[Federal Register Volume 75, Number 238 (Monday, December 13, 2010)]
[Proposed Rules]
[Pages 77564-77569]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-31198]


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DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 930

[Doc. No. AMS-FV-10-0081; FV10-930-4 PR]


Tart Cherries Grown in the States of Michigan, et al.; Final Free 
and Restricted Percentages for the 2010-2011 Crop Year for Tart 
Cherries

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Proposed rule.

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SUMMARY: This rule invites comments on the establishment of final free 
and restricted percentages for the 2010-2011 crop year. The percentages 
are 58 percent free and 42 percent restricted and will establish the 
proportion of cherries from the 2010 crop which may be handled in 
commercial outlets. The percentages are intended to stabilize supplies 
and prices, and strengthen market conditions. The percentages were 
recommended by the Cherry Industry Administrative Board (Board), the 
body that locally administers the marketing order. The marketing order 
regulates the handling of tart cherries grown in the States of 
Michigan, New York, Pennsylvania, Oregon, Utah, Washington, and 
Wisconsin.

DATES: Comments must be received by January 12, 2011.

ADDRESSES: Interested persons are invited to submit written comments 
concerning this rule. Comments must be sent to the Docket Clerk, 
Marketing Order Administration Branch, Fruit and Vegetable Programs, 
AMS, USDA, 1400 Independence Avenue, SW., STOP 0237, Washington, DC 
20250-0237; Fax: (202) 720-8938, or Internet: http://www.regulations.gov. All comments should reference the docket number 
and the date and page number of this issue of the Federal Register and 
will be available for public inspection in the Office of the Docket 
Clerk during regular business hours or can be viewed at: http://www.regulations.gov. All comments submitted in response to this rule 
will be included in the record and will be made available to the 
public. Please be advised that the identity of the individuals or 
entities submitting the comments will be made public on the Internet at 
the address provided above.

FOR FURTHER INFORMATION CONTACT: Kenneth G. Johnson, Marketing Order 
Administration Branch, Fruit and Vegetable Programs, AMS, USDA, Unit 
155, 4700 River Road, Riverdale, MD 20737; telephone: (301) 734-5245, 
Fax: (301) 734-5275; E-mail: <a href="/cdn-cgi/l/email-protection#2368464d4d46574b0d694c4b4d504c4d63424e500d565047420d444c55"><span class="__cf_email__" data-cfemail="b4ffd1dadad1c0dc9afedbdcdac7dbdaf4d5d9c79ac1c7d0d59ad3dbc2">[email protected]</span></a>.
    Small businesses may request information on complying with this 
regulation by contacting Antoinette Carter, 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: 
<a href="/cdn-cgi/l/email-protection#14557a607b7d7a716060713a577566607166547579673a616770753a737b62"><span class="__cf_email__" data-cfemail="a2e3ccd6cdcbccc7d6d6c78ce1c3d0d6c7d0e2c3cfd18cd7d1c6c38cc5cdd4">[email protected]</span></a>.

SUPPLEMENTARY INFORMATION: This proposed rule is issued under Marketing 
Agreement and Order No. 930 (7 CFR part 930), regulating the handling 
of tart cherries produced in the States of Michigan, New York, 
Pennsylvania, Oregon, Utah, Washington, and Wisconsin, 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 (Department) is issuing this rule in 
conformance with Executive Order 12866.
    This proposal has been reviewed under Executive Order 12988, Civil 
Justice Reform. Under the marketing order provisions now in effect, 
final free and restricted percentages may be established for tart 
cherries handled by handlers during the crop year. This proposed rule 
would establish final free and restricted percentages for tart cherries 
for the 2010-2011 crop year, beginning July 1, 2010, through June 30, 
2011.
    The Act provides that administrative proceedings must be exhausted 
before parties may file suit in court. Under section 608c(15)(A) of the 
Act, any handler subject to an order may file with the Secretary a 
petition stating that the order, any provision of the order, or any 
obligation imposed in connection with the order is not in accordance 
with law and request a modification of the order or to be exempt 
therefrom. Such handler is afforded the opportunity for a hearing on 
the petition. After the hearing, the Secretary 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 in equity to review 
the Secretary's ruling on the petition, provided an action is filed not 
later than 20 days after the date of the entry of the ruling.
    The order prescribes procedures for computing an optimum supply and 
preliminary and final percentages that establish the amount of tart 
cherries that can be marketed throughout the season. The regulations 
apply to all handlers of tart cherries that are in the regulated 
districts. Tart cherries in the free percentage category may be shipped 
immediately to any market, while restricted percentage tart cherries 
must be held by handlers in a primary or secondary reserve, or be 
diverted in accordance with Sec.  930.59 of the order and Sec.  930.159 
of the regulations, or used for exempt purposes (to obtain diversion 
credit) under Sec.  930.62 of the order and Sec.  930.162 of the 
regulations. The regulated Districts proposed for the 2010-2011 crop 
year are: District two-Central Michigan; District three--Southern 
Michigan; District four--New York; District seven--Utah; District

