13674 Federal Register / Vol. 72, No. 56 / Friday, March 23, 2007 / Rules and Regulations 

sector agencies. In addition, as noted in 

the initial regulatory flexibility analysis, 

USDA has not identified any relevant 

Federal rules that duplicate, overlap, or 

conflict with this rule. 

Further, the committees’ meetings 

were widely publicized throughout the 

nectarine and peach industries and all 

interested persons were invited to 

attend the meetings and participate in 

committee deliberations. Like all 

committee meetings, the August 31, 

2006, meetings were public meetings 

and all entities, both large and small, 

were able to express their views on 

these issues. 

An interim final rule concerning this 

action was published in the Federal 

Register on December 28, 2006. The rule 

was posted on CTFA’s website. In 

addition, the rule was made available 

through the Internet by USDA and the 

Office of the Federal Register. That rule 

provided for a 60-day comment period, 

which ended on February 26, 2007. One 

comment supporting the actions was 

received. The commenter stated that the 

actions accurately reflected the 

industries’ desire to bring the orders’

rules and regulations into conformance 

with the amended order provisions. 

The 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 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. 

After consideration of all relevant 

matters presented, the information and 

recommendations submitted by the 

committees, and other information, it is 

found that finalizing the interim final 

rule, without change, as published in 

the Federal Register (71 FR 78038, 

December 28, 2006), will tend to 

effectuate the declared policy of the Act. 

List of Subjects 

7 CFR Part 916 

Marketing agreements, Nectarines, 

Reporting and recordkeeping 

requirements. 

7 CFR Part 917 

Marketing agreements, Peaches, Pears, 

Reporting and recordkeeping 

requirements. 

PART 916—NECTARINES GROWN IN 

CALIFORNIA 

PART 917—FRESH PEARS AND 

PEACHES GROWN IN CALIFORNIA 

■ Accordingly, the interim final rule 

amending 7 CFR parts 916 and 917, 

which was published at 71 FR 78038 on 

December 28, 2006, is adopted as a final 

rule without change. 

Dated: March 19, 2007. 

Lloyd C. Day, 

Administrator, Agricultural Marketing 

Service. 

[FR Doc. E7–5311 Filed 3–22–07; 8:45 am] 

BILLING CODE 3410–02–P 

DEPARTMENT OF AGRICULTURE 

Agricultural Marketing Service 

7 CFR Part 930 

[Docket No. AMS–FV–06–0187; FV07–930–

1 FR] 

Tart Cherries Grown in the States of 

Michigan, et al.; Final Free and 

Restricted Percentages for the 2006–

2007 Crop Year for Tart Cherries 

AGENCY: Agricultural Marketing Service, 

USDA. 

ACTION: Final rule. 

SUMMARY: This rule establishes final free 

and restricted percentages for the 2006–

2007 crop year. The percentages are 55 

percent free and 45 percent restricted 

and will establish the proportion of 

cherries from the 2006 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: Effective Date: March 26, 2007. 

This final rule applies to all 2006–2007 

crop year restricted cherries until they 

are properly disposed of in accordance 

with marketing order requirements. 

FOR FURTHER INFORMATION CONTACT: 

Patricia A. Petrella or Kenneth G. 

Johnson, Marketing Order 

Administration Branch, Fruit and 

Vegetable Programs, AMS, USDA, Unit 

155, 4700 River Road, Riverdale, MD 

20737; Telephone: (301) 734–5243, or 

Fax: (301) 734–5275, or E-mail at 

Patricia.Petrella@usda.gov or 

Kenneth.Johnson@usda.gov. 

Small businesses may request 

information on complying with this 

regulation, or obtain a guide on 

complying with fruit, vegetable, and 

specialty crop marketing agreements 

and orders 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 final 

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 final rule 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 rule 

establishes final free and restricted 

percentages for tart cherries for the 

2006–2007 crop year, beginning July 1, 

2006, through June 30, 2007. 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 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. 


