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.

Rules and Regulations Federal Register

22433 

Vol. 87, No. 73 

Friday, April 15, 2022 

DEPARTMENT OF AGRICULTURE 

Agricultural Marketing Service 

7 CFR Part 1207 

[Doc. No. AMS–SC–21–0032] 

Amendments to the United States 

Potato Board Membership and 

Assessment Methods 

AGENCY: Agricultural Marketing Service, 

USDA. 

ACTION: Final rule. 

SUMMARY: This rule changes the 

approved data sources used to 

determine the number of National 

Potato Promotion Board (Board) seats, 

expands payment methods used to remit 

assessments to include electronic 

submission, and updates the table of 

Harmonized Tariff Schedule of the 

United States (HTS) codes and 

assessment rates for imported potatoes 

and potato products. Finally, this rule 

includes new language eliminating the 

need to amend the Potato Research and 

Promotion Plan to update the list of 

relevant HTS codes. 

DATES: Effective May 16, 2022. 

FOR FURTHER INFORMATION CONTACT: 

Alexandra Caryl, Branch Chief of MidAtlantic Region, Market Development 

Division, Specialty Crop Program, AMS, 

USDA, Stop 0244, 1400 Independence 

Avenue SW, Room 1406–S, Washington, 

DC 20250–0244; telephone: (202) 253– 

4768; or electronic mail: 

Alexandra.Caryl@usda.gov. 

SUPPLEMENTARY INFORMATION: This rule, 

affecting the Potato Research and 

Promotion Plan (Plan) (7 CFR part 1207) 

is authorized under the Potato Research 

and Promotion Act (Act) (7 U.S.C. 2611– 

2627). 

Executive Orders 12866 and 13563 

The U.S. Department of Agriculture 

(USDA) is issuing this 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. 

Executive Order 13175 

This action has been reviewed in 

accordance with the requirements of 

Executive Order 13175, Consultation 

and Coordination with Indian Tribal 

Governments. The Agricultural 

Marketing Service (AMS) has assessed 

the impact of this final rule on Indian 

tribes and determined that this rule will 

not have tribal implications that require 

consultation under Executive Order 

13175. AMS hosts a quarterly 

teleconference with tribal leaders where 

matters of mutual interest regarding the 

marketing of agricultural products are 

discussed. Information about the 

changes to the regulations were shared 

during a quarterly call on April 9, 2020, 

and tribal leaders were informed about 

the revisions to the regulation and the 

opportunity to submit comments. AMS 

is committed to working with the USDA 

Office of Tribal Relations to ensure 

meaningful consultation is provided, as 

needed, with regards to this change to 

the Plan. 

Executive Order 12988 

This rule has been reviewed under 

Executive Order 12988, Civil Justice 

Reform. It is not intended to have 

retroactive effect. 

Pursuant to the Congressional Review 

Act (5 U.S.C. 801 et seq.), the Office of 

Information and Regulatory Affairs 

designated this rule as not a major rule, 

as defined by 5 U.S.C. 804(2). 

The Congressional Review Act 

provides that administrative 

proceedings must be exhausted before 

parties may file suit in court. Under 

section 311 of the Act (7 U.S.C. 2620), 

a person subject to a plan may file a 

petition with USDA stating that such 

plan, any provision of such plan, or any 

obligation imposed in connection with 

such plan, is not in accordance with law 

and request a modification of such plan 

or to be exempted therefrom. Such 

person is afforded the opportunity for a 

hearing on the petition. Thereafter, 

USDA will issue a ruling on the 

petition. The Congressional Review Act 

provides that the district court of the 

United States for any district in which 

the petitioner resides or conducts 

business shall have the jurisdiction to 

review a final ruling on the petition if 

the petitioner files a complaint for that 

purpose not later than 20 days after date 

of the entry of USDA’s final ruling. 

Background 

This rule amends the Plan’s allowed 

sources of potato production data used 

to determine the number of Board seats 

to which each State is entitled. 