[[Page 77565]]

eight--Washington; and District nine--Wisconsin. Districts one, five, 
and six (Northern Michigan, Oregon, and Pennsylvania, respectively) 
will not be regulated for the 2010-2011 season.
    The order prescribes under Sec.  930.52 that those districts to be 
regulated shall be those districts in which the average annual 
production of cherries over the prior three years has exceeded six 
million pounds. A district not meeting the six million-pound 
requirement shall not be regulated in such crop year. Because this 
requirement was not met in the Districts of Oregon and Pennsylvania, 
handlers in those districts would not be subject to volume regulation 
during the 2010-2011 crop year. Section 930.52 of the order also 
provides that any district producing a crop which is less than 50 
percent of the average annual processed production in that district in 
the previous five years is exempt from volume regulation. Thus, 
Northern Michigan would also not be subject to volume regulation for 
the 2010-2011 crop year because its 2010 crop production was less than 
50 percent of its 5-year average production due to weather related crop 
damage.
    Demand for tart cherries at the farm level is derived from the 
demand for tart cherry products at retail. Demand for tart cherries and 
tart cherry products tend to be relatively stable from year to year. 
The supply of tart cherries, by contrast, varies greatly from crop year 
to crop year. The magnitude of annual fluctuations in tart cherry 
supplies is one of the most pronounced for any agricultural commodity 
in the United States. In addition, since tart cherries are processed 
either into cans or frozen, they can be stored and carried over from 
crop year to crop year. This creates substantial coordination and 
marketing problems. The supply and demand for tart cherries is rarely 
balanced. The primary purpose of setting free and restricted 
percentages is to balance supply with demand and reduce large surpluses 
that may occur.
    Section 930.50(a) of the order prescribes procedures for computing 
an optimum supply for each crop year. The Board must meet on or about 
July 1 of each crop year, to review sales data, inventory data, current 
crop forecasts and market conditions. The optimum supply volume is 
calculated as 100 percent of the average sales of the prior three years 
to which is added a desirable carryout inventory not to exceed 20 
million pounds or such other amount as may be established with the 
approval of the Secretary. The optimum supply represents the desirable 
volume of tart cherries that should be available for sale in the coming 
crop year.
    The order also provides that on or about July 1 of each crop year, 
the Board is to establish preliminary free and restricted percentages. 
These percentages are computed by deducting the actual carryin 
inventory from the optimum supply figure (adjusted to raw product 
equivalent--the actual weight of cherries handled to process into 
cherry products) and subtracting that figure from the current year's 
USDA crop forecast or from an average of such other crop estimates the 
Board votes to use. If the resulting number is positive, this 
represents the estimated over-production, which would be the restricted 
tonnage. The restricted tonnage is then divided by the sum of the crop 
estimates for the regulated districts to obtain a preliminary 
restricted percentage for the regulated districts. The preliminary free 
percentage is the difference between the restricted percentage and 100 
percent. If the tonnage requirements for the year are more than the 
USDA crop forecast, the Board is required to establish a preliminary 
free tonnage percentage of 100 percent and a preliminary restricted 
percentage of zero. The Board is required to announce the preliminary 
percentages in accordance with paragraph (h) of Sec.  930.50.
    The Board met on June 17, 2010, and computed, for the 2010-2011 
crop year, an optimum supply of 170 million pounds. The Board 
recommended that the desirable carryout figure be zero pounds. 
Desirable carryout is the amount of fruit required to be carried into 
the succeeding crop year and is set by the Board after considering 
market circumstances and needs. This figure can range from zero to a 
maximum of 20 million pounds.
    The Board calculated preliminary free and restricted percentages as 
follows: The USDA estimate of the crop for the entire production area 
was 195 million pounds; a 51 million pound carryin (based on Board 
estimates) was subtracted from the optimum supply of 170 million pounds 
which resulted in the 2010-2011 poundage requirements (adjusted optimum 
supply) of 119 million pounds. The carryin figure reflects the amount 
of cherries that handlers actually have in inventory at the beginning 
of the 2010-2011 crop year. Subtracting the adjusted optimum supply of 
119 million pounds from the USDA crop estimate, (195 million pounds) 
resulted in a surplus of 76 million pounds of tart cherries. The 
surplus was divided by the production in the regulated districts (191 
million pounds) and resulted in a restricted percentage of 40 percent 
for the 2010-2011 crop year. The free percentage was 60 percent (100 
percent minus 40 percent). The Board established these percentages and 
announced them to the industry as required by the order.
    The preliminary percentages were based on the USDA production 
estimate and the following supply and demand information available at 
the June meeting for the 2010-2011 crop year:

