This section of the FEDERAL REGISTER

contains notices to the public of the proposed

issuance of rules and regulations. The

purpose of these notices is to give interested

persons an opportunity to participate in the

rule making prior to the adoption of the final

rules.

Proposed Rules Federal Register

49930 

Vol. 86, No. 170 

Tuesday, September 7, 2021 

DEPARTMENT OF AGRICULTURE 

Agricultural Marketing Service 

7 CFR Part 946 

[Doc. No. AMS–SC–20–0095; SC21–946–1 

PR] 

Termination of the Marketing Order for 

Irish Potatoes Grown in Washington 

State 

AGENCY: Agricultural Marketing Service, 

USDA. 

ACTION: Proposed rule. 

SUMMARY: This rule invites comments 

on the proposed termination of the 

Federal marketing order regulating the 

handling of Irish potatoes grown in 

Washington, and the rules and 

regulations issued thereunder. The 

marketing order is administered locally 

by the State of Washington Potato 

Committee (Committee), which 

unanimously recommended its 

termination at a meeting held on June 

11, 2020. This recommendation is based 

on the Committee’s determination that 

the marketing order is no longer an 

effective marketing tool for the 

Washington potato industry and that 

termination would best serve the 

current needs of the industry by 

eliminating the cost associated with its 

operation. 

DATES: Comments must be received by 

November 8, 2021. 

ADDRESSES: Interested persons are 

invited to submit written comments 

concerning this proposal. Comments 

must be submitted to the Docket Clerk 

electronically by Email: 

MarketingOrderComment@usda.gov or 

internet: https://www.regulations.gov. 

All comments should reference the 

document number and the date and 

page number of this issue of the Federal 

Register and can be viewed at: https:// 

www.regulations.gov. All comments 

submitted in response to this proposal 

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 

comments will be made public on the 

internet at the address provided above. 

FOR FURTHER INFORMATION CONTACT: 

Gregory A. Breasher, Marketing 

Specialist, or Gary Olson, Regional 

Director, Northwest Marketing Field 

Office, Marketing Order and Agreement 

Division, Specialty Crops Program, 

AMS, USDA; Telephone: (503) 326– 

2054 or Email: Gregory.Breasher@

usda.gov or GaryD.Olson@usda.gov. 

Small businesses may request 

information on complying with this 

regulation by contacting Richard Lower, 

Marketing Order and Agreement 

Division, Specialty Crops Program, 

AMS, USDA, 1400 Independence 

Avenue SW, STOP 0237, Washington, 

DC 20250–0237; Telephone: (202) 720– 

2491, Fax: (202) 720–8938, or Email: 

Richard.Lower@usda.gov. 

SUPPLEMENTARY INFORMATION: This 

action, pursuant to 5 U.S.C. 553, 

proposes the termination of regulations 

issued to carry out a marketing order as 

defined in 7 CFR 900.2(j). This proposed 

rule is issued under Marketing Order 

No. 946, as amended (7 CFR part 946), 

regulating the handling of potatoes 

grown in Washington. Part 946 (referred 

to as 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 

Committee locally administers the 

Order and is comprised of producers 

and handlers operating within the 

production area. 

The Department of Agriculture 

(USDA) is issuing this proposed rule in 

conformance with Executive Orders 

12866 and 13563. Executive Orders 

12866 and 13563 direct agencies to 

assess all costs and benefits of available 

regulatory alternatives and, if regulation 

is necessary, to select regulatory 

approaches that maximize net benefits 

(including potential economic, 

environmental, public health and safety 

effects, distributive impacts and equity). 

Executive Order 13563 emphasizes the 

importance of quantifying both costs 

and benefits, reducing costs, 

harmonizing rules, and promoting 

flexibility. This action falls within a 

category of regulatory actions that the 

Office of Management and Budget 

(OMB) exempted from Executive Order 

12866 review. 

In addition, this proposed rule has 

been reviewed under Executive Order 

13175—Consultation and Coordination 

with Indian Tribal Governments, which 

requires agencies to consider whether 

their rulemaking actions would have 

tribal implications. The Agricultural 

Marketing Service (AMS) has 

determined this proposed rule is 

unlikely to have substantial direct 

effects on one or more Indian tribes, on 

the relationship between the Federal 

Government and Indian tribes, or on the 

distribution of power and 

responsibilities between the Federal 

Government and Indian tribes. 

