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

13080

Vol. 60, No. 47

Friday, March 10, 1995

DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 945

[Docket No. A0–150–A6; FV–92–945–2]

Irish Potatoes Grown In Certain

Designated Counties In Idaho, and

Malheur County, Oregon; Secretary’s

Decision and Referendum Order on

Proposed Further Amendment of

Marketing Agreement and Order No.

945

AGENCY: Agricultural Marketing Service,

USDA.

ACTION: Proposed rule and referendum

order.

SUMMARY: This decision proposes

amendments to the subject marketing

agreement and order (order) and

provides potato producers with the

opportunity to vote in a referendum to

determine if they favor the proposed

amendments. The proposed

amendments were submitted by the

Idaho-Eastern Oregon Potato Committee

(committee), the agency responsible for

local administration of the order. The

proposed changes would include

authority to: regulate shipments of

potatoes within the production area,

change representation and quorum

procedures of the committee, set

container marking and labeling

requirements, and require the

committee to consider, at least every six

years, changes in committee size or

reapportionment of committee

membership. Also, other proposals

would change committee fiscal

operations, add confidentiality and

verification provisions to the order, and

make other miscellaneous changes that

would be consistent with the proposed

amendments. These changes are being

proposed to improve order operations.

DATES: The referendum shall be

conducted from April 3 through April

17, 1995. The representative period for

the purpose of the referendum herein

ordered is August 1, 1993, through July

31, 1994.

FOR FURTHER INFORMATION CONTACT:

Valerie L. Emmer or Jim Wendland,

Marketing Specialists, Marketing Order

Administration Branch, Fruit and

Vegetable Division, AMS, USDA, room

2523–S, P.O. Box 96456, Washington,

D.C. 20090–6456, telephone: 202–205–

2829 or 720–2170 respectively, or Fax

202–720–5698; or Gary Olson, OIC,

Northwest Marketing Field Office,

Marketing Order Administration

Branch, Fruit and Vegetable Division,

AMS, USDA, 1220 SW. Third Avenue,

room 369, Portland, Oregon, 97204;

telephone: 503–326–2725, or Fax 503–

326–7440.

SUPPLEMENTARY INFORMATION: Prior

documents in this proceeding: Notice of

Hearing issued on August 3, 1993, and

published in the Federal Register on

August 11, 1993 (58 FR 42696).

Recommended Decision and

Opportunity to File Written Exceptions

issued on November 23, 1994, and

published in the Federal Register on

November 30, 1994 (59 FR 61286).

This administrative action is governed

by the provisions of sections 556 and

557 of Title 5 of the United States Code

and, therefore, is excluded from the

requirements of Executive Order 12866.

Preliminary Statement

The proposed amendments were

formulated on the record of a public

hearing held in Idaho Falls, Idaho, on

September 8, 1993, to consider the

proposed amendment of the Marketing

Agreement and Order No. 945,

regulating the handling of potatoes

grown in designated counties in Idaho,

and Malheur County, Oregon,

hereinafter referred to collectively as the

‘‘order.’’ The hearing was held pursuant

to the provisions of the Agricultural

Marketing Agreement Act of 1937, as

amended (7 U.S.C. 601 et seq.),

hereinafter referred to as the Act, and

the applicable rules of practice and

procedure governing proceedings to

formulate marketing agreements and

marketing orders (7 CFR part 900). The

Notice of Hearing contained several

amendment proposals submitted by the

Idaho-Eastern Oregon Committee

(committee) established under the order

to assist in local administration of the

program.

The proposals would: (1) Redefine

‘‘ship or handle’’ to include shipments

of potatoes within the production area;

(2) provide seed producers with

representation on the committee and

add authority for the committee to

recommend to the Secretary changes in

the committee size and composition; (3)

update ‘‘districts’’ to show the current

composition; (4) require the committee

to consider, at least every six years,

whether to recommend changes in

committee size or reapportionment of

committee membership; (5) change

committee quorum procedures; (6)

remove an outdated assessment

limitation of $1 per carload and allow

the committee to impose late payment

or interest fees, or both, on late

assessment payments, accept advance

payments, and borrow monies in an

extreme emergency for program

administration; (7) add authority for the

committee to recommend container

marking and labeling requirements; and

(8) specify confidentiality requirements

for handler reports submitted to the

committee. The Department of

Agriculture proposed authority for

adding requirements regarding

verification of reports and to make any

necessary conforming changes.

