Sweet Cherries Grown in Designated Counties in Washington; Secretary's Decision and Referendum Order on Proposed Amendments to Marketing Agreement and Order No. 923, 2573-2577 [05-825]
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2573
Proposed Rules
Federal Register
Vol. 70, No. 10
Friday, January 14, 2005
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.
DEPARTMENT OF AGRICULTURE
Animal and Plant Health Inspection
Service
7 CFR Part 360
[Docket No. 04–037–2]
Noxious Weeds; Notice of Availability
of Petitions To Regulate Caulerpa
Animal and Plant Health
Inspection Service, USDA.
ACTION: Petition and request for
comments; reopening of comment
period.
AGENCY:
We are reopening the
comment period for our notice
announcing the receipt of two petitions
requesting that additional aquatic plants
of the genus Caulerpa be added to the
list of noxious weeds. This action will
allow interested persons additional time
to prepare and submit comments.
DATES: We will consider all comments
that we receive on or before January 26,
2005.
ADDRESSES: You may submit comments
by any of the following methods:
• EDOCKET: Go to https://
www.epa.gov/feddocket to submit or
view public comments, access the index
listing of the contents of the official
public docket, and to access those
documents in the public docket that are
available electronically. Once you have
entered EDOCKET, click on the ‘‘View
Open APHIS Dockets’’ link to locate
Docket 04–037–1.
• Postal Mail/Commercial Delivery:
Please send four copies of your
comment (an original and three copies)
to Docket No. 04–037–1, Regulatory
Analysis and Development, PPD,
APHIS, Station 3C71, 4700 River Road
Unit 118, Riverdale, MD 20737–1238.
Please state that your comment refers to
Docket No. 04–037–1.
• E-mail: Address your comment to
regulations@aphis.usda.gov. Your
comment must be contained in the body
of your message; do not send attached
files. Please include your name and
SUMMARY:
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address in your message and ‘‘Docket
No. 04–037–1’’ on the subject line.
• Federal eRulemaking Portal: Go to
https://www.regulations.gov and follow
the instructions for locating this docket
and submitting comments.
Petitions: The petitions discussed in
this document are available on the
APHIS Web site at https://
www.aphis.usda.gov/ppq/weeds/ or
from the individual listed as the contact
for further information.
Reading Room: You may read any
comments that we receive on Docket
04–037–1 in our reading room. The
reading room is located in room 1141 of
the USDA South Building, 14th Street
and Independence Avenue SW.,
Washington, DC. Normal reading room
hours are 8 a.m. to 4:30 p.m., Monday
through Friday, except holidays. To be
sure someone is there to help you,
please call (202) 690–2817 before
coming.
Other Information: You may view
APHIS documents published in the
Federal Register and related
information, including the names of
groups and individuals who have
commented on APHIS dockets, on the
Internet at https://www.aphis.usda.gov/
ppd/rad/webrepor.html.
FOR FURTHER INFORMATION CONTACT: Dr.
Alan V. Tasker, Noxious Weeds Program
Coordinator, Invasive Species and Pest
Management, PPQ, APHIS, 4700 River
Road Unit 134, Riverdale, MD 20737–
1237; (301) 734–5225.
SUPPLEMENTARY INFORMATION:
Background
On October 26, 2004, the Animal and
Plant Health Inspection Service (APHIS)
published in the Federal Register (69
FR 62419–62421, Docket No. 04–037–1)
a notice in which we announced the
receipt of, and requested comments on,
two petitions from the International
Center for Technology Assessment. The
first petition requested that APHIS add
the entire genus Caulerpa to the list of
noxious weeds. The second petition
requested, in the case that the first
petition was denied, that all varieties of
the species C. taxifolia be added to the
list of noxious weeds.
Comments on the petitions were
required to be received on or before
December 27, 2004. We are reopening
the comment period on Docket No. 04–
037–1 for an additional 30 days from the
original close of the comment period.
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This action will allow interested
persons additional time to prepare and
submit comments. We will consider all
comments received between December
28, 2004 (the day after the close of the
original comment period) and the date
of this notice.
Authority: 7 U.S.C. 7711–7714, 7718, 7731,
7751, and 7754; 7 CFR 2.22, 2.80, and 371.3.
Done in Washington, DC, this 10th day of
January 2005.
Elizabeth E. Gaston,
Acting Administrator, Animal and Plant
Health Inspection Service.
[FR Doc. 05–801 Filed 1–13–05; 8:45 am]
BILLING CODE 3410–34–P
DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Part 923
[Docket Nos. AO–F&V–923–3; FV03–923–01]
Sweet Cherries Grown in Designated
Counties in Washington; Secretary’s
Decision and Referendum Order on
Proposed Amendments to Marketing
Agreement and Order No. 923
Agricultural Marketing Service,
USDA.
ACTION: Proposed rule and referendum
order.
AGENCY:
SUMMARY: This decision proposes
amending the marketing agreement and
order (order) for sweet cherries grown in
Washington, and provides growers with
the opportunity to vote in a referendum
to determine if they favor the changes.
