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.

Proposed Rules Federal Register

32044

Vol. 65, No. 99

Monday, May 22, 2000

DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 930

[Docket No. FV00–930–3 PR]

Tart Cherries Grown in the States of

Michigan, New York, Pennsylvania,

Oregon, Utah, Washington, and

Wisconsin; Decreased Assessment

Rates

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.

Federal Register / Vol. 65, No. 99 / Monday, May 22, 2000 / Proposed Rules 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

32046 Federal Register / Vol. 65, No. 99 / Monday, May 22, 2000 / Proposed Rules

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 Handler assessment rate.

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

DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Part 71

[Airspace Docket No. 00–ACE–11]

Amendment of Class E Airspace;

Kearney, NE

AGENCY: Federal Aviation

Administration (FAA), DOT.

ACTION: Notice of proposed rulemaking

SUMMARY: This notice proposes to

amend the Class E surface area at

Kearney Municipal Airport, Kearney,

NE. The FAA has received a request to

amend the hours of Class E surface area

from part time to full time. An increase

in Part 121 and other Instrument Flight

Rule (IFR) operations have made this

request necessary. The intended effect

of this rule is to amend the Class E

surface area from part time to full time.

DATES: Comments must be received on

or before July 10, 2000.

ADDRESSES: Send comments on the

proposal in triplicate to: Manager,

Airspace Branch, Air Traffic Division,

ACE–520, DOT Regional Headquarters

Building, Federal Aviation

Administration, Docket Number 00–

ACE–11, 901 Locust, Kansas City, MO

64106.

The official docket may be examined

in the Office of the Regional Counsel for

the Central Region at the same address

between 9:00 a.m. and 3:00 p.m.,

Monday through Friday, except Federal

holidays.

An informal docket may also be

examined during normal business hours

in the office of the Manager, Airspace

Branch, Air Traffic Division, at the

address list above.

FOR FURTHER INFORMATION CONTACT:

Brenda Mumper, Air Traffic Division,

Airspace Branch, ACE–520A, DOT

Regional Headquarters Building, Federal

Aviation Administration, 901 Locust,

Kansas City, MO 64106; telephone:

(816) 329–2524.

SUPPLEMENTARY INFORMATION: 

Comments Invited

Interested parties invited to

participate in this proposed rulemaking

by submitting such written, data, views,

or arguments as they may desire.

Comments that provide the factual basis

supporting the views and suggestions

presented are particularly helpful in

developing reasoned regulatory

decisions on the proposal. Comments

are specifically invited on the overall

regulatory, economic, environmental,

and energy-related aspects of the