Tart Cherries Grown in the States of Michigan, New York, Pennsylvania, Oregon, Utah, Washington and Wisconsin; Changes to Subcommittee Size and Addition of Term Limits, 44792-44795 [2020-15201]

Download as PDF 44792 Federal Register / Vol. 85, No. 143 / Friday, July 24, 2020 / Proposed Rules Other Foods Considered for Addition to the List In its research, AMS identified several bioengineered foods that are at various stages of authorization or have been authorized for commercial production but are not yet in legal commercial production for human food. Although AMS believes these bioengineered foods do not yet meet the criteria in 7 CFR 66.7(a)(4) to be added to the List, AMS is seeking public comment to determine if additional information is publicly available. 1. Cowpea: Nigeria recently authorized the commercial release of pod-borer resistant cowpea (Event— AAT709A), bioengineered for lepidopteran insect pest (Maruca vitrata) resistance.6 AMS seeks comment on whether cowpea is in legal commercial production for human food, or would be in legal commercial production for human food when AMS initiates the rulemaking process.7 If cowpea is added to the List, AMS also seeks comment on whether the addition should include any modifiers that would more accurately describe the type of cowpea that is bioengineered, such as pod-borer resistant cowpea or insect resistant cowpea. 2. Rice: AMS is aware that the Philippine Department of Agriculture approved the safety of bioengineered rice (Event—GR2E, Production of provitamin A carotenoids), also known as golden rice, for use as human food.8 While this approval has to do with the safety of the rice as human food, the rice is not yet authorized for commercial production. Because this rice has not yet been authorized for commercial release and is not in legal commercial production, it does not meet the criteria identified in 7 CFR 66.7(a)(4) and AMS is not recommending it be added to the List. AMS seeks comment on its understanding of the current status of this rice. After completing its research, AMS has not identified any other foods that it believes would meet the criteria to be included on the List. AMS requests public comment on any other foods not mentioned above that it should consider for addition to the List. Any comments not directly related to the addition, deletion or modification of the potential items for the List will not be considered nor will recommendations that are not accompanied by data and other information to support the recommended action. After reviewing the comments on this notice, AMS will 2 Agricultural Biotechnology Annual—2019, [Brazil—Agricultural Biotechnology Report] https:// apps.fas.usda.gov/newgainapi/api/Report/ DownloadReportByFileName?fileName= Agricultural%20Biotechnology%20Annual_ Brasilia_Brazil_10-20-2019. 3 Consultations on Food from New Plant Varieties, https://www.accessdata.fda.gov/scripts/ fdcc/?set=Biocon&id=CTC175-A. 4 83 FR 65819. 5 Consultations on Food from New Plant Varieties, https://www.accessdata.fda.gov/scripts/ fdcc/index.cfm?set=Biocon& id=SEM%2D0CZW3%2D2, Consultations on Food from New Plant Varieties, https://www.access data.fda.gov/scripts/fdcc/index.cfm?set=Biocon& id=SEM%2D0ZW20%2D7. 6 Agricultural Biotechnology Annual—2019, Nigeria Approves the Commercial Release of Bt. Pod-Borer Resistant Cowpea https://apps.fas. usda.gov/newgainapi/api/Report/Download ReportByFileName?fileName=Agricultural %20Biotechnology%20Annual_Lagos_Nigeria_521-2019 7 Pod-borer Resistant Cowpea Project, https:// www.aatf-africa.org/wp-content/uploads/2019/06/ Cowpea-Project.pdf, Event Name AAT709A, https:// www.isaaa.org/gmapprovaldatabase/event/ default.asp?EventID=543&Event=AAT709A. 8 Philippines approves Golden Rice for direct use as food and feed, or for processing, https:// www.irri.org/news-and-events/news/philippinesapproves-golden-rice-direct-use-food-and-feed-orprocessing. 2018 and planted approximately 4,000 hectares for commercial production in the 2018/2019 crop year.2 As a result, AMS believes that sugarcane should be added to the List. Consistent with other items on the List, AMS would initially propose that sugarcane include ‘‘(insectresistant 3)’’ because there is currently only one bioengineered trait used in sugarcane production. As stated in the preamble to the final rule,4 if other BE versions of listed foods are authorized and become legally available, AMS would revise the listing during the annual update process to be more generic. Therefore, AMS seeks comment on whether it should undertake rulemaking to add ‘‘Sugarcane (insectresistant)’’ to the List. jbell on DSKJLSW7X2PROD with PROPOSALS Amendments to the List 1. Squash (summer): Squash (summer) is currently included on the List but AMS proposes to add an additional modifier to reflect that the only trait for bioengineered summer squash that is currently available is virus-resistance.5 Therefore, AMS would add ‘‘virus-resistant’’ to the existing modifier ‘‘summer,’’ so that squash on the list would read ‘‘Squash (summer, virus-resistant).’’ This change would be consistent with the treatment of other items on the list, where modifiers are included when only one bioengineered trait is available, as is the case with eggplant, papaya, and pineapple. Therefore, AMS seeks comment on whether it should add ‘‘virus-resistant’’ as a modifier to the existing entry of ‘‘Squash (summer).’’ VerDate Sep<11>2014 18:02 Jul 23, 2020 Jkt 250001 PO 00000 Frm 00004 Fmt 4702 Sfmt 4702 determine whether it should initiate rulemaking to update the List. Any changes to the regulations would be reflected in an amendment to the regulations found at 7 CFR part 66. As stated at 7 CFR 66.7(b), regulated entities would have 18 months following the effective date of the updated List of Bioengineered Foods to revise food labels to reflect changes to the List in accordance with the disclosure requirements of 7 CFR part 66. Authority: 7 U.S.C. 1621 et seq. Bruce Summers, Administrator, Agricultural Marketing Service. [FR Doc. 2020–14933 Filed 7–23–20; 8:45 am] BILLING CODE P DEPARTMENT OF AGRICULTURE Agricultural Marketing Service 7 CFR Part 930 [Doc. No. AMS–SC–20–0036; SC20–930–3 PR] Tart Cherries Grown in the States of Michigan, New York, Pennsylvania, Oregon, Utah, Washington and Wisconsin; Changes to Subcommittee Size and Addition of Term Limits Agricultural Marketing Service, USDA. ACTION: Proposed rule. AGENCY: This proposed rule invites comments on a recommendation from the Cherry Industry Administrative Board (Board) to change subcommittee size and add term limits under the marketing order for tart cherries grown in the States of Michigan, New York, Pennsylvania, Oregon, Utah, Washington and Wisconsin. DATES: Comments must be received by August 24, 2020. ADDRESSES: Interested persons are invited to submit written comments concerning this proposal. Comments must be sent to the Docket Clerk, Marketing Order and Agreement Division, Specialty Crops Program, AMS, USDA, 1400 Independence Avenue SW, STOP 0237, Washington, DC 20250–0237; Fax: (202) 720–8938; or internet: https://www.regulations.gov. All comments should reference the document number and the date and page number of this issue of the Federal Register and will be made available for public inspection in the Office of the Docket Clerk during regular business hours or can be viewed at: https:// www.regulations.gov. All comments SUMMARY: E:\FR\FM\24JYP1.SGM 24JYP1 jbell on DSKJLSW7X2PROD with PROPOSALS Federal Register / Vol. 85, No. 143 / Friday, July 24, 2020 / Proposed Rules submitted in response to this proposal will be included in the record and will be made available to the public. Please be advised that the identity of the individuals or entities submitting the comments will be made public on the internet at the address provided above. FOR FURTHER INFORMATION CONTACT: Jennie M. Varela, Senior Marketing Specialist, or Christian D. Nissen, Regional Director, Southeast Marketing Field Office, Marketing Order and Agreement Division, Specialty Crops Program, AMS, USDA; Telephone: (863) 324–3375, Fax: (863) 291–8614, or Email: Jennie.Varela@usda.gov or Christian.Nissen@usda.gov. Small businesses may request information on complying with this regulation by contacting Richard Lower, Marketing Order and Agreement Division, Specialty Crops Program, AMS, USDA, 1400 Independence Avenue SW, STOP 0237, Washington, DC 20250–0237; Telephone: (202) 720– 2491, Fax: (202) 720–8938, or Email: Richard.Lower@usda.gov. SUPPLEMENTARY INFORMATION: This action, pursuant to 5 U.S.C. 553, proposes an amendment to regulations issued to carry out a marketing order as defined in 7 CFR 900.2(j). This proposed rule is issued under Marketing Agreement and Order 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. Part 930 (referred to as 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 Board locally administers the Order and is comprised of producers and handlers of tart cherries operating within the production area, and a public member. The Department of Agriculture (USDA) is issuing this proposed rule in conformance with Executive Orders 13563 and 13175. This action falls within a category of regulatory actions that the Office of Management and Budget (OMB) exempted from Executive Order 12866 review. Additionally, because this proposed rule does not meet the definition of a significant regulatory action, it does not trigger the requirements contained in the Executive Order 13771. See OMB’s Memorandum titled ‘‘Interim Guidance Implementing Section 2 of the Executive Order of January 30, 2017, titled ‘Reducing Regulation and Controlling Regulatory Costs’ ’’ (February 2, 2017). This proposed rule has been reviewed under Executive Order 12988, Civil VerDate Sep<11>2014 18:02 Jul 23, 2020 Jkt 250001 Justice Reform. This proposed rule is not intended to have retroactive effect. 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 a marketing order may file with USDA a petition stating that the marketing order, any provision of the marketing order, or any obligation imposed in connection with the marketing order is not in accordance with law and request a modification of the marketing order or to be exempted therefrom. A 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 proposed rule invites comments on changing subcommittee size and adding term limits to subcommittee appointments under the Order. This action would modify the composition of the subcommittee which reviews exemption requests by increasing the subcommittee from three members and an alternate to a maximum of five members with no alternate. This proposed rule would also add a fiveyear term limit to these appointments. This would provide more opportunities for participation and additional flexibility in staffing the subcommittee. The Board unanimously recommended this change at its March 19, 2020, meeting. Section 930.31 of the Order authorizes the Board to have committees and subcommittees as may be necessary. Section 930.59 