[Federal Register: February 7, 2007 (Volume 72, Number 25)]
[Proposed Rules]
[Page 5646-5648]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr07fe07-28]
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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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[[Page 5646]]
DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Part 930
[Docket No. AO-322-A7; AMS-FV-06-0213; FV07-930-2]
Tart Cherries Grown in the States of Michigan, New York,
Pennsylvania, Oregon, Utah, Washington, and Wisconsin; Hearing on
Proposed Amendment of Marketing Agreement and Order No. 930
AGENCY: Agricultural Marketing Service, USDA.
ACTION: Notice of hearing on proposed rulemaking.
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SUMMARY: Notice is hereby given of a public hearing to receive evidence
on proposed amendments to Marketing Agreement and Order No. 930
(order), which regulate the handling of tart cherries grown in
Michigan, New York, Pennsylvania, Oregon, Utah, Washington, and
Wisconsin. Seven amendments are proposed by the Cherry Industry
Administrative Board (Board), which is responsible for local
administration of the order. These proposed amendments would: Authorize
changing the primary reserve capacity associated with the volume
control provisions of the order; authorize establishment of a minimum
inventory level at which all remaining product held in reserves would
be released to handlers for use as free tonnage; establish an age
limitation on product placed into reserves; revise the voting
requirements necessary to approve a Board action; revise the nomination
and election process for handler members on the Board; revise Board
membership affiliation requirements; and update order language to more
accurately reflect grower and handler participation in the nomination
and election process in Districts with only one Board representative.
In addition, the Agricultural Marketing Service (AMS) proposes to make
any such changes as may be necessary to the order or administrative
rules and regulations to conform to any amendment that may result from
the hearing. The proposals are intended to provide additional
flexibility in administering the volume control provisions of the
order, and to update Board nomination, election, and membership
requirements. These proposed amendments are intended to improve the
operation and administration of the order.
DATES: The hearing dates are:
1. February 21, 2007, 9 a.m. to 5 p.m.; and continuing on February
22, 2007, at 9 a.m., if necessary, in Grand Rapids, Michigan.
2. March 1, 2007, 9 a.m. to 5 p.m.; and continuing on March 2,
2007, at 9 a.m., if necessary, in Provo, Utah.
ADDRESSES: The hearing locations are:
1. Grand Rapids--U.S. Bankruptcy Court, One Division Ave., N, 3rd
Floor Courtroom C, Grand Rapids, MI 49503.
2. Provo--Utah County Administration Building, 100 E. Center
Street, Room L900, Provo, Utah 84606.
FOR FURTHER INFORMATION CONTACT: Martin Engeler, Marketing Order
Administration Branch, Fruit and Vegetable Programs, AMS, USDA, 2202
Monterey Street, Fresno, California 93721; telephone: (559) 487-5110,
Fax: (559) 487-5906; or Kathleen M. Finn, 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:
Martin.Engeler@usda.gov or Kathy.Finn@usda.gov.
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: 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 proposed amendments were recommended by the Board and initially
submitted to USDA on December 16, 2005. Additional information was
submitted in June 2006 at the request of USDA and a determination was
subsequently made to schedule this matter for hearing.
The proposed amendments to the order recommended by the Board are
summarized as follows:
1. Amend Sec. 930.50 of the order to authorize changing the
primary reserve capacity associated with the volume control provisions
of the order.
[[Page 5647]]
2. Amend Sec. 930.54 of the order to authorize establishment of a
minimum inventory level at which all remaining product held in reserves
would be released to handlers for use as free tonnage.
3. Amend Sec. 930.55 to establish an age limitation on product
placed into reserves.
4. Amend Sec. 930.32 to revise the voting requirements necessary
to approve a Board action.
5. Amend Sec. 930.23 to revise the nomination and election process
for handler members on the Board.
6. Amend Sec. 930.20 to revise Board membership affiliation
requirements.
7. Amend Sec. 930.23 to update order language to more accurately
reflect grower and handler participation in the nomination and election
process in Districts with only one Board representative.
The Board works with USDA in administering the order. These
proposals submitted by the Board have not received the approval of
USDA. The Board believes that its proposed changes would provide
additional flexibility in administering the volume control provisions
of the order, and would update the nomination, election, and membership
requirements for the Board. The proposed amendments are intended to
improve the operation and administration of the order.
In addition to the proposed amendments to the order, AMS proposes
to make any such changes as may be necessary to the order or
administrative rules and regulations to conform to any amendment that
may result from 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) 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, except any designated employee of the General
Counsel assigned to represent the Board in this proceeding; 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 930
Marketing agreements, Reporting and recordkeeping requirements,
Tart cherries.
PART 930--TART CHERRIES GROWN IN THE STATES OF MICHIGAN, NEW YORK,
PENNSYLVANIA, OREGON, UTAH, WASHINGTON, AND WISCONSIN
1. The authority citation for 7 CFR part 930 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 Cherry Industry Administrative Board:
Proposal Number 1
3. Revise paragraph (i) of Sec. 930.50 to read as follows:
Sec. 930.50 Marketing policy.