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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 § 930.59 of the order 

and § 930.159 of the regulations, or used 

for exempt purposes (to obtain diversion 

credit) under § 930.62 of the order and 

§ 930.162 of the regulations. The 

regulated Districts for this season are: 

District one—Northern Michigan; 

District two—Central Michigan; District 

three—Southwest Michigan; District 

four—New York; District seven—Utah; 

and District eight—Washington. 

Districts five, six and nine (Oregon, 

Pennsylvania, and Wisconsin, 

respectively) will not be regulated for 

the 2006–2007 season. 

The order prescribes under § 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, Pennsylvania, 

and Wisconsin, handlers in those 

districts will not be subject to volume 

regulation during the 2006–2007 crop 

year. 

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, because 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 shall be 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 before 

new crop supplies are available for 

marketing. 

The order also provides that on or 

about July 1 of each crop year, the Board 

is required 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. If the resulting number is 

positive, this represents the estimated 

over-production, which would be the 

restricted percentage tonnage. The 

restricted percentage tonnage is then 

divided by the sum of the USDA crop 

forecast or by an average of such other 

crop estimates for the regulated districts 

to obtain percentages for the regulated 

districts. The Board is required to 

establish a preliminary restricted 

percentage equal to the quotient, 

rounded to the nearest whole number, 

with the complement being the 

preliminary free tonnage percentage. 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 § 930.50. 

The Board met on June 22, 2006, and 

computed, for the 2006–2007 crop year, 

an optimum supply of 182 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, or such other amount, 

as the Board with the approval of the 

Secretary, may establish. 

The Board calculated preliminary free 

and restricted percentages as follows: 

The USDA estimate of the crop for the 

entire production area was 256 million 

pounds; a 25 million pound carryin 

(based on Board estimates) was 

subtracted from the optimum supply of 

182 million pounds which resulted in 

2006–2007 tonnage requirements 

(adjusted optimum supply) of 157 

million pounds. The carryin figure 

reflects the amount of cherries that 

handlers actually had in inventory at 

the beginning of the 2006–2007 crop 

year. Subtracting the adjusted optimum 

supply of 157 million pounds from the 

USDA crop estimate (256 million 

pounds) results in a surplus of 99 

million pounds of tart cherries. The 

surplus was divided by the production 

in the regulated districts (249 million 

pounds) and resulted in a restricted 

percentage of 40 percent for the 2006–

2007 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 2006–2007 year: 

Millions of 

pounds 

Optimum Supply Formula: 

(1) Average sales of the prior three years ................................................................................................................................... 182 

(2) Plus desirable carryout ........................................................................................................................................................... 0 

(3) Optimum supply calculated by the Board at the June meeting ............................................................................................. 182 

Preliminary Percentages: 

(4) USDA crop estimate ............................................................................................................................................................... 256 

(5) Carryin held by handlers as of July 1, 2006 .......................................................................................................................... 25 

(6) Adjusted optimum supply for current crop year (Item 3 minus Item 5) ................................................................................. 157 

(7) Surplus (Item 4 minus Item 6) ................................................................................................................................................ 99 

(8) USDA crop estimate for regulated districts ............................................................................................................................ 249 


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Free Restricted 

(9) Final percentages (item 7 divided by item 8 x 100 equals restricted percentage; 100 minus restricted 

percentage equals free percentage) ............................................................................................................. 60 40 

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. 

USDA 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 designated by 

USDA and 100 percent is the final 

restricted percentage. The Board met on 

September 9, 2006, to recommend final 

free and restricted percentages. 

The actual production reported by the 

Board was 263 million pounds, which is 

a 7 million pound increase from the 

USDA crop estimate of 256 million 

pounds. 

A 31 million pound carryin (based on 

handler reports) was subtracted from the 

Board’s optimum supply of 182 million 

pounds, yielding an adjusted optimum 

supply for the current crop year of 151 

million pounds. The adjusted optimum 

supply of 151 million pounds was 

subtracted from the actual production of 

263 million pounds, which resulted in 

a 112 million pound surplus. The total 

surplus of 112 million pounds is 

divided by the 251 million-pound 

volume of tart cherries produced in the 

regulated districts. This results in a 45 

percent restricted percentage and a 

corresponding 55 percent free 

percentage for the regulated districts. 