authorizes handler diversion of tart cherries from the reserve for specific uses including, but not limited to, new product and new market development. Section 930.62 authorizes the Board, with approval of the Secretary, to exempt cherries from the assessment, volume regulation, and reserve provisions of the Order for specified uses. Both sections authorize the Board, with the approval of the Secretary, to establish requirements necessary and incidental to the administration of the Order. Section 930.159 of the Order’s administrative requirements specifies methods of handler diversion, including using cherries or cherry products for exempt purposes prescribed under § 930.162. Section 930.162, in part, establishes a Board appointed subcommittee, as authorized under PO 00000 Frm 00005 Fmt 4702 Sfmt 4702 44793 § 930.31 stated above, to assist the Board staff in reviewing the applications for exemptions. The proposed changes would impact this subcommittee. In seasons with volume regulation, handlers can sell cherries for exempt uses, including new products and new markets, and receive diversion credit rather than keeping that tonnage in reserve. The Board established the review subcommittee to review and grant exemption requests that have the potential to expand new markets. The subcommittee works with Board staff to carry out these tasks. Currently, this subcommittee consists of three members and one alternate, each having no handler affiliation but knowledge of the tart cherry industry. Section 930.162 further specifies that one of the members or the alternate should be the Board’s public member or the Board’s public member alternate, if either are available to serve. This proposed rule would increase the size of the subcommittee and include term limits for all subcommittee appointments. The current requirement regarding the service of the Board’s public member or their alternate would continue to remain in effect. The Board formed a New Product New Market Committee (Committee) to examine the current regulations regarding the subcommittee responsible for reviewing applications for exemption or the renewal of exemption. The formation and tasking of this Committee was largely the result of growing Board member perceptions that the exemption process was not fully understood or utilized by industry. The Committee reviewed the process for selecting subcommittee members, assessed subcommittee operations, and identified improvement opportunities. During Board meetings in January and March 2020, the Committee outlined some of the challenges associated with the subcommittee, including subcommittee participation. The Committee stated the current requirements, which stipulate the subcommittee shall consist of three members and one alternate, were limiting. The Committee did not recommend any changes to existing qualification requirements to serve on the subcommittee. Any subcommittee meeting and quorum requirements would be addressed in the Board’s bylaws. The Committee recommended expanding the size of the subcommittee to five members without mandating a set number of members required to conduct business. The Committee noted this adjustment would provide some flexibility in staffing the subcommittee E:\FR\FM\24JYP1.SGM 24JYP1 jbell on DSKJLSW7X2PROD with PROPOSALS 44794 Federal Register / Vol. 85, No. 143 / Friday, July 24, 2020 / Proposed Rules while allowing the subcommittee to fulfill its responsibility to review and grant exemptions. The Committee also recommended the inclusion of five-year term limits for all subcommittee appointments as this would help balance preserving subcommittee institutional knowledge with the need to include new participants and perspectives in the exemption review process. One Committee member also noted a fixed term may encourage more qualified people to pursue subcommittee participation because they would know their commitment to the Board would not be open-ended. The Committee also believed establishing a regular schedule of appointments through term limits should lead to increased awareness of when participation opportunities would be coming available. In discussing the Committee’s suggested changes, the Board was supportive of the recommendations to increase the number of seats on the subcommittee and to establish term limits for subcommittee participants. In reviewing the increase in the size of the subcommittee, the Board did not recommend a specific quorum requirement for the subcommittee to meet. However, the Board believes the additional subcommittee members would provide more candidates to draw from when scheduling subcommittee meetings and would help ensure some members were in attendance for each scheduled subcommittee meeting. The Board also agreed increasing the number of seats on the subcommittee would provide the opportunity for more participation. The Board concluded no changes should be made to the existing requirement that the public member or alternate public member, when available, serve on the subcommittee, but did decide removing the requirement for an alternate subcommittee member would simplify the structure of the subcommittee. The Board was also supportive of establishing term limits for subcommittee members. Members agreed having term limits would increase opportunities for others to serve on the subcommittee, and qualified candidates may be more willing to participate if there is a fixed term. Accordingly, the Board unanimously voted to increase the size of the subcommittee to