Irish Potatoes Grown in Maine; Proposed Termination of Marketing Order No. 950

SUMMARY: This rule proposes to terminate the Federal marketing order

regulating the handling of Irish potatoes grown in Maine (order) and

the rules and regulations issued thereunder. The Maine potato industry

has not operated under the order for almost three decades and the

current order does not reflect current industry structure and operating

procedures. Thus, there is no need for the Department of Agriculture to

continue this order.

DATES: Comments must be received by December 18, 1995.

ADDRESSES: Interested persons are invited to submit written comments

concerning this proposal. Comments must be sent in triplicate to the

Docket Clerk, Fruit and Vegetable Division, AMS, USDA, P.O. Box 96456,

room 2523-S, Washington, D.C. 20090-6456; FAX (202) 720-5698. 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: Robert F. Matthews, Marketing Order

Administration Branch, Fruit and Vegetable Division, AMS, USDA, P.O.

Box 96456, room 2523-S, Washington, DC 20090-6456, telephone (202) 690-

0464, FAX (202) 720-5698.

SUPPLEMENTARY INFORMATION: This proposed rule is governed by the

provisions of section 608c(16)(A) of the Agricultural Marketing

Agreement Act of 1937, as amended (7 U.S.C. 601-674), hereinafter

referred to as the Act and Sec. 950.84 of the order.

This regulatory action is being taken as a part of the National

Performance Review to eliminate unnecessary regulations and to improve

those that remain in force.

The Department of Agriculture (Department) is issuing this rule in

conformance with Executive Order 12866.

This proposed rule has been reviewed under Executive Order 12778,

Civil Justice Reform. This proposed rule is not intended to have

retroactive effect. This proposed rule would 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 a 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 750 producers. Some of them are also

handlers who would be subject to seasonal handling regulations under

the order, but no such regulations have been implemented since the

1967-68 season, and there is no indication that such regulations will

again be needed. Small agricultural producers have been defined by the

Small Business Administration (13 CFR 121.601) as those having annual

receipts of less than $500,000, and small agricultural service firms,

which include handlers, are defined as those whose annual receipts are

less than $5,000,000. The majority of the Maine potato producers and

handlers may be classified as small entities.

The order was initially established on August 24, 1954, to help the

industry solve specific marketing problems and maintain orderly

marketing conditions. It was the responsibility of the Maine Potato

Marketing Committee (committee), the agency established for local

administration of the marketing order, to periodically investigate and

assemble data on the growing, harvesting, shipping, and marketing

conditions of Maine potatoes. The committee endeavored to achieve

orderly marketing and improve acceptance of Maine potatoes through the

establishment of minimum size and quality requirements. When regulated,

fresh potato shipments consisted only of those grades and sizes desired

by consumers.

Although the Department has not conducted interviews of current

industry members with respect to the need for a marketing order,

neither has it received recent inquiries from the industry asking for

reactivation. The Maine potato industry has not operated under the

marketing order for almost three decades. Regulations have not been

applied to Maine potato handlers since the late 1960's and a committee

to locally administer the marketing order has not been appointed since

the early 1970's. In August 1954, when the marketing order was issued,

there were almost 4,500 producers of Maine potatoes. Currently, there

are about 750 producers.

While a sizeable potato industry remains active in Maine, there

seems to be virtually no interest in a marketing order. Most of the

members appointed to the last committee have retired from commercial

potato production or handling.

[[Page 57549]]

Over the years, there have been periodic inquiries about reviving

the marketing order, but no formal requests for reactivation have ever

materialized. In any case, with the passage of time and changes in

industry structure and operating practices since the order was

formulated, a much revised marketing order would have to be

established. The need for a new marketing order would have to be

justified and supported by a large majority of current Maine potato

producers. This would require a public hearing and a producer

referendum. Thus, there is little justification to continue the current

marketing order.

We believe that conducting a termination referendum would merely

reaffirm the Maine potato industry's continued lack of interest in a

marketing order and that conducting such a referendum would be wasteful

of Departmental and public resources.

Therefore, pursuant to section 608c(16)(A) of the Act and

Sec. 950.84 of the order, the Department is considering the termination

of Marketing Order No. 950, covering Irish potatoes grown in Maine. If

the Secretary decides to terminate the order, trustees would not need

to be appointed to continue in the capacity of concluding and

liquidating the affairs of the former committee, since no funds or

property remain to be distributed or liquidated.

Section 608c(16)(A) of the Act requires the Secretary to notify

Congress 60 days in advance of the termination of a Federal marketing

order. Congress will be so notified upon publication of this proposed

rule.

Based on the foregoing, the Administrator of the AMS has determined

that this action would not have a significant impact on a substantial

number of small entities.

A 30-day comment period is provided to allow interested persons to

respond to this proposal. All written comments timely received will be

considered before a final determination is made on this matter.

List of Subjects in 7 CFR Part 950

Marketing agreements, Reporting and recordkeeping requirements,

Potatoes.

PART 950--[REMOVED]

For the reasons set forth in the preamble, and under the authority

of 7 U.S.C. 601-674, 7 CFR part 950 is proposed to be removed.

Dated: November 9, 1995.

Kenneth C. Clayton,

Acting Administrator.

[FR Doc. 95-28324 Filed 11-15-95; 8:45 am]

BILLING CODE 3410-02-P