This section of the FEDERAL REGISTER

contains regulatory documents having general

applicability and legal effect, most of which

are keyed to and codified in the Code of

Federal Regulations, which is published under

50 titles pursuant to 44 U.S.C. 1510.

The Code of Federal Regulations is sold by

the Superintendent of Documents. Prices of

new books are listed in the first FEDERAL

REGISTER issue of each week.

Rules and Regulations Federal Register

70461

Vol. 65, No. 227

Friday, November 24, 2000

DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 946

[Docket No. FV00–946–1 IFR]

Irish Potatoes Grown in Washington;

Exemption From Handling and

Assessment Regulations for Potatoes

Shipped for Experimental Purposes

AGENCY: Agricultural Marketing Service,

USDA.

ACTION: Interim final rule with request

for comments.

SUMMARY: This rule exempts potatoes

shipped for experimental purposes from

the handling and assessment regulations

of the Washington State potato

marketing order. The marketing order

regulates the handling of potatoes grown

in Washington, and is administered

locally by the State of Washington

Potato Committee (Committee).

Experimental shipments of potatoes by

handlers utilizing new and innovative

packaging, including the commingling

of different varieties of potatoes in the

same package, or shipments of nontraditional experimental varieties of

potatoes will be exempt from the grade,

size, maturity, pack, inspection, and

assessment requirements of the

marketing order. By relaxing the

requirements on shipments of such

potatoes, this rule provides the industry

with greater marketing flexibility and

with the ability to investigate new

methods for increasing producer

returns. It also is expected to provide

consumers with more choices in buying

fresh potatoes.

DATES: Effective November 27, 2000;

comments received by January 23, 2001

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 Administration Branch, Fruit and

Vegetable Programs, AMS, USDA, room

2525–S, P.O. Box 96456, Washington,

DC 20090–6456; Fax: (202) 720–5698, or

E-mail: moab.docketclerk@usda.gov. All

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, or

can be viewed at: http://

www.ams.usda.gov/fv/moab.html.

FOR FURTHER INFORMATION CONTACT:

Teresa L. Hutchinson, Northwest

Marketing Field Office, Marketing Order

Administration Branch, Fruit and

Vegetable Programs, AMS, USDA, 1220

SW Third Avenue, suite 385, Portland,

Oregon 97204–2807; telephone: (503)

326–2724, Fax: (503) 326–7440; or

George Kelhart, Technical Advisor,

Marketing Order Administration

Branch, Fruit and Vegetable Programs,

AMS, USDA, room 2525–S, P.O. Box

96456, Washington, DC 20090–6456;

telephone: (202) 720–2491, Fax: (202)

720–5698.

Small businesses may request

information on complying with this

regulation by contacting Jay Guerber,

Marketing Order Administration

Branch, Fruit and Vegetable Programs,

AMS, USDA, P.O. Box 96456, room

2525–S, Washington, DC 20090–6456;

telephone: (202) 720–2491, Fax: (202)

720–5698, or E-mail:

Jay.Guerber@usda.gov.

SUPPLEMENTARY INFORMATION: This rule

is issued under Marketing Agreement

No. 113 and Marketing Order No. 946,

both as amended (7 CFR part 946),

regulating the handling of Irish potatoes

grown in Washington, 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

(Department) 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. 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 to

review the Secretary’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 exempts shipments of

potatoes for experimentation from the

grade, size, maturity, pack, inspection,

and assessment requirements of the

marketing order. By relaxing the

requirements on new and innovative

packaging and on non-traditional

varieties of fresh potatoes, this rule

provides the industry with greater

marketing flexibility and the ability to

investigate new methods for increasing

producer returns, and provides

consumers with more choices in buying

fresh potatoes. The Committee

unanimously recommended the

exemption for experimental packs and

varieties at its meeting held on June 8,

2000.

Section 946.51 of the order provides

authority for the Committee to

recommend the implementation,

modification, suspension or termination

of regulations. Section 946.52 provides

the necessary authority for the

Department to issue regulations, and to

modify, suspend, or terminate such

regulations. Furthermore, § 946.54

provides authority for the modification,

suspension, or termination of handling

regulations for the purpose of

facilitating the handling of potatoes for

special purposes, while § 946.55

provides for adequate safeguards to

prevent such special purpose shipments

from entering unauthorized outlets. The

order’s handling regulations, § 946.336,

establish the grade, size, maturity, pack,

and inspection requirements for

potatoes grown in Washington. The

70462 Federal Register / Vol. 65, No. 227 / Friday, November 24, 2000 / Rules and Regulations

assessment rate for Washington potatoes

is established in § 946.248, pursuant to

§ 946.41.