This proposed rule has been reviewed 

under Executive Order 12988, Civil 

Justice Reform. This proposed 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 a marketing order 

may file with USDA a petition stating 

that the marketing order, any provision 

of the marketing order, or any obligation 

imposed in connection with the 

marketing order is not in accordance 

with law and request a modification of 

the marketing 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 proposes to terminate the 

Order and rules and regulations issued 

thereunder. The Order contains 

authority for the regulation of Irish 

potatoes grown in Washington. At a 

virtual meeting held on June 11, 2020, 

the Committee unanimously 

recommended termination of the Order. 

Section 946.63(b) of the Order 

provides that USDA terminate or 

suspend any or all provisions of the 

Order when a finding is made that the 

Order does not tend to effectuate the 

declared policy of the Act. In addition, 

section 608c(16)(A) of the Act provides 

that USDA terminate or suspend the 

operation of any order whenever the 

order or any provision thereof obstructs 

or does not tend to effectuate the 

declared policy of the Act. Additionally, 


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Federal Register / Vol. 86, No. 170 / Tuesday, September 7, 2021 / Proposed Rules 49931 

USDA is required to notify Congress no 

later than 60 days before the date on 

which the Order would be terminated. 

Marketing Order No. 946 has been in 

effect since 1949 and has provided the 

potato industry in Washington with 

authority for grade, size, quality, 

maturity, pack, and container 

regulations, as well as authority for 

mandatory product inspection. The 

Committee has met regularly to evaluate 

the current status of the Washington 

potato industry and to consider 

recommendations for modification, 

suspension, or termination of the 

Order’s regulatory requirements, which 

have been issued on a continuing basis. 

Committee meetings are open to the 

public and interested persons may 

express their views at these meetings. 

The USDA reviews Committee 

recommendations, including 

information provided by the Committee 

and from other available sources, and 

determines whether modification, 

suspension, or termination of the 

Order’s regulatory requirements would 

tend to effectuate the declared policy of 

the Act. 

Handling regulations requiring 

potatoes to be inspected and meet 

mandatory minimum grade, size, 

maturity, quality, pack, and container 

requirements were in effect for all types 

of potatoes until 2010. USDA 

temporarily suspended handling 

regulations for Russet type potatoes for 

one-year, effective July 24, 2010 (75 FR 

43042), and subsequently extended that 

suspension indefinitely effective July 1, 

2011 (76 FR 27850). Further, USDA 

temporarily suspended handling 

regulations for yellow fleshed and white 

type potatoes effective October 24, 2013 

(78 FR 62967), also extending that 

suspension indefinitely effective July 1, 

2014 (79 FR 26109). Lastly, USDA 

indefinitely suspended handling 

regulations for all red types of potatoes 

effective February 15, 2014 (79 FR 

8253). The cumulative effect of these 

suspensions was the total suspension of 

handling regulations for all fresh 

potatoes under the Order after July 1, 

2014. All suspensions listed above were 

conducted upon the recommendation of 

the Committee. 

Following these regulatory 

suspensions, the Committee continued 

to levy assessments in order to maintain 

its functionality. The Committee felt 

that it should continue to fund its full 

operational capability in order to collect 

handler reports, track industry data, and 

preserve the authority to regulate 

handling, should that become relevant 

to the industry again sometime in the 

future. 

The Committee met on January 22 and 

June 11, 2020, to discuss the current 

marketing environment of the 

Washington potato industry and the 

status of the Order. The Committee 

determined that the suspension of the 

Order’s handling regulations have not 

negatively impacted the industry and 

that there is no longer a need for the 

Order. In addition, the Committee 

concluded that data collection and 

reporting functions of the Order are 

duplicative of the services provided to 

the industry by the Washington State 

Potato Commission and that termination 

of the Order would not materially 

impact the collection and dissemination 

of essential industry data. 

At the meeting held via conference 

call on June 11, 2020, the Committee 

unanimously voted in favor of 

recommending that USDA to terminate 

the Order. In addition, the Committee 

recommended the Order’s reporting and 

assessment requirements—the only 

regulatory activities still in effect—be 

suspended while USDA processes 

termination of the Order. The 

recommendation to suspend all 

remaining Order activities is a separate 

regulatory action from this rule. A 

proposed rule to suspend the Order’s 

reporting and assessment requirements 

was published in the Federal Register 

October 13, 2020 (85 FR 64415). 