The amendments are based on those
proposed by the Washington Cherry
Marketing Committee (Committee),
which is responsible for local
administration of the order. The
amendments include: adding authority
for promotion, including paid
advertising, and production research
projects; adding authority for
supplemental rates of assessment for
individual varieties of cherries; adding
authority for the Committee to accept
voluntary contributions for research and
promotion; and, adding a public
member to the Committee. Two
additional amendments are based on
those proposed by the Agricultural
Marketing Service: Establishing tenure
limitations for Committee members and,
requiring that continuance referenda be
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conducted every 6 years. The proposed
amendments are intended to improve
the operation and functioning of the
sweet cherry marketing order program.
DATES: The referendum will be
conducted from March 1 through March
21, 2005. The representative period for
the purpose of the referendum is April
1, 2003 through March 31, 2004.
FOR FURTHER INFORMATION CONTACT:
Melissa Schmaedick, Marketing Order
Administration Branch, Fruit and
Vegetable Programs, Agricultural
Marketing Service, USDA, Post Office
Box 1035, Moab, UT 84532, 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, 1400
Independence Avenue SW., Stop 0237,
Washington, DC 20250–0237; telephone:
(202) 720–2491, fax: (202) 720–8938.
SUPPLEMENTARY INFORMATION: Prior
documents in this proceeding include: a
Notice of Hearing issued on October 6,
2003, and published in the October 10,
2003, issue of the Federal Register (68
FR 58636), and a Recommended
Decision issued on September 29, 2004
and published in the October 5, 2004
issue of the Federal Register (69 FR
59551).
This administrative 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.
Preliminary Statement
The amendments are based on the
record of a public hearing held
November 18, 2003, in Yakima,
Washington. The hearing was held to
consider the proposed amendment of
Marketing Agreement and Order No.
923, regulating the handling of sweet
cherries grown in the State of
Washington, hereinafter referred to as
the ‘‘order’’. The hearing was held
pursuant to the provisions of the
Agricultural Marketing Agreement Act
of 1937, as amended (7 U.S.C. 601 et
seq.), hereinafter referred to as the
‘‘Act,’’ and the applicable rules of
practice and procedure governing the
formulation of marketing agreements
and marketing orders (7 CFR part 900).
The Notice of Hearing contained
numerous proposals submitted by the
Committee and two proposals by the
Agricultural Marketing Committee
(AMS).
The amendments included in this
decision would: (1) Add the authority
for promotion, including paid
advertising, and production research
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projects; (2) add the authority for
supplemental rates of assessment for
individual varieties of cherries; (3) add
the authority for the Committee to
accept voluntary contributions for
marketing research and promotion,
including paid advertising, and
production research projects; and (4)
add a public member and alternate
public member to the Committee.
The Fruit and Vegetable Programs of
AMS proposed to establish tenure
limitations for Committee members and
to require that continuance referenda be
conducted on a periodic basis to
ascertain grower support for the order.
In addition, AMS proposed to allow
such changes as may be necessary to the
order, if any of the proposed changes are
adopted, so that all of the order’s
provisions conform to the effectuated
amendments.
Upon the basis of evidence
introduced at the hearing and the record
thereof, the Administrator of AMS on
October 4, 2004, filed with the Hearing
Clerk, U.S. Department of Agriculture, a
Recommended Decision and
Opportunity to File Written Exceptions
thereto by November 4, 2004. That
document also announced AMS’s intent
to request approval of new information
collection requirements to implement
the program. Written comments on the
proposed information collection
requirements were due by November 4,
2004. None were filed.
Small Business Considerations
Pursuant to the requirements set forth
in the Regulatory Flexibility Act (RFA),
the Agricultural Marketing Service
(AMS) has considered the economic
impact of this action on small entities.
Accordingly, the AMS has prepared this
initial regulatory flexibility analysis.
The purpose of the RFA is to fit
regulatory actions to the scale of
business subject to such actions so that
small businesses will not be unduly or
disproportionately burdened. Small
agricultural growers have been defined
by the Small Business Administration
(SBA) (13 CFR 121.201) as those having
annual receipts of less than $750,000.
Small agricultural service firms are
defined as those with annual receipts of
less than $5,000,000.
The record shows that there are
approximately 1,500 growers of sweet
cherries in the production area and
approximately 62 handlers subject to
regulation under the order. The average
production of sweet cherries in
Washington State for the last three years
is 64,676 tons with an average grower
price of $1,943 per ton. Using this
number, the average annual grower
revenue is calculated to be
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approximately $83,777, thus indicating
that the average Washington sweet
cherry grower would qualify as a small
entity according to the SBA definition.
Using Committee data regarding each
individual handler’s total shipments
during the 2002 marketing year, and an
estimated average FOB price of $24 per
20-pound container, 79 percent of the
Washington sweet cherry handlers
shipped under $5 million worth of
sweet cherries, and 21 percent shipped
over $5 million worth of sweet cherries.
Therefore, the majority of Washington
sweet cherry handlers may be classified
as small entities.
The Committee is currently
comprised of 10 growers and 6 handlers.
