Tart Cherries Grown in the States of Michigan, et al.; Change in Certain Provisions/Procedures Under the Handling Regulations for Tart Cherries, 16982-16986 [06-3238]

Agencies

• Agricultural Marketing Service
• DEPARTMENT OF AGRICULTURE

[Federal Register Volume 71, Number 65 (Wednesday, April 5, 2006)]
[Rules and Regulations]
[Pages 16982-16986]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 06-3238]


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DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 930

[Docket No. FV06-930-1 IFR]


Tart Cherries Grown in the States of Michigan, et al.; Change in 
Certain Provisions/Procedures Under the Handling Regulations for Tart 
Cherries

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Interim final rule with request for comments.

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SUMMARY: This rule removes volume limitations on new product 
development, new market development and market expansion activities to 
facilitate such activities; allows handlers to receive diversion credit 
for the voluntary destruction of finished, marketable products that 
have deteriorated in condition to provide handlers more flexibility; 
adds a procedure to keep Cherry Industry Administrative Board (Board) 
representation in line with current district production levels; and 
revises grower application and mapping procedures under the grower 
diversion program to make the process less burdensome. These changes 
are intended to improve the operation of the marketing order and to 
increase the demand for tart cherries and tart cherry products. The 
changes were unanimously recommended by the Board, the body that 
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.

DATES: This rule becomes effective April 6, 2006.
    Comments received by June 5, 2006 will be considered prior to 
issuance of a final rule.

ADDRESSES: Interested persons are invited to submit written comments 
concerning this rule. Comments must be sent to the Docket Clerk, 
Marketing Order Administration Branch, Fruit and Vegetable Programs, 
AMS, USDA, 1400 Independence Avenue, SW., Stop 0237, Washington, DC 
20250-0237; Fax: (202) 720-8938, or E-mail: moabdocket.clerk@usda.gov. 
Comments should reference the docket number and the date and page 
number of this issue of the Federal Register and will be available for 
public inspection in the Office of the Docket Clerk during regular 
business hours or can be viewed at: https://www.ams.usda.gov/fv/
moab.html.

FOR FURTHER INFORMATION CONTACT: Patricia A. Petrella or Kenneth G. 
Johnson, Marketing Order Administration Branch, Fruit and Vegetable 
Programs, AMS, USDA, Unit 155, 4700 River Road, Riverdale, MD 20737; 
Telephone: (301) 734-5243, or Fax: (301) 734-5275; or George Kelhart, 
Technical Advisor, Marketing Order Administration Branch, Fruit and 
Vegetable Programs, AMS, USDA, 1400 Independence Avenue, SW., STOP 
0237, Washington, DC 20250-0237; Telephone: (202) 720-2491, or Fax: 
(202) 720-8938.
    Small businesses may request information on complying with this 
regulation, or obtain a guide on complying with fruit, vegetable, and 
specialty crop marketing agreements and orders 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: Jay.Guerber@usda.gov.

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. 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 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 in equity 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.
    Section 930.162 will be changed to remove volume limitations on new 
product development, new market development, and market expansion 
activities utilized by handlers to earn diversion credits to meet 
restricted percentage regulation withholding requirements. Handler 
diversion is authorized under Sec.  930.59 of the order and, when 
volume regulation is in effect, handlers may fulfill restricted 
percentage requirements by diverting cherries or cherry products rather 
than placing tart cherries in an inventory reserve. Volume regulation 
is intended to help the tart cherry industry stabilize supplies and 
prices in years of excess production. Volume regulation percentages are 
in effect for the 2005-2006 crop year (71 FR 1915, 1/12/2006).
    Section 930.62 provides that the Board, with the approval of the 
Secretary, may exempt from the provisions of Sec. Sec.  930.41 
(Assessments), 930.44 (Quality control), 930.51 (Issuance of volume 
regulations), 930.53 (Modification, suspension, or termination of 
regulations), and 930.55 through 930.57 (Reserve regulations) cherries 
which are diverted in

