[Federal Register: July 21, 2003 (Volume 68, Number 139)]
[Proposed Rules]
[Page 43031-43033]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr21jy03-28]
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Proposed Rules
Federal Register
________________________________________________________________________
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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[[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: moab.docketclerk@usda.gov.
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: Jay.Guerber@usda.gov.
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