[Federal Register: August 2, 2005 (Volume 70, Number 147)]
[Rules and Regulations]
[Page 44249-44252]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr02au05-5]
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DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Part 923
[Docket Nos. AO-F&V-923-3; FV03-923-01 FR]
Sweet Cherries Grown in Designated Counties in Washington; Order
Amending Marketing Order No. 923
AGENCY: Agricultural Marketing Service, USDA.
ACTION: Final rule.
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SUMMARY: This rule amends the marketing order (order) for sweet
cherries grown in Washington. Sweet cherry growers, voting in a mail
referendum held March 1 through March 21, 2005, voted on four
amendments proposed by the Washington Cherry Marketing Committee
(Committee), which is responsible for local administration of the
order, and two amendments proposed by the Agricultural Marketing
Service of USDA. Of the six amendments proposed, three were favored,
including: Adding authority for the Committee to accept voluntary
contributions for research and promotion; establishing tenure
limitations for Committee members; and requiring that continuance
referenda be conducted every 6 years. The three amendments that failed
include: adding authority for promotion, including paid advertising,
and production research projects; adding authority for supplemental
rates of assessment for individual varieties of cherries; and, adding a
public member to the Committee. These amendments will not be
implemented.
EFFECTIVE DATE: This rule is effective August 3, 2005.
FOR FURTHER INFORMATION CONTACT: Melissa Schmaedick, Marketing Order
Administration Branch, Fruit and Vegetable Programs, Agricultural
Marketing Service, USDA, Post Office Box 1035, Moab, UT 84532,
telephone: (435) 259-7988, fax: (435) 259-4945; or Robert J. Curry,
Marketing Order Administration Branch, Fruit and Vegetable Programs,
AMS, USDA, Northwest Marketing Field Office, 1220 SW., Third Avenue,
Room 385, Portland, OR 97204; telephone (503) 326-2724 or Fax (503)
326-7440.
Small businesses may request information on this proceeding 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: Prior documents in this proceeding include:
Notice of Hearing issued on October 6, 2003, and published in the
October 10, 2003, issue of the Federal Register (68 FR 58636);
Recommended Decision issued on September 29, 2004 and published in the
October 5, 2004 issue of the Federal Register (69 FR 59551); and a
Secretary's Decision and Referendum Order issued January 11, 2005 and
published in the Federal Register on January 14, 2005 (70 FR 2573).
This administrative action is governed by the provisions of
sections 556 and 557 of title 5 of the United States Code and is
therefore excluded from the requirements of Executive Order 12866.
Preliminary Statement
This final rule was formulated on the record of a public hearing
held November 18, 2003, in Yakima, Washington. Notice of the public
hearing was issued on October 6, 2003, and published in the October 10,
2003, issue of the Federal Register (68 FR 58636). The hearing was held
to consider the proposed amendment of Marketing Agreement and Order No.
923, regulating the handling of sweet cherries grown in the State of
Washington, hereinafter referred to as the ``order''. The hearing was
held pursuant to the provisions of the Agricultural Marketing Agreement
Act of 1937, as amended (7 U.S.C. 601 et seq.), hereinafter referred to
as the ``Act,'' and the applicable rules of practice and procedure
governing the formulation of marketing agreements and marketing orders
(7 CFR part 900). The Notice of Hearing contained six proposals: four
proposals submitted by the Committee and two proposals by the
[[Page 44250]]
Agricultural Marketing Committee (AMS).
Upon the basis of evidence introduced at the hearing and the record
thereof, the Administrator of AMS on September 29, 2004, filed with the
Hearing Clerk, U.S. Department of Agriculture, a Recommended Decision
and Opportunity to File Written Exceptions thereto by November 4, 2004.
No comments or exceptions were filed.
A Secretary's Decision and Referendum Order was issued on January
11, 2005, directing that a referendum be conducted during the period
March 1 through March 25, 2005, among growers of sweet cherries to
determine whether they favored the proposed amendments to the order.
Voters voting in the referendum favored three out of the six amendments
proposed by the Committee and USDA.
The amendments favored by the voters and included in this order
will:
1. Add authority for the Committee to accept voluntary
contributions for production research, marketing research and
promotion. Any voluntary contributions received under this new
authority may be used to support marketing research and development
projects designed to assist, improve or promote the marketing,
distribution, and consumption of sweet cherries. Voluntary
contributions may not, however, be used for production research or paid
advertising, as the authority to conduct such activities under the
order was not approved in the referendum.
2. Impose term limitations on Committee members. Upon
implementation, Committee members will be limited to serving no more
than three consecutive two-year terms in one position without a break
in service.
3. Require that continuance referenda be held every 6 years among
Washington sweet cherry producers to determine their support for
continuation of their marketing order program.
