20522 Federal Register / Vol. 63, No. 80 / Monday, April 27, 1998 /Rules and Regulations

production of cantaloups is distributed

throughout other various growing

regions of the United States. Small

agricultural service firms, which

includes handlers, have been defined by

the Small Business Administration

(SBA) (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 cantaloup industry is

characterized by producers and

handlers whose farming operations

involve more than one commodity, and

whose income from farming operations

is not exclusively dependent on

cantaloup production. Alternative crops

provide an opportunity to utilize many

of the same facilities and equipment not

in use when the cantaloup production

season is complete. Typical cantaloup

producers and handlers either produce

multiple crops or alternate crops within

a single year. Therefore, it is difficult to

obtain an exact number of cantaloup

producers and handlers that can be

classified as small entities based on the

SBA’s definition. However, it is

estimated that the majority of handlers

and producers of cantaloups may be

classified as small entities.

This rule will revise the U.S.

Standards for Grades of Cantaloups that

was issued under the Agricultural

Marketing Act of 1946 (7 U.S.C. 1621 et

seq.). In addition, the regulations under

Marketing Order No. 979 (7 CFR Part

979), as issued under the Agricultural

Marketing Act of 1937 (7 U.S.C. 601–

674) references the U.S. Standards for

Grades of Cantaloups, including the

term ‘‘decay’’ and accordingly, the

regulation of cantaloups grown in South

Texas is affected. In the standards, the

definition of decay applies to all four

grades; U.S. Fancy, U.S. No. 1, U.S.

Commercial and U.S. No. 2. This action

changes the definition of decay to

provide that dry type decays will not be

scored against the decay tolerance

unless penetrating the rind and

extending into the edible flesh of the

melon. This revision will be a benefit to

producers and handlers by allowing a

more accurate scoring of dry type

decays. As a result, more melons are

expected to be marketed that would

otherwise be graded as defective.

It is estimated that total commercial

cantaloup production in the U.S. was

approximately 67 million cartons with

an estimated value of $401 million.

Cantaloup production covered under

the Marketing Order for Melons Grown

in South Texas comprises

approximately 5 percent of the domestic

market share.

AMS has determined that this action

would not impose an additional

reporting or recordkeeping requirement

on either small or large cantaloup

growers and handlers.

The Department has not identified

any relevant Federal rules that

duplicate, overlap, or conflict with this

rule, except that the regulation of

cantaloups grown in South Texas under

7 CFR Part 979 would be affected by this

action.

With regard to alternatives to this

action, if no action were taken by the

Agency, this could result in continued

scoring of marketable melons with

possible revenue loss by growers,

shippers or handlers of these melons.

Accordingly, this action will make the

standards more consistent and uniform

with marketing trends and commodity

characteristics.

Pursuant to 5 U.S.C. 553, it is 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 30 days after

publication in the Federal Register

because: (1) Harvesting of the year’s

crop will begin in late April; (2) this

revision should be made as soon as

possible to make the standards more

consistent and uniform with marketing

trends and commodity characteristics;

(3) cantaloup production is increasing

on a yearly basis and further delaying

the standards revision would result in

the increased loss of marketable melons

and subsequent revenue loss by growers

and handlers; and, (4) this interim final

rule provides a 60 day comment period,

and all comments timely received will

be considered prior to finalization of

this rule.

List of Subjects in 7 CFR Part 51

Agricultural commodities, Food

grades and standards, Fruits, Nuts,

Reporting and recordkeeping

requirements, Trees, Vegetables.

For reasons set forth in the preamble,

7 CFR Part 51 is amended as follows:

PART 51—[AMENDED]

1. The authority citation for part 51

continues to read as follows:

Authority: 7 U.S.C. 1621–1627.

2. In part 51, § 51.490 is revised to

read as follows:

§ 51.490 Decay.

Decay means breakdown,

disintegration or fermentation of the

flesh or rind of the cantaloup caused by

bacteria or fungi; except that dry type

decays will only be scored when

penetrating the rind and extending into

the edible flesh of the melon.

Dated: April 20, 1998.

Robert C. Keeney,

Deputy Administrator, Fruit and Vegetable

Programs.

