[Federal Register Volume 67, Number 176 (Wednesday, September 11, 2002)]
[Proposed Rules]
[Pages 57537-57539]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-23034]


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DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 948

[Docket No. FV02-948-2 PR]


Irish Potatoes Grown in Colorado; Reduction of Membership on the 
Area No. 3 Colorado Potato Administrative Committee

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Proposed rule.

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SUMMARY: This rule invites comments on reducing the number of members 
on the Area No. 3 Colorado Potato Administrative Committee (Committee) 
established under the Colorado potato marketing order (order). The 
order regulates the handling of Irish potatoes grown in Colorado and is 
administered locally by the Committee. This rule would decrease the 
number of positions on the Committee from five producer and four 
handler members to three producer and two handler members, 
respectively. The number of producers and handlers in Area No. 3 has 
decreased significantly in recent years and the industry has been 
unable to fill several positions on the Committee. Reducing Committee 
membership would allow the Committee to function more effectively while 
still providing equitable representation for producers and handlers.

DATES: Comments must be received by September 26, 2002.

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: [email protected]. 
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: [email protected].

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 decrease the number of positions on the Committee 
from five producer and four handler members to three producer and two 
handler members, respectively. Each position would continue to have an 
alternate. The Committee has been unable to fill several positions on 
the Committee and has been unable to conduct business at some meetings 
because of the lack of a quorum. Reducing Committee membership would 
allow the Committee to function more effectively while still providing 
equitable representation for producers and handlers.
    Section 948.50 of the order establishes three areas within the 
State of Colorado and provides authority for the establishment of a 
committee to be the administrative agency for each area. This section 
further provides that each area committee shall be comprised of members 
and alternates as set forth in that section or as reestablished by 
Sec.  948.53. Section 948.53 provides authority for the reestablishment 
of each area committee.
    Section 948.150 of the order's administrative rules and regulations 
prescribes the current membership on each area committee. For Area No. 
3, the Committee currently consists of five producers and four 
handlers. Three producers and two handlers are from

[[Page 57538]]

Weld County, and two producers and two handlers are from all other 
counties in Area No. 3.
    At its meeting on June 13, 2002, the Committee did not have enough 
members in attendance to constitute a quorum. Those members present 
recommended that a mail vote be held by the Committee to reduce the 
number of positions on the Committee from five producer and four 
handler members to three producer and two handler members, 
respectively. In addition, they recommended the removal of all 
requirements that positions be filled from nominees from certain 
counties. A subsequent mail vote to all Committee members and 
alternates was conducted. Seven Committee members voted in favor of 
this change and one member voted against it. The member who voted 
against the motion supported suspension of regulations because of the 
decline in the size of the industry. One handler member and alternate 
position was not voted as both positions are vacant.
    The number of Area No. 3 potato producers and handlers has 
decreased significantly in recent years. Reasons for this decline 
include low potato prices, water shortages, and increasing production 
costs. With a total of only 13 producers and handlers (several 
producers are also handlers), the Committee has been unable to fill the 
18 positions (nine members and nine alternates) on the Committee. One 
member and six alternate positions are currently vacant. This has 
resulted in the Committee being unable to conduct business at certain 
meetings because of the lack of a quorum. The Committee does not 
believe that the current requirement that only producers and handlers 
from specific counties may be nominated to certain positions serves any 
useful purpose. They believe that these requirements may, in some 
instances, have contributed to the difficulty the Committee has had in 
filling positions. Reducing Committee membership would allow the 
Committee to function more effectively while still providing equitable 
representation for producers and handlers.

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.
    Based on Committee data, there are 12 producers, (9 of whom are 
also handlers) and 10 handlers (9 of whom are also producers) in the 
production area subject to regulation under the order. Small 
agricultural producers are defined by the Small Business Administration 
(SBA) (13 CFR 121.201) as those having annual receipts of less than 
$750,000, and small agricultural firms are defined as those whose 
annual receipts are less than $5,000,000.
    Based on Committee data, the production of Area No. 3 Colorado 
potatoes for the 2001-2002 marketing year was 773,053 hundredweight. 
Based on National Agricultural Statistics Service data, the average 
producer price for Colorado summer potatoes for the 2001-2002 marketing 
year was $7.63 per hundredweight. The average annual producer revenue 
for the 12 Colorado Area No. 3 potato producers is therefore calculated 
to be approximately $491,533. Using Committee data regarding each 
individual handler's total shipments during the 2001-2002 marketing 
year and a Committee estimated average F.O.B. average price during the 
2001-2002 marketing year of $9.83 per hundredweight ($7.63 per 
hundredweight plus estimated packing and handling costs of $2.10 per 
hundredweight), all of the Colorado Area No. 3 potato handlers ship 
under $5,000,000 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 would decrease the number of positions on the Committee 
from five producer and four handler members to three producer and two 
handler members, respectively. Each position would continue to have an 
alternate.
    The number of Area No. 3 potato producers and handlers has 
decreased significantly in recent years. Reasons for this decline 
include low potato prices, water shortages, and increasing production 
costs. With a total of only 13 producers and handlers, the Committee 
has been unable to fill the 18 positions (nine members and nine 
alternates) on the Committee. One member and six alternate positions 
are currently vacant. This has resulted in the Committee being unable 
to conduct business at certain meetings because of the lack of a 
quorum. Reducing Committee membership would allow the Committee to 
function more effectively while still providing equitable 
representation for producers and handlers.
    This rule is expected to slightly decrease the costs of 
administering the order. With a smaller Committee, meeting costs should 
decline slightly and the ability of the Committee to obtain a quorum 
and conduct business should increase. The benefits for this rule are 
not expected to be disproportionately greater or less for small 
producers or handlers than for larger entities.
    The Committee discussed alternatives to this change, including not 
reducing the Committee membership. The Committee considered suspension 
of all regulations and activities under Area No. 3. However, the 
Committee believes that the regulations issued under the order are 
beneficial to the Colorado Area No. 3 potato industry and the benefits 
of the program outweigh the costs.
    This proposed rule would decrease the number of positions on the 
Committee. Accordingly, this action would not impose any additional 
reporting or recordkeeping requirements on either small or large Area 
No. 3 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.
    USDA has not identified any relevant Federal rules that duplicate, 
overlap or conflict with this proposed rule.
    In addition, the Committee's meeting was widely publicized 
throughout the Area No. 3 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 June 13, 
2002, 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.
    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 to 
respond to this proposal. Fifteen days is deemed appropriate because 
this rule would

[[Page 57539]]

need to be in place as soon as possible so that the Committee can 
nominate members and alternates to the new Committee 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. Section 948.150 is amended by revising paragraph (b) to read as 
follows:


Sec.  948.150  Reestablishment of committee membership.

* * * * *
    (b) Area No. 3: Three producers and two handlers selected as 
follows: Three (3) producers and two (2) handlers from any county in 
Area No. 3.

    Dated: September 4, 2002.
A.J. Yates,
Administrator, Agricultural Marketing Service.
[FR Doc. 02-23034 Filed 9-10-02; 8:45 am]
BILLING CODE 3410-02-P