The proposals to add authority for production research and paid
advertising, additional rates of assessments for individual varieties
of cherries and a public member to the committee, failed to obtain the
requisite number of votes needed, in number or in volume, to pass.
To become effective, the amendments had to be approved by at least
two-thirds of those producers voting or by voters representing at least
two-thirds of the volume of sweet cherries represented by voters voting
in the referendum.
AMS also proposed to allow such changes as may be necessary to the
order so that all of the order's provisions conform to the effectuated
amendments. None were deemed necessary.
Small Business Considerations
Pursuant to the 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, the 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 so that small businesses will not be
unduly or disproportionately burdened. Small agricultural growers have
been defined by the Small Business Administration (SBA) (13 CFR
121.201) as those having annual receipts of less than $750,000. Small
agricultural service firms are defined as those with annual receipts of
less than $6,000,000.
The record shows that there are approximately 1,500 growers of
sweet cherries in the production area and approximately 62 handlers
subject to regulation under the order. The average production of sweet
cherries in Washington State for the last three years is 64,676 tons
with an average grower price of $1,943 per ton. Using this number, the
average annual grower revenue is calculated to be approximately
$83,777, thus indicating that the average Washington sweet cherry
grower would qualify as a small entity according to the SBA definition.
Using Committee data regarding each individual handler's total
shipments during the 2002 marketing year, and an estimated average FOB
price of $24 per 20-pound container, 79 percent of the Washington sweet
cherry handlers shipped under $5 million worth of sweet cherries, and
21 percent shipped over $5 million worth of sweet cherries. Therefore,
the majority of Washington sweet cherry handlers may be classified as
small entities.
At a May 22, 2003, full Committee meeting, all industry
representatives present could present their views concerning the
recommended amendments. Both large and small businesses were
represented. The Committee believes that small and large entities will
benefit equally from the amendments.
This final rule amends Sec. 923.43 of the order to authorize
acceptance of voluntary contributions. The proposal to add authority
for the Committee to accept voluntary contributions will not result in
any increased costs or burdens to the industry. In fact, witnesses
stated that this authority will benefit the industry greatly as it
could provide for additional funding sources for research activities.
Safeguards against donor control over the use of voluntary
contributions will ensure that these funds will be used in the best
interest of the industry. The Committee will decide how to use those
funds, and the decision-making process will be open to industry input
and feedback.
This final rule amends Sec. 923.21 of the order to authorize term
limits. The amendment to add tenure requirements for Committee members
will allow more persons the opportunity to serve as members of the
Committee. It will provide for more diverse membership, provide the
Committee with new perspectives and ideas, and increase the number of
individuals in the industry with Committee experience.
This final rule amends Sec. 923.64 of the order to authorize
continuance referenda. The amendment to require continuance referenda
on a periodic basis to ascertain grower support for the order will
allow growers to vote on whether to continue the operation of the
program. The referenda will be conducted by USDA.
Interested persons were invited to present evidence at the hearing
on the probable regulatory and informational impacts of the proposed
amendments to the order on small entities. The record evidence is that
while some minimal costs may occur, those costs are expected to be
outweighed by the benefits expected to accrue to the sweet cherry
industry in designated counties of Washington.
Paperwork Reduction Act
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C.
Chapter 35), any reporting and recordkeeping provision changes that
would be generated by these amendments would be submitted to the Office
of Management and Budget (OMB). Current information collection
requirements for Part 923 are approved by OMB under the generic Fruit
Crops package OMB number 0581-0189.
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. These amendments are
designed to enhance the administration and functioning of the marketing
order to the benefit of the industry.
Committee meetings regarding these proposals as well as the hearing
dates were widely publicized throughout the
[[Page 44251]]
Washington sweet cherry industry, and all interested persons were
invited to attend the meetings and the hearing and participate in
Committee deliberations on all issues. All Committee meetings and the
hearing were public forums and all entities, both large and small, were
able to express views on these issues.
Civil Justice Reform
The amendments contained in this rule have been reviewed under
Executive Order 12988, Civil Justice Reform. They are not intended to
have retroactive effect. These amendments will not preempt any State or
local laws, regulations, or policies, unless they present an
irreconcilable conflict with this proposal.
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 the Department 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
there from. A handler is afforded the opportunity for a hearing on the
petition. After the hearing, the 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 the
Department's ruling on the petition, provided an action is filed not
later than 20 days after the date of the entry of the ruling.
Order Amending the Order Regulating Sweet Cherries Grown in Washington
Findings and Determinations
The findings and determinations set forth hereinafter are
supplementary and in addition to the findings and determination
previously made in connection with the issuance of the order; and all
of said previous findings and determinations are hereby ratified and
affirmed, except as such findings and determinations may be in conflict
with the findings and determinations set forth herein.
(a) Findings and Determinations Upon the Basis of the Hearing
Record.
