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Federal Register / Vol. 86, No. 177 / Thursday, September 16, 2021 / Proposed Rules importance of quantifying both costs and benefits, reducing costs, harmonizing rules, and promoting flexibility. This action falls within a category of regulatory actions that the Office of Management and Budget OMB exempted from Executive Order 12866 review.
Executive Order 13175
This action has been reviewed in accordance with requirements of Executive Order 13175, Consultation and Coordination with Indian Tribal Governments. AMS has assessed the impact of this proposed rule on Indian tribes and determined that this rule would not have tribal implications that require consultation under Executive Order 13175. AMS hosts a quarterly teleconference with tribal leaders where matters of mutual interest regarding the marketing of agricultural products are discussed. Information about proposed changes to regulations will be shared during an upcoming quarterly call, and tribal leaders will be informed about proposed revisions to the regulation and the opportunity to submit comments.
AMS will work with the USDA Office of Tribal Relations to ensure meaningful consultation is provided as needed with regards to this proposed change to the Plan.
Executive Order 12988
This proposal has been reviewed under Executive Order 12988, Civil Justice Reform. It is not intended to have retroactive effect.
Pursuant to the Congressional Review Act 5 U.S.C. 801 et seq., the Office of Information and Regulatory Affairs designated this rule as not a major rule, as defined by 5 U.S.C. 8042.
The Act provides that administrative proceedings must be exhausted before parties may file suit in court. Under section 311 of the Act 7 U.S.C. 2620, a person subject to a plan may file a petition with USDA stating that such plan, any provision of such plan, or any
obligation imposed in connection with such plan, is not in accordance with law and request a modification of such plan or to be exempted therefrom. Such person is afforded the opportunity for a hearing on the petition. Thereafter, USDA will issue a ruling on the petition. The Act provides that the district court of the United States for any district in which the petitioner resides or conducts business shall have the jurisdiction to review a final ruling on the petition, if the petitioner files a complaint for that purpose not later than 20 days after date of the entry of USDAs final ruling.
Background This proposed rule invites comments on proposed amendments to approved sources of potato production data used to determine the number of Board seats, to which each State is entitled.
Additionally, amendments would expand payment methods used to remit assessments to include electronic submission and update the table of HTS
codes and assessment rates for imported potatoes and potato products. Finally, proposed amendments would insert new language to avoid future amendments to the Plan in the event that HTS numbers subject to assessment reflected in the table are changed and such changes are merely replacements of previous numbers.
Data Sources for Board Membership Recommendation The Plan became effective on March 9, 1972. Section 1207.320b of the Plan provides the formula used to determine how many Board member seats each State is entitled. Under the Plan, every State is eligible to have a Board representative and additional members based on potato production in that State. For each five million hundredweight of such production, or major fraction thereof, produced within
each State, such State shall be entitled to one additional member.
The Plan states that total annual potato production must come from the latest Crop Production Annual Summary Report issued by the Crop Reporting Board, U.S. Department of Agriculture. See 1207.320b. The Crop Production Annual Summary Report is currently issued by NASS.
In March 2020, USDAs NASS and AMS communicated to the Board that NASS would no longer collect potato production data for the following ten states: Alaska, Illinois, Kansas, Maryland, Missouri, Montana, New Jersey, New York, North Carolina, and Virginia. In June 2020, NASS estimated the cost of collecting data at $80,000 per year. The Board considered this estimate and concluded that the cost to collect this information would exceed the value of assessments collected from the aforementioned ten States.
Subsequently, the Board decided to temporarily freeze the number of seats for those ten States at their 2019
quantities so that the Board could move forward with assigning Board member seats for 2020 nominations.
At a July Board 2020 meeting, Board staff presented to the Boards Administrative Committee a summary of constraints related to the collection of production data. During a January 2021
meeting, Board staff further discussed the need to update the Plan with the Administrative Committee and made the recommendation to amend the Plan during a subsequent meeting on March 9, 2021.
The Board recommended to use production data from audited assessment reports in place of NASS
data for states not included in NASS
reports.
As indicated in Table 1, this amendment would allow the Board to use audited assessment data in instances where NASS data is unavailable.

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

State
NASS 2016
cwt
NASS 2017
cwt
NASS 2018
cwt
Board 2018
cwt
Alabama AL
Illinois IL
Kansas KS
Maryland MD
Missouri MO
Montana MT
New Jersey NJ
New York NY
North Carolina NC
Virginia VA

2,812
1,260
2,410
3,685
3,552
2,992
1,189

3,321
1,558
913
2,423
3,774
600
4,032
3,473
1,193

2,850
1,419
510
1,665
3,830
530
4,118
2,318
1,034

70
394
483
389
1,012
149
125
899
1,702
450

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20162018
NASS avg.
1,000 cwt
20162018
NASS &
Board Avg.
1,000 cwt
2,994
1,412
474
2,166
3,763
377
3,901
2,928
1,139

2,176
1,100
651
1,948
2,536
363
2,828
2,722
944

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16SEP1

2020 NASS
number of members cwt/5,000

2020 NASS
& Board number of members cwt/5,000

1
1 1
1 1
1 1
1 1
1

1
1 1
1 1
1 1
1 1
1