Additionally, this rule expands payment 

methods used to remit assessments to 

include electronic submission, and 

updates the table of HTS codes and 

assessment rates for imported potatoes 

and potato products. Finally, this rule 

inserts new language to avoid future 

amendments to the Plan if HTS numbers 

subject to assessment reflected in the 

table are changed and such changes are 

merely a replacement of previous 

numbers. 

Data Sources for Board Membership 

The Plan became effective on March 

9, 1972. Section 1207.320(b) of the Plan 

provides the formula used to determine 

how many Board member seats to which 

each State is entitled. Under the Plan 

every State is eligible to have a 

representative on the Board and is 

eligible to have additional members 

based on the potato production levels in 

that State. For each five million 

hundredweight of such production, or 

major fraction thereof, produced within 

each State, such State shall be entitled 

to one member. 

The Plan states potato production 

totals must come from the ‘‘latest Crop 

Production Annual Summary Report 

issued by the Crop Reporting Board, 

U.S. Department of Agriculture.’’ See 

§ 1207.320(b). The Crop Production 

Annual Summary Report is currently 

issued by the National Agricultural 

Statistics Service (NASS). 

In March 2020, USDA’s NASS and 

AMS communicated to the Board that 

NASS will no longer be collecting 

potato production data for the following 


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ten states: Alaska, Illinois, Kansas, 

Maryland, Missouri, Montana, New 

Jersey, New York, North Carolina, and 

Virginia. In June 2020, NASS estimated 

the cost of collecting the data to 

approximately $80,000 per year. The 

Board considered this estimate and 

concluded that the cost to collect this 

information will exceed the value of 

assessments collected from the ten 

States. Subsequently, the Board decided 

to temporarily freeze the number of 

seats for those ten States at their 2019 

quantities so it could move forward 

with the assignment of Board member 

seats for 2020 nominations. 

At the July Board 2020 meeting, Board 

staff presented to the Board’s 

Administrative Committee a summary 

of constraints related to the collection of 

production data. During a January 2021 

meeting, Board staff further discussed 

the need to update the Plan with the 

Administrative Committee and made 

the recommendation to amend the Plan 

during a subsequent meeting on March 

9, 2021. 

The Board recommended to use 

production data from audited 

assessment reports in place of NASS 

data for states that have not been 

included in NASS reports. 

As indicated in Table 1, this 

amendment will allow the Board to use 

audited assessment data in instances 

where NASS data is unavailable. 

TABLE 1—NASS PRODUCTION AND BOARD PRODUCTION (BOARD) AND NUMBER OF PRODUCER MEMBERS BY STATE

State NASS 2016 

(cwt) 

NASS 2017 

(cwt) 

NASS 2018 

(cwt) 

Board 2018 

(cwt) 

2016–2018 

NASS avg. 

(1,000 cwt) 

2016–2018 

NASS & 

Board avg. 

(1,000 cwt) 

2020 NASS 

number of 

members 

(cwt/5,000) 

2020 NASS 

& Board 

number of 

members 

(cwt/5,000) 

Alabama (AL) .................... ........................ ........................ ........................ 70 ........................ ........................ 1 1 

Illinois (IL) .......................... 2,812 3,321 2,850 394 2,994 2,176 1 1 

Kansas (KS) ...................... 1,260 1,558 1,419 483 1,412 1,100 1 1 

Maryland (MD) .................. ........................ 913 510 389 474 651 1 1 

Missouri (MO) .................... 2,410 2,423 1,665 1,012 2,166 1,948 1 1 

Montana (MT) .................... 3,685 3,774 3,830 149 3,763 2,536 1 1 

New Jersey (NJ) ............... ........................ 600 530 125 377 363 1 1 

New York (NY) .................. 3,552 4,032 4,118 899 3,901 2,828 1 1 

North Carolina (NC) .......... 2,992 3,473 2,318 1,702 2,928 2,722 1 1 

Virginia (VA) ...................... 1,189 1,193 1,034 450 1,139 944 1 1 

Assessment Payment Options 

This rule will allow electronic 

submission in the list of allowable 

methods of payment to remit 

assessments and remove references to 

drafts and money orders. 