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                                                                                                                                                                             Millions of pounds
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Optimum Supply Formula:
    (1) Average sales of the prior three years............................................................................................................................                   170
    (2) Plus desirable carryout...........................................................................................................................................                     0
    (3) Optimum supply calculated by the Board at the June meeting........................................................................................................                   170
Preliminary Percentages:
    (4) USDA crop estimate................................................................................................................................................                   195
    (5) Carryin held by handlers as of July 1, 2009.......................................................................................................................                    51
    (6) Adjusted optimum supply for current crop year.....................................................................................................................                   119
    (7) Surplus...........................................................................................................................................................                    76
    (8) USDA crop estimate for regulated districts........................................................................................................................                   191
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                                                                                                                                                                               Free   Restricted
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    (9) Preliminary percentages (item 7 divided by item 8 x 100 equals restricted percentage; 100 minus restricted percentage equals free percentage)......................       60         40
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[[Page 77566]]

    Between July 1 and September 15 of each crop year, the Board may 
modify the preliminary free and restricted percentages by announcing 
interim free and restricted percentages to adjust to the actual pack 
occurring in the industry. No later than September 15, the Board must 
recommend final free and restricted percentages to the Secretary.
    The Secretary establishes final free and restricted percentages 
through the informal rulemaking process. These percentages would make 
available the tart cherries necessary to achieve the optimum supply 
figure calculated by the Board. The difference between any final free 
percentage and 100 percent is the final restricted percentage.
    The Board met on September 10, 2010, to recommend final free and 
restricted percentages. The actual production reported by the Board was 
189 million pounds, which is a 6 million pound decrease from the USDA 
crop estimate of 195 million pounds.
    The Board also recommended an economic adjustment of 20 million 
pounds to be subtracted from the surplus to adjust the supply for the 
poor quality and yields due to adverse harvest conditions in various 
parts of the production area. Handlers stated that processing yields 
from the 2010 tart cherry harvest were significantly lower this year 
than in previous years. The lower yields resulted in processors using 
more raw tart cherries than usual to produce a given amount of finished 
product.
    A 51 million pound carryin (based on handler reports) was 
subtracted from the optimum supply of 170 million pounds which resulted 
in the 2010-2011 poundage requirements (adjusted optimum supply) of 119 
million pounds. Subtracting the adjusted optimum supply of 119 million 
pounds from the actual production of 189 million pounds results in a 
surplus of 70 million pounds of tart cherries. An economic adjustment 
of 20 million pounds was subtracted from the surplus, resulting in an 
adjusted surplus of 50 million pounds of tart cherries. The adjusted 
surplus of 50 million pounds was divided by the production in the 
regulated districts (120 million pounds) and resulted in a restricted 
percentage of 42 percent for the 2010-2011 crop year. The free 
percentage was 58 percent (100 percent minus 42 percent).
    The final percentages are based on the Board's reported production 
figures and the following supply and demand information available in 
September for the 2010-2011 crop year:

