Tart Cherries Grown in the States of Michigan, New York, Pennsylvania, Oregon, Utah, Washington, and Wisconsin; Hearing on Proposed Amendment of Marketing Agreement and Order No. 930, 5646-5648 [07-549]

Agencies

• Agricultural Marketing Service
• DEPARTMENT OF AGRICULTURE

[Federal Register Volume 72, Number 25 (Wednesday, February 7, 2007)]
[Proposed Rules]
[Pages 5646-5648]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 07-549]


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Proposed Rules
                                                Federal Register
________________________________________________________________________

This section of the FEDERAL REGISTER contains notices to the public of 
the proposed issuance of rules and regulations. The purpose of these 
notices is to give interested persons an opportunity to participate in 
the rule making prior to the adoption of the final rules.

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Federal Register / Vol. 72, No. 25 / Wednesday, February 7, 2007 / 
Proposed Rules

[[Page 5646]]



DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 930

[Docket No. AO-322-A7; AMS-FV-06-0213; FV07-930-2]


Tart Cherries Grown in the States of Michigan, New York, 
Pennsylvania, Oregon, Utah, Washington, and Wisconsin; Hearing on 
Proposed Amendment of Marketing Agreement and Order No. 930

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Notice of hearing on proposed rulemaking.

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SUMMARY: Notice is hereby given of a public hearing to receive evidence 
on proposed amendments to Marketing Agreement and Order No. 930 
(order), which regulate the handling of tart cherries grown in 
Michigan, New York, Pennsylvania, Oregon, Utah, Washington, and 
Wisconsin. Seven amendments are proposed by the Cherry Industry 
Administrative Board (Board), which is responsible for local 
administration of the order. These proposed amendments would: Authorize 
changing the primary reserve capacity associated with the volume 
control provisions of the order; authorize establishment of a minimum 
inventory level at which all remaining product held in reserves would 
be released to handlers for use as free tonnage; establish an age 
limitation on product placed into reserves; revise the voting 
requirements necessary to approve a Board action; revise the nomination 
and election process for handler members on the Board; revise Board 
membership affiliation requirements; and update order language to more 
accurately reflect grower and handler participation in the nomination 
and election process in Districts with only one Board representative. 
In addition, the Agricultural Marketing Service (AMS) proposes to make 
any such changes as may be necessary to the order or administrative 
rules and regulations to conform to any amendment that may result from 
the hearing. The proposals are intended to provide additional 
flexibility in administering the volume control provisions of the 
order, and to update Board nomination, election, and membership 
requirements. These proposed amendments are intended to improve the 
operation and administration of the order.

DATES: The hearing dates are:
    1. February 21, 2007, 9 a.m. to 5 p.m.; and continuing on February 
22, 2007, at 9 a.m., if necessary, in Grand Rapids, Michigan.
    2. March 1, 2007, 9 a.m. to 5 p.m.; and continuing on March 2, 
2007, at 9 a.m., if necessary, in Provo, Utah.

ADDRESSES: The hearing locations are:
    1. Grand Rapids--U.S. Bankruptcy Court, One Division Ave., N, 3rd 
Floor Courtroom C, Grand Rapids, MI 49503.
    2. Provo--Utah County Administration Building, 100 E. Center 
Street, Room L900, Provo, Utah 84606.

FOR FURTHER INFORMATION CONTACT: Martin Engeler, Marketing Order 
Administration Branch, Fruit and Vegetable Programs, AMS, USDA, 2202 
Monterey Street, Fresno, California 93721; telephone: (559) 487-5110, 
Fax: (559) 487-5906; or Kathleen M. Finn, 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: 
Martin.Engeler@usda.gov or Kathy.Finn@usda.gov.
    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: This administrative action is instituted 
pursuant to the Agricultural Marketing Agreement Act of 1937, as 
amended (7 U.S.C. 601-674), hereinafter referred to as the ``Act.'' 
This action is governed by the provisions of sections 556 and 557 of 
title 5 of the United States Code and, therefore, is excluded from the 
requirements of Executive Order 12866.
    The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) seeks to 
ensure that within the statutory authority of a program, the regulatory 
and informational requirements are tailored to the size and nature of 
small businesses. Interested persons are invited to present evidence at 
the hearing on the possible regulatory and informational impacts of the 
proposals on small businesses.
    The amendments proposed herein have been reviewed under Executive 
Order 12988, Civil Justice Reform. They are not intended to have 
retroactive effect. If adopted, the proposed amendments would not 
preempt any State or local laws, regulations, or policies, unless they 
present an irreconcilable conflict with the proposals.
    The Act provides that administrative proceedings must be exhausted 
before parties may file suit in court. Under section 608c(15)(A) of the 
Act, any handler subject to an order may file with 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. 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 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.
    The hearing is called pursuant to the provisions of the Act and the 
applicable rules of practice and procedure governing the formulation of 
marketing agreements and orders (7 CFR part 900).
    The proposed amendments were recommended by the Board and initially 
submitted to USDA on December 16, 2005. Additional information was 
submitted in June 2006 at the request of USDA and a determination was 
subsequently made to schedule this matter for hearing.
    The proposed amendments to the order recommended by the Board are 
summarized as follows:
    1. Amend Sec.  930.50 of the order to authorize changing the 
primary reserve capacity associated with the volume control provisions 
of the order.

