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###### Department of Agriculture

###### Agricultural Marketing Service 

          - 7 CFR Part 930 
          - [Docket No. FV00-930-3 PR] 

# AGENCY:

Agricultural Marketing Service, USDA. 

# ACTION:

Proposed rule. 

# SUMMARY:

This rule would decrease the assessment rate for cherries that are utilized in the production of tart cherry products other than juice, juice concentrate, or puree from $0.00225 to $0.0017 per pound. It also would decrease the assessment rate for cherries utilized for juice, juice concentrate, or puree from $0.001125 to $0.00085 per pound. Both assessment rates are established for the Cherry Industry Administrative Board (Board) under Marketing Order No. 930 for the 2000-2001 and subsequent fiscal periods. The Board is responsible for local administration of the marketing order which regulates the handling of tart cherries grown in the production area. Authorization to assess tart cherry handlers enables the Board to incur expenses that are reasonable and necessary to administer the program. The fiscal period begins July 1 and ends June 30. The assessment rate would remain in effect indefinitely unless modified, suspended, or terminated. 

# DATES:

Comments must be received by June 21, 2000. 

# ADDRESSES:

                        Interested persons are invited to submit written comments concerning this rule. Comments must be sent to the Docket Clerk, Fruit and Vegetable Programs, AMS, USDA, room 2525-S, P.O. Box 96456, Washington, DC 20090-6456; Fax: (202) 720-5698, or E-mail: moab.docketclerk@usda.gov. 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.                     

# FOR FURTHER INFORMATION CONTACT:

Patricia A. Petrella or Kenneth G. Johnson, DC Marketing Field Office, Fruit and Vegetable Programs, AMS, USDA, Suite 5D03, Unit 155, 4700 River Road, Riverdale, Maryland 20737, telephone: (301) 734-5243; or George Kelhart, Technical Advisor, Marketing Order Administration Branch, Fruit and Vegetable Programs, AMS, USDA, room 2525-S, P.O. Box 96456, Washington, DC 20090-6456; telephone: (202) 720-2491, Fax: (202) 720-5698. 

Small businesses may request information on complying with this regulation by contacting Jay Guerber, Marketing Order Administration Branch, Fruit and Vegetable Programs, AMS, USDA, P.O. Box 96456, room 2525-S, Washington, DC 20090-6456; telephone (202) 720-2491, Fax: (202) 720-5698, or E-mail: Jay.Guerber@usda.gov. 

# SUPPLEMENTARY INFORMATION:

This rule is issued under Marketing Agreement and Order No. 930 (7 CFR part 930) regulating the handling of tart cherries grown in the States of Michigan, New York, Pennsylvania, Oregon, Utah, Washington, and Wisconsin, hereinafter referred to as the “order.” The marketing agreement and order are 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 rule has been reviewed under Executive Order 12988, Civil Justice Reform. Under the marketing order now in effect, tart cherry handlers are subject to assessments. Funds to administer the order are derived from such assessments. It is intended that the assessment rate as issued herein would be applicable to all assessable tart cherries beginning July 1, 2000, and continue until amended, suspended, or terminated. 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 the Secretary a petition stating that the order, any provision of the order, or any obligation imposed in connection with the order is not in accordance with law and request a modification of the order or to be exempted therefrom. 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 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. 

This rule would decrease the assessment rate established for the Board for the 2000-2001 and subsequent fiscal periods for cherries that are utilized in the production of tart cherry products other than juice, juice concentrate, or puree from $0.00225 to $0.0017 per pound of cherries. The assessment rate for cherries utilized for juice, juice concentrate, or puree would also be decreased from $0.001125 to $0.00085 per pound. 

The tart cherry marketing order provides authority for the Board, with the approval of the Department, to formulate an annual budget of expenses and collect assessments from handlers to administer the program. The members of the Board are producers and handlers of tart cherries. They are familiar with the Board's needs and with the costs for goods and services in their local area and are thus in a position to formulate an appropriate budget and assessment rate. The assessment rate is formulated and discussed in a public meeting. Thus, all directly affected persons have an opportunity to participate and provide input. 

