[Federal Register Volume 63, Number 80 (Monday, April 27, 1998)]
[Rules and Regulations]
[Pages 20522-20528]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-11023]
-----------------------------------------------------------------------
DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Part 930
[Docket No. FV97-930-6 FR]
Tart Cherries Grown in the States of Michigan, et al.; Final Free
and Restricted Percentages for the 1997-98 Crop Year for Tart Cherries
AGENCY: Agricultural Marketing Service, USDA.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This final rule establishes final free and restricted
percentages for the 1997-98 crop year. The percentages are 55 percent
free and 45 percent restricted. These percentages establish the
proportion of cherries from the 1997 crop which may be handled in
normal commercial outlets and are intended to stabilize supplies and
prices, and strengthen market conditions. The percentages were
recommended by the Cherry Industry Administrative Board (Board), the
body which locally administers the marketing order. The marketing order
regulates the handling of tart cherries grown in the States of
Michigan, New York, Pennsylvania, Oregon, Utah, Washington, and
Wisconsin.
EFFECTIVE DATE: April 28, 1998 through June 30, 1998, and applies to
all tart cherries handled from the beginning of the 1997-98 crop year.
FOR FURTHER INFORMATION CONTACT: Patricia A. Petrella or Kenneth G.
Johnson, 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. 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.
SUPPLEMENTARY INFORMATION: This final rule is issued under marketing
[[Page 20523]]
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 (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 provisions now in effect,
final free and restricted percentages may be established for tart
cherries handled by handlers during the crop year. This rule
establishes final free and restricted percentages for tart cherries for
the 1997-98 crop year, beginning July 1, 1997, through June 30, 1998.
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 requesting 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, 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 in equity 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 prescribes procedures for computing an optimum supply and
preliminary and final percentages that establish the amount of tart
cherries that can be marketed throughout the season. The regulations
apply to all handlers of tart cherries that are in the regulated
districts. Tart cherries in the free percentage category may be shipped
to any market, while restricted percentage tart cherries must be held
by handlers in a primary or secondary reserve, or be diverted in
accordance with section 930.59 or used for exempt purposes under
section 930.62. The regulated Districts for this season are: District
one--Northern Michigan; District two--Central Michigan; District four--
New York; and District seven--Utah. Districts three, five, six, eight
and nine (Southwest Michigan, Oregon, Pennsylvania, Washington, and
Wisconsin, respectively) are not regulated for the 1997-98 season.
The order prescribes under section 930.52 that upon adoption of the
order, those districts to be regulated shall be those districts in
which the average annual production of cherries over the prior three
years has exceeded 15 million pounds. Handlers not meeting the 15
million pound requirement shall not be regulated in such crop year.
Therefore, for this season, handlers in the districts of Oregon,
Pennsylvania, Washington, and Wisconsin are not subject to volume
regulation. In addition, Southwest Michigan handlers are not subject to
volume regulation this season because the estimated production fell
below 50 percent of the average annual processed production in that
district in the previous five years. Southwest Michigan's tart cherry
production was subjected to a freeze during early bud development that
reduced its crop yield for the 1997-1998 crop year.
Section 930.50(a) describes procedures for computing an optimum
supply for each crop year. The Board must meet on or about July 1 of
each crop year, to review sales data, inventory data, current crop
forecasts and market conditions. The optimum supply volume is
calculated as 100 percent of the average sales of the prior three years
to which is added a desirable carryout inventory not to exceed 20
million pounds. The optimum supply represents the desirable volume of
tart cherries that should be available for sale in the coming crop
year.
The order also provides that on or about July 1 of each crop year,
the Board is required to establish preliminary free and restricted
percentages. These percentages are computed by deducting the carryin
inventory from the optimum supply figure (adjusted to raw product
equivalent--the actual weight of cherries handled to process into
cherry products) and dividing that figure by the current year's USDA
crop forecast. The carryin inventory figure reflects the amount of
cherries that handlers actually have in inventory. If the resulting
quotient is 100 percent or more, the Board should establish a
preliminary free market tonnage percentage of 100 percent. If the
quotient is less than 100 percent, the Board should establish a
preliminary free market tonnage percentage equivalent to the quotient,
rounded to the nearest whole percent, with the complement being the
preliminary restricted percentage.
