[Federal Register Volume 63, Number 221 (Tuesday, November 17, 1998)]
[Proposed Rules]
[Pages 63803-63804]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-30828]


      
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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. 63, No. 221 / Tuesday, November 17, 1998 / 
Proposed Rules  

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DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 930

[Docket No. AO-370-A6; FV98-930-2]


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 consider 
amending Marketing Agreement and Order No. 930, hereinafter referred to 
as the ``order.'' The order regulates the handling of tart cherries 
grown in Michigan, New York, Pennsylvania, Oregon, Utah, Washington and 
Wisconsin. The purpose of the hearing is to receive evidence on two 
proposals to amend the order. The proposals were submitted by the 
Cherry Industry Administrative Board (Board), which is responsible for 
local administration of the order. One proposed amendment would clarify 
the current limitation on the number of Board members that may 
represent a single ``sales constituency.'' The second would simplify 
the method used to establish volume regulations for tart cherries.

DATES: The hearing will begin at 9:00 a.m. in Grand Rapids, Michigan on 
December 1, 1998, and, if necessary, will continue the next day 
beginning at 9:00 a.m. A second hearing session will begin at 9:00 a.m. 
in Salt Lake City, Utah on December 3, 1998, and, if necessary, will 
continue the next day beginning at 9:00 a.m.

ADDRESSES: The Grand Rapids hearing will be held at the Hilton Grand 
Rapids Hotel, 4747 28th Street SE, Grand Rapids, Michigan 99512. The 
Salt Lake City hearing will be held in the Conference Room at the Utah 
Department of Agriculture and Food, 350 North Redwood Road, Salt Lake 
City, Utah 84116.

FOR FURTHER INFORMATION CONTACT: Kenneth G. Johnson or Anne M. 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) 205-6632. 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) 205-6632.

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 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 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 Board submitted a proposal to clarify the current limitation on 
the number of Board members that may represent a single ``sales 
constituency.'' The definition of that term would be clarified to 
reduce uncertainty over which types of industry organizations are 
intended to be included under that definition. A second Board proposal 
would simplify its method of calculating the optimum supply of tart 
cherries used in establishing annual volume regulations.
    The Board works with the Department in administering the order. 
These proposals have not received the approval of the Secretary of 
Agriculture.
    The Board believes that the proposed changes would improve the 
administration, operation, and functioning of the order.
    Also, the Fruit and Vegetable Programs of the Agricultural 
Marketing Service (AMS) proposes to allow such conforming changes to 
the order which 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) 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.
    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

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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 
Board 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 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 No. 1

    Revise Sec. 930.16 to read as follows:


Sec. 930.16  Sales constituency.

    Sales constituency means a common marketing organization or 
brokerage firm or individual representing a group of handlers or 
growers. An organization which receives consignments of cherries and 
does not direct where the consigned cherries are sold is not a sales 
consituency.

Proposal No. 2

    In Sec. 930.50, revise paragraph (a) to read as follows:


Sec. 930.50  Marketing policy.

    (a) Optimum Supply. On or about July 1 of each crop year, the Board 
shall hold a meeting to review sales data, inventory data, current crop 
forecasts and market conditions in order to establish an optimum supply 
level for the crop year. The optimum supply volume shall be calculated 
as 100 percent of the average sales of the prior three years, reduced 
by the sales that represent dispositions of restricted cherries 
qualifying for diversion credit, unless the Board votes to do 
otherwise, to which shall be added a desirable carryout inventory not 
to exceed 20 million pounds or such other amount as the Board, with the 
approval of the Secretary, may establish. This optimum supply volume 
shall be announced by the Board in accordance with paragraph (h) of 
this section.
* * * * *
    The Fruit and Vegetable Programs, Agricultural Marketing Service, 
submitted the following proposal:

Proposal No. 3

    Make such changes as may be necessary to the order to conform with 
any amendment thereto that may result from the hearing.

    Dated: November 12, 1998.
Enrique E. Figueroa,
Administrator, Agricultural Marketing Service.
[FR Doc. 98-30828 Filed 11-13-98; 12:58 pm]
BILLING CODE 3410-02-P