This section of the FEDERAL REGISTER

contains regulatory documents having general

applicability and legal effect, most of which

are keyed to and codified in the Code of

Federal Regulations, which is published under

50 titles pursuant to 44 U.S.C. 1510.

The Code of Federal Regulations is sold by

the Superintendent of Documents. Prices of

new books are listed in the first FEDERAL

REGISTER issue of each week.

Rules and Regulations Federal Register

44881

Vol. 62, No. 164

Monday, August 25, 1997

DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 56

Grading of Shell Eggs and U.S.

Standards, Grades, and Weight

Classes for Shell Eggs

CFR Correction

In Title 7 of the Code of Federal

Regulations, parts 53 to 209, revised as

of January 1, 1997, § 56.36 is corrected

by revising the last sentence of

paragraphs (a)(2) and (b)(2) to read as

follows:

§ 56.36 Information required on and form of

grademark.

* * * * *

(a) * * *

(2) * * * The size or weight class of

the product may be omitted from the

grademark, provided, it appears

prominently on the main panel of the

carton.

* * * * *

(b) * * *

(2) * * * The grademark shall be

printed on the carton.

BILLING CODE 1505-01-D

DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 930

[Docket No. FV97–930–5 IFR]

Tart Cherries Grown in the States of

Michigan, New York, Pennsylvania,

Oregon, Utah, Washington, and

Wisconsin; Issuance of Grower

Diversion Certificates

AGENCY: Agricultural Marketing Service,

USDA.

ACTION: Interim final rule with request

for comments.

SUMMARY: This rule establishes terms

and conditions for the issuance of

grower diversion certificates by the

Cherry Industry Administrative Board

(Board) under the newly promulgated

marketing order for tart cherries. In the

event volume regulations are issued by

the Secretary for the 1997 crop year,

handlers could use such certificates in

order to satisfy their restricted

percentage amounts. Tart cherries

handlers in Oregon, Pennsylvania,

Washington and Wisconsin (Districts 5,

6, 8, and 9) would not be subject to

volume regulation, if implemented,

because these districts do not currently

produce adequate tonnage to trigger

such regulation under the order.

DATES: Effective August 26, 1997;

comments received by September 24,

1997, will be considered prior to

issuance of a final rule.

ADDRESSES: Interested persons are

invited to submit written comments

concerning this rule. Comments must be

sent in triplicate to the Docket Clerk,

Fruit and Vegetable Division, AMS,

USDA, room 2525–S, P.O. Box 96456,

Washington, DC 20090–6456; Fax: (202)

720–5698. All comments should

reference the docket number and the

date and page number of this issue of

the Federal Register and will be made

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, Marketing Order

Administration Branch, F&V, AMS,

USDA, room 2530–S, P.O. Box 96456,

Washington, DC 20090–6456, telephone:

(202) 720–5053, Fax: (202) 720–5698.

Small businesses may request

information on compliance with this

regulation by contacting: Jay Guerber,

Marketing Order Administration

Branch, Fruit and Vegetable Division,

AMS, USDA, P.O. Box 96456, room

2525–S, Washington, DC 20090–6456;

telephone (202) 720–2491; Fax: (202)

720–5698.

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.’’ This

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

provisions now in effect, preliminary

free and restricted percentages have

been established for tart cherries

acquired by handlers during the 1997

crop year, July 1, 1997, through June 30,

1998. Final free and restricted

percentages may be established at a later

date. This rule authorizes the issuance

of diversion certificates to growers for

cherries diverted during the 1997 crop

year. 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. A

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 provides for the issuance of

diversion certificates to growers in

volume regulated districts under the tart

cherry marketing order for the 1997 crop

year. The order became effective

September 25, 1996, and the initial

Cherry Industry Administrative Board

was appointed in December 1996. The

Board held several meetings in January,

February, March and June 1997, to

consider its start-up costs and establish

rules and regulations to implement the

order authorities. At its meetings, the

Board unanimously recommended that
44882 Federal Register / Vol. 62, No. 164 / Monday, August 25, 1997 / Rules and Regulations

the regulations be forwarded to the

Department for appropriate action.