Handlers have expressed a desire to

experiment with shipping potatoes of

different varieties in the same container.

This has been a problem, however, since

the order requires that all potato

varieties, as a minimum, meet U.S. No.

2 grade as defined in the U.S. Standards

for Grades of Potatoes. These standards

specify that a particular lot of potatoes

has ‘‘similar’’ varietal characteristics.

Although the order’s handling

regulations do allow the mixing of any

size and variety in a 3-pound or smaller

container, handlers have been unable to

ship a large enough quantity of the

experimental packs to determine market

feasibility. With this action, however,

marketers will have the ability to

experiment with various packs,

including containers with a mixture of

different potato varieties and sizes.

Prior to this action, the order’s

regulations required that all potatoes

shipped to the fresh market, with the

exception of those meeting the

minimum quantity and special purpose

exemptions, be inspected and assessed.

The handling regulations did not

provide adequate relief for

commercially viable shipments of nontraditional or experimental potato

varieties that could not meet minimum

inspection requirements. Several

producers and handlers within the

production area are attempting to

develop and market new varieties of

potatoes. Some of the new varieties have

irregular shapes or are small in size and

will not meet minimum order

requirements. In order to market these

unique potatoes, handlers were required

to utilize the order’s minimum quantity

exemption, which allows shipments up

to, but not in excess of, 500 pounds of

potatoes daily without regard to

assessment and inspection

requirements. This has prevented

handlers from shipping larger quantities

of these potatoes and from adequately

determining their marketability and

consumer acceptance. By allowing

handlers to ship the quantities of new

varieties they believe are necessary to

determine marketability, this rule

adequately addresses this issue.

As is currently required for all special

purpose shipments, handlers shipping

experimental potato packs or

experimental potato varieties will need

to apply for and obtain a Special

Purpose Certificate from the Committee.

To help ensure compliance with the

revised provisions and to statistically

track the shipments of experimental

potato packs and varieties, the

Committee will require that shipments

made pursuant to this action be reported

on the Special Purpose Shipment

Report, as modified to include potatoes

shipped for experimental purposes.

Such reports will help the Committee in

determining whether applicable

requirements have been met and

whether proper disposition has

occurred, and will be furnished to the

Committee for each shipment made

pursuant to the applicable Special

Purpose Certificate. The Committee’s

intent is to keep reporting requirements

at the minimum level necessary to

monitor compliance while determining

the viability and extent of any changes

in the packaging and marketing of

Washington potatoes.

The Committee contends that the

purpose of the order is to provide

quality assurance and minimum grade

standards for Washington potatoes and

not to inhibit innovation. This rule thus

provides the Washington potato

industry with the ability to seek new

and innovative ways to market its fresh

potato crop without the costs and

constraints of regulation that otherwise

provide a necessary service to the

industry. This rule provides the

industry with the flexibility to explore

new markets while enhancing product

development, and helps in identifying

niche markets which may benefit

producers, handlers, buyers, and

consumers of Washington State

potatoes. Should a particular

experimental pack or variety become

commercially significant and some form

of quality control or assessment

reinstatement be needed, the Committee

will consider further changes in the

exemptions.

As referenced earlier, the Committee

currently utilizes two forms for special

purpose shipments. These are the

Shippers Application for Special

Purpose Certificate and the Special

Purpose Shipment Report. To conform

to this terminology, this rule also

replaces the term ‘‘Certificate of

Privilege’’ with the term ‘‘Special

Purpose Certificate’’ wherever it appears

in the Rules and Regulations and

Handling Regulations established under

the order.

Pursuant to requirements set forth in

the Regulatory Flexibility Act (RFA), the

Agricultural Marketing Service (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

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. Thus, both statutes have small

entity orientation and compatibility.

There are approximately 40 handlers

of Washington potatoes who are subject

to regulation under the marketing order

and approximately 340 Washington

potato producers in the regulated area.

