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[Federal Register Volume 80, Number 62 (Wednesday, April 1, 2015)]
[Rules and Regulations]
[Pages 17307-17310]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2015-07320]

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DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 953

[Doc. No. AMS-FV-14-0011; FV14-953-1 IR]

Irish Potatoes Grown in Southeastern States; Suspension of 
Marketing Order Provisions

AGENCY: Agricultural Marketing Service, USDA.

[[Page 17308]]

ACTION: Interim rule with request for comments.

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SUMMARY: This rule continues the previous suspension of the marketing 
order regulating the handling of Irish potatoes grown in Southeastern 
states (order). Representatives of the Virginia/North Carolina Irish 
potato industry met and requested that the suspension of all provisions 
of the order, and the rules and regulations implemented thereunder be 
continued through March 1, 2017. The request was based on the belief 
that the industry needs more time to study changes in the industry, and 
any new developments which could affect the need for, or status of the 
order. If the industry does not petition to have the order reactivated 
by the end of the suspension period, the Agricultural Marketing Service 
(AMS) will propose to terminate the order.

DATES: Effective April 2, 2015 through March 1, 2017; comments received 
by June 1, 2015 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: Corey E. Elliott, Marketing 
Specialist, or Christian D. Nissen, Regional Director, Southeast 
Marketing Field Office, Marketing Order and Agreement Division, Fruit 
and Vegetable Program, AMS, USDA; Telephone: (863) 324-3375, Fax: (863) 
291-8614, or Email: Corey.Elliott@ams.usda.gov or 
Christian.Nissen@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. 104 and Marketing Order No. 953, both as amended (7 CFR 
part 953), regulating the handling of Irish potatoes grown in 
Southeastern states, 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 continues the previous suspension of the marketing order 
regulating the handling of Irish potatoes grown in Southeastern states. 
Even though the Committee does not function under the suspended order 
and regulations, representatives of the Virginia/North Carolina Irish 
potato industry met on December 18, 2013, and requested that the 
suspension of all provisions of the order, and the rules and 
regulations implemented thereunder be continued through March 1, 2017. 
The request was based on the belief that the industry needs more time 
to study changes in the industry, and any new developments which could 
affect the need for, or status of, the order.
    Marketing Order 953 has been in effect since 1948. The order 
provides for the establishment of grade, size, quality, maturity, and 
inspection requirements for Irish potatoes grown in Southeastern 
states. The order also authorizes reporting and recordkeeping functions 
required for the operation of the order. The order, when functioning, 
is funded by assessments imposed on handlers.
    The Southeastern Potato Committee (Committee) members met on 
February 17, 2011, and unanimously recommended suspension of the 
marketing order for a three year period ending on March 1, 2014. They 
recommended the suspension to eliminate the expense of administering 
the marketing order, while determining the effects of not having 
regulations in place. The Committee members wanted the industry to have 
the alternative of reactivating the order, if deemed appropriate. The 
rule completing that action was published in the Federal Register on 
October 21, 2011 (76 FR 65360).
    Prior to the December 18, 2013, meeting, USDA sent letters to 
members of the industry, most of whom were former Committee members. 
The letter informed them that the suspension of the order would be 
ending, and of the need to review the state of the industry and 
determine what action the industry wanted to take in regards to the 
order. The letter also asked that they make others in the industry 
aware of the upcoming decision and the opportunity to express their 
position on what to do with the order. USDA also sent out several 
follow-up emails, and made several telephone calls to industry 
representatives in an effort to increase participation in the meeting.
    On December 18, 2013, industry representatives of the Virginia/
North Carolina Irish potato industry met and unanimously recommended 
extending the suspension of the order for an additional three years. 
During their discussion, several industry members expressed concerns 
that the quality problems experienced prior to promulgation of the 
order could resurface and additional time was necessary to evaluate if 
the order is needed. The representatives believe extending the 
suspension for three more years would provide the industry with further 
opportunity to study changes in the industry and any new developments, 
which could affect the need for the order. The representatives also 
supported suspension rather than termination as they agreed it would be 
less complicated to reactivate the existing program if it is needed 
than to promulgate a new marketing order. Several of the industry 
representatives also indicated that they had spoken with other industry 
members who could not attend the meeting, and they too were in support 
of suspension.

