[Federal Register: April 10, 2007 (Volume 72, Number 68)]
[Rules and Regulations]
[Page 17792-17795]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr10ap07-2]
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DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Part 946
[Docket No. AMS-FV-06-0182; FV06-946-1 FR]
Irish Potatoes Grown in Washington; Modification of
Administrative Rules Governing Committee Representation
AGENCY: Agricultural Marketing Service, USDA.
ACTION: Final rule.
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SUMMARY: This rule modifies the administrative rules governing
committee representation under the Washington potato marketing order.
The marketing order regulates the handling of Irish potatoes grown in
Washington, and is administered locally by the State of Washington
Potato Committee (Committee). This rule reestablishes districts within
the production area, reestablishes the Committee with fewer members,
and reapportions members among districts. These changes will result in
more efficient administration of the program while providing for more
effective representation of the Washington fresh potato industry on the
Committee.
DATES: Effective Date: July 1, 2007.
FOR FURTHER INFORMATION CONTACT: Teresa Hutchinson or Gary Olson,
Northwest Marketing Field Office, Marketing Order Administration
Branch, Fruit and Vegetable Programs, AMS, USDA; Telephone: (503) 326-
2724, Fax: (503) 326-7440, or e-mail:
Teresa.Hutchinson@usda.gov or GaryD.Olson@usda.gov.
Small businesses may request information on complying with this
regulation by contacting Jay Guerber,
[[Page 17793]]
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 final rule is issued under Marketing
Order No. 946, as amended (7 CFR part 946), regulating the handling of
Irish potatoes grown in Washington, 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 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 modifies the administrative rules governing
committee representation under the Washington potato marketing order.
This rule reestablishes districts within the production area,
reestablishes the Committee with fewer members, and reapportions
members among the new districts. Specifically, this rule reestablishes
the order's five districts as three districts; decreases Committee
membership from fifteen members and fifteen alternate members to nine
members and nine alternate members; and reapportions the members such
that one handler member and alternate member, and two producer members
and their respective alternate members are elected from each of the
three reestablished districts. These changes will result in more
efficient administration of the program while providing for more
effective representation of the fresh potato industry on the Committee.
The Committee unanimously recommended these changes at a meeting held
on June 6, 2006, with a request that they be made effective by July 1,
2007.
The order provides in Sec. 946.22 that USDA, upon recommendation
of the Committee, may reestablish districts, may reapportion members
among districts, may change the number of members and alternate
members, and may change the composition by changing the ratio of
members, including their alternates. In recommending any such changes,
the order requires that the Committee consider the following: (1)
Shifts in acreage within districts and within the production area
during recent years; (2) the importance of new production in its
relation to existing districts; (3) the equitable relationship between
Committee apportionment and districts; and (4) other relevant factors.
Prior to this rule change, the Committee had fifteen members, with
membership apportioned among five districts. Sections 946.31 and
946.103 previously defined the districts as follows: District No. 1--
The counties of Ferry, Stevens, Pend Oreille, Spokane, Whitman, and
Lincoln, plus the East Irrigation District of the Columbia Basin
Project, plus the area of Grant County not included in either the
Quincy or South Irrigation Districts which lies east of township
vertical line R27E, plus the area of Adams County not included in
either of the South or Quincy Irrigation Districts.
District No. 2--The counties of Kittitas, Douglas, Chelan, and
Okanogan, plus the Quincy Irrigation District of the Columbia Basin
Project, plus the area of Grant County not included in the East or
South Irrigation Districts which lies west of township line R28E.
District No. 3--The counties of Benton, Klickitat, and Yakima.
District No. 4--The counties of Walla Walla, Columbia, Garfield,
and Asotin, plus the South Irrigation District of the Columbia Basin
Project, plus the area of Franklin County not included in the South
District.
District No. 5--All of the remaining counties in the State of
Washington not included in Districts No. 1, 2, 3, and 4 of this
section.
Further, Sec. Sec. 946.25 and 946.104 currently provide in part
that each of the five districts are represented as follows:
District No. 1: Three producer members and one handler member;
District No. 2: Two producer members and one handler member; District
No. 3: Two producer members and one handler member; District No. 4: Two
producer members and one handler member; District No. 5: One producer
member and one handler member.
The Committee's districts were last reestablished on July 1, 1975,
largely due to changes in the production area brought about by the
Columbia Basin Project (CBP). The CBP is a large scale irrigation
project administered by the Bureau of Reclamation, U.S. Department of
Interior. The CBP is comprised of three irrigation districts centered
in Grant County, Washington.
