Termination of the Marketing Order for Irish Potatoes Grown in Washington State

CourtAgricultural Marketing Service
Citation86 FR 49930
Publication Date07 Sep 2021
Record Number2021-19238
This section of the FEDERAL REGISTER
contains notices to the public of the proposed
issuance of rules and regulations. The
purpose of these notices is to give interested
persons an opportunity to participate in the
rule making prior to the adoption of the final
rules.
Proposed Rules Federal Register
49930
Vol. 86, No. 170
Tuesday, September 7, 2021
DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Part 946
[Doc. No. AMS–SC–20–0095; SC21–946–1
PR]
Termination of the Marketing Order for
Irish Potatoes Grown in Washington
State
AGENCY
: Agricultural Marketing Service,
USDA.
ACTION
: Proposed rule.
SUMMARY
: This rule invites comments
on the proposed termination of the
Federal marketing order regulating the
handling of Irish potatoes grown in
Washington, and the rules and
regulations issued thereunder. The
marketing order is administered locally
by the State of Washington Potato
Committee (Committee), which
unanimously recommended its
termination at a meeting held on June
11, 2020. This recommendation is based
on the Committee’s determination that
the marketing order is no longer an
effective marketing tool for the
Washington potato industry and that
termination would best serve the
current needs of the industry by
eliminating the cost associated with its
operation.
DATES
: Comments must be received by
November 8, 2021.
ADDRESSES
: Interested persons are
invited to submit written comments
concerning this proposal. Comments
must be submitted to the Docket Clerk
electronically by Email:
MarketingOrderComment@usda.gov or
internet: https://www.regulations.gov.
All comments should reference the
document number and the date and
page number of this issue of the Federal
Register and can be viewed at: https://
www.regulations.gov. All comments
submitted in response to this proposal
will be included in the record and will
be made available to the public. Please
be advised that the identity of the
individuals or entities submitting
comments will be made public on the
internet at the address provided above.
FOR FURTHER INFORMATION CONTACT
:
Gregory A. Breasher, Marketing
Specialist, or Gary Olson, Regional
Director, Northwest Marketing Field
Office, Marketing Order and Agreement
Division, Specialty Crops Program,
AMS, USDA; Telephone: (503) 326–
2054 or Email: Gregory.Breasher@
usda.gov or GaryD.Olson@usda.gov.
Small businesses may request
information on complying with this
regulation by contacting Richard Lower,
Marketing Order and Agreement
Division, Specialty Crops Program,
AMS, USDA, 1400 Independence
Avenue SW, STOP 0237, Washington,
DC 20250–0237; Telephone: (202) 720–
2491, Fax: (202) 720–8938, or Email:
Richard.Lower@usda.gov.
SUPPLEMENTARY INFORMATION
: This
action, pursuant to 5 U.S.C. 553,
proposes the termination of regulations
issued to carry out a marketing order as
defined in 7 CFR 900.2(j). This proposed
rule is issued under Marketing Order
No. 946, as amended (7 CFR part 946),
regulating the handling of potatoes
grown in Washington. Part 946 (referred
to as the ‘‘Order’’) is effective under the
Agricultural Marketing Agreement Act
of 1937, as amended (7 U.S.C. 601–674),
hereinafter referred to as the ‘‘Act.’’ The
Committee locally administers the
Order and is comprised of producers
and handlers operating within the
production area.
The Department of Agriculture
(USDA) is issuing this proposed rule in
conformance with Executive Orders
12866 and 13563. Executive Orders
12866 and 13563 direct agencies to
assess all costs and benefits of available
regulatory alternatives and, if regulation
is necessary, to select regulatory
approaches that maximize net benefits
(including potential economic,
environmental, public health and safety
effects, distributive impacts and equity).
Executive Order 13563 emphasizes the
importance of quantifying both costs
and benefits, reducing costs,
harmonizing rules, and promoting
flexibility. This action falls within a
category of regulatory actions that the
Office of Management and Budget
(OMB) exempted from Executive Order
12866 review.
In addition, this proposed rule has
been reviewed under Executive Order
13175—Consultation and Coordination
with Indian Tribal Governments, which
requires agencies to consider whether
their rulemaking actions would have
tribal implications. The Agricultural
Marketing Service (AMS) has
determined this proposed rule is
unlikely to have substantial direct
effects on one or more Indian tribes, on
the relationship between the Federal
Government and Indian tribes, or on the
distribution of power and
responsibilities between the Federal
Government and Indian tribes.