                    For the 1999-2000 fiscal period, the Board recommended, and the Department approved, an assessment rate that would continue in effect from fiscal period to fiscal period unless modified, suspended or terminated by the Secretary upon recommendation and information submitted by the Board or other information available to the Secretary.                           ( print page 32045)    

The Board met on March 2, 2000, and unanimously recommended 2000-2001 expenditures of $455,000 and an assessment rate of $0.0017 per pound for cherries that are utilized in the production of tart cherry products other than juice, juice concentrate, or puree, and an assessment rate of $0.00085 per pound of cherries utilized for juice, juice concentrate, or puree. In comparison, last year's budgeted expenditures were $497,780. The assessment rates of $0.0017 and $0.00085 are lower than the rates currently in effect. The decreased assessment rates were recommended because the Board expects the 2000 crop to be large, wants to reduce handler costs, and wants to keep its monetary reserve within the authorized maximum of approximately one year's operational expenses specified in section 930.42(a) of the order. The decreased assessment rates together with funds from the Board's operating reserve and interest income are expected to generate enough income to meet the Board's reduced operating expenses in 2000-2001. 

The major expenditures recommended by the Board for the 2000-2001 fiscal period include $175,000 for personnel, $120,000 for compliance, and $75,000 for Board meetings. Budgeted expenses for these items in 1999-2000 were $222,780 for personnel, $100,000 for Board meetings, and $100,000 for compliance. 

The order provides that when an assessment rate based on the number of pounds of tart cherries handled is established, it should provide for differences in relative market values for various cherry products. The discussion of this provision in the order's promulgation record indicates that proponents testified that cherries utilized in high value products such as frozen, canned, or dried cherries should be assessed one rate while cherries used to make low value products such as juice concentrate or puree should be assessed at one-half that rate. 

Data from the National Agricultural Statistics Service (NASS) states that for 1998, tart cherry utilization for juice, wine, or brined uses was 28.3 million pounds for all districts covered under the order. The total processed amount for 1998 was 303.8 million pounds. Juice, wine, and brined tart cherries represented less than 10 percent of the total processed crop, and about 8 percent over the last three seasons (1996 through 1998). 

In deriving the recommended assessment rates, the Board estimated assessable tart cherry production for the crop year at 260 million pounds. It further estimated that about 245 million pounds of the assessable poundage would be utilized in the production of high-valued products, like frozen, canned, or dried cherries, and that about 15 million pounds would be utilized in the production of low-valued products, like juice, juice concentrate, or puree. Potential assessment income from the high valued products would be approximately $416,500 (245 million pounds × $0.0017 per pound). The potential income from tart cherries utilized for juice, juice concentrate, or puree would be $12,750 (15 million pounds × $0.00085 per pound). Therefore, total assessment income for 2000-2001 is estimated at $429,250. This amount plus adequate funds in the reserve and interest income would be sufficient to cover budgeted expenses. Funds in the reserve (currently $300,000) would be kept within the approximately one year's operational expenses permitted by the order (7 CFR 930.42(a)). 

The proposed assessment rates would continue in effect indefinitely unless modified, suspended, or terminated by the Secretary upon recommendation and information submitted by the Board or other available information. 

Although the assessment rates would be in effect for an indefinite period, the Board would continue to meet prior to or during each fiscal period to recommend a budget of expenses and consider recommendations for modification of the assessment rate. The dates and times of Board meetings are available from the Board or the Department. Board meetings are open to the public and interested persons may express their views at these meetings. The Department would evaluate Board recommendations and other available information to determine whether modification of the assessment rate is needed. Further rulemaking would be undertaken as necessary. The Board's 2000-2001 budget and those for subsequent fiscal periods would be reviewed and, as appropriate, approved by the Department. 

## The Regulatory Flexibility Act and Effects on Small Businesses 

The Agricultural Marketing Service (AMS) has considered the economic impact of this action on small entities and has prepared this initial regulatory flexibility analysis. The Regulatory Flexibility Act (RFA) would allow AMS to certify that regulations do not have a significant economic impact on a substantial number of small entities. However, as a matter of general policy, AMS' Fruit and Vegetable Programs (Programs) no longer opt for such certification, but rather perform regulatory flexibility analyses for any rulemaking that would generate the interest of a significant number of small entities. Performing such analyses shifts the Programs' efforts from determining whether regulatory flexibility analyses are required to the consideration of regulatory options and economic or regulatory impacts. 