The Board met on June 26-27, 1997, and computed, for the 1997-98
crop year, an optimum supply of 247 million pounds. This number was
calculated by using 270 million pounds for the average three year sales
figure and subtracting 23 million pounds for exports that could have
received diversion credit. The Board recommended that the carryout
figure be zero pounds. Also at the June 26-27 meeting, the Board
established preliminary free and restricted percentages. The Board
calculated the preliminary free and restricted percentages as follows:
The USDA estimate of the crop was 242 million pounds; a 70 million
pound carryin added to that equaled a total available supply of 312
million pounds. The optimum supply was subtracted from the total
estimated available supply resulting in a surplus of 65 million pounds
of tart cherries. The surplus was divided by the production in the
regulated districts and resulted in 66 percent free and 34 percent
restricted for the 1997-98 season. The Board recommended these
percentages by a 17 to 1 vote. No reason was provided for the one
dissenting vote. No rulemaking was necessary at that time. The Board
recommended the percentages and announced them to the industry as
required by the order.
The preliminary percentages were based on the USDA production
estimate and the following supply and demand information for the 1997-
98 crop year:
------------------------------------------------------------------------
Millions of
pounds
------------------------------------------------------------------------
Optimum supply formula:
(1) Average sales of the prior three years ........... 270
(2) Plus carryout......................... ........... 0
(3) Less amount for exports that would
have received diversion credit........... ........... 23
(4) Optimum Supply calculated by the Board
at the June meeting...................... ........... 247
[[Page 20524]]
Preliminary percentages:
(5) Less carryin as of July 1, 1997....... ........... 70
(6) Tonnage requirement for current crop
year..................................... ........... 177
(7) USDA crop estimate.................... ........... 242
(8) Estimated restricted percentage
tonnage (item 7 minus item 6)............ ........... 65
(9) USDA crop estimate for regulated
districts................................ ........... 192
Percentages............................... Free Restricted
(10) Preliminary percentages (item 8
divided by item 9) x 100............... 66 34
------------------------------------------------------------------------
The Board may adjust the estimated crop production as the actual
pack is realized and interim percentages may be announced between July
1 and September 15 of the crop year.
Section 930.50(d) of the order requires the Board to meet no later
than September 15 to recommend final free and restricted percentages to
the Secretary for approval. The Board met on September 11-12, 1997, and
recommended final free and restricted percentages of 55 and 45,
respectively. The Board recommended that the interim percentages and
final percentages be the same percentages. At that time, the Board had
available actual production amounts to review and made the necessary
adjustments to the percentages.
The Secretary establishes final free and restricted percentages
through an informal rulemaking process. These percentages would make
available the tart cherries necessary to achieve the optimum supply
figure calculated earlier by the industry. The difference between any
final free market tonnage percentage designated by the Secretary and
100 percent is the final restricted percentage.
The Board used a revised optimum supply figure of 270 million
pounds for its final percentage calculations because it was determined
that exports of 23 million pounds should not have been deducted from
the average sales figure. At its March 1997 meeting, the Board had
recommended that the Department modify the average sales under the
optimum supply formula by deducting exports from the figure. The
Department did not proceed with that recommendation since the
promulgation record shows that average sales, as defined in the order,
includes sales to all markets, including exports.
The optimum supply, therefore was 270 million pounds. The actual
production recorded by the Board was 284 million pounds, a 42 million
pound increase from the USDA crop estimate. The increase in the crop is
due to very favorable growing conditions in portions of the State of
Michigan this season.
A 70 million pound carryin was subtracted from the optimum supply,
which yields a tonnage requirement for the current crop year of 200
million pounds. Subtracted from the actual production of 284 million
pounds reported by the Board is the tonnage required for the current
crop year (200 million pounds) which results in an 84 million pound
surplus. An adjustment for changed economic conditions of 23 million
pounds was added to the surplus, pursuant to section 930.50(f). This
adjustment is discussed later in this document. This yielded a total
surplus of 107 million pounds of tart cherries. The free and restricted
percentages would only apply to those handlers in regulated districts.
Therefore, the percentages would be calculated by dividing the
restricted tonnage volume by the regulated districts' production. The
total surplus of 107 million pounds is divided by the 239 million pound
volume of tart cherries produced in the regulated districts. This
results in a 45 percent restricted percentage and a corresponding 55
percent free percentage for the regulated districts.