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                                                                                                                                                                             Millions of pounds
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Optimum Supply Formula:
    (1) Average sales of the prior three years............................................................................................................................                   170
    (2) Plus desirable carryout...........................................................................................................................................                     0
    (3) Optimum supply calculated by the Board............................................................................................................................                   170
Final Percentages:
    (4) Board reported production.........................................................................................................................................                   189
    (5) Carryin held by handlers as of July 1, 2010.......................................................................................................................                    51
    (6) Adjusted optimum supply...........................................................................................................................................                   119
    (7) Surplus (item 4 minus item 6).....................................................................................................................................                    70
    (8) Economic adjustment...............................................................................................................................................                    20
    (9) Adjusted surplus (item 7 minus item 8)............................................................................................................................                    50
    (10) Production in regulated districts................................................................................................................................                   120
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                                                                                                                                                                                 Percentages
                                                                                                                                                                            --------------------
                                                                                                                                                                               Fee    Restricted
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    (11) Final Percentages (item 9 divided by item 10 x 100 equals restricted percentage; 100 minus restricted percentage equals free percentage)..........................       58         42
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    The USDA's ``Guidelines for Fruit, Vegetable, and Specialty Crop 
Marketing Orders'' specify that 110 percent of recent years' sales 
should be made available to primary markets each season before 
recommendations for volume regulation are approved. This goal would be 
met by the establishment of a preliminary percentage which releases 100 
percent of the optimum supply and the additional release of tart 
cherries provided under Sec.  930.50(g). This release of tonnage, equal 
to 10 percent of the average sales of the prior three years sales, is 
made available to handlers each season. The Board recommended that such 
release should be made available to handlers the first week of December 
and the first week of May. Handlers can decide how much of the 10 
percent release they would like to receive on the December and May 
release dates. Once released, such cherries are released for free use 
by such handler. Approximately 17 million pounds would be made 
available to handlers this season in accordance with Department 
Guidelines. This release would be made available to every handler and 
released to such handler in proportion to the handler's percentage of 
the total regulated crop handled. If a handler does not take his/her 
proportionate amount, such amount remains in the inventory reserve.

Initial Regulatory Flexibility Analysis

    Pursuant to 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, 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 in order that small businesses will 
not be unduly or disproportionately burdened. Marketing orders issued 
pursuant to the Act, and rules issued thereunder, are unique in that 
they are brought about through group action of essentially small 
entities acting on their own behalf. Thus, both statutes have small 
entity orientation and compatibility.
    There are approximately 40 handlers of tart cherries who are 
subject to regulation under the tart cherry marketing order and 
approximately 600 producers of tart cherries in the regulated area. 
Small agricultural service firms, which includes handlers, have been 
defined by the Small Business Administration (SBA) (13 CFR 121.201) as 
those having annual receipts of less than $7,000,000, and small 
agricultural producers are defined as those having annual receipts of 
less than $750,000. A majority of the producers and handlers are 
considered small entities under SBA's standards.

[[Page 77567]]