a maximum of five total members with a five-year term limit for all appointments to the subcommittee. The Board believes the proposed changes would not only improve operational flexibility and administration of the subcommittee but VerDate Sep<11>2014 18:02 Jul 23, 2020 Jkt 250001 could encourage greater industry and small business participation on the subcommittee and in new product and new market projects. Initial 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 proposed rule 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 businesses subject to such actions in order that small businesses will not be unduly or disproportionately burdened. Marketing orders issued pursuant to the Act are unique in that they are brought about through group action of essentially small entities acting on their own behalf. There are approximately 400 producers of tart cherries in the production area and 40 handlers subject to regulation under the Order. Small agricultural producers are defined by the Small Business Administration (SBA) as those having annual receipts less than $1,000,000, and small agricultural service firms are defined as those whose annual receipts are less than $30,000,000 (13 CFR 121.201). According to the National Agricultural Statistics Service and Board data, the average annual price for tart cherries during the 2018–19 season was approximately $0.196 per pound. With total utilization at 288.8 million pounds for the 2018–2019 season, the total 2018–2019 value of the crop utilized for processing is estimated at $56.6 million. Dividing the crop value by the estimated number of producers (400) yields an estimated average receipt per producer of $141,500. This is well below the SBA threshold for small producers. A free on board (FOB) price of $0.80 per pound for frozen tart cherries was reported by the Food Institute during the 2018–2019 season. Based on utilization, this price represents a good estimate of the price for processed cherries. Multiplying the FOB price by total utilization of 288.8 million pounds results in an estimated handler-level tart cherry value of $231 million. Dividing this figure by the number of handlers (40) yields estimated annual handler receipts of $5.8 million, which is below the SBA threshold for small agricultural service firms. Assuming a normal distribution, the majority of producers and handlers of tart cherries may be classified as small entities. PO 00000 Frm 00006 Fmt 4702 Sfmt 4702 This proposed rule would increase the size of the subcommittee and add term limits to subcommittee appointments under § 930.162. This proposed action would modify the composition of the subcommittee which reviews exemption requests from three members and an alternate to a maximum of five members with no alternate. This proposed rule would also add a five-year term limit to these appointments. This would provide more opportunities for participation and additional flexibility in staffing the subcommittee. The authority for these proposed actions is provided in §§ 930.31, 930.59 and 930.62. These proposed changes were unanimously recommended by the Board at its meeting on March 19, 2020. It is not anticipated that this action would impose any additional costs on growers or handlers. This proposed change is administrative in nature, would not increase reporting requirements, and would provide the Board with improved flexibility in staffing the subcommittee. This proposed action would have a beneficial impact as it would encourage greater industry and small business participation in applying for diversion credit for new product and new market projects under § 930.162, and expanding the market for tart cherries. The subcommittee performs the function of reviewing and granting exemption requests that have the potential to expand these markets. Increasing the maximum size of the subcommittee without mandating that all seats be filled allows for more flexibility in conducting subcommittee business. The Board also believes the additional members would provide more candidates to draw from when scheduling subcommittee meetings and would help ensure some members were in attendance for each scheduled meeting. Adding a five-year term limit to subcommittee membership helps maintain subcommittee institutional knowledge while ensuring the inclusion of the perspective and insight from new participants. This proposed rule is expected to benefit the industry. The effects of this rule are not expected to be disproportionately greater or lesser for small handlers or producers than for larger entities. The Board considered one alternative to this proposal. The Board considered making no changes either to the structure of the subcommittee or the lack of term limits for serving thereon. However, when discussing the alternative, Board members assessed that increasing the subcommittee size E:\FR\FM\24JYP1.SGM 24JYP1 jbell on DSKJLSW7X2PROD with PROPOSALS Federal Register / Vol. 85, No. 143 / Friday, July 24, 2020 / Proposed Rules and the inclusion of term limits would not only increase the likelihood of subcommittee participation, but also promote increased industry confidence and trust in the subcommittee’s composition and function. Therefore, the alternative was rejected. 