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

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REGISTER issue of each week.

Rules and Regulations Federal Register

21271

Vol. 66, No. 83

Monday, April 30, 2001

DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 930

[Docket No. FV00–930–6 FIR]

Tart Cherries Grown in the States of

Michigan, et al.; Suspension of

Provisions Under the Federal

Marketing Order for Tart Cherries

AGENCY: Agricultural Marketing Service,

USDA.

ACTION: Final rule.

SUMMARY: The Department of

Agriculture (Department) is adopting, as

a final rule, without change, the

provisions of an interim final rule

suspending indefinitely a portion of an

order provision concerning the release

of reserve cherries. The suspension

continues to allow cherries held in

inventory reserves to be released for

exempt uses such as exports. The

Cherry Industry Administrative Board

(Board) recommended this action to

allow reserve cherries to be used in

outlets other than normal commercial

outlets. The Board is responsible for

local administration of the marketing

order which regulates the handling of

tart cherries grown in the production

area.

EFFECTIVE DATE: May 30, 2001.

FOR FURTHER INFORMATION CONTACT:

Patricia A. Petrella or Kenneth G.

Johnson, Marketing Order

Administration Branch, Fruit and

Vegetable Programs, AMS, USDA, Suite

2AO4, Unit 155, 4700 River Road,

Riverdale, Maryland 20737, telephone:

(301) 734–5243, Fax: (301) 734–5275 or

George Kelhart, Technical Advisor,

Marketing Order Administration

Branch, Fruit and Vegetable Programs,

AMS, USDA, room 2525–S, P.O. Box

96456, Washington, DC 20090–6456;

telephone: (202) 720–2491, Fax: (202)

720–5698.

Small businesses may request

information on compliance 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, P.O. Box 96456, room

2525–S, Washington, DC 20090–6456;

telephone (202) 720–2491; Fax: (202)

720–5698, or E-mail:

Jay.Guerber@usda.gov.

SUPPLEMENTARY INFORMATION: This rule

is issued under Marketing Agreement

and Order No. 930, both as amended (7

CFR part 930), regulating the handling

of tart cherries grown in the States of

Michigan, New York, Pennsylvania,

Oregon, Utah, Washington, and

Wisconsin, hereinafter referred to as the

‘‘order.’’ The marketing agreement and

order are effective under the

Agricultural Marketing Agreement Act

of 1937, as amended (7 U.S.C. 601–674),

hereinafter referred to as the ‘‘Act.’’

The Department of Agriculture

(Department) is issuing this rule in

conformance with Executive Order

12866.

This rule has been reviewed under

Executive Order 12988, Civil Justice

Reform. This rule is not intended to

have retroactive effect. 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.

The order authorizes the use of

volume regulation. In years when

volume regulation is implemented to

stabilize supplies, a certain percentage

of the cherry crop is required to be set

aside as restricted tonnage, and the

balance may be marketed freely as free

tonnage. The restricted tonnage is

required to be maintained in handlerowned inventory reserve pools.

Handlers in volume regulated States

may fulfill their restricted tonnage

requirements with diversion credits

earned by diverting cherries or cherry

products. Handlers are permitted to

divert (at plant or with grower-diversion

certificates from growers choosing not to

deliver their crop) as much of their

restricted percentage (reserve pool)

requirements as they deem appropriate.

Handlers also may divert cherries by

using cherries or cherry products for

exempt purposes, including the

development of export markets.

Presently, these markets do not include

Canada and Mexico.

Section 930.62 of the order

(Exemptions) provides that cherries

which are diverted in accordance with

§ 930.59, which are used for new

product and new market development,

which are used for experimental

purposes, or which are used for any

other purposes designated by the Board,

including cherries processed into

products for markets for which less than

5 percent of the preceding 5-year

average production of cherries was

utilized, may be exempted from the

assessment, quality control, volume

regulation, and reserve provisions of the

order.

