65360 Federal Register / Vol. 76, No. 204 / Friday, October 21, 2011 / Rules and Regulations 

Authority: 7 U.S.C. 601–674. 

§ 930.158 [Amended] 

■ 2. In § 930.158: 

■ A. Suspend paragraph (b)(1) 

indefinitely. 

■ B. In paragraph (c)(3), redesignate the 

first two sentences as paragraph (c)(3)(i) 

and the remaining sentences as 

paragraph (c)(3)(ii). 

■ C. Newly designated paragraph 

(c)(3)(ii) is suspended indefinitely. 

Dated: October 14, 2011. 

David R. Shipman, 

Acting Administrator, Agricultural Marketing 

Service. 

[FR Doc. 2011–27276 Filed 10–20–11; 8:45 am] 

BILLING CODE 3410–02–P 

DEPARTMENT OF AGRICULTURE 

Agricultural Marketing Service 

7 CFR Part 953 

[Doc. No. AMS–FV–11–0027; FV11–953–1 

FR] 

Irish Potatoes Grown in Southeastern 

States; Suspension of Marketing Order 

Provisions 

AGENCY: Agricultural Marketing Service, 

USDA. 

ACTION: Final rule. 

SUMMARY: This rule continues in effect 

the interim rule that suspended the 

marketing order for Irish potatoes grown 

in Southeastern states (order), and the 

rules and regulations implemented 

thereunder, through March 1, 2014. The 

order regulates the handling of Irish 

potatoes grown in Southeastern states 

and is administered locally by the 

Southeastern Potato Committee 

(Committee). The Committee believes 

advances in farming technology and 

production quality have reduced the 

need for the order. When considering 

the costs associated with continuing the 

order, the Committee unanimously 

recommended that the order be 

suspended. 

DATES: Effective Date: October 22, 2011 

through March 1, 2014. 

FOR FURTHER INFORMATION CONTACT: 

Dawana J. Clark, Marketing Specialist, 

or Kenneth G. Johnson, Regional 

Manager, DC Marketing Field Office, 

Marketing Order and Agreement 

Division, Fruit and Vegetable Programs, 

AMS, USDA; Telephone: (301) 734– 

5243, Fax: (301) 734–5275, or E-mail: 

Dawana.Clark@ams.usda.gov or 

Kenneth.Johnson@ams.usda.gov. 

Small businesses may request 

information on complying with this 

regulation by contacting Laurel May, 

Marketing Order and Agreement 

Division, Fruit and Vegetable Programs, 

AMS, USDA, 1400 Independence 

Avenue, SW., STOP 0237, Washington, 

DC 20250–0237; Telephone: (202) 720– 

2491, Fax: (202) 720–8938, or E-mail: 

Laurel.May@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 Order 

12866. 

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 in effect the 

interim rule that suspended the order 

and all provisions prescribed 

thereunder through March 1, 2014. The 

suspension includes, but is not limited 

to, grade, size, quality, assessment, 

reporting, and inspection requirements. 

The Committee believes advances in 

farming technology and production 

quality have reduced the need for the 

order. When considering the costs 

associated with continuing the order, 

the Committee agreed that the order 

should be suspended. The Committee 

met on February 17, 2011, and 

unanimously recommended suspending 

the order for three years, through March 

1, 2014. 

The order was promulgated in 1948, 

and regulates the handling of Irish 

potatoes grown in designated counties 

of Virginia and North Carolina. The 

order has been used to provide the 

industry with grade, size, quality, and 

inspection requirements. The order also 

authorizes reporting and recordkeeping 

functions required for the operation of 

the order. The program is funded by 

assessments imposed on handlers. 

Over the past several years, the 

Southeastern potato industry has been 

in decline, with acreage and production 

trending downward. Production has 

fallen from an estimated 1,600,000 

hundredweight for the 1996–97 season, 

to a current estimate of 600,000 

hundredweight for the 2010–11 season. 

In 1996, there were approximately 150 

growers and 60 handlers in the 

production area. Currently, there are 

approximately 20 growers and 10 

handlers covered in the production area. 

