program,
AMS, USDA, Stop 0244, 1400 Independence Avenue SW, Room 1406-S,
Washington, DC 20250-0244; telephone: (202) 720-4140; or electronic
mail: <a href="/cdn-cgi/l/email-protection#2073544143590e6a4f4e45536b494e4760555344410e474f56"><span class="__cf_email__" data-cfemail="f4a78095978ddabe9b9a9187bf9d9a93b481879095da939b82">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION: This proposal affecting the Plan (7 CFR part
1207) is authorized under the Potato Research and Promotion Act (Act)
(7 U.S.C. 2611-2627).
Executive Orders 12866 and 13563
USDA is issuing this proposed rule in conformance with Executive
Orders 12866 and 13563. Executive Orders 12866 and 13563 direct
agencies to assess all costs and benefits of available regulatory
alternatives and, if regulation is necessary, to select regulatory
approaches that maximize net benefits (including potential economic,
environmental, public health and safety effects, distributive impacts
and equity). Executive Order 13563 emphasizes the
[[Page 51627]]
importance of quantifying both costs and benefits, reducing costs,
harmonizing rules, and promoting flexibility. This action falls within
a category of regulatory actions that the Office of Management and
Budget (OMB) exempted from Executive Order 12866 review.
Executive Order 13175
This action has been reviewed in accordance with requirements of
Executive Order 13175, Consultation and Coordination with Indian Tribal
Governments. AMS has assessed the impact of this proposed rule on
Indian tribes and determined that this rule would not have tribal
implications that require consultation under Executive Order 13175. AMS
hosts a quarterly teleconference with tribal leaders where matters of
mutual interest regarding the marketing of agricultural products are
discussed. Information about proposed changes to regulations will be
shared during an upcoming quarterly call, and tribal leaders will be
informed about proposed revisions to the regulation and the opportunity
to submit comments. AMS will work with the USDA Office of Tribal
Relations to ensure meaningful consultation is provided as needed with
regards to this proposed change to the Plan.
Executive Order 12988
This proposal has been reviewed under Executive Order 12988, Civil
Justice Reform. It is not intended to have retroactive effect.
Pursuant to the Congressional Review Act (5 U.S.C. 801 et seq.),
the Office of Information and Regulatory Affairs designated this rule
as not a major rule, as defined by 5 U.S.C. 804(2).
The Act provides that administrative proceedings must be exhausted
before parties may file suit in court. Under section 311 of the Act (7
U.S.C. 2620), a person subject to a plan may file a petition with USDA
stating that such plan, any provision of such plan, or any obligation
imposed in connection with such plan, is not in accordance with law and
request a modification of such plan or to be exempted therefrom. Such
person is afforded the opportunity for a hearing on the petition.
Thereafter, USDA will issue a ruling on the petition. The Act provides
that the district court of the United States for any district in which
the petitioner resides or conducts business shall have the jurisdiction
to review a final ruling on the petition, if the petitioner files a
complaint for that purpose not later than 20 days after date of the
entry of USDA's final ruling.
Background
This proposed rule invites comments on proposed amendments to
approved sources of potato production data used to determine the number
of Board seats, to which each State is entitled. Additionally,
amendments would expand payment methods used to remit assessments to
include electronic submission and update the table of HTS codes and
assessment rates for imported potatoes and potato products. Finally,
proposed amendments would insert new language to avoid future
amendments to the Plan in the event that HTS numbers subject to
assessment reflected in the table are changed and such changes are
merely replacements of previous numbers.
Data Sources for Board Membership Recommendation
The Plan became effective on March 9, 1972. Section 1207.320(b) of
the Plan provides the formula used to determine how many Board member
seats each State is entitled. Under the Plan, every State is eligible
to have a Board representative and additional members based on potato
production in that State. For each five million hundredweight of such
production, or major fraction thereof, produced within each State, such
State shall be entitled to one additional member.
