Tart Cherries Grown in the States of Michigan, et al.; Increased Assessment Rate, 66833-66835 [E6-19460]
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Federal Register / Vol. 71, No. 222 / Friday, November 17, 2006 / Rules and Regulations
southern boundary line of the San
Bernardino National Forest to its
intersection with U.S. Interstate 15; then
northeast on U.S. Interstate 15 to its
next intersection with the San
Bernardino National Forest boundary
line; then northwest, north, northeast,
southeast, east, northeast, southeast, and
east along the San Bernardino National
Forest boundary line to its intersection
with Palm Avenue; then southwest on
Palm Avenue to U.S. Interstate 215; then
southeast on U.S. Interstate 215 to
University Parkway; then southwest on
University Parkway to N. State Street;
then south on N. State Street to State
Highway 210; then west on State
Highway 210 to the Southern Pacific
railroad track; then south, southwest,
south, and southeast along the Southern
Pacific railroad track to its intersection
with W. Base Line Street; then west on
W. Base Line Street to N. Pepper
Avenue; then south on N. Pepper
Avenue to State Highway 66; then west
on State Highway 66 to N. Cactus
Avenue; then south on N. Cactus
Avenue to W. Rialto Avenue; then west
on W. Rialto Avenue to W. Arrow
Boulevard; then west on W. Arrow
Boulevard to Arrow Boulevard; then
west on Arrow Boulevard to Cherry
Avenue; then north on Cherry Avenue
to State Highway 66; then west on State
Highway 66 to East Avenue; then north
on East Avenue to the point of
beginning.
Done in Washington, DC, this 14th day of
November 2006.
Kevin Shea,
Acting Administrator, Animal and Plant
Health Inspection Service.
[FR Doc. E6–19451 Filed 11–16–06; 8:45 am]
BILLING CODE 3410–34–P
DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Part 930
[Docket No. FV06–930–2 FR]
Tart Cherries Grown in the States of
Michigan, et al.; Increased Assessment
Rate
Agricultural Marketing Service,
USDA.
ACTION: Final rule.
rwilkins on PROD1PC63 with RULES
AGENCY:
SUMMARY: This rule increases the
assessment rate established for the
Cherry Industry Administrative Board
(Board) for the 2006–2007 fiscal year
and subsequent fiscal years from
$0.0021 to $0.0066 per pound to fund
the Board’s administrative expenses and
its new research and promotion
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16:36 Nov 16, 2006
Jkt 211001
program. Authorization to assess tart
cherry handlers enables the Board to
incur expenses that are reasonable and
necessary to administer the program.
The Board locally administers the
marketing order which regulates the
handling of tart cherries grown in the
States of Michigan, New York,
Pennsylvania, Oregon, Utah,
Washington, and Wisconsin. The fiscal
year began July 1, 2006, and ends June
30, 2007. The assessment rate will
remain in effect indefinitely unless
modified, suspended, or terminated.
DATES: Effective Date: This final rule
becomes effective November 20, 2006.
FOR FURTHER INFORMATION CONTACT:
Dawana J. Clark or Kenneth G. Johnson,
DC Marketing Field Office, Marketing
Order Administration Branch, Fruit and
Vegetable Programs, AMS, USDA, Unit
155, 4700 River Road, Riverdale,
Maryland 20737; telephone: (301) 734–
5243, Fax: (301) 734–5275, or e-mail:
Dawana.Clark@usda.gov or
Kenneth.Johnson@usda.gov.
Small businesses may request
information on complying with this
regulation by contacting Jay Guerber,
Marketing Order Administration
Branch, Fruit and Vegetable Programs,
AMS, USDA, 1400 Independence
Avenue, SW., STOP 0237, Washington,
DC 20250–0237; telephone: (202) 720–
2491, Fax: (202) 720–8938, or e-mail:
Jay.Guerber@usda.gov.