Upon the basis of evidence

introduced at the hearing and the record

thereof, the Administrator of the

Agricultural Marketing Service (AMS)

on November 30, 1994, filed with the

Hearing Clerk, U.S. Department of

Agriculture, a Recommended Decision

and Opportunity to File Written

Exceptions thereto by December 30,

1994. None were filed.

Small Business Considerations

In accordance with the provisions of

the Regulatory Flexibility Act (RFA) (5

U.S.C. 601 et seq.), the Administrator of

the AMS has determined that this action

would not have a significant economic

impact on a substantial number of small

entities. Small agricultural service firms,

which include handlers regulated under

this order, have been defined by the

Small Business Administration (SBA)

(13 CFR 121.601) as those having annual

receipts of less than $5,000,000. Small

agricultural producers are defined as

those having annual receipts of less than

$500,000.

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 and rules issued

thereunder are unique in that they are
Federal Register / Vol. 60, No. 47 / Friday, March 10, 1995 / Proposed Rules 13081

brought about through group action of

essentially small entities acting on their

own behalf. Thus, both the RFA and the

Act have small entity orientation and

compatibility. Interested persons were

invited to present evidence at the

hearing on the probable impact that the

proposed amendments to the order

would have on small businesses.

During the 1992–93 crop year, 66

handlers were regulated under

Marketing Order No. 945. In addition,

there are about 2,200 producers of

potatoes in the production area. The Act

requires the application of uniform rules

on regulated handlers. Since handlers

covered under the potato marketing

order are predominantly small

businesses, the order itself is tailored to

the size and nature of these small

businesses. Marketing orders and

amendments thereto, are unique in that

they are normally brought about through

group action of essentially small entities

for their own benefit. Thus, both the

RFA and the Act are compatible with

respect to small entities.

The proposed amendments to the

marketing agreement and order include

amending: § 945.20 Establishment and

membership pertaining to operations of

the committee, including providing seed

producers representation on the

committee; § 945.23 Redistricting and

reapportionment authorizing changes in

committee size, composition, and

representation; § 945.30 Procedure

regarding quorum requirements; and

§ 945.42 Assessments removing a $1 per

carload maximum assessment rate and

allowing the committee to impose late

payment and interest fees on late

assessment payments and borrow

monies in an extreme emergency for

program administration. These

proposed amendments would provide

an opportunity for a broader based

representation on the committee and

more flexibility to adjust to future

changes in industry structure, potato

production and financial operations.

These changes are designed to enhance

the administration and functioning of

the order and would have negligible, if

any, economic impact on small

businesses.

The proposal amending § 945.9 Ship

or handle would revise the definition of

these terms to include the handling of

potatoes in the current of commerce

within the counties covered by the

order’s production area, broadening the

scope of the order. This would require

all regulated shipments of potatoes for

fresh market to be inspected and meet

order requirements, including grade,

size, quality, pack, and payment of

assessments. This proposal would

improve the market for potatoes

handled within the production area.

This would benefit both producers and

handlers because minimum grade, size

and quality requirements established

under the order are important to the

industry in fostering consumer

satisfaction, increasing the demand for

Idaho-Eastern Oregon potatoes, and

improving industry returns; and the

additional assessment income would

improve the financial operations of the

order. Any added burden on small

businesses should be outweighed by the

added benefits accruing to them.

The proposed change to allow the rate

of assessment to be based on a

hundredweight of potatoes rather than

an outdated maximum amount of $1 per

railroad carload would improve the

financial operations of the order and not

adversely impact small businesses. This

change would provide more efficient

funding of order operations and

activities. Fresh potato shipments have

stabilized in recent years and the

current maximum rate specified will

likely not be sufficient to properly fund

committee operating costs beyond the

next few years if costs continue to rise.

Another recommended change would

amend § 945.52 Issuance of regulations

to add authority to require accurate and

uniform marking and labeling of the

containers in which production area

potatoes are shipped. The benefits of the

expected higher returns that could

result from increases in buyer and

consumer satisfaction due to accurate

marking and labeling should outweigh

any potential burden on small

businesses.

Another proposed amendment, to

§ 945.80 Reports, would provide

confidentiality requirements for reports

submitted to the committee. This would

safeguard handlers’ proprietary

information, including that for small

businesses, without imposing any

burden on them. Additionally, new

§ 945.80 provisions would add authority

for the Secretary and the committee to

verify the correctness of reports filed by

handlers, and to verify handler

compliance with recordkeeping

requirements. The requirement would

not have a significant impact on small

entities in the industry.

