[Federal Register: October 16, 2003 (Volume 68, Number 200)]
[Rules and Regulations]
[Page 59524-59527]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr16oc03-2]
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DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Part 945
[Docket No. FV03-945-1 FR]
Irish Potatoes Grown in Certain Designated Counties in Idaho, and
Malheur County, Oregon; Increased Assessment Rate
AGENCY: Agricultural Marketing Service, USDA.
ACTION: Final rule.
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SUMMARY: This rule increases the assessment rate established for the
Idaho-Eastern Oregon Potato Committee (Committee) for the 2003-04 and
subsequent fiscal periods from $0.0026 to $0.0045 per hundredweight of
potatoes handled. The Committee locally administers the marketing order
which regulates the handling of Irish potatoes grown in certain
designated counties in Idaho, and Malheur County, Oregon. Authorization
to assess potato handlers enables the Committee to incur expenses that
are reasonable and appropriate to administer the program. The fiscal
period began August 1 and ends July 31. The increased assessment rate
will remain in effect indefinitely unless modified, suspended, or
terminated.
EFFECTIVE DATE: October 17, 2003.
FOR FURTHER INFORMATION CONTACT: Barry Broadbent, Northwest Marketing
Field Office, Marketing Order Administration Branch, Fruit and
Vegetable Programs, AMS, USDA, 1220 SW Third Avenue, Suite 385,
Portland, Oregon 97204-2807; Telephone: (503) 326-2724, Fax: (503) 326-7440 or E-mail: Barry.Broadbent@usda.gov; 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. 98 and Marketing Order No. 945, both as amended (7 CFR
part 945), regulating the handling of Irish potatoes grown in certain
designated counties in Idaho, and Malheur County, Oregon, 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, Idaho-Eastern
Oregon potato handlers are subject to assessments. Funds to administer
the order are derived from such assessments. It is intended that the
assessment rate as
[[Page 59525]]
issued herein will be applicable to all assessable potatoes beginning
on August 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 increases the assessment rate established for the
Committee for the 2003-04 and subsequent fiscal periods from $0.0026 to
$0.0045 per hundredweight of potatoes handled.
Section 945.40 of the order provides authority for the Committee,
with the approval of the Secretary, to incur reasonable expenses for
its maintenance and functioning. Section 945.41 requires the Committee
to formulate an annual budget estimating its income and expenditures
for the upcoming fiscal year and to present such budget to the
Secretary for approval. Section 945.42(a) authorizes the Committee to
assess handlers for their pro rata share of such expenses and Sec.
945.42(b) provides that the rate of assessment be set by the Secretary
based on the recommendation of the Committee. The members of the
Committee are producers and handlers of potatoes grown in Idaho and
Eastern Oregon. They are familiar with the Committee's needs and with
the costs for goods and services in their local area and are therefore
in a position to formulate an appropriate budget and assessment rate.
The assessment rate was discussed in a public meeting before the
Committee members voted to recommend an increase. 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 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 June 16, 2003, and unanimously recommended
2003-04 expenditures of $149,417 and an assessment rate of $0.0026 per
hundredweight of potatoes handled, the same rate currently in effect.
The Committee estimated the 2003-04 potato shipments at 36,500,000
hundredweight, which would generate $94,900 in assessment revenue. At
that meeting, the Committee discussed increasing the assessment rate to
respond to rising Committee expenses, declining assessment revenue, and
shrinking operating reserves. After discussion, the Committee postponed
any action until later in the fiscal period, believing that assessment
revenue and operating reserves were sufficient to maintain Committee
operations through the fiscal period.
The Committee conducted a telephone vote on July 18, 2003, and
unanimously recommended a revised budget of $145,317 (down from
$149,417) and to raise the assessment rate to $0.0045 per hundredweight
of potatoes handled (up from $0.0026). In comparison, last fiscal
period's budgeted expenditures were $137,094. The recommended
assessment rate is $0.0019 higher than the rate currently in effect.
The increase is necessary to offset an increase in salaries and
operating expenses, declining potato shipments, and the depletion of
operating reserves.
This major expenditures recommended by the Committee for the 2003-
04 fiscal period include $95,067 for salaries and benefits, $16,500 for
transportation, $13,500 for travel, $6,800 for rent and utilities, and
$4,800 for office expenses. Budgeted expenses for these items in 2002-
2003 were $92,144, $9,000, $14,000, $6,300, and $6,500, respectively.
The transportation budget item covers the purchase of a new Committee
vehicle and all of the operating and maintenance costs associated with
it. The manager uses a Committee vehicle for handler compliance visits
throughout the season, and other authorized Committee activities.
Travel covers the cost of travel, lodging, and meals for the Committee
manager and members when attending Committee meetings and conventions
involving Committee authorized business.
The Committee estimates potato shipments for the 2003-04 fiscal
period at 36,500,000 hundredweight, which should provide $164,250 in
assessment income at the issued assessment rate. This income should be
adequate to cover budgeted expenses. The Committee estimated monetary
reserves to be approximately $33,000 at the beginning of the 2003-04
fiscal period. The reserves could potentially increase to $51,933 by
the fiscal period end. The order permits an operating reserve in an
amount not to exceed approximately one fiscal period's budgeted
expenses (Sec. 945.44). Funds held in reserve will be kept within the
maximum permitted by the order.
The assessment rate established in this rule will 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 will be in effect 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 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 to determine whether
modification of the assessment rate is needed. Further rulemaking would
be undertaken as necessary. The Committee's 2003-04 budget and those
for subsequent fiscal periods would 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.
