[Federal Register Volume 78, Number 100 (Thursday, May 23, 2013)]
[Rules and Regulations]
[Pages 30737-30739]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-12240]



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  Federal Register / Vol. 78, No. 100 / Thursday, May 23, 2013 / Rules 
and Regulations  

[[Page 30737]]



DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 948

[Doc. No. AMS-FV-12-0044; FV12-948-2 FR]


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

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: This final rule reestablishes the membership on the Colorado 
Potato Administrative Committee, Area No. 2 (Committee). The Committee 
locally administers the marketing order regulating the handling of 
Irish potatoes grown in Colorado. This action modifies the Committee 
membership structure by amending the position allocated to a producer 
from Conejos County. Beginning with the 2013-2014 term of office, the 
designated Committee position will be allocated to an eligible producer 
operating in either Conejos or Costilla County. This action is expected 
to improve Committee representation for producers from this sub-region 
of the production area.

DATES: Effective Date: May 24, 2013.

FOR FURTHER INFORMATION CONTACT: Sue Coleman, Marketing Specialist, or 
Gary Olson, Regional Director, Northwest Marketing Field Office, 
Marketing Order and Agreement Division, Fruit and Vegetable Program, 
AMS, USDA; Telephone: (503) 326-2724, Fax: (503) 326-7440, or Email: 
[email protected] or [email protected].
    Small businesses may request information on complying with this 
regulation by contacting Jeffrey Smutny, Marketing Order and Agreement 
Division, Fruit and Vegetable Program, AMS, USDA, 1400 Independence 
Avenue SW., STOP 0237, Washington, DC 20250-0237; Telephone: (202) 720-
2491, Fax: (202) 720-8938, or Email: [email protected].

SUPPLEMENTARY INFORMATION: This final rule is issued under Marketing 
Agreement No. 97 and Marketing 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 action is not intended to have retroactive 
effect.
    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 reestablishes the membership structure of the 
Committee. This action modifies the current Committee membership 
structure by amending the position currently allocated to a producer 
from Conejos County. Beginning with the 2013-2014 term of office, the 
designated Committee position will be allocated to an eligible producer 
operating in either Conejos or Costilla County. This action is expected 
to improve Committee representation for producers from this sub-region 
of the production area. This change was unanimously recommended by the 
Committee at a meeting held on July 19, 2012.
    Section 948.4 of the order divides the State of Colorado into three 
areas of regulation for marketing order purposes. These areas include: 
Area No. 1, commonly known as the Western Slope; Area No. 2, commonly 
known as San Luis Valley; and, Area No. 3, which consists of the 
remaining producing areas within the State of Colorado not included in 
the definition of Area No. 1 or Area No. 2. Currently, the order only 
regulates the handling of potatoes produced in Area No. 2 and Area No. 
3. Regulation for Area No. 1 has been suspended.
    Section 948.50 of the order establishes committees as 
administrative agencies for each of the areas set forth under Sec.  
948.4. The reestablishment of areas, subdivisions of areas, the 
distribution of representation among the subdivision of areas, or among 
marketing organizations within the areas is authorized under Sec.  
948.53. Such reestablishment is made by the Secretary upon the 
recommendation of the affected area committee. In recommending any such 
changes, the area committee shall consider, among other things, the 
relative production and the geographic locations of producing sections 
as they would affect the efficiency of administration of the order.
    Section 948.150(a) of the order's administrative rules prescribes 
the Area No. 2 Committee membership, as reestablished under previous 
rulemaking actions, with nine producer members and five handler 
members. The nine producer positions are designated to represent 
various sub-regions of the production area. Currently, Sec.  
948.150(a)(3) specifically allocates one of those producer positions to 
a producer from Conejos County.
    At its meeting on July 19, 2012, the Committee unanimously 
recommended modifying the Committee membership structure by amending 
the position allocated to a producer from Conejos County. The Committee 
acknowledged that the position has been increasingly hard to fill as 
the number of potato producers located in Conejos County eligible to 
serve on the Committee has declined. The Committee attributed the 
decrease in the number of producers to a number of issues in that area,

[[Page 30738]]

including competition from alternative crops and industry 
consolidation.
    The Committee believes that allocating the position specified in 
Sec.  948.150(a)(3) to a producer from either Conejos or Costilla 
County, instead of just from Conejos County, will increase the pool of 
potential Committee participants from that general sub-region of the 
production area. Conejos County and Costilla County adjoin each other 
on the southern boundary of the production area and share similar 
climates, soils, production resources, and marketing opportunities. 
Producers from either of the two counties will be able to adequately 
represent this sub-region of the production area on the Committee. 
Currently, producers from Costilla County are represented on the 
Committee by the position allocated in Sec.  948.150(a)(5), which 
represents all other counties in Area No. 2 that do not have 
representation specified in Sec.  948.150(a)(1) through (4). This 
change is expected to increase the pool of potential participants 
eligible to serve on the Committee and to improve representation for 
producers from both Conejos and Costilla Counties. This action was 
unanimously recommended by the full Committee.