Both small and large growers and
handlers are members and member
alternates on the Committee. Committee
meetings are widely publicized in
advance of the meetings and are held in
a location central to the production area.
The meetings are open to all industry
members and all other interested
persons, who are encouraged to
participate in the deliberations and
voice their opinions on topics under
discussion.
At a May 22, 2003, full Committee
meeting, all industry representatives
present could present their views
concerning the recommended
amendments. Both large and small
businesses were represented. The
Committee believes that small and large
entities would benefit equally from the
proposed amendments.
Testimony indicates that the proposal
to include paid advertising and
production research under the order
would assist both small and large
growers and handlers in marketing
Washington sweet cherry crops. While
addition of this authority could result in
increased assessments under the order,
witnesses stated that the benefits arising
from these activities, as evidenced by
similar activities under the Commission,
would outweigh the costs.
Similarly, the proposal to add
authority for supplemental varietal
assessments could require additional
payments per individual variety of
sweet cherry. However, witnesses stated
that they believed the benefits of those
research and promotion activities would
outweigh the costs.
Witnesses used the example of recent
Commission activities as evidence that
research and promotion activities would
lead to increased grower returns and
market stability by providing tools to
the industry to address expanding
production and evolving consumer
trends in the industry. Witnesses were
unanimous in their belief that the
benefits of the Commission’s activities
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more than outweigh the costs of these
programs. They stated that the same
results would be expected from any
such activities conducted under the
order.
The proposal to add authority for the
Committee to accept voluntary
contributions would not result in any
increased costs or burdens to the
industry. In fact, witnesses stated that
this authority would benefit the
industry greatly as it could provide for
additional funding sources of research
and promotional activities. Safeguards
against donor control over the use of
voluntary contributions would ensure
that these funds would be used in the
best interest of the industry. The
Committee would decide how to use
those funds, and the decision-making
process would be open to industry input
and feedback.
The proposal to add a public member
and alternate public member to the
Committee is not expected to result in
any substantial cost increases. While the
new members would be entitled to
reimbursement for their expenses, the
additional cost would be minimal.
Additionally, the benefit of adding a
non-industry, consumer perspective to
Committee deliberations and decisionmaking could prove very beneficial.
Witnesses stated that this additional
perspective would improve the
Committee’s understanding of the
consumer in the marketplace and could
enhance Committee activities aimed at
increasing consumer demand for
Washington sweet cherries.
The proposed amendment to add
tenure requirements for Committee
members would allow more persons the
opportunity to serve as members of the
Committee. It would provide for more
diverse membership, provide the
Committee with new perspectives and
ideas, and increase the number of
individuals in the industry with
Committee experience.
The proposal to require continuance
referenda on a periodic basis to
ascertain grower support for the order
would allow growers to vote on whether
to continue the operation of the
program. The referenda would be
conducted by USDA.
Interested persons were invited to
present evidence at the hearing on the
probable regulatory and informational
impacts of the proposed amendments to
the order on small entities. The record
evidence is that while some minimal
costs may occur, those costs would be
outweighed by the benefits expected to
accrue to the sweet cherry industry in
designated counties of Washington.
The Department has not identified
any relevant Federal rules that
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duplicate, overlap or conflict with this
proposed rule. All of the amendments
are designed to enhance the
administration and functioning of the
program to the benefit of Washington
cherry growers and handlers.
Paperwork Reduction Act
In accordance with the Paperwork
Reduction Act of 1995 (44 U.S.C.
Chapter 35), AMS has submitted a
request to OMB for approval of the
increase in information collection
burden for the Washington Cherry
marketing order.
This decision adds a public member
and alternate public member to the
Committee. A confidential qualification
and acceptance statement would be
used to nominate and appoint the
public and alternate public committee
members. This form is based on the
currently approved Confidential
Background Statement for the
Washington Cherry Marketing
Committee. If this proposal is
implemented the form would only be
used after approval by OMB.
Civil Justice Reform
The amendments to Marketing Order
923 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 this proposal.
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 Department 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 there from. A handler is
afforded the opportunity for a hearing
on the petition. After the hearing, the
USDA 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 to review the
Department’s ruling on the petition,
provided an action is filed not later than
20 days after the date of the entry of the
ruling.
Findings and Conclusions
The material issues, findings and
conclusions, rulings, and general
findings and determinations included in
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2575
the Recommended Decision set forth in
the October 5, 2004, issue of the Federal
Register are hereby approved and
adopted.
Marketing Agreement and Order
Annexed hereto and made a part
hereof is the document entitled ‘‘Order
Amending the Order Regulating the
Handling of Sweet Cherries Grown in
Washington.’’ This document has been
decided upon as the detailed and
appropriate means of effectuating the
foregoing findings and conclusions.
It is hereby ordered, That this entire
decision be published in the Federal
Register.
Referendum Order
It is hereby directed that a referendum
be conducted in accordance with the
procedure for the conduct of referenda
(7 CFR part 900.400 et seq.) to
determine whether the annexed order
amending the order regulating the
handling of sweet cherries grown in
Washington is approved or favored by
growers, as defined under the terms of
the order, who during the representative
period were engaged in the production
of sweet cherries in the production area.