[[Page 16983]]

accordance with Sec.  930.59. Cherries that are diverted in accordance 
with Sec.  930.59 must be used for new product development and new 
market development, used for experimental purposes, or used for any 
other purpose designated by the Board, including cherries processed 
into products for markets for which less then 5 percent of the 
preceding 5-year average production of cherries were utilized.
    Section 930.162 specifies procedures for obtaining approval for 
exempt uses which include new product development, new market 
development, and market expansion. Currently, these provisions specify 
volume limitations for these exempt uses. The limitations are specified 
in Sec.  930.162(b)(1) which states that once total industry 
utilization for a new product exceeds 2 percent of the five year 
average production of tart cherries, the product shall no longer be 
considered under development and not be eligible for a new product 
development exemption. The maximum duration of any new product credit 
activity is three years from the first date of shipment.
    Section 930.162(b)(2) regarding new market development and market 
expansion specifies the annual industry-wide maximum diversion credit 
volume at 10 million pounds RPE (Raw Product Equivalent) of cherry 
products for all expansion activities which is allocated pro rata among 
participating handlers.
    When these limitations were added the Board believed that these 
markets should be developed slowly. However, it now believes that these 
limitations are a disincentive to new product, market development, and 
market expansion activities involving large quantities. If a handler's 
new product activity involves moving 8 million pounds of exempt tart 
cherries, and 2 percent of the 5-year average production is 5 million 
pounds, the handler would only receive 5 million pounds of diversion 
credit, not 8 million pounds. The Board now believes that this 
unnecessarily restricts these handler activities and that handlers 
should receive diversion credit for the full diversion amount to 
stimulate handler interest and facilitate new product development 
activities.
    With respect to new market development and market expansion 
activities, if the same handler had a pro rata allocation representing 
20 percent of the industry-wide 10 million pound limitation for all 
handlers participating in these activities, this handler only would 
receive diversion credit for 1.6 million pounds, not 8 million pounds. 
The Board believes that this provision should be removed to facilitate 
handler interest in new market development and market expansion.
    To facilitate these activities, the Board recommended that the 
volume limitations be removed from paragraphs (b)(1) and (b)(2) to 
foster further handler interest in new product, new market development, 
and market expansion activities. This is expected to result in an 
increase in demand for tart cherries and tart cherry products. The time 
limitation for new product development will remain in effect.
    As previously stated in this document, handler diversion is 
authorized under Sec.  930.59. Section 930.159 of the rules and 
regulations under the order allows handlers to divert cherries by 
destruction of the cherries at the handler's facility. At-plant 
diversion of cherries takes place prior to placing cherries into the 
processing line to ensure that the cherries diverted were not simply an 
undesirable or unmarketable product of processing. Handlers also can 
receive diversion credit for finished, marketable tart cherry products 
that were accidentally destroyed. Finished, marketable cherry products 
might be accidentally destroyed in a fire, explosion, or because of a 
freezer malfunction.
    Handlers sometimes voluntarily destroy finished, marketable cherry 
products if the cherry products sustain a loss of condition that 
renders them unacceptable for use in normal market channels (free 
tonnage outlets). To permit handlers to recover some of their costs 
incurred in acquiring, processing, and storing such cherries, the Board 
unanimously recommended that the at-plant diversion procedures be 
broadened so handlers can receive diversion credit for the voluntary 
destruction of such cherries. The handler would not have to purchase 
additional cherries to meet his/her restricted percentage obligation, 
but could simply use the diversion credit received for the voluntarily 
destroyed product.
    To receive diversion credit under this added option, the Board 
recommended that the cherry products meet similar criteria as 
accidentally destroyed marketable product. That is, such cherry 
products must: (1) Be owned by the handler at the time of the voluntary 
destruction; (2) be a marketable product at the time of processing; (3) 
be included in the handler's end of year handler plan; and (4) have 
been assigned a Raw Product Equivalent (RPE) by the handler to 
determine the volume of cherries. In addition, the condition and the 
voluntary destruction as well as the disposition of the finished tart 
cherry product must be verified by a USDA inspector or a Board agent or 
employee.
    Handlers wishing to obtain diversion certificates for finished tart 
cherry products that are voluntarily destroyed must apply for such 
diversion certificates and sign an agreement that disposition of the 
destroyed product will take place under the supervision of USDA's 
Processed Products Branch inspectors or Board inspectors. This will 
allow the Board to verify that the finished product was marketable, but 
sustained a loss of condition, and that it was disposed of properly.
    Once diversion is satisfactorily accomplished, handlers will 
receive diversion certificates from the Board stating the weight of 
cherries diverted. Such diversion certificates can be used to satisfy a 
handler's restricted percentage obligations.
    In years with volume regulation, restricted obligations also can be 
met with diversion credits earned through in-orchard diversion. This 
action changes the procedures for grower mapping under the grower 
diversion program. Currently, under Sec.  930.158 growers must file 
maps every year if they intend to participate in the voluntary grower 
diversion program. Growers applying for diversion must sign a grower 
diversion application which states that the grower agrees to comply 
with the regulations established for a tart cherry diversion program. 
Each map shall contain the grower's name and number assigned by the 
Board, the grower's address, block name or number when appropriate, 
location of the orchard or orchards and other information which may be 
necessary to accomplish the desired diversion. The Board has 
recommended that the original map and application have an ongoing, 
continuing effect. Annual resubmissions of either the map or 
application would no longer be required. Growers will only submit an 
application and map if they are participating in the grower diversion 
program for the first time. Growers would need only to submit a new 
orchard map if he/she added a new block of trees or changed the orchard 
layout differently from the map previously submitted to the Board. If a 
grower decides not to participate in the program for a year he/she 
needs to inform the Board that he/she is not participating. This action 
will slightly decrease reporting burdens on growers participating in 
the grower diversion program.
    Growers who do not file new maps/applications with the Board would 
continue to be eligible for in-orchard