    The principal demand for tart cherries is in the form of processed 
products. Tart cherries are dried, frozen, canned, juiced, and pureed. 
During the period 1997/98 through 2008/09, approximately 85 percent of 
the U.S. tart cherry crop, or 222.7 million pounds, was processed 
annually. Of the 222.7 million pounds of tart cherries processed, 61 
percent was frozen, 27 percent was canned, and 12 percent was utilized 
for juice and other products.
    Based on National Agricultural Statistics Service data, acreage in 
the United States devoted to tart cherry production has been trending 
downward. Bearing acreage has declined from a high of 50,050 acres in 
1987/88 to 35,550 acres in 2009/10. This represents a 29 percent 
decrease in total bearing acres. Michigan leads the nation in tart 
cherry acreage with 73 percent of the total and produces about 75 
percent of the U.S. tart cherry crop each year.
    The 2010/11 crop is 189 million pounds. This production level is 6 
million pounds less than the 195.3 million pounds estimated by the 
National Agricultural Statistics Service (NASS) in June. The largest 
crop occurred in 1995 with production in the regulated districts 
reaching a record 395.6 million pounds. The price per pound received by 
tart cherry growers ranged from a low of 7.3 cents in 1987 to a high of 
46.4 cents in 1991. These problems of wide supply and price 
fluctuations in the tart cherry industry are national in scope and 
impact. Growers testified during the order promulgation process that 
the prices they received often did not come close to covering the costs 
of production.
    The industry demonstrated a need for an order during the 
promulgation process of the marketing order because large variations in 
annual tart cherry supplies tend to lead to fluctuations in prices and 
disorderly marketing. As a result of these fluctuations in supply and 
price, growers realize less income. The industry chose a volume control 
marketing order to even out these wide variations in supply and improve 
returns to growers. During the promulgation process, proponents 
testified that small growers and processors would have the most to gain 
from implementation of a marketing order because many such growers and 
handlers had been going out of business due to low tart cherry prices. 
They also testified that, since an order would help increase grower 
returns, this should increase the buffer between business success and 
failure because small growers and handlers tend to be less capitalized 
than larger growers and handlers.
    Aggregate demand for tart cherries and tart cherry products tends 
to be relatively stable from year to year. Similarly, prices at the 
retail level show minimal variation. Consumer prices in grocery stores, 
and particularly in food service markets, largely do not reflect 
fluctuations in cherry supplies. Retail demand is assumed to be highly 
inelastic which indicates that price reductions do not result in large 
increases in the quantity demanded. Most tart cherries are sold to food 
service outlets and to consumers as pie filling; frozen cherries are 
sold as an ingredient to manufacturers of pies and cherry desserts. 
Juice and dried cherries are expanding market outlets for tart 
cherries.
    Demand for tart cherries at the farm level is derived from the 
demand for tart cherry products at retail. In general, the farm-level 
demand for a commodity consists of the demand at retail or food service 
outlets minus per-unit processing and distribution costs incurred in 
transforming the raw farm commodity into a product available to 
consumers. These costs comprise what is known as the ``marketing 
margin.''
    The supply of tart cherries, by contrast, varies greatly. The 
magnitude of annual fluctuations in tart cherry supplies is one of the 
most pronounced for any agricultural commodity in the United States. In 
addition, since tart cherries are processed either into cans or frozen, 
they can be stored and carried over from year to year. This creates 
substantial coordination and marketing problems. The supply and demand 
for tart cherries is rarely in equilibrium. As a result, grower prices 
fluctuate widely, reflecting the large swings in annual supplies.
    In an effort to stabilize prices, the tart cherry industry uses the 
volume control mechanisms under the authority of the Federal marketing 
order. This authority allows the industry to set free and restricted 
percentages. These restricted percentages are only applied to States or 
districts with a 3-year average of production greater than six million 
pounds, and to States or districts in which the production is 50 
percent or more of the previous 5-year processed production average.
    The primary purpose of setting restricted percentages is an attempt 
to bring supply and demand into balance. If the primary market is over-
supplied with cherries, grower prices decline substantially.
    The tart cherry sector uses an industry-wide storage program as a 
supplemental coordinating mechanism under the Federal marketing order. 
The primary purpose of the storage program is to warehouse supplies in 
large crop years in order to supplement supplies in short crop years. 
The storage approach is feasible because the increase in price--when 
moving from a large crop to a short crop year--more than offsets the 
costs for storage, interest, and handling of the stored cherries.
    The price that growers receive for their crop is largely determined 
by the total production volume and carryin inventories. The Federal 
marketing order permits the industry to exercise supply control 
provisions, which allow for the establishment of free and restricted 
percentages for the primary market, and a storage program. The 
establishment of restricted percentages impacts the production to be 
marketed in the primary market, while the storage program has an impact 
on the volume of unsold inventories.
    The volume control mechanism used by the cherry industry results in 
decreased supplies to primary markets. Without volume control the 
primary markets (domestic) would likely be over-supplied, resulting in 
lower grower prices.
    To assess the impact that volume control has on the prices growers 
receive for their product, an econometric model has been developed. The 
econometric model provides a way to see what impacts volume control may 
have on grower prices. The two districts in Michigan, along with the 
districts in Utah, New York, Washington, and Wisconsin are the 
restricted areas for this crop year and their combined total production 
is 120 million pounds. A 42 percent restriction means 70 million pounds 
is available to be shipped to primary markets from these five States. 
Production levels of 65.3 million pounds for Northwest Michigan, 1.2 
million pounds for Oregon, and 2.2 million pounds for Pennsylvania (the 
unregulated areas in 2010/11), result in an additional 69 million 
pounds available for primary market shipments.
    In addition, USDA requires a 10 percent release from reserves as a 
market growth factor. This results in an additional 17 million pounds 
being available for the primary market. The 70 million pounds from the 
two Michigan districts, Utah, Washington, Wisconsin, and New York, the 
69 million pounds from the other producing States, the 17 million pound 
release, and the 51 million pound carryin inventory gives a total of 
207 million pounds being available for the primary markets.
    The econometric model is used to estimate the impact of 
establishing a reserve pool for this year's crop. With the volume 
controls, grower prices are estimated to be approximately $0.12 per