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 OMB and assigned OMB No. 0581–0177, Tart Cherries Grown in the States of Michigan, New York, Pennsylvania, Oregon, Utah, Washington, and Wisconsin. No changes in those requirements are necessary as a result of this action. Should any changes become necessary, they would be submitted to OMB for approval. This proposed rule would 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. USDA has not identified any relevant Federal rules that duplicate, overlap or conflict with this proposed rule. AMS is committed to complying with the E-Government Act, to promote the use of the internet and other information technologies to provide increased opportunities for citizen access to Government information and services, and for other purposes. The Board’s meeting was widely publicized throughout the tart cherry industry, and all interested persons were invited to attend the meetings and participate in Board deliberations on all issues. Like all Board meetings, the March 19, 2020, meeting was a public meeting, and all entities, both large and small, were able to express their views on this issue. Interested persons are invited to submit comments on this proposed rule, including the regulatory and information collection impacts of this action on small businesses. 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/rules-regulations/ moa/small-businesses. Any questions about the compliance guide should be sent to Richard Lower at the previously mentioned address in the FOR FURTHER INFORMATION CONTACT section. A 30-day comment period is provided to allow interested persons to respond to this proposal. All written comments timely received will be considered VerDate Sep<11>2014 18:02 Jul 23, 2020 Jkt 250001 before a final determination is made on this matter. List of Subjects in 7 CFR Part 930 Marketing agreements, Reporting and recordkeeping requirements, Tart Cherries. For the reasons set forth in the preamble, 7 CFR part 930 is proposed to be amended as follows: PART 930—TART CHERRIES GROWN IN THE STATES OF MICHIGAN, NEW YORK, PENNSYLVANIA, OREGON, UTAH, WASHINGTON, AND WISCONSIN DEPARTMENT OF ENERGY 10 CFR Part 431 [EERE–2019–BT–STD–0044] RIN 1904–AE41 Energy Conservation Program: Energy Conservation Standards for Certain Commercial and Industrial Equipment; Early Assessment Review; Commercial Clothes Washers Office of Energy Efficiency and Renewable Energy, Department of Energy. ACTION: Request for information. AGENCY: The U.S. Department of Energy (‘‘DOE’’) is undertaking an early assessment review for amended energy conservation standards for commercial clothes washers to determine whether to amend applicable energy conservation standards for this equipment. Specifically, through this request for information (‘‘RFI’’), DOE seeks data and information that could enable the agency to determine whether DOE should propose a ‘‘no-new-standard’’ determination because a more-stringent standard: Would not result in a significant savings of energy; is not technologically feasible; is not economically justified; or any combination of the foregoing. DOE welcomes written comments from the public on any subject within the scope of this document (including those topics not specifically raised in this RFI), as well as the submission of data and other relevant information concerning this early assessment review. DATES: Written comments and information are requested and will be accepted on or before September 22, 2020. ADDRESSES: Interested persons are encouraged to submit comments using the Federal eRulemaking Portal at http://www.regulations.gov. Follow the instructions for submitting comments. Alternatively, interested persons may submit comments, identified by docket number EERE–2019–BT–STD–0044, by any of the following methods: 1. Federal eRulemaking Portal: http:// www.regulations.gov. Follow the instructions for submitting comments. 2. Email: to CommClothesWashers2019STD0044@ ee.doe.gov. Include docket number EERE–2019–BT–STD–0044 in the subject line of the message. 3. Postal Mail: Appliance and Equipment Standards Program, U.S. Department of Energy, Building Technologies Office, Mailstop EE–5B, 1000 Independence Avenue SW, SUMMARY: 1. The authority citation for 7 CFR part 930 continues to read as follows: ■ Authority: 7 U.S.C. 601–674. 2. Amend § 930.162 by revising paragraph (d) to read as follows: ■ § 930.162 Exemptions. * * * * * (d) Review of applications. A Board appointed subcommittee shall review applications for exemption or renewal of exemption and either approve or deny the exemption. The subcommittee shall consist of up to five total members, each having no handler affiliation but knowledge of the tart cherry industry, one of whom shall be the public member or the alternate public member if available to serve. Each subcommittee appointment shall be limited to a fiveyear term. Any denial of an application for exemption or renewal of an existing exemption shall be served on the applicant by certified mail and shall state the reasons for the denial. Within 10 days after the receipt of a denial, the applicant may file an appeal, in writing, with the Deputy Administrator, Specialty Crops Program, supported by any arguments and evidence the applicant may wish to offer as to why the application for exemption or renewal of exemption should have been approved. The Deputy Administrator, upon consideration of such appeal, will take such action as deemed appropriate with respect to the application for exemption or renewal of exemption. * * * * * Bruce Summers, Administrator, Agricultural Marketing Service. [FR Doc. 2020–15201 Filed 7–23–20; 8:45 am] BILLING CODE 3410–02–P PO 00000 Frm 00007 Fmt 4702 Sfmt 4702 44795 E:\FR\FM\24JYP1.SGM 24JYP1