The representative period for the
conduct of such referendum is hereby
determined to be April 1, 2004, through
February 28, 2005.
The agent of the Secretary to conduct
such referendum is hereby designated to
be Robert Curry and Gary Olson,
Northwest Marketing Field Office,
Marketing Order Administration
Branch, Fruit and Vegetable Programs,
AMS, USDA, 1220 SW. Third Avenue,
Room 369, Portland, Oregon 97204;
telephone (503) 326–2724.
List of Subjects in 7 CFR Part 923
Cherries, Marketing agreements,
Reporting and recordkeeping
requirements.
Dated: January 11, 2005.
A.J. Yates,
Administrator, Agricultural Marketing
Service.
Order Amending the Order Regulating
the Handling of Sweet Cherries Grown
in Washington 1
Findings and Determinations
The findings hereinafter set forth are
supplementary to the findings and
determinations which were previously
made in connection with the issuance of
the marketing agreement and order; and
1 This order shall not become effective unless and
until the requirements of §900.14 of the rules of
practice and procedure governing proceedings to
formulate marketing agreements and marketing
orders have been met.
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all said previous findings and
determinations are hereby ratified and
affirmed, except insofar as such findings
and determinations may be in conflict
with the findings and determinations set
forth herein.
(a) Findings and Determinations Upon
the Basis of the Hearing Record.
Pursuant to the provisions of the
Agricultural Marketing Agreement Act
of 1937, as amended (7 U.S.C. 601 et
seq.), and the applicable rules of
practice and procedure effective
thereunder (7 CFR part 900), a public
hearing was held upon the proposed
amendments to the Marketing
Agreement and Order No. 923 (7 CFR
part 927), regulating the handling of
sweet cherries grown in Washington.
Upon the basis of the evidence
introduced at such hearing and the
record thereof, it is found that:
(1) The marketing agreement and
order, as amended, and as hereby
proposed to be further amended, and all
of the terms and conditions thereof,
would tend to effectuate the declared
policy of the Act;
(2) The marketing agreement and
order, as amended, and as hereby
proposed to be further amended,
regulate the handling of sweet cherries
grown in the production area in the
same manner as, and are applicable only
to, persons in the respective classes of
commercial and industrial activity
specified in the marketing agreement
and order upon which a hearing has
been held;
(3) The marketing agreement and
order, as amended, and as hereby
proposed to be further amended, are
limited in their application to the
smallest regional production area which
is practicable, consistent with carrying
out the declared policy of the Act, and
the issuance of several orders applicable
to subdivisions of the production area
would not effectively carry out the
declared policy of the Act;
(4) The marketing agreement and
order, as amended, and as hereby
proposed to be further amended,
prescribe, insofar as practicable, such
different terms applicable to different
parts of the production area as are
necessary to give due recognition to the
differences in the production and
marketing of sweet cherries grown in
the production area; and
(5) All handling of sweet cherries
grown in the production area as defined
in the marketing agreement and order, is
in the current of interstate or foreign
commerce or directly burdens,
obstructs, or affects such commerce.
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Order Relative to Handling
§ 923.21
It is therefore ordered, That on and
after the effective date hereof, all
handling of sweet cherries grown in
Washington shall be in conformity to,
and in compliance with, the terms and
conditions of the said order as hereby
proposed to be amended as follows:
The provisions of the proposed
marketing agreement and order
amending the order contained in the
Recommended Decision issued by the
Administrator on September 29, 2004,
and published in the Federal Register
on October 5, 2004, will be and are the
terms and provisions of this order
amending the order and are set forth in
full herein.
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.
4. Amend § 923.22 by adding a new
paragraph (b)(4) to read as follows:
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. Section 923.20 is revised to read as
follows:
§ 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
growers of cherries in District 1, and
five of the grower members and their
respective alternates shall be growers 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.
3. Revise § 923.21 to read as follows:
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§ 923.22
Term of office.
Nomination.
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(b) * * *
(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.
5. In § 923.41, paragraph (c) is
redesignated as paragraph (d) and a new
paragraph (c) is added to read as
follows:
§ 923.41
Assessments.
*
*
*
*
*
(c) Based upon a recommendation of
the committee or other available
information, 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 § 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.
*
*
*
*
*
6. A new § 923.43 is added to read as
follows:
§ 923.43
Contributions.
The committee may accept voluntary
contributions but these shall only be
used to pay expenses incurred pursuant
to § 923.45. Furthermore, such
contributions shall be free from any
encumbrances by the donor and the
committee shall retain complete control
of their use.
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7. Section 923.45 is revised to read as
follows:
NUCLEAR REGULATORY
COMMISSION
§ 923.45 Production and marketing
research, promotion and market
development.
10 CFR Part 20
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 §§ 923.41 and
923.43.
8. Section 923.64 is amended by:
A. Revising paragraph (c).
B. Redesignating paragraph (d) as
paragraph (e).
