[Federal Register Volume 79, Number 11 (Thursday, January 16, 2014)]
[Rules and Regulations]
[Pages 2775-2777]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-00769]


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DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 930

[Doc. No. AMS-FV-13-0030; FV13-930-2 FIR]


Tart Cherries Grown in the States of Michigan, New York, 
Pennsylvania, Oregon, Utah, Washington, and Wisconsin; Revising Handler 
Reporting and Grower Diversion Requirements

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Affirmation of interim rule as final rule.

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SUMMARY: The Department of Agriculture (USDA) is adopting, as a final 
rule, without change, an interim rule that changed handler reporting 
and grower diversion requirements prescribed under the marketing order 
for tart cherries grown in the States of Michigan, New York, 
Pennsylvania, Oregon, Utah, Washington, and Wisconsin (order). The 
Cherry Industry

[[Page 2776]]

Administrative Board (Board) locally administers the order. The interim 
rule changed the deadline for submitting the handler reserve plan from 
November 1 to October 1 and extended the deadline for redeeming or 
transferring grower diversion certificates from November 1 to June 30 
of a given crop year. These changes provide the industry with a more 
complete and timely picture of the available supply of tart cherries 
earlier in the season and give handlers more time and flexibility in 
meeting their obligations under volume regulation.

DATES: Effective January 17, 2014.

FOR FURTHER INFORMATION CONTACT: Jennie M. Varela, Marketing 
Specialist, or Christian D. Nissen, Regional Director, Southeast 
Marketing Field Office, Marketing Order and Agreement Division, Fruit 
and Vegetable Program, AMS, USDA; Telephone: (863) 324-3375, Fax: (863) 
325-8793, or Email: Jennie.Varela@ams.usda.gov or 
Christian.Nissen@ams.usda.gov.
    Small businesses may obtain information on complying with this and 
other marketing order and agreement regulations by viewing a guide at 
the following Web site: http://www.ams.usda.gov/MarketingOrdersSmallBusinessGuide; or by contacting Jeffrey Smutny, 
Marketing Order and Agreement Division, Fruit and Vegetable Program, 
AMS, USDA; 1400 Independence Avenue SW., STOP 0237, Washington, DC 
20250-0237; Telephone: (202) 720-2491, Fax: (202) 720-8938, or Email: 
Jeffrey.Smutny@ams.usda.gov.

SUPPLEMENTARY INFORMATION: This rule is issued under Marketing Order 
and Agreement No. 930, as amended (7 CFR part 930), regulating the 
handling of tart cherries grown 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.''
    USDA is issuing this rule in conformance with Executive Orders 
12866 and 13563.
    Prior to this change, handlers were required to submit a handler 
reserve plan and use grower diversion credits by November 1 of the crop 
year. A crop year is a 12-month period beginning on July 1 and ending 
on June 30 of the following year. The order was recently amended to 
exempt cherries diverted in the orchard (grower diversion) from 
inclusion in a handler's total volume calculation. When a volume 
regulation is issued, handlers are obligated to keep a percentage of 
their total volume in reserve or account for the restricted volume with 
diversion certificates. These certificates can be earned through export 
sales, new market or new product sales, or through grower diversion. 
Before the amendment, the volume of cherries represented by a grower 
diversion certificate was added to the handler's total volume.
    As the volume represented by diversion certificates is no longer 
part of the total volume calculation, handlers no longer need these 
certificates to complete the reserve plan. Consequently, the Board 
believes handlers will be able to complete the simplified reserve plan 
at an earlier date and recommended changing the date of submission from 
November 1 to October 1 to provide the industry with a more complete 
and timely picture of the available supply of tart cherries.
    Further, with the amendment to the order, grower diversion 
certificates no longer need to be linked to when the handler reserve 
plan is due. To bring consistency to the use of all types of diversion 
certificates, the Board recommended allowing handlers to transfer and 
redeem grower diversion certificates through the end of the season, 
June 30. This change provides handlers with additional time and 
flexibility in meeting their restriction obligations.
    In addition to adjusting the deadline for submitting the handler 
reserve plan and extending the deadline for redeeming grower diversion 
certificates, this rule also makes a minor wording change to Sec.  
930.158 to facilitate the change in date.
    In an interim rule published in the Federal Register on August 1, 
2013, and effective on August 2, 2013, (78 FR 46494, Doc. No. AMS-FV-
13-0030; FV13-930-2 IR), Sec.  930.158 was amended by changing the date 
``November 1'' to ``June 30.'' Further, Sec.  930.159 was amended by 
changing ``November'' to ``October'' in the first sentence and by 
revising the words ``certificates redeemed'' to read ``certificates to 
be redeemed'' in the fourth sentence.