Small agricultural service firms are

defined by the Small Business

Administration (13 CFR 121.201) as

those having annual receipts of less than

$5,000,000, and small agricultural

producers are defined as those having

annual receipts of less than $500,000. A

majority of these handlers and

producers may be classified as small

entities, excluding receipts from other

sources.

This rule exempts shipments of

potatoes shipped for experimentation

from the grade, size, maturity, pack,

inspection, and assessment

requirements prescribed under the

regulations of the marketing order

regulating the handling of potatoes

grown in Washington. Pursuant to

authority in §§ 946.51, 946.52, and

946.54, at its meeting on June 8, 2000,

the Committee unanimously

recommended that this exemption for

experimental potato packs and varieties

be added under § 946.336(d), Special

purpose shipments. By relaxing the

regulations, this rule provides the

Washington potato industry with the

enhanced ability to seek new and

innovative methods of marketing its

fresh potato crop. This rule provides the

industry with the flexibility to explore

new markets while enhancing product

development, and helps to identify

niche markets which may benefit

producers, handlers, buyers, and

consumers of Washington State

potatoes.

The Committee believes that this rule

will have a positive economic impact on

the Washington potato industry.

Producers and handlers will be able to

concentrate on developing innovative

new packaging and marketable new

potato varieties without the costs

associated with inspection and

administrative assessments, as well as

most of the costs associated with

grading. Although not having specific

information regarding the volume of

potatoes that will be marketed through

this exemption, the Committee

estimates that the initial volume being

shipped will be low and thus will have

little negative impact on Committee

assessment income. However, since one

of the objectives of this action is to

increase the utilization of fresh potatoes

Federal Register / Vol. 65, No. 227 / Friday, November 24, 2000 / Rules and Regulations 70463

produced in Washington, the Committee

will consider changing the handling

regulation and assessment requirements

in the future, if needed, to help ensure

quality control and adequate Committee

income if the experimental shipments

become commercially viable.

The current assessment rate is $0.002

per hundredweight of potatoes handled.

Also, the cost of inspection under the

marketing order is $0.06 per hundred

weight of potatoes inspected. Handlers,

both small and large, shipping potatoes

under the experimental shipment

exemption will not incur these costs.

Any savings accrued will be

proportional to the quantities of

potatoes shipped under the

experimentation exemption.

With regard to alternatives, we believe

that this action best reflects the

marketing and product development

goals of the Washington potato industry.

The Committee estimates that initially

four or five handlers may each apply for

and obtain a Special Purpose Certificate

for the purpose of making shipments of

experimental packs or varieties. In

addition, such handlers will be required

to furnish to the Committee a Special

Purpose Shipment Report for each

shipment made under the experimental

purposes exemption. The Committee

estimates that the additional paperwork

burden on handlers for this action will

total less than ten hours. Such time is

currently approved under OMB No.

0581–0178 by the Office of Management

and Budget in accordance with the

Paperwork Reduction Act of 1995 (44

U.S.C. Chapter 35).

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, the

Department has not identified any

relevant Federal rules that duplicate,

overlap or conflict with this rule.

Further, the Committee’s meeting was

widely publicized throughout the

Washington potato industry and all

interested persons were invited to

attend the meeting and participate in

Committee deliberations. Like all

Committee meetings, the June 8, 2000,

meeting was a public meeting and all

entities, both large and small, were able

to express their views on this issue.

Finally, interested persons are invited to

submit information on the regulatory

and informational 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: http://www.ams.usda.gov/

fv/moab.html. Any questions about the

compliance guide should be sent to Jay

Guerber at the previously mentioned

address in the FOR FURTHER INFORMATION

CONTACT section.

This rule invites comments on a

change to the regulations prescribed for

the production area under the

Washington potato marketing order.

Any comments received will be

considered prior to finalization of this

rule.

After consideration of all relevant

material presented, including the

Committee’s recommendation, and

other information, it is found that this

interim final rule, as hereinafter set

forth, will 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

date of this rule until 30 days after

publication in the Federal Register

because: (1) This rule relaxes

requirements on Washington potato

handlers and provides additional

marketing opportunities; (2) early

September was the beginning of the

2000–2001 shipping season and this

rule should be in place as promptly as

possible so that handlers can take

advantage of the benefits resulting from

this relaxation; (3) this recommendation

was unanimously approved by the

Committee at a public meeting and

interested parties had an opportunity to

provide input; and (4) this rule provides

a 60-day comment period and any

comments received will be considered

prior to finalization of this rule.