[[Page 16984]]

tank diversion activities. Growers may use in-orchard tank diversion 
when marketable cherries in part of the orchard have sustained damage 
or are of lower quality. Such cherries can be picked and placed in 
harvesting tanks until a compliance officer can come to the orchard to 
probe the tanks for volume measurement and observe the destruction of 
the cherries on the grower's premises. Each tank holds about one 
thousand pounds and each grower can have no fewer than 10 tanks for 
diversion. This keeps the cost of inspections to a minimum and 
decreases the compliance officer's time from traveling from location to 
location to observe a small amount of in-orchard tank diversion.
    This action also revises provisions to Sec.  930.120 for 
reallocating Board representation. Currently, Sec.  930.20 allocates 
producer and handler representation on the Board based upon average 
production of each district in the production area. When the production 
level in a district reaches various specified thresholds, the number of 
representatives from that district either increases or decreases. For 
instance, districts with production up to and including 10 million 
pounds shall have one member; districts with production greater than 10 
million and up to and including 40 million pounds shall have 2 members; 
and districts with production greater than 40 million pounds and up to 
and including 80 million pounds shall have 3 members; and districts 
with production greater than 80 million pounds shall have 4 members.
    The Board recommended that in the event that a district's three-
year average production decreases to a level requiring a reduction in 
membership on the Board, representation of the district shall be 
determined by: (1) Agreement of the elected members and alternate 
members of the specific district; or (2) if an agreement cannot be 
reached, the members and alternates having the shortest amount of time 
remaining in their current term of office would be removed from the 
Board. However, the Board's recommendation requires modification.
    Because the Secretary of Agriculture (Secretary) has sole authority 
to remove and select persons who can serve on the Board, it would not 
be appropriate to give direct responsibility to current Board members 
of a specific district to determine who is removed from the Board when 
production levels decrease. Accordingly, when a district is faced with 
losing Board representation, the regulations will require the members 
of the specific district to make a recommendation to the Board as to 
who should be removed from the Board, and the Board to then submit its 
recommendation to the Secretary for approval.
    In the event a district's three-year average production increases 
such that it warrants additional seats on the Board, the seats shall be 
allocated following the criteria in Sec.  930.20(b)(5), and nominated 
and selected following the procedures specified in Sec. Sec.  930.23 
and 930.24.
    In addition, Sec.  930.158(a) will be revised to delete obsolete 
dates that are currently in that section.