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 
businesses subject to such actions in order that small businesses will 
not be unduly or disproportionately burdened. Marketing orders issued 
pursuant to the Act, and the 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 600 tart cherry producers in the regulated 
area and approximately 40 tart cherry handlers who are subject to 
regulation under the order. Small agricultural producers are defined by 
the Small Business Administration (SBA) as those having annual receipts 
of less than $750,000 and small agricultural service firms have been 
defined as those having annual receipts of less than $7,000,000 (13 CFR 
121.201).
    According to data from the National Agricultural Statistics Service 
and the Board, the average annual grower price for tart cherries during 
the 2012-13 season was $0.54 per pound, and total shipments were around 
85 million pounds. Therefore, average receipts for tart cherry 
producers were around $76,200, well below the SBA threshold for small 
producers. In 2013, The Food Institute estimated an f.o.b. price of 
$0.84 per pound for frozen tart cherries, which make up the majority of 
processed tart cherries. Based on this information, average annual 
handler receipts were about $1.8 million, also below the SBA threshold 
for small agricultural service firms. Assuming a normal distribution, 
the majority of tart cherry producers and handlers may be classified as 
small entities.
    This rule continues in effect an interim rule that changed the 
deadline for submitting the handler reserve plan from November 1 to 
October 1 and extended the deadline for redeeming or transferring 
grower diversion certificates from November 1 to June 30 of a given 
crop year. These changes provide the industry with a more complete and 
timely picture of the available supply earlier in the season. In 
addition, the new deadline gives handlers more time and flexibility to 
meet their obligations under volume regulation. This rule amends the 
provisions of Sec. Sec.  930.158 and 930.159. Authority for the change 
in the order's rules and regulations is provided in Sec. Sec.  930.58 
and 930.59.
    It is not anticipated that this rule will generate any additional 
costs for growers or handlers. This action is intended to adjust 
regulations to reflect recent amendments to the order and to allow the 
order to function more efficiently. These changes are expected to 
benefit the industry by providing a clear picture of available supply 
earlier in the season, and by allowing handlers more time to utilize 
grower diversion

[[Page 2777]]

certificates to meet their obligations under volume regulation. These 
changes should impact all entities positively, regardless of size.
    In accordance with the Paperwork Reduction Act of 1995, (44 U.S.C. 
Chapter 35), the order's information collection requirements have been 
previously approved by the Office of Management and Budget (OMB) and 
assigned OMB No. 0581-0177, (Tart Cherries Grown in the States of 
Michigan, New York, Pennsylvania, Oregon, Utah, Washington, and 
Wisconsin). This rule required changes to Cherry Industry 
Administrative Board Form 4, ``Handler Reserve Plan and Final Pack 
Report.'' However, these changes are minor and the currently approved 
burden for the form remains the same. The revised form has been 
submitted to OMB for approval as part of the routine three-year renewal 
of all forms related to this order.
    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, USDA has not identified any 
relevant Federal rules that duplicate, overlap or conflict with this 
rule.
    Further, the Board's meeting was widely publicized throughout the 
tart cherry industry and all interested persons were invited to attend 
videoconference meetings at regional locations or call in to 
participate in Board deliberations. Like all Board meetings, the March 
21, 2013, meeting was a public meeting and all entities, both large and 
small, were able to express their views on this issue.
    Comments on the interim rule were required to be received on or 
before September 30, 2013. No comments were received. Therefore, for 
the reasons given in the interim rule, we are adopting the interim rule 
as a final rule, without change.
    To view the interim rule, go to: http://www.regulations.gov/#!documentDetail;D=AMS-FV-13-0030-0001.
    This action also affirms information contained in the interim rule 
concerning Executive Orders 12866, 12988, and 13563, the Paperwork 
Reduction Act (44 U.S.C. Chapter 35), and the E-Gov Act (44 U.S.C. 
101).
    After consideration of all relevant material presented, it is found 
that finalizing the interim rule, without change, as published in the 
Federal Register (78 FR 46494, August 1, 2013) will tend to effectuate 
the declared policy of the Act.

List of Subjects in 7 CFR Part 930

    Marketing agreements, Reporting and recordkeeping requirements, 
Tart cherries.

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

    Accordingly, the interim rule that amended 7 CFR part 930 and was 
published at 78 FR 46494 on August 1, 2013, is adopted as a final rule, 
without change.

    Dated: January 10, 2014.
Rex A. Barnes,
Associate Administrator, Agricultural Marketing Service.
[FR Doc. 2014-00769 Filed 1-15-14; 8:45 am]
BILLING CODE 3410-02-P