Sweet Cherries Grown in Designated Counties in Washington; Order Amending Marketing Order No. 923, 44249-44252 [05-15169]
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Federal Register / Vol. 70, No. 147 / Tuesday, August 2, 2005 / Rules and Regulations
26, September 13, November 9 and
November 30, 2004. Finally, interested
persons were invited to submit
information on the regulatory and
informational impacts of this action on
small businesses.
A small business guide on complying
with fruit, vegetable, and specialty crop
marketing agreements and orders may
be viewed at the following Web site:
https://www.ams.usda.gov/fv/moab.html.
Any questions about the compliance
guide should be sent to Jay Guerber at
the previously mentioned address in the
FOR FURTHER INFORMATION CONTACT
section.
After consideration of all relevant
matters presented, the information and
recommendations submitted by the
committees, the comment received, and
other information, it is found that
finalizing the interim final rule, with
changes, as published in the Federal
Register, (70 FR 16383, March 31, 2005)
will tend to effectuate the declared
policy of the Act.
List of Subjects
7 CFR Part 916
PART 917—FRESH PEARS AND
PEACHES GROWN IN CALIFORNIA
§ 917.459
[Amended]
3. Section 917.459 is amended by
removing the word ‘‘012–094’’ and
adding the words ‘‘Supeacheight (012–
094)’’ in alphabetical order in the
introductory text of paragraph (a)(5).
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Dated: July 27, 2005.
Kenneth C. Clayton,
Acting Administrator, Agricultural Marketing
Service.
[FR Doc. 05–15168 Filed 8–1–05; 8:45 am]
BILLING COODE 3410–02–P
DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
[Docket Nos. AO–F&V–923–3; FV03–923–01
FR]
Sweet Cherries Grown in Designated
Counties in Washington; Order
Amending Marketing Order No. 923
Agricultural Marketing Service,
USDA.
ACTION: Final rule.
SUMMARY: This rule amends the
marketing order (order) for sweet
cherries grown in Washington. Sweet
Marketing agreements, Peaches, Pears, cherry growers, voting in a mail
Reporting and recordkeeping
referendum held March 1 through
requirements.
March 21, 2005, voted on four
amendments proposed by the
I Accordingly, the interim final rule
Washington Cherry Marketing
amending 7 CFR parts 916 and 917,
which was published at 70 FR 16383 on Committee (Committee), which is
March 31, 2005, is adopted as a final rule responsible for local administration of
the order, and two amendments
with the following changes:
proposed by the Agricultural Marketing
I 1. The authority citation for 7 CFR
Service of USDA. Of the six
parts 916 and 917 continues to read as
amendments proposed, three were
follows:
favored, including: Adding authority for
the Committee to accept voluntary
Authority: 7 U.S.C. 601–674.
contributions for research and
PART 916—NECTARINES GROWN IN
promotion; establishing tenure
limitations for Committee members; and
CALIFORNIA
requiring that continuance referenda be
§ 916.356 [Amended]
conducted every 6 years. The three
amendments that failed include: adding
I 2. Section 916.356 is amended by:
authority for promotion, including paid
I A. Removing the words ‘‘Spring Ray’’
advertising, and production research
from column A and the entry ‘‘L’’ from
projects; adding authority for
column B and adding in alphabetical
supplemental rates of assessment for
order the words ‘‘Burnectone (Spring
individual varieties of cherries; and,
Ray)’’ in column A and an entry ‘‘L’’ in
adding a public member to the
column B of Table 1 in
Committee. These amendments will not
paragraph(a)(1)(iv);
be implemented.
EFFECTIVE DATE: This rule is effective
I B. Removing the words ‘‘Spring Ray’’
August 3, 2005.
and adding the words ‘‘Burnectone
(Spring Ray)’’ in alphabetical order in the FOR FURTHER INFORMATION CONTACT:
introductory text of paragraph (a)(4).
Melissa Schmaedick, Marketing Order
7 CFR Part 917
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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; or
Robert J. Curry, Marketing Order
Administration Branch, Fruit and
Vegetable Programs, AMS, USDA,
Northwest Marketing Field Office, 1220
SW., Third Avenue, Room 385,
Portland, OR 97204; telephone (503)
326–2724 or Fax (503) 326–7440.
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, or
E-mail: Jay.Guerber@usda.gov.
