[Federal Register Volume 67, Number 217 (Friday, November 8, 2002)]
[Rules and Regulations]
[Pages 68019-68021]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-28474]



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  Federal Register / Vol. 67, No. 217 / Friday, November 8, 2002 / 
Rules and Regulations  

[[Page 68019]]



DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 948

[Docket No. FV02-948-2 FR]


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

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Final rule.

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SUMMARY: This rule reduces 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 decreases 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 will allow the Committee to 
function more effectively while still providing equitable 
representation for producers and handlers.

EFFECTIVE DATE: This final rule becomes effective November 9, 2002.

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 final rule 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 final rule has been reviewed under Executive Order 12988, 
Civil Justice Reform. This rule is not intended to have retroactive 
effect. 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. 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 final rule decreases the number of positions on the Committee 
from five producer and four handler members to three producer and two 
handler members, respectively. Each position will 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 will 
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 membership on each area committee. Prior to this final 
rule, the Area No. 3 Committee consisted of five producers and four 
handlers. Three producers and two handlers were from Weld County, and 
two producers and two handlers were 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 were 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

[[Page 68020]]

production costs. With a total of only 13 producers and handlers 
(several producers are also handlers), the Committee was unable to fill 
the 18 positions (nine members and nine alternates) on the Committee. 
One member and six alternate positions were vacant. This resulted in 
the Committee being unable to conduct business at certain meetings 
because of the lack of a quorum. The Committee believed that the 
requirement that only producers and handlers from specific counties be 
nominated to certain positions did not serve any useful purpose. They 
believed that those requirements, in some instances, contributed to the 
difficulty the Committee had in filling positions. This reduction in 
Committee membership will allow the Committee to function more 
effectively while still providing equitable representation for 
producers and handlers.

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 action 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 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. 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 final rule decreases the number of positions on the Committee 
from five producer and four handler members to three producer and two 
handler members, respectively. Each position will 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 
was unable to fill the 18 positions (nine members and nine alternates) 
on the Committee. One member and six alternate member positions were 
vacant. This resulted in the Committee being unable to conduct business 
at certain meetings because of the lack of a quorum. This reduction in 
Committee membership will 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 of 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 also 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 final rule decreases the number of positions on the Committee. 
Accordingly, this action will 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.
    As noted in the initial regulatory flexibility analysis, USDA has 
not identified any relevant Federal rules that duplicate, overlap, or 
conflict with this final 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.
    A proposed rule concerning this action was published in the Federal 
Register on September 11, 2002 (67 FR 57537). Finally, the rule was 
made available through the Internet by the Office of the Federal 
Register and USDA. A 15-day comment period ending September 26, 2002, 
was provided to allow 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 matter 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.
    It is further found that good cause exists for not postponing the 
effective date of this rule until 30 days after publication in the 
Federal Register (5 U.S.C. 553) because this rule needs to be in place 
as soon as possible so that the Colorado Area No. 3 potato industry can 
nominate members and alternates to the new Committee as soon as 
possible. Further, the Colorado Area No. 3 potato industry is aware of 
this rule, which was recommended at a public meeting. 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 948

    Marketing agreements, Potatoes, Reporting and recordkeeping 
requirements.

[[Page 68021]]


    For the reasons set forth in the preamble, 7 CFR Part 948 is 
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: November 4, 2002.
A.J. Yates,
Administrator, Agricultural Marketing Service.
[FR Doc. 02-28474 Filed 11-7-02; 8:45 am]
BILLING CODE 3410-02-U