Agencies

[Federal Register Volume 85, Number 143 (Friday, July 24, 2020)]
[Proposed Rules]
[Pages 44792-44795]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-15201]


-----------------------------------------------------------------------

DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 930

[Doc. No. AMS-SC-20-0036; SC20-930-3 PR]


Tart Cherries Grown in the States of Michigan, New York, 
Pennsylvania, Oregon, Utah, Washington and Wisconsin; Changes to 
Subcommittee Size and Addition of Term Limits

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Proposed rule.

-----------------------------------------------------------------------

SUMMARY: This proposed rule invites comments on a recommendation from 
the Cherry Industry Administrative Board (Board) to change subcommittee 
size and add term limits under the marketing order for tart cherries 
grown in the States of Michigan, New York, Pennsylvania, Oregon, Utah, 
Washington and Wisconsin.

DATES: Comments must be received by August 24, 2020.

ADDRESSES: Interested persons are invited to submit written comments 
concerning this proposal. Comments must be sent to the Docket Clerk, 
Marketing Order and Agreement Division, Specialty Crops Program, AMS, 
USDA, 1400 Independence Avenue SW, STOP 0237, Washington, DC 20250-
0237; Fax: (202) 720-8938; or internet: https://www.regulations.gov. 
All comments should reference the document number and the date and page 
number of this issue of the Federal Register and will be made available 
for public inspection in the Office of the Docket Clerk during regular 
business hours or can be viewed at: https://www.regulations.gov. All 
comments

[[Page 44793]]

submitted in response to this proposal will be included in the record 
and will be made available to the public. Please be advised that the 
identity of the individuals or entities submitting the comments will be 
made public on the internet at the address provided above.

FOR FURTHER INFORMATION CONTACT: Jennie M. Varela, Senior Marketing 
Specialist, or Christian D. Nissen, Regional Director, Southeast 
Marketing Field Office, Marketing Order and Agreement Division, 
Specialty Crops Program, AMS, USDA; Telephone: (863) 324-3375, Fax: 
(863) 291-8614, or Email: [email protected] or 
[email protected].
    Small businesses may request information on complying with this 
regulation by contacting Richard Lower, Marketing Order and Agreement 
Division, Specialty Crops Program, AMS, USDA, 1400 Independence Avenue 
SW, STOP 0237, Washington, DC 20250-0237; Telephone: (202) 720-2491, 
Fax: (202) 720-8938, or Email: [email protected].

SUPPLEMENTARY INFORMATION: This action, pursuant to 5 U.S.C. 553, 
proposes an amendment to regulations issued to carry out a marketing 
order as defined in 7 CFR 900.2(j). This proposed rule is issued under 
Marketing Agreement and Order 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. Part 930 (referred to as 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 Board locally 
administers the Order and is comprised of producers and handlers of 
tart cherries operating within the production area, and a public 
member.
    The Department of Agriculture (USDA) is issuing this proposed rule 
in conformance with Executive Orders 13563 and 13175. This action falls 
within a category of regulatory actions that the Office of Management 
and Budget (OMB) exempted from Executive Order 12866 review. 
Additionally, because this proposed rule does not meet the definition 
of a significant regulatory action, it does not trigger the 
requirements contained in the Executive Order 13771. See OMB's 
Memorandum titled ``Interim Guidance Implementing Section 2 of the 
Executive Order of January 30, 2017, titled `Reducing Regulation and 
Controlling Regulatory Costs' '' (February 2, 2017).
    This proposed rule has been reviewed under Executive Order 12988, 
Civil Justice Reform. This proposed rule is not intended to have 
retroactive effect.
    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 a marketing order may file with USDA a 
petition stating that the marketing order, any provision of the 
marketing order, or any obligation imposed in connection with the 
marketing order is not in accordance with law and request a 
modification of the marketing order or to be exempted therefrom. A 
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 proposed rule invites comments on changing subcommittee size 
and adding term limits to subcommittee appointments under the Order. 
This action would modify the composition of the subcommittee which 
reviews exemption requests by increasing the subcommittee from three 
members and an alternate to a maximum of five members with no 
alternate. This proposed rule would also add a five-year term limit to 
these appointments. This would provide more opportunities for 
participation and additional flexibility in staffing the subcommittee. 
The Board unanimously recommended this change at its March 19, 2020, 
meeting.
    Section 930.31 of the Order authorizes the Board to have committees 
and subcommittees as may be necessary. Section 930.59 authorizes 
handler diversion of tart cherries from the reserve for specific uses 
including, but not limited to, new product and new market development. 
Section 930.62 authorizes the Board, with approval of the Secretary, to 
exempt cherries from the assessment, volume regulation, and reserve 
provisions of the Order for specified uses. Both sections authorize the 
Board, with the approval of the Secretary, to establish requirements 
necessary and incidental to the administration of the Order.
    Section 930.159 of the Order's administrative requirements 
specifies methods of handler diversion, including using cherries or 
cherry products for exempt purposes prescribed under Sec.  930.162. 
Section 930.162, in part, establishes a Board appointed subcommittee, 
as authorized under Sec.  930.31 stated above, to assist the Board 
staff in reviewing the applications for exemptions. The proposed 
changes would impact this subcommittee.
    In seasons with volume regulation, handlers can sell cherries for 
exempt uses, including new products and new markets, and receive 
diversion credit rather than keeping that tonnage in reserve. The Board 
established the review subcommittee to review and grant exemption 
requests that have the potential to expand new markets. The 
subcommittee works with Board staff to carry out these tasks. 
Currently, this subcommittee consists of three members and one 
alternate, each having no handler affiliation but knowledge of the tart 
cherry industry. Section 930.162 further specifies that one of the 
members or the alternate should be the Board's public member or the 
Board's public member alternate, if either are available to serve. This 
proposed rule would increase the size of the subcommittee and include 
term limits for all subcommittee appointments. The current requirement 
regarding the service of the Board's public member or their alternate 
would continue to remain in effect.
    The Board formed a New Product New Market Committee (Committee) to 
examine the current regulations regarding the subcommittee responsible 
for reviewing applications for exemption or the renewal of exemption. 
The formation and tasking of this Committee was largely the result of 
growing Board member perceptions that the exemption process was not 
fully understood or utilized by industry. The Committee reviewed the 
process for selecting subcommittee members, assessed subcommittee 
operations, and identified improvement opportunities.
    During Board meetings in January and March 2020, the Committee 
outlined some of the challenges associated with the subcommittee, 
including subcommittee participation. The Committee stated the current 
requirements, which stipulate the subcommittee shall consist of three 
members and one alternate, were limiting. The Committee did not 
recommend any changes to existing qualification requirements to serve 
on the subcommittee. Any subcommittee meeting and quorum requirements 
would be addressed in the Board's bylaws.
    The Committee recommended expanding the size of the subcommittee to 
five members without mandating a set number of members required to 
conduct business. The Committee noted this adjustment would provide 
some flexibility in staffing the subcommittee