SUPPLEMENTARY INFORMATION: This final
rule is issued under Marketing
Agreement and Order No. 930, as
amended (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 final rule has been reviewed
under Executive Order 12988, Civil
Justice Reform. Under the marketing
order now in effect, tart cherries 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 July 1, 2006, and continue
until amended, suspended, or
terminated. This rule will not preempt
any State or local laws, regulations, or
policies, unless they present an
irreconcilable conflict with this rule.
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66833
The Act provides that administrative
proceedings must be exhausted before
parties may file suit in court. Under
section 608c(15)(A) of the Act, any
handler subject to an order may file
with USDA a petition stating that the
order, any provision of the order, or any
obligation imposed in connection with
the order is not in accordance with law
and request a modification of the order
or to be exempted therefrom. 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 final rule increases the
assessment rate established for the
Board for the 2006–2007 and
subsequent fiscal years for tart cherries
from $0.0021 to $0.0066 per pound of
tart cherries to fund the Board’s
administrative expenses and its new
research and promotion program.
The tart cherry marketing order
provides authority for the Board, with
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 to collect
such assessment appears in § 930.41 of
the order. In addition, § 930.48 of the
order provides that the Board, with the
approval of USDA, may establish or
provide for the establishment of
production research, marketing
research, and market development
projects 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
§ 930.41 (Assessments), or from such
other funds as approved by the USDA.
For the 2003–2004 fiscal year, the
Board recommended, and USDA
approved, an assessment rate of $0.0021
per pound of tart cherries handled that
would continue in effect from fiscal
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66834
Federal Register / Vol. 71, No. 222 / Friday, November 17, 2006 / Rules and Regulations
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 March 16, 2006,
and recommended 2006–2007
expenditures of $1,523,000 and an
assessment rate of $0.0066 per pound of
tart cherries. Eighteen of the nineteen
Board members voted in support of the
assessment rate increase. One Board seat
is vacant. In comparison, last year’s
budgeted expenses were $488,000. The
assessment rate of $0.0066 is $0.0045
higher than the rate currently in effect.
The Board recommended that the
assessment rate be increased to cover its
administrative expenses and fund a new
research and promotion program which
will commence in Fall 2006. The
$0.0066 assessment rate will cover the
costs of the research and promotion
program which will be assessed at
$0.005 per pound (or $10 per ton) of
cherries for processing and $0.0016 per
pound for administrative expenses. The
$0.0016 per pound for administrative
expenses will be a reduction from the
2005–2006 assessment rate of $0.0021
per pound. The Board believes that its
new research and promotion program is
the best way for the industry to develop
both stronger demand for tart cherries
and tart cherry products and increase
sales opportunities.
According to a recent Board survey,
both growers and handlers believe a
research and promotion program will
benefit the industry. This program will
be directed primarily at consumers and
retail nutrition advisors, and employ
promotional strategies, such as print
advertising. All tart cherry handlers
regulated under the marketing order
will pay the proposed assessment rate to
fund the new research and promotion
program. However, certain organic
handlers may be exempt from paying
assessments for market promotion
activities pursuant to 7 CFR 900.700.
The major expenditures
recommended by the Board for the
2006–2007 fiscal year include
$1,150,000 for promotion, $169,000 for
personnel, $82,000 for meetings,
$77,000 for office expenses, $20,000 for
compliance, and $5,000 for industry
educational efforts. Budgeted expenses
for major items in 2005–2006 were
$159,000 for personnel, $150,000 for
compliance, $81,000 for meetings,
$93,000 for office expenses, and $5,000
for industry educational efforts. The
Board recommended an increased
assessment rate to generate larger
revenue to meet its expenses and keep
its reserves at an acceptable level.
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16:36 Nov 16, 2006
Jkt 211001
In deriving the recommended
assessment rate, the Board determined
assessable tart cherry production for the
fiscal period at 230 million pounds.
Therefore, total assessment income for
2006–2007 is estimated at $1,518,000
(230 million pounds × $0.0066). This
amount plus adequate funds in the
reserve and interest income will be
adequate to cover budgeted expenses.
