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]
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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.
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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).’’
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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:
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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
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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
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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
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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
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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.
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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
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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
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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
https://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: https://
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
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]]>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]
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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.
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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
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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
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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
