[Federal Register Volume 64, Number 215 (Monday, November 8, 1999)]
[Proposed Rules]
[Pages 60733-60735]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-29196]
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Proposed Rules
Federal Register
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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. 64, No. 215 / Monday, November 8, 1999 /
Proposed Rules
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DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Part 923
[Docket No. 99 AMS-FV-923-A1; FV-00-923-1]
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.
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SUMMARY: Notice is hereby given of a public hearing to consider
amending Marketing Agreement and Order No. 923, hereinafter referred to
as the ``order.'' The order regulates the handling of sweet cherries
grown in six counties in eastern Washington. The purpose of the hearing
is to receive evidence on proposed amendments to the order. Six
proposals were submitted by the Washington Cherry Marketing Committee
(Committee), which is responsible for local administration of the
order. The Committee's proposals would: Increase the production area to
cover the area in the State of Washington east of the Cascade Mountain
Range; Increase representation on the Committee by adding an additional
handler member; Allow for special purpose shipments of cherries to
handling operations outside the production area; Provide for collection
of late payment charges and/or interest on handlers' late payment of
assessments; Authorize establishment of container marking requirements;
and Allow prospective Committee members and alternates to qualify for
membership by filing a single form. The Fruit and Vegetable Programs
(F&V) of the Agricultural Marketing Service (AMS) proposes two
additional amendments to bring the program into conformance with
current U. S. Department of Agriculture (Department) policy. These
provisions would establish a limit on the number of consecutive terms a
person may serve as a member on the Committee and would require that
continuance referenda be conducted on a periodic basis to ascertain
support for the order. AMS also proposes to allow such changes as may
be necessary to the order to conform with any amendment that may result
from the hearing.
DATES: The hearing will begin at 9:00 a.m. in Yakima, Washington, on
November 16, 1999, and, if necessary, will continue the next day
beginning at 9:00 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: Kathleen Finn or Anne Dec, Marketing
Order Administration Branch, Fruit and Vegetable Programs, AMS, USDA,
P. O. Box 96456, room 2525-S, Washington, DC 20090-6456; telephone:
(202) 720-2491, Fax: (202) 720-5698 or email at: kathy.finn@usda.gov or
anne.dec@usda.gov. 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, P.O. Box
96456, Washington, DC 20090-6456; telephone: (202) 720-2491, Fax: (202)
720-5698, or email at jay.guerber@usda.gov.
SUPPLEMENTARY INFORMATION: This administrative action is taken 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 the
amendments present an irreconcilable conflict with a law, regulation or
policy.
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 Secretary 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
Secretary'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 proposed six amendments to the order that would
affect its scope and administrative operations.
(1) Increase the production area to cover the area in the State of
Washington east of the Cascade Mountain Range. The marketing order's
rules and regulation are currently in effect for only six counties in
the eastern portion of the State. Sweet cherry production is increasing
significantly in other counties that did not have production when the
order was promulgated in 1957. The Committee believes expanding
marketing order regulations to cover all sweet cherry production east
of the Cascades would ensure that sweet cherries produced east of the
Cascades in Washington would be of a consistent and high quality.
(2) Increase representation on the Committee by adding one
additional handler member. The Committee believes that handler
representation should be equal among the districts, especially if the
districts are reapportioned to accommodate the additional counties
proposed to be included in the production area.
(3) Authorize special purpose shipments, with appropriate
safeguards,
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allowing movement of cherries to handling operations outside the
production area. The Committee believes that facilitating the shipments
of cherries outside the production area for packing would provide more
flexibility to growers in deciding who would market their cherries.
Also, language would be added specifying that the Committee could
rescind or deny to a handler, the special purpose shipment certificate
if proof satisfactory to the Committee was obtained that the cherries
were handled contrary to the special purpose section.
(4) Authorize the Committee, with AMS approval, to collect late
payment charges and/or interest on late payments. The Committee
believes this would encourage timely remittance of assessments by
handlers. The Committee may also recommend other methods of assessment
collection with the approval of the Secretary.
(5) Authorize the Committee, with AMS approval, to establish
container marking requirements. The Committee believes this would
reduce confusion among buyers, help differentiate between grades and
varieties of sweet cherry shipments, and improve compliance with order
requirements.
(6) Authorize Committee nominees to qualify as a member or
alternate by filing a written acceptance of willingness to serve prior
to the selection. Currently, members and alternates complete this form
after notification of the selection. This proposal would combine two
forms currently being used. The Committee believes this will simplify
the Committee selection process. The Committee works with AMS in
administering the order. These proposals have not received the approval
of the Secretary of Agriculture.
The Committee believes that the proposed changes would improve the
administration, operation, and functioning of the order.
The AMS proposes adding two provisions which would help assure that
operations and activities of the Committee are reflective of industry
opinions and positions. The first provision would establish a limit on
the number of consecutive terms a person may serve as member on the
Committee.
The second provision would require that continuance referenda be
conducted on a periodic basis to ascertain industry support for the
order.
