[Federal Register Volume 78, Number 28 (Monday, February 11, 2013)]
[Proposed Rules]
[Pages 9629-9631]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-02979]


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Proposed Rules
                                                Federal Register
________________________________________________________________________

This section of the FEDERAL REGISTER contains notices to the public of 
the proposed issuance of rules and regulations. The purpose of these 
notices is to give interested persons an opportunity to participate in 
the rule making prior to the adoption of the final rules.

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Federal Register / Vol. 78, No. 28 / Monday, February 11, 2013 / 
Proposed Rules

[[Page 9629]]



DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 948

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


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

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Proposed rule.

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SUMMARY: This rule invites comments on reestablishing 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 rule would modify 
the Committee membership structure by amending the position allocated 
to a producer from Conejos County. Beginning with the 2013-2014 term of 
office, such designated Committee position would 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: Comments must be received by April 12, 2013.

ADDRESSES: Interested persons are invited to submit written comments 
concerning this rule. Comments must be sent to the Docket Clerk, 
Marketing Order and Agreement Division, Fruit and Vegetable Program, 
AMS, USDA, 1400 Independence Avenue SW., STOP 0237, Washington, DC 
20250-0237; Fax: (202) 720-8938; or Internet: http://www.regulations.gov. All comments should reference the document 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.regulations.gov. All comments submitted in response to this rule 
will be included in the record and will be made available to the 
public. Please be advised that the identity of the individuals or 
entities submitting the comments will be made public on the Internet at 
the address provided above.

FOR FURTHER INFORMATION CONTACT: Barry Broadbent, 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: 
Barry.Broadbent@ams.usda.gov or GaryD.Olson@ams.usda.gov.
    Small businesses may request information on complying with this 
regulation by contacting Laurel May, 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: Laurel.May@ams.usda.gov.

SUPPLEMENTARY INFORMATION: This proposal 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 proposal has been reviewed under Executive Order 12988, Civil 
Justice Reform. This rule is not intended to have retroactive effect.
    The Act provides that administrative proceedings must be exhausted 
before parties may file suit in court. Under Sec.  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 proposal invites comments on reestablishing the membership 
structure of the Committee. This rule would modify 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, such designated Committee position would 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

[[Page 9630]]

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 dedicates 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, 
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, would 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 would be able to adequately 
represent this sub-region of the production area on the Committee. 
Producers from Costilla County are currently able to serve on the 
Committee in the position allocated in Sec.  948.150(a)(5). This 
position is designated to a producer from all other counties in the 
Area No. 2 production area that do not have specified representation as 
provided 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 proposed action was unanimously recommended 
by the full Committee.

Initial 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 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 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 rule would reestablish 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, 
such designated Committee position would 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 potential impact of 
this change on handlers and producers. The proposed change is expected 
to improve Committee representation for producers from this general 
sub-region of the production area. Further, the proposed 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 rule are not expected to be disproportionately greater or 
less for small handlers or producers than for larger entities.
    The Committee discussed alternatives to this proposed 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 both of the above options would not be sufficiently 
responsive to the current situation and 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 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

[[Page 9631]]

relevant Federal rules that duplicate, overlap, or conflict with this 
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. Finally, interested persons are invited to submit comments 
on this proposed rule, including 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: 
www.ams.usda.gov/MarketingOrdersSmallBusinessGuide. Any questions about 
the compliance guide should be sent to Laurel May at the previously 
mentioned address in the FOR FURTHER INFORMATION CONTACT section.
    A 60-day comment period is provided to allow interested persons to 
respond to this proposal. 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

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: February 5, 2013.
David R. Shipman,
Administrator, Agricultural Marketing Service.
[FR Doc. 2013-02979 Filed 2-8-13; 8:45 am]
BILLING CODE 3410-02-P