[[Page 44794]]

while allowing the subcommittee to fulfill its responsibility to review 
and grant exemptions.
    The Committee also recommended the inclusion of five-year term 
limits for all subcommittee appointments as this would help balance 
preserving subcommittee institutional knowledge with the need to 
include new participants and perspectives in the exemption review 
process. One Committee member also noted a fixed term may encourage 
more qualified people to pursue subcommittee participation because they 
would know their commitment to the Board would not be open-ended. The 
Committee also believed establishing a regular schedule of appointments 
through term limits should lead to increased awareness of when 
participation opportunities would be coming available.
    In discussing the Committee's suggested changes, the Board was 
supportive of the recommendations to increase the number of seats on 
the subcommittee and to establish term limits for subcommittee 
participants. In reviewing the increase in the size of the 
subcommittee, the Board did not recommend a specific quorum requirement 
for the subcommittee to meet. However, the Board believes the 
additional subcommittee members would provide more candidates to draw 
from when scheduling subcommittee meetings and would help ensure some 
members were in attendance for each scheduled subcommittee meeting. The 
Board also agreed increasing the number of seats on the subcommittee 
would provide the opportunity for more participation. The Board 
concluded no changes should be made to the existing requirement that 
the public member or alternate public member, when available, serve on 
the subcommittee, but did decide removing the requirement for an 
alternate subcommittee member would simplify the structure of the 
subcommittee.
    The Board was also supportive of establishing term limits for 
subcommittee members. Members agreed having term limits would increase 
opportunities for others to serve on the subcommittee, and qualified 
candidates may be more willing to participate if there is a fixed term.
    Accordingly, the Board unanimously voted to increase the size of 
the subcommittee to a maximum of five total members with a five-year 
term limit for all appointments to the subcommittee. The Board believes 
the proposed changes would not only improve operational flexibility and 
administration of the subcommittee but could encourage greater industry 
and small business participation on the subcommittee and in new product 
and new market projects.