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 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 900 producers of tart cherries in the production area and approximately 40 handlers subject to regulation under the marketing order. Small agricultural producers have been defined by the Small Business Administration (13 CFR 121.201) as those having annual receipts less than $500,000, and small agricultural service firms are defined as those whose annual receipts are less than $5,000,000. The majority of tart cherry producers and handlers may be classified as small entities. 

This rule would decrease the assessment rate established for the Board and collected from handlers for the 2000-2001 and subsequent fiscal periods for cherries utilized in the production of tart cherry products other than juice, juice concentrate, or puree from $0.00225 to $0.0017 per pound, and the assessment rate for cherries utilized for juice, juice concentrate, or puree from $0.001125 to $0.00085 per pound. The Board unanimously recommended 2000-2001 expenditures of $455,000 and the reduced assessment rates. The quantity of assessable tart cherries for the 2000-2001 crop year is estimated at 260 million pounds. Assessment income, based on this crop, along with interest income and reserves would be adequate to cover budgeted expenses. 

The major expenditures recommended by the Board for the 2000-2001 fiscal period include $175,000 for personnel, $120,000 for compliance, and $75,000 for Board meetings. Budgeted expenses for these items in 1999-2000 were $222,780 for personnel, $100,000 for Board meetings, and $100,000 for compliance. 

                    Decreased assessment rates were recommended by the Board because the Board expects the 2000 crop to be large, wants to reduce handler costs, and                           ( print page 32046)                        wants to keep its monetary reserve within the authorized maximum of approximately one year's operational expenses as specified in section 930.42(a) of the order.                 

The Board discussed the alternative of continuing the existing assessment rates, but concluded that the Board should operate as efficiently as possible and the amount collected could cause the operating reserve to exceed what is actually needed. In deriving the recommended assessment rates, the Board estimated assessable tart cherry production for the crop year at 260 million pounds. It further estimated that about 245 million pounds of the assessable poundage would be utilized in the production of high-valued products, like frozen, canned, or dried cherries, and that about 15 million pounds would be utilized in the production of low-valued products, like juice, juice concentrate, or puree. Potential assessment income from the high valued products would be approximately $416,500 (245 million pounds × $0.0017 per pound). The potential income from tart cherries utilized for juice, juice concentrate, or puree would be $12,750 (15 million pounds × $0.00085 per pound). Therefore, total assessment income for 2000-2001 is estimated at $429,250. This amount plus adequate supplies in the reserve would be sufficient to cover budgeted expenses. Funds in the reserve (currently $300,000) would be kept within the approximately one year's operational expenses permitted by the order (7 CFR 930.42(a)). 

This action would decrease the assessment obligation imposed on handlers. Assessments are applied uniformly on all handlers, and some of the costs may be passed on to producers. However, decreasing the assessment rate reduces the burden on handlers, and may reduce the burden on producers. 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 March 2, 2000, 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. 

This action would impose no additional reporting or recordkeeping requirements on either small or large tart cherry handlers. 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. 

The Department has not identified any relevant Federal rules that duplicate, overlap, or conflict with this rule. 

                    A small business guide on complying with fruit, vegetable, and specialty crop marketing agreements and orders may be viewed at the following web site: http://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.                 

A 30-day comment period is provided to allow interested persons to respond to this proposed rule. Thirty days is deemed appropriate because: the 2000-2001 fiscal period begins on July 1, 2000, and the rate of assessment applies to all assessable tart cherries handled during the fiscal period. 

# 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 930.200 is revised to read as follows: 

§ 930.200 

On and after July 1, 2000, the assessment rate imposed on handlers shall be $0.0017 per pound of cherries handled for tart cherries grown in the production area and utilized in the production of tart cherry products other than juice, juice concentrate, or puree. The assessment rate for juice, juice concentrate, and puree products shall be $0.00085 per pound. 

Dated: May 16, 2000. 

Robert C. Keeney, 

Deputy Administrator, Fruit and Vegetable Programs. 

[FR Doc. 00-12800 Filed 5-19-00; 8:45 am] 

BILLING CODE 3410-02-P