List of Subjects in 7 CFR Part 946

Marketing agreements, Potatoes,

Reporting and recordkeeping

requirements.

For the reasons set forth in the

preamble, 7 CFR part 946 is amended as

follows:

PART 946—IRISH POTATOES GROWN

IN WASHINGTON

1. The authority citation for 7 CFR

part 946 continues to read as follows:

Authority: 7 U.S.C. 601–674.

2. Amend Part 946 as follows:

(a) Revise the undesignated center

heading following § 946.104;

(b) Revise paragraphs (a)(3) and (4) in

§ 946.120; and

(c) Add a new paragraph (a)(5) to

§ 946.120 to read as follows:

Special Purpose Certificates

§ 946.120 Application.

(a) * * *

(3) Prepeeling outside the district

where grown;

(4) Grading or storing at any specified

location in Morrow or Umatilla

Counties in the State of Oregon; and

(5) Experimentation.

* * * * *

3. In § 946.336, paragraphs (e)(3)(i),

(iii), and (iv) are amended by removing

the words ‘‘Certificate of Privilege’’ and

adding the words ‘‘Special Purpose

Certificate’’ in their place, the

undesignated paragraph following

paragraph (d)(7) is removed, paragraph

(d) is revised, and a new paragraph

(e)(6) is added to read as follows:

* * * * *

§ 946.336 Handling regulation.

* * * * *

(d) Special purpose shipments. (1)

The minimum grade, size, cleanness,

maturity, and pack requirements set

forth in paragraphs (a), (b), and (c) of

this section shall not apply to shipments

of potatoes for any of the following

purposes:

(i) Livestock feed;

(ii) Charity;

(iii) Seed;

(iv) Prepeeling;

(v) Canning, freezing, and ‘‘other

processing’’ as hereinafter defined;

(vi) Grading or storing at any specified

location in Morrow or Umatilla

Counties in the State of Oregon, in

District 5, or in Spokane County in

District 1;

(vii) Export, except to Alaska and

Hawaii and except as provided in

paragraph (c)(2) of this section; or

(viii) Experimentation.

(2) Shipments of potatoes for the

purposes specified in paragraphs

(d)(1)(i) through (viii) of this section

shall be exempt from inspection

requirements specified in paragraph (g)

of this section except shipments

pursuant to paragraph (d)(6) of this

section shall comply with inspection

requirements of paragraph (e)(2) of this

section. Shipments specified in

paragraphs (d)(1)(i), (ii), (iii), (v) and

(viii) of this section shall be exempt

from assessment requirements as

specified in § 946.248 and established

pursuant to § 946.41.

* * * * *

(a) * * *

(6) Each handler desiring to make

shipments of potatoes for

experimentation shall:

(i) First apply to the committee for

and obtain a Special Purpose Certificate

to make shipments for experimentation;

70464 Federal Register / Vol. 65, No. 227 / Friday, November 24, 2000 / Rules and Regulations

(ii) Upon request by the committee,

furnish reports of each shipment

pursuant to the applicable Special

Purpose Certificate.

* * * * *

Dated: November 15, 2000.

Ronald L. Cioffi,

Acting Deputy Administrator, Fruit and

Vegetable Programs.

[FR Doc. 00–29944 Filed 11–22–00; 8:45 am]

BILLING CODE 3410–02–P

DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 1011

[DA–01–01]

Milk in the Tennessee Valley Marketing

Area; Termination of the Order

AGENCY: Agricultural Marketing Service,

USDA.

ACTION: Final rule; termination order.

SUMMARY: This document terminates the

remaining administrative provisions of

the Tennessee Valley Federal milk

marketing order (Order 1011). All of the

monthly operating provisions of the

order were terminated as of October 1,

1997.

EFFECTIVE DATE: November 27, 2000.

FOR FURTHER INFORMATION CONTACT:

Nicholas Memoli, Marketing Specialist,

USDA/AMS/Dairy Programs, Order

Formulation Branch, Room 2971, South

Building, P.O. Box 96456, Washington,

DC 20090–6456, (202) 690–1932,

Nicholas.Memoli@usda.gov.