Handlers can receive exemptions and

diversion credits to offset their

restricted percentage obligation during

years of volume regulation. One of the

exempt uses is the export of cherries to

markets other than Canada and Mexico.

Cherries used for exempt uses,

including export, are exempt from

assessments, and handlers pay growers

less for such cherries than cherries for

normal commercial outlets. This lowers

handlers’ costs and allows them to price

export cherries competitively.

The Board held a teleconference

meeting on June 1, 2000, and

recommended that the word ‘‘normal’’

be suspended from § 930.54(a) of the

order. That section of the order

21272 Federal Register / Vol. 66, No. 83 / Monday, April 30, 2001 / Rules and Regulations

provided that if the Board determined

that the total available supplies for use

in normal commercial outlets did not at

least equal the amount needed to meet

the demand in such outlets, the Board

should recommend to the Secretary that

all or a portion of the reserve be released

for such uses. Normal commercial

outlets, as that term is used in the order,

means the primary market which is

mainly the domestic market for tart

cherries. Therefore, under § 930.54(a),

reserve release could not have been

used to fulfill exempt needs.

During the 1999–2000 crop year when

no volume regulation was established,

the Board found that the export market

was not adequately supplied due to

short supplies of tart cherries, but could

not make reserve cherries from the

previous season available to meet export

needs because export markets were not

considered normal commercial outlets.

Because of this limitation, the industry

was not able to maintain a presence in

many export markets, or further develop

others. Export sales are a function of

many different factors, including the

size of the crop in Europe, the size of

the U.S. crop, and the strength of the

U.S. dollar.

Exports need to be sustained each

year, whether or not volume control is

implemented. It is important for buyers

of tart cherries to know that product

will be available from year to year from

sources in the United States. The Board

believes that failure to properly supply

these markets will result in lost market

share. In years with no volume

regulation, growers and handlers have

little economic incentive to move tart

cherries or tart cherry products to the

lower return markets, like export. In

such years, growers seek to maximize

profits by selling in the higher return

‘‘free’’ domestic market. Consequently,

market opportunities are lost in the

short term and quite possibly the long

term. Development of export markets is

important to the long term viability of

the tart cherry industry.

This rule continues to suspend

indefinitely a portion of § 930.54 of the

order to allow the release of reserve

cherries for exempt uses such as

exports. This will encourage handlers to

purchase additional cherries from

growers at lower prices in years of

volume regulation for placement in the

reserve during harvest for future export

use, rather than having the grower

divert them in the orchard. Thus,

additional lower-priced cherries would

be available in a year of no regulation

to continuously supply the export

market. This will enable the industry to

maintain market share in these markets

in volume and non-volume regulated

seasons, which is important in

developing and maintaining these

markets.

In non-volume regulated years, when

expected supplies and primary market

needs are closely aligned, lower-priced

supplies are not available for export.

This action will provide the industry

with a means of maintaining exports by

allowing lower-priced reserves from a

previous season or seasons to be used

for this purpose.

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) allows 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 performs

regulatory flexibility analyses for any

rulemaking that would generate the

interest of a significant number of small

entities. Performing such analyses shifts

the Programs’ efforts from determining

whether regulatory flexibility analyses

are required to the consideration of

regulatory options and economic or

regulatory impacts.

The purpose of the RFA is to fit

regulatory actions to the scale of

business subject to such actions in order

that small businesses will not be unduly

or disproportionately burdened.

Marketing orders issued pursuant to the

Act, and rules thereunder, are unique in

that they are brought about through

group action of essentially small entities

acting on their own behalf. Thus, both

statutes have small entity orientation

and compatibility.

There are approximately 900

producers of tart cherries in the

production area and approximately 40

handlers subject to regulation under the

marketing order. Small agricultural

producers have been defined by the

Small Business Administration (13 CFR

121.201) as those having annual receipts

less than $500,000, and small

agricultural service firms are defined as

those whose annual receipts are less

than $5,000,000. The majority of tart

cherry producers and handlers may be

classified as small entities.

