[Federal Register Volume 68, Number 139 (Monday, July 21, 2003)]
[Proposed Rules]
[Pages 43031-43033]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-18447]


 ========================================================================
 Proposed Rules
                                                 Federal Register
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 This section of the FEDERAL REGISTER contains notices to the public of 
 the proposed issuance of rules and regulations. The purpose of these 
 notices is to give interested persons an opportunity to participate in 
 the rule making prior to the adoption of the final rules.
 
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 

  Federal Register / Vol. 68, No. 139 / Monday, July 21, 2003 / 
Proposed Rules  

[[Page 43031]]



DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 948

[Docket No. FV03-948-3 PR]


Irish Potatoes Grown in Colorado; Increased Assessment Rate

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Proposed rule.

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SUMMARY: This rule would increase the assessment rate established for 
the Area No. 2 Colorado Potato Administrative Committee (Committee) for 
the 2003-2004 and subsequent fiscal periods from $0.0035 to $0.0051 per 
hundredweight of potatoes handled. The Committee locally administers 
the marketing order which regulates the handling of potatoes grown in 
Colorado. Authorization to assess potato handlers enables the Committee 
to incur expenses that are reasonable and necessary to administer the 
program. The fiscal period begins September 1 and ends August 31. The 
assessment rate would remain in effect indefinitely unless modified, 
suspended, or terminated.

DATES: Comments must be received by August 20, 2003.

ADDRESSES: Interested persons are invited to submit written comments 
concerning this rule. Comments must be sent to the Docket Clerk, 
Marketing Order Administration Branch, Fruit and Vegetable Programs, 
AMS, USDA, 1400 Independence Avenue SW, STOP 0237, Washington, DC 
20250-0237; Fax: (202) 720-8938, or E-mail: [email protected]. 
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, or can be viewed at: http://www.ams.usda.gov/fv/moab.html.

FOR FURTHER INFORMATION CONTACT: Teresa Hutchinson, Marketing 
Specialist, Northwest Marketing Field Office, Marketing Order 
Administration Branch, Fruit and Vegetable Programs, AMS, USDA, 1220 SW 
Third Avenue, suite 385, Portland, Oregon 97204; telephone: (503) 326-
2724, Fax: (503) 326-7440; or George Kelhart, Technical Advisor, 
Marketing Order Administration Branch, Fruit and Vegetable Programs, 
AMS, USDA, 1400 Independence Avenue SW, STOP 0237, Washington, DC 
20250-0237; telephone: (202) 720-2491, Fax: (202) 720-8938.
    Small businesses may request information on complying with this 
regulation by contacting Jay Guerber, Marketing Order Administration 
Branch, Fruit and Vegetable Programs, AMS, USDA, 1400 Independence 
Avenue SW, STOP 0237, Washington, DC 20250-0237; telephone: (202) 720-
2491, Fax: (202) 720-8938, or E-mail: [email protected].

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 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 of Agriculture (USDA) 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 proposed herein would be applicable to all 
assessable potatoes beginning on September 1, 2003, and continue 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 USDA 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 USDA 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 USDA'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 would increase the assessment rate established for the 
Committee for the 2003-2004 and subsequent fiscal periods from $0.0035 
to $0.0051 per hundredweight of potatoes.
    The Colorado potato marketing order provides authority for the 
Committee, with the approval of USDA, 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 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 2001-2002 and subsequent fiscal periods, the Committee 
recommended, and USDA approved, an assessment rate that would continue 
in effect from fiscal period to fiscal period unless modified, 
suspended, or terminated by USDA upon recommendation and information 
submitted by the Committee or other information available to USDA.
    The Committee met on May 15, 2003, and recommended 2003-2004 
expenditures of $85,695 and an assessment rate of $0.0051 per 
hundredweight of potatoes. In comparison, last year's budgeted 
expenditures were $74,643. The assessment rate of $0.0051 is $0.0016 
higher than the rate currently in effect. The higher assessment rate is 
necessary to offset an increase in salaries and operation expenses.
    The major expenditures recommended by the Committee for the 2003-
2004 fiscal period include $54,520

[[Page 43032]]

for salaries, $9,925 for office expenses, and $7,300 for building 
maintenance. Budgeted expenses for these items in 2002-2003 were 
$41,703, $9,700, and $7,650, respectively.
    The assessment rate recommended by the Committee was derived by 
dividing anticipated expenses by expected shipments of Colorado 
potatoes. Colorado potato shipments for the year are estimated at 
17,000,000 hundredweight which should provide $86,700 in assessment 
income. Income derived from handler assessments should be adequate to 
cover budgeted expenses. Funds in the reserve (estimated at $14,025 as 
of August 31, 2003) would be kept within the maximum permitted by the 
order (approximately two fiscal periods' expenses; Sec.  948.78).
    The proposed assessment rate would continue in effect indefinitely 
unless modified, suspended, or terminated by USDA upon recommendation 
and information submitted by the Committee or other available 
information.
    Although this assessment rate would be in effect for an indefinite 
period, the Committee would 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 USDA. 
Committee meetings are open to the public and interested persons may 
express their views at these meetings. USDA would evaluate Committee 
recommendations and other available information to determine whether 
modification of the assessment rate is needed. Further rulemaking would 
be undertaken as necessary. The Committee's 2003-2004 budget and those 
for subsequent fiscal periods would be reviewed and, as appropriate, 
approved by USDA.

