[Federal Register Volume 75, Number 181 (Monday, September 20, 2010)]
[Rules and Regulations]
[Pages 57161-57163]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-23336]
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Rules and Regulations
Federal Register
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Federal Register / Vol. 75, No. 181 / Monday, September 20, 2010 /
Rules and Regulations
[[Page 57161]]
DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Part 930
[Doc. No. AMS-FV-10-0029; FV10-930-2 FR]
Tart Cherries Grown in the States of Michigan, et al.; Increased
Assessment Rate for the 2010-2011 Crop Year for Tart Cherries
AGENCY: Agricultural Marketing Service, USDA.
ACTION: Final rule.
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SUMMARY: This rule increases the assessment rate established for the
Cherry Industry Administrative Board (Board) for the 2010-2011 fiscal
period from $0.0066 to $0.0075 per pound of assessable tart cherries.
The Board locally administers the marketing order which regulates the
handling of tart cherries grown in Michigan, New York, Oregon,
Pennsylvania, Utah, Washington, and Wisconsin. Assessments upon tart
cherry handlers are used by the Board to fund reasonable and necessary
expenses of the program. The 2010-2011 fiscal period year begins
October 1, 2010. The assessment rate will remain in effect indefinitely
unless modified, suspended, or terminated.
DATES: Effective Date: September 21, 2010.
FOR FURTHER INFORMATION CONTACT: Kenneth G. Johnson, DC Marketing Field
Office, Marketing Order Administration Branch, Fruit and Vegetable
Programs, AMS, USDA; Telephone: (301) 734-5243, Fax: (301) 734-5275; E-
mail: [email protected].
Small businesses may request information on complying with this
regulation by contacting Antoinette Carter, 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
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 (USDA) 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,
tart cherry handlers are subject to assessments. Funds to administer
the order are derived from such assessments. It is intended that the
assessment rate as issued herein will be applicable to all assessable
tart cherries beginning October 1, 2010, and continue until amended,
suspended, or terminated.
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 exempt therefrom. Such
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 increases the assessment rate established for the Board
for the 2010-2011 and subsequent fiscal periods from $0.0066 to $0.0075
per pound of assessable tart cherries. The 2010-2011 fiscal period
begins on October 1, 2010, and ends on September 30, 2011.
The tart cherry marketing order provides authority for the Board,
with the approval of USDA, to formulate an annual budget of expenses
and collect assessments from handlers to administer the program. The
members of the Board are producers and handlers of tart cherries. They
are familiar with the Board's needs and with the costs for goods and
services in their local area and are thus in a position to formulate an
appropriate budget and assessment rate. The assessment rate is
formulated and discussed in a public meeting. Thus, all directly
affected persons have an opportunity to participate and provide input.
Authority to fix the rate of assessment to be paid by each handler
and for the Board to collect such assessments appears in Sec. 930.41
of the order. That section also provides that each part of an
assessment rate intended to cover administrative costs and research and
promotional costs be identified. Section 930.48 of the order provides
that the Board, with the approval of the USDA, may establish or provide
for the establishment of production research, market research and
development, and/or promotional activities designed to assist, improve,
or promote the marketing, distribution, consumption, or efficient
production of cherries. The expense of such projects is paid from funds
collected pursuant to Sec. 930.41 (Assessments), or from such other
funds as approved by the USDA.
For the 2006-2007 fiscal year, the Board recommended, and USDA
approved, an assessment rate of $0.0066 per pound of tart cherries
handled that would continue in effect from fiscal period to fiscal
period unless modified, suspended, or terminated by USDA upon
recommendation and information submitted by the Board or other
information available to USDA.
The Board met on January 26, 2010, and recommended 2010-2011
expenditures of $1,665,000 and an assessment rate of $0.0075 per pound
of tart cherries. The Board's recommendation was unanimous. In
comparison, last year's budgeted expenses were $1,558,900. The Board
recommended that the assessment rate be increased to cover increases in
administrative expenses. The assessment rate has not been increased
[[Page 57162]]
in four years. The current assessment rate to cover administrative
costs is $0.0016. The increase will raise the assessment rate for
administrative expenses to $0.0025. In addition, a portion of the
assessment rate ($0.005 per pound of cherries) will continue to fund
the Board's research and promotion program. The total assessment rate
for 2010-2011 and beyond will be $0.0075, an increase of approximately
14 percent over the current rate of $0.0066.
The major expenditures recommended by the Board for the 2010-2011
year include $1,150,000 for promotion, $213,000 for personnel, $109,000
for compliance, $102,000 for office expenses, $86,000 for Board
meetings, and $5,000 for industry educational efforts. Budgeted
expenses for major items in 2009-2010 were $1,150,000 for promotion,
$175,900 for personnel, $92,800 for Board meetings, $44,200 for
compliance, $58,400 for office expenses, and $2,500 for industry
educational efforts, respectively.
In deriving the recommended assessment rate, the Board estimated
assessable tart cherry production for the fiscal period at 230 million
pounds. Therefore, total assessment income for 2010-2011 is estimated
at $1,725,000 (230 million pounds x $0.0075). This will be adequate to
cover budgeted expenses. Any excess funds will be placed in the
financial reserve, which is estimated to be $267,000, well within the
approximately six months' operating expenses as required by Sec.
930.42(a).
