Rule2022-03177
Irish Potatoes Grown in Washington; Termination of Marketing Order 946
Primary source
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Published
February 15, 2022
Effective
March 2, 2022
Issuing agencies
Agriculture DepartmentAgricultural Marketing Service
Abstract
This final rule terminates the Federal marketing order regulating the handling of Irish potatoes grown in Washington, and the rules and regulations issued thereunder. The marketing order is administered locally by the State of Washington Potato Committee (Committee), which unanimously recommended its termination at a meeting held on June 11, 2020. This recommendation is based on the Committee's determination that the marketing order is no longer an effective marketing tool for the Washington potato industry and that termination best serves the current needs of the industry by eliminating the costs associated with its operation.
Full Text
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<title>Federal Register, Volume 87 Issue 31 (Tuesday, February 15, 2022)</title>
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[Federal Register Volume 87, Number 31 (Tuesday, February 15, 2022)]
[Rules and Regulations]
[Pages 8399-8402]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-03177]
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DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Part 946
[Doc. No. AMS-SC-20-0095; SC21-946-1 FR]
Irish Potatoes Grown in Washington; Termination of Marketing
Order 946
AGENCY: Agricultural Marketing Service, USDA.
ACTION: Final rule; termination of order.
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SUMMARY: This final rule terminates the Federal marketing order
regulating the handling of Irish potatoes grown in Washington, and the
rules and regulations issued thereunder. The marketing order is
administered locally by the State of Washington Potato Committee
(Committee), which unanimously recommended its termination at a meeting
held on June 11, 2020. This recommendation is based on the Committee's
determination that the marketing order is no longer an effective
marketing tool for the Washington potato industry and that termination
best serves the current needs of the industry by eliminating the costs
associated with its operation.
DATES: Effective March 2, 2022.
FOR FURTHER INFORMATION CONTACT: Gregory A. Breasher, Marketing
Specialist, or Gary Olson, Regional Director, Market Development
Division, Specialty Crops Program, AMS, USDA; Telephone: (503) 326-2054
or Email: <a href="/cdn-cgi/l/email-protection#14536671737b666d3a56667175677c716654616770753a737b62"><span class="__cf_email__" data-cfemail="9ed9ecfbf9f1ece7b0dcecfbffedf6fbecdeebedfaffb0f9f1e8">[email protected]</span></a> or <a href="/cdn-cgi/l/email-protection#e3a482919aa7cdac8f908c8da396908782cd848c95"><span class="__cf_email__" data-cfemail="88cfe9faf1cca6c7e4fbe7e6c8fdfbece9a6efe7fe">[email protected]</span></a>.
Small businesses may request information on complying with this
regulation by contacting Richard Lower, Market Development Division,
Specialty Crops Program, AMS, USDA, 1400 Independence Avenue SW, STOP
0237, Washington, DC 20250-0237;
[[Page 8400]]
Telephone: (202) 720-2491, Fax: (202) 720-8938, or Email:
<a href="/cdn-cgi/l/email-protection#ca98a3a9a2abb8aee486a5bdafb88abfb9aeabe4ada5bc"><span class="__cf_email__" data-cfemail="47152e242f263523690b28302235073234232669202831">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION: This action, pursuant to 5 U.S.C. 553,
finalizes the termination of regulations issued to carry out a
marketing order as defined in 7 CFR 900.2(j). This final rule is issued
under Marketing Order No. 946, as amended (7 CFR part 946), regulating
the handling of potatoes grown in Washington. Part 946 (referred to as
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.'' This action is governed by Sec. 608c(16)(A) of the Act.
The Committee locally administers the Order and is comprised of
producers and handlers operating within the production area.
The Department of Agriculture (USDA) is issuing this final 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
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.
In addition, this final rule has been reviewed under Executive
Order 13175--Consultation and Coordination with Indian Tribal
Governments, which requires agencies to consider whether their
rulemaking actions would have tribal implications. Agricultural
Marketing Service (AMS) has determined this final rule is unlikely to
have substantial direct effects on one or more Indian tribes, on the
relationship between the Federal Government and Indian tribes, or on
the distribution of power and responsibilities between the Federal
Government and Indian tribes.
This final rule has been reviewed under Executive Order 12988,
Civil Justice Reform. This final 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 a marketing order may file with USDA a
petition stating that the marketing order, any provision of the
marketing order, or any obligation imposed in connection with the
marketing order is not in accordance with law and request a
modification of the marketing 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 final rule terminates the Order and the rules and regulations
issued thereunder. The Order contains authority for the regulation of
Irish potatoes grown in Washington. At a virtual meeting held on June
11, 2020, the Committee unanimously recommended termination of the
Order.
