[Federal Register Volume 68, Number 129 (Monday, July 7, 2003)]
[Rules and Regulations]
[Pages 40117-40119]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-17040]



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  Federal Register / Vol. 68, No. 129 / Monday, July 7, 2003 / Rules 
and Regulations  

[[Page 40117]]



DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 948

[Docket No. FV03-948-1 FR]


Irish Potatoes Grown in Colorado; Increase in Membership on the 
Area No. 2 Colorado Potato Administrative Committee

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Final rule.

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SUMMARY: This rule increases 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 
increases 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 does not change the number of handler representatives on the 
Committee, which remains at five. The addition of two new producer 
members provides the Committee with greater industry representation and 
therefore increased effectiveness.

EFFECTIVE DATE: This final rule becomes effective July 8, 2003.

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 rule 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 final rule increases 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 has an alternate 
with the same qualifications as the member. This rule does not change 
the number of handler representatives on the Committee, which remains 
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.
    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 
consists of seven producer members and five handler members with two 
producers from Rio Grande County, one producer from Chaffee County or 
Saguache County, one producer from Conejos County, two producers from 
Alamosa County, and one producer from all remaining counties in Area 
No. 2. In addition, two handlers represent bulk handlers and three 
handlers represent handlers other than bulk handlers.
    As indicated above, the order 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. This 
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.

[[Page 40118]]

    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 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, 
will 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 will 
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 will not only provide 
better representation for Area No. 2 producers, but will also provide 
an increased pool of expertise on the Committee and its subcommittees.
    Thus, the reestablished Committee consists of nine producer members 
and five handler members with two producers from Rio Grande County, two 
producers from Chaffee County or Saguache County, one producer from 
Conejos County, two producers from Alamosa County, one producer from 
all remaining counties in Area No. 2, and one producer representing 
certified seed producers in Area No. 2. In addition, two handlers 
represent bulk handlers and three handlers represent handlers other 
than bulk 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.
    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. Area No. 2 is also referred to as the San Luis 
Valley area by the industry.
    During the 2001-2002 marketing year, 14,805,719 hundredweight of 
Colorado Area No. 2 potatoes were inspected under the order and sold in 
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 increases the number of members on the Committee from 12 
members to 14 members. Specifically, this rule increases 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 seed potato 
producers from all the counties in Area No. 2. This rule does not 
change the number of handler representatives on the Committee, which 
remains at five. Each position on the Committee continues 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 have one member 
and alternate member serving on the Committee. The Committee believes 
that an additional member from this area will benefit both the 
Committee and the industry. With certified potato seed

[[Page 40119]]

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 will add a fresh perspective to its 
membership and will provide better representation for the San Luis 
Valley potato industry. Authority for this action is provided in Sec.  
948.53 of the order.
    This rule will 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 will 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 will 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 final rule increases 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 will 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 will be less than two minutes per response, or a total of 8 
minutes, which will 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 noted in the initial regulatory flexibility analysis, USDA has 
not identified any relevant Federal rules that duplicate, overlap or 
conflict with this final 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.
    A proposed rule concerning this action was published in the Federal 
Register on May 30, 2003 (68 FR 32432). Copies of the rule were mailed 
or sent via facsimile to all Committee members. Finally, the rule was 
made available through the Internet by the Office of the Federal 
Register and USDA. A 15-day comment period ending June 16, 2003, 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 
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 should be in place 
promptly so that the Committee can nominate members and alternate 
members for the two new producer positions as soon as possible. 
Further, handlers and producers are 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.


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 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:

(1) Two (2) producers from Rio Grande County;
(2) Two (2) producers from either Saguache County or Chaffee County;
(3) One (1) producer from Conejos County;
(4) Two (2) producers from Alamosa County;
(5) One (1) producer from all other counties in Area No. 2;
(6) One (1) producer representing certified seed producers in Area No. 
2;
(7) Two (2) handlers representing bulk handlers in Area No. 2;
(8) Three (3) handlers representing handlers in Area No. 2 other than 
bulk handlers.
* * * * *

    Dated: June 30, 2003.
Kenneth C. Clayton,
Acting Administrator, Agricultural Marketing Service.
[FR Doc. 03-17040 Filed 7-3-03; 8:45 am]
BILLING CODE 3410-02-P