[Federal Register: September 11, 2002 (Volume 67, Number 176)]
[Proposed Rules]
[Page 57537-57539]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr11se02-15]
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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: moab.docketclerk@usda.gov.
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: Jay.Guerber@usda.gov.
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
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