Section 930.51(d) of the order provides that handlers should have a
grace period of up to 30 days to establish their inventory reserves
after final percentages have been established. Therefore, handlers have
30 days after the effective date of this rule to comply with the 45
percent restricted obligation requirement.
The final percentages are based on the Board's reported production
figures and the following supply and demand information for the 1997-98
crop year:
------------------------------------------------------------------------
Millions of
pounds
------------------------------------------------------------------------
Optimum supply formula:
(1) Average sales of the prior three years ........... 270
(2) Plus carryout......................... ........... 0
(3) Optimum Supply calculated by the Board
at the September meeting................. ........... 270
Final percentages:
(4) Less carryin as of July 1, 1997....... ........... 70
(5) Tonnage required current crop year.... ........... 200
(6) Board reported production............. ........... 284
(7) Surplus (item 6 minus item 5)......... ........... 84
(8) Economic adjustment to surplus........ ........... 23
(9) Adjusted surplus (item 7 plus item 8). ........... 107
(10) Production in regulated districts.... ........... 239
Percentages Free Restricted
(11) Final Percentages (item 9 divided by
item 10) x 100........................... 55 45
------------------------------------------------------------------------
As previously mentioned, the Board had made an earlier
recommendation to modify the optimum supply formula by defining average
sales to not include exports that were granted diversion credit. It was
determined that exports
[[Page 20525]]
should not have been excluded. Thus, the Board was unable to make the
23 million pound adjustment this season in the optimum supply. The
Board thus recommended at its September meeting that the marketing
policy be modified due to changes in economic conditions as specified
under section 930.50(e)(5) and (7) and (f). Specifically, the Board
recommended that the proviso in Sec. 930.59(b) of the order be
suspended for the 1997-98 year only and that diversion credit for
exports of juice and juice concentrate be allowed for the 1997-98 crop
year.
Also, at its meeting in March 1997, the Board recommended that
handler exports of cherry products, including juice and juice
concentrate, to countries other than Canada, Mexico, and Japan, receive
diversion credit. During the production and processing of the crop,
handlers have exported, or have contracted to export, tart cherry
products, including juice or juice concentrate, and were operating
under the impression that they could apply for and receive, diversion
credit for such sales. Many of these exports were for the purpose of
expanding existing markets or developing new markets. This issue was
further addressed in a separate rulemaking action (see 63 FR 399,
January 6, 1998).
By recommending the marketing policy modification, the Board
believed that it would provide stability to the marketplace and the
industry would be in a better situation for future years since new
markets will have been developed. Board members discussed at that
meeting that, if this adjustment is not made, growers could be paid
less than their production costs, because handlers could suffer
financial losses that would be passed on to growers. Handlers would
have to meet their reserve obligations by other means. In addition, the
value of cherries already in inventory could be depressed by 20 to 50
percent due to the abundant supply of available cherries, a result
inconsistent with the intent of the order and the Act.
The changes in economic conditions that justified the recommended
marketing policy modification are as follows: (1) The determination
that export sales could not be removed from the optimum supply formula
calculation was made late in the season; (2) handlers had made
marketing plans, sales and sales commitments (including exports) based
on the Board's recommendations made in March and June; and (3) prices
received for tart cherries and tart cherry products could be severely
impacted by an additional large volume of cherries being made available
to the market when there is already an abundant supply of cherries.
The Department's ``Guidelines for Fruit, Vegetable, and Specialty
Crop Marketing Orders'' specify that 110 percent of recent years' sales
should be made available to primary markets each season before
recommendations for volume regulation are approved. This goal is met by
the establishment of a final percentage which releases 100 percent of
the optimum supply and the additional release of tart cherries provided
under section 930.50(g). This release of tonnage, equal to 10 percent
of the average sales of the prior three years sales, is made available
to handlers each season. The Board recommended that such release shall
be made available to handlers the first week of December and the first
week of May. Handlers can decide how much of the 10 percent release
they would like to receive during the December and May release dates.
Once released, such cherries are released for free use by such handler.
Approximately 27 million pounds will be made available to handlers this
season in accordance with Department Guidelines. This release would be
made available to every handler and released to such handler in
proportion to its percentage of the total regulated crop handled. If
such handler does not take such handler's proportionate amount, such
amount shall remain in the inventory reserve.