Data from the National Agricultural

Statistics Service (NASS) states that for

1999, tart cherry utilization for juice,

wine, or brined uses was 34.5 million

pounds for all districts covered under

the order. The total processed amount

for 1999 was 252.3 million pounds.

Juice, wine, and brined tart cherries

represented about 14 percent of the total

processed crop, and about 10 percent

over the last three seasons (1997

through 1999).

This rule continues an interim final

rule which allows markets that have

been developed and sustained by the

use of the exemption and diversion

provisions of the order in years of

volume regulation to be sustained in

years with no volume regulation. In the

long run, market growth for tart cherry

products will be increased, grower

returns will be improved, and less fruit

will be abandoned in the orchard by

growers. Handlers will have an

incentive to put cherries in the reserve

to supply the export market in years of

no regulation, and therefore, not as

many growers will have to in-orchard

divert.

All businesses, whether large or

small, will benefit from this suspension

action through increased sales during

years of no regulation because they will

be able to continue to supply the export

markets. In years of volume regulation,

handlers tend to put more cherries in

reserve instead of diverting them

because they expect to use those

cherries during periods of short supply

to assure a continuous supply of

cherries. Previously, those cherries

could only be released for normal

commercial outlets; i.e., the domestic

market. This action allows the reserve

cherries to be released for export, as

well as the domestic market, when

needed.

During the 1999–2000 crop year,

when no volume regulation was

established, the Board found that the

export market was not adequately

supplied, but could not make lowervalued reserve cherries from the

previous season available to meet export

needs because export markets were not

considered normal commercial outlets.

Export sales are a function of many

different factors, including the size of

the crop in Europe, the size of the U.S.

crop and the strength of the U.S. dollar.

The industry recognizes, however,

that exports need to be sustained each

year, whether or not volume control is

implemented. It is important for buyers

of tart cherries to know that product

will be available from year to year from

sources in the United States. The Board

believes that failure to properly supply

these markets from year to year will

result in lost market share, which is not

conducive to further strengthening the

industry.

This rule continues to suspend

indefinitely a portion of § 930.54 of the

order to allow the release of reserve

Federal Register / Vol. 66, No. 83 / Monday, April 30, 2001 / Rules and Regulations 21273

cherries for exempt uses such as

exports. This will provide the industry

with flexibility to meet market needs in

domestic and export outlets from year to

year which is in the interest of growers

and handlers, whether small or large.

Market development and expansion is

important to the long-term strength of

the industry.

One alternative to this action would

be to continue the status quo. However,

this would not be favorable to cherry

growers and handlers and could delay

the long-term development of export

markets.

This action imposes no additional

reporting or recordkeeping requirements

on either small or large tart cherry

handlers. As with all Federal marketing

order programs, reports and forms are

periodically reviewed to reduce

information requirements and

duplication by industry and public

sector agencies. 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 (44 U.S.C. Chapter 35), the

information collection and

recordkeeping requirements imposed by

this order have been previously

approved by OMB and assigned OMB

Number 0581–0177.

The Board’s telephone meeting was

publicized and all Board members and

alternate Board members, representing

both large and small entities, were

invited to attend the meeting and

participate in Board deliberations. 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.

Finally, interested persons were

invited to submit information on the

regulatory and informational impacts of

this action on small businesses.

An interim final rule concerning this

action was published in the Federal

Register on January 3, 2001 (66 FR 229).

Copies of the rule were mailed by the

Board’s staff to all Board members and

handlers. In addition, this rule was

made available through the Internet by

the Office of the Federal Register. That

rule provided for a 60-day comment

period which ended March 5, 2001. No

comments were received.