The proposal to make other

miscellaneous changes that would be

consistent with the proposed

amendments is necessary so that all

sections of the order would be

consistent if any or all of the

amendments are adopted. These

changes include deleting and

redesignating certain sections of the

order.

All these changes are designed to

enhance the administration and

functioning of the marketing agreement

and order to the benefit of the industry.

Accordingly, it is determined that the

proposed revisions of the order would

not have a significant economic impact

on handlers or producers.

The amendments proposed herein

have been reviewed under Executive

Order 12778, Civil Justice Reform. They

are not intended to have retroactive

effect. If adopted, the proposed

amendments would not preempt any

state or local laws, regulations, or

policies, unless they present an

irreconcilable conflict with the

amendments.

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 requesting 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 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.

In accordance with the Paperwork

Reduction Act of 1980 (44 U.S.C. 35),

the reporting and recordkeeping

provisions that are included in the

proposed amendments will be

submitted to the Office of Management

and Budget (OMB). They would not

become effective prior to OMB approval.

Findings and Conclusions and Rulings

on Exceptions

The material issues, findings and

conclusions, rulings, and general

findings and determinations included in

the Recommended Decision set forth in

the November 30, 1994, issue of the

Federal Register (59 FR 61286) are

hereby approved and adopted without

change.

Marketing Agreement and Order

Annexed hereto and made a part

hereof is the document entitled ‘‘Order

Amending the Order Regulating the

Handling of Irish Potatoes Grown in

Certain Designated Counties in Idaho,

and Malheur County, Oregon.’’ This

document has been decided upon as the

detailed and appropriate means of
13082 Federal Register / Vol. 60, No. 47 / Friday, March 10, 1995 / Proposed Rules

1This order shall not become effective unless and

until the requirements of § 900.14 of the rules of

practice and procedure governing proceedings to

formulate marketing agreements and marketing

orders have been met.

effectuating the foregoing findings and

conclusions.

It is hereby ordered, That this entire

decision be published in the Federal

Register.

Referendum Order

It is hereby directed that a referendum

be conducted in accordance with the

procedure for the conduct of referenda

(7 CFR part 900.400 et seq.) to

determine whether the issuance of the

annexed order amending the order

regulating the handling of Irish potatoes

grown in certain designated counties in

Idaho, and Malheur County, Oregon, is

approved or favored by producers, as

defined under the terms of the order,

who during the representative period

were engaged in the production of Irish

potatoes grown in certain designated

counties in Idaho, and Malheur County,

Oregon.

The representative period for the

conduct of such referendum is hereby

determined to be August 1, 1993,

through July 31, 1994.

The agents of the Secretary to conduct

such referendum are hereby designated

to be Valerie L. Emmer and Jim

Wendland, Marketing Order

Administration Branch, Fruit and

Vegetable Division, AMS, USDA, P.O.

Box 96456, Washington, D.C. 20250–

6456, telephone 202–475–3920 and

720–2170, respectively; and Gary D.

Olson, Officer-in-Charge, Northwest

Marketing Field Office, Marketing Order

Administration Branch, Fruit and

Vegetable Division, AMS, USDA, 1220

S.W. Third Avenue, room 369, Portland,

Oregon 97204, telephone: 503–326–

2725.

List of Subjects in 7 CFR Part 945

Marketing agreements, Potatoes,

Reporting and recordkeeping

requirements.

Dated: March 2, 1995.

Patricia Jensen,

Acting Assistant Secretary, Marketing and

Regulatory Programs.

Order Amending the Order Regulating

the Handling of Irish Potatoes Grown in

Certain Designated Counties in Idaho,

and Malheur County, Oregon1

Findings and Determinations

The findings and determinations

hereinafter set forth are supplementary

and in addition to the findings and

determinations previously made in

connection with the issuance of the

order; and all of said previous findings

and determinations are hereby ratified

and affirmed, except insofar as such

findings and determinations may be in

conflict with the findings and

determinations set forth herein.

(a) Findings and Determinations Upon

the Basis of the Hearing Record.

Pursuant to the provisions of the

Agricultural Marketing Agreement Act

of 1937, as amended (7 U.S.C. 601 et

seq.), and the applicable rules of

practice and procedure effective

thereunder (7 CFR part 900), a public

hearing was held upon the proposed

amendments to the Marketing

Agreement and Order No. 945 (7 CFR

part 945), regulating the handling of

Irish potatoes grown in certain

designated counties in Idaho, and

Malheur County, Oregon.

