[Federal Register Volume 59, Number 235 (Thursday, December 8, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-30244]


[[Page Unknown]]

[Federal Register: December 8, 1994]


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DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service

7 CFR Part 930

[Docket No. AO-370-A5; FV93-930-1)

 

Proposed Tart Cherry Marketing Agreement and Order; Reopening of 
Promulgation Hearing

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Public hearing; reopening.

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SUMMARY: This notice reopens a public hearing to consider a proposed 
marketing agreement and order to cover tart cherries grown in the 
States of Michigan, New York, Pennsylvania, Oregon, Utah, Washington 
and Wisconsin. The proposed agreement and order would authorize volume 
regulation, grade, size, maturity, pack and container regulations 
including mandatory inspection. The proposed order would also authorize 
production, processing and marketing research and promotion projects. 
The proposal was submitted by the Cherry Marketing Institute (CMI), a 
major industry organization, on behalf of interested cherry growers and 
processors (handlers). The program would be financed by assessments 
levied on handlers. The assessment rate would be established by the 
Secretary of Agriculture, based on the recommendation of a committee 
that would administer the program. The committee, appointed by the 
Secretary, would be composed of 18 members (17 growers and handlers and 
a public member).

DATES: Additional hearing sessions will be held January 12 and 13, 
1995, in Portland, Oregon, and January 18 and 19, 1995, in Grand 
Rapids, Michigan. All sessions will begin at 9 a.m.

ADDRESSES: The hearing sessions will be held at the following 
locations:

1. Portland--Airport Holiday Inn, 8439 Northeast Columbia Blvd., 
Portland, Oregon.
2. Grand Rapids--Best Western-Midway, 4101 28th Street SE., Grand 
Rapids, Michigan.

FOR FURTHER INFORMATION CONTACT: (1) R. Charles Martin or Kenneth G. 
Johnson, Marketing Order Administration Branch, Fruit and Vegetable 
Division, Room 2523-S, AMS, USDA, P.O. Box 96456, Washington, DC 20090-
6456; telephone number (202) 720-5053.
    (2) Robert Curry, Northwest Marketing Field Office, Marketing Order 
Administration Branch, Fruit and Vegetable Division, AMS, USDA, 1220 
S.W. Third Avenue, Room 369, Portland, Oregon, 97204; telephone: (503) 
326-2725.

SUPPLEMENTARY INFORMATION: This 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. The 
reopened hearing is called pursuant to the provisions of the 
Agricultural Marketing Agreement Act of 1937 (Act), as amended (7 
U.S.C. 601 et seq.), and applicable rules of practice and procedure 
governing the formulation of marketing agreements and orders (7 CFR 
part 900).
    The Regulatory Flexibility Act (95 U.S.C. 601 et seq.) applies, and 
seeks to ensure that, within the statutory authority of a program, the 
regulatory and informational requirements of the program are tailored 
to the size and nature of small businesses. Interested persons are 
invited to present evidence at the hearing on the informational 
requirements and probable economic impact of the proposal on small 
businesses.
    The marketing agreement and order proposed herein have been 
reviewed under Executive Order 12778, Civil Justice Reform. This rule 
is not intended to have retroactive effect. This rule will not preempt 
any state or local laws, regulations, or policies, unless they present 
an irreconcilable conflict with this rule.
    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. After the hearing the Secretary 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 in equity to review the 
Secretary's ruling on the petition, provided a bill in equity is filed 
not later than 20 days after the date of the entry of the ruling.
    This notice is an addendum to a notice of hearing which appeared in 
the Federal Register [58 FR 63108, November 30, 1993; 58 FR 68065, 
December 23, 1993; 59 FR 4259, January 31, 1994]. Public hearing 
sessions were held December 15-17, 1993, in Grand Rapids, Michigan; 
January 10-11, 1994, in Rochester, New York; January 13 in Provo, Utah, 
and February 15-17, in Portland, Oregon, to receive evidence on the 
marketing order proposal. These multiple hearing sessions were held to 
receive evidence on the marketing order proposal from growers, 
handlers, processors and other interested parties located throughout 
the proposed production area.
    At the conclusion of the February hearing in Oregon, the deadline 
for filing post-hearing briefs was set at April 29, 1994. The deadline 
for filing post-hearing briefs was extended to May 31; but, based on a 
review of the hearing record including post-hearing briefs, the 
Department of Agriculture (USDA) determined that the hearing should be 
reopened to take additional evidence on certain provisions of the 
proposals offered at the hearing and any appropriate modifications 
thereof. The major areas in which USDA is seeking additional evidence 
include the following:
    (a) Which States should be regulated under the order?
    Additional evidence explaining which States should be regulated 
under the proposed order and why such States would constitute the 
smallest practicable area to be regulated would be most helpful to USDA 
in making its decision regarding the proposed order. In a related 
issue, evidence is sought on how committee representation should be 
determined if a production area other than that proposed by CMI were to 
be adopted (i.e., quorum, concurring vote requirements for committee 
actions to take place).
    (b) What is the economic impact of the proposed order on small and 
large businesses?
    Additional evidence is sought concerning the differential impacts 
of the proposed order on small and large businesses (i.e., costs of 
regulation, recordkeeping), especially the effects of diversion on 
handlers and producers in regulated States other than Michigan.
    (c) Will expected program benefits exceed costs, especially for 
growers, handlers and consumers?
    The costs at issue include handler assessments, administrative 
costs, compliance costs, etc.
    (d) If adopted, how would certain provisions of the order be 
implemented?
    More comprehensive evidence is sought concerning the proposed 
marketing policies, including calculations of volume regulation 
percentages (i.e. preliminary, interim and final percentages), issuance 
and redemption of diversion certificates, payment of assessments for 
storing reserves in non-volume regulated states, and how quality 
requirements would be implemented. What would be most helpful are 
specific details to illustrate how these provisions would work if the 
order were implemented.
    Everyone having an interest in this matter is invited to testify. 
Persons wishing to submit written material as evidence at the hearing 
should submit at least four copies of such material and should be 
present at the hearing to present oral testimony concerning the 
material.
    As with the initial notice of hearing, 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, Agricultural Marketing Service; Office of the General 
Counsel; and the Fruit and Vegetable Division, Agricultural Marketing 
Service.
    Procedural matters are not subject to the above prohibition and may 
be discussed at any time.

    Authority: 7 U.S.C. 601-674.
    Dated: December 5, 1994.
Lon Hatamiya,
Administrator.
[FR Doc. 94-30244 Filed 12-5-94; 4:18 pm]
BILLING CODE 3410-02-P