The Board staff stated that allowing 

electronic submission (e.g., bank 

transfer payments (Automated Clearing 

House) (ACH) or wire transfer 

payments) of assessments will improve 

and streamline operations by lowering 

the cost of processing mailed checks. 

This change will remove references to 

drafts and money orders as handlers are 

no longer using these forms of payment. 

Harmonized Tariff Schedule Table 

Section 1207.510(b)(3) of the Plan 

contains an HTS table that reflects 

outdated HTS codes, assessment rates, 

and potato categories for imports. 

Pursuant to Section 1207.327(b) of the 

Plan, the Board has the authority to 

recommend to AMS amendments to this 

Plan. To reduce Federal Register 

publication costs associated with 

amending the Plan to remain consistent 

with updated HTS codes, the Board 

recommended removing the actual HTS 

chart from the Plan and replacing the 

HTS chart with a reference to the HTS 

codes, assessment rates and potato 

categories for imports. 

AMS has adopted an alternative 

approach that includes amending the 

Plan by updating the current HTS chart 

and inserting new language to avoid 

future amendments to the Plan if an 

HTS number subject to assessment 

reflected in the table is changed and 

such change is merely a replacement of 

a previous number. This change will 

reduce future Federal Register 

publication costs associated with 

amending the Plan to remain consistent 

with future updated HTS numbers that 

have no impact on the description of 

potato involved. 

Final Regulatory Flexibility Act 

Analysis 

In accordance with the Regulatory 

Flexibility Act (RFA) (5 U.S.C. 601– 

612), AMS is required to examine the 

impact of the final rule on small 

entities. Accordingly, 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 

businesses subject to such actions so 

that small businesses will not be 

disproportionately burdened. The Small 

Business Administration (SBA) defines, 

in 13 CFR part 121, small agricultural 

producers as those having annual 

receipts of no more than $1 million and 

small agricultural service firms 

(handlers) as those having annual 

receipts of no more than $30 million. 

According to the Board, there were 

approximately 60 importers, 955 

handlers, and 1,500 producers in 2020. 

These numbers are used in 

computations, explained in the 

following paragraphs, to develop 

estimates of the proportion of small and 

large businesses using the size criteria of 

the Small Business Administration. 

Large agricultural producers under 

the criteria established by the SBA are 

those with $1 million or more in annual 

sales. Producers that pay Board 

assessments have a minimum of 5 acres 

of potatoes. 

The 2017 Agricultural Census 

reported 2,420 farms with 5 or more 

harvested acres of potatoes, of which 

1,283 (53 percent) had annual sales of 

$1,000,000 or more. Although there is a 

difference between the Board producer 

number and the Census farm number 

estimate, a majority the of potato 

producers responsible for paying 

assessments would likely be classified 

as large businesses according to the SBA 

criteria. 

The SBA threshold size for a large 

agricultural service firm is $30 million 

in annual sales. The Board estimate of 

the number of potato handlers in 2020 

was 955. According to NASS, the total 

value of the 2020 U.S. potato crop was 

$3.9 billion. Dividing $3.9 billion by 

955 yields an annual estimate of potato 

sales per handler of approximately $4.1 

million, well below the $30 million, 

threshold for a large agricultural service 

firm. 

Applying handler margins of twenty 

to fifty percent (representing a range of 

possible handler costs above the farmlevel value) would increase that $4.1 

million sales per handler number to 

between $4.9 and $6.2 million, still well 

below the $30 million SBA threshold. In 


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Federal Register / Vol. 87, No. 73 / Friday, April 15, 2022 / Rules and Regulations 22435 

addition, the NASS $3.9 billion U.S. 

crop value for 2020 overstates to a 

moderate extent the crop value relevant 

to this computation because an 

unknown, but likely small, portion of 

that annual potato crop value was 

provided by farms with less than 5 

harvested acres. 