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) 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 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 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 1,220 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 121.601) 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.
Board and subcommittee meetings are publicized in advance and are
held in a location central to the production area. The meetings are
open to all industry members (including small business entities) and
other interested persons--who are encouraged to participate in the
deliberations and voice their opinions on topics under discussion.
Thus, Board recommendations usually represent the interests of both
small and large business entities in the industry.
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 1993/94 through 1996/97, approximately 94 percent of
the U.S. tart cherry crop, or 285.7 million pounds, was processed
annually. Of the 285.7 million pounds of tart cherries processed, 63
percent was frozen, 32 percent canned and 3 percent utilized for juice.
The remaining 2 percent was dried or assembled into juice packs.
Based on National Agricultural Statistics Service data, acreage in
the United States devoted to tart cherry production has been trending
downward since the 1991/92 season. In the ten-year period, 1986/87
through 1996/97, tart cherry area decreased from 48,180 acres, to less
than 42,000 acres. Approximately 78 percent of domestic tart cherry
acreage is located in four States: Michigan, New York, Utah and
Wisconsin. Michigan leads the nation in tart cherry acreage with 65
percent of the total. Michigan produces about 72 percent of the U.S.
tart cherry crop each year. In 1996/97, tart cherry acreage in Michigan
was down 2,700 acres, to 27,300.
In crop years 1986 through 1993, tart cherry production ranged from
a high of 359 million pounds in 1987 to a low of 189.9 million pounds
in 1991. The price per pound to tart cherry growers ranged from a low
of 7.3 cents in 1987 to a high of 46.4 cents in 1991. These problems of
[[Page 20526]]
wide supply and price fluctuation in the tart cherry industry are
national in scope and impact. Growers testified during the order
promulgation process that the average prices of 12 to 17 cents per
pound which they received during this period did not come close to
covering the costs of production for the vast majority of tart cherry
growers. They also testified that production costs for most growers
range between 20 and 22 cents per pound, which is well above average
prices received.
As previously stated, this is the first year of operation for this
marketing order. The industry demonstrated a need for such order during
the promulgation process because large variations in annual tart cherry
supplies tend to lead to disorderly marketing. As a result of these
fluctuations in supply and price, growers receive less income for their
tart cherries. The industry, therefore, chose a volume control
marketing order to even out these wide variations in supply and improve
returns to growers. During the promulgation process, proponents
testified that small growers and processors would have the most to gain
from implementation of a marketing order because many such growers and
handlers have been going out of business over most of the last eight
years due to low tart cherry prices. They also testified that, since an
order would help increase grower returns, this should increase the
buffer between business success and failure because small growers and
handlers tend to be less capitalized than larger growers and handlers.
In discussing the possibility of marketing percentages for the
1997-98 crop year, the Board considered: (1) The estimated total
production of tart cherries; (2) the estimated size of the crop to be
handled; (3) the expected general quality of such cherry production;
(4) the expected carryover as of July 1 of canned and frozen cherries
and other cherry products; (5) the expected demand conditions for
cherries in different market segments; (6) supplies of competing
commodities; (7) an analysis of economic factors having a bearing on
the marketing of cherries; (8) the estimated tonnage held by handlers
in primary or secondary inventory reserves; and (9) any estimated
release of primary or secondary inventory reserve cherries during the
crop year.
The Board's review of the factors resulted in the computation and
announcement in July 1997 of preliminary free and restricted
percentages, and subsequent recommendation of interim and final
percentages at its September meeting.
The Board recognized that the demand for tart cherries is inelastic
at high and low levels of production. At the extremes, different
factors become operational. The promulgation record states that in very
short crops there is limited but sufficient exclusive demand for
cherries that can cause processor prices to double and grower prices to
triple. In the event of large crops, there seems to be no price low
enough to expand tart cherry sales in the marketplace sufficient to
market the crops.
The Board discussed alternatives to this recommendation. The Board
discussed the feasibility of not having volume regulation this season.
However, it was the Board's overall feeling that no volume regulation
would be detrimental to the tart cherry industry. Returns to growers
would probably not cover their production costs for this season.