This proposed rule has been reviewed
under Executive Order 12988, Civil
Justice Reform. This proposed rule is
not intended to have retroactive effect.
The Act provides that administrative
proceedings must be exhausted before
parties may file suit in court. Under
section 608c(15)(A) of the Act, any
handler subject to a marketing order
may file with USDA a petition stating
that the marketing order, any provision
of the marketing order, or any obligation
imposed in connection with the
marketing order is not in accordance
with law and request a modification of
the marketing order or to be exempted
therefrom. A handler is afforded the
opportunity for a hearing on the
petition. After the hearing, USDA would
rule on the petition. The Act provides
that the district court of the United
States in any district in which the
handler is an inhabitant, or has his or
her principal place of business, has
jurisdiction to review USDA’s ruling on
the petition, provided an action is filed
not later than 20 days after the date of
the entry of the ruling.
This rule proposes to terminate the
Order and rules and regulations issued
thereunder. The Order contains
authority for the regulation of Irish
potatoes grown in Washington. At a
virtual meeting held on June 11, 2020,
the Committee unanimously
recommended termination of the Order.
Section 946.63(b) of the Order
provides that USDA terminate or
suspend any or all provisions of the
Order when a finding is made that the
Order does not tend to effectuate the
declared policy of the Act. In addition,
section 608c(16)(A) of the Act provides
that USDA terminate or suspend the
operation of any order whenever the
order or any provision thereof obstructs
or does not tend to effectuate the
declared policy of the Act. Additionally,
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Federal Register / Vol. 86, No. 170 / Tuesday, September 7, 2021 / Proposed Rules
USDA is required to notify Congress no
later than 60 days before the date on
which the Order would be terminated.
Marketing Order No. 946 has been in
effect since 1949 and has provided the
potato industry in Washington with
authority for grade, size, quality,
maturity, pack, and container
regulations, as well as authority for
mandatory product inspection. The
Committee has met regularly to evaluate
the current status of the Washington
potato industry and to consider
recommendations for modification,
suspension, or termination of the
Order’s regulatory requirements, which
have been issued on a continuing basis.
Committee meetings are open to the
public and interested persons may
express their views at these meetings.
The USDA reviews Committee
recommendations, including
information provided by the Committee
and from other available sources, and
determines whether modification,
suspension, or termination of the
Order’s regulatory requirements would
tend to effectuate the declared policy of
the Act.
Handling regulations requiring
potatoes to be inspected and meet
mandatory minimum grade, size,
maturity, quality, pack, and container
requirements were in effect for all types
of potatoes until 2010. USDA
temporarily suspended handling
regulations for Russet type potatoes for
one-year, effective July 24, 2010 (75 FR
43042), and subsequently extended that
suspension indefinitely effective July 1,
2011 (76 FR 27850). Further, USDA
temporarily suspended handling
regulations for yellow fleshed and white
type potatoes effective October 24, 2013
(78 FR 62967), also extending that
suspension indefinitely effective July 1,
2014 (79 FR 26109). Lastly, USDA
indefinitely suspended handling
regulations for all red types of potatoes
effective February 15, 2014 (79 FR
8253). The cumulative effect of these
suspensions was the total suspension of
handling regulations for all fresh
potatoes under the Order after July 1,
2014. All suspensions listed above were
conducted upon the recommendation of
the Committee.
Following these regulatory
suspensions, the Committee continued
to levy assessments in order to maintain
its functionality. The Committee felt
that it should continue to fund its full
operational capability in order to collect
handler reports, track industry data, and
preserve the authority to regulate
handling, should that become relevant
to the industry again sometime in the
future.
The Committee met on January 22 and
June 11, 2020, to discuss the current
marketing environment of the
Washington potato industry and the
status of the Order. The Committee
determined that the suspension of the
Order’s handling regulations have not
negatively impacted the industry and
that there is no longer a need for the
Order. In addition, the Committee
concluded that data collection and
reporting functions of the Order are
duplicative of the services provided to
the industry by the Washington State
Potato Commission and that termination
of the Order would not materially
impact the collection and dissemination
of essential industry data.
At the meeting held via conference
call on June 11, 2020, the Committee
unanimously voted in favor of
recommending that USDA to terminate
the Order. In addition, the Committee
recommended the Order’s reporting and
assessment requirements—the only
regulatory activities still in effect—be
suspended while USDA processes
termination of the Order. The
recommendation to suspend all
remaining Order activities is a separate
regulatory action from this rule. A
proposed rule to suspend the Order’s
reporting and assessment requirements
was published in the Federal Register
October 13, 2020 (85 FR 64415).