Prior
documents in this proceeding include:
Notice of Hearing issued on October 6,
2003, and published in the October 10,
2003, issue of the Federal Register (68
FR 58636); Recommended Decision
issued on September 29, 2004 and
published in the October 5, 2004 issue
of the Federal Register (69 FR 59551);
and a Secretary’s Decision and
Referendum Order issued January 11,
2005 and published in the Federal
Register on January 14, 2005 (70 FR
2573).
SUPPLEMENTARY INFORMATION:
7 CFR Part 923
AGENCY:
Marketing agreements, Nectarines,
Reporting and recordkeeping
requirements.
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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
This final rule was formulated on the
record of a public hearing held
November 18, 2003, in Yakima,
Washington. Notice of the public
hearing was issued on October 6, 2003,
and published in the October 10, 2003,
issue of the Federal Register (68 FR
58636). 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 six
proposals: four proposals submitted by
the Committee and two proposals by the
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Federal Register / Vol. 70, No. 147 / Tuesday, August 2, 2005 / Rules and Regulations
Agricultural Marketing Committee
(AMS).
Upon the basis of evidence
introduced at the hearing and the record
thereof, the Administrator of AMS on
September 29, 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. No comments or exceptions were
filed.
A Secretary’s Decision and
Referendum Order was issued on
January 11, 2005, directing that a
referendum be conducted during the
period March 1 through March 25, 2005,
among growers of sweet cherries to
determine whether they favored the
proposed amendments to the order.
Voters voting in the referendum favored
three out of the six amendments
proposed by the Committee and USDA.
The amendments favored by the
voters and included in this order will:
1. Add authority for the Committee to
accept voluntary contributions for
production research, marketing research
and promotion. Any voluntary
contributions received under this new
authority may be used to support
marketing research and development
projects designed to assist, improve or
promote the marketing, distribution,
and consumption of sweet cherries.
Voluntary contributions may not,
however, be used for production
research or paid advertising, as the
authority to conduct such activities
under the order was not approved in the
referendum.
2. Impose term limitations on
Committee members. Upon
implementation, Committee members
will be limited to serving no more than
three consecutive two-year terms in one
position without a break in service.
3. Require that continuance referenda
be held every 6 years among
Washington sweet cherry producers to
determine their support for continuation
of their marketing order program.
The proposals to add authority for
production research and paid
advertising, additional rates of
assessments for individual varieties of
cherries and a public member to the
committee, failed to obtain the requisite
number of votes needed, in number or
in volume, to pass.
To become effective, the amendments
had to be approved by at least twothirds of those producers voting or by
voters representing at least two-thirds of
the volume of sweet cherries
represented by voters voting in the
referendum.
AMS also proposed to allow such
changes as may be necessary to the
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order so that all of the order’s provisions
conform to the effectuated amendments.
None were deemed necessary.
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
final 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 $6,000,000.
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.
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 will benefit equally from the
amendments.
This final rule amends § 923.43 of the
order to authorize acceptance of
voluntary contributions. The proposal to
add authority for the Committee to
accept voluntary contributions will not
result in any increased costs or burdens
to the industry. In fact, witnesses stated
that this authority will benefit the
industry greatly as it could provide for
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additional funding sources for research
activities. Safeguards against donor
control over the use of voluntary
contributions will ensure that these
funds will be used in the best interest
of the industry. The Committee will
decide how to use those funds, and the
decision-making process will be open to
industry input and feedback.
This final rule amends § 923.21 of the
order to authorize term limits. The
amendment to add tenure requirements
for Committee members will allow more
persons the opportunity to serve as
members of the Committee. It will
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.
This final rule amends § 923.64 of the
order to authorize continuance
referenda. The amendment to require
continuance referenda on a periodic
basis to ascertain grower support for the
order will allow growers to vote on
whether to continue the operation of the
program. The referenda will 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 are
expected to be outweighed by the
benefits expected to accrue to the sweet
cherry industry in designated counties
of Washington.
Paperwork Reduction Act
In accordance with the Paperwork
Reduction Act of 1995 (44 U.S.C.
Chapter 35), any reporting and
recordkeeping provision changes that
would be generated by these
amendments would be submitted to the
Office of Management and Budget
(OMB). Current information collection
requirements for Part 923 are approved
by OMB under the generic Fruit Crops
package OMB number 0581–0189.
As with all Federal marketing order
programs, reports and forms are
periodically reviewed to reduce
information requirements and
duplication by industry and public
sector agencies.
USDA has not identified any relevant
Federal rules that duplicate, overlap or
conflict with this proposed rule. These
amendments are designed to enhance
the administration and functioning of
the marketing order to the benefit of the
industry.
