Irish Potatoes Grown in Modoc and Siskiyou Counties, California, and in All Counties in Oregon, Except Malheur County; Define Fiscal Period and Decrease Assessment Rate

DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 947

[Docket No. FV97-947-1 FIR]

Irish Potatoes Grown in Modoc and Siskiyou Counties, California,

and in All Counties in Oregon, Except Malheur County; Define Fiscal

Period and Decrease 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

which established, in the regulatory text, the fiscal period of the

Oregon-California Potato Committee (Committee) to begin July 1 of each

year and end June 30 of the following year, and decreased the

assessment rate established under Marketing Order No. 947 for the 1997-

98 and subsequent fiscal periods. The Committee is responsible for

local administration of the marketing order which regulates the

handling of Irish potatoes grown in Modoc and Siskiyou Counties,

California, and in all counties in Oregon, except Malheur County.

Authorization to assess potato handlers enables the Committee to incur

expenses that are reasonable and necessary to administer the program.

The 1997-98 fiscal period covers the period July 1 through June 30. The

assessment rate will continue in effect indefinitely unless modified,

suspended, or terminated.

EFFECTIVE DATE: August 15, 1997.

FOR FURTHER INFORMATION CONTACT: Martha Sue Clark, Marketing Order

Administration Branch, Fruit and Vegetable Division, AMS, USDA, P.O.

Box 96456, Room 2525-S, Washington, DC 20090-6456; Telephone: (202)

720-2491; FAX: (202) 720-5698, or Teresa L. Hutchinson, 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

2525-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 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 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, 1997, 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.

This rule establishes, in regulatory text, the fiscal period of the

Committee to begin July 1 of each year and end June 30 of the following

year, and decreases the assessment rate established for the Committee

for the 1997-98 and subsequent fiscal periods from $0.005 to $0.004 per

hundredweight.

The Oregon-California potato marketing order provides authority for

the Committee, with the approval of the Department, to establish a

fiscal period. The Committee has operated under a fiscal period of July

1 through June 30

[[Page 43458]]

for many years. This rule adds to the order's rules and regulations a

definition of the fiscal period of the Committee to be the 12 month

period beginning July 1 and ending June 30 of the following year, both

dates inclusive.

The Oregon-California potato marketing order also 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.

For the 1996-97 and subsequent fiscal periods, the Committee

recommended, and the Department approved, an assessment rate that would

continue in effect from fiscal period to fiscal period indefinitely

unless modified, suspended, or terminated by the Secretary upon

recommendation and information submitted by the Committee or other

information available to the Secretary.

The Committee met on March 5, 1997, and unanimously recommended

1997-98 expenditures of $53,600 and an assessment rate of $0.004 per

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

expenditures were $61,200. The assessment rate of $0.004 is $0.001 less

than the rate currently in effect. As the Committee's reserve exceeds

the amount authorized in the order of one fiscal period's operational

expenses, the Committee voted to lower its assessment rate and use more

of the reserve to cover its expenses. The Committee discussed

alternatives to this rule, including alternative expenditure levels,

but recommended that the major expenditures for the 1997-98 fiscal

period should include $30,000 for an agreement with the Oregon Potato

Commission to provide miscellaneous services to the Committee, $4,000

for Committee meeting expenses, $3,000 for staff travel, and $3,000 for

investigation and compliance. Budgeted expenses for these items in

1996-97 were $30,000, $4,200, $3,000, and $3,000, respectively.

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

8,500,000 hundredweight, which should provide $34,000 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.

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

1997-98 budget and those for subsequent fiscal periods will be reviewed

and, as appropriate, approved by the Department.

An interim final rule regarding this action was published in the

May 19, 1997, issue of the Federal Register (62 FR 27169). That rule

provided a 30-day comment period. No comments were received.

Pursuant to requirements set forth in the Regulatory Flexibility

Act (RFA), the Agricultural Marketing Service (AMS) has considered the

economic impact of this action on small entities. Accordingly, AMS has

prepared this final regulatory flexibility analysis.

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 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.

This rule establishes, in the regulatory text, the fiscal period of

the Committee to begin July 1 of each year and end June 30 of the

following year, and decreases the assessment rate established for the

Committee and collected from handlers for the 1997-98 and subsequent

fiscal periods from $0.005 to $0.004 per hundredweight. The Committee

unanimously recommended 1997-98 expenditures of $53,600 and an

assessment rate of $0.004 per hundredweight of potatoes. The assessment

rate of $0.004 is $0.001 less than the rate currently in effect. As the

Committee's reserve exceeds the amount authorized in the order of one

fiscal period's operational expenses, the Committee voted to lower its

assessment rate and use more of the reserve to cover its expenses.

The Committee discussed alternatives to this rule, including

alternative expenditure levels, but recommended that the major

expenditures for the 1997-98 fiscal period should include $30,000 for

an agreement with the Oregon Potato Commission to provide miscellaneous

services to the Committee, $4,000 for Committee meeting expenses,

$3,000 for staff travel, and $3,000 for investigation and compliance.

The Committee also discussed the alternative of not decreasing the

assessment rate. However, it decided against this course of action

because continuation of the higher rate would not allow it to bring its

operating reserve in line with the maximum amount authorized under the

order. The reduced assessment rate will require the Committee to use

more of its reserve for authorized expenses, and help bring the reserve

within authorized levels.

Potato shipments for the year are estimated at 8,500,000

hundredweight, which should provide $34,000 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.

Recent price information indicates that the grower price for the

1997-98 marketing season will range between $4.00 and $7.00 per

hundredweight of

[[Page 43459]]

potatoes. Therefore, the estimated assessment revenue for the 1997-98

fiscal period as a percentage of total grower revenue will range

between .100 and .057 percent.

This action will reduce the assessment obligation imposed on

handlers. While this rule will impose some additional costs on

handlers, the costs are minimal and 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. In addition, the Committee's

meeting was widely publicized throughout the Oregon-California potato

industry and all interested persons were invited to attend the meeting

and participate in Committee deliberations on all issues. Like all

Committee meetings, the March 5, 1997, meeting was a public meeting and

all entities, both large and small, were able to express views on this

issue.

This action will not impose any additional reporting or

recordkeeping requirements on either small or large Oregon-California

potato handlers. As with all Federal marketing order programs, reports

and forms are periodically reviewed to reduce information requirements

and duplication by industry and public sector agencies.

The Department has not identified any relevant Federal rules that

duplicate, overlap, or conflict with this rule.

In the interim final rule published in the Federal Register (62 FR

27169) on May 19, 1997, interested persons were invited to submit

information on the regulatory and informational impacts of this action

on small businesses. A copy of the interim final rule was also made

available on the Internet by the U.S. Government Printing Office. The

comment period ended June 18, 1997, and no comments were received

concerning the impacts of this action on small businesses.

After consideration of all relevant matter 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) This

action reduces the current assessment rate; (2) the 1997-98 fiscal

period began on July 1, 1997, 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 a 30-day comment period; no comments were received.

List of Subjects in 7 CFR Part 947

Marketing agreements, Potatoes, Reporting and recordkeeping

requirements.

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

CALIFORNIA, AND IN ALL COUNTIES IN OREGON, EXCEPT MALHEUR COUNTY

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

was published at 62 FR 27169 on May 19, 1997, is adopted as a final

rule without change.

Dated: August 8, 1997.

Robert C. Keeney,

Director, Fruit and Vegetable Division.

[FR Doc. 97-21526 Filed 8-13-97; 8:45 am]

BILLING CODE 3410-02-P