The Plan states that total annual potato production must come from
the ``latest Crop Production Annual Summary Report issued by the Crop
Reporting Board, U.S. Department of Agriculture.'' See Sec.
1207.320(b). The Crop Production Annual Summary Report is currently
issued by NASS.
In March 2020, USDA's NASS and AMS communicated to the Board that
NASS would no longer collect potato production data for the following
ten states: Alaska, Illinois, Kansas, Maryland, Missouri, Montana, New
Jersey, New York, North Carolina, and Virginia. In June 2020, NASS
estimated the cost of collecting data at $80,000 per year. The Board
considered this estimate and concluded that the cost to collect this
information would exceed the value of assessments collected from the
aforementioned ten States. Subsequently, the Board decided to
temporarily freeze the number of seats for those ten States at their
2019 quantities so that the Board could move forward with assigning
Board member seats for 2020 nominations.
At a July Board 2020 meeting, Board staff presented to the Board's
Administrative Committee a summary of constraints related to the
collection of production data. During a January 2021 meeting, Board
staff further discussed the need to update the Plan with the
Administrative Committee and made the recommendation to amend the Plan
during a subsequent meeting on March 9, 2021.
The Board recommended to use production data from audited
assessment reports in place of NASS data for states not included in
NASS reports.
As indicated in Table 1, this amendment would allow the Board to
use audited assessment data in instances where NASS data is
unavailable.
Table 1--NASS Production and Board Production (Board) and Number of Producer Members by State
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2020 NASS &
2016-2018 2016-2018 2020 NASS Board
State NASS 2016 NASS 2017 NASS 2018 Board 2018 NASS avg. NASS & number of number of
(cwt) (cwt) (cwt) (cwt) (1,000 cwt) Board Avg. members members
(1,000 cwt) (cwt/5,000) (cwt/5,000)
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Alabama (AL).................................... ........... ........... ........... 70 ........... ........... 1 1
Illinois (IL)................................... 2,812 3,321 2,850 394 2,994 2,176 1 1
Kansas (KS)..................................... 1,260 1,558 1,419 483 1,412 1,100 1 1
Maryland (MD)................................... ........... 913 510 389 474 651 1 1
Missouri (MO)................................... 2,410 2,423 1,665 1,012 2,166 1,948 1 1
Montana (MT).................................... 3,685 3,774 3,830 149 3,763 2,536 1 1
New Jersey (NJ)................................. ........... 600 530 125 377 363 1 1
New York (NY)................................... 3,552 4,032 4,118 899 3,901 2,828 1 1
North Carolina (NC)............................. 2,992 3,473 2,318 1,702 2,928 2,722 1 1
Virginia (VA)................................... 1,189 1,193 1,034 450 1,139 944 1 1
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[[Page 51628]]
Assessment Payment Options Recommendation
The Board also recommended to include ``electronic submission'' in
the list of allowable methods of payment to remit assessments and to
remove references to drafts and money orders.
The Board staff stated that allowing electronic submission (e.g.,
bank transfer payments (Automated Clearing House) (ACH) or wire
transfer payments) of assessments would improve and streamline
operations by lowering the cost of processing mailed checks. The Board
recommended removing references to drafts and money orders as handlers
no longer use these forms of payment.
Harmonized Tariff Schedule Table Recommendation
Section 1207.510(b)(3) of the Plan contains a table that reflects
outdated HTS codes, assessment rates, and potato categories for
imports.
Pursuant to Section 1207.327(b) of the Plan, the Board has the
authority to recommend to the Secretary amendments to this Plan. To
reduce Federal Register publication costs associated with amending the
Plan to update HTS codes, the Board recommended removing the HTS chart
from the Plan and replacing the HTS chart with a reference to HTS
codes, assessment rates and potato categories for imports.