[FR Doc. 98–11040 Filed 4–24–98; 8:45 am]

BILLING CODE 3410–02–U

DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 930

[Docket No. FV97–930–6 FR]

Tart Cherries Grown in the States of

Michigan, et al.; Final Free and

Restricted Percentages for the 1997–98

Crop Year for Tart Cherries

AGENCY: Agricultural Marketing Service,

USDA.

ACTION: Final rule.

SUMMARY: This final rule establishes

final free and restricted percentages for

the 1997–98 crop year. The percentages

are 55 percent free and 45 percent

restricted. These percentages establish

the proportion of cherries from the 1997

crop which may be handled in normal

commercial outlets and are intended to

stabilize supplies and prices, and

strengthen market conditions. The

percentages were recommended by the

Cherry Industry Administrative Board

(Board), the body which 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.

EFFECTIVE DATE: April 28, 1998 through

June 30, 1998, and applies to all tart

cherries handled from the beginning of

the 1997–98 crop year.

FOR FURTHER INFORMATION CONTACT:

Patricia A. Petrella or Kenneth G.

Johnson, 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. Small businesses may request

information on compliance 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.

SUPPLEMENTARY INFORMATION: This final

rule is issued under marketing
Federal Register / Vol. 63, No. 80 / Monday, April 27, 1998 /Rules and Regulations 20523

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 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

1997–98 crop year, beginning July 1,

1997, through June 30, 1998. 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 requesting a modification of the

order or to be exempt therefrom. Such

handler is afforded the opportunity for

a hearing on the petition. After the

hearing, the Secretary would rule on the

petition. The Act provides that the

district court of the United States in any

district in which the handler is an

inhabitant, or has his or her principal

place of business, has jurisdiction in

equity to review the Secretary’s ruling

on the petition, provided an action is

filed not later than 20 days after the date

of the entry of the ruling.

The order prescribes procedures for

computing an optimum supply and

preliminary and final percentages that

establish the amount of tart cherries that

can be marketed throughout the season.

The regulations apply to all handlers of

tart cherries that are in the regulated

districts. Tart cherries in the free

percentage category may be shipped 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 section

930.59 or used for exempt purposes

under section 930.62. The regulated

Districts for this season are: District

one—Northern Michigan; District two—

Central Michigan; District four—New

York; and District seven—Utah. Districts

three, five, six, eight and nine

(Southwest Michigan, Oregon,

Pennsylvania, Washington, and

Wisconsin, respectively) are not

regulated for the 1997–98 season.

The order prescribes under section

930.52 that upon adoption of the order,

those districts to be regulated shall be

those districts in which the average

annual production of cherries over the

prior three years has exceeded 15

million pounds. Handlers not meeting

the 15 million pound requirement shall

not be regulated in such crop year.

Therefore, for this season, handlers in

the districts of Oregon, Pennsylvania,

Washington, and Wisconsin are not

subject to volume regulation. In

addition, Southwest Michigan handlers

are not subject to volume regulation this

season because the estimated

production fell below 50 percent of the

average annual processed production in

that district in the previous five years.

Southwest Michigan’s tart cherry

production was subjected to a freeze

during early bud development that

reduced its crop yield for the 1997–1998

crop year.

Section 930.50(a) describes

procedures for computing an optimum

supply for each crop year. The Board

must meet on or about July 1 of each

crop year, to review sales data,

inventory data, current crop forecasts

and market conditions. The optimum

supply volume is calculated as 100

percent of the average sales of the prior

three years to which is added a

desirable carryout inventory not to

exceed 20 million pounds. The

optimum supply represents the

desirable volume of tart cherries that

should be available for sale in the

coming crop year.

The order also provides that on or

about July 1 of each crop year, the Board

is required to establish preliminary free

and restricted percentages. These

percentages are computed by deducting

the carryin inventory from the optimum

supply figure (adjusted to raw product

equivalent—the actual weight of

cherries handled to process into cherry

products) and dividing that figure by the

current year’s USDA crop forecast. The

carryin inventory figure reflects the

amount of cherries that handlers

actually have in inventory. If the

resulting quotient is 100 percent or

more, the Board should establish a

preliminary free market tonnage

percentage of 100 percent. If the

quotient is less than 100 percent, the

Board should establish a preliminary

free market tonnage percentage

equivalent to the quotient, rounded to

the nearest whole percent, with the

complement being the preliminary

restricted percentage.