C. Adding a new paragraph (d).
The revision and addition read as
follows:
Sander C. Perle, ICN Worldwide
Dosimetry; Denial of Petition for
Rulemaking
§ 923.64
[Docket No. PRM–20–25]
Termination.
*
*
*
*
*
(c) The Secretary shall terminate the
provisions of this part whenever it is
found that such termination is favored
by a majority of growers 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.
(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 growers. 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 growers who, during a
representative period determined by the
Secretary, have been engaged in the
production of cherries in the production
area.
*
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[FR Doc. 05–825 Filed 1–13–05; 8:45 am]
BILLING CODE 3410–02–P
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Nuclear Regulatory
Commission.
ACTION: Petition for rulemaking; Denial.
AGENCY:
SUMMARY: The Nuclear Regulatory
Commission (NRC) is denying a petition
for rulemaking submitted by Sander C.
Perle, ICN Worldwide Dosimetry (now
Global Dosimetry Solutions, Inc.) (PRM–
20–25). The petitioner requested that
the NRC amend its regulations to
require that any dosimeter, without
exception, that is used to report dose of
record and demonstrate compliance
with the dose limits specified in the
Commission’s regulations be processed
and evaluated by a dosimetry processor
holding accreditation from the National
Voluntary Laboratory Accreditation
Program (NVLAP) of the National
Institute of Standards and Technology;
the definition of ‘‘Individual monitoring
devices’’ (individual monitoring
equipment) be revised to mean any
device used by licensees to show
compliance with the Commission’s
regulations; and ‘‘electronic dosimeters
and optically stimulated dosimeters’’ be
added as additional examples of
individual monitoring devices.
ADDRESSES: Copies of the petition for
rulemaking, the public comments
received, and the NRC’s letter to the
petitioner are available for public
inspection and/or copying in the NRC
Public Document room, 11555 Rockville
Pike, Rockville, Maryland. These same
documents are also available on the
NRC’s rulemaking Web site at https://
ruleforum.llnl.gov. For information
about the interactive rulemaking Web
site, contact Carol Gallagher, (301) 415–
5905, e-mail: CAG@nrc.gov.
The NRC maintains an Agencywide
Document Access and Management
System (ADAMS), which provides text
and image files of NRC’s public
documents. These documents may be
accessed through the NRC’s Public
Electronic Reading Room on the Internet
at https://www.nrc.gov/reading-rm/
adams.html. If you do not have access
to ADAMS or if there are problems in
accessing the documents located in
ADAMS, contact the NRC Public
Document Room Reference staff at 1–
800–397–4209, 301–415–4737, or by email to pdr@nrc.gov. Note: Public access
to documents, including access via
PO 00000
Frm 00005
Fmt 4702
Sfmt 4702
2577
ADAMS and the PDR, has been
temporarily suspended so that security
reviews of publicly available documents
may be performed and potentially
sensitive information removed.
However, access to the documents
identified in this Federal Register
continues to be available through the
rulemaking Web site at https://
ruleforum.llnl.gov, which was not
affected by the ADAMS shutdown.
Please check with the listed NRC
contact concerning any issues related to
document availability.
FOR FURTHER INFORMATION CONTACT:
Torre Taylor, Office of Nuclear Material
Safety and Safeguards, U.S. Nuclear
Regulatory Commission, Washington,
DC 20555–0001; telephone: (301) 415–
7900; e-mail: tmt@nrc.gov.
SUPPLEMENTARY INFORMATION:
The Petition
On May 5, 2003 (68 FR 23618), the
NRC published a notice of receipt of a
petition for rulemaking filed by Sander
C. Perle, ICN Worldwide Dosimetry
(now Global Dosimetry Solutions, Inc.).
The petitioner requested that the NRC
amend its regulations to require that any
dosimeter, without exception, that is
used to report dose of record and
demonstrate compliance with the dose
limits specified in the Commission’s
regulations be processed and evaluated
by a dosimetry processor holding
accreditation from NVLAP; the
definition of ‘‘Individual monitoring
devices’’ [in 10 CFR 20.1003] (hereafter,
‘‘10 CFR Section’’ referred to as §)
(individual monitoring equipment) be
revised to mean any device used by
licensees to show compliance with
§ 20.1201; and ‘‘electronic dosimeters
and optically stimulated dosimeters’’ be
added as additional examples of
individual monitoring devices in the
definition of ‘‘Individual monitoring
devices.’’
The petitioner stated that the current
wording of § 20.1501) precludes
testing and accreditation requirements
for an electronic dosimeter. The
petitioner also stated that today’s
electronic dosimeters use multiple
microprocessors that include many
complex user input parameters that
ultimately affect the final dose and/or
dose rate reported. The dose determined
from an electronic dosimeter is a
‘‘processed’’ dose. The electronic
dosimeter requires that the licensee
program the dosimeter to respond to
various spectra, based on the calibration
and other licensee set parameters.