Pursuant to the provisions of the Agricultural Marketing Agreement
Act of 1937, as amended (7 U.S.C. 601 et seq.) and the applicable rules
of practice and procedure effective thereunder (7 CFR part 900), a
public hearing was held upon the proposed amendments to Marketing Order
No. 923 (7 CFR part 923), regulating the handling of sweet cherries
grown in Washington.
Upon the basis of the evidence introduced at such hearing and the
record thereof it is found that:
(1) The marketing order, as amended, and as hereby further amended,
and all of the terms and conditions thereof, will tend to effectuate
the declared policy of the Act;
(2) The marketing order, as amended, and as hereby further amended,
regulates the handling of sweet cherries grown in the production area
in the same manner as, and is applicable only to persons in the
respective classes of commercial and industrial activity specified in
the marketing order upon which hearings have been held;
(3) The marketing order, as amended, and as hereby further amended,
is limited in application to the smallest regional production area
which is practicable, consistent with carrying out the declared policy
of the Act, and the issuance of several orders applicable to
subdivision of the production area would not effectively carry out the
declared policy of the Act;
(4) The marketing order, as amended, and as hereby further amended,
prescribes, insofar as practicable, such different terms applicable to
different parts of the production area as are necessary to give due
recognition to the differences in the production and marketing of sweet
cherries grown in the production area; and
(5) All handling of sweet cherries grown in the production area is
in the current of interstate or foreign commerce or directly burdens,
obstructs, or affects such commerce.
(b) Additional findings. It is necessary and in the public interest
to make the amendments to this order effective not later than one day
after publication in the Federal Register. A later effective date would
unnecessarily delay implementation of the approved changes, which are
expected to benefit the Washington sweet cherry industry. Immediate
implementation of the amendments is necessary in order to make the
amendments effective as specified.
In view of the foregoing, it is hereby found and determined that
good cause exists for making these amendments effective one day after
publication in the Federal Register, and that it would be contrary to
the public interest to delay the effective date for 30 days after
publication in the Federal Register (Sec. 553(d), Administrative
Procedure Act; 5 U.S.C. 551-559).
(c) Determinations. It is hereby determined that:
(1) Handlers (excluding cooperative associations of producers who
are not engaged in processing, distributing, or shipping sweet cherries
covered by the order as hereby amended) who, during the period April 1,
2004, through February 28, 2005, handled 50 percent or more of the
volume of such sweet cherries covered by said order, as hereby amended,
have not signed an amended marketing agreement;
(2) The issuance of this amendatory order, further amending the
aforesaid order, is favored or approved by at least two-thirds of the
producers who participated in a referendum on the question of approval
and who, during the period of April 1, 2004, through February 28, 2005
(which has been deemed to be a representative period), have been
engaged within the production area in the production of such sweet
cherries, such producers having also produced for market at least two-
thirds of the volume of such commodity represented in the referendum;
and
(3) In the absence of a signed marketing agreement, the issuance of
this amendatory order is the only practical means pursuant to the
declared policy of the Act of advancing the interests of producers of
sweet cherries in the production area.
Order Relative To Handling of Sweet Cherries Grown in Washington
It is therefore ordered, that on and after the effective date
hereof, all handling of sweet cherries grown in Washington shall be in
conformity to, and in compliance with, the terms and conditions of the
said order as hereby amended as follows:
The provisions of proposals 3, 5 and 6 of the proposed order
amending the order contained in the Recommended Decision issued by the
Administrator on September 29, 2004, and published in the Federal
Register on October 5, 2004, shall be and are the terms and provisions
of this order amending the order and set forth in full herein.
List of Subjects in 7 CFR Part 923
Cherries, Marketing agreements, Reporting and recordkeeping
requirements.
0
For the reasons set out it the preamble, 7 CFR part 923 is amended as
follows:
PART 923--SWEET CHERRIES GROWN IN DESIGNATED COUNTIES IN WASHINGTON
0
1. The authority citation for 7 CFR part 923 continues to read as
follows:
Authority: 7 U.S.C. 601-674.
[[Page 44252]]
0
2. Section 923.21 is revised 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.
0
3. A new Sec. 923.43 is added 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.
0
4. Section 923.64 is amended by:
0
A. Revising paragraph (c).
0
B. Redesignating paragraph (d) as paragraph (e).
0
C. Adding a new paragraph (d).
The revisions 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
growers 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.
(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 growers.
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 growers who, during a representative
period determined by the Secretary, have been engaged in the production
of cherries in the production area.
* * * * *
Dated: July 27, 2005.
Kenneth C. Clayton,
Acting Administrator, Agricultural Marketing Service.
[FR Doc. 05-15169 Filed 8-1-05; 8:45 am]
BILLING CODE 3410-02-P