Upon the basis of the evidence

introduced at such hearing and the

record thereof, it is found that:

(1) The order, as amended, as hereby

proposed to be further amended, and all

of the terms and conditions thereof, will

tend to effectuate the declared policy of

the Act;

(2) The order, as amended, as hereby

proposed to be further amended,

regulates the handling of Irish potatoes

grown in the production area in the

same manner as, and is applicable only

to persons in the respective classes of

commercial and industrial activity

specified in the marketing order upon

which hearings have been held;

(3) The order, as amended, as hereby

proposed to be further amended, is

limited in application to the smallest

regional production area which is

practicable, consistent with carrying out

the declared policy of the Act, and the

issuance of several orders applicable to

subdivisions of the production area

would not effectively carry out the

declared policy of the Act;

(4) The order, as amended, as hereby

proposed to be further amended,

prescribes, insofar as practicable, such

different terms applicable to different

parts of the production area as are

necessary to give due recognition to the

differences in the production and

marketing of potatoes grown in the

production area; and

(5) All handling of potatoes grown in

the production area is in the current of

interstate or foreign commerce or

directly burdens, obstructs, or affects

such commerce.

Order Relative to Handling

It is therefore ordered, That on and

after the effective date hereof, all

handling of Irish potatoes grown in

certain designated counties in Idaho,

and Malheur County, Oregon, shall be

in conformity to, and in compliance

with, the terms and conditions of the

said order as hereby proposed to be

amended as follows:

The provisions of the proposed

marketing agreement and the order

amending the order contained in the

Recommended Decision issued by the

Administrator on November 23, 1994,

and published in the Federal Register

on November 30, 1994, shall be and are

the terms and provisions of this order

amending the order and are set forth in

full herein.

PART 945—IRISH POTATOES GROWN

IN CERTAIN DESIGNATED COUNTIES

IN IDAHO, AND MALHEUR COUNTY,

OREGON

1. The authority citation for 7 CFR

part 945 continues to read as follows:

Authority: 7 U.S.C. 601–674.

2. Section 945.9 is revised as follows:

§ 945.9 Ship or handle.

Ship or handle means to pack, sell,

consign, transport or in any other way

to place potatoes grown in the

production area, or cause such potatoes

to be placed, in the current of commerce

within the production area or between

the production area and any point

outside thereof, so as to directly burden,

obstruct, or affect any such commerce:

Provided, That the definition of ship or

handle shall not include the

transportation of ungraded potatoes

within the production area for the

purpose of having such potatoes stored

or prepared for market, except that the

committee may impose safeguards

pursuant to § 945.53 with respect to

such potatoes.

3. Section 945.20 is amended by

revising paragraph (a) and adding a new

paragraph (d) to read as follows:

§ 945.20 Establishment and membership.

(a) The Idaho-Eastern Oregon Potato

Committee is hereby established

consisting of eight members, of whom

four shall currently be producers of

potatoes for the fresh market who

produced such potatoes during at least

three of the last five years; at least one

member shall be a producer

predominately of potatoes for seed

during a similar period; and three shall

be handlers. For each member of the

committee, there shall be an alternate

who shall have the same qualifications

as the member. The number of producer

and/or handler members and alternates

on the committee may be increased and

the composition of the committee

between producers and handlers may be

changed as provided in § 945.23.

* * * * *
Federal Register / Vol. 60, No. 47 / Friday, March 10, 1995 / Proposed Rules 13083

(d) At least every six years, the

committee shall review committee size,

composition, and representation and

recommend to the Secretary whether

changes should be made, as provided in

§ 945.23.

4. Sections 945.22 through 945.24 are

revised to read as follows:

§ 945.22 Districts.

For the purpose of selecting

committee members and alternate

members, the following districts of the

production area are hereby established:

Provided, That these districts may be

changed as provided in § 945.23.

(a) District No. 1: The counties of

Bonneville, Butte, Clark, Fremont,

Jefferson, Madison, and Teton;

(b) District No. 2: The counties of

Bannock, Bear Lake, Bingham, Caribou,

Franklin, Oneida, and Power; and

(c) District No. 3: Malheur County,

Oregon, and the remaining designated

counties in Idaho included in the

production area, and not included in

District No. 1 or District No. 2.

§ 945.23 Redistricting and

reapportionment.