The Board met on June 26–27, 1997,

and computed, for the 1997–98 crop

year, an optimum supply of 247 million

pounds. This number was calculated by

using 270 million pounds for the

average three year sales figure and

subtracting 23 million pounds for

exports that could have received

diversion credit. The Board

recommended that the carryout figure

be zero pounds. Also at the June 26–27

meeting, the Board established

preliminary free and restricted

percentages. The Board calculated the

preliminary free and restricted

percentages as follows: The USDA

estimate of the crop was 242 million

pounds; a 70 million pound carryin

added to that equaled a total available

supply of 312 million pounds. The

optimum supply was subtracted from

the total estimated available supply

resulting in a surplus of 65 million

pounds of tart cherries. The surplus was

divided by the production in the

regulated districts and resulted in 66

percent free and 34 percent restricted

for the 1997–98 season. The Board

recommended these percentages by a 17

to 1 vote. No reason was provided for

the one dissenting vote. No rulemaking

was necessary at that time. The Board

recommended the 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 for the 1997–98 crop year:

Millions of

pounds

Optimum supply formula:

(1) Average sales of the prior three years ............................................................................................................... .................... 270

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

(3) Less amount for exports that would have received diversion credit .................................................................. .................... 23

(4) Optimum Supply calculated by the Board at the June meeting ......................................................................... .................... 247
20524 Federal Register / Vol. 63, No. 80 / Monday, April 27, 1998 /Rules and Regulations

Millions of

pounds

Preliminary percentages:

(5) Less carryin as of July 1, 1997 ........................................................................................................................... .................... 70

(6) Tonnage requirement for current crop year ........................................................................................................ .................... 177

(7) USDA crop estimate ............................................................................................................................................ .................... 242

(8) Estimated restricted percentage tonnage (item 7 minus item 6) ........................................................................ .................... 65

(9) USDA crop estimate for regulated districts ......................................................................................................... .................... 192

Percentages .............................................................................................................................................................. Free Restricted

(10) Preliminary percentages (item 8 divided by item 9) × 100 ............................................................................... 66 34

The Board may adjust the estimated

crop production as the actual pack is

realized and interim percentages may be

announced between July 1 and

September 15 of the crop year.

Section 930.50(d) of the order requires

the Board to meet no later than

September 15 to recommend final free

and restricted percentages to the

Secretary for approval. The Board met

on September 11–12, 1997, and

recommended final free and restricted

percentages of 55 and 45, respectively.

The Board recommended that the

interim percentages and final

percentages be the same percentages. At

that time, the Board had available actual

production amounts to review and made

the necessary adjustments to the

percentages.

The Secretary establishes final free

and restricted percentages through an

informal rulemaking process. These

percentages would make available the

tart cherries necessary to achieve the

optimum supply figure calculated

earlier by the industry. The difference

between any final free market tonnage

percentage designated by the Secretary

and 100 percent is the final restricted

percentage.

The Board used a revised optimum

supply figure of 270 million pounds for

its final percentage calculations because

it was determined that exports of 23

million pounds should not have been

deducted from the average sales figure.

At its March 1997 meeting, the Board

had recommended that the Department

modify the average sales under the

optimum supply formula by deducting

exports from the figure. The Department

did not proceed with that

recommendation since the promulgation

record shows that average sales, as

defined in the order, includes sales to

all markets, including exports.

The optimum supply, therefore was

270 million pounds. The actual

production recorded by the Board was

284 million pounds, a 42 million pound

increase from the USDA crop estimate.

The increase in the crop is due to very

favorable growing conditions in

portions of the State of Michigan this

season.

A 70 million pound carryin was

subtracted from the optimum supply,

which yields a tonnage requirement for

the current crop year of 200 million

pounds. Subtracted from the actual

production of 284 million pounds

reported by the Board is the tonnage

required for the current crop year (200

million pounds) which results in an 84

million pound surplus. An adjustment

for changed economic conditions of 23

million pounds was added to the

surplus, pursuant to section 930.50(f).

This adjustment is discussed later in

this document. This yielded a total

surplus of 107 million pounds of tart

cherries. The free and restricted

percentages would only apply to those

handlers in regulated districts.

Therefore, the percentages would be

calculated by dividing the restricted

tonnage volume by the regulated

districts’ production. The total surplus

of 107 million pounds is divided by the

239 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.

Section 930.51(d) of the order

provides that handlers should have a

grace period of up to 30 days to

establish their inventory reserves after

final percentages have been established.