Committee meetings regarding these
proposals as well as the hearing dates
were widely publicized throughout the
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Federal Register / Vol. 70, No. 147 / Tuesday, August 2, 2005 / Rules and Regulations
Washington sweet cherry industry, and
all interested persons were invited to
attend the meetings and the hearing and
participate in Committee deliberations
on all issues. All Committee meetings
and the hearing were public forums and
all entities, both large and small, were
able to express views on these issues.
Civil Justice Reform
The amendments contained in this
rule have been reviewed under
Executive Order 12988, Civil Justice
Reform. They are not intended to have
retroactive effect. These amendments
will 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.
Order Amending the Order Regulating
Sweet Cherries Grown in Washington
Findings and Determinations
The findings and determinations set
forth hereinafter are supplementary and
in addition to the findings and
determination previously made in
connection with the issuance of the
order; and all of said previous findings
and determinations are hereby ratified
and affirmed, except 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
Marketing Order No. 923 (7 CFR part
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923), 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 order, as amended,
and as hereby further amended, and all
of the terms and conditions thereof, will
tend to effectuate the declared policy of
the Act;
(2) The marketing order, as amended,
and as hereby further amended,
regulates the handling of sweet cherries
grown in the production area in the
same manner as, and is applicable only
to persons in the respective classes of
commercial and industrial activity
specified in the marketing order upon
which hearings have been held;
(3) The marketing order, as amended,
and as hereby further amended, is
limited in 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
subdivision of the production area
would not effectively carry out the
declared policy of the Act;
(4) The marketing order, as amended,
and as hereby further amended,
prescribes, 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 is in the
current of interstate or foreign
commerce or directly burdens,
obstructs, or affects such commerce.
(b) Additional findings. It is necessary
and in the public interest to make the
amendments to this order effective not
later than one day after publication in
the Federal Register. A later effective
date would unnecessarily delay
implementation of the approved
changes, which are expected to benefit
the Washington sweet cherry industry.
Immediate implementation of the
amendments is necessary in order to
make the amendments effective as
specified.
In view of the foregoing, it is hereby
found and determined that good cause
exists for making these amendments
effective one day after publication in the
Federal Register, and that it would be
contrary to the public interest to delay
the effective date for 30 days after
publication in the Federal Register (Sec.
553(d), Administrative Procedure Act; 5
U.S.C. 551–559).
(c) Determinations. It is hereby
determined that:
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44251
(1) Handlers (excluding cooperative
associations of producers who are not
engaged in processing, distributing, or
shipping sweet cherries covered by the
order as hereby amended) who, during
the period April 1, 2004, through
February 28, 2005, handled 50 percent
or more of the volume of such sweet
cherries covered by said order, as
hereby amended, have not signed an
amended marketing agreement;
(2) The issuance of this amendatory
order, further amending the aforesaid
order, is favored or approved by at least
two-thirds of the producers who
participated in a referendum on the
question of approval and who, during
the period of April 1, 2004, through
February 28, 2005 (which has been
deemed to be a representative period),
have been engaged within the
production area in the production of
such sweet cherries, such producers
having also produced for market at least
two-thirds of the volume of such
commodity represented in the
referendum; and
(3) In the absence of a signed
marketing agreement, the issuance of
this amendatory order is the only
practical means pursuant to the
declared policy of the Act of advancing
the interests of producers of sweet
cherries in the production area.
Order Relative To Handling of Sweet
Cherries Grown in Washington
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
amended as follows:
The provisions of proposals 3, 5 and
6 of the proposed 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,
shall be and are the terms and
provisions of this order amending the
order and set forth in full herein.
List of Subjects in 7 CFR Part 923
Cherries, Marketing agreements,
Reporting and recordkeeping
requirements.
For the reasons set out it the preamble,
7 CFR part 923 is amended as follows:
I
PART 923—SWEET CHERRIES
GROWN IN DESIGNATED COUNTIES
IN WASHINGTON
1. The authority citation for 7 CFR part
923 continues to read as follows:
I
Authority: 7 U.S.C. 601–674.
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Federal Register / Vol. 70, No. 147 / Tuesday, August 2, 2005 / Rules and Regulations
2. Section 923.21 is revised to read as
follows:
I
§ 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.
3. A new § 923.43 is added to read as
follows:
I
§ 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.
4. Section 923.64 is amended by:
A. Revising paragraph (c).
B. Redesignating paragraph (d) as
paragraph (e).
I C. Adding a new paragraph (d).
The revisions read as follows:
I
I
I
§ 923.64
Termination.
