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Federal Register / Vol. 86, No. 154 / Friday, August 13, 2021 / Proposed Rules
regulation by contacting Richard Lower, Marketing Order and Agreement Division, Specialty Crops Program, AMS, USDA, 1400 Independence Avenue SW, STOP 0237, Washington, DC 202500237; Telephone: 202 720
2491, or Email: Richard.Lower@
usda.gov.
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 900.2j. This proposed rule is issued under Marketing Agreement and Order No. 930, 7 CFR
part 930, regulating the handling of tart cherries produced in the States of Michigan, New York, Pennsylvania, Oregon, Utah, Washington, and Wisconsin. Part 930 referred to as the Order is effective under the Agricultural Marketing Agreement Act of 1937, as amended 7 U.S.C. 601674, hereinafter referred to as the Act. The Cherry Industry Administrative Board Board or CIAB 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 12866 and 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 proposed 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. Agricultural Marketing Service AMS has determined that this proposed 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.

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This proposed 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. Agricultural Marketing Service AMS has determined that this proposed 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 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 608c15A of the Act, any handler subject to an order may file with USDA a petition stating that the order, any provision of the order, or any obligation imposed in connection with the order is not in accordance with law and request a modification of the order or to be exempted therefrom. Such handler is afforded the opportunity for a hearing on the petition. After the hearing, USDA would rule on the petition. The Act provides that the district court of the United States in any district in which the handler is an inhabitant, or has his or her principal place of business, has jurisdiction to review USDAs ruling on the petition, provided an action is filed not later than 20 days after the date of the entry of the ruling.
This action would revise the reporting requirements to include the sales and inventory information necessary to segregate between inventory that is five years old from inventory is less than five years old. This modification would allow the industry to better estimate how much inventory on-hand is still marketable and help ensure relevant inventory information is available when considering volume restrictions. This proposal was unanimously recommended by the Board at its February 25, 2021 meeting.
Section 930.70 of the Order provides, in part, authority to require handlers to submit reports of inventory. Section 930.70 further provides, with the approval of the Secretary, authority for the Board to collect other such information from handlers as needed to perform its duties. This proposed rule would utilize this authority to establish a new 930.170 under the rules and regulations of the Order. This new section would codify existing inventory
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reporting requirements and require handlers of tart cherries to annually report inventory that exceeds five years of age.
During Board meetings held on June 25, 2020 and January 14, 2021, the Board received industry feedback about enhancing tart cherry inventory transparency and developing a clearer understanding of the age of product in inventory. In these discussions, several members expressed concern that some of the inventory currently being reported may be product beyond its saleable date, which could create a misleading view of the actual amount of tart cherries available for market.
Currently, handlers submit inventory reports four times per year for reporting periods ending November 30, February 28, May 31, and June 30, with reports for those periods due on December 10, March 10, June 10, and July 10, respectively. This information is submitted on CIAB Form 3 Sales/
Inventory Report as previously approved by OMB and assigned OMB
No. 05810177. The report includes information on the type, form, and the amount of product, but does not include data regarding the age of products in inventory. The Board agreed that existing reporting requirements may limit their knowledge of the industrys on-hand tart cherry inventory and formed a subcommittee to review inventory reporting requirements.
The Board reviewed the subcommittee findings at the January 14, 2021, meeting, and expressed support for the subcommittees recommendation to adjust reporting requirements to account for inventory greater than five years old. The Board noted a five-year inventory cutoff date was appropriate because this period would sufficiently accommodate lifespans of nearly all existing products likely to be inventoried. Board members agreed having this additional information regarding the age of inventory would be beneficial.
The Order includes the authority for establishing volume regulation, and one element considered during those discussions is the amount of tart cherries available in inventory. The regulated season runs from July 1
through June 30. The current reporting aggregates the industrys inventory data and does not separately track older inventory, and this compilation could provide an incomplete view of the industrys marketable inventory. By segregating the accounting of inventory older than five years, the Board would have more precise information regarding inventory when discussing market issues.

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