83 FR 35151 - Irish Potatoes Grown in Southeastern States; Termination of Marketing Order 953

DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service

Federal Register Volume 83, Issue 143 (July 25, 2018)

This proposed rule invites comments on the termination of the Federal marketing order regulating the handling of Irish potatoes grown in Southeastern states (Order). The Order has been suspended, at the industry's recommendation, since 2011. Because the industry has not petitioned to have the Order reactivated, in accordance with the terms of the suspension, the Agricultural Marketing Service (AMS) is proposing termination of the Order.

[Federal Register Volume 83, Number 143 (Wednesday, July 25, 2018)]
[Proposed Rules]
[Pages 35151-35153]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2018-15890]


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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. 83, No. 143 / Wednesday, July 25, 2018 / 
Proposed Rules

[[Page 35151]]



DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 953

[Doc. No. AMS-SC-18-0037; SC18-953-1 PR]


Irish Potatoes Grown in Southeastern States; Termination of 
Marketing Order 953

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Proposed rule.

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SUMMARY: This proposed rule invites comments on the termination of the 
Federal marketing order regulating the handling of Irish potatoes grown 
in Southeastern states (Order). The Order has been suspended, at the 
industry's recommendation, since 2011. Because the industry has not 
petitioned to have the Order reactivated, in accordance with the terms 
of the suspension, the Agricultural Marketing Service (AMS) is 
proposing termination of the Order.

DATES: Comments must be received by September 24, 2018.

ADDRESSES: Interested persons are invited to submit written comments 
concerning this rule. Comments must be sent to the Docket Clerk, 
Marketing Order and Agreement Division, Specialty Crops Program, AMS, 
USDA, 1400 Independence Avenue SW, STOP 0237, Washington, DC 20250-
0237; Fax: (202) 720-8938; or internet: http://www.regulations.gov. 
Comments should reference the document number and the date and page 
number of this issue of the Federal Register and will be available for 
public inspection in the Office of the Docket Clerk during regular 
business hours or can be viewed at: http://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 the comments 
will be made public on the internet at the address provided above.

FOR FURTHER INFORMATION CONTACT: Debbie Wray, Marketing Specialist, or 
Julie H. Santoboni, Rulemaking Branch Chief, 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: 
[email protected] or [email protected].
    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: [email protected].

SUPPLEMENTARY INFORMATION: This proposal is governed by section 
608c(16)(A) of the Agricultural Marketing Agreement Act of 1937, as 
amended (7 U.S.C. 601-674), hereinafter referred to as the ``Act,'' and 
Marketing Agreement 104 and Marketing Order 953 (7 CFR part 953), 
referred to as the ``Order,'' effective under the Act.
    The Department of Agriculture (USDA) is issuing this rule in 
conformance with Executive Orders 13563 and 13175. This proposed rule 
falls within a category of regulatory actions that the Office of 
Management and Budget (OMB) exempted from Executive Order 12866 review. 
Additionally, because this proposal does not meet the definition of a 
significant regulatory action, it does not trigger the requirements 
contained in Executive Order 13771. See OMB's Memorandum titled 
``Interim Guidance Implementing Section 2 of the Executive Order of 
January 30, 2017, titled `Reducing Regulation and Controlling 
Regulatory Costs'[thinsp]'' (February 2, 2017).
    This proposal to terminate the Order 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 an order may file with USDA a petition 
stating that the order, any provision of the order, or any obligation 
imposed in connection with the order is not in accordance with law and 
request a modification of the order or to be exempted therefrom. A 
handler is afforded the opportunity for a hearing on the petition. 
After the hearing, 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 proposal invites comments on the termination of the Order. The 
Order authorizes regulation of the handling of Irish potatoes grown in 
designated counties of Virginia and North Carolina. The Order has been 
suspended for approximately seven years, at the industry's 
recommendation, and the industry has not expressed interest in 
reactivating the Order.
    Section 953.66 provides, in pertinent part, that USDA terminate or 
suspend any or all provisions of the Order when a finding is made that 
the Order or any provision thereof 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 or 
any provision thereof whenever the order or any provision thereof 
obstructs or does not tend to effectuate the declared policy of the 
Act. Additionally, USDA is required to notify Congress not later than 
60 days before the date an order would be terminated.
    The Order has been in effect since 1948 and provides for the 
establishment of grade, size, quality, maturity, and inspection 
requirements for Irish potatoes grown in Southeastern states. The Order 
also authorizes reporting and recordkeeping functions required for the 
operation of the Order. The Order, when in effect, is locally 
administered by the Southeastern Potato Committee (Committee) and is 
funded by assessments imposed on handlers.
    Based on the Committee's unanimous recommendation in 2011, USDA 
suspended the Order for a three-year period ending March 1, 2014. The 
Committee recommended the suspension to eliminate the expense of 
administering the Order while determining the effects of not having the 
Order in place. When the Committee

