[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.

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[[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.

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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