The Secretary has chosen to adopt and propose an alternative
approach that includes amending the Plan by updating the current HTS
chart, and inserting new language to avoid future amendments to the
Plan in the event that an HTS number subject to assessment reflected in
the table is changed and such change is merely a replacement of a
previous number. This proposed change will reduce future Federal
Register publication costs associated with amending the Plan to remain
consistent with future updated HTS numbers that have no impact on the
description of potato involved.
Initial Regulatory Flexibility Act Analysis
In accordance with the Regulatory Flexibility Act (RFA) (5 U.S.C.
601-612), AMS is required to examine the impact of the proposed rule on
small entities. Accordingly, 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
businesses subject to such actions so that small businesses will not be
disproportionately burdened. The Small Business Administration (SBA)
defines, in 13 CFR part 121, small agricultural producers as those
having annual receipts of no more than $1 million and small
agricultural service firms (handlers) as those having annual receipts
of no more than $30 million.
According to the Board, there were 60 importers, 955 handlers, and
approximately 2,500 producers and handlers in 2020.
Most producers would be classified as small agricultural production
businesses under the criteria established by the SBA (no more than $1
million in annual potato sales). According to the 2017 Census of
Agriculture, published by NASS in 2019, there were 16,554 potato farms
with bearing acreage. Of these 16,554 farms, 1,417 sold potatoes whose
annual market value met or exceeded $1 million. Based on these figures,
91 percent of U.S. potato producers are considered to be ``small''
under the SBA standards. USDA recognizes the potential inclusion in its
count of ``small'' farms those farms whose sales of potatoes were
exactly $1 million in market value; however, USDA lacks the data to
remedy this, and the number of farms who meet this criterion is likely
quite small.
This proposal would amend Sec. Sec. 1207.320, 1207.502, 1207.510
and 1207.513.
Regarding the economic impact of this proposed rule on affected
entities, this action would impose no costs on producers, handlers, or
importers. Proposed changes are administrative in nature and would
allow the Board to effectively carry out the requirements of the Plan.
In response to the discontinuation of NASS collection of potato
production data for 10 States, USDA considered the following
alternatives to the proposed amendment: Take no action and hold
constant production level figures for the 10 States to the final year
for which NASS published data; or, fund NASS' collection of data for
the 10 States using Board resources. The first of these alternatives
would result in the potential for Board representation that is
inconsistent with domestic production. Potato production fluctuates
significantly from year to year. Consequently, distribution of Board
member seats based on a fixed production figure would prevent the Board
from adequately reflecting changes that occur in the industry over
time; therefore, this is not a viable alternative. The second
alternative would result in an annual cost to the Board of
approximately $80,000 to restore the collection of potato production
data by NASS for the 10 States which it has omitted. This amount
exceeds the total value of assessments collected from these 10 States,
making this alternative not viable.
In accordance with OMB regulation [5 CFR part 1320], which
implements information collection requirements imposed by the Paperwork
Reduction Act of 1995 [44 U.S.C. 3501 et seq.], there are no new
requirements contained in this rule.
As with all Federal promotion programs, reports and forms are
periodically reviewed to reduce information requirements and
duplication by industry and public sector agencies. USDA has not
identified any relevant Federal rules that duplicate, overlap, or
conflict with this proposed rule.
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.
Regarding outreach efforts, all Board meetings were open to the
public and interested persons were invited to participate and express
their views. No concerns were raised.
We have performed this initial RFA regarding the impact of this
proposed action on small entities and we invite comments concerning
potential effects of this action on small businesses.
While this proposed rule as set forth below has not yet received
the approval of USDA, it has been determined that it is consistent with
and would effectuate the purposes of the Act.
A 30-day comment period is provided to allow interested persons to
respond to this proposal. All written comments received in response to
this proposed rule will be considered prior to finalizing this action.
List of Subjects in 7 CFR Part 1207
Advertising, Agricultural research, Imports, Potatoes, Reporting
and recordkeeping requirements.
For reasons set forth in the preamble, 7 CFR part 1207 is proposed
to be amended as follows:
PART 1207--POTATO RESEARCH AND PROMOTION PLAN
0
1. The authority citation for 7 CFR part 1207 continues to read as
follows:
Authority: 7 U.S.C. 2611-2627; 7 U.S.C. 7401.
