[Federal Register: November 17, 2006 (Volume 71, Number 222)]
[Rules and Regulations]
[Page 66835-66837]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr17no06-6]
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DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Part 948
[Docket No. FV06-948-1 FIR]
Irish Potatoes Grown in Colorado; Suspension of Continuing
Assessment Rate
AGENCY: Agricultural Marketing Service, USDA.
ACTION: Final rule.
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SUMMARY: The Department of Agriculture (USDA) is adopting, as a final
rule, without change, an interim final rule which suspended the
continuing assessment rate established for the Area No. 3 Colorado
Potato Administrative Committee (Committee) for the 2006-2007 and
subsequent fiscal periods. The Committee, which locally administers the
marketing order regulating the handling of potatoes grown in Northern
Colorado, made this recommendation for the purpose of lowering the
monetary reserve to a level consistent with program requirements. The
fiscal period begins July 1 and ends June 30. The assessment rate will
remain suspended until an appropriate rate is reinstated.
DATES: Effective Date: December 18, 2006.
FOR FURTHER INFORMATION CONTACT: Teresa L. Hutchinson or Gary D. Olson,
Northwest Marketing Field Office, Marketing Order Administration
Branch, Fruit and Vegetable Programs, AMS, USDA; telephone: (503) 326-
2724; Fax: (503) 326-7440 or E-mail:
Teresa.Hutchinson@usda.gov or GaryD.Olson@usda.gov.
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 Marketing Order No. 948, both as amended (7 CFR
part 948), regulating the handling of potatoes
[[Page 66836]]
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.''
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 order now in effect, Colorado potato handlers
are subject to assessments. Funds to administer the order are derived
from such assessments. For the 2005-2006 fiscal period, an assessment
rate of $0.02 per hundredweight of potatoes handled was approved by
USDA to continue in effect indefinitely unless modified, suspended, or
terminated. This action suspends the assessment rate for the 2006-2007
fiscal period, which began July 1, 2006, and will continue in effect
until reinstated. 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 continues in effect the action that suspended Sec.
948.215 of the order's rules and regulations. Section 948.215
established an assessment rate of $0.02 per hundredweight of Colorado
potatoes handled for 2005-2006 and subsequent fiscal periods.
Continuous assessment rates remain in effect from fiscal period to
fiscal period unless modified, suspended, or terminated by USDA. This
rule continues in effect the action that suspended the $0.02 assessment
rate for 2006-2007 and will remain in effect during subsequent fiscal
periods until reinstated by USDA upon recommendation of the Committee.
The 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. In addition, the
order authorizes the use of monetary reserve funds to cover program
expenses (Sec. 948.78). 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.
The Committee met on May 11, 2006, and unanimously recommended
2006-2007 expenditures of $20,268 and suspension of the continuing
assessment rate. In comparison, last year's budgeted expenditures were
$20,368. The suspension of the assessment rate will allow the Committee
to draw from the reserve to cover 2006-2007 expenditures. This action
should effectively lower the reserve to within the program limit of
approximately two fiscal periods' operational expenses (Sec. 948.78).
The major expenditures recommended by the Committee for the 2006-
2007 fiscal period include $8,610 for salary, $3,000 for office rent,
$1,750 for office expenses, and $1,000 for utilities. These budgeted
expenses are the same as those approved for the 2005-2006 fiscal
period.
As of July 1, 2005, the Committee had $49,237 in its reserve fund.
With the 2006-2007 budget set at $20,268, the current maximum reserve
permitted by the order is approximately $40,536 (approximately two
fiscal periods' expenses (Sec. 948.78)). To meet 2006-2007 expenses
the Committee plans on drawing approximately $15,814 from its reserve,
and may additionally earn approximately $4,454 from interest and other
income. Thus, with a suspended assessment rate, the Committee's reserve
at the end of the 2006-2007 fiscal period could be reduced to
approximately $33,423. This amount would be consistent with the order's
requirements.
The assessment rate suspension will continue in effect indefinitely
until reinstated by USDA upon recommendation and information submitted
by the Committee or other available information.
Although this suspension of the continuing 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 reinstatement 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 will
evaluate Committee recommendations and other available information such
as the level of the budget and the monetary reserve to determine
whether assessment rate reinstatement is needed and at what level.
Further rulemaking will be undertaken as necessary. The Committee's
2006-2007 budget and those for subsequent fiscal periods will be
reviewed and, as appropriate, approved by USDA.
Final 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 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.
Based on Committee data, there are 8 producers and 8 handlers in
the production area subject to regulation under the order. Small
agricultural producers are defined by the Small Business Administration
(13 CFR 121.201) as those having annual receipts of less than $750,000,
and small agricultural service firms are defined as those whose annual
receipts are less than $6,500,000.
