[Federal Register Volume 74, Number 54 (Monday, March 23, 2009)]
[Rules and Regulations]
[Pages 12053-12055]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-6250]


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DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 930

[Docket No. AMS-FV-08-0066; FV08-930-2 FIR]


Tart Cherries Grown in the States of Michigan, et al.; Change to 
Fiscal Period

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Final rule.

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SUMMARY: The Department of Agriculture (USDA) is adopting, as a final 
rule, without change, an interim final rule changing the fiscal period 
prescribed under the tart cherry marketing order (order). The order 
regulates the handling of tart cherries grown in Michigan, New York, 
Pennsylvania, Oregon, Utah, Washington and Wisconsin and is 
administered locally by the Cherry Industry Administrative Board 
(Board). This rule continues in effect an action that changed the 
fiscal period from July 1 through June 30 to October 1 through 
September 30. This will improve the administration and the fiscal 
operation of the Board.

DATES: Effective date April 22, 2009.

FOR FURTHER INFORMATION CONTACT: Patricia A. Petrella or Kenneth G. 
Johnson, Marketing Order Administration Branch, F&V, AMS, USDA, Unit 
155, 4700 River Road, Riverdale, Maryland 20737, telephone: (301) 734-
5243; Fax: (301) 734-5275 or e-mail at [email protected] or 
[email protected].
    Small businesses may request information on complying with this 
regulation by contacting Jay Guerber, Marketing Order Administration 
Branch, Fruit and Vegetable Programs, AMS, USDA, 1400 Independence 
Avenue, SW., STOP 0237, Washington, DC 20250-0237; telephone: (202) 
720-2491; Fax: (202) 720-8938, 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,

[[Page 12054]]

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.''
    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 the date of 
the entry of the ruling.
    This rule continues in effect an action that changed the fiscal 
period from July 1 through June 30 to October 1 through September 30. 
This action was unanimously recommended by the Cherry Industry 
Administrative Board (Board) at its June 19, 2008 meeting.
    Section 930.7 of the order currently defines fiscal period as the 
12-month period beginning on July 1 of any year and ending on June 30 
of the following year or such other period as the Board, with approval 
of the Secretary, may establish.
    According to the Board, the July through June fiscal period is 
inconsistent with needs of the industry, the Board's changed 
activities, and its cash flow.
    The Board's and industry's activities have changed since the 
order's inception. Initially, the Board's activities consisted 
primarily of the administrative duties associated with the marketing 
order, and relatively moderate expenditures were incurred for that 
purpose. The Board and industry's focus has recently changed to include 
promotional activities, and annual expenditures have increased 
significantly. The majority of the Board's expenditures are now used on 
promotional activities. Changing the Board's fiscal period allows the 
Board to better coordinate with its promotion activites and to make its 
fiscal cycle consistent with its major program expenditures.
    In addition, changing the fiscal period brings the Board's 
collection of assessment revenues into line with program expenses. 
Handler assessments, which fund program expenses, are collected in 
October. This changed fiscal period thus enables the Board to receive 
its funding at the beginning of its fiscal period so the revenue to 
fund program expenses is available when needed. The Board believes it 
can increase its operational efficiency by making its fiscal period 
consistent with its promotional activities. An October through 
September fiscal period also brings revenue collection in line with 
funding needs of the program. Therefore, changing the fiscal period 
from July through June to October through September will improve the 
administration and fiscal operation of the Board.

