[Federal Register Volume 61, Number 187 (Wednesday, September 25, 1996)]
[Rules and Regulations]
[Pages 50231-50232]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-24503]



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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.

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    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