Section 946.63(b) of the Order provides that USDA terminates or
suspends any or all provisions of the Order when a finding is made that
the Order does not tend to effectuate the declared policy of the Act.
In addition, section 608c(16)(A) of the Act provides that USDA
terminates or suspends the operation of any order whenever the order or
any provision thereof obstructs or does not tend to effectuate the
declared policy of the Act. Additionally, USDA is required to notify
Congress no later than 60 days before the date the Order would be
terminated.
Marketing Order No. 946 has been in effect since 1949 and has
provided the potato industry in Washington with authority for grade,
size, quality, maturity, pack, and container regulations, as well as
authority for mandatory product inspection. The Committee has met
regularly to evaluate the current status of the Washington potato
industry and to consider recommendations for modification, suspension,
or termination of the Order's regulatory requirements, which have been
issued on a continuing basis. Committee meetings are open to the public
and interested persons may express their views at these meetings. The
USDA reviews Committee recommendations, including information provided
by the Committee and from other available sources, and determines
whether modification, suspension, or termination of the Order's
regulatory requirements would tend to effectuate the declared policy of
the Act.
Handling regulations requiring potatoes to be inspected and meet
mandatory minimum grade, size, maturity, quality, pack, and container
requirements were in effect for all types of potatoes until 2010. USDA
temporarily suspended the handling regulations for Russet type potatoes
for one year, effective July 24, 2010 (75 FR 43042), and subsequently
extended that suspension indefinitely, effective July 1, 2011 (76 FR
27850). Further, USDA temporarily suspended the handling regulations
for yellow fleshed and white type potatoes effective October 24, 2013
(78 FR 62967), also extending that suspension indefinitely, effective
July 1, 2014 (79 FR 26109). Lastly, USDA indefinitely suspended the
handling regulations for all red types of potatoes, effective February
15, 2014 (79 FR 8253). The cumulative effect of the various suspensions
was the total suspension of handling regulations for all fresh potatoes
under the Order after July 1, 2014. All of the suspensions listed above
were enacted upon the Committee's recommendation.
Following these regulatory suspensions, the Committee continued to
levy assessments in order to maintain its functionality. The Committee
felt that it should continue to fund its full operational capability in
order to collect handler reports, track industry data, and preserve the
authority to regulate handling, should that become relevant to the
industry again sometime in the future.
The Committee met on January 22 and June 11, 2020, to discuss the
current marketing environment of the Washington potato industry and the
status of the Order. The Committee determined that the suspension of
the Order's handling regulations has not negatively impacted the
industry and that there is no longer a need for the Order. In addition,
the Committee concluded that the data collection and reporting
functions of the Order are duplicative of the services provided to the
industry by the Washington State Potato Commission and that termination
of the Order will not materially impact the collection and
dissemination of essential industry data.
At the meeting held via conference call on June 11, 2020, the
Committee unanimously voted in favor of recommending that USDA
terminate the Order. In addition, the Committee recommended the Order's
reporting and assessment requirements--the only regulatory activities
still in effect--be suspended while USDA processes termination of the
Order. The recommendation to suspend all remaining Order activities was
a separate regulatory action from this rule. A final rule suspending
the Order's reporting and assessment requirements
[[Page 8401]]
was published in the Federal Register February 24, 2021 (86 FR 11091).
Final Regulatory Flexibility Analysis
Pursuant to requirements set forth in the Regulatory Flexibility
Act (RFA) (5 U.S.C. 601-612), AMS has considered the economic impact of
this final rule on small entities. Accordingly, AMS has prepared this
final 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 26 handlers of Washington potatoes and
approximately 250 potato producers in the production area subject to
regulation by the Order.
Small agricultural service firms are defined by the Small Business
Administration (13 CFR 121.201) as those having annual receipts of less
than $30,000,000, and small agricultural producers are defined as those
having annual receipts of less than $1,000,000.
According to USDA Market News, the average shipping point price for
fresh Washington potatoes during the 2019 shipping season was
approximately $15.79 per hundredweight. The Committee reported that
2019-2020 marketing year fresh potato shipments were 9,687,170
hundredweight. Using the average price and shipment information, the
number of handlers, and assuming a normal distribution, most handlers
had average annual receipts of less than $30,000,000 ($15.79 times
9,687,170 hundredweight equals $152,960,414, divided by 26 handlers
equals $5,883,093 per handler). Thus, AMS concludes that the majority
of handlers would meet the SBA definition of a small business.
USDA National Agricultural Statistics Service reported an average
producer price of $8.20 per hundredweight for the 2019 crop. Given the
number of Washington potato producers, and assuming a normal
distribution, average annual producer revenue is below $1,000,000
($8.20 times 9,687,170 hundredweight equals $79,434,794, divided by 250
producers equals $317,739 per producer). Therefore, most producers of
fresh Washington potatoes may be classified as small businesses under
the SBA definition.