In discussions concerning volume

regulations for the 1997 crop year, the

Board considered guidelines and

procedures for grower diversion.

Growers in the States which would be

subject to volume regulation were sent

information about diversion and were

notified that participation in a diversion

program would be completely

voluntary. A majority of the growers

(approximately 700 out of 1,220) in the

districts which would be subject to

volume regulation if it were imposed

have been diverting their cherries this

season based on preliminary free and

restricted percentage figures announced

by the Board. The Board, in its

meetings, continued its review of

applicable sections of the order, such as

those pertaining to optimum supply,

and making recommendations to specify

guidelines for grower diversion.

The order in § 930.50 provides the

method of establishing an optimum

supply level of cherries for the crop

year. The optimum supply consists of a

free percentage amount which a handler

could sell to any market and a restricted

percentage amount, when warranted,

which would have to be withheld from

the market. Preliminary percentages

were established by the Board on July 2,

pursuant to § 930.50(b) of the order,

using Department estimates of the

upcoming crop. Preliminary free and

restricted percentages of 66 and 34

percent, respectively, were announced

to the industry in accordance with

§ 930.50(h) of the order. No later than

September 15, after harvest and

processing of the crop have been

completed, the Board is required to

compute, and recommend to the

Secretary, final percentages based on

actual crop amounts. A handler can

satisfy restricted percentage obligations

established by regulation by holding

restricted percentage cherries in an

inventory reserve that the handler

maintains, by redeeming grower

diversion certificates, or by diverting

cherries.

Section 930.58 of the tart cherry

marketing order provides authority for

voluntary grower diversion. Growers

can divert all or a portion of their

cherries which otherwise, upon delivery

to a handler, would become restricted

percentage cherries. Growers would

receive diversion certificates from the

Board stating the weight of cherries

diverted. The grower could then present

this certificate to a handler in lieu of

actual cherries. The handler could apply

the weight of cherries represented by

the certificate against the handler’s

restricted percentage amount.

The Board recommended rules and

regulations specifying the guidelines for

the grower diversion program. First, the

Board recommended that any grower

desiring to divert in the orchard should

first apply to the Board. The application

should include the name, address,

phone number and a statement signed

by the grower agreeing to abide by all

the rules and regulations for diversion.

In addition, the grower would provide

maps of such grower’s orchard.

The Board recommended two types of

in-orchard diversion. These are random

row diversion, in which orchard rows

are randomly chosen by the Board,

using a computer program, to be left

unharvested, and whole block

diversion, in which a whole definable

orchard block is left unharvested. Trees

six years old or younger would not

qualify for diversion, since these trees

are not yet in full production.

The Board recommended that all

grower diversion certificates should be

redeemed with handlers by November 1.

After November 1, grower diversion

certificates would not be valid. It was

intended that diversion certificates be

used within the same crop year that

they were issued, as if a crop had been

produced. The November 1 date would

allow handlers adequate time to meet

their restricted percentage amounts after

final percentages have been established.

The Board also recommended

guidelines concerning random row and

whole block diversion and compliance

procedures for growers to follow under

the grower diversion program.

This crop year a majority of growers

are voluntarily diverting cherries based

on preliminary free and restricted

percentages which have been

established by the Board and on

recommendations and guidance

concerning diversion which the Board

has developed, and will be requesting

diversion certificates from the Board.

This rule provides for the issuance of

such certificates subject to certain

specified terms and conditions. In order

to receive a certificate, a grower must

show, to the satisfaction of the Board,

that cherries were in fact diverted. This

may be accomplished in a number of

ways. The Board needs information

about the grower’s production. In

addition, the grower must agree to allow

the Board to confirm reported diversion

figures by allowing a Board compliance

officer to visit the grower’s orchard to

determine whether rows or trees

selected for diversion have not been

harvested.

Once the Board has obtained the

necessary information concerning

diversion by a grower, it will issue a

diversion certificate. The diversion

certificate would be issued for an

amount equal to the estimated volume

of cherries diverted by the grower.