With estimated average annual sales 

per handler in a moderate range above 

or below $4 million, it can be stated that 

a majority of potato handlers are small 

agricultural service firms, according to 

SBA criteria. 

The Board received approximately 

$14.5 million in 2020 assessments 

($0.03 per hundredweight, abbreviated 

as cwt) and reported that about 20 

percent of those assessments ($2.9 

million) were paid by potato importers. 

Dividing $2.9 million by the $0.03 per 

cwt assessment rate yields a potato 

import quantity estimate of 96.67 

million cwt. Multiplying the 96.67 

million cwt imported quantity by the 

NASS 2020 average U.S. grower price 

per cwt of $9.30 yields a 2020 import 

value estimate of $899 million. Dividing 

that imported potato value estimate by 

the number of importers (60) yields an 

average annual sales value per importer 

estimate of about $15 million. 

This average annual sales value per 

importer estimate was computed using 

an average farm-level price. It does not 

include a margin to account for importer 

costs of marketing, for which there is no 

publicly available information. Using 

the $15 million figure, and applying a 

possible range of importer margins of 20 

to 50 percent, would yield an annual 

average sales value per importer range 

of $18.0 to $22.5 million. Since these 

numbers are below the SBA threshold 

level of $30 million, and assuming a 

normal distribution, a majority of potato 

importers are determined to be small 

agricultural service businesses. 

This rule will amend §§ 1207.320, 

1207.502, 1207.510 and 1207.513. 

Regarding the economic impact of this 

final rule on affected entities, this action 

will impose no costs on producers, 

handlers, or importers. The changes are 

administrative in nature and will allow 

the Board to effectively carry out the 

requirements of the Plan. 

In response to the discontinuation of 

NASS collection of potato production 

data for 10 States, USDA considered the 

following alternatives to the chosen 

amendment language: Take no action 

and hold constant the production 

figures for the 10 States to the final year 

for which NASS published data; or fund 

NASS collection of data for the 10 States 

using Board resources. The first of these 

alternatives will result in the potential 

for Board representation that is 

inconsistent with domestic production. 

Potato production sees relatively high 

fluctuation from year to year. 

Consequently, distribution of Board 

member seats based on a fixed 

production figure will prevent the Board 

from adequately reflecting the changes 

that occur in the industry over time; 

therefore, this is not a viable alternative. 

The second alternative will result in an 

annual cost to the Board of $80,000 to 

restore the collection of potato 

production data by NASS for the 10 

States which it has omitted. As this 

amount exceeds the total value of 

assessments collected from these 10 

States, this is also not a viable 

alternative. The amendments 

encapsulated by this final rule will 

streamline and improve Board 

operations. 

In accordance with OMB regulation [5 

CFR part 1320], which implements 

information collection requirements 

imposed by the Paperwork Reduction 

Act of 1995 [44 U.S.C. 3501 et seq.], 

there are no new requirements 

contained in this rule. 

As with all Federal promotion 

programs, reports and forms are 

periodically reviewed to reduce 

information requirements and 

duplication by industry and public 

sector agencies. 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. 

Regarding outreach efforts, all the 

Board’s meetings are open to the public 

and interested persons are invited to 

participate and express their views. No 

concerns were raised. 

AMS has performed this final RFA 

analysis regarding the impact of this 

action on small entities. 

A proposed rule concerning this 

action was published in the Federal 

Register on September 16, 2021 (86 FR 

51626). A 30-day comment period 

ending October 18, 2021, was provided 

to allow interested persons to submit 

comments. 

