Irish Potatoes Grown in Washington; Assessment Rate

DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 946

[Docket No. FV96-946-2FIR]

Irish Potatoes Grown in Washington; 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 established an assessment rate of the State of Washington Potato

Committee (Committee) under Marketing Order 946 for the 1996-97 and

subsequent fiscal periods. The Committee is responsible for local

administration of the marketing order which regulates the handling of

Irish potatoes grown in Washington. Authorization to assess potato

handlers enables the Committee to incur expenses that are reasonable

and necessary to administer the program.

EFFECTIVE DATE: Effective on July 1, 1996.

FOR FURTHER INFORMATION CONTACT:

Martha Sue Clark, Program Assistant, Marketing Order Administration

[[Page 35110]]

Branch, Fruit and Vegetable Division, AMS, USDA, P.O. Box 96456, room

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

5698, or Daniel L. West, Marketing Specialist, 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, FAX 503-326-7440.

SUPPLEMENTARY INFORMATION: This rule is issued under Marketing

Agreement No. 113 and Order No. 946, both as amended (7 CFR part 946)

regulating the handling of Irish potatoes grown in Washington,

hereinafter referred to as the ``order.'' 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 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 now in effect, Washington

potato handlers are subject to assessments. Funds to administer the

order are derived from such assessments. It is intended that the

assessment rate as issued herein will be applicable to all assessable

potatoes beginning July 1, 1996, and continuing until amended, or

terminated. 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 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 to review the

Secretary's ruling on the petition, provided an action 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 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 450 producers of Washington potatoes in the

production area and approximately 40 handlers subject to regulation

under the marketing order. 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 Washington potato producers and handlers

may be classified as small entities.

The Washington potato marketing order provides authority for the

Committee, with the approval of the Department, to formulate an annual

budget of expenses and collect assessments from handlers to administer

the program. The members of the Committee are producers and handlers of

Washington 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 and assessment rate.

The assessment rate is formulated and discussed in a public meeting.

Thus, all directly affected persons have an opportunity to participate

and provide input.

The Committee met on February 15, 1996, and unanimously recommended

1996-97 expenditures of $42,500 and an assessment rate of $0.003 per

hundredweight of potatoes. In comparison, last year's budgeted

expenditures were $42,300. The assessment rate of $0.003 is the same as

last year's established rate. Major expenditures recommended by the

Committee for the 1996-97 year include $17,400 for an agreement with

the Washington State Potato Commission to provide miscellaneous

services to the Committee and $6,000 for compliance audits, the same as

the budgeted amounts for these items in 1995-96.

The assessment rate recommended by the committee was derived by

dividing anticipated expenses by expected shipments of Washington

potatoes. Potato shipments for the year are estimated at 9,000,000

hundredweight which should provide $27,000 in assessment income. Income

derived from handler assessments, along with funds from the Committee's

authorized reserve, will be adequate to cover budgeted expenses. Funds

in the reserve will be kept within the maximum permitted by the order.

An interim final rule regarding this action was published in the

May 6, 1996, issue of the Federal Register (61 FR 20119). That interim

final rule added Sec. 946.248 to establish an assessment rate for the

Committee. That rule provided that interested persons could file

comments through June 5, 1996. 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 AMS has determined that this rule will

not have a significant economic impact on a substantial number of small

entities.

The assessment rate established in this rule will continue in

effect indefinitely unless modified, suspended, or terminated by the

Secretary upon recommendation and information submitted by the

Committee or other available information.

Although this assessment rate is effective for an indefinite

period, the Committee will continue to meet prior to or during each

fiscal period to recommend a budget of expenses and consider

recommendations for modification of the assessment rate. The dates and

times of Committee meetings are available from the Committee or the

Department. Committee meetings are open to the public and interested

persons may express their views at these meetings. The Department will

evaluate Committee recommendations and other available information to

determine whether modification of the assessment rate is needed.

Further rulemaking will be undertaken as necessary. The Committee's

1996-97 budget and those for subsequent fiscal periods will be reviewed

and, as appropriate, approved by the Department.

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.

This final rule also corrects an error in the interim final rule

published May 6, 1996, (61 FR 20119). The note

[[Page 35111]]

appearing before the amendatory instruction 2 incorrectly states that

Sec. 946.248 will not appear in the Code of Federal Regulations.

Pursuant to 5 U.S.C. 553, it is also found and determined that good

cause exists for not postponing the effective date of this rule until

30 days after publication in the Federal Register because: (1) The

Committee needs to have sufficient funds to pay its expenses which are

incurred on a continuous basis; (2) the 1996-97 fiscal period begins on

July 1, 1996, and the marketing order requires that the rate of

assessment for each fiscal period apply to all assessable potatoes

handled during such fiscal period; (3) handlers are aware of this

action which was unanimously recommended by the Committee at a public

meeting and is similar to other assessment rate actions issued in past

years; and (4) an interim final rule was published on this action and

provided for a 30-day comment period, and no comments were received.

List of Subjects in 7 CFR Part 946

Marketing agreements, Potatoes, Reporting and recordkeeping

requirements.

PART 946--IRISH POTATOES GROWN IN WASHINGTON

Accordingly, the interim final rule amending 7 CFR part 946 which

was published at 61 FR 20119 on May 6, 1996, is adopted with the

following correction to the note immediately following amendatory

instruction 2. The note should read:

Note: This section will appear in the annual Code of Federal

Regulations.

Dated: June 26, 1996.

Robert C. Keeney,

Director, Fruit and Vegetable Division.

[FR Doc. 96-16852 Filed 7-3-96; 8:45 am]

BILLING CODE 3410-02-M