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

DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 945

[Docket No. FV94-945-2FR]

Irish Potatoes Grown in Certain Designated Counties in Idaho, and

Malheur County, Oregon, and Imported Irish Potatoes; Modification of

Minimum Size Requirements

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Final rule.

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SUMMARY: This final rule modifies the minimum size requirements for all

varieties of potatoes, except round reds, grown in certain designated

counties in Idaho, and Malheur County, Oregon, and for imported long

type potatoes. Currently, the minimum size requirement for all

varieties, except round reds, is 2 inches in diameter, or 4 ounces in

weight. This rule specifies that, in addition, at least 40 percent of

the potatoes in each lot, by weight, must be 5 ounces or heavier.

Requiring handlers to ship heavier potatoes should correct a marketing

problem by providing the heavier potatoes demanded by the market and

increase returns to producers and handlers. As provided under the

Agricultural Marketing Agreement Act of 1937, the changes will also

apply to imported potatoes.

EFFECTIVE DATE: September 12, 1994.

FOR FURTHER INFORMATION CONTACT: Gary D. Olson, Northwest Marketing

Field Office, Fruit and Vegetable Division, AMS, USDA, 1220 SW Third

Avenue, Room 369, Portland, OR 97204; telephone: (503) 326-2724 or Fax

(503) 326-7440; or Valerie L. Emmer, Marketing Order Administration

Branch, Fruit and Vegetable Division, Agricultural Marketing Service,

U.S. Department of Agriculture, P.O. Box 96456, Room 2523-S,

Washington, DC 20090-6456; telephone: (202) 205-2829 or Fax (202) 720-

5698.

SUPPLEMENTARY INFORMATION: This 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.''

This final rule, which also affects the import requirements for

long type Irish potatoes, is also issued pursuant to section 8e of the

Act. The provisions of section 8e and the potato import regulation are

discussed later in this final rule.

The U.S. Department of Agriculture (Department) is issuing this

rule in conformance with Executive Order 12866.

This final has been reviewed under Executive Order 12778, Civil

Justice Reform. This rule is not intended to have retroactive effect.

This 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 not

filed later than 20 days after the date of the entry of the ruling.

There are no administrative procedures which must be exhausted

prior to any judicial challenge to the provisions of import regulations

issued under section 8e of the Act.

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.

There are approximately 60 handlers of Idaho-Eastern Oregon

potatoes that are subject to regulation under the order, and

approximately 2,000 producers in the production area. In addition, at

least 75 importers of Irish potatoes are subject to import regulations

and will be affected by this rule. 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 these handlers and producers may be classified

as small entities. The majority of the importers of potatoes may also

be classified as small entities.

This rule amends paragraph (a)(2)(ii) of Sec. 945.341 Handling

regulation of the order's rules and regulations, and is based on a

unanimous recommendation made by the Idaho-Eastern Oregon Potato

Committee (committee), the agency responsible for local administration

of the order, at its June 7, 1994, public meeting. The committee's

recommended revision is authorized pursuant to Secs. 945.51 and 945.52

of the order.

Quality assurance is very important to the Idaho-Eastern Oregon

potato industry. Providing the public with acceptable quality produce

which is appealing to the consumer on a consistent basis is necessary

to maintain buyer confidence in the marketplace. The committee reports

that potato size is important to buyers.

For several decades, the minimum size requirement for all varieties

of Idaho-Oregon potatoes, except round reds, has been 2 inches in

diameter, or 4 ounces in weight. However, the committee reports that

the industry has been losing its share of the potato market, because

the market in recent years has been demanding potatoes larger than this

minimum size. Consumers now expect some baker size potatoes in the

packages they buy. In spite of an industry campaign to encourage

handlers to voluntarily ship larger potatoes, a number of handlers have

continued to ship potatoes that barely meet the minimum size

requirement, depressing the price for other potatoes. These potatoes

are generally shipped in consumer packs (e.g., 5- or 10-pound bags) or

in 100-pound sacks for later repackaging into consumer packs.

These shipments have resulted in disappointment by buyers and

consumers in recent years, hurting the quality image of Idaho-Eastern

Oregon potatoes, reducing repeat purchases and overall sales volume,

and resulting in declines in prices, which has hurt the overall sales

volume.

To better meet market demand regarding the size of potatoes, the

committee recommended an additional requirement that at least 40

percent of the potatoes in each lot must weigh at least 5 ounces. It is

anticipated that requiring handlers to ship such heavier potatoes will

enable the industry to regain its lost share of the market and increase

returns to producers and handlers.

Section 8e of the Act requires that when certain domestically

produced commodities, including Irish potatoes, are regulated under a

Federal marketing order, imports of that commodity must meet the same

or comparable grade, size, quality, or maturity requirements, subject

to concurrence by the U.S. Trade Representative. Section 8e also

provides that whenever two or more marketing orders regulating a

commodity produced in different areas of the United States are

concurrently in effect, the Secretary shall determine which of the

areas produces the commodity in more direct competition with the

imported commodity. Imports, then must meet the quality standards set

for the particular area.

In the case of potatoes, the current import regulation [7 CFR

980.1] specifies that import requirements for long type potatoes be

based on those in effect for potatoes grown in certain designated

counties in Idaho, and Malheur County, Oregon, during each month of the

marketing year. While no changes are required in the language of

section 980.1, imports of long type potatoes would have to meet the

increased minimum weight requirements proposed herein.

Section 945.341(i) Applicability to imports is being removed from

the handling regulations. That paragraph states the same information

that is contained in section 980.1 of the import regulations. Since the

same information applicable to imported potatoes is contained in the

import regulations, paragraph (i) in the domestic handling regulations

is being deleted to eliminate duplication or confusion.

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.

The proposed rule concerning this action was published in the

Federal Register on August 9, 1994 [59 FR 40477]. Comments on the

proposed rule were invited from interested persons until August 24,

1994. No comments were received.

After consideration of all available information, it is found that

the action, as hereinafter set forth, will tend to effectuate the

declared policy of the Act.

In accordance with section 8e of the Act, the United States Trade

Representative has concurred with the issuance of this final rule.

Pursuant to 5 U.S.C. 553, it is also found and determined 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 unanimously recommended by the Committee; (2) the new

shipping season for the 1994-95 crop of Russet Burbanks began September

1, 1994, and this rule should be effective promptly to cover as many

potatoes of the 1994-95 crop as possible; and (3) the proposed rule

provided a 15-day comment period and no comments were received.

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 removing paragraph (1) and

revising paragraph (a)(2)(ii) to read as follows:

Sec. 945.341 Handling regulation.

* * * * *

(a) * * *

(2) * * *

(ii) All other varieties. 2 inches minimum diameter, or 4 ounces

minimum weight: Provided, That at least 40 percent of the potatoes in

each lot shall be 5 ounces or heavier.

* * * * *

Dated: September 8, 1994.

Eric M. Forman,

Director, Fruit and Vegetable Division.

[FR Doc. 94-22612 Filed 9-9-94; 8:45 am]

BILLING CODE 3410-02-P