Oregon-California Potatoes; Assessment Rate

DEPARTMENT OF AGRICULTURE

7 CFR Part 947

[Docket No. FV96-947-1 FIR]

Oregon-California Potatoes; 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, with an addition, the provisions of an interim final rule

that established an assessment rate for the Oregon-California Potato

Committee (Committee) under Marketing Order No. 947 for the 1967-97 and

subsequent fiscal periods. The Committee is responsible for local

administration of the marketing order which regulates the handling of

Irish potatoes grown in Oregon-California. 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

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 Teresa L. Hutchinson, 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. Small

businesses may request information on compliance with this regulation

by contacting: Jay Guerber, Marketing Order Administration Branch,

Fruit and Vegetable Division, AMS, USDA, P.O. Box 96456, room 2523-S,

Washington, DC 20090-6456, telephone 202-720-2491, FAX 202-720-5698.

SUPPLEMENTARY INFORMATION: This rule is issued under Marketing

Agreement No. 114 and Order No. 947, both as amended (7 CFR part 947),

regulating the handling of Irish potatoes grown in Oregon-California,

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 12988, Civil

Justice Reform. Under the marketing order now in effect, Oregon-

California 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,

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1996, and continuing until amended, suspended, 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 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 (FRA), 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 550 producers of Oregon-California 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 Oregon-California potato

producers and handlers may be classified as small entities.

The Oregon-California 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 Oregon-California 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 March 28, 1996, and unanimously recommended

1996-97 expenditures of $61,200 and an assessment rate of $0.005 per

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

expenditures were $46,200. The assessment rate of $0.005 is $0.001 less

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

the Committee for the 1996-97 year include $30,000 for an agreement

with the Oregon Potato Commission to provide services to the Committee

and $8,100 for a contingency fund. Budgeted expenses for these items in

1995-96 were $24,000 and $100, respectively. The contingency fund was

increased as the Committee is considering a possible marketing research

and development project in conjunction with the Oregon Potato

Commission.

The assessment rate recommended by the Committee was derived by

dividing anticipated expenses by expected shipments of Oregon-

California potatoes. Potato shipments for the year are estimated at

7,400,000 hundredweight which should provide $37,000 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 31, 1996, issue of the Federal Register (61 FR 27247). That interim

final rule added a new subpart heading--Assessment Rates and

Sec. 947.247 to establish an assessment rate for the Committee. That

rule provided that interested persons could file comments through July

1, 1996. No comments were received.

This action will reduce the assessment obligation imposed on

handlers. 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 from 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 thee 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 adds a new subpart heading--Handling

Regulations to the Code of Federal Regulations immediately preceding

Sec. 947.340 Handling regulation.

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 began 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.

[[Page 43146]]

List of Subjects in 7 CFR Part 947

Marketing agreements, Potatoes, Reporting and recordkeeping

requirements.

Accordingly, the interim final rule amending 7 CFR part 947 which

was published at 61 FR 27247 on May 31, 1996, is adopted as a final

rule with the following change:

PART 947--IRISH POTATOES GROWN IN MODOC AND SISKIYOU COUNTIES,

CALIFORNIA, AND IN ALL COUNTIES IN OREGON EXCEPT MALHEUR COUNTY

1. The authority citation for 7 CFR part 947 continues to read as

follows:

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

PART 947--[AMENDED]

2. Part 947 is amended by adding a new subpart heading immediately

preceding Sec. 947.340 to read as follows:

Note: This subpart heading will appear in the Code of Federal

Regulations.

Subpart--Handling Regulations

Dated: August 8, 1996.

Robert C. Keeney,

Director, Fruit and Vegetable Division.

[FR Doc. 96-20662 Filed 8-20-96; 8:45 am]

BILLING CODE 3410-02-M