For random row diversion, such

estimated volume would be calculated

by applying the percentage of the

grower’s production diverted to the

actual average volume per acre of

cherries produced and harvested. For

example, Grower A farms 1,000 acres

and elects to divert 20 percent of the

harvestable acreage (200 acres). The

grower harvests the remaining 800 acres

and obtains 6,400,000 pounds of

cherries, which represents a yield per

acre of 8,000 pounds. Such grower

would receive a diversion certificate for

1,600,000 pounds of cherries (8,000 lbs

multiplied by the 20 percent of the total

acreage diverted; in this instance, 200

acres).

For whole block diversion, the weight

of a harvested sample of 5 percent of

each block, provided by the grower,

would be used to calculate the total

volume of diverted cherries to be

credited on the diversion certificate. For

example, Grower B farms 1,000 acres

and elects to whole block divert a 200

acre block. If the 5 percent of the

harvested trees in the block diverted

yield 80,000 pounds of cherries, the

grower would receive a diversion

certificate for 1,600,000 pounds (80,000

pounds divided by 5 percent (.05) yields

1,600,000 pounds). The rest of the block

would remain unharvested.

After receiving a certificate from the

Board, the grower could present the

certificate to a handler to be redeemed.

Based upon the recommendations of the

Board, guidelines and procedures for

grower diversion for 1998 and

subsequent seasons will be established

later through another rulemaking action.

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 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 order and

approximately 1,220 producers or

growers of tart cherries in the regulated
Federal Register / Vol. 62, No. 164 / Monday, August 25, 1997 / Rules and Regulations 44883

area. Small agricultural service firms,

which include handlers, have been

defined by the Small Business

Administration (13 CFR 121.601) as

those having annual receipts of less than

$5,000,000, and small agricultural

producers are defined as those having

annual receipts of less than $500,000.

The majority of handlers and producers

of tart cherries may be classified as

small entities.

Section 930.58(b) authorizes the

Board to issue diversion certificates to

growers in volume regulated districts

under the tart cherry marketing order if

cherries are diverted according to terms

and conditions specified in the order, or

according to such other terms and

conditions that the Board, with the

approval of the Secretary, may establish.

The tart cherry marketing order was

recently promulgated and the Board met

several times in 1997 to recommend

rules and regulations to implement the

order authorities. The Board is required

under the order to review its marketing

policy on or before July 1 and then make

recommendations to the Secretary for

volume regulation, if such regulation is

deemed necessary.

The impact of this rule would be

beneficial to growers. Grower diversion

is one of the methods under the order

that a handler can utilize to meet any

such handler’s restricted percentage. For

example, growers may voluntarily

choose to divert because they have an

abundance of low value, poor quality

cherries or because they are unable to

find a processor willing to process some

or all of their cherries. Before choosing

to divert, the grower would most likely

evaluate the harvesting and other

cultural costs that could be saved by

diverting and locate a handler that

would be willing to redeem such

grower’s diversion certificate.

The Board discussed alternatives to

its recommendation to issue grower

diversion certificates for the 1997 crop

year. The Board considered not issuing

grower diversion certificates for the

1997 crop year but believed this action

was needed.

The Board also discussed limiting the

blocks to be diverted to no less than 5

acre blocks, but felt that this could have

an adverse impact on small growers that

produce on less than 5 acre blocks.

Therefore, the Board recommended not

to restrict the size of orchard blocks

which could be diverted.

This rule will not impose any

reporting or recordkeeping requirements

on either small or large tart cherry

growers or handlers in addition to those

already considered or approved during

the order promulgation proceeding. The

only written information requested from

a grower for 1997 is an orchard map and

the grower’s final production volume.

Since growers maintain this information

as part of their normal farming

operations, it takes approximately 10

minutes to prepare a map and less than

a minute to total the final production

volume. As with all Federal marketing

order programs, reports and forms are

periodically reviewed to reduce

information requirements and

duplication by industry and public

sectors. In addition, the Department has

not identified any relevant Federal rules

that duplicate, overlap or conflict with

this rule.