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(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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Dated: July 27, 2005.
Kenneth C. Clayton,
Acting Administrator, Agricultural Marketing
Service.
[FR Doc. 05–15169 Filed 8–1–05; 8:45 am]
BILLING CODE 3410–02–P
DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Part 946
[Docket No. FV05–946–2 FR]
Irish Potatoes Grown in Washington;
Modification of Special Purpose
Shipment Regulations
Agricultural Marketing Service,
USDA.
ACTION: Final rule.
AGENCY:
SUMMARY: This rule modifies the special
purpose shipment regulations currently
prescribed under the Washington potato
marketing order. The marketing order
regulates the handling of Irish potatoes
grown in Washington, and is
administered locally by the State of
Washington Potato Committee
(Committee). This rule modifies the
reporting requirements, procedures, and
safeguard provisions for making certain
special purpose potato shipments.
Under the marketing order, such special
purpose shipments may be exempted
from the quality, assessment, or
inspection requirements. The changes
include removal of the special purpose
exemption for exported potatoes,
clarification of the reporting procedures
for potatoes diverted to processing, and
addition of safeguard provisions for
shipments of seed potatoes and
shipments to charitable organizations.
These changes will help facilitate
special purpose shipments, while
enhancing the Committee’s compliance
program.
DATES: This final rule becomes effective
August 3, 2005.
FOR FURTHER INFORMATION CONTACT:
Teresa Hutchinson, Marketing
Specialist, Northwest Marketing Field
Office, Marketing Order Administration
Branch, Fruit and Vegetable Programs,
AMS, USDA, 1220 SW Third Avenue,
Suite 385, Portland, Oregon 97204;
Telephone: (503) 326–2724, Fax: (503)
326–7440; or George Kelhart, Technical
Advisor, 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.
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Small businesses may request
information on complying with this
regulation 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, or E-mail:
Jay.Guerber@usda.gov.
This final
rule is issued under Marketing
Agreement No. 113 and Marketing
Order No. 946, both as amended (7 CFR
part 946), regulating the handling of
Irish potatoes grown in Washington,
hereinafter referred to as the ‘‘order.’’
The order is effective under the
Agricultural Marketing Agreement Act
of 1937, as amended (7 U.S.C. 601–674),
hereinafter referred to as the ‘‘Act.’’
The Department of Agriculture
(USDA) is issuing this rule in
conformance with Executive Order
12866.
This final rule has been reviewed
under Executive Order 12988, 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 USDA a petition stating that the
order, any provision of the order, or any
obligation imposed in connection with
the order is not in accordance with law
and request a modification of the order
or to be exempted therefrom. A handler
is afforded the opportunity for a hearing
on the petition. After the hearing 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 USDA’s ruling on
the petition, provided an action is filed
not later than 20 days after the date of
the entry of the ruling.
This final rule modifies the special
purpose shipment regulations
prescribed under the order. This rule
modifies the reporting requirements,
procedures, and safeguard provisions
for making certain special purpose
potato shipments. Under the marketing
order, such special purpose shipments
may be exempt from the quality,
assessment, or inspection requirements.
The modifications were recommended
unanimously by the Committee at a
meeting on February 3, 2005.
SUPPLEMENTARY INFORMATION:
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]]>Agencies
[Federal Register Volume 70, Number 147 (Tuesday, August 2, 2005)]
[Rules and Regulations]
[Pages 44249-44252]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 05-15169]
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DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Part 923
[Docket Nos. AO-F&V-923-3; FV03-923-01 FR]
Sweet Cherries Grown in Designated Counties in Washington; Order
Amending Marketing Order No. 923
AGENCY: Agricultural Marketing Service, USDA.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This rule amends the marketing order (order) for sweet
cherries grown in Washington. Sweet cherry growers, voting in a mail
referendum held March 1 through March 21, 2005, voted on four
amendments proposed by the Washington Cherry Marketing Committee
(Committee), which is responsible for local administration of the
order, and two amendments proposed by the Agricultural Marketing
Service of USDA. Of the six amendments proposed, three were favored,
including: Adding authority for the Committee to accept voluntary
contributions for research and promotion; establishing tenure
limitations for Committee members; and requiring that continuance
referenda be conducted every 6 years. The three amendments that failed
include: adding authority for promotion, including paid advertising,
and production research projects; adding authority for supplemental
rates of assessment for individual varieties of cherries; and, adding a
public member to the Committee. These amendments will not be
implemented.
EFFECTIVE DATE: This rule is effective August 3, 2005.