(a) The Secretary, upon

recommendation of the committee, may

reestablish districts within the

production area, may reapportion

committee membership among the

various districts, may increase the

number of producer and/or handler

members and alternates on the

committee, and may change the

composition of the committee by

changing the ratio between producer

and handler members, including their

alternates. At least every six years, the

committee shall review committee size,

composition and representation and

recommend to the Secretary whether

changes should be made. In

recommending any such changes, the

committee shall give consideration to:

(1) Shifts in potato acreage within

districts and within the production area

during recent years;

(2) the importance of new potato

production in its relation to existing

districts;

(3) the equitable relationship between

committee membership and districts;

(4) economies to result for producers

in promoting efficient administration

due to redistricting or reapportionment

of members within districts; and

(5) other relevant factors.

(b) Membership of the committee

shall be apportioned among the districts

of the production area so as to provide

the following representation or such

other representation as recommended

by the committee and approved by the

Secretary:

(1) Three producer members,

including at least one who

predominately produces seed potatoes,

and one handler member, with their

respective alternates, from District No.

1;

(2) One producer member and one

handler member, with their respective

alternates, from District No. 2; and

(3) One producer member and one

handler member, with their respective

alternates, from District No. 3.

§ 945.24 Selection.

Members and alternates of the

committee shall be selected by the

Secretary on the basis specified in

§ 945.23 (b) from nominations made

pursuant to § 945.25 or from other

eligible persons.

5. In § 945.30, paragraph (a) is revised

to read as follows:

§ 945.30 Procedure.

(a) A simple majority of all members

of the committee, including alternates

acting for members, shall be necessary

to constitute a quorum or to pass any

motion or approve any committee

action, except any motion regarding a

change in committee size shall require

a unanimous vote. At any assembled

meeting, all votes shall be cast in

person.

* * * * *

6. In § 945.42, paragraph (b) is revised

and new paragraphs (d) and (e) are

added to read as follows:

§ 945.42 Assessments.

* * * * *

(b) Assessments shall be levied upon

handlers at a rate per hundredweight of

potatoes or equivalent established by

the Secretary. Such rate may be

established upon the basis of the

committee’s budget recommendations,

and other available information.

* * * * *

(d) The committee may impose a late

payment charge or an interest charge, or

both, on any handler who fails to pay,

on or before the due date established by

the Secretary, the total assessment for

which such handler is liable. Such due

date and the late payment fee and

interest rate shall be recommended by

the committee and approved by the

Secretary.

(e) In order to provide funds to carry

out its function, after the effective date

of this subpart the committee may

accept advance assessments from

handlers. Advance assessments received

from a handler shall be credited toward

assessments levied against that handler

during that fiscal period. In the case of

an extreme emergency, the committee

may also borrow money on a short term

basis to provide funds for the

administration of this part. Any such

borrowed money shall only be used to

meet the committee’s current financial

obligations, and the committee shall

repay all borrowed money by the end of

the next fiscal period from assessment

income.

7. In § 945.52, paragraph (a)(3) is

revised to read as follows:

§ 945.52 Issuance of regulations.

(a) * * *

(3) Fix the size, capacity, weight,

dimensions, pack, labeling or marking

of the container, or containers, which

may be used in the packaging or

handling of potatoes, or both; or

* * * * *

8. Section 945.80 is amended by

designating the existing undesignated

text as paragraph (a) and adding new

paragraphs (b) through (d) to read as

follows:

§ 945.80 Reports.

(a) * * *

(b) All data or other information

constituting a trade secret, or disclosing

a trade position or business condition of

a particular handler shall be treated as

confidential and shall at all times be

received by and kept in the custody and

under the control of one or more

designated employees of the committee.

Information which would reveal the

circumstances of a single handler shall

be disclosed to no person other than the

Secretary.

(c) Each handler shall maintain for at

least two succeeding fiscal periods such

records of potatoes received and of

potatoes disposed of by such handler as

may be necessary to verify reports

required pursuant to this section. The

committee, with the approval of the

Secretary, may prescribe rules and

regulations issued pursuant to this

section specifying handler records and

reports which the committee may need

to perform its functions.

(d) For the purpose of assuring

compliance and checking and verifying

reports filed by handlers, the Secretary

and the committee, through its duly

authorized agents, shall have access to

any premises where applicable records

are maintained, where potatoes are held,

and, at any time during reasonable

business hours, shall be permitted to

inspect such handlers’ premises and any

and all records of such handlers with

respect to matters within the purview of

this part.

[FR Doc. 95–5671 Filed 3–9–95; 8:45 am]

BILLING CODE 3410–02–P