[[Page 35152]]

made the recommendation to suspend the Order, it wanted the industry to 
have the option of reactivating the Order, if deemed appropriate. The 
final rule adopting an interim rule that implemented that action was 
published in the Federal Register on October 21, 2011 (76 FR 65360). 
Upon suspension of the Order in 2011, the Committee ceased to function.
    In anticipation of the expiration of the suspension on March 1, 
2014, in late 2013 USDA sent a letter to members of the industry, most 
of whom were former Committee members. The letter stated that 
suspension of the Order would soon be ending and that members of the 
industry would need to recommend an action to USDA. On December 18, 
2013, representatives of the Virginia and North Carolina Irish potato 
industry met and requested that the suspension of all provisions of the 
Order be continued through March 1, 2017. The extension of the 
suspension would allow the industry further opportunity to study 
changes and evaluate new developments in the industry that could affect 
the need for the Order. The final rule adopting the interim rule that 
implemented that action was published in the Federal Register on August 
19, 2015 (80 FR 50191).
    Under the terms of the suspension, if the industry did not petition 
USDA to have the Order reactivated by the end of the suspension period, 
March 1, 2017, AMS would propose termination of the Order. To date, the 
industry has not filed a petition to have the Order reactivated.
    This proposed termination of the Order is intended to solicit input 
and any additional information available from interested parties 
regarding whether the Order should be terminated. USDA will evaluate 
all available information prior to making a final determination on this 
matter. Termination of the Order would become effective only after a 
60-day notification to Congress, as required by law.