Initial Regulatory Flexibility Analysis
Pursuant to requirements set forth in
the Regulatory Flexibility Act (RFA) (5
U.S.C. 601–612), AMS has considered
the economic impact of this proposed
rule on small entities. Accordingly,
AMS has prepared this initial regulatory
flexibility analysis.
The purpose of the RFA is to fit
regulatory actions to the scale of
businesses subject to such actions in
order that small businesses will not be
unduly or disproportionately burdened.
Marketing orders issued pursuant to the
Act, and rules issued thereunder, are
unique in that they are brought about
through group action of essentially
small entities acting on their own
behalf.
There are approximately 26 handlers
of Washington potatoes and
approximately 250 potato producers in
the production area subject to regulation
by the Order.
Small agricultural service firms are
defined by the Small Business
Administration (SBA) as those having
annual receipts of less than $30,000,000,
and small agricultural producers are
defined as those having annual receipts
of less than $1,000,000 (13 CFR
121.201).
According to USDA Market News, the
average shipping point price for fresh
Washington potatoes during the 2019
shipping season was approximately
$15.79 per hundredweight. The
Committee reported that 2019–2020
marketing year fresh potato shipments
were 9,687,170 hundredweight. Using
the average price and shipment
information, the number of handlers,
and assuming a normal distribution,
most handlers had average annual
receipts of less than $30,000,000 ($15.79
times 9,687,170 hundredweight equals
$152,960,414, divided by 26 handlers
equals $5,883,093 per handler). Thus,
AMS concludes that the majority of
handlers would meet the SBA definition
of a small business.
USDA National Agricultural Statistics
Service reported an average producer
price of $8.20 per hundredweight for the
2019 crop. Given the number of
Washington potato producers and
assuming a normal distribution, average
annual producer revenue is below
$1,000,000 ($8.20 times 9,687,170
hundredweight equals $79,434,794,
divided by 250 producers equals
$317,739 per producer). Therefore, most
producers of fresh Washington potatoes
may be classified as small businesses
under the SBA definition.
This rule proposes to terminate the
Federal marketing order for Irish
potatoes grown in Washington, and
rules and regulations issued thereunder.
The Order contains authority to regulate
the handling of Irish potatoes grown in
Washington. The Committee determined
that regulating the handling of potatoes
under the Order is no longer an effective
marketing tool for the Washington
potato industry. Evidence from the past
6 years of operating with suspended
handling regulations showed that
potatoes can be shipped from the
production area in the absence of the
Order’s minimum requirements without
a negative economic impact on the
industry.
Secondly, the Committee determined
that the data collection and reporting
function of the Order is duplicative of
the services provided to the industry by
the Washington State Potato
Commission. The termination of the
Order would not materially impact the
collection and dissemination of
essential industry data to Washington
State potato growers.
As such, the Committee concluded
that the cost associated with the
administration of the Order outweigh
benefits of continuing the Order. This
conclusion is based on the Committee’s
analysis of the 6-year period of
regulatory suspension and findings that
termination is not expected to
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Federal Register / Vol. 86, No. 170 / Tuesday, September 7, 2021 / Proposed Rules
negatively impact the marketing of fresh
Washington potatoes because this action
reduces costs to both handlers and
producers. Therefore, in an action taken
on June 11, 2020, the Committee
unanimously recommended that USDA
terminate the Order.
Section 946.63(b) of the Order
provides that USDA to terminate or
suspend any or all provisions of the
Order when a finding is made that the
Order does not tend to effectuate the
declared policy of the Act. Furthermore,
§ 608c(16)(A) of the Act provides that
USDA shall terminate or suspend the
operation of any order whenever the
order or provision thereof obstructs or
does not tend to effectuate the declared
policy of the Act. An additional
provision requires that Congress be
notified not later than 60 days before the
date on which order would be
terminated.
The Committee considered
alternatives to this rule, including
taking no action (which would keep the
Order active but with the handling
regulations suspended) and suspending
all of the Order’s remaining regulatory
provisions but not terminating the
Order. The Committee determined that
neither option was a viable long-term
solution, and subsequently,
recommended that the Order be
terminated.
This proposed rule is intended to
solicit input and other available
information from interested parties on
whether the Order should be
terminated. USDA will evaluate all
available information prior to making a
final action on this matter.
In accordance with the Paperwork
Reduction Act of 1995 (44 U.S.C.