Based on the total number of Colorado Area No. 3 potato producers
(8), 2004 fresh potato production of 557,826 hundredweight (Committee
records), and the average 2004 producer price of $6.30 per
hundredweight as reported by National Agricultural Statistics Service
(NASS), average annual revenue per producer from the sale of potatoes
can be estimated at approximately $439,288. In addition, based on
Committee records and an estimated average 2004 f.o.b. price of $8.40
per hundredweight ($6.30 per hundredweight NASS producer price plus
Committee estimated packing
[[Page 66837]]
and handling costs of $2.10 per hundredweight), all of the Colorado
Area No. 3 potato handlers ship under $6,500,000 worth of potatoes. In
view of the foregoing, it can be concluded that the majority of the
Colorado Area No. 3 potato producers and handlers may be classified as
small entities.
This rule continues in effect the action that suspended the
continuing assessment rate established for the Committee and collected
from handlers for the 2006-2007 and subsequent fiscal periods. Funds
from the Committee's authorized reserve, along with interest and other
income, will be adequate to cover budgeted expenses.
As of July 1, 2005, the Committee had $49,237 in its reserve fund.
With the 2006-2007 budget set at $20,268, the current maximum reserve
permitted by the order is approximately $40,536 (approximately two
fiscal periods' expenses (Sec. 948.78)). To meet 2006-2007 expenses
the Committee plans on drawing approximately $15,814 from its reserve,
and may additionally earn approximately $4,454 from interest and other
income. Thus, with a suspended assessment rate, the Committee's reserve
at the end of the 2006-2007 fiscal period could be reduced to
approximately $33,423. This amount would be consistent with the order's
requirements.
The major expenditures recommended by the Committee for the 2006-
2007 fiscal period include $8,610 for salary, $3,000 for office rent,
$1,750 for office expenses, and $1,000 for utilities. These budgeted
expenses are the same as those approved for the 2005-2006 fiscal
period.
For the 2005-2006 fiscal period, the Committee recommended a
decrease in the assessment rate. However, the decreased assessment rate
did not reduce the Committee's reserve as anticipated. Therefore, the
Committee recommended suspending the continuing assessment rate to
enable an increased draw on the reserve, thus maintaining the level of
the reserve within program limits of approximately two fiscal periods'
operational expenses.
The Committee discussed alternatives to this rule, including
alternative expenditure levels, but determined that the recommended
expenses were reasonable and necessary to adequately cover program
operations. Other assessment rates were considered, but not recommended
because they would not reduce the reserve as quickly as suspension of
the continuing assessment rate.
This action continues in effect the action that suspended the
assessment obligation imposed on handlers. Assessments are applied
uniformly on all handlers, and some of the costs may be passed on to
producers. However, suspending the assessment rate reduces the burden
on handlers, and may reduce the burden on producers. In addition, the
Committee's meeting was widely publicized throughout the Colorado
potato industry and all interested persons were invited to attend and
participate in the Committee's deliberations on all issues. Like all
Committee meetings, the May 11, 2006, meeting was a public meeting and
all entities, both large and small, were able to express views on the
issues.
This action imposes no additional reporting or recordkeeping
requirements on either small or large Colorado 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.
AMS is committed to complying with the E-Government Act, to promote
the use of the Internet and other information technologies to provide
increased opportunities for citizen access to Government information
and services, and for other purposes.
USDA has not identified any relevant Federal rules that duplicate,
overlap, or conflict with this rule.
An interim final rule concerning this action was published in the
Federal Register on July 18, 2006 (71 FR 40639). Copies of that rule
were also mailed or sent via facsimile to all Area No. 3 Colorado
potato handlers. Finally, the interim final rule was made available
through the Internet by USDA and the Office of the Federal Register. A
60-day comment period was provided for interested persons to respond to
the interim final rule. The comment period ended on September 18, 2006,
and no comments were received.
A small business guide on complying with fruit, vegetable, and
specialty crop marketing agreements and orders may be viewed at: http://www.ama.usda.gov/fv/moab.html.
Any questions about the compliance
guide should be sent to Jay Guerber at the previously mentioned address
in the FOR FURTHER INFORMATION CONTACT section.
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.
List of Subjects in 7 CFR Part 948
Marketing agreements, Potatoes, Reporting and recordkeeping
requirements.
PART 948--IRISH POTATOES GROWN IN COLORADO
0
Accordingly, the interim final rule amending 7 CFR part 948 which was
published at 71 FR 40639 on July 18, 2006, is adopted as a final rule
without change.
Dated: November 14, 2006.
Lloyd C. Day,
Administrator, Agricultural Marketing Service.
[FR Doc. E6-19464 Filed 11-16-06; 8:45 am]
BILLING CODE 3410-02-P