There are approximately 900 producers of potatoes in the production
area and approximately 54 handlers subject to regulation under the
marketing order. Small agricultural
[[Page 59526]]
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 $5,000,000.
Based on a three-year average fresh potato production of 35,448,000
hundredweight as calculated from Committee records, a three-year
average of producer prices of $6.10 per hundredweight reported by the
National Agricultural Statistics Service, and 900 Idaho-Eastern Oregon
potato producers, the average annual producer revenue is approximately
$240,259. It can be concluded, therefore, that most of these producers
may be classified as small entities.
In addition, based on Committee records and 2002-03 f.o.b. shipping
point prices ranging from $5.00 to $35.00 per hundredweight reported by
USDA's Market News Service, many Idaho-Eastern Oregon potato handlers
may ship over $5,000,000 worth of potatoes. In view of the foregoing,
few of the handlers may be classified as small entities as defined by
the SBA.
This rule increases the assessment rate established for the
Committee and collected from handlers for the 2003-04 and subsequent
fiscal periods from $0.0026 to $0.0045 per hundredweight of potatoes
handled. The Committee unanimously recommended 2003-04 expenditures of
$145,317 and an assessment rate of $0.0045 per hundredweight. The
proposed assessment rate is $0.0019 per hundredweight higher than the
2002-03 rate. The quantity of assessable potatoes for the 2003-04
fiscal period is estimated to be 36,500,000 hundredweight. Income
derived from handler assessments (approximately $164,250) should be
adequate to cover budgeted expenses.
The major expenditures recommended by the Committee for the 2003-04
fiscal period include $95,067 for salaries and benefits, $16,500 for
transportation, $13,500 for travel, $6,800 for rent and utilities, and
$4,800 for office expenses. Budgeted expenses for these items in 2002-
2003 were $92,144, $9,000, $14,000, $6,300, and $6,500, respectively.
The assessment rate increase is necessary to offset increases in
salaries and operating expenses, declining potato shipments, and the
depletion of operating reserves. The Committee estimated the reserve to
be $33,000 at the 2002-03 fiscal period end. At the current rate of
$0.0026 per hundredweight, and the estimated potato production of
36,500,000 hundredweight for the 2003-04 fiscal period, the projected
income for the 2003-04 fiscal period would be $94,900. This amount,
along with the projected reserve of $33,000, is approximately $19,417
less than required to fund the proposed 2003-04 budget and $9,194 less
than the 2002-03 budgeted amount. Thus, the Committee believes that the
projected assessment income at the current assessment rate and funds
held in reserve would not be sufficient to fund the Committee's
operations without increasing the assessment rate.
At the recommended rate of $0.0045 per hundredweight (assessment
income of $164,250) and expenditures of $145,317, the Committee may
increase its reserve by up to $18,933. The projected reserve would be
approximately $51,933 on July 31, 2004, which the Committee determined
to be both appropriate and acceptable.
The Committee considered alternate levels of assessment but
determined that increasing the assessment rate to $0.0045 per
hundredweight will allow the Committee to adequately fund operations
and replenish the reserve to an acceptable level. The Committee decided
that any assessment rate between $0.0026 per hundredweight and $0.0045
per hundredweight would not be sufficient to accomplish the Committee's
goals. Prior to arriving at the budget and assessment rate
recommendations, the Committee considered information from various
sources, including the Committee's Finance and Executive Committees.
A review of historical information and preliminary information
pertaining to the upcoming fiscal period indicates that the producer
price for the 2003-04 fiscal period could range between $4.50 and $6.00
per hundredweight of potatoes. Therefore, the estimated assessment
revenue as a percentage of total producer revenue could range between
0.1 and 0.075 percent.
This action increases 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
are offset by the benefits derived by the operation of the marketing
order. In addition, the Committee's meeting was widely publicized
throughout the Idaho-Eastern Oregon 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 June 16,
2003, meeting was a public meeting and all entities, both large and
small, were able to express views on this issue.
This rule imposes no additional reporting or recordkeeping
requirements on either small or large Idaho-Eastern Oregon 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 proposed rule concerning this action was published in the Federal
Register on August 28, 2003 (68 FR 51713). Copies of the proposed rule
were also mailed or sent via facsimile to all potato handlers. Finally,
the proposal was made available through the Internet by the Office of
the Federal Register and USDA. A 15-day comment period ending September
12, 2003, was provided for interested persons to respond to the
proposal. 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.ams.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.
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 the 2003-2004
fiscal period began on August 1, and the marketing order requires that
the rate of assessment for each fiscal period apply to all assessable
Idaho-Eastern Oregon potatoes handled during such fiscal period.
Further, handlers are aware of this rule which was unanimously
recommended by the Committee. Also, a 15-day comment period was
provided for in the proposed rule, and no comments were received.
List of Subjects in 7 CFR Part 945
Marketing agreements, Potatoes, Reporting and recordkeeping
requirements.
0
For the reasons set forth in the preamble, 7 CFR part 945 is amended as
follows:
[[Page 59527]]
PART 945--POTATOS GROWN IN DESIGNATED COUNTIES IN IDAHO, AND
MALHEUR COUNTY, OREGON
0
1. The authority citation for 7 CFR part 945 continues to read as
follows:
Authority: 7 U.S.C. 601-674.
0
2. Section 945.249 is revised to read as follows:
Sec. 945.249 Assessment rate.
On and after August 1, 2003, an assessment rate of $0.0045 per
hundredweight is established for Idaho-Eastern Oregon potatoes.
Dated: October 9, 2003.
A.J. Yates,
Administrator, Agricultural Marketing Service.
[FR Doc. 03-26177 Filed 10-15-03; 8:45 am]
BILLING CODE 3410-02-P