Funds in the reserve (approximately
$411,000) will be kept within the
approximately six months’ operating
expenses as recommended by the Board
consistent with § 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 other
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
2006–2007 budget and those for
subsequent fiscal periods will be
reviewed and, as appropriate, approved
by USDA.
Final Regulatory Flexibility Analysis
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
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 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
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regulated area. Small agricultural
service firms, which includes handlers,
are defined by the Small Business
Administration (SBA) (13 CFR 121.201)
as those having annual receipts of less
than $6,500,000, and small agricultural
producers are defined as those having
annual receipts of less than $750,000.
The majority of 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
2001–2002 through 2005–2006,
approximately 93.8 percent of the U.S.
tart cherry crop, or 214.3 million
pounds, was processed annually. Of the
214.3 million pounds of tart cherries
processed, 62 percent was frozen, 26
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 37,100 acres in 2005–2006.
This represents a 26 percent decrease in
total bearing acres. Michigan leads the
nation in tart cherry acreage with 74
percent of the total and produces about
72 percent of the U.S. tart cherry crop
each year.
This rule increases the assessment
rate established for the Board and
collected from handlers for the 2006–
2007 and subsequent fiscal periods from
$0.0021 to $0.0066 per pound of tart
cherries.
The Board discussed continuing the
existing assessment rate, but concluded
that it needed the additional funds to
devote to its research and promotion
program which will be funded through
assessments.
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
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Federal Register / Vol. 71, No. 222 / Friday, November 17, 2006 / Rules and Regulations
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.
The 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.
USDA has not identified any relevant
Federal rules that duplicate, overlap, or
conflict with this rule.
A proposed rule was published in the
Federal Register on June 21, 2006 (71
FR 35562). Copies of the proposed rule
were mailed or sent via facsimile to all
Board members and cherry handlers.
Finally, the proposed rule was made
available through the Internet USDA
and the Office of the Federal Register. A
20-day comment period ending July 11,
2006, was provided to allow interested
persons to respond to the proposal. One
comment was received.
The commenter opposed the proposal
on the basis that the increased
assessment rate is indefinite and that
Congress should vote on it. The
commenter also stated that the
recommended assessment rate
represents a large increase and that we
are, in essence, raising taxes on people
who have no representation that is
directly accountable to those people.
Finally, the commenter was of the view
that federalism issues and Executive
Order 13132 applies. In response to the
commenter, and as previously stated in
this action, the tart cherry marketing
order, as issued in accordance with the
Agriculture Marketing Act of 1937,
provides the authority for the Board,
with USDA approval, to formulate a
budget and collect assessments from
handlers to administer the program. The
members of the Board are producers and
handlers who are nominated and
elected by their peers to represent their
respective production areas/districts to
address issues that come before the
Board. The assessment rate is
formulated and discussed in a public
meeting. All directly affected persons
have an opportunity to participate and
provide input. Finally, this rule does
not have sufficient Federalism
implications to warrant an assessment
under Executive Order 13132.
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16:36 Nov 16, 2006
Jkt 211001
Accordingly, no changes will be made
to this rule based on the comment
received.
A small business guide on complying
with fruit, vegetable, and specialty crop
marketing agreements and orders may
be viewed at: https://www.ams.usda.gov/
fv/moab.html. Any questions about the
compliance guide should be sent to Jay
Guerber at the previously mentioned
address in the FOR FURTHER INFORMATION
CONTACT section.
After consideration of all relevant
material presented, including the
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 2006–2007 fiscal period
began on July 1, 2006, 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. Further,
handlers are aware of this action which
was unanimously recommended by the
Board at a public meeting. Also, a 20day comment period was provided for
in the proposed rule.
List of Subjects in 7 CFR Part 930
Marketing agreements, Reporting and
recordkeeping requirements, Tart
cherries.
I 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
1. The authority citation for 7 CFR
part 930 continues to read as follows:
I
Authority: 7 U.S.C. 601–674.
