Tart Cherries Grown in the States of Michigan, New York, Pennsylvania, Oregon, Utah, Washington, and Wisconsin; Amendments to the Marketing Order

<RULE> DEPARTMENT OF AGRICULTURE <SUBAGY>Agricultural Marketing Service</SUBAGY> <CFR>7 CFR Part 930</CFR> <DEPDOC>[Doc. No. AMS-SC-22-0052]</DEPDOC> <SUBJECT>Tart Cherries Grown in the States of Michigan, New York, Pennsylvania, Oregon, Utah, Washington, and Wisconsin; Amendments to the Marketing Order</SUBJECT> <HD SOURCE="HED">AGENCY:</HD> Agricultural Marketing Service, USDA. <HD SOURCE="HED">ACTION:</HD> Final rule. <SUM> <HD SOURCE="HED">SUMMARY:</HD> This rulemaking amends Marketing Order No. 930, which regulates the handling of tart cherries grown in Michigan, New York, Pennsylvania, Oregon, Utah, Washington, and Wisconsin. The amendments modify the basis for calculating district representation on the Cherry Industry Administrative Board (Board), change the starting date for the term of office for Board members, simplify the way a Board member's sales constituency is determined, clarify how the sales constituency applies to alternate Board members, change the timeframe for submitting nominations, and clarify when districts are subject to volume regulation. </SUM> <EFFDATE> <HD SOURCE="HED">DATES:</HD> This rule is effective November 3, 2025. </EFFDATE> <FURINF> <HD SOURCE="HED">FOR FURTHER INFORMATION CONTACT:</HD> Christy Pankey, Marketing Specialist, or Matthew Pavone, Chief, Rulemaking Services Branch, Market Development Division, Specialty Crops Program, AMS, USDA, 1400 Independence Avenue SW, Stop 0237, Washington, DC 20250-0237; Telephone: (202) 720-8085, or Email: <E T="03">Christy.Pankey@usda.gov</E> or <E T="03">Matthew.Pavone@usda.gov.</E> Small businesses may request information on complying with this regulation by contacting Antoinette Carter, Market Development Division, Specialty Crops Program, AMS, USDA, 1400 Independence Avenue SW, STOP 0237, Washington, DC 20250-0237; Telephone: (202) 720-8085, or Email: <E T="03">Antoinette.Carter@usda.gov.</E> </FURINF> <SUPLINF> <HD SOURCE="HED">SUPPLEMENTARY INFORMATION:</HD> This action, pursuant to 5 U.S.C. 553, amends regulations issued to carry out a marketing order as defined in 7 CFR 900.2(j). This final rule is issued under Marketing Order No. 930, as amended (7 CFR part 930), regulating the handling of tart cherries grown in 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 growers and handlers of tart cherries operating within the area of production and a public member. The Agricultural Marketing Service (AMS) is issuing this final rule in conformance with Executive Order 12866, as amended by Executive Order 13563. Executive Orders 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, reducing costs, harmonizing rules, and promoting flexibility. This action falls within a category of regulatory actions that the Office of Management and Budget (OMB) exempted from Executive Order 12866 review. This final rule has been reviewed under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, which requires agencies to consider whether their rulemaking actions would have Tribal implications. AMS has determined this final rule is unlikely to have substantial direct effects on one or more Indian Tribes, on the relationship between the Federal Government and Indian Tribes, or on the distribution of power and responsibilities between the Federal Government and Indian Tribes. This final rule has been reviewed under Executive Order 12988, Civil Justice Reform. This rule is not intended to have retroactive effect. This rule shall not be deemed to preclude, preempt, or supersede any State program covering tart cherries grown in Michigan, New York, Pennsylvania, Oregon, Utah, Washington, and Wisconsin. The Act provides that administrative proceedings must be exhausted before parties may file suit in court. Under section 8c(15)(A) of the Act (7 U.S.C. 608c(15)(A)), any handler subject to an order may file with the U.S. Department of Agriculture (USDA) a petition stating that the order, any provision of the order, or any obligation imposed in connection with the order is not in accordance with law and requesting a modification of the 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 no later than 20 days after the date of entry of the ruling. Section 8c(17) of the Act (7 U.S.C. 608c(17)) and § 900.43 of the supplemental rules of practice authorize the use of informal rulemaking (5 U.S.C. 553) to amend Federal fruit, vegetable, and nut marketing agreements and orders. USDA may use informal rulemaking to amend marketing orders depending upon the nature and