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 have been

previously approved by OMB and

assigned OMB Number 0581–0177.

The Board’s meetings were widely

publicized throughout the tart cherry

industry and all interested persons were

invited to attend the meetings and

participate in Board deliberations. All

Board meetings were open to the public

and all entities, both large and small,

were able to express their views on

these issues. The Board itself is

composed of 18 members, of which 17

members are growers and handlers and

one represents the public. Also, the

Board has a number of appointed

committees to review certain issues and

make recommendations to the Board.

Finally, interested persons are invited to

submit information on the regulatory

and informational impacts of this action

on small businesses.

After consideration of all relevant

material presented, including the

Board’s recommendation, and other

information, it is found that this interim

final rule, as hereinafter set forth, will

tend to effectuate the declared policy of

the Act.

This interim final invites comments

on grower diversion. Any comments

received will be considered prior to

finalization of this rule.

Pursuant to 5 U.S.C. 553, it is also

found and determined upon good cause

that it is impracticable, unnecessary,

and contrary to the public interest to

give preliminary notice prior to putting

this rule into effect and that good cause

exists for not postponing the effective

date of this rule until 30 days after

publication in the Federal Register

because: (1) The marketing order has

been recently promulgated and the rule

needs to be implemented as soon as

possible since, based on announced

preliminary percentages, volume

regulation may be recommended for the

1997 crop year; (2) the 1997 crop year

for cherries is from July 1, 1997, through

June 30, 1998; (3) over 700 growers

participating in a diversion program and

have been voluntarily diverting cherries

based on preliminary free and restricted

percentages announced by the Board;

and, (4) this rule provides a 30-day

comment period and any comments

received will be considered prior to

finalization of this rule.

List of Subjects in 7 CFR Part 930

Marketing agreements, Tart cherries,

Reporting and recordkeeping

requirements.

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. In part 930, a new § 930.100 is

added to read as follows:

§ 930.100 Grower diversion certificates.

(a) In accordance with paragraph (b)

of this section, the Board may, for the

1997 crop year, issue diversion

certificates to growers, in districts

subject to volume regulation (Northwest

Michigan, Central Michigan, New York,

and Utah) who have voluntarily elected

to divert in the orchard all or a portion

of their 1997 tart cherry production

which otherwise, upon delivery to

handlers, would become restricted

percentage cherries. Growers may offer

the diversion certificate to handlers in

lieu of delivering cherries. Handlers

may redeem diversion certificates with

the Board through November 1 of the

1997 crop year. After November 1 of the

1997 crop year that crop year’s grower

diversion certificates are no longer

valid.

(b) Terms and conditions. To be

eligible to receive diversion credit,

growers voluntarily choosing to divert

cherries must meet the following terms

and conditions:

(1) In order to receive a certificate, a

grower must demonstrate, to the

satisfaction of the Board, that rows or

trees which were selected for diversion

were not harvested. Trees six years old

or younger do not qualify for diversion.

(2) The grower must furnish the Board

with a total harvested production

amount so the Board can calculate the

amount of grower diversion tonnage to
44884 Federal Register / Vol. 62, No. 164 / Monday, August 25, 1997 / Rules and Regulations

be placed on the diversion certificate.

The Board will confirm the grower’s

production amount with information

provided by handlers (to which the

grower delivers cherries) on Board Form

Number Two.

(3) The grower must agree to allow a

Board compliance officer to visit the

grower’s orchard to confirm that

diversion has actually taken place.

(c) Calculation of diversion amounts.

The weight of cherries diverted and left

unharvested shall be calculated by the

Board after growers furnish the Board

with the necessary information

concerning their production. After

verification of the volume of cherries

diverted, the Board shall calculate the

amounts of grower diversion tonnage to

be placed on the diversion certificates

and issue such certificates to growers.

Such amounts shall be determined as

follows:

(1) For whole block diversion, the

weight of a harvested sample of 5

percent of each diverted block, provided

by the grower, will be used to calculate

the total volume of diverted cherries to

be credited on the diversion certificate.

