[Federal Register Volume 68, Number 104 (Friday, May 30, 2003)]
[Proposed Rules]
[Pages 32432-32434]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-13519]


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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: [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 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