[Federal Register Volume 66, Number 94 (Tuesday, May 15, 2001)]
[Proposed Rules]
[Pages 26813-26815]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-12139]


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DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 930

[Docket No. FV01-930-4 PR]


Tart Cherries Grown in the States of Michigan, et al.; Temporary 
Suspension of a Provision Regarding a Continuance Referendum Under the 
Tart Cherry Marketing Order

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Proposed rule.

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SUMMARY: This proposed rule requests comments on the temporary 
suspension of an order provision which requires a continuance 
referendum to be conducted on the marketing order for tart cherries 
during March 2002. The proposed suspension would enable the U.S. 
Department of Agriculture (USDA or Department) to postpone conducting 
the continuance referendum until the completion of amendatory order 
proceedings. The Cherry Industry Administrative Board (Board) 
recommended a delay in holding the continuance referendum to allow the 
industry to evaluate the results of any approved amendments. A 
continuance

[[Page 26814]]

referendum in March of 2003 is planned.

DATES: Comments must be received by July 16, 2001.

ADDRESSES: Interested persons are invited to submit written comments 
concerning this action. Comments must be sent to the Docket Clerk, 
Fruit and Vegetable Programs, AMS, USDA, Room 2525-S, P.O. Box 96456, 
Washington, DC 20090-6456. Fax: (202) 720-5698 or E-mail: 
[email protected]. 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, or can be viewed at 
the following website: http://www.ams.usda.gov/fv/moab.html.

FOR FURTHER INFORMATION CONTACT: Patricia A. Petrella or Kenneth G. 
Johnson, Marketing Order Administration Branch, F&V, AMS, USDA, Suite 
2A04, Unit 155, 4700 River Road, Riverdale, Maryland, 20737, telephone: 
(301) 734-5243; Fax: (301) 734-5275; or Anne M. Dec, 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 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: [email protected].

SUPPLEMENTARY INFORMATION: This rule is issued under Marketing Order 
No. 930 (7 CFR part 930) (order) regulating the handling of tart 
cherries grown in the States of Michigan, New York, Pennsylvania, 
Oregon, Washington, and Wisconsin. 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 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. 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 date of the entry of the ruling.
    This action would temporarily suspend the provision in 
Sec. 930.83(d) of the order which specifies when a continuance 
referendum should be conducted to determine if producers and processors 
favor continuance of the tart cherry marketing order. This action was 
unanimously recommended by the Committee at its January 25, 2001, 
meeting.
    Section 930.83(d) of the order currently provides that the 
Secretary shall conduct a referendum within the month of March every 
six years after the order became effective to ascertain whether 
continuance of the order is favored by tart cherry producers and 
processors. The order became effective in September 1996. A continuance 
referendum is, therefore, scheduled to be conducted in March 2002.
    Section 930.83(b) authorizes the Secretary to terminate or suspend 
the operation of any or all provisions of this part whenever the 
Secretary finds that such provisions do not tend to effectuate the 
declared policy of the Act.
    In 1998, the Board recommended several proposed amendments to the 
tart cherry marketing order to improve the administration of the order 
and more accurately reflect how the program is operated. It also 
requested that public hearings be held on the proposed amendments. The 
amendatory process can be lengthy depending on the complexity of the 
amendments and the level of support for the amendments.
    Under the applicable rules of practice (7 CFR part 900), the 
amendment process consists of several steps. The first step is the 
public hearing at which evidence (pro and con) is presented on the 
recommended amendments. After the public hearings are completed, a 
Recommended Decision, based on the evidence presented, is issued by the 
Department, with a request for written comments. Next, the Department 
considers the evidence of record including any exceptions to the 
Recommended Decision and then issues a Secretary's Decision and, if 
warranted, a Referendum Order. A Referendum Order would be issued if 
the Secretary determines that the amendments to the order would tend to 
effectuate the declared policy of the Act.
    Initially, the Board intended to proceed with all of its proposed 
amendments in a single amendatory proceeding. However, after discussion 
with the Department, the Board agreed to split its proposed amendments 
to the order into two proceedings. The less complex amendments were 
handled first followed by the more complex amendments. An amendment 
referendum for the first series of amendments was held in January 2001. 
The formal rulemaking process for the second series of amendments, has 
begun, and is expected to be completed in the spring of 2002.
    The Board recommended that the provision requiring the March 2002 
continuance referendum be temporarily suspended to allow the Department 
to complete the amendatory proceedings. The temporary suspension would 
allow the Department to postpone the next continuance referendum for 
the tart cherry marketing order until March 2003.
    Delaying the continuance referendum would allow for the completion 
of the amendatory proceedings and an evaluation by the industry an any 
approved amendments at least a year before producers and processors are 
asked to vote on continuing the order. A later continuance referendum 
should be a better indicator of the support for the order.