Chapter 35), the Order’s information
collection requirements have been
previously approved by OMB and
assigned OMB No. 0581–0178 Vegetable
and Specialty Crops. Termination of the
Order and reporting requirements
prescribed therein, would reduce the
reporting burden on Washington potato
handlers by an estimated 9.7 hours per
handler. Handlers would no longer be
required to file forms with the
Committee, which is expected to reduce
industry expenses. This rule would not
impose any additional reporting or
recordkeeping requirements on either
small or large potato handlers. As with
all Federal marketing order programs,
reports and forms are periodically
reviewed to reduce information
requirements and duplication by
industry and public sector agencies. In
addition, USDA has not identified any
relevant Federal rules that duplicate,
overlap or conflict with this rule.
AMS is committed to complying with
the E-Government Act, to promote the
use of the internet and other
information technologies to provide
increased opportunities for citizen
access to Government information and
services, and for other purposes.
Committee meetings are widely
publicized throughout the Washington
potato industry, and all interested
persons are invited to attend the
meetings and participate in Committee
deliberations on all issues. Like all
Committee meetings, the January 22 and
June 11, 2020, meetings were public
meetings, and all entities, both large and
small, were able to express their views
on these issues. Interested persons are
invited to submit comments on this
proposed rule, including regulatory and
information collection impacts of this
proposed action on small businesses.
A small business guide on complying
with fruit, vegetable, and specialty crop
marketing agreements and orders may
be viewed at: https://
www.ams.usda.gov/rules-regulations/
moa/small-businesses. Any questions
about the compliance guide should be
sent to Richard Lower at the previously
mentioned address in the
FOR FURTHER
INFORMATION CONTACT
section.
This rule invites comments on the
proposed termination of Marketing
Order 946, which regulates the handling
of Irish potatoes grown in Washington.
A 60-day comment period is provided to
allow interested persons to respond to
this proposal. All written comments
timely received will be considered
before a final action is made on this
matter.
Based on the foregoing and pursuant
to § 608c(16)(A) of the Act and §946.63
of the Order, USDA is considering
termination of the Order. If USDA
decides to terminate the Order, trustees
would be appointed to conclude and
liquidate the Committee affairs and
would continue in that capacity until
discharged by USDA. In addition, USDA
would notify Congress 60 days in
advance of termination pursuant to
§ 608c(16)(A) of the Act.
List of Subjects in 7 CFR Part 946
Marketing agreements, Potatoes,
Reporting and recordkeeping
requirements.
For reasons set forth in the preamble,
part 946 is proposed to be removed.
PART 946—IRISH POTATOES GROWN
IN WASHINGTON—[REMOVED]
1. The authority citation for part 946
continues to read as follows:
Authority: 7 U.S.C. 601–674.
2. Accordingly, part 946 is removed.
Erin Morris,
Administrator, Agricultural Marketing
Service.
[FR Doc. 2021–19238 Filed 9–3–21; 8:45 am]
BILLING CODE 3410–02–P
DEPARTMENT OF ENERGY
10 CFR Part 707
[AU–RM–19–WSAP]
RIN 1992–AA60
Workplace Substance Abuse Programs
at DOE Sites
AGENCY
: Office of Environment, Health,
Safety and Security; Department of
Energy.
ACTION
: Notice of proposed rulemaking.
SUMMARY
: The U.S. Department of
Energy (DOE or the Department) is
proposing to amend its current
regulations on contractor workplace
substance abuse programs at DOE sites
to be consistent with the Secretary of
Energy’s memorandum, dated
September 14, 2007, entitled Decisions
regarding drug testing for Department of
Energy positions that require access
authorizations (Security Clearances),
and because there is a continued need
for these changes. The proposed
amendments would decrease the
random drug testing rate for individuals
in certain testing designated positions,
and clarify that all positions requiring
access authorizations (security
clearances) are included in the testing
designated positions. In addition, the
proposed amendments would clarify
requirements for DOE approval prior to
allowing persons in certain testing
designated positions to return to work
after removal for illegal drug use.
DATES
: The comment period for this
proposed rule will end on October 7,
2021.
ADDRESSES
: You may submit comments,
identified by Docket No. AU–RM–19–
WSAP and/or Regulation Identification
Number (RIN) 1992–AA60, through the
Federal e-Rulemaking Portal: https://
www.regulations.gov. Follow the
instructions in the portal for submitting
comments.
Although DOE has routinely accepted
public comment submissions through a
variety of mechanisms, including postal
mail and hand delivery/courier, the
Department has found it necessary to
make temporary modifications to the
comment submission process in light of
the ongoing Covid–19 pandemic. DOE is
currently accepting only electronic
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