[Federal Register Volume 73, Number 175 (Tuesday, September 9, 2008)]
[Rules and Regulations]
[Pages 52171-52173]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-20853]



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Rules and Regulations
                                                Federal Register
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Federal Register / Vol. 73, No. 175 / Tuesday, September 9, 2008 / 
Rules and Regulations

[[Page 52171]]



DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 948

[Docket No. AMS-FV-08-0048; FV08-948-2 FR]


Irish Potatoes Grown in Colorado; Reinstatement of the Continuing 
Assessment Rate

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Final rule.

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SUMMARY: This rule reinstates the continuing assessment rate 
established for the Area No. 3 Colorado Potato Administrative Committee 
(Committee) for the 2008-2009 and subsequent fiscal periods at $0.02 
per hundredweight of potatoes handled. The Committee locally 
administers the marketing order regulating the handling of potatoes 
grown in northern Colorado. The continuing assessment rate was 
suspended for the 2006-2007 and subsequent fiscal periods to bring the 
monetary reserve within the program limit of two fiscal periods' 
operating expenses. Assessments upon potato handlers are used by the 
Committee to fund reasonable and necessary expenses of the program. The 
fiscal period began on July 1 and ends June 30. The assessment rate 
will remain in effect indefinitely unless modified, suspended, or 
terminated.

DATES: Effective Date: September 10, 2008.

FOR FURTHER INFORMATION CONTACT: Teresa Hutchinson or Gary 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: <a href="/cdn-cgi/l/email-protection#83d7e6f1e6f0e2adcbf6f7e0ebeaedf0ecedc3f6f0e7e2ade4ecf5"><span class="__cf_email__" data-cfemail="eeba8b9c8b9d8fc0a69b9a8d8687809d8180ae9b9d8a8fc0898198">[email protected]</span></a> or 
<a href="/cdn-cgi/l/email-protection#4d0a2c3f34096302213e22230d383e292c632a223b"><span class="__cf_email__" data-cfemail="89cee8fbf0cda7c6e5fae6e7c9fcfaede8a7eee6ff">[email protected]</span></a>.
    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: <a href="/cdn-cgi/l/email-protection#276d465e0960524255454255675254434609404851"><span class="__cf_email__" data-cfemail="4208233b6c0537273020273002373126236c252d34">[email protected]</span></a>.

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 issued herein will be applicable to all assessable 
potatoes beginning July 1, 2008, 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 reinstates Sec.  948.215 of the order's rules and 
regulations and establishes a continuing assessment rate for the 
Committee for the 2008-2009 and subsequent fiscal periods at $0.02 per 
hundredweight of potatoes handled.
    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 in Area No. 3. 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 2006-2007 and subsequent fiscal periods, the Committee 
recommended, and USDA approved, a suspension of the continuing 
assessment rate that would remain suspended until reinstated by USDA 
upon recommendation and information submitted by the Committee or other 
information available to USDA.
    The Committee met on May 8, 2008, and unanimously recommended 2008-
2009 expenditures of $19,497 and an assessment rate of $0.02 per 
hundredweight of potatoes. In comparison, last year's budgeted 
expenditures were $18,697. For the 2006-2007 fiscal period, the 
Committee recommended suspending the continuing assessment rate to 
bring the monetary reserve within program limits of approximately two 
fiscal periods' operating expenses (Sec.  948.78). At that time, the 
reserve fund contained about $49,237. The Committee has been operating 
for the last two years by drawing income from its reserve. With a 
suspended assessment rate and a significant decrease in the number of 
potato producers and acreage in Area No. 3, the reserve has rapidly 
decreased to the current level of about $16,175. The Committee would 
like to maintain the reserve at approximately this level, thus 
reinstatement of the assessment rate at $0.02 per hundredweight is 
needed.
    The major expenditures recommended by the Committee for the

[[Page 52172]]