Therefore, handlers have 30 days after

the effective date of this rule to comply

with the 45 percent restricted obligation

requirement.

The final percentages are based on the

Board’s reported production figures and

the following supply and demand

information for the 1997–98 crop year:

Millions of

pounds

Optimum supply formula:

(1) Average sales of the prior three years ............................................................................................................... .................... 270

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

(3) Optimum Supply calculated by the Board at the September meeting ............................................................... .................... 270

Final percentages:

(4) Less carryin as of July 1, 1997 ........................................................................................................................... .................... 70

(5) Tonnage required current crop year ................................................................................................................... .................... 200

(6) Board reported production .................................................................................................................................. .................... 284

(7) Surplus (item 6 minus item 5) ............................................................................................................................. .................... 84

(8) Economic adjustment to surplus ......................................................................................................................... .................... 23

(9) Adjusted surplus (item 7 plus item 8) ................................................................................................................. .................... 107

(10) Production in regulated districts ........................................................................................................................ .................... 239

Percentages Free Restricted

(11) Final Percentages (item 9 divided by item 10)×100 ......................................................................................... 55 45

As previously mentioned, the Board

had made an earlier recommendation to

modify the optimum supply formula by

defining average sales to not include

exports that were granted diversion

credit. It was determined that exports
Federal Register / Vol. 63, No. 80 / Monday, April 27, 1998 /Rules and Regulations 20525

should not have been excluded. Thus,

the Board was unable to make the 23

million pound adjustment this season in

the optimum supply. The Board thus

recommended at its September meeting

that the marketing policy be modified

due to changes in economic conditions

as specified under section 930.50(e)(5)

and (7) and (f). Specifically, the Board

recommended that the proviso in

§ 930.59(b) of the order be suspended

for the 1997–98 year only and that

diversion credit for exports of juice and

juice concentrate be allowed for the

1997–98 crop year.

Also, at its meeting in March 1997,

the Board recommended that handler

exports of cherry products, including

juice and juice concentrate, to countries

other than Canada, Mexico, and Japan,

receive diversion credit. During the

production and processing of the crop,

handlers have exported, or have

contracted to export, tart cherry

products, including juice or juice

concentrate, and were operating under

the impression that they could apply for

and receive, diversion credit for such

sales. Many of these exports were for the

purpose of expanding existing markets

or developing new markets. This issue

was further addressed in a separate

rulemaking action (see 63 FR 399,

January 6, 1998).

By recommending the marketing

policy modification, the Board believed

that it would provide stability to the

marketplace and the industry would be

in a better situation for future years

since new markets will have been

developed. Board members discussed at

that meeting that, if this adjustment is

not made, growers could be paid less

than their production costs, because

handlers could suffer financial losses

that would be passed on to growers.

Handlers would have to meet their

reserve obligations by other means. In

addition, the value of cherries already in

inventory could be depressed by 20 to

50 percent due to the abundant supply

of available cherries, a result

inconsistent with the intent of the order

and the Act.

The changes in economic conditions

that justified the recommended

marketing policy modification are as

follows: (1) The determination that

export sales could not be removed from

the optimum supply formula calculation

was made late in the season; (2)

handlers had made marketing plans,

sales and sales commitments (including

exports) based on the Board’s

recommendations made in March and

June; and (3) prices received for tart

cherries and tart cherry products could

be severely impacted by an additional

large volume of cherries being made

available to the market when there is

already an abundant supply of cherries.

The Department’s ‘‘Guidelines for

Fruit, Vegetable, and Specialty Crop

Marketing Orders’’ specify that 110

percent of recent years’ sales should be

made available to primary markets each

season before recommendations for

volume regulation are approved. This

goal is met by the establishment of a

final percentage which releases 100

percent of the optimum supply and the

additional release of tart cherries

provided under section 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 shall 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 during the December and May

release dates. Once released, such

cherries are released for free use by such

handler. Approximately 27 million

pounds will be made available to

handlers this season in accordance with

Department Guidelines. This release

would be made available to every

handler and released to such handler in

proportion to its percentage of the total

regulated crop handled. If such handler

does not take such handler’s

proportionate amount, such amount

shall remain in the inventory reserve.

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 final 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 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

1,220 producers of tart cherries in the

regulated 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.

Board and subcommittee meetings are

publicized in advance and are held in

a location central to the production area.