[[Page 5647]]

    2. Amend Sec.  930.54 of the order to authorize establishment of a 
minimum inventory level at which all remaining product held in reserves 
would be released to handlers for use as free tonnage.
    3. Amend Sec.  930.55 to establish an age limitation on product 
placed into reserves.
    4. Amend Sec.  930.32 to revise the voting requirements necessary 
to approve a Board action.
    5. Amend Sec.  930.23 to revise the nomination and election process 
for handler members on the Board.
    6. Amend Sec.  930.20 to revise Board membership affiliation 
requirements.
    7. Amend Sec.  930.23 to update order language to more accurately 
reflect grower and handler participation in the nomination and election 
process in Districts with only one Board representative.
    The Board works with USDA in administering the order. These 
proposals submitted by the Board have not received the approval of 
USDA. The Board believes that its proposed changes would provide 
additional flexibility in administering the volume control provisions 
of the order, and would update the nomination, election, and membership 
requirements for the Board. The proposed amendments are intended to 
improve the operation and administration of the order.
    In addition to the proposed amendments to the order, AMS proposes 
to make any such changes as may be necessary to the order or 
administrative rules and regulations to conform to any amendment that 
may result from the hearing.
    The public hearing is held for the purpose of: (i) Receiving 
evidence about the economic and marketing conditions which relate to 
the proposed amendments of the order; (ii) determining whether there is 
a need for the proposed amendments to the order; and (iii) determining 
whether the proposed amendments or appropriate modifications thereof 
will tend to effectuate the declared policy of the Act.
    Testimony is invited at the hearing on all the proposals and 
recommendations contained in this notice, as well as any appropriate 
modifications or alternatives.
    All persons wishing to submit written material as evidence at the 
hearing should be prepared to submit four copies of such material at 
the hearing and should have prepared testimony available for 
presentation at the hearing.
    From the time the notice of hearing is issued and until the 
issuance of a final decision in this proceeding, USDA employees 
involved in the decisional process are prohibited from discussing the 
merits of the hearing issues on an ex parte basis with any person 
having an interest in the proceeding. The prohibition applies to 
employees in the following organizational units: Office of the 
Secretary of Agriculture; Office of the Administrator, AMS; Office of 
the General Counsel, except any designated employee of the General 
Counsel assigned to represent the Board in this proceeding; and the 
Fruit and Vegetable Programs, AMS.
    Procedural matters are not subject to the above prohibition and may 
be discussed at any time.

List of Subjects in 7 CFR Part 930

    Marketing agreements, Reporting and recordkeeping requirements, 
Tart cherries.

PART 930--TART CHERRIES GROWN IN THE STATES OF MICHIGAN, NEW YORK, 
PENNSYLVANIA, OREGON, UTAH, WASHINGTON, AND WISCONSIN

    1. The authority citation for 7 CFR part 930 continues to read as 
follows:

    Authority: 7 U.S.C. 601-674.

    2. Testimony is invited on the following proposals or appropriate 
alternatives or modifications to such proposals.
    Proposals submitted by the Cherry Industry Administrative Board:

Proposal Number 1

    3. Revise paragraph (i) of Sec.  930.50 to read as follows:


Sec.  930.50  Marketing policy.

* * * * *
    (i) Restricted Percentages. Restricted percentage requirements 
established under paragraphs (b), (c), or (d) of this section may be 
fulfilled by handlers by either establishing an inventory reserve in 
accordance with Sec.  930.55 or Sec.  930.57 or by diversion of product 
in accordance with Sec.  930.59. In years where required, the Board 
shall establish a maximum percentage of the restricted quantity which 
may be established as a primary inventory reserve such that the total 
primary inventory reserve does not exceed 50 million pounds; Provided, 
That such 50 million pound quantity may be changed upon recommendation 
of the Board and approval of the Secretary. Any such change shall be 
recommended by the Board on or before September 30 of any crop year to 
become effective for the following crop year, and the quantity may be 
changed no more than one time per crop year. Handlers will be permitted 
to divert (at plant or with grower diversion certificates) as much of 
the restricted percentage requirement as they deem appropriate, but may 
not establish a primary inventory reserve in excess of the percentage 
established by the Board for restricted cherries. In the event handlers 
wish to establish inventory reserve in excess of this amount, they may 
do so, in which case it may be classified as a secondary inventory 
reserve and will be regulated accordingly.
* * * * *

Proposal Number 2

    4. Add a new paragraph (d) to Sec.  930.54 to read as follows:


Sec.  930.54  Prohibition on the use or disposition of inventory 
reserve cherries.