2008-2009 fiscal period include $7,800 for salaries, $3,000 for rent 
expense, and $1,750 for office expenses. Budgeted expenses for these 
items in 2007-2008 were also $7,800, $3,000, and $1,750, respectively.
    The assessment rate recommended by the Committee was derived by 
dividing anticipated expenses by expected shipments of Colorado Area 
No. 3 potatoes. Colorado Area No. 3 potato shipments for the year are 
estimated at 787,600 hundredweight which should provide $15,752 in 
assessment income. Income derived from handler assessments, rent, and 
interest, along with funds from the Committee's authorized reserve, 
should be adequate to cover budgeted expenses. Funds in the reserve 
(estimated at $16,175 as of June 30, 2008) would be kept within the 
maximum permitted by the order (approximately two fiscal periods' 
expenses; Sec.  948.78).
    The assessment rate reinstated 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 will 
be undertaken as necessary. The Committee's 2008-2009 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.
    Based on Committee data, there are 8 producers (7 of whom are also 
handlers) in the regulated area and 9 handlers (7 of whom are also 
producers) who are 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 Committee data, the production of Colorado Area No. 3 
potatoes for the 2007-2008 fiscal period was 550,026 hundredweight. 
Based on National Agricultural Statistics Service data, the average 
producer price for Colorado summer potatoes for 2007 was $7.55 per 
hundredweight. The average annual producer revenue for the 8 Colorado 
Area No. 3 potato producers is therefore calculated to be approximately 
$519,000. Using Committee data regarding each individual handler's 
total shipments during the 2007-2008 fiscal period and a Committee 
estimated average f.o.b. price for 2007 of $9.75 per hundredweight 
($7.55 per hundredweight plus estimated packing and handling costs of 
$2.20 per hundredweight), all of the Colorado Area No. 3 potato 
handlers ship under $6,500,000 worth of potatoes. Thus, the majority of 
handlers and producers of Colorado Area No. 3 potatoes may be 
classified as small entities.
    This rule reinstates Sec.  948.215 of the order's rules and 
regulations and establishes a continuing assessment rate for the 
Committee for the 2008-2009 and subsequent fiscal periods at $0.02 per 
hundredweight of potatoes handled. The reinstatement of the $0.02 
assessment rate and the 2008-2009 expenditures of $19,497 were 
unanimously recommended by the Committee. The quantity of Colorado Area 
No. 3 potatoes for the 2008-2009 fiscal period is estimated at 787,600 
hundredweight. Thus, the $0.02 rate should provide $15,752 in 
assessment income. Income derived from handler assessments, rent, and 
interest along with funds from the Committee's authorized reserves 
should be adequate to meet this fiscal period's budgeted expenses.
    The major expenditures recommended by the Committee for the 2008-
2009 fiscal period include $7,800 for salaries, $3,000 for rent 
expense, and $1,750 for office expenses. Budgeted expenses for these 
items in 2007-2008 were also $7,800, $3,000, and $1,750, respectively.
    For the 2006-2007 fiscal period, the Committee recommended 
suspending the continuing assessment rate to bring the monetary reserve 
within program limits of approximately two fiscal periods' operating 
expenses (Sec.  948.78). At that time, the reserve fund contained about 
$49,237. The Committee has been operating for the last two years by 
drawing income from its reserve. With a suspended assessment rate and a 
significant decrease in the number of potato producers and acreage in 
Area No. 3, the reserve has rapidly decreased to the current level of 
about $16,175. The Committee would like to maintain the reserve at 
approximately this level, thus reinstatement of the assessment rate is 
needed.
    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. Higher 
assessment rates were also considered, but not recommended because they 
would add funds to the reserve.
    To calculate the assessment rate, the Committee deducted estimated 
income received from rent and interest from the total recommended 
budget ($19,497 - $2,000 = $17,497). The assessment rate was then 
determined by dividing $17,497 by the quantity of assessable potatoes, 
which is estimated at 787,600 hundredweight for the 2008-2009 fiscal 
period. The result was rounded to $0.02 per hundredweight. This 
assessment rate will generate approximately $1,745 less than 
anticipated expenses when combined with interest and rent income, which 
the Committee has determined to be acceptable. Funds from the 
Committee's authorized reserve should be adequate to cover budgeted 
expenses not covered by income from assessments, interest, and rent.
    A review of historical information and preliminary information 
pertaining to the upcoming fiscal period indicates that the producer 
price for the 2008-2009 fiscal period could range between $7.55 and 
$8.45 per hundredweight of Colorado summer potatoes. Therefore, the 
estimated assessment revenue for the 2008-2009 fiscal period as a 
percentage of total producer revenue could range between 0.24 and 0.26 
percent.
    This action reinstates 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

[[Page 52173]]

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 Colorado Area No. 3 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 8, 
2008, 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 Colorado Area No. 3 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.
    As noted in the initial regulatory flexibility analysis, 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 July 25, 2008 (73 FR 43375). Copies of the proposed rule 
were also mailed or sent via facsimile to all handlers. Finally, the 
proposal was made available through the Internet by USDA and the Office 
of the Federal Register. A 15-day comment period ending August 11, 
2008, 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/AMSv1.0/ams.fetchTemplateData.do?template=TemplateN&page=MarketingOrdersSmallBusinessGuide. 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: (1) The 
2008-2009 fiscal period began on July 1, 2008, 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 
northern Colorado potato shipping season began in July; (3) the 
Committee needs to have sufficient funds to pay for expenses which are 
incurred on a continuous basis; and (4) 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. Also, 
a 15-day comment period was provided for in the proposed rule.

List of Subjects in 7 CFR Part 948

    Marketing agreements, Potatoes, Reporting and recordkeeping 
requirements.

0
For the reasons set forth in the preamble, 7 CFR part 948 is amended as 
follows:

PART 948--IRISH POTATOES GROWN IN COLORADO

0
1. The authority citation for 7 CFR part 948 continues to read as 
follows:

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


0
2. In Part 948, the suspension of Sec.  948.215 is lifted.

    Dated: September 4, 2008.
Lloyd C. Day,
Administrator, Agricultural Marketing Service.
[FR Doc. E8-20853 Filed 9-8-08; 8:45 am]
BILLING CODE 3410-02-P


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