The Committee met February 17, 

2011, to discuss the continued need for 

the order. During the discussion, several 

members mentioned that the order was 

promulgated at a time when the 

industry was having an issue with the 

quality of potatoes being produced. The 

purpose of the order was to establish 

standards to improve the quality of 

marketed product. 

Since the implementation of the 

order, the quality of Southeastern 

potatoes has greatly improved. 

Advances in farm machinery and 

improvements in the grading process 

have helped to ensure that only quality 

product is being shipped to buyers. 

Concerns the industry previously had 

prior to implementation of the order are 

no longer an issue, and for the past 

several years, some industry members 

have started questioning the continued 

need for the order and its associated 

costs. 

At the meeting, members were 

informed that to maintain the order, the 

Committee would have to incur some 

additional administrative expenses. To 

cover these costs, the Committee would 

need to increase the assessment rate. 

Committee members agreed that the 

industry would not support an 

assessment increase. 

In addition to the assessment costs, 

comments were also made regarding the 

cost of inspection by the Committee 

required under the order. It was stated 

that some industry members see the cost 

of mandatory inspection as an 

unnecessary burden. Other Committee 

members expressed concern over 

whether inspection would still be 

available if the order was suspended. 

This issue was resolved when members 

were assured that inspection would still 


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Federal Register / Vol. 76, No. 204 / Friday, October 21, 2011 / Rules and Regulations 65361 

be available for those who request it, 

regardless of the status of the order. 

Based on discussion at the meeting, 

and on letters from growers who were 

not able to attend, changes in the 

industry and industry practices have 

diminished the need for the order. 

Further, there are concerns regarding 

the costs associated with maintaining 

the order, and no industry support for 

raising assessments to cover increasing 

administrative costs. Therefore, the 

Committee unanimously recommended 

suspending the order for three years, 

through March 1, 2014. 

The Committee recommended 

suspension of the order, not 

termination, to allow the industry an 

opportunity to review the effectiveness 

of operating without order 

requirements. If problems develop, 

Committee members wanted the 

industry to have the alternative of 

reactivating the order. During the 

suspension period, the industry will be 

able to monitor the Southeastern potato 

industry to determine if quality issues 

reoccur. A meeting will be held prior to 

March 1, 2014, to review the state of the 

industry and determine whether to 

continue the suspension, or to reactivate 

or terminate the order. 

It is hereby determined that Federal 

Marketing Order No. 953, and the rules 

and regulations issued thereunder, do 

not tend to effectuate the declared 

policy of the Act. This action continues 

to suspend, through March 1, 2014, 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. 

Final Regulatory Flexibility Analysis 

Pursuant to requirements set forth in 

the Regulatory Flexibility Act (RFA) 

(5 U.S.C. 601–612), the Agricultural 

Marketing Service (AMS) has 

considered the economic impact of this 

action 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 

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 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 AMS Market News Service 

reported prices, the average f.o.b. price 

for Southeastern potatoes for the 2010 

marketing season was around $20 per 

hundredweight. The Committee 

estimated production for the 2010–11 

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 2010 was 

approximately $11.63 per 

hundredweight. Considering estimated 

production, average producer revenue 

would be about $350,000 for the 2010– 

11 season. Therefore, the majority of 

Southeastern potato handlers and 

producers may be classified as small 

entities. 

This rule continues in effect the 

action that suspended the order and the 

rules and regulations implemented 

thereunder through March 1, 2014. The 

Committee believes advances in farming 

technology and production quality have 

reduced the need for the order. When 

considering the costs associated with 

continuing the order, the Committee 

unanimously recommended that the 

order be suspended. The Committee 

made this recommendation on February 

17, 2011. 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. 

Additionally, growers may be relieved 

of some costs, such as assessment 

expenses, which are often passed onto 

them by handlers. Suspension of the 

order is therefore expected to reduce the 

regulatory burden on handlers and 

growers of all sizes. 

The Committee considered 

alternatives to this rule, including 

maintaining the order or terminating it 

rather than suspending. Support was 

not shown for either of these options. 

Therefore these alternatives were 

rejected. 