The Committee's districts were originally established using county
boundaries, whereas the 1975 redistricting process reestablished the
districts by utilizing existing county and township lines, as well as
the three irrigation districts formed under the CBP. As a consequence,
the Committee utilized the CBP irrigation district boundaries in
redistricting. At the time, the boundaries of the three irrigation
districts were well known to producers in the area. However, as more
producers installed wells to irrigate their potatoes, the CBP
irrigation district boundaries became less relevant.
Also, the Committee reports that it is having difficulty recruiting
members. This recruitment issue is largely due to a decreasing number
of qualified individuals willing to take the time away from their
families and farms to serve on the Committee.
Finally, the Washington State Potato Commission (Commission), an
agency of the State of Washington, has recently reestablished its
production area into three districts. The Committee recommended
reestablishing the order's districts to align with the Commission's new
districts.
After comparing current acreage and production statistics, as well
as the current number of fresh potato producers in each of the order's
five districts to statistics for the Commission's three new districts,
the Committee found that reestablishment of its districts from five to
three would not only be feasible, but could enhance the Committee's
administration of the order. In considering the trend towards less
industry participation on the Committee, as well as the decreasing
relative size of the fresh potato producer population (the 5 year
average fresh production is 13% of the total Washington potato
production), the
[[Page 17794]]
Committee also determined that it could more effectively serve the
industry if it were to reestablish with as few as nine members.
Prior to this rule, the Committee was comprised of ten producer
members and five handler members and their respective alternates. The
Committee felt that this ratio--two producer members to each handler
member--should also be used in reestablishing and reapportioning the
Committee. Based on statistical information available from USDA, the
Committee therefore determined that the reestablished Committee should
be comprised of nine members--six producer members and three handler
members--with two producer members and respective alternates, and one
handler member and respective alternate representing each of the three
new districts.
In determining how to appropriately divide the production area into
three districts, as well as the correct apportionment of nine members
in three new districts, the Committee reviewed the relative differences
in fresh production and acreage estimates in Washington's various
potato producing counties. Using data from the USDA's National
Agriculture Statistics Service (NASS), the Committee's research
indicated that the new District No. 1 will have 41 percent of the fresh
potato producers, 36 percent of the fresh potato production, and 32
percent of the fresh potato acreage in the order's production area. The
new District No. 2 will have 31 percent of the producers, 43 percent of
the production, and 36 percent of the acreage. Finally, the new
District No. 3 will have 28 percent of the producers, 21 percent of the
production, and 32 percent of the acreage.
Although these statistics show that the number of fresh potato
farms and the related production figures are not evenly divided among
the new districts, acreage figures are nearly equal. Additionally, the
Committee reports that there are widely variable yields among the
various table-stock potato varieties produced in Washington's diverse
production areas. In equitably apportioning the nine members among the
three districts, the Committee chose not to provide districts that
predominately produce a lower yielding variety of potato with less
representation on the Committee. As previously noted, the Committee's
recommendation therefore includes provision that two producer members
and one handler member, as well as their respective alternates,
represent each district.
The new districts provide consistency in the Washington potato
industry. All of Grant County is located in the reestablished District
No. 1 instead of being divided between Districts No. 1, 2 and 4, as was
previously the case. The new District No. 1 consists of the counties of
Douglas, Chelan, Okanogan, Grant, Adams, Ferry, Stevens, Pend Oreille,
Spokane, Whitman, and Lincoln. The new District No. 2 consists of the
counties of Kittitas, Yakima, Klickitat, Benton, Franklin, Walla Walla,
Columbia, Garfield, and Asotin. Finally, the new District No. 3
consists of all the remaining counties in the State of Washington not
included in Districts No. 1 and 2 (essentially all of the counties west
of the Cascade Mountains).
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 45 handlers of Washington potatoes subject
to regulation under the order and approximately 267 potato producers in
the regulated area. Small agricultural service firms are defined by the
Small Business Administration (13 CFR 121.201) as those having annual
receipts of less than $6,500,000, and small agricultural producers are
defined as those having annual receipts of less than $750,000.
During the 2005-2006 marketing year, 10,516,095 hundredweight of
Washington potatoes were inspected under the order and sold into the
fresh market. Based on an estimated average f.o.b. price of $7.80 per
hundredweight, the Committee estimates that 43 handlers, or about 96
percent, had annual receipts of less than $6,500,000.