2. Section 930.200 is revised to read
as follows:
I
§ 930.200
Assessment rate.
On and after July 1, 2006, the
assessment rate imposed on handlers
shall be $0.0066 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 costs of the new research and
promotion program and $0.0016 per
pound of cherries to cover
administrative expenses.
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66835
Dated: November 14, 2006.
Lloyd C. Day,
Administrator, Agricultural Marketing
Service.
[FR Doc. E6–19460 Filed 11–16–06; 8:45 am]
BILLING CODE 3410–02–P
DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Part 948
[Docket No. FV06–948–1 FIR]
Irish Potatoes Grown in Colorado;
Suspension of Continuing Assessment
Rate
Agricultural Marketing Service,
USDA.
ACTION: Final rule.
AGENCY:
SUMMARY: The Department of
Agriculture (USDA) is adopting, as a
final rule, without change, an interim
final rule which suspended the
continuing assessment rate established
for the Area No. 3 Colorado Potato
Administrative Committee (Committee)
for the 2006–2007 and subsequent fiscal
periods. The Committee, which locally
administers the marketing order
regulating the handling of potatoes
grown in Northern Colorado, made this
recommendation for the purpose of
lowering the monetary reserve to a level
consistent with program requirements.
The fiscal period begins July 1 and ends
June 30. The assessment rate will
remain suspended until an appropriate
rate is reinstated.
DATES: Effective Date: December 18,
2006.
FOR FURTHER INFORMATION CONTACT:
Teresa L. Hutchinson or Gary D. Olson,
Northwest Marketing Field Office,
Marketing Order Administration
Branch, Fruit and Vegetable Programs,
AMS, USDA; telephone: (503) 326–
2724; Fax: (503) 326–7440 or E-mail:
Teresa.Hutchinson@usda.gov or
GaryD.Olson@usda.gov.
Small businesses may request
information on complying with this
regulation by contacting Jay Guerber,
Marketing Order Administration
Branch, Fruit and Vegetable Programs,
AMS, USDA, 1400 Independence
Avenue, SW., STOP 0237, Washington,
DC 20250–0237; telephone: (202) 720–
2491, Fax: (202) 720–8938, or E-mail:
Jay.Guerber@usda.gov.
This rule
is issued under Marketing Agreement
No. 97 and Marketing Order No. 948,
both as amended (7 CFR part 948),
regulating the handling of potatoes
SUPPLEMENTARY INFORMATION:
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]]>Agencies
[Federal Register Volume 71, Number 222 (Friday, November 17, 2006)]
[Rules and Regulations]
[Pages 66833-66835]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E6-19460]
-----------------------------------------------------------------------
DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Part 930
[Docket No. FV06-930-2 FR]
Tart Cherries Grown in the States of Michigan, et al.; Increased
Assessment Rate
AGENCY: Agricultural Marketing Service, USDA.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This rule increases the assessment rate established for the
Cherry Industry Administrative Board (Board) for the 2006-2007 fiscal
year and subsequent fiscal years from $0.0021 to $0.0066 per pound to
fund the Board's administrative expenses and its new research and
promotion program. Authorization to assess tart cherry handlers enables
the Board to incur expenses that are reasonable and necessary to
administer the program. The Board locally administers the marketing
order which regulates the handling of tart cherries grown in the States
of Michigan, New York, Pennsylvania, Oregon, Utah, Washington, and
Wisconsin. The fiscal year began July 1, 2006, and ends June 30, 2007.
The assessment rate will remain in effect indefinitely unless modified,
suspended, or terminated.
DATES: Effective Date: This final rule becomes effective November 20,
2006.
FOR FURTHER INFORMATION CONTACT: Dawana J. Clark or Kenneth G. Johnson,
DC Marketing Field Office, Marketing Order Administration Branch, Fruit
and Vegetable Programs, AMS, USDA, Unit 155, 4700 River Road,
Riverdale, Maryland 20737; telephone: (301) 734-5243, Fax: (301) 734-
5275, or e-mail: Dawana.Clark@usda.gov or Kenneth.Johnson@usda.gov.