In accordance with the Paperwork 

Reduction Act of 1995, (44 U.S.C. 

chapter 13), the order’s information 

collection requirements have been 

previously approved by the Office of 

Management and Budget (OMB) and 

assigned OMB No. 0581–0178). No 

changes in those requirements as a 

result of this action are necessary. 

Should any changes become necessary, 

they would be submitted to OMB for 

approval. 

This final rule will not impose any 

additional reporting or recordkeeping 

requirements on either small or large 

Southeastern 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. 

Further, the Committee’s meeting was 

widely publicized throughout the 

Southeastern potato industry and all 

interested persons were invited to 

attend the meeting and participate in 

Committee deliberations. Like all 

Committee meetings, the February 17, 

2011, meeting was a public meeting and 

all entities, both large and small, were 

able to express their views on this issue. 

An interim rule concerning this action 

was published in the Federal Register 

on June 10, 2011 (76 FR 33967). Copies 

of the rule were mailed or sent via 

facsimile to all Committee members and 

potato handlers. Finally, the rule was 

made available through the Internet by 

USDA and Office of the Federal 

Register. A 60-day comment period 

ending August 9, 2011, was provided to 

allow interested persons to respond to 

the rule. 

One comment was received during 

the comment period in response to the 

rule. The commenter supported 

suspending the marketing order for Irish 

potatoes, but added that the better 

choice would be to terminate the 

marketing order in its entirety as it is 

anti-competitive and raises prices for 

consumers. 

The points made by the commenter 

were thoroughly discussed prior to the 

Committee vote. During its discussions, 

the Committee determined they would 

like to provide the industry an 


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65362 Federal Register / Vol. 76, No. 204 / Friday, October 21, 2011 / Rules and Regulations 

1 DOE may also provide for a delayed effective 

date if the Secretary determines this three-year 

period is inadequate. (42 U.S.C. 6313(f)(4)(B)) 

opportunity to operate without 

marketing order requirements in order 

to review the effectiveness of the order. 

During the suspension period, the 

industry will be able to monitor the 

quality of potatoes being shipped. 

Should problems develop, suspension 

of the order will provide the Committee 

the alternative of reactivating the order. 

Therefore, the Committee voted to 

suspend, rather than terminate, the 

marketing order. 

Accordingly, no changes will be made 

to the rule, based on the comment 

received. 

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 Laurel May at 

the previously mentioned address in the 

FOR FURTHER INFORMATION CONTACT

section. 

After consideration of all relevant 

matter presented, including the 

information and recommendation 

submitted by the Committee and other 

available information, it is hereby found 

that the order suspended by this final 

rule, as hereinafter set forth, does not 

tend to effectuate the declared policy of 

the Act. 

It is further found that good cause 

exists for not postponing the effective 

date of this rule until 30 days after 

publication in the Federal Register (5 

U.S.C. 553) because handlers are aware 

of this rule, which was recommended at 

a public meeting. Also, a 60-day 

comment period was provided for in the 

interim rule. 

List of Subjects in 7 CFR Part 953 

Marketing agreements, Potatoes, 

Reporting and recordkeeping 

requirements. 

Accordingly, the interim rule that 

suspended 7 CFR part 953 and that was 

published at 76 FR 33967 on June 10, 

2011, is adopted as a final rule, without 

change. 

Dated: October 14, 2011. 

David R. Shipman, 

Acting Administrator, Agricultural Marketing 

Service. 

[FR Doc. 2011–27275 Filed 10–20–11; 8:45 am] 

BILLING CODE 3410–02–P 

DEPARTMENT OF ENERGY 

10 CFR Parts 429 and 431 

[Docket No. EERE–2011–BT–CE–0050] 

RIN 1904–AC58 

Energy Conservation Program: 

Compliance Date Regarding the Test 

Procedures for Walk-In Coolers and 

Freezers and the Certification for Metal 

Halide Lamp Ballasts and Fixtures 

AGENCY: Office of Energy Efficiency and 

Renewable Energy, Department of 

Energy. 

ACTION: Final rule. 