SUPPLEMENTARY INFORMATION: The

Department is issuing this rule in

conformance with Executive Order

12866.

This final rule has been reviewed

under Executive Order 12988, Civil

Justice Reform. This rule is not intended

to have a 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 Agricultural Marketing

Agreement Act of 1937, as amended (7

U.S.C. 601–674), 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

request modification or exemption from

such order by filing 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 the law. A

handler is afforded the opportunity for

a hearing on the petition. After a

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 its 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.

Small Business Consideration

In accordance with the Regulatory

Flexibility Act (5 U.S.C. 601 et seq.), the

Agricultural Marketing Service has

considered the economic impact of this

action on small entities and has certified

that this final rule will not have a

significant economic impact on a

substantial number of small entities

because the Tennessee Valley milk

order ceased operating as of October 1,

1997, and there are no handlers or dairy

farmers that will be affected by the

termination of its one remaining

administrative provision.

Preliminary Statement

This order of termination is issued

pursuant to the provisions of the

Agricultural Marketing Agreement Act,

as amended (7 U.S.C. 601–674), and of

the order regulating the handling of

milk in the Tennessee Valley marketing

area.

Notice of proposed rulemaking was

published in the Federal Register on

July 3, 1997 (62 FR 36022), concerning

a proposed termination of the order.

Interested persons were afforded

opportunity to file written data, views

and arguments thereon.

In total, 11 comments were received,

3 supporting the termination, 3 opposed

to it, and 5 taking no position on the

termination but offering comments on

questions raised by the Department in

the notice of proposed termination.

After consideration of all relevant

material, including the proposal in the

notice, the comments received, and

other available information, the

Administrator of the Agricultural

Marketing Service found and

determined that the order regulating the

handling of milk in the Tennessee

Valley marketing area (7 CFR 1011) did

not tend to effectuate the declared

policy of the Act and terminated all of

the operating provisions of the order on

September 5, 1997, effective October 1,

1997 (62 FR 47923).

Statement of Consideration

This rule terminates the last

remaining provision of the Tennessee

Valley Federal milk marketing order

effective one day after publication of

this final rule in the Federal Register.

On May 12, 1997, the Department

issued a partial final decision on

proposed amendments to the Carolina,

Southeast, Tennessee Valley, and

Louisville-Lexington-Evansville milk

orders (i.e., Orders 5, 7, 11, and 46)

which was published on May 20, 1997

(62 FR 27525). The final decision

document contained proposed amended

orders for the 4 southeast marketing

areas, including the Tennessee Valley

order, and directed the respective

market administrators of the 4 orders to

ascertain whether producers approved

the issuance of the amended orders. The

final decision concluded that amended

orders were needed to effectuate the

declared policy of the Act.

Less than two-thirds of the producers

whose milk is pooled in the Tennessee

Valley marketing area approved the

issuance of the proposed amended

order. The Act requires approval by at

least two-thirds of the producers before

an amended order may be issued.

Pursuant to the provisions of the

Agricultural Marketing Agreement Act

and of the order regulating the handling

of milk in the Tennessee Valley

marketing area, the operating provisions

of the Tennessee Valley Federal milk

order were terminated effective October

1, 1997. Notice of the termination was

published in the Federal Register on

September 12, 1997 (62 FR 47923).

Certain administrative provisions were

left intact at that time so that the market

administrator, in his capacity as the

order’s liquidating agent, could disburse

all of the money remaining in the

administrative, producer-settlement,

and marketing service funds established

under the order. These tasks having

been completed, the remaining

provisions of the order are unnecessary

and may be removed immediately.

Therefore, it is determined that the

remaining provisions of Part 1011 no

longer tend to effectuate the declared

policy of the Act and are hereby

terminated pursuant to provisions of 7

U.S.C. 608(c)(16)(A).

For the same reasons, it is hereby

found and determined, upon good

cause, that it is impracticable,

unnecessary, and contrary to the public

interest to give preliminary notice or

engage in further rulemaking prior to

putting this rule into effect and that

good cause exists for not postponing the

effective date of this rule until 30 days

after publication in the Federal

Register.

List of Subjects in 7 CFR Part 1011

Milk marketing orders.