[Federal Register: May 30, 2003 (Volume 68, Number 104)]
[Proposed Rules]
[Page 32432-32434]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr30my03-28]
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DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Part 948
[Docket No. FV03-948-1 PR]
Irish Potatoes Grown in Colorado; Increase in Membership on the
Area No. 2 Colorado Potato Administrative Committee
AGENCY: Agricultural Marketing Service, USDA.
ACTION: Proposed rule.
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SUMMARY: This rule invites comments on a change that would increase the
number of members on the Area No. 2 Colorado Potato Administrative
Committee (Committee) from 12 to 14. The Committee locally administers
the marketing order regulating the handling of Irish potatoes grown in
Colorado. Specifically, this rule would increase from seven to nine the
number of producers serving on the Committee by adding a second
representative from the district comprised of Chaffee County and
Saguache County, and by creating a position for a representative for
certified seed potato producers from Area No. 2. This rule would not
change the number of handler representatives on the Committee, which
would remain at five. The addition of two new producer members would
provide the Committee with greater industry representation and
therefore increased effectiveness.
DATES: Comments must be received by June 16, 2003.
ADDRESSES: Interested persons are invited to submit written comments
concerning this proposal. 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.
All comments should reference the docket number and the date and page
number of this issue of the Federal Register and will be made 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, 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 proposal is issued under Marketing
Agreement No. 97 and Order No. 948, both as amended (7 CFR part 948),
regulating the handling of Irish 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 proposal has been reviewed under Executive Order 12988, Civil
Justice Reform. This rule is not intended to have retroactive effect.
This proposal 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. A
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 from 12 to 14 the number of members on the
Committee by adding a second producer representative for Chaffee County
and Saguache County, and by creating a position for a producer
representative for certified seed potato producers from Area No. 2.
Consistent with Sec. 948.52, each new member position would have an
alternate who would have the same qualifications as the member. This
rule would not change the number of handler representatives on the
Committee, which would remain at five. This action was unanimously
recommended by the Committee at a meeting on March 20, 2003.
Section 948.4 of the order establishes three subdivisions, or
areas, within the State of Colorado, and Sec. 948.50 provides
authority for the establishment of a committee as an administrative
agency for each area. Section 948.53 provides authority for the
reestablishment of these areas or subdivisions of these areas, as well
as the redistribution of representation within area subdivisions or
among marketing organizations within the respective areas. Finally,
Sec. 948.6 provides a definition for seed potatoes.
[[Page 32433]]
Section 948.150 of the order's administrative rules and regulations
prescribes the current membership on each area committee as
reestablished pursuant to Sec. 948.53. For Area No. 2, the Committee
currently consists of seven producer members and five handler members.
Two producers are from Rio Grande County, one producer is from Chaffee
County or Saguache County, one producer is from Conejos County, two
producers are from Alamosa County, and one producer is from all
remaining counties in Area No. 2. Two handlers represent bulk handlers
and three handlers represent handlers other than bulk handlers.
As indicated above, the order currently provides that one producer
member on the Committee represents producers in both Chaffee County and
Saguache County. Based on a Committee recommendation, on March 31, 1995
(62 FR 16565), the USDA reestablished Area No. 2 to include Chaffee
County, which previously had been part of the Area No. 3 production
area. The reestablishment was initiated largely due to Chaffee County's
proximity to Area No. 2 and a request from a Chaffee County producer/
handler. That action also reestablished Committee membership by
combining Chaffee County and Saguache County as one district for the
purpose of nominating a producer member to the Committee.
Although Chaffee County potato production has remained relatively
static, potato production in Saguache County has in recent years
increased significantly due to an increase in potato acreage. According
to Committee records, Saguache County farmers harvested about 5,310,000
hundredweight of potatoes from nearly 17,000 acres during the 2001-2002
season. This is nearly double the 1985-1986 production of the 2,930,000
hundredweight of potatoes that were harvested from 8,900 acres in
Saguache County. It is also noteworthy that Saguache County had about
16 percent of the total production in Area No. 2 during the 1985-1986
season compared to about 25 percent of the total during the 2001-2002
season. With two seats on the Committee, producers from Chaffee and
Saguache Counties would comprise about 22 percent of the producer
members on the Committee.
Arable land in Chaffee County is generally limited to a relatively
small production area around the city of Salida, and the Committee
continues to believe that Chaffee and Saguache Counties should remain
combined as a subdivision, or nominating district, in Area No. 2. The
two members from this district, as well as their respective alternates,
would be nominated for membership on the Committee from all eligible
producers from either or both of these two counties.
According to the Committee, there are currently 38 producers with
certified seed potato production on 14,760 Area No. 2 acres. Of the
6,273,000 hundredweight of certified seed potatoes harvested in 2001-
2002, Committee records indicate that 977,866 hundredweight were
marketed out-of-area, and 343,223 hundredweight were planted in the San
Luis Valley. Most of the balance of the total seed production was
replanted into the certified seed program for multigenerational seed
development. Certified seed potato shipments are currently exempt from
the grade, size, maturity, and inspection requirements of Sec.
948.386, but are subject to the order's assessment rate as established
under Sec. 948.216.
The Committee, in conjunction with the Colorado Area No. 2 potato
industry, recently held a strategic planning session and identified
several key issues. One of the important issues looked at by the
Committee was its membership as it relates to Area No. 2 potato
industry representation. Consensus among participants indicated that
there would be a mutual benefit to the Committee and the industry with
certified potato seed representation on the Committee. Seed potatoes
are typically produced in areas separate from the major commercial
fresh and processed potato production areas. This isolation is
necessary to maintain the strict State of Colorado certified seed
tolerances established for plant diseases. The Committee believes that
the infusion of fresh ideas from this facet of the industry would
provide for a new perspective on the Committee, as well as providing
better service to the entire Colorado Area No. 2 potato industry.
