[Federal Register Volume 60, Number 47 (Friday, March 10, 1995)]
[Proposed Rules]
[Pages 13080-13083]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-5671]



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Proposed Rules
                                                Federal Register
________________________________________________________________________

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.

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Federal Register / Vol. 60, No. 47 / Friday, March 10, 1995 / 
Proposed Rules
[[Page 13080]]

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.

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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 
[[Page 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: Sec. 945.20 Establishment and membership pertaining 
to operations of the committee, including providing seed producers 
representation on the committee; Sec. 945.23 Redistricting and 
reapportionment authorizing changes in committee size, composition, and 
representation; Sec. 945.30 Procedure regarding quorum requirements; 
and Sec. 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 Sec. 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 Sec. 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 Sec. 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 Sec. 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 [[Page 13082]] 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, 
Oregon<SUP>1

    \1\This order shall not become effective unless and until the 
requirements of Sec. 900.14 of the rules of practice and procedure 
governing proceedings to formulate marketing agreements and 
marketing orders have been met.
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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:


Sec. 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 Sec. 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:


Sec. 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 
Sec. 945.23.
* * * * * [[Page 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 Sec. 945.23.
    4. Sections 945.22 through 945.24 are revised to read as follows:


Sec. 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 Sec. 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.


Sec. 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.


Sec. 945.24  Selection.

    Members and alternates of the committee shall be selected by the 
Secretary on the basis specified in Sec. 945.23 (b) from nominations 
made pursuant to Sec. 945.25 or from other eligible persons.
    5. In Sec. 945.30, paragraph (a) is revised to read as follows:


Sec. 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 Sec. 945.42, paragraph (b) is revised and new paragraphs (d) 
and (e) are added to read as follows:


Sec. 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 Sec. 945.52, paragraph (a)(3) is revised to read as follows:


Sec. 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:


Sec. 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