The meetings are open to all industry

members (including small business

entities) and other interested persons—

who are encouraged to participate in the

deliberations and voice their opinions

on topics under discussion. Thus, Board

recommendations usually represent the

interests of both small and large

business entities in the industry.

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

1993/94 through 1996/97,

approximately 94 percent of the U.S.

tart cherry crop, or 285.7 million

pounds, was processed annually. Of the

285.7 million pounds of tart cherries

processed, 63 percent was frozen, 32

percent canned and 3 percent utilized

for juice. The remaining 2 percent was

dried or assembled into juice packs.

Based on National Agricultural

Statistics Service data, acreage in the

United States devoted to tart cherry

production has been trending

downward since the 1991/92 season. In

the ten-year period, 1986/87 through

1996/97, tart cherry area decreased from

48,180 acres, to less than 42,000 acres.

Approximately 78 percent of domestic

tart cherry acreage is located in four

States: Michigan, New York, Utah and

Wisconsin. Michigan leads the nation in

tart cherry acreage with 65 percent of

the total. Michigan produces about 72

percent of the U.S. tart cherry crop each

year. In 1996/97, tart cherry acreage in

Michigan was down 2,700 acres, to

27,300.

In crop years 1986 through 1993, tart

cherry production ranged from a high of

359 million pounds in 1987 to a low of

189.9 million pounds in 1991. The price

per pound to 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
20526 Federal Register / Vol. 63, No. 80 / Monday, April 27, 1998 /Rules and Regulations

wide supply and price fluctuation in the

tart cherry industry are national in

scope and impact. Growers testified

during the order promulgation process

that the average prices of 12 to 17 cents

per pound which they received during

this period did not come close to

covering the costs of production for the

vast majority of tart cherry growers.

They also testified that production costs

for most growers range between 20 and

22 cents per pound, which is well above

average prices received.

As previously stated, this is the first

year of operation for this marketing

order. The industry demonstrated a

need for such order during the

promulgation process because large

variations in annual tart cherry supplies

tend to lead to disorderly marketing. As

a result of these fluctuations in supply

and price, growers receive less income

for their tart cherries. The industry,

therefore, 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 have been going out of

business over most of the last eight

years 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.

In discussing the possibility of

marketing percentages for the 1997–98

crop year, the Board considered: (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 July 1997 of

preliminary free and restricted

percentages, and subsequent

recommendation of interim and final

percentages at its September meeting.

The Board recognized that the

demand for tart cherries is inelastic at

high and low levels of production. At

the extremes, different factors become

operational. The promulgation record

states that in very short crops there is

limited but sufficient exclusive demand

for cherries that can cause processor

prices to double and grower prices to

triple. In the event of large crops, there

seems to be no price low enough to

expand tart cherry sales in the

marketplace sufficient to market the

crops.

The Board discussed alternatives to

this recommendation. The Board

discussed the feasibility of not having

volume regulation this season. However,

it was the Board’s overall feeling that no

volume regulation would be detrimental

to the tart cherry industry. Returns to

growers would probably not cover their

production costs for this season.

The Board also discussed not granting

exemptions, and diversion credit for

such exemptions, for exports to eligible

countries (including juice and juice

concentrate), other exempt uses, and

charitable donations. However, the

Board felt this would not be in the best

interest of the industry or the public.

The Board expressed that not allowing

the export and other exemptions would

have a detrimental effect on the market

this season if free and restricted

percentages are imposed. Without such

exemptions and diversion credits for

export sales, new market development

and other specified uses, about 50

million pounds of cherries would not be

removed from the domestic market this

season, depressing grower returns for all

cherries. The marketing order was

designed to increase grower returns by

stabilizing supplies with demand as

well as stabilizing prices and creating a

more orderly and predictable marketing

environment. Expanding markets and

developing new products is key to

meeting this marketing order’s goals.

Not granting exemptions and

diversion credit for exports to countries

other than Canada, Mexico, and Japan

was also discussed at Board meetings.

However, the Board expressed that this

recommendation is very important to

creating stable conditions in the export

marketplace this season and would

encourage future market growth. The

Board further stated that such action

will improve returns to growers because

of the tremendous growth in the export

market this season. Exemptions and

diversion credit have been addressed in

other rulemaking actions.