[[Page 17309]]

Therefore, this rule will suspend the order through March 1, 2017.
    If the industry does not petition to have the order reactivated by 
the end of the suspension period, AMS will publish a proposal to 
terminate the order.
    It is hereby determined that Federal Marketing Order No. 953, and 
the rules and regulations issued thereunder, do not tend effectuate the 
declared policy of the Act. This action suspends, through March 1, 
2017, the provisions of Federal Marketing Order No. 953, and the rules 
and regulations issued thereunder, including but not limited to: 
Provisions of the order dealing with the establishment and the 
responsibilities of the Committee; provisions of the order dealing with 
expenses and the collection of assessments; all rules and regulations; 
and, all information collection and reporting requirements.

Initial 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 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 10 handlers of Irish potatoes grown in 
Southeastern states who are subject to regulation under the order and 
approximately 20 potato producers in the regulated area. Small 
agricultural service firms are defined by the Small Business 
Administration (SBA) as those having annual receipts of less than 
$7,000,000, and small agricultural producers are defined as those 
having annual receipts of less than $750,000 (13 CFR 121.201).
    Using prices reported by AMS' Market News Service, the average 
F.O.B. price for Southeastern potatoes for the 2012-13 marketing season 
was around $25 per hundredweight. USDA has estimated production for the 
2012-13 season at approximately 600,000 hundredweight of potatoes. 
Based on this information, average annual receipts for handlers would 
be less than $7,000,000. Information provided by the National 
Agricultural Statistics Service indicates that the average producer 
price for Irish potatoes grown in North Carolina and Virginia in 2012 
was approximately $12.16 per hundredweight. Considering estimated 
production, average producer revenue would be about $400,000 for the 
2012-13 season. Therefore, the majority of Southeastern potato handlers 
and producers may be classified as small entities.
    This rule continues the previous suspension of the order and the 
associated rules and regulations through March 1, 2017. At a meeting on 
February 17, 2011, the Committee recommended that the order and all of 
its provisions be suspended through March 1, 2014. The Committee made 
this decision based on questions regarding the continued need for the 
order and its associated costs. Industry representatives met on 
December 18, 2013, and unanimously recommended extending the suspension 
of the order for three additional years. The continued suspension was 
recommended to give the industry more time to study changes in the 
industry, and any new developments which could affect the need for, or 
the status of, the order. If the industry does not petition to have the 
order reactivated by the end of the suspension period, AMS will publish 
a proposal to terminate the order. Authority for this action is 
provided in section 8c(16)(A) of the Act.
    Suspension of the order and its corresponding regulations relieves 
handlers of quality, inspection, and assessment burdens during the 
suspension period. Also, handler reports will not be required. 
Suspension of the order is therefore expected to reduce the regulatory 
burden on handlers and growers of all sizes.
    Even though the Committee does not function under the suspended 
order and regulations, industry members met and considered two 
alternatives to this action at the December meeting. The first 
alternative was to reactivate the order. This alternative received 
little support as most believe the administrative costs of the order 
still outweighed the benefits. Industry members also considered 
terminating the order. However, some members indicated that quality 
concerns that the order had resolved could return and more time was 
needed to study changes within the industry. Therefore, both 
alternatives were rejected.
    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 Vegetable and Specialty Crops. No changes in 
those requirements are necessary as a result of this action.
    This rule will not impose any additional reporting or recordkeeping 
requirements on either small or large Southeastern Irish 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.
    Further, the industry's meeting was widely publicized throughout 
the Southeastern Irish potato industry and interested persons were 
invited to attend the meeting and participate in industry 
deliberations. The December 18, 2013, meeting was an open meeting and 
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 
aspects 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 the continuation of the previous 
suspension of the marketing order regulating Irish potatoes grown in 
Southeastern states. Any comments received will be considered prior to 
finalization of this rule.
    After consideration of all relevant material presented, including 
the industry's request, and other information, it is determined that 
Federal Marketing Order No. 953 suspended by this interim rule, as 
herein set forth, does not 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

[[Page 17310]]

date of this rule until 30 days after publication in the Federal 
Register because: (1) This action suspends restrictions on handlers by 
continuing the previous suspension of Marketing Order No. 953; (2) this 
rule provides a 60-day comment period and any comments received will be 
considered prior to the finalization of this rule; (3) no useful 
purpose would be served by delaying the continued suspension of the 
order.

List of Subjects in 7 CFR Part 953

    Marketing agreements, Potatoes, Reporting and recordkeeping 
requirements.

    For the reasons set forth in the preamble, under the authority of 7 
U.S.C. 601-674, 7 CFR part 953 is suspended effective April 2, 2015, 
through March 1, 2017.

    Dated: March 26, 2015.
Rex A. Barnes,
Associate Administrator, Agricultural Marketing Service.
[FR Doc. 2015-07320 Filed 3-31-15; 8:45 am]
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