Also, AMS proposes to allow such changes as may be necessary to the
order to conform with any amendment thereto that may result from the
hearing.
The public hearing is being held for the purpose of: (1) Receiving
evidence about the economic and marketing conditions which relate to
the proposed amendments of the order; (2) determining whether there is
a need for the proposed amendments to the order; and (3) determining
whether the proposed amendments, or appropriate modifications thereof,
will tend to effectuate the declared policy of the Act. These points
are particularly important for the proposal to expand the production
area. Sweet cherry growers and handlers who are not currently subject
to the order are encouraged to provide testimony at the hearing.
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, Department 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 employees of the General
Counsel assigned to represent the Committee in this rulemaking
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 923
Marketing agreements, Cherries, 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
Revise Sec. 923.4 to read as follows:
Sec. 923.4 Production area.
Production area means the counties of Okanogan, Chelan, Kittitas,
Yakima, Klickitat in the State of Washington and all of the counties in
Washington lying east thereof.
Revise Sec. 923.14 to read as follows:
Sec. 923.14 District.
District means the applicable one of the following described
subdivisions of the production area, or such other subdivisions as may
be prescribed pursuant to Sec. 923.31(m):
(a) District 1 shall include the Counties of Chelan, Okanogan,
Douglas, Grant, Lincoln, Spokane, Pend Oreille, Stevens, and Ferry.
(b) District 2 shall include the counties of Kittitas, Yakima,
Klickitat, Benton, Adams, Franklin, Walla Walla, Whitman, Columbia,
Garfield and Asotin.
Proposal No. 2
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 sixteen members, each of whom shall have an alternate who
shall have the same qualifications as the member for whom he/she is an
alternate. Ten of the 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. 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 the 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. Four of the grower members and their
respective alternates shall be producers of cherries in District 1, and
six 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 respective alternates
shall be handlers of cherries in District 2.
Proposal No. 3
Amend Sec. 923.54 by revising paragraphs (b) and (c) to read as
follows:
Sec. 923.54 Special purpose shipments.
* * * * *
(b) Upon the basis of recommendations and information submitted by
the committee, or from other available information, the Secretary may
relieve from any or all
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requirements, under or established pursuant to Sec. 923.41,
Sec. 923.52, Sec. 923.53, or Sec. 923.55, the handling of cherries in
such minimum quantities, or types of shipments, or for such specified
purposes as the committee, with approval of the Secretary, may
prescribe. Specified purposes under this section may include shipments
of cherries for grading or packing to specified locations outside the
production area and shipments to facilitate the conduct of marketing
research and development projects established pursuant to Sec. 923.45.
(c) The committee shall, with the approval of the Secretary,
prescribe such rules, regulations, and safeguards as it may deem
necessary to prevent cherries handled under the provisions of this
section from entering the channels of trade for other than the specific
purposes authorized by this section. Such rules, regulations, and
safeguards may include the requirements that handlers shall file
applications and receive approval from the committee for authorization
to handle cherries pursuant to this section, and that such applications
be accompanied by a certification by the intended purchaser or receiver
that the cherries will not be used for any purpose not authorized by
this section. The committee may rescind or deny to any handler the
special purpose shipment certificate if proof satisfactory to the
committee is obtained that cherries shipped for the purpose stated in
this section were handled contrary to the provisions of this section.
Proposal No. 4
Revise Sec. 923.41 by adding a new paragraph (c) to read as
follows:
Sec. 923.41 Assessments.
* * * * *
(c) If a handler does not pay any assessment within the time
prescribed by the committee, the assessment may be subject to an
interest or late payment charge, or both, as may be established by the
Secretary as recommended by the committee. The committee may also
recommend other methods of assessment collection with the approval of
the Secretary.
Proposal No. 5
Amend Sec. 923.52 by revising paragraph (a)(3)to read as follows:
Sec. 923.52 Issuance of regulations.
(a) * * *
(3) Fix the size, capacity, weight, dimensions, markings, or pack
of the container, or containers, which may be used in the packaging or
handling of cherries.
* * * * *
Proposal No. 6
Revise Sec. 923.25 to read as follows:
Sec. 923.25 Acceptance.
Any person prior to selection as a member or an alternate member of
the committee shall qualify by filing with the Secretary a written
acceptance of willingness to serve on the committee.
The Fruit and Vegetable Programs, Agricultural Marketing Service,
proposes the following two amendments.
Proposal No. 7
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. 8
Amend Sec. 923.64 by adding a new sentence at the beginning of
paragraph (c) to read as follows:
Sec. 923.64 Termination
* * * * *
(c) The Secretary shall conduct a referendum six years after the
effective date of this paragraph and every sixth year thereafter to
ascertain where continuance of this part is favored by growers. * * *
* * * * *
Dated: November 3, 1999.
Kathleen A. Merrigan,
Administrator, Agricultural Marketing Service.
[FR Doc. 99-29196 Filed 11-5-99; 8;45am]
BILLING CODE 3410-02-P