As mentioned earlier, the

Department’s ‘‘Guidelines for Fruit,

Vegetable, and Specialty Crop

Marketing Orders’’ specify that 110

percent of recent years’ sales should be

made available to primary markets each

season before recommendations for

volume regulation are approved. The

quantity available under this rule is 110

percent of the quantity shipped in the

prior three years.

The free and restricted percentages

established by this rule release the

optimum supply and apply uniformly to

all regulated handlers in the industry,

regardless of size. There are no known

additional costs incurred by small

handlers that are not incurred by large

handlers. The stabilizing effects of the

percentages impact all handlers

positively by helping them maintain

and expand markets, despite seasonal

supply fluctuations. Likewise, price

stability positively impacts all

producers by allowing them to better

anticipate the revenues their tart

cherries will generate.

While the level of benefits of this

rulemaking are difficult to quantify, the

stabilizing effects of the volume

regulations impact both small and large

handlers positively by helping them

maintain markets even though tart

cherry supplies fluctuate widely from

season to season.

In compliance with Office of

Management and Budget (OMB)

regulations (5 CFR part 1320) which

implement the Paperwork Reduction

Act of 1995 (Pub. L. 104–13), the

information collection and

recordkeeping requirements have been

previously approved by OMB and

assigned OMB Number 0581–0177.

There are some reporting,

recordkeeping and other compliance

requirements under the marketing order.

The 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 final rule

does not change those requirements.

The Department has not identified

any relevant Federal rules that

duplicate, overlap, or conflict with this

regulation.

A proposed rule concerning this

action was published in the Federal

Register on Wednesday, January 21,

1998 (63 FR 3048). Copies of the rule

were also mailed or sent via facsimile to
Federal Register / Vol. 63, No. 80 / Monday, April 27, 1998 /Rules and Regulations 20527

all Board members and cherry handlers.

Finally, the rule was made available

through the Internet by the Office of the

Federal Register.

A 15-day comment period was

provided to allow interested persons to

respond to the proposal. Fifteen days

was deemed appropriate because a rule

finalizing the action would need to be

in place as soon as possible since

handlers are currently marketing 1997–

98 crop cherries.

One comment was received during

the comment period in response to the

proposal. The comment addressed the

proposed rule published in the Federal

Register on January 21, 1998,

concerning final free and restricted

percentages which are being finalized in

this rulemaking. The commenter

represents a tart cherry association in

the State of Oregon. The comment also

responded to a request for comments

made in the interim final rule published

in the Federal Register on January 6,

1998 (63 FR 399). That document

established regulations for handler

diversion and included a temporary

suspension of order provisions. To the

extent that the comment addressed

issues relating to the January 6, 1998,

publication, that portion of the

comment will be discussed, as

appropriate, in the final action

concerning that document which will be

published separately from this action.

With respect to the proposed rule

which preceded this action, the

commenter disagreed with a statement

contained in the initial regulatory

flexibility analysis and that also appears

in the final regulatory flexibility

analysis in this action. The statement

indicated that Board meetings are

widely publicized in advance and are

held in a location central to the

production area. The commenter stated

that to date meetings have been central

only to those producers and handlers in

the Michigan districts. No fewer than

five Board members and their alternates

spend almost a full day commuting to

Board meetings. Secondly, the

commenter commented that access to

the meetings is limited to those who

have the resources of money and time

to make such a commitment. Most of

those present represent large growers

and handlers. The commenter believes

that Board recommendations usually

represent the interests of primarily large

business entities. The commenter also

stated that the Board does a poor job of

publicizing Board and subcommittee

meetings. To the commenter’s

knowledge, meetings are announced

among participants and in no way are

published in agricultural or business

trade journals or newspapers in the

production districts. According to the

commenter, growers and handlers are

not receiving a notice of all meetings.

Finally, the commenter urged the

Department to rule on the identity and

nature of CherrCo, Inc., a new entity in

the tart cherry industry, as it relates to

the Federal tart cherry marketing order.

In regard to the commenter’s first

issue of meetings being held in a

location central to the production, the

Board also has to consider the cost of

travel for all Board members since the

Board pays travel expenses for all of its

members. The first meetings held in

December of 1996 and throughout 1997

were attended by all members and their

alternates. A Board recommendation

was passed that the start-up meetings be

attended by the alternates so they would

be involved and aware of Board

activities. It would have resulted in

considerable expense to the Board to

hold the meetings outside of Michigan

since 16 members and alternates are

from the State of Michigan. The Board

realizes the time spent in travel could be

inconvenient for some of the other

Board members and has made a

commitment to hold the June marketing

policy meeting in Michigan and the

September marketing policy meeting in

a district outside of Michigan. The

Board is also committed to holding

meetings outside the Michigan districts

to allow producers and handlers to

attend the meetings and cut down on

travel time for those not located in

Michigan.

