Expenses and Assessment Rates for Specified Marketing Orders (Colorado Potatoes and Southeastern Potatoes)

DEPARTMENT OF AGRICULTURE

7 CFR Parts 948 and 953

[Docket Nos. FV94-948-1FIR, FV94-953-1FIR]

Expenses and Assessment Rates for Specified Marketing Orders

(Colorado Potatoes and Southeastern Potatoes)

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Final rule.

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SUMMARY: The Department of Agriculture (Department) is adopting as a

final rule, without change, the provisions of two interim final rules

that authorized expenditures and established assessment rates under

Marketing Orders 948 and 953 for the 1994-95 fiscal period.

Authorization of these budgets enables the Colorado Potato

Administrative Committee, Northern Colorado Office (Area III) and the

Southeastern Potato Committee (Committees) to incur expenses that are

reasonable and necessary to administer the programs. Funds to

administer these programs are derived from assessments on handlers.

EFFECTIVE DATE: June 1, 1994, through May 31, 1995, for Sec. 953.251

and July 1, 1994, through June 30, 1995, for Sec. 948.211.

FOR FURTHER INFORMATION CONTACT: Martha Sue Clark, Marketing Order

Administration Branch, Fruit and Vegetable Division, AMS, USDA, P.O.

Box 96456, room 2523-S, Washington, DC 20090-6456, telephone 202-720-

9918; or Dennis L. West, (M.O. 948), Northwest Marketing Field Office,

Fruit and Vegetable Division, AMS, USDA, Green-Wyatt Federal Building,

room 369, 1220 Southwest Third Avenue, Portland, OR 97204, telephone

503-326-2724.

SUPPLEMENTARY INFORMATION: This rule is effective under Marketing

Agreement No. 97 and Order No. 948, both as amended (7 CFR part 948),

regulating the handling of Irish potatoes grown in Colorado; and

Marketing Agreement No. 104 and Order No. 953, both as amended (7 CFR

part 953), regulating the handling of Irish potatoes grown in

Southeastern States (Virginia and North Carolina). The marketing

agreements and orders are effective under the Agricultural Marketing

Agreement Act of 1937, as amended (7 U.S.C. 601-674), hereinafter

referred to as the Act.

The Department of Agriculture (Department) is issuing this rule in

conformance with Executive Order 12866.

This rule has been reviewed under Executive Order 12778, Civil

Justice Reform. Under the marketing order provisions now in effect,

Irish potatoes grown in Colorado and Virginia and North Carolina are

subject to assessments. It is intended that the assessment rates as

issued herein will be applicable to all assessable Irish potatoes

handled during the 1994-95 fiscal period, which began June 1, 1994, and

ends May 31, 1995, for Southeastern potatoes and began July 1, 1994,

and ends June 30, 1995, for Colorado potatoes. This rule will not

preempt any State or local laws, regulations, or policies, unless they

present an irreconcilable conflict with this rule.

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.

Pursuant to requirements set forth in the Regulatory Flexibility

Act (RFA), the Administrator of the Agricultural Marketing Service

(AMS), has considered the economic impact of this rule on small

entities.

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, and the rules issued thereunder, are unique in

that they are brought about through group action of essentially small

entities acting on their own behalf. Thus, both statutes have small

entity orientation and compatibility.

There are approximately 85 producers of Colorado Area III potatoes

under the marketing order and approximately 15 handlers. Also, there

are approximately 150 producers of Southeastern potatoes under the

marketing order and approximately 60 handlers. Small agricultural

producers have been defined by the Small Business Administration (13

CFR 121.601) as those having annual receipts of less than $500,000, and

small agricultural service firms are defined as those whose annual

receipts are less than $5,000,000. The majority of the producers and

handlers covered under these orders may be classified as small

entities.

The budgets of expenses for the 1994-95 fiscal period were prepared

by the Committees, the agencies responsible for local administration of

their respective orders, and submitted to the Department for approval.

The members of these Committees are producers and handlers of Colorado

Area III and Virginia and North Carolina potatoes. They are familiar

with the Committees' needs and with the costs for goods and services in

their local areas and are thus in a position to formulate appropriate

budgets. The budgets were formulated and discussed in public meetings.

Thus, all directly affected persons have had an opportunity to

participate and provide input into these processes.

The recommended assessment rates were derived by dividing

anticipated Committee expenses by expected respective shipments of

Colorado Area III and Virginia and North Carolina potatoes. Because

these rates will be applied to actual shipments of potatoes, the

assessment rates must be established at levels that will provide

sufficient income to pay the Committees' expenses.

