[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  

[[Page 60733]]


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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: [email protected] or 
[email protected]. 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 [email protected].

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,

[[Page 60734]]

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

[[Page 60735]]

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