The Regulatory Flexibility Act and Effects on Small Businesses

    The Agricultural Marketing Service (AMS) has considered the 
economic impact of this action on small entities and has prepared this 
initial regulatory flexibility analysis. The Regulatory Flexibility Act 
(RFA) would allow AMS to certify that regulations do not have a 
significant economic impact on a substantial number of small entities. 
However, as a matter of general policy, AMS' Fruit and Vegetable 
Programs (Programs) no longer opt for such certification, but rather 
perform regulatory flexibility analyses for any rulemaking that would 
generate the interest of a significant number of small entities. 
Performing such analyses shifts the Programs' efforts from determining 
whether regulatory flexibility analyses are required to the 
consideration of

[[Page 26815]]

regulatory options and economic 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 40 handlers of tart cherries who are 
subject to regulation under the order and approximately 900 producers 
of tart cherries in the regulated area. Small agricultural service 
firms, which include handlers, have been defined by the Small Business 
Administration (13 CFR 121.201) 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.
    This proposed rule would temporarily suspend the provision in 
Sec. 930.83(d) of the order which specifies the month in which a 
continuance referendum should be conducted to determine if producers 
and processors favor the continuance of the tart cherry marketing 
order. Pursuant to this, the next continuance referendum is scheduled 
for March 2002. Section 930.83(b) authorizes the Secretary to terminate 
or suspend the operation of any or all of the provisions of this part 
whenever the Secretary finds that such provisions do not tend to 
effectuate the declared policy of the Act.
    One alternative to this action would be to continue the status quo. 
However, without a postponement of the continuance referendum, the 
Department would have to conduct two referenda closely together, one 
for the second series of amendments and one for a continuance 
referendum. This could be confusing to growers and processors. Further, 
growers and processors would not have had time to determine how any 
amendments that are adopted could affect order operations and evaluate 
the results. A temporary delay in holding the continuance referendum 
until March 2003 would allow the amendments to be evaluated by growers 
and processors. Thus, the vote on continuance would be a more reliable 
determiner of industry support for the order.
    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. 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.
    The Board's 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 are invited to submit information on 
the regulatory and informational impacts of this action on small 
businesses.
    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.
    A 60-day comment period is provided to allow interested persons to 
respond to this proposal. All written comments timely received will be 
considered before a final determination is made on this matter.

List of Subjects in 7 CFR Part 929

    Tart cherries, Marketing agreements, Reporting and recordkeeping 
requirements.

    For the reasons set forth in the preamble, 7 CFR Part 930 is 
proposed to be amended as follows:

PART 930--TART CHERRIES GROWN IN THE STATES OF MICHIGAN, NEW YORK, 
PENNSYLVANIA, OREGON, UTAH, WASHINGTON, AND WISCONSIN

    1. The authority citation for 7 CFR Part 930 continues to read as 
follows:

    Authority: Secs. 1-19, 48 Stat. 31, as amended; 7 U.S.C. 601-
674.


Sec. 930.83  [Amended]

    2. In paragraph (d), the sentence ``The Secretary shall conduct a 
referendum within the month of March of every sixth year after the 
effective date of this part to ascertain whether continuation of this 
part is favored by the growers and processors.'' is suspended effective 
March 1 through March 31, 2002.

    Dated: May 9, 2001.
Kenneth C. Clayton,
Acting Administrator, Agricultural Marketing Service.
[FR Doc. 01-12139 Filed 5-14-01; 8:45 am]
BILLING CODE 3410-02-P