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; or Robert J. Curry,
Marketing Order Administration Branch, Fruit and Vegetable Programs,
AMS, USDA, Northwest Marketing Field Office, 1220 SW., Third Avenue,
Room 385, Portland, OR 97204; telephone (503) 326-2724 or Fax (503)
326-7440.
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, or E-mail: Jay.Guerber@usda.gov.
SUPPLEMENTARY INFORMATION: Prior documents in this proceeding include:
Notice of Hearing issued on October 6, 2003, and published in the
October 10, 2003, issue of the Federal Register (68 FR 58636);
Recommended Decision issued on September 29, 2004 and published in the
October 5, 2004 issue of the Federal Register (69 FR 59551); and a
Secretary's Decision and Referendum Order issued January 11, 2005 and
published in the Federal Register on January 14, 2005 (70 FR 2573).
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
This final rule was formulated on the record of a public hearing
held November 18, 2003, in Yakima, Washington. Notice of the public
hearing was issued on October 6, 2003, and published in the October 10,
2003, issue of the Federal Register (68 FR 58636). 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 six proposals: four
proposals submitted by the Committee and two proposals by the
[[Page 44250]]
Agricultural Marketing Committee (AMS).
Upon the basis of evidence introduced at the hearing and the record
thereof, the Administrator of AMS on September 29, 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.
No comments or exceptions were filed.
A Secretary's Decision and Referendum Order was issued on January
11, 2005, directing that a referendum be conducted during the period
March 1 through March 25, 2005, among growers of sweet cherries to
determine whether they favored the proposed amendments to the order.
Voters voting in the referendum favored three out of the six amendments
proposed by the Committee and USDA.
The amendments favored by the voters and included in this order
will:
1. Add authority for the Committee to accept voluntary
contributions for production research, marketing research and
promotion. Any voluntary contributions received under this new
authority may be used to support marketing research and development
projects designed to assist, improve or promote the marketing,
distribution, and consumption of sweet cherries. Voluntary
contributions may not, however, be used for production research or paid
advertising, as the authority to conduct such activities under the
order was not approved in the referendum.
2. Impose term limitations on Committee members. Upon
implementation, Committee members will be limited to serving no more
than three consecutive two-year terms in one position without a break
in service.
3. Require that continuance referenda be held every 6 years among
Washington sweet cherry producers to determine their support for
continuation of their marketing order program.
The proposals to add authority for production research and paid
advertising, additional rates of assessments for individual varieties
of cherries and a public member to the committee, failed to obtain the
requisite number of votes needed, in number or in volume, to pass.
To become effective, the amendments had to be approved by at least
two-thirds of those producers voting or by voters representing at least
two-thirds of the volume of sweet cherries represented by voters voting
in the referendum.
AMS also proposed to allow such changes as may be necessary to the
order so that all of the order's provisions conform to the effectuated
amendments. None were deemed necessary.
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 final 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 $6,000,000.
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.
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 will
benefit equally from the amendments.
This final rule amends Sec. 923.43 of the order to authorize
acceptance of voluntary contributions. The proposal to add authority
for the Committee to accept voluntary contributions will not result in
any increased costs or burdens to the industry. In fact, witnesses
stated that this authority will benefit the industry greatly as it
could provide for additional funding sources for research activities.
Safeguards against donor control over the use of voluntary
contributions will ensure that these funds will be used in the best
interest of the industry. The Committee will decide how to use those
funds, and the decision-making process will be open to industry input
and feedback.
This final rule amends Sec. 923.21 of the order to authorize term
limits. The amendment to add tenure requirements for Committee members
will allow more persons the opportunity to serve as members of the
Committee. It will 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.
This final rule amends Sec. 923.64 of the order to authorize
continuance referenda. The amendment to require continuance referenda
on a periodic basis to ascertain grower support for the order will
allow growers to vote on whether to continue the operation of the
program. The referenda will 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 are expected to be
outweighed by the benefits expected to accrue to the sweet cherry
industry in designated counties of Washington.
Paperwork Reduction Act
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C.
Chapter 35), any reporting and recordkeeping provision changes that
would be generated by these amendments would be submitted to the Office
of Management and Budget (OMB). Current information collection
requirements for Part 923 are approved by OMB under the generic Fruit
Crops package OMB number 0581-0189.
As with all Federal marketing order programs, reports and forms are
periodically reviewed to reduce information requirements and
duplication by industry and public sector agencies.