Initial Regulatory Flexibility Analysis

    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. 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 90 handlers of Colorado Area No. 2 potatoes 
subject to regulation under the order and approximately 230 producers 
of potatoes in the regulated production area. Small agricultural firms 
are defined by the Small Business Administration (13 CFR 121.201) as 
those having annual receipts of less than $5,000,000, and small 
agricultural producers are defined as those whose annual receipts are 
less than $750,000.
    During the 2001-2002 fiscal period, 14,805,719 hundredweight of 
Colorado Area No. 2 potatoes were inspected under the order and sold 
into the fresh market. Based on an estimated average f.o.b. price of 
$11.75 per hundredweight, the Committee estimates that 79, or about 88 
percent of the Area No. 2 handlers, had annual receipts of less than 
$5,000,000.
    In addition, based on information provided by the National 
Agricultural Statistics Service, the average producer price for 
Colorado fall potatoes for the 2001-2002 fiscal period was $9.65 per 
hundredweight. The average annual producer revenue for the 230 Colorado 
Area No. 2 potato producers is therefore calculated to be approximately 
$621,196. In view of the foregoing, the majority of the Colorado Area 
No. 2 potato producers and handlers may be classified as small 
entities.
    This rule would increase the assessment rate established for the 
Committee and collected from handlers for the 2003-2004 and subsequent 
fiscal periods from $0.0035 to $0.0051 per hundredweight of potatoes. 
The Committee recommended 2003-2004 expenditures of $85,695 and an 
assessment rate of $0.0051 per hundredweight. The proposed assessment 
rate is $0.0016 higher than the current rate. The quantity of 
assessable Area No. 2 Colorado potatoes for the 2003-2004 fiscal period 
is estimated at 17,000,000 hundredweight. Thus, the $0.0051 rate should 
provide $86,700 in assessment income and be adequate to meet this 
fiscal period's expenses.
    The major expenditures recommended by the Committee for the 2003-
2004 fiscal period include $54,520 for salaries, $9,925 for office 
expenses, and $7,300 for building maintenance. Budgeted expenses for 
these items in 2002-2003 were $41,703, $9,700, and $7,650, 
respectively.
    The higher assessment rate is necessary to offset an increase in 
salaries and operation expenses.
    The Committee discussed alternatives to this rule, including 
alternative expenditure levels. Lower assessment rates were considered, 
but not recommended because they would not generate the income 
necessary to administer the program with adequate reserves.
    The assessment rate of $0.0051 per hundredweight of assessable 
potatoes was determined by dividing the total recommended budget by the 
quantity of assessable potatoes, estimated at 17,000,000 hundredweight 
for the 2003-2004 fiscal period. This is approximately $1,005 above the 
anticipated expenses, which the Committee determined to be acceptable.
    A review of historical information and preliminary information 
pertaining to the upcoming fiscal period indicates that the producer 
price for the 2003-2004 fiscal period could range between $2.95 and 
$9.65 per hundredweight of Colorado fall potatoes. Therefore, the 
estimated assessment revenue for the 2003-2004 fiscal period as a 
percentage of total producer revenue could range between 0.05 and 0.17 
percent.
    This action would increase the assessment obligation imposed on 
handlers. While assessments impose some additional costs on handlers, 
the costs are minimal and uniform on all handlers. Some of the 
additional costs may be passed on to producers. However, these costs 
would be offset by the benefits derived by the operation of the 
marketing order. In addition, the Committee's meeting was widely 
publicized throughout the Area No. 2 Colorado 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 May 15, 2003, 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 proposed rule would impose no additional reporting or 
recordkeeping requirements on either small or large Colorado Area No. 2 
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.
    USDA has not identified any relevant Federal rules that duplicate, 
overlap, or conflict with this rule.
    A small business guide on complying with fruit, vegetable, and 
specialty crop marketing agreements and orders may be viewed at: http://www.ams.usda.gov/fv/moab.html. Any questions about the

[[Page 43033]]

compliance guide should be sent to Jay Guerber at the previously 
mentioned address in the FOR FURTHER INFORMATION CONTACT section.
    A 30-day comment period is provided to allow interested persons to 
respond to this proposed rule. Thirty days is deemed appropriate 
because: (1) The 2003-2004 fiscal period begins on September 1, 2003, 
and the marketing order requires that the rate of assessment for each 
fiscal period apply to all assessable potatoes handled during such 
fiscal period; (2) the Committee needs to have sufficient funds to pay 
for expenses which are incurred on a continuous basis; and (3) handlers 
are aware of this action which was recommended by the Committee at a 
public meeting and is similar to other assessment rate actions issued 
in past years.

List of Subjects in 7 CFR Part 948

    Marketing agreements, Potatoes, Reporting and recordkeeping 
requirements.

    For the reasons set forth in the preamble, 7 CFR part 948 is 
proposed to be amended as follows:

PART 948--IRISH POTATOES GROWN IN COLORADO

    1. The authority citation for 7 CFR part 948 continues to read as 
follows:

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

    2. Section 948.216 is revised to read as follows:


Sec.  948.216  Assessment rate.

    On and after September 1, 2003, an assessment rate of $0.0051 per 
hundredweight is established for Colorado Area No. 2 potatoes.

    Dated: July 16, 2003.
A.J. Yates,
Administrator, Agricultural Marketing Service.
[FR Doc. 03-18447 Filed 7-18-03; 8:45 am]
BILLING CODE 3410-02-P