Initial 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 proposed rule 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 
businesses subject to such actions in order that small businesses will 
not be unduly or disproportionately burdened. Marketing orders issued 
pursuant to the Act are unique in that they are brought about through 
group action of essentially small entities acting on their own behalf.
    There are approximately 400 producers of tart cherries in the 
production area and 40 handlers subject to regulation under the Order. 
Small agricultural producers are defined by the Small Business 
Administration (SBA) as those having annual receipts less than 
$1,000,000, and small agricultural service firms are defined as those 
whose annual receipts are less than $30,000,000 (13 CFR 121.201).
    According to the National Agricultural Statistics Service and Board 
data, the average annual price for tart cherries during the 2018-19 
season was approximately $0.196 per pound. With total utilization at 
288.8 million pounds for the 2018-2019 season, the total 2018-2019 
value of the crop utilized for processing is estimated at $56.6 
million. Dividing the crop value by the estimated number of producers 
(400) yields an estimated average receipt per producer of $141,500. 
This is well below the SBA threshold for small producers. A free on 
board (FOB) price of $0.80 per pound for frozen tart cherries was 
reported by the Food Institute during the 2018-2019 season. Based on 
utilization, this price represents a good estimate of the price for 
processed cherries. Multiplying the FOB price by total utilization of 
288.8 million pounds results in an estimated handler-level tart cherry 
value of $231 million. Dividing this figure by the number of handlers 
(40) yields estimated annual handler receipts of $5.8 million, which is 
below the SBA threshold for small agricultural service firms. Assuming 
a normal distribution, the majority of producers and handlers of tart 
cherries may be classified as small entities.
    This proposed rule would increase the size of the subcommittee and 
add term limits to subcommittee appointments under Sec.  930.162. This 
proposed action would modify the composition of the subcommittee which 
reviews exemption requests from three members and an alternate to a 
maximum of five members with no alternate. This proposed rule would 
also add a five-year term limit to these appointments. This would 
provide more opportunities for participation and additional flexibility 
in staffing the subcommittee. The authority for these proposed actions 
is provided in Sec. Sec.  930.31, 930.59 and 930.62. These proposed 
changes were unanimously recommended by the Board at its meeting on 
March 19, 2020.
    It is not anticipated that this action would impose any additional 
costs on growers or handlers. This proposed change is administrative in 
nature, would not increase reporting requirements, and would provide 
the Board with improved flexibility in staffing the subcommittee.
    This proposed action would have a beneficial impact as it would 
encourage greater industry and small business participation in applying 
for diversion credit for new product and new market projects under 
Sec.  930.162, and expanding the market for tart cherries. The 
subcommittee performs the function of reviewing and granting exemption 
requests that have the potential to expand these markets. Increasing 
the maximum size of the subcommittee without mandating that all seats 
be filled allows for more flexibility in conducting subcommittee 
business. The Board also believes the additional members would provide 
more candidates to draw from when scheduling subcommittee meetings and 
would help ensure some members were in attendance for each scheduled 
meeting. Adding a five-year term limit to subcommittee membership helps 
maintain subcommittee institutional knowledge while ensuring the 
inclusion of the perspective and insight from new participants.
    This proposed rule is expected to benefit the industry. The effects 
of this rule are not expected to be disproportionately greater or 
lesser for small handlers or producers than for larger entities.
    The Board considered one alternative to this proposal. The Board 
considered making no changes either to the structure of the 
subcommittee or the lack of term limits for serving thereon. However, 
when discussing the alternative, Board members assessed that increasing 
the subcommittee size

[[Page 44795]]

and the inclusion of term limits would not only increase the likelihood 
of subcommittee participation, but also promote increased industry 
confidence and trust in the subcommittee's composition and function. 
Therefore, the alternative was rejected.
    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 OMB and assigned OMB No. 0581-0177, Tart 
Cherries Grown in the States of Michigan, New York, Pennsylvania, 
Oregon, Utah, Washington, and Wisconsin. No changes in those 
requirements are necessary as a result of this action. Should any 
changes become necessary, they would be submitted to OMB for approval.
    This proposed rule would 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. USDA has not 
identified any relevant Federal rules that duplicate, overlap or 
conflict with this proposed rule.
    AMS is committed to complying with the E-Government Act, to promote 
the use of the internet and other information technologies to provide 
increased opportunities for citizen access to Government information 
and services, and for other purposes.
    The Board's meeting was widely publicized throughout the tart 
cherry industry, and all interested persons were invited to attend the 
meetings and participate in Board deliberations on all issues. Like all 
Board meetings, the March 19, 2020, meeting was a public meeting, and 
all entities, both large and small, were able to express their views on 
this issue. Interested persons are invited to submit comments on this 
proposed rule, including the regulatory and information collection 
impacts of this action on small businesses.
    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/rules-regulations/moa/small-businesses. Any 
questions about the compliance guide should be sent to Richard Lower at 
the previously mentioned address in the FOR FURTHER INFORMATION CONTACT 
section.
    A 30-day comment period is provided to allow interested persons to 
respond to this proposal. All written comments timely received will be 
considered before a final determination is made on this matter.

List of Subjects in 7 CFR Part 930

    Marketing agreements, Reporting and recordkeeping requirements, 
Tart Cherries.

    For the reasons set forth in the preamble, 7 CFR part 930 is 
proposed to be 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. Amend Sec.  930.162 by revising paragraph (d) to read as follows:


Sec.  930.162  Exemptions.

* * * * *
    (d) Review of applications. A Board appointed subcommittee shall 
review applications for exemption or renewal of exemption and either 
approve or deny the exemption. The subcommittee shall consist of up to 
five total members, each having no handler affiliation but knowledge of 
the tart cherry industry, one of whom shall be the public member or the 
alternate public member if available to serve. Each subcommittee 
appointment shall be limited to a five-year term. Any denial of an 
application for exemption or renewal of an existing exemption shall be 
served on the applicant by certified mail and shall state the reasons 
for the denial. Within 10 days after the receipt of a denial, the 
applicant may file an appeal, in writing, with the Deputy 
Administrator, Specialty Crops Program, supported by any arguments and 
evidence the applicant may wish to offer as to why the application for 
exemption or renewal of exemption should have been approved. The Deputy 
Administrator, upon consideration of such appeal, will take such action 
as deemed appropriate with respect to the application for exemption or 
renewal of exemption.
* * * * *

Bruce Summers,
Administrator, Agricultural Marketing Service.
[FR Doc. 2020-15201 Filed 7-23-20; 8:45 am]
BILLING CODE 3410-02-P