[Federal Register Volume 62, Number 96 (Monday, May 19, 1997)]
[Rules and Regulations]
[Pages 27169-27171]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-12999]



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 Rules and Regulations
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  Federal Register / Vol. 62, No. 96 / Monday, May 19, 1997 / Rules and 
Regulations  

[[Page 27169]]


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DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 947

[Docket No. FV97-947-1 IFR]


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: Interim final rule with request for comments.

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SUMMARY: This interim final rule establishes, 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 
decreases 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.

DATES: Effective on July 1, 1997. Comments received by June 18, 1997, 
will be considered prior to issuance of a final rule.

ADDRESSES: Interested persons are invited to submit written comments 
concerning this rule. Comments must be sent in triplicate to the Docket 
Clerk, Fruit and Vegetable Division, AMS, USDA, P.O. Box 96456, room 
2525-S, Washington, DC 20090-6456, FAX 202-720-5698. Comments should 
reference the docket number and the date and page number of this issue 
of the Federal Register and will be available for public inspection in 
the Office of the Docket Clerk during regular business hours.

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-
9918; 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 of Agriculture (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 
there from. 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 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

[[Page 27170]]

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.
    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 initial 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 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. Finally, interested persons are invited to submit information on 
the regulatory and informational impacts of this action on small 
businesses.
    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.
    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 upon good 
cause that it is impracticable, unnecessary, and contrary to the public 
interest to give preliminary notice prior to putting this rule into 
effect, because: (1) This action reduces the current assessment rate; 
(2) the 1997-98 fiscal period begins on July 1, 1997, and the marketing 
order requires that the rate of assessment for each fiscal period apply 
to all assessable

[[Page 27171]]

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) this interim final rule provides a 30-day 
comment period, and all comments timely received will be considered 
prior to finalization of this rule.

List of Subjects in 7 CFR Part 947

    Marketing agreements, Potatoes, Reporting and recordkeeping 
requirements.

    For the reasons set forth in the preamble, 7 CFR part 947 is 
amended as follows:

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.

    2. A new Sec. 947.114 is added to Subpart--Rules and Regulations to 
read as follows:


Sec. 947.114  Fiscal period.

    The fiscal period shall begin July 1 of each year and end June 30 
of the following year, both dates inclusive.


Sec. 947.247  [Amended]

    3. Section 947.247 is amended by removing the words ``July 1, 
1996,'' and adding in its place the words ``July 1, 1997,'' and by 
removing ``$0.005'' and adding in its place ``$0.004.''

    Dated: May 12, 1997.
Robert C. Keeney,
Director, Fruit and Vegetable Division.
[FR Doc. 97-12999 Filed 5-16-97; 8:45 am]
BILLING CODE 3410-02-P