The Colorado Potato Administrative Committee, Northern Colorado

Office (Area III) met on April 14, 1994, and unanimously recommended a

1994-95 budget of $24,325, $7,474 more than the previous year.

Increases in the Federal portion of the administrative budget include

$200 for Committee meetings, $450 for Committee mileage, $50 for

insurance and bond, $2,860 for the manager's salary, $620 for medical

insurance, $1,750 for office equipment, $500 for office supplies, $219

for payroll taxes, $200 for telephone, $250 for miscellaneous, $125 for

manager's expense, and $250 for Federal meetings.

The major expense item is $11,500 for the manager's salary. The

actual salary will be $10,781.50, based on nine months full-time work

and three months at three-quarter time. An additional $718.50 was

budgeted to have available and will only be spent if the workload

necessitates full-time work.

The Committee also unanimously recommended an assessment rate of

$0.02 per hundredweight, the same as last season. This rate, when

applied to anticipated potato shipments of 1,476,750 hundredweight,

will yield $29,535 in assessment income, which is adequate to cover

budgeted expenses. Funds in the reserve at the beginning of the 1994-95

fiscal period, estimated at $31,113, will be within the maximum

permitted by the order of two fiscal periods' expenses.

In Colorado, both a State and a Federal marketing order operate

simultaneously. The State order authorizes promotion, including paid

advertising, which the Federal order does not. All expenses in this

category are financed under the State order. The jointly operated

programs consume about equal administrative time and the two orders

continue to split administrative costs equally.

The Southeastern Potato Committee met April 20, 1994, and

unanimously recommended a 1994-95 budget of $11,000, the same as last

year. Major expense items include $6,800 for Committee staff salaries

and $900 for travel expenses.

The Committee also recommended an assessment rate of $0.0075 per

hundredweight, $0.0025 less than last season's rate. When the Committee

met, planting for the 1994-95 crop season had not been completed.

However, the manager estimated shipments would generate about $7,000 in

assessment income. This, along with funds from the Committee's $15,000

reserve, will be adequate to cover the expenses incurred. Funds

remaining at the end of the 1994-95 fiscal period should be about the

maximum permitted by the order of approximately one fiscal period's

expenses.

Interim final rules were published in the Federal Register on May

26, 1994, for 7 CFR part 948 (59 FR 27223) and 7 CFR part 953 (59 FR

27222). Those rules added Sec. 948.211 and Sec. 953.251 which

authorized expenses, and established assessment rates for the

Committees. Those rules provided that interested persons could file

comments through June 27, 1994. No comments were received.

While this action will impose some additional costs on handlers,

the costs are in the form of uniform assessments on handlers. Some of

the additional costs may be passed on to producers. However, these

costs will be offset by the benefits derived by the operation of the

marketing orders. Therefore, the Administrator of the AMS has

determined that this action will not have a significant economic impact

on a substantial number of small entities.

It is found that the specified expenses for the marketing orders

covered in this rulemaking are reasonable and likely to be incurred and

that such expenses and the specified assessment rates to cover such

expenses will tend to effectuate the declared policy of the Act.

It is further found that good cause exists for not postponing the

effective date of this action until 30 days after publication in the

Federal Register (5 U.S.C. 553) because the Committees need to have

sufficient funds to pay their expenses which are incurred on a

continuous basis. The 1994-95 fiscal periods for the programs began on

June 1, 1994, for Southeastern potatoes and July 1, 1994, for Colorado

Area III potatoes. The marketing orders require that the rates of

assessment for the fiscal periods apply to all assessable potatoes

handled during the fiscal periods. In addition, handlers are aware of

these actions which were recommended by the Committees at public

meetings and published in the Federal Register as interim final rules.

List of Subjects in 7 CFR Parts 948 and 953

Marketing agreements, Potatoes, Reporting and recordkeeping

requirements.

For the reasons set forth in the preamble, 7 CFR parts 948 and 953

are amended as follows:

1. The authority citation for 7 CFR parts 948 and 953 continues to

read as follows:

Authority: 7 U.S.C. 601-674.

PART 948--IRISH POTATOES GROWN IN COLORADO

Accordingly, the interim rule adding Sec. 948.211 which was

published at 59 FR 27223 on May 26, 1994, is adopted as a final rule

without change.

PART 953--IRISH POTATOES GROWN IN SOUTHEASTERN STATES

Accordingly, the interim rule adding Sec. 953.251 which was

published at 59 FR 27222 on May 26, 1994, is adopted as a final rule

without change.

Dated: July 21, 1994

Terry C. Long,

Acting Deputy Director, Fruit and Vegetable Division.

[FR Doc. 94-18210 Filed 7-26-94; 8:45 am]

BILLING CODE 3410-02-P