The final percentages are based on the 

Board’s reported production figures and 

the following supply and demand 

information available in September for 

the 2006–2007 crop year: 

Millions of 

pounds 

Optimum Supply Formula: 

(1) Average sales of the prior three years ................................................................................................................................... 182 

(2) Plus desirable carryout ........................................................................................................................................................... 0 

(3) Optimum supply calculated by the Board ............................................................................................................................... 182 

Final Percentages: 

(4) Board reported production ...................................................................................................................................................... 263 

(5) Plus carryin held by handlers as of July 1, 2006 ................................................................................................................... 31 

(6) Adjusted optimum supply (Item 3 minus Item 5) available for current crop year .................................................................. 151 

(7) Surplus (Item 4 minus Item 6) ................................................................................................................................................ 112 

(8) Production in regulated districts ............................................................................................................................................. 251 

Percentages 

Free Restricted 

(9) Preliminary percentages (item 7 divided by item 8 x 100 equals restricted percentage; 100 minus restricted percentage equals free percentage) ................................................................................................ 55 45 

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 will be met by this action which 

releases 100 percent of the optimum 

supply and the additional release of tart 

cherries provided under § 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 18 million 

pounds would be made available to 

handlers this season in accordance with 

USDA Guidelines. This release will 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. 

Final Regulatory Flexibility Analysis 

and Effects on Small Businesses 

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 

final 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 900 

producers of tart cherries in the 

regulated area. Small agricultural 

service firms, which include handlers, 

have been defined by the Small 

Business Administration (SBA) (13 CFR 

121.201) as those having annual receipts 

of less than $6,500,000, 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. 

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 

2001/2002 through 2005/2006, 


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approximately 93.8 percent of the U.S. 

tart cherry crop, or 214.3 million 

pounds, was processed annually. Of the 

214.3 million pounds of tart cherries 

processed, 62 percent was frozen, 26 

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 37,050 acres in 2005/2006. 

This represents a 26 percent decrease in 

total bearing acres. Michigan leads the 

nation in tart cherry acreage with 73 

percent of the total and produces about 

70 percent of the U.S. tart cherry crop 

each year. 

The 2006/2007 crop is moderate in 

size at 263 million pounds. 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, because 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 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 shipments 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 three 

districts in Michigan, along with the 

districts in Utah, New York, and 

Washington are the restricted areas for 

this crop year and their combined total 

production is 251 million pounds. A 

free percentage of 55 percent means 138 

million pounds are available to be 

shipped to primary markets from these 

four states. Production levels of 3.4 

million pounds for Oregon, 4.5 million 

pounds for Pennsylvania, and 4.3 

million pounds for Wisconsin (the 

unregulated areas in 2006–2007), result 

in an additional 12.2 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 18 million pounds being 

available for the primary market. The 

138 million pounds from Michigan, 

Utah, Washington, and New York; the 

12.2 million pounds from the other 

producing states; the 18 million pound 

release; and the 31 million pound 

carryin inventory gives a total of 199.2 

million pounds being available for the 

primary markets. 

The econometric model is used to 

estimate the difference between grower 

prices with and without restrictions. 

With volume controls, grower prices are 

estimated to be approximately $0.025 

per pound higher than without volume 

controls. 

The use of volume controls is 

estimated to have a positive impact on 

grower’s total revenues. With 

restrictions, revenues are estimated to 


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be $6.0 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 45 percent 

volume control would not unduly 

burden producers, particularly smaller 

growers. The 45 percent restriction 

would be applied to the growers in 

Michigan, New York, Utah, and 

Washington. The growers in the other 

three States 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 $0.33 

in 2004 and $0.24 per pound in 2005. 

At current production levels, yield is 

estimated at approximately 7,112 

pounds per acre. At this level of yield, 

the cost of production is estimated to be 

$0.31 per pound (Cost of Production 

Tart Cherries in Northwestern Michigan, 

Nugent, Kole, Thornton, Bardenhagen). 

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 should 

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 carry-in 

inventories, a decrease in grower prices 

of $0.0039 per pound occurs. The use of 

volume controls allows the industry to 

supply the primary markets while 

avoiding the disastrous results of oversupplying 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 2002–2003 crop year proved 

to be very useful and beneficial to 

growers and packers. 