0
2. Revise Sec. 1207.320(b) to read as follows:
[[Page 51629]]
Sec. 1207.320 Establishment and membership.
* * * * *
(b) Producer membership on the Board shall be determined on the
basis of potato production reported in the latest Crop Production
Annual Summary Report issued by the National Agricultural Statistics
Service of the U.S. Department of Agriculture. If a State's potato
production data is not provided by the National Agricultural Statistics
Service, the Board may use an alternative data source that reliably
reflects potato production in the United States. Unless the Secretary,
upon recommendation of the Board, determines an alternate basis, for
each five million hundredweight of such production, or major fraction
thereof, produced within each State, such State shall be entitled to
one member. However, each State shall initially be entitled to at least
one member.
* * * * *
0
3. Revise Sec. 1207.502(a) to read as follows:
Sec. 1207.502 Determination of membership.
(a) Pursuant to Sec. 1207.320 and the recommendation of the Board,
annual producer memberships on the Board shall be determined on the
basis of the average potato production during the 3 preceding years in
each State as set forth in the Crop Production Annual Summary Reports
issued by the National Agricultural Statistics Service of the U.S.
Department of Agriculture. If a State's potato production data is not
provided by the National Agricultural Statistics Service, the Board may
use an alternative data source that reliably reflects potato production
in the United States.
* * * * *
0
4. Revise Sec. 1207.510 (b)(3) to read as follows:
Sec. 1207.510 Levy of assessments.
* * * * *
(b) * * *
(3) The Harmonized Tariff Schedule (HTS) categories and assessment
rates on imported tablestock potatoes and frozen or processed potatoes
for ultimate consumption by humans and on imported seed potatoes are
listed in the following table. In the event that any HTS number subject
to assessment is changed and such change is merely a replacement of a
previous number and has no impact on the description of the potatoes,
assessments will continue to be collected based on these new numbers.
Table 2 to Paragraph (b)(3)
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Assessment
Tablestock potatoes, frozen or processed -------------------------------
potatoes, and seed potatoes Cents/cwt Cents/kg
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0701.10.0020............................ 3.0 0.066
0701.10.0040............................ 3.0 0.066
0701.90.1000............................ 3.0 0.066
0701.90.5015............................ 3.0 0.066
0701.90.5025............................ 3.0 0.066
0701.90.5035............................ 3.0 0.066
0701.90.5045............................ 3.0 0.066
0701.90.5055............................ 3.0 0.066
0701.90.5065............................ 3.0 0.066
0710.10.0000............................ 6.0 0.132
2004.10.4000............................ 6.0 0.132
2004.10.8020............................ 6.0 0.132
2004.10.8040............................ 6.0 0.132
2005.20.0070............................ 4.716 0.104
0712.90.3000............................ 21.429 0.472
1105.10.0000............................ 21.429 0.472
1105.20.0000............................ 21.429 0.472
2005.20.0040............................ 21.429 0.472
2005.20.0020............................ 12.240 0.27
1108.13.0010............................ 27.0 0.595
------------------------------------------------------------------------
* * * * *
0
5. Revise Sec. 1207.513 (c)(1) to read as follows:
Sec. 1207.513 Payment of assessments.
* * * * *
(c) Payment directly to the Board. (1) Except as provided in
paragraphs (b) and (d) of this section, each designated handler or
importer shall remit assessments directly to the Board by check or
electronic payment. Checks are to be made payable to the National
Potato Promotion Board or the Board's official doing business as name.
Payment is due not later than 10 days after the end of the month such
assessment is due together with a report (preferably on Board forms)
thereon.
* * * * *
Erin Morris,
Associate Administrator, Agricultural Marketing Service.
[FR Doc. 2021-19676 Filed 9-15-21; 8:45 am]
BILLING CODE P
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