In addition, based in part on the increase in production in
Saguache County and on the significance of certified seed potato
production in Area No. 2, the Committee received requests from the
industry that producer representation on the Committee be increased.
Finally, the Committee has recently formed several subcommittees for
the purpose of providing better service to the Area No. 2 potato
industry. Due to an inadequate candidate pool, the Committee has
experienced problems in identifying enough committee members willing
and able to serve on these subcommittees. Taking all of this into
consideration, the Committee determined that the addition of two
producer members and their respective alternates would not only provide
better representation for Area No. 2 producers, but would also provide
an increased pool of expertise on the Committee and its subcommittees.
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 action 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 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
in the regulated production area. Small agricultural service firms are
defined by the Small Business Administration (SBA)(13 CFR 121.201) as
those having annual receipts of less than $5,000,000, and small
agricultural producers are defined as those having annual receipts of
less than $750,000.
During the 2001-2002 marketing year, 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 marketing year 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 number of members on the Committee
from 12 members to 14 members. Specifically, this rule would increase
from seven to nine the number of producers on the Committee by adding a
second producer representative from Chaffee County and Saguache County,
and by creating a position for a representative for certified
[[Page 32434]]
seed potato producers from all the counties in Area No. 2. This rule
would not change the number of handler representatives on the
Committee, which would remain at five. Each position would continue to
have an alternate with the same qualifications as the member.
Potato production in Saguache County has increased significantly in
recent years. Increased potato acreage has been the primary reason for
the production increase. Colorado's Saguache County and Chaffee County
comprise a nominating district within Area No. 2 and currently have one
member and alternate member serving on the Committee. The Committee
believes that an additional member from this area would benefit both
the Committee and the industry. With certified potato seed production
representing a significantly important segment of the Area No. 2 potato
crop, the Committee also believes that the addition of a certified seed
producer position would add a fresh perspective to its membership and
would provide better representation for the San Luis Valley potato
industry. Authority for this action is provided in Sec. 948.53 of the
order.
Once implemented, this rule would cause a small increase in the
Committee's cost of administering the order. For example, overall costs
associated with Committee members' travel to attend meetings would
increase due to the additional members requiring compensation. The
increased cost, however, should be offset by the non-economic benefits
derived by providing a greater number of producers the chance to
participate as members of the Committee, as well as the service the
increased Committee expertise and diversity would provide to the San
Luis Valley potato industry. Regardless, the costs associated with this
rule are not expected to be disproportionately greater or less for
small producers and handlers than for larger entities.
The Committee discussed alternatives to this change. In considering
its goals of providing additional representation in response to the
greater production in Saguache County and the significant certified
seed potato production throughout the San Luis Valley, the Committee
looked at various alternatives to the current method of representation.
For example, the Committee considered combining the counties in Area
No. 2 into fewer subdivisions, or districts, in order to keep the
Committee the same size while providing for greater representation to
certain districts. After considerable discussion, however, the
Committee determined that the only equitable method of handling the
representation problem was to add additional members and leave the
current subdivisions unchanged.
This proposed rule would increase the number of member and
alternate member positions on the Committee. Since the two-year
Committee terms are arranged so that approximately one-half terminate
each year, this action would increase by four the number of background
statements requiring completion in a two-year period. It is estimated
that the time needed to complete the forms by producers who are
nominated to serve in the two additional member and two additional
alternate member positions would be less than two minutes per response,
or a total of 8 minutes, which would not substantially impact the total
burden hours. In accordance with the Paperwork Reduction Act of 1995
(44 U.S.C. chapter 35), these additional information collection
requirements have been previously approved by the Office of Management
and Budget (OMB) under OMB Control No. 0581-0178.
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 proposed rule.
The Committee's meeting was widely publicized throughout the San
Luis Valley and all interested persons were invited to attend the
meeting and participate in Committee deliberations on all issues. Like
all Committee meetings, the March 20, 2003, meeting was a public
meeting and all entities, both large and small, were able to express
views on this issue. In addition, interested persons are invited to
submit information on the regulatory and informational impacts of this
action on small businesses.
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.
A 15-day comment period is provided to allow interested persons the
chance to respond to this proposal. Fifteen days is deemed appropriate
because this rule would need to be in place as soon as possible so that
the Committee can nominate members and alternate members for the two
new producer positions as soon as possible. All written comments timely
received will be considered before a final determination is made on
this matter.
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. In Sec. 948.150, paragraph (a) is revised to read as follows:
Sec. 948.150 Reestablishment of committee membership.
* * * * *
(a) Area No. 2 (San Luis Valley): Nine producers and five handlers
selected as follows:
Two (2) producers from Rio Grande County;
Two (2) producers from either Saguache County or Chaffee County;
One (1) producer from Conejos County;
Two (2) producers from Alamosa County;
One (1) producer from all other counties in Area No. 2;
One (1) producer representing certified seed producers in Area No.
2;
Two (2) handlers representing bulk handlers in Area No. 2;
Three (3) handlers representing handlers in Area No. 2 other than
bulk handlers.
* * * * *
Dated: May 23, 2003.
A. J. Yates,
Administrator, Agricultural Marketing Service.
[FR Doc. 03-13519 Filed 5-29-03; 8:45 am]
BILLING CODE 3410-02-P