In discussing the possibility of 

marketing percentages for the 2006–

2007 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 2006 of the 

free and restricted percentages 

established by this rule (55 percent free 

and 45 percent restricted). 

One alternative to this action would 

be not to have volume regulation this 

season. Board members stated that no 

volume regulation would be detrimental 

to the tart cherry industry due to the 

size of the 2006–2007 crop. Returns to 

growers would not cover their costs of 

production for this season which might 

cause some to go out of business. 

As mentioned earlier, 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. 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. 

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. 

USDA 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 9, 2006, 

meeting was a public meeting and all 

entities, both large and small, were able 

to express views on this issue. 

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 

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 proposed rule concerning this 

action was published in the Federal 

Register on January 16, 2007 (72 FR 

1681). Copies of the rule were mailed or 

sent via facsimile to all Board members 

and handlers. Finally, the rule was 

made available through the Internet by 

the Office of the Federal Register and 

USDA. A 30-day comment period 

ending on February 15, 2007, was 

provided to allow interested persons to 

respond to the proposal. No comments 

were received. 

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 Jay 

Guerber at the previously mentioned 

address in the FOR FURTHER INFORMATION

CONTACT section. 

After consideration of all relevant 

matter presented, including the 

information and recommendation 

submitted by the Board and other 

available information, it is hereby found 

that this rule, as hereinafter set forth, 

will tend to effectuate the declared 

policy of the Act. 

It is found that good cause exists for 

not postponing the effective date of this 

rule until 30 days after publication in 

the Federal Register (5 U.S.C. 553) 


sroberts on PROD1PC70 with RULES
Federal Register / Vol. 72, No. 56 / Friday, March 23, 2007 / Rules and Regulations 13679 

because handlers are already shipping 

tart cherries from the 2006–2007 crop. 

Further handlers are aware of this rule, 

which was recommended at a public 

meeting. Also, a 30-day comment period 

was provided for in the proposed rule 

and no comments were received. 

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 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 930.255 is added to read as 

follows: 

Note: This section will not appear in the 

annual Code of Federal Regulations. 

§ 930.255 Final free and restricted 

percentages for the 2006–2007 crop year. 

The final percentages for tart cherries 

handled by handlers during the crop 

year beginning on July 1, 2006, which 

shall be free and restricted, respectively, 

are designated as follows: Free 

percentage, 55 percent and restricted 

percentage, 45 percent. 

Dated: March 19, 2007. 

Lloyd C. Day, 

Administrator, Agricultural Marketing 

Service. 

[FR Doc. E7–5313 Filed 3–22–07; 8:45 am] 

BILLING CODE 3410–02–P 

DEPARTMENT OF TRANSPORTATION 

Federal Aviation Administration 

14 CFR Part 39 

[Docket No. FAA–2006–26721; Directorate 

Identifier 2006–SW–28–AD; Amendment 39–

14961; AD 2006–26–51] 

RIN 2120–AA64 

Airworthiness Directives; Eurocopter 

Deutschland GmbH Model MBB–BK 

117 C–2 Helicopters 

AGENCY: Federal Aviation 

Administration, DOT. 

ACTION: Final rule; request for 

comments. 

SUMMARY: This document publishes in 

the Federal Register an amendment 

adopting Airworthiness Directive (AD) 

2006–26–51, which was sent previously 

to all known U.S. owners and operators 

of Eurocopter Deutschland GmbH (ECD) 

Model MBB–BK 117 C–2 helicopters by 

individual letters. This AD requires, 

before further flight, marking the 

position of the tail rotor control lever 

dynamic weights (weights), removing 

the split pins and the weights, and 

visually inspecting and replacing, if 

necessary, the tail rotor control lever 

before further flight. This AD also 

requires, within 10 hours time-inservice (TIS), and thereafter at intervals 

not to exceed 25 hours TIS, repeating 

the visual inspection of the tail rotor 

control lever and replacing any 

unairworthy tail rotor control lever with 

an airworthy tail rotor control lever 

before further flight. Also required is 

reassembling the tail rotor control lever 

by following the appropriate 

maintenance instruction. This 

amendment is prompted by an in-flight 

incident in which the threaded portion 

of the tail rotor control lever containing 

a dynamic weight broke off leading to 

severe vibrations. The actions specified 

by this AD are intended to prevent 

separation of the weights in flight, 

severe vibration, and subsequent loss of 

control of the helicopter. 