This rule terminates the Federal marketing order for Irish potatoes
grown in Washington, and the rules and regulations issued thereunder.
The Order contains authority to regulate the handling of Irish potatoes
grown in Washington. The Committee determined that regulating the
handling of potatoes under the Order is no longer an effective
marketing tool for the Washington potato industry. Evidence from the
past several years of operating with suspended handling regulations
showed that potatoes can be shipped from the production area in the
absence of the Order's minimum requirements without a negative economic
impact on the industry.
Secondly, the Committee determined that the data collection and
reporting function of the Order is duplicative of the services provided
to the industry by the Washington State Potato Commission. The
termination of the Order will not materially impact the collection and
dissemination of essential industry data to Washington state potato
growers.
As such, the Committee concluded that the costs associated with the
administration of the Order outweigh the benefits of continuing the
Order. This conclusion is based on the Committee's analysis of the 6-
year period of regulatory suspension and findings that termination is
not expected to negatively impact the marketing of fresh Washington
potatoes because this action reduces the costs to both handlers and
producers. Therefore, in an action taken on June 11, 2020, the
Committee unanimously recommended that USDA terminates the Order.
Section 946.63(b) of the Order provides that USDA terminates or
suspends any or all provisions of the Order when a finding is made that
the Order does not tend to effectuate the declared policy of the Act.
Furthermore, Sec. 608c(16)(A) of the Act provides that USDA shall
terminate or suspend the operation of any order whenever the order or
provision thereof obstructs or does not tend to effectuate the declared
policy of the Act. An additional provision requires that Congress be
notified no later than 60 days before the date the order would be
terminated.
The Committee considered alternatives to this rule, including
taking no action (which would keep the Order active but with the
handling regulations suspended) and suspending all of the Order's
remaining regulatory provisions but not terminating the Order. The
Committee determined that neither option was a viable long-term
solution and subsequently recommended that the Order be terminated.
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 OMB and contained in OMB No. 0581-0178 Vegetable
and Specialty Crops. Termination of the Order, and the reporting
requirements prescribed therein, will eliminate the reporting burden on
Washington potato handlers. Handlers will no longer file forms with the
Committee, which will reduce industry expenses and save an estimated
9.7 hours per handler per year. This rule will not impose any
additional reporting or recordkeeping requirements on either small or
large 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. In
addition, USDA has not identified any relevant Federal rules that
duplicate, overlap or conflict with this 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, and for other purposes.
The Committee's meetings are widely publicized throughout the
Washington potato industry, and all interested persons are invited to
attend the meetings and participate in Committee deliberations on all
issues. Like all Committee meetings, the January 22 and June 11, 2020,
meetings were public meetings, and all entities, both large and small,
were able to express their views on these issues. Interested persons
were invited to submit comments on a proposed rule, including the
regulatory and information collection 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:
<a href="https://www.ams.usda.gov/rules-regulations/moa/small-businesses">https://www.ams.usda.gov/rules-regulations/moa/small-businesses</a>. Any
questions about the compliance guide should be sent to Richard Lower at
the previously mentioned address in the FOR FURTHER INFORMATION CONTACT
section.
A proposed rule inviting comments regarding termination of the
Order was published in the Federal Register on September 7, 2021 (86 FR
49930). AMS distributed the proposed rule to State of Washington potato
industry members. In addition, the rule was made available on the
internet by AMS and the Office of the Federal Register. The proposed
rule provided a 60-day comment period
[[Page 8402]]
for the interested parties to comment, which ended on November 8, 2021.
Two comments were received in support of the termination.
Based on the foregoing, and pursuant to Sec. 608c(16)(A) of the
Act and Sec. 946.63 of the Order, it is hereby found that the Federal
marketing Order 946 regulating the handling of Irish potatoes grown in
Washington does not tend to effectuate the declared policy of the Act
and is therefore terminated.
Following termination, trustees will be appointed to conclude and
liquidate the Committee affairs and will continue in that capacity
until discharged by USDA. Section 608c(16)(A) of the Act requires USDA
to notify Congress 60 days in advance of termination of a Federal
marketing order. USDA notified Congress on December 2, 2021.
List of Subjects in 7 CFR Part 946
Marketing agreements, Potatoes, Reporting and recordkeeping
requirements.
PART 946--[REMOVED]
0
For the reasons set forth in the preamble, and under the authority of 7
U.S.C. 601-674, 7 CFR part 946 is removed.
Erin Morris,
Associate Administrator, Agricultural Marketing Service.
[FR Doc. 2022-03177 Filed 2-14-22; 8:45 am]
BILLING CODE 3410-02-P
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