Final Regulatory Flexibility Analysis

    Pursuant to requirements set forth in the Regulatory Flexibility 
Act (RFA)(5 U.S.C. 601-612), 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 the rules issued thereunder, are unique in 
that they are brought about through group action of essentially small 
entities acting on their own behalf.
    There are approximately 80 handlers of Colorado Area No. 2 potatoes 
subject to regulation under the order and approximately 180 producers 
in the regulated production area. Small agricultural service firms are 
defined by the Small Business Administration (13 CFR 121.201) as those 
having annual receipts of less than $7,000,000, and small agricultural 
producers are defined as those having annual receipts of less than 
$750,000.
    During the 2010-2011 marketing year, the most recent full marketing 
year for which statistics are available, 15,583,512 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 
$12.75 per hundredweight, the Committee estimates that 71 Area No. 2 
handlers, or about 89 percent, had annual receipts of less than 
$7,000,000. In view of the foregoing, the majority of Colorado Area No. 
2 potato handlers may be classified as small entities.
    In addition, based on information provided by the National 
Agricultural Statistics Service, the average producer price for 
Colorado fall potatoes for 2010-2011 was $9.37 per hundredweight. The 
average annual fresh potato revenue for each of the 180 Colorado Area 
No. 2 potato producers is therefore calculated to be approximately 
$811,208. Consequently, on average, many of the Area No. 2 Colorado 
potato producers may not be classified as small entities.
    This final rule reestablishes the Area No. 2 Committee membership 
structure currently prescribed under Sec.  948.150(a) of the order by 
amending the position allocated to a producer from Conejos County 
(Sec.  948.150(a)(3)). Beginning with the 2013-2014 term of office, the 
designated Committee position will be allocated to an eligible producer 
operating in either Conejos or Costilla County. Authority for this 
action is contained in Sec. Sec.  948.50 and 948.53.
    At the meeting, the Committee discussed the impact of this change 
on handlers and producers. This action is expected to improve Committee 
representation for producers from this general sub-region of the 
production area. Further, the modification is not anticipated to have 
any financial or regulatory impact on the area's potato producers or 
handlers. Lastly, the benefits resulting from this action are equally 
available to all handlers and producers regardless of their size.
    The Committee discussed alternatives to this change including 
taking no immediate action, reviewing the issue in the future, and 
redesignating the Committee position to be an at-large position that 
could be filled by producers from across the entire production area.
    The Committee believes that representation on the Committee by 
producers from each of the sub-regions of the production area is 
important for the efficient administration of the order. The Committee 
also feels that the declining trend in the number of producers in 
Conejos County is not likely to be self-reversing. As such, the 
Committee determined that there would not be any benefit to delaying 
corrective action to resolve this Committee representation issue and 
readdressing it in the future. In addition, the Committee determined 
that changing the position designated to a producer from Conejos County 
into an at-large position could jeopardize the representation for 
producers from that southern sub-region. As such, the Committee 
concluded that neither of the above options would be sufficiently 
responsive to the current situation and that modifying the membership 
structure as recommended is the best course of action to take at this 
time.
    In accordance with the Paperwork Reduction Act of 1995, (44 U.S.C. 
Chapter 35), the order's information collection requirements have been 
previously approved by the Office of Management and Budget (OMB) and 
assigned OMB No. 0581-0178. No changes in those requirements as a 
result of this action are necessary. Should any changes become 
necessary, they would be submitted to OMB for approval.
    This final rule will not impose any additional reporting or 
recordkeeping requirements on either small or large 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.
    AMS is committed to complying with the E-government Act, to promote 
the use of the Internet and other information technologies to provide 
increased opportunities for citizen access to Government information 
and services, and for other purposes. In addition, USDA has not 
identified any relevant Federal rules that duplicate, overlap, or 
conflict with this final rule.
    Further, the Committee's meeting was widely publicized throughout 
the Colorado potato industry and all interested persons were invited to 
attend the meeting and participate in Committee deliberations. Like all 
Committee meetings, the July 19, 2012, meeting was a public meeting and 
all entities, both large and small, were able to express their views on 
this issue.
    A proposed rule concerning this action was published in the Federal 
Register on February 11, 2013 (78 FR 9629). An internet link to the 
proposed rule was published in a monthly industry newsletter 
distributed to growers, handlers, and other interested persons. 
Finally, the proposed rule was made available through the Internet by 
USDA and the Office of the Federal Register. A 60-day comment period 
ending April 12, 2013, was provided to allow interested persons to 
respond to

[[Page 30739]]

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: 
www.ams.usda.gov/MarketingOrdersSmallBusinessGuide. Any questions about 
the compliance guide should be sent to Jeffrey Smutny 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 action, 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 final rule until 30 days after publication in 
the Federal Register (5 U.S.C. 553) because the 2013-2014 term of 
office will begin on June 1, 2013. Further, handlers are aware of this 
action, which was recommended at a public meeting. Also, a 60-day 
comment period was provided for in the proposed rule.

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 
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)(3) is revised to read as follows:


Sec.  948.150  Reestablishment of committee membership.

* * * * *
    (a) * * *
    (3) One (1) producer from either Conejos or Costilla County.
* * * * *

    Dated: May 17, 2013.
Rex A. Barnes,
Associate Administrator, Agricultural Marketing Service.
[FR Doc. 2013-12240 Filed 5-22-13; 8:45 am]
BILLING CODE 3410-02-P