[Federal Register: October 10, 2003 (Volume 68, Number 197)]
[Proposed Rules]
[Page 58636-58638]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr10oc03-21]
========================================================================
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.
========================================================================
[[Page 58636]]
DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Part 923
[Docket No. FV03-923-1 PR]
Sweet Cherries Grown in Designated Counties in Washington;
Hearing on Proposed Amendment of Marketing Agreement and Order No. 923
AGENCY: Agricultural Marketing Service, USDA.
ACTION: Notice of hearing on proposed rulemaking.
-----------------------------------------------------------------------
SUMMARY: Notice is hereby given of a public hearing to receive evidence
on six proposed amendments to Marketing Agreement and Order No. 923,
which regulate the handling of sweet cherries grown in designated
counties in Washington. Four amendments are proposed by the Washington
Cherry Marketing Committee (Committee), which is responsible for local
administration of the order: Adding the authority for promotion,
including paid advertising, and production research projects; adding
the authority to recommend additional rates of assessment for
individual varieties of cherries; adding the authority for the
Committee to accept voluntary contributions for marketing research and
promotion, including paid advertising, and production research
projects; and adding a public member and alternate public member to the
Committee. Two additional amendments are proposed by the Agricultural
Marketing Service: establishing tenure limitations for Committee
members; and requiring that continuance referenda be conducted on a
periodic basis to ascertain grower support for the order and adding
more flexibility in the termination provisions. These proposals are
intended to improve the operation and functioning of the Washington
sweet cherry marketing order program.
DATES: The hearing will begin at 9 a.m. in Yakima, Washington, on
November 18, 2003, and, if necessary, will continue the next day
beginning at 9 a.m.
ADDRESSES: The hearing will be held at the W.L. Hansen Building, 105 S.
18th Street, Yakima, Washington 98901.
FOR FURTHER INFORMATION CONTACT: Melissa Schmaedick, Marketing Order
Administration Branch, Fruit and Vegetable Programs, AMS, USDA, P.O.
Box 1035, Moab, Utah; telephone: (435) 259-7988, Fax: (435) 259-4945.
Small businesses may request information on this proceeding by
contacting Jay Guerber, Marketing Order Administration Branch, Fruit
and Vegetable Programs, AMS, USDA, room 2525-S, PO Box 96456,
Washington, DC 20090-6456; telephone: (202) 720-2491, Fax: (202) 720-
8938.
SUPPLEMENTARY INFORMATION: This administrative action is instituted
pursuant to the Agricultural Marketing Agreement Act of 1937, as
amended (7 U.S.C. 601-674), hereinafter referred to as the ``Act.''
This action is governed by the provisions of sections 556 and 557 of
title 5 of the United States Code and, therefore, is excluded from the
requirements of Executive Order 12866.
The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) seeks to
ensure that within the statutory authority of a program, the regulatory
and informational requirements are tailored to the size and nature of
small businesses. Interested persons are invited to present evidence at
the hearing on the possible regulatory and informational impacts of the
proposals on small businesses.
The amendments proposed herein have been reviewed under Executive
Order 12988, Civil Justice Reform. They are not intended to have
retroactive effect. If adopted, the proposed amendments would not
preempt any State or local laws, regulations, or policies, unless they
present an irreconcilable conflict with the proposals.
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. 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 the 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.
The hearing is called pursuant to the provisions of the Act and the
applicable rules of practice and procedure governing the formulation of
marketing agreements and orders (7 CFR part 900).
The Committee proposes the following amendments as summarized
below:
1. Amend the order to authorize promotional activities, including
paid advertising, and production research projects.
2. Amend the order to authorize the recommendation of additional
rates of assessment for individual varieties of cherries.
3. Allow the Committee to accept voluntary contributions for
marketing research and promotion, including paid advertising, and
production research projects.
4. Add a public member and alternate public member to the
Committee.
The Committee works with USDA in administering the order. These
proposals have not received the approval of the Department. The
Committee believes that the proposed changes would improve the
administration, operation, and functioning of the order.
In addition, USDA proposes adding two provisions that would help
assure that the operation of the program conforms to current Department
policy. These provisions would establish tenure requirements for
Committee members and require that continuance referenda be conducted
on a periodic basis to ascertain industry support for the order and
adding more flexibility in the termination provisions. USDA also
proposes to allow such conforming changes to the order that may be
necessary as a result of the hearing.
The public hearing is held for the purpose of: (i) Receiving
evidence about the economic and marketing conditions which relate to
the proposed amendments of the order; (ii)
[[Page 58637]]
determining whether there is a need for the proposed amendments to the
order; and (iii) determining whether the proposed amendments or
appropriate modifications thereof will tend to effectuate the declared
policy of the Act.
Testimony is invited at the hearing on all the proposals and
recommendations contained in this notice, as well as any appropriate
modifications or alternatives.
All persons wishing to submit written material as evidence at the
hearing should be prepared to submit four copies of such material at
the hearing and should have prepared testimony available for
presentation at the hearing.
From the time the notice of hearing is issued and until the
issuance of a final decision in this proceeding, USDA employees
involved in the decisional process are prohibited from discussing the
merits of the hearing issues on an ex parte basis with any person
having an interest in the proceeding. The prohibition applies to
employees in the following organizational units: Office of the
Secretary of Agriculture; Office of the Administrator, AMS; Office of
the General Counsel; and the Fruit and Vegetable Programs, AMS.