USDA has not identified any relevant Federal rules that duplicate,
overlap or conflict with this proposed rule. These amendments are
designed to enhance the administration and functioning of the marketing
order to the benefit of the industry.
Committee meetings regarding these proposals as well as the hearing
dates were widely publicized throughout the
[[Page 44251]]
Washington sweet cherry industry, and all interested persons were
invited to attend the meetings and the hearing and participate in
Committee deliberations on all issues. All Committee meetings and the
hearing were public forums and all entities, both large and small, were
able to express views on these issues.
Civil Justice Reform
The amendments contained in this rule have been reviewed under
Executive Order 12988, Civil Justice Reform. They are not intended to
have retroactive effect. These amendments will 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.
Order Amending the Order Regulating Sweet Cherries Grown in Washington
Findings and Determinations
The findings and determinations set forth hereinafter are
supplementary and in addition to the findings and determination
previously made in connection with the issuance of the order; and all
of said previous findings and determinations are hereby ratified and
affirmed, except 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 Marketing Order
No. 923 (7 CFR part 923), 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 order, as amended, and as hereby further amended,
and all of the terms and conditions thereof, will tend to effectuate
the declared policy of the Act;
(2) The marketing order, as amended, and as hereby further amended,
regulates the handling of sweet cherries grown in the production area
in the same manner as, and is applicable only to persons in the
respective classes of commercial and industrial activity specified in
the marketing order upon which hearings have been held;
(3) The marketing order, as amended, and as hereby further amended,
is limited in 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
subdivision of the production area would not effectively carry out the
declared policy of the Act;
(4) The marketing order, as amended, and as hereby further amended,
prescribes, 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 is
in the current of interstate or foreign commerce or directly burdens,
obstructs, or affects such commerce.
(b) Additional findings. It is necessary and in the public interest
to make the amendments to this order effective not later than one day
after publication in the Federal Register. A later effective date would
unnecessarily delay implementation of the approved changes, which are
expected to benefit the Washington sweet cherry industry. Immediate
implementation of the amendments is necessary in order to make the
amendments effective as specified.
In view of the foregoing, it is hereby found and determined that
good cause exists for making these amendments effective one day after
publication in the Federal Register, and that it would be contrary to
the public interest to delay the effective date for 30 days after
publication in the Federal Register (Sec. 553(d), Administrative
Procedure Act; 5 U.S.C. 551-559).
(c) Determinations. It is hereby determined that:
(1) Handlers (excluding cooperative associations of producers who
are not engaged in processing, distributing, or shipping sweet cherries
covered by the order as hereby amended) who, during the period April 1,
2004, through February 28, 2005, handled 50 percent or more of the
volume of such sweet cherries covered by said order, as hereby amended,
have not signed an amended marketing agreement;
(2) The issuance of this amendatory order, further amending the
aforesaid order, is favored or approved by at least two-thirds of the
producers who participated in a referendum on the question of approval
and who, during the period of April 1, 2004, through February 28, 2005
(which has been deemed to be a representative period), have been
engaged within the production area in the production of such sweet
cherries, such producers having also produced for market at least two-
thirds of the volume of such commodity represented in the referendum;
and
(3) In the absence of a signed marketing agreement, the issuance of
this amendatory order is the only practical means pursuant to the
declared policy of the Act of advancing the interests of producers of
sweet cherries in the production area.
Order Relative To Handling of Sweet Cherries Grown in Washington
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 amended as follows:
The provisions of proposals 3, 5 and 6 of the proposed 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, shall be and are the terms and provisions
of this order amending the order and set forth in full herein.
List of Subjects in 7 CFR Part 923
Cherries, Marketing agreements, Reporting and recordkeeping
requirements.
0
For the reasons set out it the preamble, 7 CFR part 923 is amended as
follows:
PART 923--SWEET CHERRIES GROWN IN DESIGNATED COUNTIES IN WASHINGTON
0
1. The authority citation for 7 CFR part 923 continues to read as
follows:
Authority: 7 U.S.C. 601-674.
[[Page 44252]]
0
2. Section 923.21 is revised 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.
0
3. 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.
0
4. Section 923.64 is amended by:
0
A. Revising paragraph (c).
0
B. Redesignating paragraph (d) as paragraph (e).
0
C. Adding a new paragraph (d).
The revisions 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.
* * * * *
Dated: July 27, 2005.
Kenneth C. Clayton,
Acting Administrator, Agricultural Marketing Service.
[FR Doc. 05-15169 Filed 8-1-05; 8:45 am]
BILLING CODE 3410-02-P