Small businesses may request information on complying with this
regulation by contacting Jay Guerber, Marketing Order Administration
Branch, Fruit and Vegetable Programs, AMS, USDA, 1400 Independence
Avenue, SW., STOP 0237, Washington, DC 20250-0237; telephone: (202)
720-2491, Fax: (202) 720-8938, or e-mail: Jay.Guerber@usda.gov.
SUPPLEMENTARY INFORMATION: This final rule is issued under Marketing
Agreement and Order No. 930, as amended (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 final rule has been reviewed under Executive Order 12988,
Civil Justice Reform. Under the marketing order now in effect, tart
cherries 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 July 1, 2006, and continue until amended, suspended, or
terminated. This rule will not preempt any State or local laws,
regulations, or policies, unless they present an irreconcilable
conflict with this rule.
The Act provides that administrative proceedings must be exhausted
before parties may file suit in court. Under section 608c(15)(A) of the
Act, any handler subject to an order may file with USDA a petition
stating that the order, any provision of the order, or any obligation
imposed in connection with the order is not in accordance with law and
request a modification of the order or to be exempted therefrom. 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 final rule increases the assessment rate established for the
Board for the 2006-2007 and subsequent fiscal years for tart cherries
from $0.0021 to $0.0066 per pound of tart cherries to fund the Board's
administrative expenses and its new research and promotion program.
The tart cherry marketing order provides authority for the Board,
with 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 to collect such assessment appears in Sec. 930.41 of the order. In
addition, Sec. 930.48 of the order provides that the Board, with the
approval of USDA, may establish or provide for the establishment of
production research, marketing research, and market development
projects 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 2003-2004 fiscal year, the Board recommended, and USDA
approved, an assessment rate of $0.0021 per pound of tart cherries
handled that would continue in effect from fiscal
[[Page 66834]]
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 March 16, 2006, and recommended 2006-2007
expenditures of $1,523,000 and an assessment rate of $0.0066 per pound
of tart cherries. Eighteen of the nineteen Board members voted in
support of the assessment rate increase. One Board seat is vacant. In
comparison, last year's budgeted expenses were $488,000. The assessment
rate of $0.0066 is $0.0045 higher than the rate currently in effect.
The Board recommended that the assessment rate be increased to cover
its administrative expenses and fund a new research and promotion
program which will commence in Fall 2006. The $0.0066 assessment rate
will cover the costs of the research and promotion program which will
be assessed at $0.005 per pound (or $10 per ton) of cherries for
processing and $0.0016 per pound for administrative expenses. The
$0.0016 per pound for administrative expenses will be a reduction from
the 2005-2006 assessment rate of $0.0021 per pound. The Board believes
that its new research and promotion program is the best way for the
industry to develop both stronger demand for tart cherries and tart
cherry products and increase sales opportunities.
According to a recent Board survey, both growers and handlers
believe a research and promotion program will benefit the industry.
This program will be directed primarily at consumers and retail
nutrition advisors, and employ promotional strategies, such as print
advertising. All tart cherry handlers regulated under the marketing
order will pay the proposed assessment rate to fund the new research
and promotion program. However, certain organic handlers may be exempt
from paying assessments for market promotion activities pursuant to 7
CFR 900.700.
The major expenditures recommended by the Board for the 2006-2007
fiscal year include $1,150,000 for promotion, $169,000 for personnel,
$82,000 for meetings, $77,000 for office expenses, $20,000 for
compliance, and $5,000 for industry educational efforts. Budgeted
expenses for major items in 2005-2006 were $159,000 for personnel,
$150,000 for compliance, $81,000 for meetings, $93,000 for office
expenses, and $5,000 for industry educational efforts. The Board
recommended an increased assessment rate to generate larger revenue to
meet its expenses and keep its reserves at an acceptable level.