One comment was received in 

response to the proposed rule. This 

comment was immaterial to the topic of 

this rule. Therefore, no changes have 

been made to the proposed rule based 

on the comment received. 

After consideration of all relevant 

matters presented, including the 

information and recommendation 

submitted by the Board, the comments 

received, and other relevant 

information, AMS has determined that 

this rule, as hereinafter set forth, is 

consistent with and will effectuate the 

purposes of the Act. 

List of Subjects in 7 CFR Part 1207 

Advertising, Agricultural research, 

Potatoes, Reporting and recordkeeping 

requirements. 

For the reasons set forth in the 

preamble, the Agricultural Marketing 

Service amends 7 CFR part 1207 as 

follows: 

PART 1207—POTATO RESEARCH 

AND PROMOTION PLAN 

■ 1. The authority citation for 7 CFR 

part 1207 continues to read as follows: 

Authority: 7 U.S.C. 2611–2627; 7 U.S.C. 

7401. 

■ 2. Amend § 1207.320 by revising 

paragraph (b) to read as follows: 

§ 1207.320 Establishment and 

membership. 

* * * * * 

(b) Producer membership upon the 

Board shall be determined on the basis 

of the potato production reported in the 

latest Crop Production Annual 

Summary Report issued by the National 

Agricultural Statistics Service of the 

U.S. Department of Agriculture. If a 

State’s potato production data is not 

provided by the National Agricultural 

Statistics Service, the Board may use an 

alternative data source that reliably 

reflects potato production in the United 

States. Unless the Secretary, upon 

recommendation of the Board, 

determines an alternate basis, for each 

five million hundredweight of such 

production, or major fraction thereof, 

produced within each State, such State 

shall be entitled to one member. 

However, each State shall initially be 

entitled to at least one member. 

* * * * * 

■ 3. Amend § 1207.502 by revising 

paragraph (a) to read as follows: 

§ 1207.502 Determination of membership. 

(a) Pursuant to § 1207.320 and the 

recommendation of the Board, annual 

producer memberships on the Board 

shall be determined on the basis of the 

average potato production of the 3 

preceding years in each State as set forth 

in the Crop Production Annual 

Summary Reports issued by the 

National Agricultural Statistics Service 

of the U.S. Department of Agriculture. If 

a State’s potato production data is not 

provided by the National Agricultural 

Statistics Service, the Board may use an 

alternative data source that reliably 


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reflects potato production in the United 

States. 

* * * * * 

■ 4. Amend § 1207.510 by revising 

paragraph (b)(3) to read as follows: 

§ 1207.510 Levy of assessments. 

* * * * * 

(b) * * * 

(3) The Harmonized Tariff Schedule 

(HTS) categories and assessment rates 

on imported tablestock potatoes and 

frozen or processed potatoes for 

ultimate consumption by humans and 

on imported seed potatoes are listed in 

the following table. In the event that any 

HTS number subject to assessment is 

changed and such change is merely a 

replacement of a previous number and 

has no impact on the description of the 

potatoes, assessments will continue to 

be collected based on the new numbers. 

Tablestock potatoes, frozen or processed potatoes, and seed potatoes 

Assessment 

Cents/cwt Cents/kg 

0701.10.0020 ........................................................................................................................................................... 3.0 0.066 

0701.10.0040 ........................................................................................................................................................... 3.0 0.066 

0701.90.1000 ........................................................................................................................................................... 3.0 0.066 

0701.90.5015 ........................................................................................................................................................... 3.0 0.066 

0701.90.5025 ........................................................................................................................................................... 3.0 0.066 

0701.90.5035 ........................................................................................................................................................... 3.0 0.066 

0701.90.5045 ........................................................................................................................................................... 3.0 0.066 

0701.90.5055 ........................................................................................................................................................... 3.0 0.066 

0701.90.5065 ........................................................................................................................................................... 3.0 0.066 

0710.10.0000 ........................................................................................................................................................... 6.0 0.132 