In regard to the second issue raised by

the commenter concerning access to the

meetings being limited to those who

have money and time to commit, the

meetings held in Michigan were held

frequently to do the groundwork needed

to implement the many marketing order

authorities. It was more cost effective to

the industry to have such meetings in

Michigan. As previously mentioned, the

Board pays all travel costs for its

members and 16 Board members and

alternates are from Michigan. Growers

and handlers are welcome to attend

these meetings. The Board has made the

commitment to rotate meeting sites

throughout the production area to allow

growers and handlers from other

districts to participate.

Recommendations are not made by the

Board for only the benefit of large

growers and handlers. The Board, which

is comprised of small entities, discusses

the impacts of such recommendations

on small and large growers and

handlers. The Board has been given the

responsibility to make

recommendations that benefit the

industry as a whole.

In regard to the commenter’s

contention that the Board does a poor

job of publicizing Board and

subcommittee meetings, we disagree.

The Board has and will continue to take

appropriate action to provide the widest

possible notice of upcoming meetings to

all handlers and Board members and

alternate Board members. The Board

sends meeting notices to all Board

members and several tart cherry

industry organizations. In fact, the

Board is currently developing a

newsletter which will be distributed to

all growers and handlers of record to

further publicize upcoming Board

meetings.

Finally, in regard to the CherrCo

issue, the Department is continuing to

work with the Board on this issue. This

issue will be addressed separately.

Accordingly, no changes will be made

to the rule as proposed, based on the

comments received.

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 further 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) because handlers are

currently marketing 1997–98 tart

cherries. Further, handlers are aware of

this rule, which was recommended at a

public meeting. Also, a 15-day comment

period was provided for in the proposed

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 to

read 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. A new subpart—Supplementary

Regulations and a new section 930.250

are added to read as follows:

§ 930.250 Final free and restricted

percentages for the 1997–98 crop year.

The final percentages for tart cherries

handled by handlers in volume
20528 Federal Register / Vol. 63, No. 80 / Monday, April 27, 1998 /Rules and Regulations

regulated districts during the crop year

beginning on July 1, 1997, which shall

be free and restricted, respectively, are

designated as follows: Free percentage,

55 percent and restricted percentage, 45

percent.

Dated: April 20, 1998.

Robert C. Keeney,

Deputy Administrator, Fruit and Vegetable

Programs.

[FR Doc. 98–11023 Filed 4–24–98; 8:45 am]

BILLING CODE 3410–02–P

DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Part 39

[Docket No. 97–CE–124–AD; Amendment

39–10391; AD 98–06–13]

RIN 2120–AA64

Airworthiness Directives; Dornier

Luftfahrt GmbH Models 228–100, 228–

101, 228–200, and 228–201 Airplanes

AGENCY: Federal Aviation

Administration, DOT.

ACTION: Direct final rule; confirmation of

effective date.

SUMMARY: This action confirms the

effective date of Airworthiness Directive

(AD) 98–06–13 which applies to Models

228–100, 228–101, 228–200, and 228–

201 airplanes equipped with certain

main landing gear (MLG). AD 98–06–13

requires replacing the MLG axle

assembly with an MLG axle assembly of

improved design. This AD was the

result of mandatory continuing

airworthiness information (MCAI)

issued by the airworthiness authority for

Germany. The actions specified in this

AD are intended to prevent main

landing gear failure, which, if not

corrected, could result in loss of control

of the airplane during landing

operations.

DATES: Effective June 15, 1998.

FOR FURTHER INFORMATION CONTACT: Mr.

Karl M. Schletzbaum, Aerospace

Engineer, FAA, Small Airplane

Directorate, Aircraft Certification

Service, 1201 Walnut, suite 900, Kansas

City, Missouri 64106; telephone: (816)

426–6934; facsimile: (816) 426–2169.