According to the petitioner, the NRC’s
position is that, because the current
§ 20.1501(c) does not appear to include
E:\FR\FM\14JAP1.SGM
14JAP1
]]>Agencies
[Federal Register Volume 70, Number 10 (Friday, January 14, 2005)]
[Proposed Rules]
[Pages 2573-2577]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 05-825]
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DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Part 923
[Docket Nos. AO-F&V-923-3; FV03-923-01]
Sweet Cherries Grown in Designated Counties in Washington;
Secretary's Decision and Referendum Order on Proposed Amendments to
Marketing Agreement and Order No. 923
AGENCY: Agricultural Marketing Service, USDA.
ACTION: Proposed rule and referendum order.
-----------------------------------------------------------------------
SUMMARY: This decision proposes amending the marketing agreement and
order (order) for sweet cherries grown in Washington, and provides
growers with the opportunity to vote in a referendum to determine if
they favor the changes. The amendments are based on those proposed by
the Washington Cherry Marketing Committee (Committee), which is
responsible for local administration of the order. The amendments
include: adding authority for promotion, including paid advertising,
and production research projects; adding authority for supplemental
rates of assessment for individual varieties of cherries; adding
authority for the Committee to accept voluntary contributions for
research and promotion; and, adding a public member to the Committee.
Two additional amendments are based on those proposed by the
Agricultural Marketing Service: Establishing tenure limitations for
Committee members and, requiring that continuance referenda be
[[Page 2574]]
conducted every 6 years. The proposed amendments are intended to
improve the operation and functioning of the sweet cherry marketing
order program.
DATES: The referendum will be conducted from March 1 through March 21,
2005. The representative period for the purpose of the referendum is
April 1, 2003 through March 31, 2004.
FOR FURTHER INFORMATION CONTACT: Melissa Schmaedick, Marketing Order
Administration Branch, Fruit and Vegetable Programs, Agricultural
Marketing Service, USDA, Post Office Box 1035, Moab, UT 84532,
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, 1400 Independence Avenue SW., Stop
0237, Washington, DC 20250-0237; telephone: (202) 720-2491, fax: (202)
720-8938.
SUPPLEMENTARY INFORMATION: Prior documents in this proceeding include:
a Notice of Hearing issued on October 6, 2003, and published in the
October 10, 2003, issue of the Federal Register (68 FR 58636), and a
Recommended Decision issued on September 29, 2004 and published in the
October 5, 2004 issue of the Federal Register (69 FR 59551).
This administrative 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.
Preliminary Statement
The amendments are based on the record of a public hearing held
November 18, 2003, in Yakima, Washington. The hearing was held to
consider the proposed amendment of Marketing Agreement and Order No.
923, regulating the handling of sweet cherries grown in the State of
Washington, hereinafter referred to as the ``order''. The hearing was
held pursuant to the provisions of the Agricultural Marketing Agreement
Act of 1937, as amended (7 U.S.C. 601 et seq.), hereinafter referred to
as the ``Act,'' and the applicable rules of practice and procedure
governing the formulation of marketing agreements and marketing orders
(7 CFR part 900). The Notice of Hearing contained numerous proposals
submitted by the Committee and two proposals by the Agricultural
Marketing Committee (AMS).
The amendments included in this decision would: (1) Add the
authority for promotion, including paid advertising, and production
research projects; (2) add the authority for supplemental rates of
assessment for individual varieties of cherries; (3) add the authority
for the Committee to accept voluntary contributions for marketing
research and promotion, including paid advertising, and production
research projects; and (4) add a public member and alternate public
member to the Committee.
The Fruit and Vegetable Programs of AMS proposed to establish
tenure limitations for Committee members and to require that
continuance referenda be conducted on a periodic basis to ascertain
grower support for the order. In addition, AMS proposed to allow such
changes as may be necessary to the order, if any of the proposed
changes are adopted, so that all of the order's provisions conform to
the effectuated amendments.
Upon the basis of evidence introduced at the hearing and the record
thereof, the Administrator of AMS on October 4, 2004, filed with the
Hearing Clerk, U.S. Department of Agriculture, a Recommended Decision
and Opportunity to File Written Exceptions thereto by November 4, 2004.
That document also announced AMS's intent to request approval of new
information collection requirements to implement the program. Written
comments on the proposed information collection requirements were due
by November 4, 2004. None were filed.
Small Business Considerations
Pursuant to the requirements set forth in the Regulatory
Flexibility Act (RFA), the Agricultural Marketing Service (AMS) has
considered the economic impact of this action on small entities.
Accordingly, the AMS has prepared this initial regulatory flexibility
analysis.
The purpose of the RFA is to fit regulatory actions to the scale of
business subject to such actions so that small businesses will not be
unduly or disproportionately burdened. Small agricultural growers have
been defined by the Small Business Administration (SBA) (13 CFR
121.201) as those having annual receipts of less than $750,000. Small
agricultural service firms are defined as those with annual receipts of
less than $5,000,000.
The record shows that there are approximately 1,500 growers of
sweet cherries in the production area and approximately 62 handlers
subject to regulation under the order. The average production of sweet
cherries in Washington State for the last three years is 64,676 tons
with an average grower price of $1,943 per ton. Using this number, the
average annual grower revenue is calculated to be approximately
$83,777, thus indicating that the average Washington sweet cherry
grower would qualify as a small entity according to the SBA definition.