The Board also discussed not granting exemptions, and diversion
credit for such exemptions, for exports to eligible countries
(including juice and juice concentrate), other exempt uses, and
charitable donations. However, the Board felt this would not be in the
best interest of the industry or the public. The Board expressed that
not allowing the export and other exemptions would have a detrimental
effect on the market this season if free and restricted percentages are
imposed. Without such exemptions and diversion credits for export
sales, new market development and other specified uses, about 50
million pounds of cherries would not be removed from the domestic
market this season, depressing grower returns for all cherries. The
marketing order was designed to increase grower returns by stabilizing
supplies with demand as well as stabilizing prices and creating a more
orderly and predictable marketing environment. Expanding markets and
developing new products is key to meeting this marketing order's goals.
Not granting exemptions and diversion credit for exports to
countries other than Canada, Mexico, and Japan was also discussed at
Board meetings. However, the Board expressed that this recommendation
is very important to creating stable conditions in the export
marketplace this season and would encourage future market growth. The
Board further stated that such action will improve returns to growers
because of the tremendous growth in the export market this season.
Exemptions and diversion credit have been addressed in other rulemaking
actions.
As mentioned earlier, the Department's ``Guidelines for Fruit,
Vegetable, and Specialty Crop Marketing Orders'' specify that 110
percent of recent years' sales should be made available to primary
markets each season before recommendations for volume regulation are
approved. The quantity available under this rule is 110 percent of the
quantity shipped in the prior three years.
The free and restricted percentages established by this rule
release the optimum supply and apply uniformly to all regulated
handlers in the industry, regardless of size. There are no known
additional costs incurred by small handlers that are not incurred by
large handlers. The stabilizing effects of the percentages impact all
handlers positively by helping them maintain and expand markets,
despite seasonal supply fluctuations. Likewise, price stability
positively impacts all producers by allowing them to better anticipate
the revenues their tart cherries will generate.
While the level of benefits of this rulemaking are difficult to
quantify, the stabilizing effects of the volume regulations impact both
small and large handlers positively by helping them maintain markets
even though tart cherry supplies fluctuate widely from season to
season.
In compliance with Office of Management and Budget (OMB)
regulations (5 CFR part 1320) which implement the Paperwork Reduction
Act of 1995 (Pub. L. 104-13), the information collection and
recordkeeping requirements have been previously approved by OMB and
assigned OMB Number 0581-0177.
There are some reporting, recordkeeping and other compliance
requirements under the marketing order. The reporting and recordkeeping
burdens are necessary for compliance purposes and for developing
statistical data for maintenance of the program. The forms require
information which is readily available from handler records and which
can be provided without data processing equipment or trained
statistical staff. As with other, similar marketing order programs,
reports and forms are periodically studied to reduce or eliminate
duplicate information collection burdens by industry and public sector
agencies. This final rule does not change those requirements.
The Department has not identified any relevant Federal rules that
duplicate, overlap, or conflict with this regulation.
A proposed rule concerning this action was published in the Federal
Register on Wednesday, January 21, 1998 (63 FR 3048). Copies of the
rule were also mailed or sent via facsimile to
[[Page 20527]]
all Board members and cherry handlers. Finally, the rule was made
available through the Internet by the Office of the Federal Register.
A 15-day comment period was provided to allow interested persons to
respond to the proposal. Fifteen days was deemed appropriate because a
rule finalizing the action would need to be in place as soon as
possible since handlers are currently marketing 1997-98 crop cherries.
One comment was received during the comment period in response to
the proposal. The comment addressed the proposed rule published in the
Federal Register on January 21, 1998, concerning final free and
restricted percentages which are being finalized in this rulemaking.
The commenter represents a tart cherry association in the State of
Oregon. The comment also responded to a request for comments made in
the interim final rule published in the Federal Register on January 6,
1998 (63 FR 399). That document established regulations for handler
diversion and included a temporary suspension of order provisions. To
the extent that the comment addressed issues relating to the January 6,
1998, publication, that portion of the comment will be discussed, as
appropriate, in the final action concerning that document which will be
published separately from this action.
With respect to the proposed rule which preceded this action, the
commenter disagreed with a statement contained in the initial
regulatory flexibility analysis and that also appears in the final
regulatory flexibility analysis in this action. The statement indicated
that Board meetings are widely publicized in advance and are held in a
location central to the production area. The commenter stated that to
date meetings have been central only to those producers and handlers in
the Michigan districts. No fewer than five Board members and their
alternates spend almost a full day commuting to Board meetings.