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 proposed 

rule 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 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 26 handlers 

of Washington potatoes and 

approximately 250 potato producers in 

the production area subject to regulation 

by the Order. 

Small agricultural service firms are 

defined by the Small Business 

Administration (SBA) as those having 

annual receipts of less than $30,000,000, 

and small agricultural producers are 

defined as those having annual receipts 

of less than $1,000,000 (13 CFR 

121.201). 

According to USDA Market News, the 

average shipping point price for fresh 

Washington potatoes during the 2019 

shipping season was approximately 

$15.79 per hundredweight. The 

Committee reported that 2019–2020 

marketing year fresh potato shipments 

were 9,687,170 hundredweight. Using 

the average price and shipment 

information, the number of handlers, 

and assuming a normal distribution, 

most handlers had average annual 

receipts of less than $30,000,000 ($15.79 

times 9,687,170 hundredweight equals 

$152,960,414, divided by 26 handlers 

equals $5,883,093 per handler). Thus, 

AMS concludes that the majority of 

handlers would meet the SBA definition 

of a small business. 

USDA National Agricultural Statistics 

Service reported an average producer 

price of $8.20 per hundredweight for the 

2019 crop. Given the number of 

Washington potato producers and 

assuming a normal distribution, average 

annual producer revenue is below 

$1,000,000 ($8.20 times 9,687,170 

hundredweight equals $79,434,794, 

divided by 250 producers equals 

$317,739 per producer). Therefore, most 

producers of fresh Washington potatoes 

may be classified as small businesses 

under the SBA definition. 

This rule proposes to terminate the 

Federal marketing order for Irish 

potatoes grown in Washington, and 

rules and regulations issued thereunder. 

The Order contains authority to regulate 

the handling of Irish potatoes grown in 

Washington. The Committee determined 

that regulating the handling of potatoes 

under the Order is no longer an effective 

marketing tool for the Washington 

potato industry. Evidence from the past 

6 years of operating with suspended 

handling regulations showed that 

potatoes can be shipped from the 

production area in the absence of the 

Order’s minimum requirements without 

a negative economic impact on the 

industry. 

Secondly, the Committee determined 

that the data collection and reporting 

function of the Order is duplicative of 

the services provided to the industry by 

the Washington State Potato 

Commission. The termination of the 

Order would not materially impact the 

collection and dissemination of 

essential industry data to Washington 

State potato growers. 

As such, the Committee concluded 

that the cost associated with the 

administration of the Order outweigh 

benefits of continuing the Order. This 

conclusion is based on the Committee’s 

analysis of the 6-year period of 

regulatory suspension and findings that 

termination is not expected to 


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49932 Federal Register / Vol. 86, No. 170 / Tuesday, September 7, 2021 / Proposed Rules 

negatively impact the marketing of fresh 

Washington potatoes because this action 

reduces costs to both handlers and 

producers. Therefore, in an action taken 

on June 11, 2020, the Committee 

unanimously recommended that USDA 

terminate the Order. 

Section 946.63(b) of the Order 

provides that USDA to terminate or 

suspend any or all provisions of the 

Order when a finding is made that the 

Order does not tend to effectuate the 

declared policy of the Act. Furthermore, 

§ 608c(16)(A) of the Act provides that 

USDA shall terminate or suspend the 

operation of any order whenever the 

order or provision thereof obstructs or 

does not tend to effectuate the declared 

policy of the Act. An additional 

provision requires that Congress be 

notified not later than 60 days before the 

date on which order would be 

terminated. 

The Committee considered 

alternatives to this rule, including 

taking no action (which would keep the 

Order active but with the handling 

regulations suspended) and suspending 

all of the Order’s remaining regulatory 

provisions but not terminating the 

Order. The Committee determined that 

neither option was a viable long-term 

solution, and subsequently, 

recommended that the Order be 

terminated. 

This proposed rule is intended to 

solicit input and other available 

information from interested parties on 

whether the Order should be 

terminated. USDA will evaluate all 

available information prior to making a 

final action on this matter. 