* * * * *
    (d) Should the volume of cherries held in the primary inventory 
reserves and, subsequently, the secondary inventory reserves reach a 
minimum amount, which level will be established by the Secretary upon 
recommendation from the Board, the products held in the respective 
reserves shall be released from the reserves and made available to the 
handlers as free tonnage.

Proposal Number 3

    5. Revise paragraph (b) of Sec.  930.55 to read as follows:


Sec.  930.55  Primary inventory reserves.

* * * * *
    (b) The form of the cherries, frozen, canned in any form, dried, or 
concentrated juice, placed in the primary inventory reserve is at the 
option of the handler. The product(s) placed by the handler in the 
primary inventory reserve must have been produced in either the current 
or the preceding two crop years. Except as may be limited by Sec.  
930.50(i) or as may be permitted pursuant to Sec. Sec.  930.59 and 
930.62, such inventory reserve portion shall be equal to the sum of the 
products obtained by multiplying the weight or volume of the cherries 
in each lot of cherries acquired during the fiscal period by the then 
effective restricted percentage fixed by the Secretary; Provided, That 
in converting cherries in each lot to the form chosen by the handler, 
the inventory reserve obligations shall be adjusted in accordance with 
uniform rules adopted by the Board in terms of raw fruit equivalent.
* * * * *

Proposal Number 4

    6. Revise paragraph (a) of Sec.  930.32 to read as follows:

[[Page 5648]]

Sec.  930.32  Procedure.

    (a) Two-thirds (\2/3\) of the members of the Board, including 
alternates acting for absent members, shall constitute a quorum. For 
any action of the Board to pass, at least two-thirds (\2/3\) of those 
present at the meeting must vote in support of such action.
* * * * *

Proposal Number 5

    7. Revise paragraph (b)(2), redesignate paragraph (c)(3) as 
paragraph (c)(3)(i) and add a new paragraph (c)(3)(ii) to Sec.  930.23 
to read as follows:


Sec.  930.23  Nomination and election.

* * * * *
    (b) * * *
    (2) In order for the name of a handler nominee to appear on an 
election ballot, the nominee's name must be submitted with a petition 
form, to be supplied by the Secretary or the Board, which contains the 
signature of one or more handler(s), other than the nominee, from the 
nominee's district who is or are eligible to vote in the election and 
that handle(s) a combined total of no less than five percent (5%) of 
the average production, as that term is used in Sec.  930.20, handled 
in the district. The requirement that the petition form be signed by a 
handler other than the nominee shall not apply in any district where 
fewer than two handlers are eligible to vote.
* * * * *
    (c) * * *
    (3)(i) * * *
    (ii) To be seated as a handler representative in any district, the 
successful candidate must receive the support of handler(s) that 
handled a combined total of no less than five percent (5%), of the 
average production, as that term is used in Sec.  930.20, handled in 
the district.
* * * * *

Proposal Number 6

    8. Revise paragraph (g) of Sec.  930.20 to read as follows:


Sec.  930.20  Establishment and membership.

* * * * *
    (g) In order to achieve a fair and balanced representation on the 
Board, and to prevent any one sales constituency from gaining control 
of the Board, not more than one Board member may be from, or affiliated 
with, a single sales constituency in those districts having more than 
one seat on the Board; Provided, That this prohibition shall not apply 
in a district where such a conflict cannot be avoided. There is, 
however, no prohibition on the number of Board members from differing 
districts that may be elected from a single sales constituency which 
may have operations in more than one district. However, as provided in 
Sec.  930.23, a handler or grower may only nominate Board members and 
vote in one district.
* * * * *

Proposal Number 7

    9. Revise paragraphs (b)(5) and (c)(4) of Sec.  930.23 to read as 
follows:


Sec.  930.23  Nomination and election.

* * * * *
    (b) * * *
    (5) In districts entitled to only one Board member, both growers 
and handlers may be nominated for the district's Board seat. Grower and 
handler nominations must follow the petition procedures outlined in 
paragraphs (b)(1) and (b)(2) of this section.
* * * * *
    (c) * * *
    (4) In districts entitled to only one Board member, growers and 
handlers may vote for either the grower or handler nominee(s) for the 
single seat allocated to those districts.
* * * * *
    Proposal submitted by USDA:

Proposal Number 8

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

    Dated: February 5, 2007.
Lloyd C. Day,
Administrator, Agricultural Marketing Service.
[FR Doc. 07-549 Filed 2-5-07; 10:43 am]
BILLING CODE 3410-02-P