2004.10.4000 ........................................................................................................................................................... 6.0 0.132 

2004.10.8020 ........................................................................................................................................................... 6.0 0.132 

2004.10.8040 ........................................................................................................................................................... 6.0 0.132 

2005.20.0070 ........................................................................................................................................................... 4.716 0.104 

0712.90.3000 ........................................................................................................................................................... 21.429 0.472 

1105.10.0000 ........................................................................................................................................................... 21.429 0.472 

1105.20.0000 ........................................................................................................................................................... 21.429 0.472 

2005.20.0040 ........................................................................................................................................................... 21.429 0.472 

2005.20.0020 ........................................................................................................................................................... 12.240 0.27 

1108.13.0010 ........................................................................................................................................................... 27.0 0.595 

* * * * * 

■ 5. Amend § 1207.513 by revising 

paragraph (c)(1) to read as follows: 

§ 1207.513 Payment of assessments. 

* * * * * 

(c) * * * (1) Except as provided in 

paragraphs (b) and (d) of this section, 

each designated handler or importer 

shall remit assessments directly to the 

Board by check or electronic payment. 

Checks are to be made payable to the 

National Potato Promotion Board or the 

Board’s official doing business as name. 

Payment is due not later than 10 days 

after the end of the month such 

assessment is due together with a report 

(preferably on Board forms) thereon. 

* * * * * 

Erin Morris, 

Associate Administrator, Agricultural 

Marketing Service. 

[FR Doc. 2022–08042 Filed 4–14–22; 8:45 am] 

BILLING CODE 3410–02–P 

DEFENSE NUCLEAR FACILITIES 

SAFETY BOARD 

10 CFR Part 1707 

[Docket No. DNFSB–2022–0001] 

Testimony by DNFSB Employees and 

Production of Official Records in Legal 

Proceedings 

AGENCY: Defense Nuclear Facilities 

Safety Board. 

ACTION: Direct final rule. 

SUMMARY: The Touhy regulations of the 

Defense Nuclear Facilities Board 

(DNFSB or the Board) set forth 

procedures for responding to requests 

for information, documents, or 

testimony for use in legal proceedings. 

This direct final rule revises the 

regulations by clarifying that Touhy 

regulations only apply when the United 

States or the Board is not a party to the 

underlying legal proceedings. 

DATES: This final rule is effective July 

14, 2022 unless significant adverse 

comments are received by May 16, 2022. 

If the direct final rule is withdrawn as 

a result of such comments, timely notice 

of the withdrawal will be published in 

the Federal Register. 

ADDRESSES: You may submit comments 

at any time prior to the comment 

deadline by the following methods: 

Email: Send an email to comment@

dnfsb.gov. Please include ‘‘Touhy 

Regulations Comments’’ in the subject 

line of your email. 

Mail: Send hard copy comments to 

the Defense Nuclear Facilities Safety 

Board, Attn: Office of the General 

Counsel, 625 Indiana Avenue NW, Suite 

700, Washington, DC 20004–2901. 

FOR FURTHER INFORMATION CONTACT: 

Patricia A. Hargrave, Associate General 

Counsel, Defense Nuclear Facilities 

Safety Board, 625 Indiana Avenue NW, 

Suite 700, Washington, DC 20004–2901, 

(202) 694–7000. 

SUPPLEMENTARY INFORMATION: 

I. Background 

Under 5 U.S.C. 301, the 

‘‘Housekeeping Statute,’’ and in 

response to a demand for official 

information that arises out of a legal 

proceeding, many agencies have 

regulations governing the production of 

official information and employee 

testimony relating to official 

information. Known as Touhy 

regulations, after United States ex rel. v. 

Touhy v. Ragen, 340 U.S. 462 (1951), 

these regulations usually prohibit 

unauthorized disclosures of official 

information by employees. These 

regulations also establish procedures for 

agencies responding to subpoenas 

seeking official information or employee 


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