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 OMB and 

assigned OMB No. 0581–0178 Vegetable 

and Specialty Crops. Termination of the 

Order and reporting requirements 

prescribed therein, would reduce the 

reporting burden on Washington potato 

handlers by an estimated 9.7 hours per 

handler. Handlers would no longer be 

required to file forms with the 

Committee, which is expected to reduce 

industry expenses. This rule would not 

impose any additional reporting or 

recordkeeping requirements on either 

small or large 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. 

Committee meetings are widely 

publicized throughout the Washington 

potato industry, and all interested 

persons are invited to attend the 

meetings and participate in Committee 

deliberations on all issues. Like all 

Committee meetings, the January 22 and 

June 11, 2020, meetings were public 

meetings, and all entities, both large and 

small, were able to express their views 

on these issues. Interested persons are 

invited to submit comments on this 

proposed rule, including regulatory and 

information collection impacts of this 

proposed action on small businesses. 

A small business guide on complying 

with fruit, vegetable, and specialty crop 

marketing agreements and orders may 

be viewed at: https://

www.ams.usda.gov/rules-regulations/ 

moa/small-businesses. Any questions 

about the compliance guide should be 

sent to Richard Lower at the previously 

mentioned address in the FOR FURTHER

INFORMATION CONTACT section. 

This rule invites comments on the 

proposed termination of Marketing 

Order 946, which regulates the handling 

of Irish potatoes grown in Washington. 

A 60-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 action is made on this 

matter. 

Based on the foregoing and pursuant 

to § 608c(16)(A) of the Act and § 946.63 

of the Order, USDA is considering 

termination of the Order. If USDA 

decides to terminate the Order, trustees 

would be appointed to conclude and 

liquidate the Committee affairs and 

would continue in that capacity until 

discharged by USDA. In addition, USDA 

would notify Congress 60 days in 

advance of termination pursuant to 

§ 608c(16)(A) of the Act. 

List of Subjects in 7 CFR Part 946 

Marketing agreements, Potatoes, 

Reporting and recordkeeping 

requirements. 

For reasons set forth in the preamble, 

part 946 is proposed to be removed. 

PART 946—IRISH POTATOES GROWN 

IN WASHINGTON—[REMOVED] 

■ 1. The authority citation for part 946 

continues to read as follows: 

Authority: 7 U.S.C. 601–674. 

■ 2. Accordingly, part 946 is removed. 

Erin Morris, 

Administrator, Agricultural Marketing 

Service. 

[FR Doc. 2021–19238 Filed 9–3–21; 8:45 am] 

BILLING CODE 3410–02–P 

DEPARTMENT OF ENERGY 

10 CFR Part 707 

[AU–RM–19–WSAP] 

RIN 1992–AA60 

Workplace Substance Abuse Programs 

at DOE Sites 

AGENCY: Office of Environment, Health, 

Safety and Security; Department of 

Energy. 

ACTION: Notice of proposed rulemaking. 

SUMMARY: The U.S. Department of 

Energy (DOE or the Department) is 

proposing to amend its current 

regulations on contractor workplace 

substance abuse programs at DOE sites 

to be consistent with the Secretary of 

Energy’s memorandum, dated 

September 14, 2007, entitled Decisions 

regarding drug testing for Department of 

Energy positions that require access 

authorizations (Security Clearances), 

and because there is a continued need 

for these changes. The proposed 

amendments would decrease the 

random drug testing rate for individuals 

in certain testing designated positions, 

and clarify that all positions requiring 

access authorizations (security 

clearances) are included in the testing 

designated positions. In addition, the 

proposed amendments would clarify 

requirements for DOE approval prior to 

allowing persons in certain testing 

designated positions to return to work 

after removal for illegal drug use. 

DATES: The comment period for this 

proposed rule will end on October 7, 

2021. 

ADDRESSES: You may submit comments, 

identified by Docket No. AU–RM–19– 

WSAP and/or Regulation Identification 

Number (RIN) 1992–AA60, through the 

Federal e-Rulemaking Portal: https://

www.regulations.gov. Follow the 

instructions in the portal for submitting 

comments. 

Although DOE has routinely accepted 

public comment submissions through a 

variety of mechanisms, including postal 

mail and hand delivery/courier, the 

Department has found it necessary to 

make temporary modifications to the 

comment submission process in light of 

the ongoing Covid–19 pandemic. DOE is 

currently accepting only electronic 


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