For example, a grower farms 1,000 acres

and elects to whole block divert a 200

acre block. If 5 percent of the harvested

trees in the block diverted yield 80,000

pounds of cherries, the grower would

receive a diversion certificate for

1,600,000 pounds (80,000 pounds

divided by 5 percent (.05) yields

1,600,000 pounds). The rest of the block

would remain unharvested.

(2) For random row diversion, such

estimated volume would be calculated

by applying the percentage of the

grower’s production diverted to the

actual average volume per acre of

cherries produced and harvested. For

example, a grower farms 1,000 acres and

elects to divert 20 percent of the

harvestable acreage (200 acres). The

grower harvests the remaining 800 acres

and obtains 6,400,000 pounds of

cherries, which represents a yield per

acre of 8,000 pounds. Such grower

would receive a diversion certificate for

1,600,000 pounds of cherries (8,000 lbs

multiplied by the 20 percent of the total

acreage diverted; in this instance, 200

acres).

Dated: August 18, 1997.

Robert C. Keeney,

Director, Fruit and Vegetable Division.

[FR Doc. 97–22578 Filed 8–20–97; 4:06 pm]

BILLING CODE 3410–02–P

DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 931

[Docket No. FV97–931–2 IFR]

Fresh Bartlett Pears Grown in Oregon

and Washington; Reduced

Assessment Rate

AGENCY: Agricultural Marketing Service,

USDA.

ACTION: Interim final rule with request

for comments.

SUMMARY: This interim final rule

decreases the assessment rate

established for the Northwest Fresh

Bartlett Pear Marketing Committee

(Committee) under Marketing Order No.

931 for the 1997–98 and subsequent

fiscal periods. The Committee is

responsible for local administration of

the marketing order which regulates the

handling of fresh Bartlett pears grown in

Oregon and Washington. Authorization

to assess fresh Bartlett pear handlers

enables the Committee to incur

expenses that are reasonable and

necessary to administer the program.

The 1997–98 fiscal period for this

marketing order covers the period July

1 through May 31. The assessment rate

will continue until amended,

suspended, or terminated.

DATES: Effective on August 26, 1997.

Comments received by September 24,

1997, will be considered prior to

issuance of a final rule.

ADDRESSES: Interested persons are

invited to submit written comments

concerning this rule. Comments must be

sent in triplicate to the Docket Clerk,

Fruit and Vegetable Division, AMS,

USDA, room 2525–S, P.O. Box 96456,

Washington, DC 20090–6456; Fax (202)

720–5698. 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:

Teresa L. Hutchinson, Northwest

Marketing Field Office, Fruit and

Vegetable Division, AMS, USDA, 1220

SW Third Avenue, Room 369, Portland,

OR 97204; Telephone: (503) 326–2724,

Fax: (503) 326–7440 or George J.

Kelhart, Marketing Order

Administration Branch, Fruit and

Vegetable Division, AMS, USDA, Room

2525–S, P.O. Box 96456, Washington,

DC 20090–6456; Telephone: (202) 690–

3919, Fax: (202) 720–5698. Small

businesses may request information on

compliance with this regulation by

contacting Jay Guerber, Marketing Order

Administration Branch, Fruit and

Vegetable Division, AMS, USDA, Room

2525–S, P.O. Box 96456, Washington,

DC 20090–6456; Telephone: (202) 720–

2491, Fax: (202) 720–5698.

SUPPLEMENTARY INFORMATION: This rule

is issued under Marketing Agreement

No. 141 and Order No. 931, both as

amended (7 CFR part 931), regulating

the handling of fresh Bartlett pears

grown in Oregon and Washington

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, fresh Bartlett pear 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 will be

applicable to all assessable fresh Bartlett

pears beginning July 1, 1997, and

continuing 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 decreases the assessment

rate established for the Committee for

the 1997–98 and subsequent fiscal

periods from $0.0375 to $0.03 per

standard box.

The fresh Bartlett pear marketing

order provides authority for the