A small business guide on complying

with fruit, vegetable, and specialty crop

marketing agreements and orders may

be viewed at the following website:

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

material presented, including the

Board’s recommendation, and other

information, it is found that the word

‘‘normal’’ in § 930.54(a) no longer tends

to effectuate the declared policy of the

Act and should be indefinitely

suspended. Accordingly, this action

finalizes the interim final rule, without

change, as published in the Federal

Register will tend to effectuate the

declared policy of the Act.

List of Subjects in 7 CFR Part 930

Marketing agreements, Reporting and

recordkeeping requirements, Tart

cherries.

PART 930—TART CHERRIES GROWN

IN THE STATES OF MICHIGAN, NEW

YORK, PENNSYLVANIA, OREGON,

UTAH, WASHINGTON, AND

WISCONSIN

Accordingly, the interim final rule

amending 7 CFR part 930 which was

published at 66 FR 229 on January 3,

2001, is adopted as a final rule without

change.

Dated: April 24, 2001.

Kenneth C. Clayton,

Acting Administrator, Agricultural Marketing

Service.

[FR Doc. 01–10661 Filed 4–27–01; 8:45 am]

BILLING CODE 3410–02–P

DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 930

[Docket No. FV01–930–1 FIR]

Tart Cherries Grown in the States of

Michigan, et al.; Decreased

Assessment Rates

AGENCY: Agricultural Marketing Service,

USDA.

ACTION: Final rule.

SUMMARY: The Department of

Agriculture (Department) is adopting, as

a final rule, without change, an interim

final rule which decreased the

assessment rate for cherries that are

utilized in the production of tart cherry

products other than juice, juice

concentrate, or puree from $0.0017 to

$0.0012 per pound. It also decreased the

assessment rate for cherries utilized for

juice, juice concentrate, or puree from

$0.00085 to $0.0006 per pound. Both

assessment rates were recommended by

the Cherry Industry Administrative

Board (Board) under Marketing Order

No. 930 for the 2000–2001 and

subsequent fiscal periods. The Board is

responsible for local administration of

the marketing order which regulates the

handling of tart cherries grown in the

production area. Authorization to assess

tart cherry handlers enables the Board to

incur expenses that are reasonable and

necessary to administer the program.

The fiscal period began July 1 and ends

June 30. The assessment rates continue

to remain in effect indefinitely unless

modified, suspended, or terminated.

EFFECTIVE DATE: May 30, 2001.

FOR FURTHER INFORMATION CONTACT:

Patricia A. Petrella or Kenneth G.

Johnson, Marketing Order

Administration Branch, Fruit and

Vegetable Programs, AMS, USDA, Suite

2A04, Unit 155, 4700 River Road,

Riverdale, MD 20737, telephone: (301)

734–5243, Fax: (301) 734–5275; or

George Kelhart, Technical Advisor,

Marketing Order Administration

Branch, Fruit and Vegetable Programs,

AMS, USDA, room 2525–S, P.O. Box

96456, Washington, DC 20090–6456;

telephone: (202) 720–2491, Fax: (202)

720–5698.

Small businesses may request

information on complying with this

regulation, 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, P.O. Box 96456, room

2525–S, Washington, DC 20090–6456;

telephone (202) 720–2491, Fax: (202)

720–5698, or E-mail:

Jay.Guerber@usda.gov.

SUPPLEMENTARY INFORMATION: This rule

is issued under Marketing Agreement

and Order No. 930 (7 CFR part 930),

regulating the handling of tart cherries

grown in the States of Michigan, New

York, Pennsylvania, Oregon, Utah,

Washington, and Wisconsin, hereinafter

referred to as the ‘‘order.’’ The

marketing agreement and order are

effective under the Agricultural

Marketing Agreement Act of 1937, as

amended (7 U.S.C. 601–674), hereinafter

referred to as the ‘‘Act.’’

The Department of Agriculture

(Department) is issuing this rule in

conformance with Executive Order

12866.

This rule has been reviewed under

Executive Order 12988, Civil Justice

Reform. Under the marketing order now

in effect, tart cherry handlers are subject

to assessments. Funds to administer the

order are derived from such