[Federal Register: October 10, 2003 (Volume 68, Number 197)]
[Proposed Rules]               
[Page 58638-58640]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr10oc03-22]                         

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DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 946

[Docket No. FV03-946-1 PR]

 
Irish Potatoes Grown in Washington; Hearing on Proposed Amendment 
of Marketing Agreement and Order No. 946

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 nine proposed amendments to Marketing Agreement and Order No. 946, 
which regulate the handling of Irish potatoes grown in Washington. 
Seven amendments are proposed by the State of Washington Potato 
Committee (Committee), which is responsible for local administration of 
the order. These are: adding the authority to establish container and 
marking regulations; requiring Committee producer members to have 
produced potatoes for the fresh market in at least 3 out of the last 5 
years prior to nomination; incorporating language currently existing in 
the Rules and Regulations subpart pertaining to selection and 
establishment of districts; requiring Committee nominees to submit a 
signed acceptance letter prior to appointment by the Agricultural 
Marketing Service (AMS); allowing for nominations to be held at large 
industry meetings; adding the authority to change the size of the 
Committee; and adding the authority to allow for additional alternates 
to serve when a Committee member and that member's alternate are unable 
to serve. AMS proposed two additional amendments to establish tenure 
limitations for Committee members and require that continuance 
referenda be conducted on a periodic basis to ascertain grower support 
for the order.

DATES: The hearing will begin at 9 a.m. in Moses Lake, Washington, on 
November 20, 2003.

ADDRESSES: The hearing will be held at the Best Western Hallmark Inn, 
3000 Marina Drive, Moses Lake, Washington, 98837, (866)-603-9330.

FOR FURTHER INFORMATION CONTACT: Melissa Schmaedick, Marketing Order 
Administration Branch, Fruit and Vegetable Programs, AMS, USDA, PO 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 container and marking regulations. 
This would encompass size, capacity, weight, dimensions, pack, and 
marking or labeling of the container, or containers, which may be used 
in packaging or handling of Irish potatoes grown in Washington.
    2. Amend the order to add language to require production for the 
fresh market in at least 3 out of 5 years preceding nomination to the 
committee for all producer members.
    3. Make administrative changes in Sec.  946.25 ``Selection'' and 
Sec.  946.31 ``District'' to incorporate language currently in the 
Rules and Regulation subpart.
    4. Amend the order to add language requiring Committee nominees to 
submit a signed letter of acceptance prior to selection by AMS.
    5. Allow for nominations to be held at any industry meeting rather 
than requiring separate meetings in each of the districts, as currently 
required by the order.
    6. Amend the order to authorize the Committee to recommend changes 
in the number of Committee members and alternates. Such a 
recommendation would require an analysis of certain factors within the 
industry and approval by the Department.
    7. Allow an alternate member of the same classification (producer 
or handler) to serve in a member's place and stead in the event a 
Committee member and that member's alternate are unable to attend a 
Committee meeting.

[[Page 58639]]

    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, AMS proposes adding two provisions which would help 
assure that operation of the program conforms to current Department 
policy. 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. AMS 
also proposes to allow such changes to the order as may be necessary to 
conform with 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; 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 946

    Marketing agreements, Potatoes, Reporting and recordkeeping 
requirements.

PART 946--IRISH POTATOES GROWN IN WASHINGTON

    1. The authority citation for 7 CFR part 946 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 State of Washington Potato Committee:

Proposal No. 1

    Amend Sec.  946.52 by adding a new paragraph (a)(5) to read as 
follows:


Sec.  946.52  Issuance of regulations.

    (a) * * *
    (5) To regulate the size, capacity, weight, dimensions, pack, and 
marking or labeling of the container, or containers, which may be used 
in the packing or handling of potatoes, or both.
* * * * *
    Add a new Sec.  946.17 to read as follows:


Sec.  946.17  Pack.

    Pack means a quantity of potatoes in any type of container and 
which falls within the specific weight limits or within specific grade 
and/or size limits, or any combination thereof, recommended by the 
committee and approved by the Secretary.
    Add a new Sec.  946.18 to read as follows:


Sec.  946.18  Container.

    Container means a sack, box, bag, crate, hamper, basket, carton, 
package, barrel, or any other type of receptacle used in the packing, 
transportation, sale or other handling of potatoes.

Proposal No. 2

    Revise Sec.  946.22 to read as follows:


Sec.  946.22  Establishment and membership.

    The State of Washington Potato Committee consisting of fifteen 
members, of whom ten shall be producers who have produced potatoes for 
the fresh market for at least three out of the last five years prior to 
nomination and five shall be handlers, is hereby established. For each 
member of the committee there shall be an alternate who shall have the 
same qualifications as the member.

Proposal No. 3

    Amend Sec.  946.25 by revising paragraph (c) to read as follows:


Sec.  946.25  Selection.

