[Federal Register Volume 66, Number 225 (Wednesday, November 21, 2001)]
[Rules and Regulations]
[Pages 58356-58359]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-29111]


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DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 930

[Docket No. FV01-930-4 FR]


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: Final rule.

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SUMMARY: This rule temporarily suspends an order provision which 
requires a continuance referendum to be conducted on the marketing 
order for tart cherries during March 2002. The suspension will enable 
the U.S. Department of Agriculture (USDA) to postpone conducting the 
continuance referendum until the completion of

[[Page 58357]]

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.

EFFECTIVE DATE: This final rule becomes effective on December 21, 2001.

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 George J. Kelhart, 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) 720-9038.
    Small businesses may request information on complying 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) 720-8938, or E-mail: [email protected].

SUPPLEMENTARY INFORMATION: This final 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, Utah, 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 USDA 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 USDA 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 USDA 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 USDA'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 will 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 USDA 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 USDA to terminate or suspend the 
operation of any or all provisions of this part whenever USDA 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 
USDA, with a request for written comments. Next, USDA considers the 
evidence of record including any exceptions to the Recommended Decision 
and then issues a USDA Decision and, if warranted, a Referendum Order. 
A Referendum Order would be issued if USDA 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 USDA, 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. Those 
amendments were approved and published in the Federal Register on July 
10, 2001 (66 FR 35891). 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 refendum be temporarily suspended to allow USDA to complete 
the amendatory proceedings. The temporary suspension will allow USDA to 
postpone the next continuance referendum for the tart cherry marketing 
order until March 2003.
    Delaying the continuance referendum will allow for the completion 
of the amendatory proceedings and an evaluation by the completion of 
the amendatory proceedings and an evaluation by the industry of 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 
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 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 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

[[Page 58358]]

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 $750,000. The majority of handlers 
and producers of tart cherries may be classified as small entities.
    This rule temporarily suspends 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 
provision, the next continuance referendum is scheduled for March 2002. 
Section 930.83(b) authorizes USDA to terminate or suspend the operation 
of any or all of the provisions of this order whenever USDA finds that 
such provisions do not tend to effectuates the declared policy of the 
Act.
    One alternative to this action will be to continue the status quo. 
However, without a postponement of the continuance referendum, USDA 
will have to conduct two referenda closely together, for the second 
series of amendments and one for a continuance referendum. The problem 
with proceeding in this manner is that growers and processors will 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 will allow the amendments to be 
evaluated by growers and processors. Thus, the vote on continuance will 
be a more reliable determiner of industry support for the order.

Discussion of Comments

    A proposed rule concerning this action was published in the Federal 
Register on May 15, 2001 (66 FR 26813). Copies of the rule were mailed 
and sent via facsimile to all Board members and handlers. Finally, the 
rule was made available through the Internet by the Office of the 
Federal Register, and USDA. A 60-day comment period ending on July 16, 
2001, was provided to allow interested persons to respond to the 
proposal.
    Forty-three comments were received during the comment period in 
response to the proposal. Forty comments were received in opposition to 
the proposal and three comments favored the proposal. The comments 
received were mainly from growers.
    The three comments favoring the proposal strongly supported the 
proposed action. However, one supporter disagreed with the March 2003 
date for the continuance referendum. The commenter asserted that the 
industry should be allowed to operate a full season with the new 
amendments before the continuance referendum is held. The commenter 
stated that completion of the formal rulemaking process could extend 
into the 2002-2003 season and a referendum in March 2003 would not 
afford producers and processors the opportunity for a full season's 
review of the new amendments.
    One commenter opposed to the proposal stated that a continuance 
referendum provides a measurement of support and effectiveness of the 
order, and, therefore, should not be delayed until after any changes to 
the order are implemented. The commenter believes that the tart cherry 
industry should be allowed to vote whether or not it supports or 
disfavors the marketing order based on the order as it has been 
operating over the past five years, without regard to any amendatory 
proceedings.
    The other comments from growers in opposition to the proposal urged 
USDA not to suspend the continuance referendum pending completion of 
the amendatory proceedings. They contend that two important amendatory 
proposals have already been addressed. The first proposal involves 
subjecting production in all districts within the production area to 
volume regulation. With production shifts over the last few years, 
about 90 percent of the production would be subject to volume 
regulation during the 2001/2002 crop year. They believe that this lives 
up to the spirit of the proposed amendments to the order. The other 
important change allowing handlers to earn diversion credits for export 
sales of juice and juice concentrate was addressed by suspending order 
language through the informal rulemaking process.
    The Board has the authority to recommend necessary changes to the 
order and the administrative rules and regulations to address evolving 
industry operations and changing crop year circumstances. It is 
important for the Board to address changing industry conditions to keep 
the marketing order current. The USDA further recognizes the importance 
of continuance referenda in gauging the effectiveness and support for 
marketing orders within an industry.
    However, neither USDA nor the tart cherry industry can be certain 
which, if any, of the proposed amendments to the order will be 
approved. Because of this uncertainty, USDA believes it appropriate to 
complete the amendatory proceeding before holding a continuance 
referendum. The USDA anticipates issuing a recommended decision on the 
amendatory proposals in 2001. If warranted, a grower and processor 
referendum on the proposals would be held in the spring of 2002.
    Therefore, USDA has concluded that the temporary suspension should 
be issued and a continuance referendum should be conducted in March 
2003.
    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, USDA 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.
    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 matter presented, including the 
information and recommendation submitted by the Board, the comments 
received, and other available

[[Page 58359]]

information, it is hereby found that the provision temporarily 
suspended does not tend to effectuate the declared policy of the Act.

List of Subjects in 7 CFR Part 930

    Tart cherries, Marketing agreements, 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 part 930 continues to read as 
follows:

    Authority: 7 U.S.C. 601-674.


Sec. 930.83  [Suspended in part]

    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: November 15, 2001.
A. J. Yates,
Administrator, Agricultural Marketing Service.
[FR Doc. 01-29111 Filed 11-20-01; 8:45 am]
BILLING CODE 3410-02-M