Irish Potatoes Grown in Certain Designated Counties in Idaho, and Malheur County, OR; Expenses and Assessment Rate

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 under Marketing Order No. 945 for

the 1995-96 fiscal period. That rule also increased the level of

authorized expenses for the 1993-94 fiscal period. Authorization of

this budget enables the Idaho-Eastern Oregon Potato Committee

(Committee) to incur expenses that are reasonable and necessary to

administer the program. Authorization of the increase in the level of

authorized expenses for the 1993-94 fiscal period is necessary because

the Committee exceeded its budget for that period. Funds to administer

this program are derived from assessments on handlers.

EFFECTIVE DATE: Section 945.248 is effective August 1, 1995, through

July 31, 1996. The amendment to Sec. 945.246 was effective August 1,

1993, through July 31, 1994.

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, Northwest Marketing Field Office, Fruit and

Vegetable Division, AMS, USDA, Green-Wyatt Federal Building, room 369,

1220 Southwest Third Avenue, Portland, OR 97205, telephone 503-326-

2724.

SUPPLEMENTARY INFORMATION: This rule is issued under Marketing

Agreement No. 98 and Order No. 945, both as amended (7 CFR part 945),

regulating the handling of Irish potatoes grown in designated counties

in Idaho, and Malheur County, Oregon. 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, Idaho-Eastern Oregon potatoes are subject to assessments. Funds

to administer the Idaho-Eastern Oregon 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 handled

during the 1995-96 fiscal period, which began August 1, 1995, and ends

July 31, 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 the 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 2,100 producers of Idaho-Eastern Oregon

potatoes under this 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

Idaho-Eastern Oregon potato producers and handlers may be classified as

small entities.

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

by the Idaho-Eastern Oregon Potato Committee, 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 Idaho-Eastern Oregon potatoes. They are familiar with the

Committee's needs and with the costs of 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 fresh Idaho-

Eastern Oregon 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.

The Committee met June 6, 1995, and unanimously recommended a 1995-

96 budget of $111,732, $11,853 more than the previous year. Budget

items for 1995-96 which have increased compared to those budgeted for

1994-95

[[Page 46018]]

(in parentheses) are: Salaries, $63,232 ($55,479), meetings and

miscellaneous, $2,500 ($2,000), Federal payroll taxes, $5,300 ($4,700),

and reserve/auto purchase, $9,000 ($6,000). All other items are

budgeted at last year's amounts.

The Committee also unanimously recommended an assessment rate of

$0.0026 per hundredweight, the same as each year for the past decade.

This rate, when applied to anticipated shipments of 34,000,000

hundredweight, will yield $88,400 in assessment income. This, along

with $23,332 from the Committee's authorized reserve, will be adequate

to cover budgeted expenses. Funds in the Committee's authorized reserve

at the beginning of the 1995-96 fiscal period, estimated at about

$80,000, will be within the maximum permitted by the order of one

fiscal period's expenses.

The 1993-94 budget was published in the Federal Register as an

interim final rule on July 16, 1993 (58 FR 38274) and finalized on

October 28, 1993 (58 FR 57957). That rule authorized Committee expenses

of $98,942. The Committee exceeded its authorized expenses by $713, for

total expenses of $99,655. Funds to cover this increase were taken from

the Committee's authorized reserve. The 1993-94 budget is amended to

cover this increase.

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

17, 1995 (60 FR 36339). That interim final rule added Sec. 945.248 to

authorize expenses and establish an assessment rate for the Committee.

That rule also amended Sec. 945.246 to increase the level of authorized

expenses for the 1993-94 fiscal period. That rule provided that

interested persons could file comments through August 16, 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 rule 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 recommendations 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 August 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.

List of Subjects in 7 CFR Part 956

Marketing agreements, Potatoes, Reporting and recordkeeping

requirements.

For the reasons set forth in the preamble, 7 CFR part 945 is

amended as follows:

PART 945--IRISH POTATOES GROWN IN CERTAIN DESIGNATED COUNTIES IN

IDAHO AND MALHEUR COUNTY, OREGON

Accordingly the interim final rule amending Sec. 945.246 and adding

Sec. 945.248, which was published at 60 FR 36339 on July 17, 1995, is

adopted as a final rule without change.

Dated: August 29, 1995.

Ron Cioffi,

Acting Deputy, Director, Fruit and Vegetable Division.

[FR Doc. 95-21936 Filed 9-1-95; 8:45 am]

BILLING CODE 3410-02-P