Secondly, the commenter commented that access to the meetings is
limited to those who have the resources of money and time to make such
a commitment. Most of those present represent large growers and
handlers. The commenter believes that Board recommendations usually
represent the interests of primarily large business entities. The
commenter also stated that the Board does a poor job of publicizing
Board and subcommittee meetings. To the commenter's knowledge, meetings
are announced among participants and in no way are published in
agricultural or business trade journals or newspapers in the production
districts. According to the commenter, growers and handlers are not
receiving a notice of all meetings. Finally, the commenter urged the
Department to rule on the identity and nature of CherrCo, Inc., a new
entity in the tart cherry industry, as it relates to the Federal tart
cherry marketing order.
In regard to the commenter's first issue of meetings being held in
a location central to the production, the Board also has to consider
the cost of travel for all Board members since the Board pays travel
expenses for all of its members. The first meetings held in December of
1996 and throughout 1997 were attended by all members and their
alternates. A Board recommendation was passed that the start-up
meetings be attended by the alternates so they would be involved and
aware of Board activities. It would have resulted in considerable
expense to the Board to hold the meetings outside of Michigan since 16
members and alternates are from the State of Michigan. The Board
realizes the time spent in travel could be inconvenient for some of the
other Board members and has made a commitment to hold the June
marketing policy meeting in Michigan and the September marketing policy
meeting in a district outside of Michigan. The Board is also committed
to holding meetings outside the Michigan districts to allow producers
and handlers to attend the meetings and cut down on travel time for
those not located in Michigan.
In regard to the second issue raised by the commenter concerning
access to the meetings being limited to those who have money and time
to commit, the meetings held in Michigan were held frequently to do the
groundwork needed to implement the many marketing order authorities. It
was more cost effective to the industry to have such meetings in
Michigan. As previously mentioned, the Board pays all travel costs for
its members and 16 Board members and alternates are from Michigan.
Growers and handlers are welcome to attend these meetings. The Board
has made the commitment to rotate meeting sites throughout the
production area to allow growers and handlers from other districts to
participate. Recommendations are not made by the Board for only the
benefit of large growers and handlers. The Board, which is comprised of
small entities, discusses the impacts of such recommendations on small
and large growers and handlers. The Board has been given the
responsibility to make recommendations that benefit the industry as a
whole.
In regard to the commenter's contention that the Board does a poor
job of publicizing Board and subcommittee meetings, we disagree. The
Board has and will continue to take appropriate action to provide the
widest possible notice of upcoming meetings to all handlers and Board
members and alternate Board members. The Board sends meeting notices to
all Board members and several tart cherry industry organizations. In
fact, the Board is currently developing a newsletter which will be
distributed to all growers and handlers of record to further publicize
upcoming Board meetings.
Finally, in regard to the CherrCo issue, the Department is
continuing to work with the Board on this issue. This issue will be
addressed separately.
Accordingly, no changes will be made to the rule as proposed, based
on the comments received.
After consideration of all relevant matter 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.
It is further found that good cause exists for not postponing the
effective date of this rule until 30 days after publication in the
Federal Register (5 U.S.C. 553) because handlers are currently
marketing 1997-98 tart cherries. Further, handlers are aware of this
rule, which was recommended at a public meeting. Also, a 15-day comment
period was provided for in the proposed rule.
List of Subjects in 7 CFR Part 930
Marketing agreements, Tart cherries, Reporting and recordkeeping
requirements.
For the reasons set forth in the preamble, 7 CFR Part 930 is
amended to read 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: 7 U.S.C. 601-674.
2. A new subpart--Supplementary Regulations and a new section
930.250 are added to read as follows:
Sec. 930.250 Final free and restricted percentages for the 1997-98
crop year.
The final percentages for tart cherries handled by handlers in
volume
[[Page 20528]]
regulated districts during the crop year beginning on July 1, 1997,
which shall be free and restricted, respectively, are designated as
follows: Free percentage, 55 percent and restricted percentage, 45
percent.
Dated: April 20, 1998.
Robert C. Keeney,
Deputy Administrator, Fruit and Vegetable Programs.
[FR Doc. 98-11023 Filed 4-24-98; 8:45 am]
BILLING CODE 3410-02-P