The assessment rate established in this rule will continue in
effect indefinitely unless modified, suspended, or terminated by USDA
upon recommendation and information submitted by the Board or other
available information.
Although the assessment rate will be effective for an indefinite
period, the Board will continue to meet prior to or during each fiscal
period to recommend a budget of expenses and consider recommendations
for modification of the assessment rate. The dates and times of Board
meetings are available from the Board or the USDA. Board meetings are
open to the public and interested persons may express their views at
these meetings. USDA will evaluate Board recommendations and other
available information to determine whether modification of the
assessment rate is needed. Further rulemaking will be undertaken as
necessary. The Board's 2010-2011 budget and those for subsequent fiscal
periods will be reviewed and, as appropriate, approved by the USDA.
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.
There are approximately 40 handlers of tart cherries who are
subject to regulation under the tart cherry marketing order and
approximately 600 producers of tart cherries in the regulated area.
Small agricultural service firms, which includes handlers, have been
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.
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 1997/98 through 2008/09, approximately 96 percent of
the U.S. tart cherry crop, or 244.4 million pounds, was processed
annually. Of the 244.4 million pounds of tart cherries processed, 61
percent was frozen, 27 percent was canned, and 12 percent was utilized
for juice and other products.
Based on National Agricultural Statistics Service data, acreage in
the United States devoted to tart cherry production has been trending
downward. Bearing acreage has declined from a high of 50,050 acres in
1987/88 to 34,650 acres in 2008/09. This represents a 31 percent
decrease in total bearing acres. Michigan leads the nation in tart
cherry acreage with 70 percent of the total and produces about 75
percent of the U.S. tart cherry crop each year.
This rule increases the assessment rate established for the Board
for the 2010-2011 and subsequent fiscal periods from $0.0066 to $0.0075
per pound of assessable tart cherries. The 2010-2011 fiscal period
begins on October 1, 2010, and ends on September 30, 2011.
The Board discussed continuing the existing assessment rate, but
concluded that the rate needed to be increased in order to meet
recommended expenses. The assessment rate has not been increased for
four years.
A review of preliminary information pertaining to the upcoming
fiscal period indicates that the grower price for tart cherries for the
2010-2011 season could range between $0.15 and $0.20 per pound.
Therefore, the estimated assessment revenue for the 2010-2011 fiscal
period is expected to range between 3.75 and 5 percent of grower
revenue.
This action increases the assessment obligation imposed on
handlers. While assessments impose some additional costs on handlers,
the costs are minimal and uniform on all handlers. Some of the
additional costs may be passed on to producers. However, these costs
will be offset by the benefits derived by the operation of the
marketing order. In addition, the Board's meeting was widely publicized
throughout the tart cherry industry and all interested persons were
invited to attend the meeting and participate in Board deliberations on
all issues. Like all Board meetings, all entities, both large and
small, were able to express views on this issue. Finally, interested
persons are invited to submit information on the regulatory and
informational impacts of this action on small businesses.
This rule will impose 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. As noted in the initial regulatory
flexibility analysis, USDA has not identified any relevant Federal
rules that duplicate, overlap, or conflict with this final rule.
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.
A proposed rule concerning this action was published in the Federal
Register on May 27, 2010 (75 FR 29684). Copies of the proposed rule
were also mailed or sent via facsimile to all tart cherry handlers.
Finally, the proposal was made available through the Internet by USDA
and the Office of the Federal Register. A 60-day comment period ending
July 26, 2010, was provided for interested persons to respond to the
proposal. No comments were received.
[[Page 57163]]
A small business guide on complying with fruit, vegetable, and
specialty crop marketing agreements and orders may be viewed at: http://www.ams.usda.gov/AMSv1.0/ams.fetchTemplateData.do?template=TemplateN&page=MarketingOrdersSmallBusinessGuide. Any questions about the compliance guide should be sent to
Antoinette Carter at the previously mentioned address in the FOR
FURTHER INFORMATION CONTACT section.
After consideration of all relevant material 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.
Pursuant to 5 U.S.C. 553, it is also found and determined that good
cause exists for not postponing the effective date of this rule until
30 days after publication in the Federal Register because the 2010-2011
fiscal period begins October 1, 2010, and the marketing order requires
that the rate of assessment for each fiscal period apply to all
assessable tart cherries handled during such fiscal period and the
Board incurs expenses on a continuing basis. Further, handlers are
aware of this action which was unanimously recommended by the Board at
a public meeting. Also, a 60-day comment period was provided for the
proposed rule.
List of Subjects in 7 CFR Part 930
Marketing agreements, Reporting and recordkeeping requirements,
Tart cherries.
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
1. The authority citation for 7 CFR part 930 continues to read as
follows:
Authority: 7 U.S.C. 601-674.
0
2. Section 930.200 is revised to read as follows:
Sec. 930.200 Assessment rate.
On and after October 1, 2010, the assessment rate imposed on
handlers shall be $0.0075 per pound of tart cherries grown in the
production area and utilized in the production of tart cherry products.
Included in this rate is $0.005 per pound of cherries to cover the cost
of the research and promotion program and $0.0025 per pound of cherries
to cover administrative expenses.
Dated: September 13, 2010.
David R. Shipman,
Acting Administrator, Agricultural Marketing Service.
[FR Doc. 2010-23336 Filed 9-17-10; 8:45 am]
BILLING CODE 3410-02-P