[[Page 77568]]

pound higher than without volume controls.
    The use of volume controls is estimated to have a positive impact 
on growers' total revenues. With regulation, growers' total revenue 
from processed cherries is estimated to be $23 million higher than 
without restrictions. The without-restrictions scenario assumes that 
all tart cherries produced would be delivered to processors for 
payments.
    It is concluded that the 42 percent volume control would not unduly 
burden producers, particularly smaller growers. The 42 percent 
restriction would be applied to the growers in two districts in 
Michigan, New York, Utah, Washington, and Wisconsin. The growers in the 
other unregulated areas covered under the marketing order will benefit 
from this restriction.
    Recent grower prices have been as high as $0.44 per pound in 2002-
03 when there was a crop failure. Prices in the last two crop years 
have been $0.372 in 2008-09 and $0.194 per pound in 2009-10. At current 
production levels, yield is estimated at approximately 10,251 pounds 
per acre. At this level of yield the cost of production is estimated to 
be $0.25 per pound (costs were estimated by representatives of Michigan 
State University with input provided by growers for the current crop). 
The grower price for 2010-11 will likely be less than $0.25 per pound 
for the combined free and restricted production. Thus, this year's 
grower price even with regulation is estimated to be below the cost of 
production. The use of volume controls is believed to have little or no 
effect on consumer prices and will not result in fewer retail sales or 
sales to food service outlets.
    Without the use of volume controls, the industry could be expected 
to start to build large amounts of unwanted inventories. These 
inventories have a depressing effect on grower prices. The econometric 
model shows for every 1 million-pound increase in carryin inventories, 
a decrease in grower prices of $0.0036 per pound occurs. The use of 
volume controls allows the industry to supply the primary markets while 
avoiding the disastrous results of over-supplying these markets. In 
addition, through volume control, the industry has an additional supply 
of cherries that can be used to develop secondary markets such as 
exports and the development of new products. The use of reserve 
cherries in the production-shortened 2002/03 crop year proved to be 
very useful and beneficial to growers and packers.
    In discussing the possibility of marketing percentages for the 
2010-2011 crop year, the Board considered the following factors 
contained in the marketing policy: (1) The estimated total production 
of tart cherries; (2) the estimated size of the crop to be handled; (3) 
the expected general quality of such cherry production; (4) the 
expected carryover as of July 1 of canned and frozen cherries and other 
cherry products; (5) the expected demand conditions for cherries in 
different market segments; (6) supplies of competing commodities; (7) 
an analysis of economic factors having a bearing on the marketing of 
cherries; (8) the estimated tonnage held by handlers in primary or 
secondary inventory reserves; and (9) any estimated release of primary 
or secondary inventory reserve cherries during the crop year.
    The Board's review of the factors resulted in the computation and 
announcement in September 2010 of the free and restricted percentages 
proposed to be established by this rule (58 percent free and 42 percent 
restricted).
    One alternative to this action would be not to have volume 
regulation this season. Board members beleived that no volume 
regulation would be detrimental to the tart cherry industry.
    As mentioned earlier, the Department's ``Guidelines for Fruit, 
Vegetable, and Specialty Crop Marketing Orders'' specify that 110 
percent of recent years' sales should be made available to primary 
markets each season before recommendations for volume regulation are 
approved. The quantity available under this rule is 110 percent of the 
quantity shipped in the prior three years.
    The free and restricted percentages established by this rule 
release the optimum supply and apply uniformly to all regulated 