SUPPLEMENTARY INFORMATION: The FAA

published this direct final rule with

request for comments in the Federal

Register on March 16, 1998 (63 FR

12605). The FAA uses the direct final

rulemaking procedure for a noncontroversial rule where the FAA

anticipates that there will be no adverse

public comment. This direct final rule

advised the public that no adverse

comments were anticipated, and that

unless a written adverse comment, or a

written notice of intent to submit such

an adverse comment, were received

within the comment period, the

regulation would become effective on

June 15, 1998. No adverse comments

were received, and thus this notice

confirms that this final rule will become

effective on that date.

Issued in Kansas City, Missouri, on April

17, 1998.

James A. Jackson,

Acting Manager, Small Airplane Directorate,

Aircraft Certification Service.

[FR Doc. 98–11010 Filed 4–24–98; 8:45 am]

BILLING CODE 4910–13–U

DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Part 71

[Airspace Docket No. 98–ACE–6]

Amendment to Class D and Class E

Airspace; St. Joseph, MO

AGENCY: Federal Aviation

Administration (FAA), DOT.

ACTION: Direct final rule; request for

comments.

SUMMARY: This amendment revises the

Class D and Class E airspace areas at

Rosecrans Memorial Airport, St. Joseph,

MO. A review of the Class E airspace for

Rosecrans Memorial Airport indicates it

does not comply with the criteria for

700 feet Above Ground Level (AGL)

airspace required for diverse departures

as specified in FAA Order 7400.2D. The

Class E airspace area has been enlarged

to conform to the criteria of FAA Order

7400.2D. A revision to the Airport

Reference Point (ARP) coordinates is

included in this document. The

intended effect of this rule is to revise

the ARP coordinates, comply with the

criteria of FAA Order 7400.2D, and

provide additional controlled Class E

airspace for aircraft operating under

Instrument Flight Rules (IFR).

DATES: Effective date: 0901 UTC, August

13, 1998.

Comment date: Comments for

inclusion in the Rules Docket must be

received on or before June 15, 1998.

ADDRESSES: Send comments regarding

the rule in triplicate to: Manager,

Airspace Branch, Air Traffic Division,

ACE–520, Federal Aviation

Administration, Docket Number 98–

ACE–6, 601 East 12th Street, 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 Air Traffic Division at the same

address listed above.

FOR FURTHER INFORMATION CONTACT:

Kathy Randolph, Air Traffic Division,

Airspace Branch, ACE–520C, Federal

Aviation Administration, 601 East 12th

Street, Kansas City, MO 64106;

telephone: (816) 426–3408.

SUPPLEMENTARY INFORMATION: This

amendment to 14 CFR 71 revises the

Class D and Class E airspace at St.

Joseph, MO. A review of the Class E

airspace for Rosecrans Memorial

Airport, indicates it does not meet the

criteria for 700 feet AGL airspace

required for diverse departures as

specified in FAA Order 7400.2D. The

Class E airspace area has been enlarged

to conform to the criteria in FAA Order

7400.2D. The criteria in FAA Order

7400.2D for an aircraft to reach 1200 feet

AGL, is based on a standard climb

gradient of 200 feet per mile, plus the

distance from the ARP to the end of the

outermost runway. Any fractional part

of a mile is converted to the next higher

tenth of a mile. The Class D and Class

E areas are amended to indicate the new

ARP coordinates. The amendment at

Rosecrans Memorial Airport will meet

the criteria of FAA Order 7400.2D,

revise the ARP coordinates, provide

additional controlled airspace at the

above 700 feet AGL, and thereby

facilitate separation of aircraft operating

under Instrument Flight Rules. The

areas will be depicted on appropriate

aeronautical charts. Class D airspace

areas are published in paragraph 5000,

Class E airspace areas designated as an

extension to a Class D or Class E surface

area are published in paragraph 6004,

and Class E airspace areas extending

upward from 700 feet or more above the

surface of the earth are published in

paragraph 6005, of FAA Order 7400.9E,

dated September 10, 1997, and effective

September 16, 1997, which is

incorporated by reference in 14 CFR

71.1. The Class D and Class E airspace

designation listed in this document will

be published subsequently in the Order.

The Direct Final Rule Procedure

The FAA anticipates that this

regulation will not result in adverse or

negative comment and, therefore, is

issuing it as a direct final rule. Previous

actions of this nature have not been

controversial and have not resulted in

adverse comments or objections. The

amendment will enhance safety for all