In deriving the recommended assessment rate, the Board determined
assessable tart cherry production for the fiscal period at 230 million
pounds. Therefore, total assessment income for 2006-2007 is estimated
at $1,518,000 (230 million pounds x $0.0066). This amount plus adequate
funds in the reserve and interest income will be adequate to cover
budgeted expenses. Funds in the reserve (approximately $411,000) will
be kept within the approximately six months' operating expenses as
recommended by the Board consistent with 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 other 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 2006-2007 budget and those for subsequent fiscal
periods will be reviewed and, as appropriate, approved by USDA.
Final Regulatory Flexibility Analysis
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 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 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, are defined
by the Small Business Administration (SBA) (13 CFR 121.201) as those
having annual receipts of less than $6,500,000, and small agricultural
producers are defined as those having annual receipts of less than
$750,000. The majority of 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 2001-2002 through 2005-2006, approximately 93.8
percent of the U.S. tart cherry crop, or 214.3 million pounds, was
processed annually. Of the 214.3 million pounds of tart cherries
processed, 62 percent was frozen, 26 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 37,100 acres in 2005-2006. This represents a 26 percent
decrease in total bearing acres. Michigan leads the nation in tart
cherry acreage with 74 percent of the total and produces about 72
percent of the U.S. tart cherry crop each year.
This rule increases the assessment rate established for the Board
and collected from handlers for the 2006-2007 and subsequent fiscal
periods from $0.0021 to $0.0066 per pound of tart cherries.
The Board discussed continuing the existing assessment rate, but
concluded that it needed the additional funds to devote to its research
and promotion program which will be funded through assessments.
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
[[Page 66835]]
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.
The 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.
USDA has not identified any relevant Federal rules that duplicate,
overlap, or conflict with this rule.
A proposed rule was published in the Federal Register on June 21,
2006 (71 FR 35562). Copies of the proposed rule were mailed or sent via
facsimile to all Board members and cherry handlers. Finally, the
proposed rule was made available through the Internet USDA and the
Office of the Federal Register. A 20-day comment period ending July 11,
2006, was provided to allow interested persons to respond to the
proposal. One comment was received.
The commenter opposed the proposal on the basis that the increased
assessment rate is indefinite and that Congress should vote on it. The
commenter also stated that the recommended assessment rate represents a
large increase and that we are, in essence, raising taxes on people who
have no representation that is directly accountable to those people.
Finally, the commenter was of the view that federalism issues and
Executive Order 13132 applies. In response to the commenter, and as
previously stated in this action, the tart cherry marketing order, as
issued in accordance with the Agriculture Marketing Act of 1937,
provides the authority for the Board, with USDA approval, to formulate
a budget and collect assessments from handlers to administer the
program. The members of the Board are producers and handlers who are
nominated and elected by their peers to represent their respective
production areas/districts to address issues that come before the
Board. The assessment rate is formulated and discussed in a public
meeting. All directly affected persons have an opportunity to
participate and provide input. Finally, this rule does not have
sufficient Federalism implications to warrant an assessment under
Executive Order 13132.
Accordingly, no changes will be made to this rule based on the
comment received.
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/fv/moab.html. Any questions about the compliance
guide should be sent to Jay Guerber at the previously mentioned address
in the FOR FURTHER INFORMATION CONTACT section.
After consideration of all relevant material presented, including
the 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 2006-2007
fiscal period began on July 1, 2006, 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. Further,
handlers are aware of this action which was unanimously recommended by
the Board at a public meeting. Also, a 20-day comment period was
provided for in the proposed 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 930.200 is revised to read as follows:
Sec. 930.200 Assessment rate.
On and after July 1, 2006, the assessment rate imposed on handlers
shall be $0.0066 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 costs of the
new research and promotion program and $0.0016 per pound of cherries to
cover administrative expenses.
Dated: November 14, 2006.
Lloyd C. Day,
Administrator, Agricultural Marketing Service.
[FR Doc. E6-19460 Filed 11-16-06; 8:45 am]
BILLING CODE 3410-02-P