Using Committee data regarding each individual handler's total
shipments during the 2002 marketing year, and an estimated average FOB
price of $24 per 20-pound container, 79 percent of the Washington sweet
cherry handlers shipped under $5 million worth of sweet cherries, and
21 percent shipped over $5 million worth of sweet cherries. Therefore,
the majority of Washington sweet cherry handlers may be classified as
small entities.
The Committee is currently comprised of 10 growers and 6 handlers.
Both small and large growers and handlers are members and member
alternates on the Committee. Committee meetings are widely publicized
in advance of the meetings and are held in a location central to the
production area. The meetings are open to all industry members and all
other interested persons, who are encouraged to participate in the
deliberations and voice their opinions on topics under discussion.
At a May 22, 2003, full Committee meeting, all industry
representatives present could present their views concerning the
recommended amendments. Both large and small businesses were
represented. The Committee believes that small and large entities would
benefit equally from the proposed amendments.
Testimony indicates that the proposal to include paid advertising
and production research under the order would assist both small and
large growers and handlers in marketing Washington sweet cherry crops.
While addition of this authority could result in increased assessments
under the order, witnesses stated that the benefits arising from these
activities, as evidenced by similar activities under the Commission,
would outweigh the costs.
Similarly, the proposal to add authority for supplemental varietal
assessments could require additional payments per individual variety of
sweet cherry. However, witnesses stated that they believed the benefits
of those research and promotion activities would outweigh the costs.
Witnesses used the example of recent Commission activities as
evidence that research and promotion activities would lead to increased
grower returns and market stability by providing tools to the industry
to address expanding production and evolving consumer trends in the
industry. Witnesses were unanimous in their belief that the benefits of
the Commission's activities
[[Page 2575]]
more than outweigh the costs of these programs. They stated that the
same results would be expected from any such activities conducted under
the order.
The proposal to add authority for the Committee to accept voluntary
contributions would not result in any increased costs or burdens to the
industry. In fact, witnesses stated that this authority would benefit
the industry greatly as it could provide for additional funding sources
of research and promotional activities. Safeguards against donor
control over the use of voluntary contributions would ensure that these
funds would be used in the best interest of the industry. The Committee
would decide how to use those funds, and the decision-making process
would be open to industry input and feedback.
The proposal to add a public member and alternate public member to
the Committee is not expected to result in any substantial cost
increases. While the new members would be entitled to reimbursement for
their expenses, the additional cost would be minimal. Additionally, the
benefit of adding a non-industry, consumer perspective to Committee
deliberations and decision-making could prove very beneficial.
Witnesses stated that this additional perspective would improve the
Committee's understanding of the consumer in the marketplace and could
enhance Committee activities aimed at increasing consumer demand for
Washington sweet cherries.
The proposed amendment to add tenure requirements for Committee
members would allow more persons the opportunity to serve as members of
the Committee. It would provide for more diverse membership, provide
the Committee with new perspectives and ideas, and increase the number
of individuals in the industry with Committee experience.
The proposal to require continuance referenda on a periodic basis
to ascertain grower support for the order would allow growers to vote
on whether to continue the operation of the program. The referenda
would be conducted by USDA.
Interested persons were invited to present evidence at the hearing
on the probable regulatory and informational impacts of the proposed
amendments to the order on small entities. The record evidence is that
while some minimal costs may occur, those costs would be outweighed by
the benefits expected to accrue to the sweet cherry industry in
designated counties of Washington.
The Department has not identified any relevant Federal rules that
duplicate, overlap or conflict with this proposed rule. All of the
amendments are designed to enhance the administration and functioning
of the program to the benefit of Washington cherry growers and
handlers.
Paperwork Reduction Act
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C.
Chapter 35), AMS has submitted a request to OMB for approval of the
increase in information collection burden for the Washington Cherry
marketing order.
This decision adds a public member and alternate public member to
the Committee. A confidential qualification and acceptance statement
would be used to nominate and appoint the public and alternate public
committee members. This form is based on the currently approved
Confidential Background Statement for the Washington Cherry Marketing
Committee. If this proposal is implemented the form would only be used
after approval by OMB.
Civil Justice Reform
The amendments to Marketing Order 923 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 this
proposal.
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 Department 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
there from. A handler is afforded the opportunity for a hearing on the
petition. After the hearing, the USDA 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 to review the
Department's ruling on the petition, provided an action is filed not
later than 20 days after the date of the entry of the ruling.
Findings and Conclusions
The material issues, findings and conclusions, rulings, and general
findings and determinations included in the Recommended Decision set
forth in the October 5, 2004, issue of the Federal Register are hereby
approved and adopted.
Marketing Agreement and Order
Annexed hereto and made a part hereof is the document entitled
``Order Amending the Order Regulating the Handling of Sweet Cherries
Grown in Washington.'' This document has been decided upon as the
detailed and appropriate means of effectuating the foregoing findings
and conclusions.
It is hereby ordered, That this entire decision be published in the
Federal Register.