Procedural matters are not subject to the above prohibition and may
be discussed at any time.
List of Subjects in 7 CFR Part 923
Cherries, Marketing agreements, Reporting and recordkeeping
requirements.
PART 923--SWEET CHERRIES GROWN IN DESIGNATED COUNTIES IN WASHINGTON
1. The authority citation for 7 CFR part 923 continues to read as
follows:
Authority: 7 U.S.C. 601-674.
2. Testimony is invited on the following proposals or appropriate
alternatives or modifications to such proposals.
Proposals submitted by the Washington Cherry Marketing Committee:
Proposal No. 1
Amend Sec. 923.45 to read as follows:
Sec. 923.45 Production and marketing research, promotion and market
development.
The committee, with the approval of the Secretary, may establish or
provide for the establishment of projects involving production
research, marketing research and development, and marketing promotion,
including paid advertising, designed to assist, improve, or promote the
marketing, distribution, consumption or efficient production of
cherries. The expense of such projects shall be paid from funds
collected pursuant to Sec. Sec. 923.41 and 923.43.
Proposal No. 2
In Sec. 923.41, redesignate paragraph (c) as paragraph (d) and add
a new paragraph (c) to read as follows:
Sec. 923.41 Assessments.
* * * * *
(c) Based upon a recommendation of the committee or other available
data, the Secretary shall fix the rate of assessment that handlers
shall pay on all cherries handled during each fiscal period, and may
also fix supplemental rates of assessment on individual varieties or
subvarieties to secure sufficient funds to provide for projects
authorized under Sec. 923.45. At any time during the fiscal period
when it is determined on the basis of a committee recommendation or
other information that a different rate is necessary for all cherries
or for any varieties or subvarieties, the Secretary may modify a rate
of assessment and such new rate shall apply to any or all varieties or
subvarieties that are shipped during the fiscal period.
* * * * *
Proposal No. 3
Add a new Sec. 923.43 to read as follows:
Sec. 923.43 Contributions.
The committee may accept voluntary contributions but these shall
only be used to pay expenses incurred pursuant to Sec. 923.45.
Furthermore, such contributions shall be free from any encumbrances by
the donor and the committee shall retain complete control of their use.
Proposal No. 4
Revise Sec. 923.20 to read as follows:
Sec. 923.20 Establishment and membership.
There is hereby established a Washington Cherry Marketing Committee
consisting of seventeen members, each of whom shall have an alternate
who shall have the same qualifications as the member for whom he or she
is an alternate. Ten members and their respective alternates shall be
growers or officers or employees of corporate growers. Six of the
members and their respective alternates shall be handlers, or officers
or employees of handlers. One member and his or her respective
alternate shall be a public member who is neither a grower nor a
handler. The ten members of the committee who are growers or employees
or officers of corporate growers are referred to in this part as
``grower members'' of the committee; and six members of the committee
who shall be handlers, or officers or employees of handlers are
referred to in this part as ``handler members'' of the committee. Five
of the grower members and their respective alternates shall be
producers of cherries in District 1, and five of the grower members and
their respective alternates shall be producers of cherries in District
2. Three of the handler members and their respective alternates shall
be handlers of cherries in District 1, and three of the handler members
and their representative alternates shall be handlers of cherries in
District 2.
Amend Sec. 923.22 by adding a new paragraph (b)(4) to read as
follows:
Sec. 923.22 Nomination.
* * * * *
(4) The grower and handler members of the committee shall nominate
the public member and alternate public member at the first meeting
following the selection of members for a new term of office.
USDA proposes the following:
Proposal No. 5
Revise Sec. 923.21 to read as follows:
Sec. 923.21 Term of office.
The term of office of each member and alternate member of the
committee shall be for two years beginning April 1 and ending March 31.
Members and alternate members shall serve in such capacities for the
portion of the term of office for which they are selected and have
qualified and until their respective successors are selected and have
qualified. Committee members shall not serve more than three
consecutive terms. Members who have served for three consecutive terms
must leave the committee for at least one year before becoming eligible
to serve again.
Proposal No. 6
In Sec. 923.64, redesignate paragraph (d) as paragraph (e), and
add a new paragraph (d) to read as follows:
Sec. 923.64 Termination.
* * * * *
(c) The Secretary shall terminate the provisions of this part
whenever it is found that such termination is favored by a majority of
producers who, during a representative period, have been engaged in the
production of cherries: Provided, that such majority has, during such
representative period, produced for market more than 50 percent of the
volume of such cherries produced for market.
[[Page 58638]]
(d) The Secretary shall conduct a referendum six years after the
effective date of this section and every sixth year thereafter, to
ascertain whether continuance of this subpart is favored by producers.
The Secretary may terminate the provisions of this subpart at the end
of any fiscal period in which the Secretary has found that continuance
of this subpart is not favored by producers who, during a
representative period determined by the Secretary, have been engaged in
the production of cherries in the production area.
* * * * *
Proposal No. 7
Make such changes as may be necessary to the order to conform with
any amendment thereto that may result from the hearing.
Dated: October 6, 2003.
A.J. Yates,
Administrator, Agricultural Marketing Service.
[FR Doc. 03-25672 Filed 10-9-03; 8:45 am]
BILLING CODE 3410-02-M