In addition, based on information provided by NASS, the average
producer price for Washington potatoes for the 2005 marketing year (the
most recent period that final statistics are available) was $5.60 per
hundredweight. The average annual producer revenue for each of the 267
Washington potato producers is therefore calculated to be approximately
$220,562. In view of the foregoing, the majority of the handlers and
producers of Washington potatoes may be classified as small entities.
This final rule modifies Sec. Sec. 946.103 and 946.104 of the
order's administrative rules and regulations by reestablishing the
order's districts from the current five districts to three districts,
reestablishing the Committee with nine members rather than fifteen
members, and reapportioning the membership such that each district is
represented by two producers and one handler and their respective
alternates. This final rule is effective July 1, 2007. Authority for
reestablishing the districts, as well as reestablishing and
reapportioning the Committee is provided in Sec. 946.22 of the order.
The Committee believes that these changes will not negatively
impact handlers and producers in terms of cost. Costs for Committee
meetings should actually decrease because of the reduction in the
number of members and their respective alternates traveling to
meetings. Such savings could ultimately be passed on to handlers and
producers in the form of reduced assessments. The benefits for this
rule are not expected to be disproportionately greater or less for
small handlers or producers than for larger entities.
The Committee discussed various alternative reductions in Committee
size and how to reapportion fewer members among the districts.
Ultimately, the Committee determined that reducing its size to nine
members would best mitigate the problems associated with recruitment of
qualified members.
Since this final rule modifies the administrative rules governing
committee representation by reestablishing districts, reestablishing
the Committee, and reapportioning members among districts, additional
reporting or recordkeeping requirements will not be imposed on either
small or large potato handlers. The information collection requirements
contained in this rule have been previously approved by the Office of
Management and Budget under OMB No. 0581-0178, Vegetable and Specialty
Crops. 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
[[Page 17795]]
access to Government information and services, and for other purposes.
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 Washington potato industry and all interested persons
were invited to attend and participate in Committee deliberations on
all issues. Like all Committee meetings, the February 9, 2006, 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 January 16, 2007 (72 FR 1685). Copies of the rule were sent
to all Committee members and were made available for all attendees at
the February 7, 2007, Committee meeting. Finally, the rule was made
available through the Internet by USDA and the Office of the Federal
Register. A 60-day comment period ending March 19, 2007, 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 the Committee needs adequate
time to conduct nominations and a mail vote to elect new Committee
members and alternates prior to the fiscal period beginning on July 1,
2007. Further, Committee members and alternates are aware of this rule,
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 946
Marketing agreements, Potatoes, Reporting and recordkeeping
requirements.
0
For the reasons set forth in the preamble, 7 CFR part 946 is amended as
follows:
PART 946--IRISH POTATOES GROWN IN WASHINGTON
0
1. The authority citation for 7 CFR part 946 continues to read as
follows:
Authority: 7 U.S.C. 601-674.
0
2. Section 946.103 is revised to read as follows:
Sec. 946.103 Reestablishment of districts.
Pursuant to Sec. 946.22, on and after July 1, 2007, the following
districts are reestablished:
(a) District No. 1--the counties of Douglas, Chelan, Okanogan,
Grant, Adams, Ferry, Stevens, Pend Oreille, Spokane, Whitman, and
Lincoln.
(b) District No. 2--the counties of Kittitas, Yakima, Klickitat,
Benton, Franklin, Walla Walla, Columbia, Garfield, and Asotin.
(c) District No. 3--all of the remaining counties in the State of
Washington, not included in Districts No. 1 and No. 2 of this
paragraph.
0
3. Section 946.104 is revised to read as follows:
Sec. 946.104 Reestablishment and reapportionment of committee.
(a) Pursuant to Sec. 946.22, on and after July 1, 2007, the State
of Washington Potato Committee consisting of nine members, of whom six
shall be producers and three shall be handlers, is hereby
reestablished. For each member of the committee there shall be an
alternate who shall have the same qualifications as the member.
(b) Pursuant to Sec. 946.22, on and after July 1, 2007, membership
representation of the State of Washington Potato Committee shall be
reapportioned among the districts of the production area so as to
provide that each of the three districts as defined in Sec. 946.103
are represented by two producer members and one handler member and
their respective alternates.
Dated: April 5, 2007.
Lloyd C. Day,
Administrator, Agricultural Marketing Service.
[FR Doc. 07-1794 Filed 4-6-07; 12:20 pm]
BILLING CODE 3410-02-P