The Regulatory Flexibility Act and Effects on Small Businesses

    Pursuant to requirements set forth in the Regulatory Flexibility 
Act (RFA), the Agricultural Marketing Service (AMS) has considered the 
economic impact of this action on small entities. Accordingly, AMS has 
prepared this initial 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, which includes handlers, have been 
defined by the Small Business Administration (13 CFR 121.201) as those 
having annual receipts of less than $6,000,000, and small agricultural 
producers are defined as those having annual receipts of less than 
$750,000. A majority of the producers and handlers of tart cherries 
under the order 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 2000/2001 through 2004/2005, approximately 93.4 
percent of the U.S. tart cherry crop, or 216.8 million pounds, was 
processed annually. Of the 216.8 million pounds of tart cherries 
processed, 59 percent was frozen, 28 percent was canned, and 13 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 36,950 acres in 2004/2005. This represents a 26 percent 
decrease in total bearing acres. Michigan leads the nation in tart 
cherry acreage with 73 percent of the total and produces about 70 
percent of the U.S. tart cherry crop each year.
    This rule removes volume limitations on market expansion activities 
used by handlers in earning diversion credits to meet their restricted 
volume obligations; allows handlers to earn diversion credits when they 
voluntarily destroy finished marketable products that have been damaged 
or deteriorated in condition in some manner to provide the handlers 
more flexibility; revises grower application/mapping procedures under 
the grower division program to make the procedures less burdensome; and 
adds a procedure regarding the reallocation of Board representation to 
reflect current district production levels. These changes to the 
marketing order are authorized under Sec. Sec.  930.62, 930.59, 930.58, 
and 930.20, respectively.
    It is expected that the benefits resulting from this rulemaking 
will impact both small and large handlers positively by helping them 
increase market demand and by improving the operation of the marketing 
order. It also will benefit producers by making the in-orchard 
diversion application/mapping procedures less burdensome and improve 
the operation of the program.
    Regarding alternatives, the Board discussed leaving the provisions 
unchanged, but determined that the changes were a more viable course of 
action. The program improvements expected to result because of these 
changes will positively impact producers and handlers under the 
marketing order, regardless of size.
    USDA has not identified any relevant Federal rules that duplicate, 
overlap, or conflict with this regulation.
    USDA has determined that this action will have a small impact on 
the reporting and recordkeeping requirements imposed under the tart 
cherry marketing order. 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 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 under the

[[Page 16985]]

tart cherry marketing order have been previously approved by OMB and 
assigned OMB Number 0581-0177. This rule, which changes procedures for 
growers submitting applications and maps, will result in a slight 
decrease in reporting and recordkeeping requirements on growers who 
participate in the voluntary diversion program. In addition, a slight 
increase in reporting and recordkeeping requirements for handlers who 
voluntarily destroy tart cherry products would be within the current 
information collection burden approved by OMB.
    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.
    AMS is committed to compliance with the Government Paperwork 
Elimination Act (GPEA), which requires Government agencies in general 
to provide the public the option of submitting information or 
transacting business electronically to the maximum extent possible.
    This rule invites comments on administrative changes to the tart 
cherry marketing order. Any comments received will be considered prior 
to finalization of this rule.
    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.
    Pursuant to 5 U.S.C. 553, it is found and determined upon good 
cause that it is impracticable, unnecessary, and contrary to the public 
interest to give preliminary notice prior to putting this rule into 
effect and 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: (1) Removing the volume limitations on market 
expansion activities relieves restrictions on handlers and is intended 
to increase market demand for tart cherries; (2) adding authority for 
the voluntary destruction of finished tart cherry products that have 
deteriorated in condition provides an additional opportunity for 
handlers to receive diversion credit in fulfilling their restricted 
obligations during the 2005-2006 crop year, and relieves restrictions 
on handlers; (3) adding language to remove members and alternates from 
the Board provides a procedure for keeping Board membership in line 
with current industry production levels; (4) revising the application 
and mapping procedures will decrease reporting burden on growers and 
improve the operation of the grower diversion program; (5) these 
actions were recommended in public meetings and growers and handlers 
are aware of these actions; and (6) this rule provides a 60-day comment 
period and any comments received will be considered prior to 
finalization of this rule.

List of Subjects in 7 CFR Part 930

    Marketing agreements, Reporting and recordkeeping requirements, 
Tart cherries.


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
1. The authority citation for 7 CFR part 930 continues to read as 
follows:

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


0
2. Section 930.120 is revised to read as follows:


Sec.  930.120  Board membership.

    When the production level from a district falls below the 
thresholds stated in Sec.  930.20(b)(5), members of the specific 
district will make a recommendation to the Board as to who should be 
removed from the Board and the Board shall submit a recommendation to 
the Secretary for approval. If the recommendation is not made by the 
Board within a reasonable time, the Secretary may select the member and 
alternate to be removed.
* * * * *

0
3. In Sec.  930.158, paragraph (b) introductory text is revised to read 
as follows:


Sec.  930.158  Grower diversion and grower diversion certificates.