Referendum Order
It is hereby directed that a referendum be conducted in accordance
with the procedure for the conduct of referenda (7 CFR part 900.400 et
seq.) to determine whether the annexed order amending the order
regulating the handling of sweet cherries grown in Washington is
approved or favored by growers, as defined under the terms of the
order, who during the representative period were engaged in the
production of sweet cherries in the production area.
The representative period for the conduct of such referendum is
hereby determined to be April 1, 2004, through February 28, 2005.
The agent of the Secretary to conduct such referendum is hereby
designated to be Robert Curry and Gary Olson, Northwest Marketing Field
Office, Marketing Order Administration Branch, Fruit and Vegetable
Programs, AMS, USDA, 1220 SW. Third Avenue, Room 369, Portland, Oregon
97204; telephone (503) 326-2724.
List of Subjects in 7 CFR Part 923
Cherries, Marketing agreements, Reporting and recordkeeping
requirements.
Dated: January 11, 2005.
A.J. Yates,
Administrator, Agricultural Marketing Service.
Order Amending the Order Regulating the Handling of Sweet Cherries
Grown in Washington \1\
Findings and Determinations
The findings hereinafter set forth are supplementary to the
findings and determinations which were previously made in connection
with the issuance of the marketing agreement and order; and
[[Page 2576]]
all said previous findings and determinations are hereby ratified and
affirmed, except insofar as such findings and determinations may be in
conflict with the findings and determinations set forth herein.
---------------------------------------------------------------------------
\1\ This order shall not become effective unless and until the
requirements of Sec. 900.14 of the rules of practice and procedure
governing proceedings to formulate marketing agreements and
marketing orders have been met.
---------------------------------------------------------------------------
(a) Findings and Determinations Upon the Basis of the Hearing
Record.
Pursuant to the provisions of the Agricultural Marketing Agreement
Act of 1937, as amended (7 U.S.C. 601 et seq.), and the applicable
rules of practice and procedure effective thereunder (7 CFR part 900),
a public hearing was held upon the proposed amendments to the Marketing
Agreement and Order No. 923 (7 CFR part 927), regulating the handling
of sweet cherries grown in Washington. Upon the basis of the evidence
introduced at such hearing and the record thereof, it is found that:
(1) The marketing agreement and order, as amended, and as hereby
proposed to be further amended, and all of the terms and conditions
thereof, would tend to effectuate the declared policy of the Act;
(2) The marketing agreement and order, as amended, and as hereby
proposed to be further amended, regulate the handling of sweet cherries
grown in the production area in the same manner as, and are applicable
only to, persons in the respective classes of commercial and industrial
activity specified in the marketing agreement and order upon which a
hearing has been held;
(3) The marketing agreement and order, as amended, and as hereby
proposed to be further amended, are limited in their application to the
smallest regional production area which is practicable, consistent with
carrying out the declared policy of the Act, and the issuance of
several orders applicable to subdivisions of the production area would
not effectively carry out the declared policy of the Act;
(4) The marketing agreement and order, as amended, and as hereby
proposed to be further amended, prescribe, insofar as practicable, such
different terms applicable to different parts of the production area as
are necessary to give due recognition to the differences in the
production and marketing of sweet cherries grown in the production
area; and
(5) All handling of sweet cherries grown in the production area as
defined in the marketing agreement and order, is in the current of
interstate or foreign commerce or directly burdens, obstructs, or
affects such commerce.
Order Relative to Handling
It is therefore ordered, That on and after the effective date
hereof, all handling of sweet cherries grown in Washington shall be in
conformity to, and in compliance with, the terms and conditions of the
said order as hereby proposed to be amended as follows:
The provisions of the proposed marketing agreement and order
amending the order contained in the Recommended Decision issued by the
Administrator on September 29, 2004, and published in the Federal
Register on October 5, 2004, will be and are the terms and provisions
of this order amending the order and are set forth in full herein.
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. Section 923.20 is revised 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 growers
of cherries in District 1, and five of the grower members and their
respective alternates shall be growers 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.
3. 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.
4. Amend Sec. 923.22 by adding a new paragraph (b)(4) to read as
follows:
Sec. 923.22 Nomination.
* * * * *
(b) * * *
(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.
5. In Sec. 923.41, paragraph (c) is redesignated as paragraph (d)
and a new paragraph (c) is added to read as follows:
Sec. 923.41 Assessments.
* * * * *
(c) Based upon a recommendation of the committee or other available
information, 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.
* * * * *
6. A new Sec. 923.43 is added 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.
[[Page 2577]]
7. Section 923.45 is revised 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.
8. Section 923.64 is amended by:
A. Revising paragraph (c).
B. Redesignating paragraph (d) as paragraph (e).
C. Adding a new paragraph (d).
The revision and addition 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
growers 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.
(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 growers.
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 growers who, during a representative
period determined by the Secretary, have been engaged in the production
of cherries in the production area.
* * * * *
[FR Doc. 05-825 Filed 1-13-05; 8:45 am]
BILLING CODE 3410-02-P