SUMMARY: This document clarifies the 

compliance date by which 

manufacturers must begin to use 

portions of a recently promulgated test 

procedure (i.e., the April 15, 2011 final 

rule) when certifying walk-in coolers 

and walk-in freezers. This document 

also adopts regulatory text changes to 

reflect the U.S. Department of Energy’s 

(DOE) intent that only manufacturers of 

components of walk-in coolers and 

walk-in freezers are required to submit 

certification reports. Additionally, the 

final rule clarifies the types of test data 

needed to support the certification of 

compliance pursuant to DOE’s existing 

test procedures for walk-in coolers and 

walk-in freezers and the recently 

promulgated test procedure for this 

equipment. Finally, DOE is adopting an 

extension to the compliance date for 

which manufacturers, including 

importers, need to certify compliance to 

the Department of metal halide lamp 

ballasts and fixtures. 

DATES: This final rule is effective 

November 21, 2011. 

ADDRESSES: The docket (i.e., docket 

number EERE–2011–BT–CE–0050 and/ 

or RIN number 1904–AC58) is available 

for review at 

http://www.regulations.gov, including 

Federal Register notices, comments, 

and other supporting documents/ 

materials. All documents in the docket 

are listed in the http:// 

www.regulations.gov index. However, 

not all documents listed in the index 

may be publicly available, such as 

information that is exempt from public 

disclosure. 

FOR FURTHER INFORMATION CONTACT: Ms. 

Ashley Armstrong, U.S. Department of 

Energy, Office of Energy Efficiency and 

Renewable Energy, Building 

Technologies Program, EE–2J, 1000 

Independence Avenue, SW., 

Washington, DC 20585–0121. E-mail: 

Ashley.Armstrong@ee.doe.gov. 

In the Office of the General Counsel, 

contact Ms. Laura Barhydt, U.S. 

Department of Energy, Office of the 

General Counsel, GC–32, 1000 

Independence Avenue, SW., 

Washington, DC 20585–0121. 

Telephone: (202) 287–5772. E-mail: 

Laura.Barhydt@hq.doe.gov. 

SUPPLEMENTARY INFORMATION: 

I. Background on the Test Procedures 

for Walk-In Coolers and Freezers 

The Energy Policy and Conservation 

Act (EPCA), as amended by section 

312(c) of the Energy Independence and 

Security Act (EISA 2007), requires the 

Department of Energy (DOE) to 

prescribe a test procedure to measure 

the energy use of walk-in coolers and 

freezers (collectively, walk-ins or 

WICFs). See 42 U.S.C. 6314(a). DOE 

recently satisfied this requirement by 

issuing a final rule establishing a test 

procedure for manufacturers to use 

when measuring the energy use or 

energy efficiency of certain walk-in 

components: Panels, non-display doors, 

display doors, and refrigeration systems. 

See 76 FR 21580 (April 15, 2011) (final 

rule prescribing walk-in test procedures) 

and 76 FR 33631 (June 9, 2011) (notice 

containing corrected formulas). 

Since the publication of that 

rulemaking, DOE recognized a need to 

clarify the date by which manufacturers 

must begin using the test procedure. 

The SUMMARY and DATES sections of the 

preamble text to the final rule stated 

that the test procedures will be 

mandatory for making representations of 

energy usage or energy efficiency 

starting October 12, 2011; that is, 180 

days after publication of the test 

procedure final rule. DOE published a 

notice of proposed rulemaking on 

August 9, 2011, which proposed to 

clarify that the compliance date for 

using the new test procedure for 

certifications of compliance will be the 

same as the compliance date for the 

performance-based energy conservation 

standards currently under development. 

76 FR 48745. At this time, DOE plans 

to issue the performance-based 

standards final rule by 2012 and 

manufacturers must comply with those 

standards within three years of 

publication of the final rule. Thus, 

pending the completion of the 

performance-based energy conservation 

standards rulemaking, manufacturers 

will be required to certify compliance to 

those standards using the new test 

procedure in 2015, unless DOE adopts 

an alternative compliance date.1 Id. 

In addition, DOE clarified the entity 

responsible for certifying compliance to 


emcdonald on DSK5VPTVN1PROD with RULES