[Federal Register: November 8, 2002 (Volume 67, Number 217)]
[Rules and Regulations]
[Page 68019-68021]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr08no02-1]
========================================================================
Rules and Regulations
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains regulatory documents
having general applicability and legal effect, most of which are keyed
to and codified in the Code of Federal Regulations, which is published
under 50 titles pursuant to 44 U.S.C. 1510.
The Code of Federal Regulations is sold by the Superintendent of Documents.
Prices of new books are listed in the first FEDERAL REGISTER issue of each
week.
========================================================================
[[Page 68019]]
DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Part 948
[Docket No. FV02-948-2 FR]
Irish Potatoes Grown in Colorado; Reduction of Membership on the
Area No. 3 Colorado Potato Administrative Committee
AGENCY: Agricultural Marketing Service, USDA.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This rule reduces 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 decreases 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 will allow the Committee to
function more effectively while still providing equitable
representation for producers and handlers.
EFFECTIVE DATE: This final rule becomes effective November 9, 2002.
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 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 final rule has been reviewed under Executive Order 12988,
Civil Justice Reform. This rule is not intended to have retroactive
effect. This rule 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 decreases the number of positions on the Committee
from five producer and four handler members to three producer and two
handler members, respectively. Each position will 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 will
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 membership on each area committee. Prior to this final
rule, the Area No. 3 Committee consisted of five producers and four
handlers. Three producers and two handlers were from Weld County, and
two producers and two handlers were 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 were 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
[[Page 68020]]
production costs. With a total of only 13 producers and handlers
(several producers are also handlers), the Committee was unable to fill
the 18 positions (nine members and nine alternates) on the Committee.
One member and six alternate positions were vacant. This resulted in
the Committee being unable to conduct business at certain meetings
because of the lack of a quorum. The Committee believed that the
requirement that only producers and handlers from specific counties be
nominated to certain positions did not serve any useful purpose. They
believed that those requirements, in some instances, contributed to the
difficulty the Committee had in filling positions. This reduction in
Committee membership will allow the Committee to function more
effectively while still providing equitable representation for
producers and 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.
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. 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 final rule decreases the number of positions on the Committee
from five producer and four handler members to three producer and two
handler members, respectively. Each position will 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
was unable to fill the 18 positions (nine members and nine alternates)
on the Committee. One member and six alternate member positions were
vacant. This resulted in the Committee being unable to conduct business
at certain meetings because of the lack of a quorum. This reduction in
Committee membership will 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 of 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 also 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 final rule decreases the number of positions on the Committee.
Accordingly, this action will 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.
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 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.
A proposed rule concerning this action was published in the Federal
Register on September 11, 2002 (67 FR 57537). Finally, the rule was
made available through the Internet by the Office of the Federal
Register and USDA. A 15-day comment period ending September 26, 2002,
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 this rule needs to be in place
as soon as possible so that the Colorado Area No. 3 potato industry can
nominate members and alternates to the new Committee as soon as
possible. Further, the Colorado Area No. 3 potato industry is 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.
[[Page 68021]]
For the reasons set forth in the preamble, 7 CFR Part 948 is
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: November 4, 2002.
A.J. Yates,
Administrator, Agricultural Marketing Service.
[FR Doc. 02-28474 Filed 11-7-02; 8:45 am]
BILLING CODE 3410-02-U