Irish Potatoes Grown in Colorado; Assessment Rate

DEPARTMENT OF AGRICULTURE

7 CFR Part 948

[Docket No. FV96-948-2 FIR]

Irish Potatoes Grown in Colorado; 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 for the Colorado Potato

Administrative Committee, San Luis Valley Office (Area II) (Committee)

under Marketing Order No. 948 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

Colorado. Authorization to assess potato handlers enables the Committee

to incur expenses that are reasonable and necessary to administer the

program.

EFFECTIVE DATE: Effective on September 1, 1996.

FOR FURTHER INFORMATION CONTACT: Martha Sue Clark, Program Assistant,

Marketing Order Administration Branch, Fruit and Vegetable Division,

AMS, USDA, PO Box 96456, Room 2525-S, Washington, DC 20090-6456,

telephone 202-720-9918; FAX 202- 720-5698, or Dennis 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. Small businesses may request information on compliance

with this regulation by contacting: Jay Guerber, Marketing Order

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

96456, room 2525-S, Washington DC 20090-6456, telephone 202-720-2491;

FAX 202- 720-5698.

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,

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, Colorado

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 September 1, 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 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 285 producers of Colorado Area II potatoes

in the production area and approximately 118 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 Colorado Area II potato

producers and handlers may be classified as small entities.

The Colorado 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

Colorado Area II 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.

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 May 23, 1996, and unanimously recommended

1996-97 expenditures of $60,999 and an assessment rate of $0.0030 per

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

expenditures were $62,328. The assessment rate of $0.0030 is the same

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

Committee for the 1996-97 year include $34,624 for salaries for the

Executive Director, Administrator, and Assistant Administrator, and

$3,000 for utilities. Budgeted expenses for these items in 1995-96 were

$36,978 and $3,000, respectively.

The assessment rate recommended by the Committee was derived by

dividing anticipated expenses by expected shipments of Colorado area II

potatoes. Potato shipments for the year are estimated at 16,500,000

hundredweight which should provide $49,500 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

July 15, 1996, issue of the Federal Register (61 FR 36813). That

interim final rule added Sec. 948.216 to establish an assessment rate

for the Committee. That rule provided that interested persons could

file comments through August 14, 1996. No comments were received.

[[Page 50232]]

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 those 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.

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

September 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 948

Marketing agreements, Potatoes, Reporting and recordkeeping

requirements.

Note: This section will appear in the Code of Federal

Regulations.

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

amended as follows:

PART 948--IRISH POTATOES GROWN IN COLORADO

Accordingly, the interim final rule amending 7 CFR part 948 which

was published at 61 FR 36813 on July 15, 1996, is adopted as a final

rule without change.

Dated: September 19, 1996.

Robert C. Keeney,

Director, Fruit and Vegetable Division.

[FR Doc. 96-24503 Filed 9-24-96; 8:45 am]

BILLING CODE 3410-02-P