* * * * *
    (c) The Secretary shall select committee membership so that, during 
each fiscal period, each district, as designated in Sec.  946.31, will 
be represented as follows:
    (1) District No. 1--Three producer members and one handler member;
    (2) District No. 2--Two producer members and one handler member;
    (3) District No. 3--Two producer members and one handler member;
    (4) District No. 4--Two producer members and one handler member;
    (5) District No. 5--One producer member and one handler member.
    Revise Sec.  946.31 to read as follows:


Sec.  946.31  Districts.

    For the purpose of determining the basis for selecting committee 
members, the following districts of the production area are hereby 
established:
    (a) District No. 1--The counties of Ferry, Stevens, Pend Oreille, 
Spokane, Whitman, and Lincoln, plus the East Irrigation District of the 
Columbia Basin Project, plus the area of Grant County not included in 
either the Quincy or South Irrigation Districts which lies east of 
township vertical line R27E, plus the area of Adams County not included 
in either of the South or Quincy Irrigation Districts.
    (b) District No. 2--The counties of Kittitas, Douglas, Chelan, and 
Okanogan, plus the Quincy Irrigation District of the Columbia Basin 
Project, plus the area of Grant County not included in the East or 
South Irrigation Districts which lies west of township line R28E.
    (c) District No. 3--The counties of Benton, Klickitat, and Yakima.
    (d) District No. 4--The counties of Walla Walla, Columbia, 
Garfield, and Asotin, plus the South Irrigation District of the 
Columbia Basin Project, plus the area of Franklin County not included 
in the South District.
    (e) District No. 5--All of the remaining counties in the State of 
Washington, not included in Districts No. 1, 2, 3, and 4 of this 
section.

Proposal No. 4

    Revise Sec.  946.26 to read as follows:


Sec.  946.26  Qualification and acceptance.

    Any person nominated to serve as a member or alternate member of 
the committee shall, prior to selection by USDA, qualify by filing a 
written background and acceptance statement indicating such person's 
willingness to serve in the position for which nominated.

Proposal No. 5

    Amend Sec.  946.32 by revising paragraph (a) to read as follows:


Sec.  946.32  Nomination.

* * * * *

[[Page 58640]]

    (a) A meeting of producers and handlers shall be held by the 
Committee not later than May 1 of each year to designate nominees for 
members and alternates to the Committee; or the Committee may conduct 
nominations by mail in a manner recommended by the Committee and 
approved by the Secretary; and, in arranging for such meetings, the 
Committee may, if it deems desirable, utilize the services and 
facilities of other existing organizations;
* * * * *

Proposal No. 6

    In Sec.  946.22, designate the current text as paragraph (a) and 
adding a new paragraph (b) to read as follows:


Sec.  946.22  Establishment and membership.

* * * * *
    (b) The Secretary, upon recommendation of the committee, may 
reestablish districts, may reapportion members among districts, may 
change the number of members and alternates, and may change the 
composition by changing the ratio of members, including their 
alternates. In recommending any such changes, the following shall be 
considered:
    (1) Shifts in acreage within districts and within the production 
area during recent years;
    (2) The importance of new production in its relation to existing 
districts;
    (3) The equitable relationship between membership and districts;
    (4) Economies to result for growers in promoting efficient 
administration due to redistricting or reapportionment of members 
within districts and;
    (5) Other relevant factors.

Proposal No. 7

    In Sec.  946.23, designate the current text as paragraph (a) and 
add a new paragraph (b) to read as follows:


Sec.  946.23  Alternate members.

* * * * *
    (b) In the event both a member and his or her alternate are unable 
to attend a committee meeting, the committee members present may 
designate another alternate of the same classification (handler or 
producer) to serve in such member's place and stead.
    USDA proposes the following:

Proposal No. 8

    Amend Sec.  946.27 by revising paragraph (a) to read as follows:


Sec.  946.27  Term of office.

    (a) The term of office of each member and alternate member of the 
committee shall be for three years beginning July 1 and continuing 
until their successors are selected and have qualified: Provided, 
however, That the terms of office of the initial committee under the 
amended order shall be determined by the Secretary so that the terms of 
office of one-third of the initial members and alternates shall be for 
1 year, one-third for two years, and one-third for 3 years. Committee 
members shall not serve more than two consecutive terms. Members who 
have served for two consecutive terms must leave the committee for at 
least one year before becoming eligible to serve again.
* * * * *

Proposal No. 9

    In Sec.  946.63, redesignate paragraph (d) as paragraph (e) and add 
a new paragraph (d) to read as follows:


Sec.  946.63  Termination.

* * * * *
    (d) The Secretary shall conduct a referendum six years after the 
effective date of this paragraph and every sixth year thereafter to 
ascertain whether continuance of this part is favored by growers.
* * * * *

Proposal No. 10

    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. 03-25671 Filed 10-9-03; 8:45 am]

BILLING CODE 3410-02-P