Irish Potatoes Grown in Colorado; Expenses and Assessment Rate

DEPARTMENT OF AGRICULTURE

7 CFR Part 948

[Docket No. FV95-948-1FIR]

Irish Potatoes Grown in Colorado; Expenses and Assessment Rate

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 an interim final rule

that authorized expenses and established an assessment rate that

generated funds to pay those expenses. Authorization of this budget

enables the Colorado Potato Administrative Committee, Northern Colorado

Office (Area III) (Committee) to incur expenses that are reasonable and

necessary to administer the program. Funds to administer this program

are derived from assessments on handlers.

EFFECTIVE DATE: July 1, 1995, through June 30, 1996.

FOR FURTHER INFORMATION CONTACT: Martha Sue Clark, Marketing Order

Administration Branch, Fruit and Vegetable Division, AMS, USDA, PO Box

96456, room 2523-S, Washington, DC 20090-6456, telephone 202-720-9918,

or Dennis L. West, 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.

[[Page 39106]]

SUPPLEMENTARY INFORMATION: This rule is issued 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. The

marketing agreement and order 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 is issuing this rule in conformance with Executive

Order 12866.

This rule has been reviewed under Executive Order 12778, Civil

Justice Reform. Under the provisions of the marketing order now in

effect, Colorado potatoes are subject to assessments. Funds to

administer the Colorado potato marketing order are derived from such

assessments. It is intended that the assessment rate as issued herein

will be applicable to all assessable potatoes during the 1995-96 fiscal

period, which began July 1, 1995, and ends June 30, 1996. This final

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 request a modification of the order or to be exempted

therefrom. Such 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. 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

Colorado Area III potato producers and handlers may be classified as

small entities.

The budget of expenses for the 1995-96 fiscal period was prepared

by the Colorado Potato Administrative Committee, Northern Colorado

Office (Area III), the agency responsible for local administration of

the marketing order, and submitted to the Department for approval. The

members of the Committee are producers and handlers of Colorado Area

III potatoes. They are familiar with the Committee's needs and with the

costs for goods and services in their local area and are thus in a

position to formulate an appropriate budget. The budget was formulated

and discussed in a public meeting. Thus, all directly affected persons

have had an opportunity to participate and provide input.

The assessment rate recommended by the Committee was derived by

dividing anticipated expenses by expected shipments of Colorado Area

III potatoes. Because that rate will be applied to actual shipments, it

must be established at a rate that will provide sufficient income to

pay the Committee's 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 Committee met on April 13, 1995, and unanimously recommended a

1995-96 budget of $27,362.50, $3,037.50 more than the previous year.

Budget items for the 1995-96 Federal portion of the administrative

budget which have increased compared to those budgeted for 1994-95 (in

parentheses) are: Audit, $450 ($400), medical insurance, $685 ($620),

office equipment, $4,500 ($2,000), payroll tax, $902.50 ($880), Federal

meetings, $500 ($400), and $300 for other salary for which no funding

was recommended last year.

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 1,200,500 hundredweight,

will yield $24,010 in assessment income. This, along with $1,500 in

interest income, $1,200 in rent from the sublease of office space to

the State inspection service, and $652.50 from the Committee's

authorized reserve will be adequate to cover budgeted expenses. Funds

in the reserve at the end of the 1995-96 fiscal period, estimated at

$35,195, will be within the maximum permitted by the order of two

fiscal periods' expenses.

An interim final rule was published in the Federal Register on May

31, 1995 (60 FR 28318). That interim final rule added Sec. 948.213 to

authorize expenses and establish an assessment rate for the Committee.

That rule provided that interested persons could file comments through

June 30, 1995. No comments were received.

While this rule will impose some additional costs on handlers, the

costs are in the form of uniform assessments on all 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 order. 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.

After consideration of all relevant material presented, including

the information and recommendation submitted by the Committee and other

available information, it is hereby found that this rule, as

hereinafter set forth, 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 rule until 30 days after publication in the

Federal Register (5 U.S.C. 553) because the Committee needs to have

sufficient funds to pay its expenses which are incurred on a continuous

basis. The 1995-96 fiscal period began on July 1, 1995. The marketing

order requires that the rate of assessment for the fiscal period apply

to all assessable potatoes handled during the fiscal period. In

addition, handlers are aware of this rule which was recommended by the

Committee at a public meeting and published in the Federal Register as

an interim final rule.

[[Page 39107]]

List of Subjects in 7 CFR Part 948

Marketing agreements, Potatoes, Reporting and recordkeeping

requirements.

For the reasons set forth in the preamble, 7 CFR part 948 is

amended as follows:

Note: This section will not appear in the Code of Federal

Regulations.

PART 948--IRISH POTATOES GROWN IN COLORADO

Accordingly, the interim final rule adding Sec. 948.213 which was

published at 60 FR 28318, May 31, 1995, is adopted as a final rule

without change.

Dated: July 26, 1995.

Sharon Bomer Lauritsen,

Deputy Director, Fruit and Vegetable Division.

[FR Doc. 95-18786 Filed 7-31-95; 8:45 am]

BILLING CODE 3410-02-P