Initial Regulatory Flexibility Analysis

    Pursuant to the 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 
business subject to such actions in order that small businesses will 
not be unduly or disproportionately burdened. Marketing orders issued 
pursuant to the Act are unique in that they are brought about through 
group action of essentially small entities acting on their own behalf.
    There are approximately ten handlers of Irish potatoes grown in 
Southeastern states who are subject to regulation under the Order and 
approximately 20 potato producers in the regulated area. Small 
agricultural service firms are defined by the Small Business 
Administration (SBA) as those having annual receipts of less than 
$7,500,000, and small agricultural producers are defined as those whose 
annual receipts are less than $750,000 (13 CFR 121.201).
    Using prices reported by AMS' Market News Service, the average free 
on board (f.o.b.) price for Southeastern potatoes for the 2017 
marketing season was about $50 per hundredweight. Based on information 
from the National Agricultural Statistics Service (NASS), estimated 
total production in Virginia and North Carolina for the 2017 season was 
4,666,000 hundredweight of potatoes. Multiplying the f.o.b. price by 
the estimated production results in an estimated handler value of 
$233,300,000. Dividing this figure by the number of handlers (ten) 
yields an estimated average annual handler receipt of $23,330,000. 
Using the average price and shipment information, the number of 
handlers, and assuming a normal distribution, the majority of handlers 
have average annual receipts of more than $7,500,000.
    Based on information from NASS, during the 2017 season, there were 
19,600 total acres harvested in Virginia and North Carolina with a 
total value of production at $59,038,000 for the season. The average 
producer prices for Virginia and North Carolina Irish potatoes in 2017 
were $16.30 and $11.40 per hundredweight, respectively, for an average 
price of $13.85. Dividing the 2017 total production value by the 
average of the two states' producer prices and using a normal 
distribution, the average gross annual revenue for each of the 20 
producers would be about $213,134.
    Therefore, based on the above handler and producer revenue 
estimates, the majority of Southeastern potato handlers may be 
classified as large entities, while a majority of producers may be 
classified as small entities.
    This proposed rule would terminate the Order for Irish potatoes 
grown in Southeastern states and the rules and regulations issued 
thereunder. The Order authorizes regulation of the handling of Irish 
potatoes grown in designated counties of Virginia and North Carolina. 
The Order was initially suspended in 2011, at the recommendation of the 
Committee, to eliminate the expense of administering the Order while 
the industry determined the effects of not having regulations in place. 
In 2013, at the request of the industry, the suspension was extended 
through March 1, 2017, to provide the industry with more time to 
consider changes and evaluate new developments in the industry that 
could affect the future need for the Order. The final rule that 
extended the suspension through March 1, 2017, stated that AMS would 
proceed with a notice to propose termination absent an industry 
recommendation to reactivate the Order. The results of the suspension 
and the industry's failure to petition USDA to have the Order 
reactivated by the end of the suspension period support the proposal to 
terminate the Order.
    Section 953.66 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. Furthermore, 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. An additional provision requires that Congress be notified not 
later than 60 days before the date an order would be terminated.
    The proposed termination of the Order would reduce costs to both 
handlers and producers (while marketing order requirements are applied 
to handlers, the costs of such requirements are often passed on to 
producers). Furthermore, following a period of over seven years of 
regulatory suspension, it has been determined that termination of the 
Order would not adversely impact the Virginia and North Carolina Irish 
potato industry.
    As an alternative to this proposed rule, AMS considered not 
terminating the Order. In that case, the industry could have 
recommended further refinements to the Order and the handling 
regulations to better meet current marketing needs. However, the 
industry did not petition to have the Order reactivated by the end of 
the suspension period. Therefore, this alternative was rejected, and 
AMS proposes 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 determination on this matter.
    In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 
chapter 35), the information collection requirements that would be 
terminated

[[Page 35153]]

were previously approved by OMB and assigned OMB No. 0581-0178, 
Vegetable and Specialty Crops. Termination of the reporting 
requirements under the Order would reduce the reporting and 
recordkeeping burden on Irish potato handlers in Southeastern states 
and should further reduce industry expenses.
    Because handlers would no longer be required to file forms with the 
Committee, this proposed rule would not impose any additional reporting 
or recordkeeping requirements on either small or large entities.
    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.
    Additionally, interested persons are invited to submit information 
on the regulatory and information collection impacts of this action on 
small businesses.
    A small business guide on complying with fruit, vegetable, and 
specialty crop marketing agreements and orders may be viewed at: 
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 proposal invites comments on the termination of Marketing 
Order No. 953, which regulates the handling of Irish potatoes grown in 
Southeastern states. All written comments received within the 60-day 
comment period will be considered before a final determination is made 
in this matter.
    Based on the foregoing, and pursuant to section 608c(16)(A) of the 
Act and Sec.  953.66 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 affairs of the Committee and 
would continue in that capacity until discharged by USDA. In addition, 
USDA would notify Congress 60 days in advance of termination pursuant 
to section 608c(16)(A) of the Act.

List of Subjects in 7 CFR Part 953

    Marketing agreements, Potatoes, Reporting and recordkeeping 
requirements.

PART 953--[REMOVED]

0
For the reasons set forth in the preamble, under the authority of 7 
U.S.C. 601-674, AMS proposes that 7 CFR part 953 be removed.

    Dated: July 19, 2018.
Bruce Summers,
Administrator, Agricultural Marketing Service.
[FR Doc. 2018-15890 Filed 7-24-18; 8:45 am]
 BILLING CODE 3410-02-P