* * * * *
(i) Restricted Percentages. Restricted percentage requirements
established under paragraphs (b), (c), or (d) of this section may be
fulfilled by handlers by either establishing an inventory reserve in
accordance with Sec. 930.55 or Sec. 930.57 or by diversion of product
in accordance with Sec. 930.59. In years where required, the Board
shall establish a maximum percentage of the restricted quantity which
may be established as a primary inventory reserve such that the total
primary inventory reserve does not exceed 50 million pounds; Provided,
That such 50 million pound quantity may be changed upon recommendation
of the Board and approval of the Secretary. Any such change shall be
recommended by the Board on or before September 30 of any crop year to
become effective for the following crop year, and the quantity may be
changed no more than one time per crop year. Handlers will be permitted
to divert (at plant or with grower diversion certificates) as much of
the restricted percentage requirement as they deem appropriate, but may
not establish a primary inventory reserve in excess of the percentage
established by the Board for restricted cherries. In the event handlers
wish to establish inventory reserve in excess of this amount, they may
do so, in which case it may be classified as a secondary inventory
reserve and will be regulated accordingly.
* * * * *
Proposal Number 2
4. Add a new paragraph (d) to Sec. 930.54 to read as follows:
Sec. 930.54 Prohibition on the use or disposition of inventory
reserve cherries.
* * * * *
(d) Should the volume of cherries held in the primary inventory
reserves and, subsequently, the secondary inventory reserves reach a
minimum amount, which level will be established by the Secretary upon
recommendation from the Board, the products held in the respective
reserves shall be released from the reserves and made available to the
handlers as free tonnage.
Proposal Number 3
5. Revise paragraph (b) of Sec. 930.55 to read as follows:
Sec. 930.55 Primary inventory reserves.
* * * * *
(b) The form of the cherries, frozen, canned in any form, dried, or
concentrated juice, placed in the primary inventory reserve is at the
option of the handler. The product(s) placed by the handler in the
primary inventory reserve must have been produced in either the current
or the preceding two crop years. Except as may be limited by Sec.
930.50(i) or as may be permitted pursuant to Sec. Sec. 930.59 and
930.62, such inventory reserve portion shall be equal to the sum of the
products obtained by multiplying the weight or volume of the cherries
in each lot of cherries acquired during the fiscal period by the then
effective restricted percentage fixed by the Secretary; Provided, That
in converting cherries in each lot to the form chosen by the handler,
the inventory reserve obligations shall be adjusted in accordance with
uniform rules adopted by the Board in terms of raw fruit equivalent.
* * * * *
Proposal Number 4
6. Revise paragraph (a) of Sec. 930.32 to read as follows:
[[Page 5648]]
Sec. 930.32 Procedure.
(a) Two-thirds (\2/3\) of the members of the Board, including
alternates acting for absent members, shall constitute a quorum. For
any action of the Board to pass, at least two-thirds (\2/3\) of those
present at the meeting must vote in support of such action.
* * * * *
Proposal Number 5
7. Revise paragraph (b)(2), redesignate paragraph (c)(3) as
paragraph (c)(3)(i) and add a new paragraph (c)(3)(ii) to Sec. 930.23
to read as follows:
Sec. 930.23 Nomination and election.
* * * * *
(b) * * *
(2) In order for the name of a handler nominee to appear on an
election ballot, the nominee's name must be submitted with a petition
form, to be supplied by the Secretary or the Board, which contains the
signature of one or more handler(s), other than the nominee, from the
nominee's district who is or are eligible to vote in the election and
that handle(s) a combined total of no less than five percent (5%) of
the average production, as that term is used in Sec. 930.20, handled
in the district. The requirement that the petition form be signed by a
handler other than the nominee shall not apply in any district where
fewer than two handlers are eligible to vote.
* * * * *
(c) * * *
(3)(i) * * *
(ii) To be seated as a handler representative in any district, the
successful candidate must receive the support of handler(s) that
handled a combined total of no less than five percent (5%), of the
average production, as that term is used in Sec. 930.20, handled in
the district.
* * * * *
Proposal Number 6
8. Revise paragraph (g) of Sec. 930.20 to read as follows:
Sec. 930.20 Establishment and membership.
* * * * *
(g) In order to achieve a fair and balanced representation on the
Board, and to prevent any one sales constituency from gaining control
of the Board, not more than one Board member may be from, or affiliated
with, a single sales constituency in those districts having more than
one seat on the Board; Provided, That this prohibition shall not apply
in a district where such a conflict cannot be avoided. There is,
however, no prohibition on the number of Board members from differing
districts that may be elected from a single sales constituency which
may have operations in more than one district. However, as provided in
Sec. 930.23, a handler or grower may only nominate Board members and
vote in one district.
* * * * *
Proposal Number 7
9. Revise paragraphs (b)(5) and (c)(4) of Sec. 930.23 to read as
follows:
Sec. 930.23 Nomination and election.
* * * * *
(b) * * *
(5) In districts entitled to only one Board member, both growers
and handlers may be nominated for the district's Board seat. Grower and
handler nominations must follow the petition procedures outlined in
paragraphs (b)(1) and (b)(2) of this section.
* * * * *
(c) * * *
(4) In districts entitled to only one Board member, growers and
handlers may vote for either the grower or handler nominee(s) for the
single seat allocated to those districts.
* * * * *
Proposal submitted by USDA:
Proposal Number 8
Make such changes as may be necessary to the order to conform with
any amendment thereto that may result from the hearing.
Dated: February 5, 2007.
Lloyd C. Day,
Administrator, Agricultural Marketing Service.
[FR Doc. 07-549 Filed 2-5-07; 10:43 am]
BILLING CODE 3410-02-P