Final Regulatory Flexibility Analysis

    Pursuant to requirements set forth in the Regulatory Flexibility 
Act (RFA) (5 U.S.C. 601-612), the Agricultural Marketing Service (AMS) 
has considered the economic impact of this action on small entities. 
Accordingly, AMS has prepared this final regulatory flexibility 
analysis.
    The purpose of the RFA is to fit regulatory actions to the scale of 
business subject to such actions in order that small businesses will 
not be unduly or disproportionately burdened. Marketing orders issued 
pursuant to the Act, and rules 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 900 producers of tart cherries in the regulated area. 
Small agricultural service firms are defined by the Small Business 
Administration (SBA) (13 CFR 121.201) as those having annual receipts 
of less than $7,000,000, and small agricultural producers are defined 
as those having annual receipts of less than $750,000.
    A majority of the producers and handlers are considered small 
entities under SBA's standards. There were 37 handlers operating during 
the 2007-2008 season, the last completed crop year. Eight of these 
handlers, representing 20.5 percent of all handlers and 69.3 percent of 
production, processed more than 10 million pounds of cherries. Six 
handlers, representing 15.4 percent of all handlers and 16.9 percent of 
production, processed more than 5 million pounds and less than 10 
million pounds of cherries. Seven handlers, representing 17.9 percent 
of all handlers and 9.6 percent of production, processed between 2.1 
and 5 million pounds of cherries. The 16 remaining handlers, 
representing 43.2 percent of all handlers and 4.1 percent of 
production, processed less than 2 million pounds of cherries. Handlers 
accounting for 10 million pounds or more cherries would be classified 
as large businesses. Thus, a majority of tart cherry handlers (79.5 
percent by number) could be classified as small entities.
    During the 3-year period 2005-2007, production of tart cherries 
averaged 259 million pounds. Dividing the total production by the 
average number of growers, the average grower produces about 386,000 
pounds of tart cherries annually. With grower returns of about 25 cents 
per pound, average annual revenues would be $96,497. At 25 cents per 
pound, a grower would have to produce 3 million pounds of tart cherries 
to reach the $750,000 receipt threshold to be classified as a large 
entity using the SBA definition for agricultural producers. According 
to Cherry Industry Administrative Board data, not more than 9 growers 
(1 percent of the average number of growers) produced 3 million pounds 
or more of tart cherries during the 2005-2007 crop years, and those 
growers would be classified as large. The remaining 99 percent of 
growers would be classified as small entities.
    This rule continues in effect an action that changed the fiscal 
period from July 1 through June 30 to October 1 through September 30. 
This action is administrative in nature and will have little impact on 
producers or handlers. It will allow the Board to increase its 
operational efficiency by making its fiscal period consistent with its 
promotional activities. It will also bring revenue collection in line 
with funding needs of the program. Continuing in effect the change to 
the fiscal period from July through June to October through September 
will improve the administration and fiscal operation of the Board.
    One alternative to this action would be to change the fiscal period 
back to July through June. However, this would not improve program 
administration

[[Page 12055]]

inconsistencies in the Board's fiscal operations.
    AMS is committed to complying with the E-Government Act, to promote 
the use of the internet and other information technologies to provide 
increased opportunities for citizen access to Government information 
and services, and for other purposes.
    This rule will not impose any 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, as noted in the initial 
regulatory flexibility analysis, USDA has not identified any relevant 
Federal rules that duplicate, overlap or conflict with this rule.
    Further, the Board's meeting was widely 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 19 members, of which 18 
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.
    An interim final concerning this action was published in the 
Federal Register on December 15, 2008 (73 FR 75927). Copies of the rule 
were mailed by the Board's staff to all Board members, producers, 
handlers, and other interested persons. In addition, the rule was made 
available through the Internet by USDA and the Office of the Federal 
Register. That rule provided a 60-day comment period which ended 
February 13, 2009. 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 Web site: http://www.ams.usda.gov/AMSv1.0/ams.fetchTemplateData.do?template=TemplateN&page=MarketingOrdersSmallBusinessGuide. 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 hereby found 
that this rule as hereinafter set forth, will 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.

0
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

0
Accordingly, the interim final rule amending 7 CFR 930, which was 
published at 73 FR 75927 on December 15, 2008, is adopted as a final 
rule without change.

    Dated: March 18, 2009.
Craig Morris,
Acting Associate Administrator.
[FR Doc. E9-6250 Filed 3-20-09; 8:45 am]
BILLING CODE 3410-02-P