handlers in the industry, regardless of size. There are no known 
additional costs incurred by small handlers that are not incurred by 
large handlers. The stabilizing effects of the percentages impact all 
handlers positively by helping them maintain and expand markets, 
despite seasonal supply fluctuations. Likewise, price stability 
positively impacts all producers by allowing them to better anticipate 
the revenues their tart cherries will generate.
    The Department has not identified any relevant Federal rules that 
duplicate, overlap, or conflict with this regulation.
    In addition, the Board's meeting was widely publicized throughout 
the tart cherry industry and all interested persons were invited to 
attend the meeting and participate in Board deliberations on all 
issues. Like all Board meetings, the September 10, 2010, meeting was a 
public meeting and all entities, both large and small, were able to 
express views on this issue. Finally, interested persons are invited to 
submit information on the regulatory and informational impacts of this 
action on small businesses.
    While the benefits resulting from this rulemaking are difficult to 
quantify, the stabilizing effects of the volume regulations impact both 
small and large handlers positively by helping them maintain markets 
even though tart cherry supplies fluctuate widely from season to 
season.
    In compliance with Office of Management and Budget (OMB) 
regulations (5 CFR part 1320) which implement the Paperwork Reduction 
Act of 1995 (Pub. L. 104-13), the information collection and 
recordkeeping requirements under the tart cherry marketing order have 
been previously approved by OMB and assigned OMB Number 0581-0177.
    Reporting and recordkeeping burdens are necessary for compliance 
purposes and for developing statistical data for maintenance of the 
program. The forms require information which is readily available from 
handler records and which can be provided without data processing 
equipment or trained statistical staff. As with other, similar 
marketing order programs, reports and forms are periodically studied to 
reduce or eliminate duplicate information collection burdens by 
industry and public sector agencies. This rule does not change those 
requirements.
    AMS is committed to complying with the E-Government Act, to promote 
the use of the Internet and other information technologies to provide 
increased opportunities for citizen access to Government information 
and services and for other purposes.
    A small business guide on complying with fruit, vegetable, and 
specialty crop marketing agreements and orders may be viewed at: http://www.ams.usda.gov/fv/moab.html. Any questions about the compliance 
guide should be sent to Antoinette Carter at the previously mentioned 
address in the FOR FURTHER INFORMATION CONTACT section.
    A 30-day comment period is provided to allow interested persons to 
respond to this proposal. Thirty days is deemed appropriate because 
this rule would need to be in place as soon as possible since handlers 
are already shipping tart cherries from the 2010-2011 crop. All written 
comments timely received will be considered before a final 
determination is made on this matter.

[[Page 77569]]

List of Subjects in 7 CFR Part 930

    Marketing agreements, Reporting and recordkeeping requirements, 
Tart cherries.

    For the reasons set forth in the preamble, 7 CFR part 930 is 
proposed to be amended as follows:

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. Section 930.256 is added to read as follows:

    Note:  This section will not appear in the annual Code of 
Federal Regulations.

Sec.  930.256  Final free and restricted percentages for the 2010-2011 
crop year.

    The final percentages for tart cherries handled by handlers during 
the crop year beginning on July 1, 2010, which shall be free and 
restricted, respectively, are designated as follows: Free percentage, 
58 percent and restricted percentage, 42 percent.

    Dated: December 7, 2010.
Craig Morris,
Acting Administrator, Agricultural Marketing Service.
[FR Doc. 2010-31198 Filed 12-10-10; 8:45 am]
BILLING CODE 3410-02-P


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