* * * * *
    (b) Application and mapping for diversion. Any grower desiring to 
divert cherries using methods other than in-orchard tank shall submit a 
map of the orchard or orchards to be diverted, along with a completed 
Grower Division Application, to the Board by April 15 of each crop 
year. The application includes a statement which must be signed by the 
grower which states that the grower agrees to comply with the 
regulations established for a tart cherry diversion program. Each map 
shall contain the grower's name and number assigned by the Board, the 
grower's address, block name or number when appropriate, location of 
orchard or orchards and other information which may be necessary to 
accomplish the desired diversion. On or before July 1, the grower 
should inform the Board of such grower's intention to divert in-orchard 
and what type of diversion will be used. The four types of diversion 
are random row diversion, whole block diversion, partial block 
diversion and in-orchard tank diversion. A grower who informs the Board 
about the type of diversion he or she wishes to use by July 1 can elect 
to use any diversion method or combination of diversion methods. Only 
in-orchard tank diversion methods maybe used if the Board is not so 
informed by July 1. Trees that are four years or younger do not qualify 
for diversion. Annual resubmissions of either the map or application 
will no longer be required. Growers will only submit a new application 
and map if they are participating in the grower diversion program for 
the first time. Growers will need only to submit a new orchard map if 
he/she adds a new block of trees to the orchard or changes the orchard 
layout differently from the map previously submitted to the Board. If a 
grower decides not to participate in the program for a year they need 
to inform the Board that they are not participating.
* * * * *

0
4. In Sec.  930.159, paragraphs (a) and (d) are revised to read as 
follows:


Sec.  930.159  Handler diversion.

    (a) Methods of diversion. Handlers may divert cherries by redeeming 
grower diversion certificates, by destroying cherries at handlers' 
facilities (at-plant), by diverting cherry products accidentally or 
voluntarily destroyed, by donating cherries or cherry products to 
charitable organizations or by using cherries or cherry products for 
exempt purposes under Sec.  930.162, including export to countries 
other than Canada, and Mexico. Once diversion has taken place, handlers 
will receive diversion certificates stating the weight of cherries 
diverted. Diversion credit may be used to fulfill any restricted 
percentage requirement in full or in part. Any information of a 
confidential and/or proprietary nature included in this

[[Page 16986]]

application would be held in confidence pursuant to Sec.  930.73 of the 
order.
* * * * *
    (d) Diversion of finished products. Handlers may be granted 
diversion credit for finished tart cherry products that are 
accidentally destroyed or voluntarily destroyed by the handler. To 
receive diversion credit under this option the cherry products must be 
owned by the handler at the time of accidental or voluntary 
destruction, be a marketable product at the time of processing, be 
included in the handler's end of the year handler plan, and have been 
assigned a Raw Product Equivalent (RPE) by the handler to determine the 
volume of cherries. In addition, the accidental or voluntary 
destruction and disposition of the product must be verified by either a 
USDA inspector or Board agent or employee who witnesses the disposition 
of the accidentally or voluntarily destroyed product. Products will be 
considered as accidentally destroyed if they sustain damage which 
renders them unacceptable in normal market channels. Products which are 
voluntarily destroyed must have deteriorated in condition to such an 
extent that they are not acceptable for use in normal market channels.
* * * * *

0
5. In Sec.  930.162, paragraphs (b)(1) and (b)(2) are revised to read 
as follows:


Sec.  930.162  Exemptions.

* * * * *
    (b) * * *
    (1) New product development. This term includes the development of 
new tart cherry products or of foods or other products in which tart 
cherries or tart cherry products are incorporated which are not 
presently being produced on a commercial basis. New product development 
can also include the production or processing of a tart cherry product 
using a technique not presently being utilized commercially in the tart 
cherry industry; an end product of the processing of raw tart cherries 
done by the industry at pack time either for resale or for re-
manufacturing which has not been manufactured previously by the 
industry; or a processed, value-added item that includes tart cherry 
products as an ingredient which has never been marketed to consumers 
either by a handler within the industry or by a food manufacturer. In 
addition, the maximum duration of any credit activity is three years 
from the first date of shipment.
    (2) New market development and market expansion. This includes the 
development of markets for tart cherry products which are not 
commercially established markets and which are not competitive with 
commercial outlets presently utilized by the tart cherry industry 
(including the development of new export markets): Provided, That these 
markets are a geographic area into which tart cherries or products 
derived from them have not been previously sold. The term ``market 
expansion'', includes activities that incrementally expand the sale of 
either tart cherries or the products in which tart cherries are an 
ingredient, such as, but not limited to: Expansions of the geographic 
areas into which tart cherries or tart cherry products are marketed; 
product line extensions; significant improvements to or revisions of 
existing products; packaging innovations; segmentation of markets along 
geographic, demographic, or other definable characteristics; and 
product repositionings.
* * * * *

    Dated: March 30, 2006.
Lloyd C. Day,
Administrator, Agricultural Marketing Service.
[FR Doc. 06-3238 Filed 4-4-06; 8:45 am]
BILLING CODE 3410-02-P