DATES: Effective April 9, 2007, to all 

persons except those persons to whom 

it was made immediately effective by 

Emergency AD 2006–26–51, issued on 

December 22, 2006, which contained 

the requirements of this amendment. 

The incorporation by reference of 

certain publications listed in the 

regulations is approved by the Director 

of the Federal Register as of April 9, 

2007. 

Comments for inclusion in the Rules 

Docket must be received on or before 

May 22, 2007. 

ADDRESSES: Use one of the following 

addresses to submit comments on this 

AD: 

• DOT Docket Web site: Go to 

http://dms.dot.gov and follow the 

instructions for sending your comments 

electronically; 

• Government-wide rulemaking Web 

site: Go to http://www.regulations.gov 

and follow the instructions for sending 

your comments electronically; 

• Mail: Docket Management Facility; 

U.S. Department of Transportation, 400 

Seventh Street, SW., Nassif Building, 

Room PL–401, Washington, DC 20590; 

• Fax: (202) 493–2251; or 

• Hand Delivery: Room PL–401 on 

the plaza level of the Nassif Building, 

400 Seventh Street, SW., Washington, 

DC, between 9 a.m. and 5 p.m., Monday 

through Friday, except Federal holidays. 

You may get the service information 

identified in this AD from American 

Eurocopter Corporation, 2701 Forum 

Drive, Grand Prairie, Texas 75053–4005, 

telephone (972) 641–3460, fax (972) 

641–3527. 

Examining the Docket 

You may examine the docket that 

contains the AD, any comments, and 

other information on the Internet at 

http://dms.dot.gov, or in person at the 

Docket Management System (DMS) 

Docket Offices between 9 a.m. and 5 

p.m., Monday through Friday, except 

Federal holidays. The Docket Office 

(telephone (800) 647–5227) is located on 

the plaza level of the Department of 

Transportation Nassif Building at the 

street address stated in the ADDRESSES

section. Comments will be available in 

the AD docket shortly after the DMS 

receives them. 

FOR FURTHER INFORMATION CONTACT: 

Charles Harrison, Aviation Safety 

Engineer, FAA, Rotorcraft Directorate, 

Safety Management Group, Fort Worth, 

Texas 76193–0110, telephone (817) 

222–5128, fax (817) 222–5961. 

SUPPLEMENTARY INFORMATION: On 

December 22, 2006, the FAA issued 

Emergency AD 2006–26–51 for the 

specified model helicopters, which 

requires, before further flight, marking 

the position of the tail rotor control 

lever dynamic weights (weights), 

removing the split pins and the weights, 

and by referring to Figure 1 of the 

manufacturer’s service bulletin, visually 

inspecting the area around the split pin 

bore for score marks, notches, scratches, 

or other damage that exceeds the 

maintenance manual limitations or a 

crack and replacing any unairworthy 

tail rotor control lever before further 

flight. The AD also requires, within 10 

hours TIS, and thereafter at intervals not 

to exceed 25 hours TIS, repeating the 

visual inspection of the tail rotor control 

lever and replacing any unairworthy tail 

rotor control lever with an airworthy tail 

rotor control lever before further flight. 

Also required is reassembling the tail 

rotor control lever by following the 

appropriate maintenance instruction. 

That action was prompted by an inflight incident in which a dynamic 

weight broke off the tail rotor control 

lever subsequently leading to 

considerable vibrations. A visual 

inspection revealed that the threaded 

portion of the control lever containing 

the dynamic weight had broken off. This 

condition, if not corrected, could result 

in separation of the weights in flight, 

severe vibration, and subsequent loss of 

control of the helicopter. 


sroberts on PROD1PC70 with RULES