complexity of the proposed amendment, the potential regulatory and economic impacts on affected entities, and any other relevant matters. AMS has considered these factors and has determined that the amendments in this final rule are not unduly complex and the nature of the amendments is appropriate for utilizing the informal rulemaking process to amend the Order. This final rule encompasses a number of changes that are primarily administrative and modernizing in nature. These changes clarify regulatory text or align it with current industry practices. The changes also simplify the administration of seating the Board. During the referendum, eligible producers and processors favored all the amendments. At least two-thirds of the eligible producers who voted, or those representing at least two-thirds of the eligible volume, supported each amendment. Additionally, participating processors representing more than fifty percent of the frozen or canned tart cherry volume within the production area voted in favor of each amendment. A discussion of the potential regulatory and economic impacts on affected entities is discussed later in the “Final Regulatory Flexibility Analysis” section of this final rule. Each amendment applies equally to all producers and handlers, regardless of size. Each amendment also has no additional impact on the reporting, record-keeping, or compliance costs of small businesses. All eighteen Board members voted unanimously in favor of all the proposed amendments to the Order following deliberations at a public meeting held on February 15, 2022, except that the amendment related to the method for establishing a member's sales constituency received one dissenting vote. The Board formally submitted its recommendation to amend the Order through the informal rulemaking process on April 8, 2022. At USDA's request, the Board conducted an additional meeting on December 15, 2022, to publicly clarify its original intent that the sales constituency provisions of the proposal would apply to both growers and handlers, and that sales constituency would be established at the time of nomination. Specifically, the Board revised the language of its initial recommendation to clarify that a member's sales constituency is established at the time of nomination. The Board then unanimously affirmed, with sixteen voting members present, to clarify that the established sales constituency applies to both handlers and growers for the duration of the term of office. A separate vote to remove the words “and appointment” from the language received fifteen votes in favor and one dissenting vote from a member who believed sales constituency should be calculated at the time of appointment. A proposed rule soliciting public comments on the proposed amendments was published in the <E T="04">Federal Register</E> on December 4, 2023 (88 FR 84075). AMS received two comments: one comment from the Wisconsin Department of Agriculture in support of all proposed amendments, noting the proposed changes would have a favorable impact on the Wisconsin cherry industry, and another from a Michigan handler opposing Proposal 1 of the proposed rulemaking. After reviewing the comments, AMS published a proposed rule and referendum order in the <E T="04">Federal Register</E> on July 19, 2024 (89 FR 58636). The proposed rule and referendum order addressed the comments received and also directed that a referendum among tart cherry producers and handlers (processors) be conducted from August 26, 2024, through September 16, 2024, to determine whether they favored the proposals. To become effective, each amendment had to be approved by at least two-thirds of the eligible producers voting in the referendum or by producers representing at least two-thirds of the eligible volume. In addition, each amendment had to be favored by processors representing more than fifty percent of the frozen or canned tart cherry volume within the production area. All the amendments met these requirements. A detailed summary of the referendum results is available online at <E T="03">https://www.ams.usda.gov/content/tart-cherry-producers-vote-amend-federal-marketing-order.</E> <HD SOURCE="HD1">Final Regulatory Flexibility Analysis</HD> Pursuant to requirements set forth in the Regulatory Flexibility Act (RFA) (5 U.S.C. 601-612), AMS has considered the economic impact of this action on small entities. Accordingly ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━ Preview showing 10k of 33k characters. Full document text is stored and available for version comparison. ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━