Unknown. Final rule

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--- schema: federal-register doc_type: fedreg source_file: FR-2003-10-03.xml --- 68 192 Friday, October 3, 2003 Contents Agricultural Agricultural Marketing Service RULES Cherries

(tart)grown in— Michigan et al., 57321-57324 03-25110 Onions (sweet) grown in— Washington and Oregon, 57324-57326 03-25111 Soybean promotion, research, and consumer information: United Soybean Board; membership adjustment, 57326-57327 03-25113 PROPOSED RULES Dairy products; inspection and grading: Fees and charges increase, 57382-57383 03-25112 Agriculture Agriculture Department See Agricultural Marketing Service See Forest Service Air Force Air Force Department NOTICES Meetings: Scientific Advisory Board, 57435-57436 03-25058 Army Army Department See Engineers Corps NOTICES Meetings: Armed Forces Institute of Pathology Scientific Advisory Board, 57436 03-25183 Military traffic management: U.S. Bank's PowerTrack System; mandatory use by DOD personal property transportation service providers; correction, 57516 C3-24612 Blind Blind or Severely Disabled, Committee for Purchase From People Who Are See Committee for Purchase From People Who Are Blind or Severely Disabled Centers Centers for Disease Control and Prevention NOTICES Agency information collection activities; proposals, submissions, and approvals, 57463-57466 03-25083 03-25085 03-25086 Centers Centers for Medicare & Medicaid Services NOTICES Agency information collection activities; proposals, submissions, and approvals, 57466-57467 03-25062 03-25063 Coast Guard Coast Guard RULES Drawbridge operations: Wisconsin, 57356-57358 03-25187 Ports and waterways safety: Eighth Coast Guard District inland rivers; barges loaded with dangerous cargoes; reporting requirements; regulated navigation area, 57358-57366 03-25165 Lake Havasu, AZ; safety zone, 57368-57370 03-25046 San Diego Bay, CA— Safety zone, 57366-57368 03-25045 San Francisco Bay, CA— Safety zone, 57370-57372 03-25185 NOTICES Agency information collection activities; proposals, submissions, and approvals, 57478-57479 03-25186 Meetings: Ballast water discharge standard; introductions and spread of nonindigenous species, prevention; environmental impact statement, 57479-57480 03-25188 Commerce Commerce Department See Foreign-Trade Zones Board See Industry and Security Bureau See International Trade Administration See National Oceanic and Atmospheric Administration Committee for Purchase Committee for Purchase From People Who Are Blind or Severely Disabled NOTICES Procurement list; additions and deletions, 57402-57404 03-25156 03-25157 CITA Committee for the Implementation of Textile Agreements NOTICES Cotton, wool, and man-made textiles: Brazil, 57433-57434 03-25104 Textile and apparel categories: North American Free Trade Agreement— Gimped yarn made from certain filament yarn of nylon; origin rules; amendment petition; comment request, 57434-57435 03-25103 Defense Defense Department See Air Force Department See Army Department See Engineers Corps See Navy Department Drug Drug Enforcement Administration NOTICES *Applications, hearings, determinations, etc.:* Mallinckrodt, Inc., 57485 03-25101 Employment Employment and Training Administration NOTICES Agency information collection activities; proposals, submissions, and approvals, 57489-57491 03-25105 Employment Employment Standards Administration NOTICES Minimum wages for Federal and federally-assisted construction; general wage determination decisions, 57491-57492 03-24804 Energy Energy Department See Federal Energy Regulatory Commission Engineers Engineers Corps NOTICES Base realignment and closure: Surplus Federal property— Fort Ritchie Military Reservation, Cascade, MD, 57436 03-25182 EPA Environmental Protection Agency RULES Air programs: Commercial and industrial solid waste incinerators constructed on or before November 30, 1999; Federal plan requirements, 57517-57553 03-24004 NOTICES Agency information collection activities; proposals, submissions, and approvals, 57441-57444 03-25131 03-25132 Environmental statements; availability, etc.: Agency statements— Weekly receipts, 57444-57445 03-25139 Meetings: Environmental Policy and Technology National Advisory Council, 57445-57446 03-25135 TSCA Chemical Inventory Database; reporting requirements, 57446-57447 03-25275 Reports and guidance documents; availability, etc.: Small Local Governments Compliance Assistance Policy; comment request, 57447-57459 03-25137 Superfund; response and remedial actions, proposed settlements, etc.: Medallic Art Facility Site, CT, 57459 03-25138 Executive Executive Office of the President See Presidential Documents See Trade Representative, Office of United States FAA Federal Aviation Administration RULES Airworthiness directives: General Electric Co., 57346-57347 03-25000 McDonnell Douglas, 57339-57343 03-24681 Pilatus Aircraft Ltd., 57343-57345 03-24685 Saab, 57337-57339 03-24841 Class E airspace, 57347 03-25049 Standard instrument approach procedures, 57347-57351 03-25053 03-25054 PROPOSED RULES Airworthiness directives: Cessna, 57392-57398 03-25088 03-25089 NOTICES Exemption petitions; summary and disposition, 57504-57505 03-25048 Meetings: Aviation Rulemaking Advisory Committee, 57505 03-25051 National Parks Overflights Advisory Group, 57505-57506 03-25052 Passenger facility charges; applications, etc.: Pocatello Regional Airport, ID, 57506-57507 03-25050 FCC Federal Communications Commission NOTICES Agency information collection activities; proposals, submissions, and approvals, 57459-57461 03-25036 03-25037 Federal Election Federal Election Commission NOTICES Meetings; Sunshine Act, 57461 03-25247 Federal Energy Federal Energy Regulatory Commission NOTICES Electric rate and corporate regulation filings: SOWEGA Power LLC et al., 57438-57440 03-25018 Hydroelectric applications, 57440-57441 03-25020 *Applications, hearings, determinations, etc.:* FPL Energy Maine Hydro, LLC, 57438 03-25019 Federal Housing Federal Housing Finance Board NOTICES Meetings; Sunshine Act, 57461 03-25218 Federal Reserve Federal Reserve System NOTICES Banks and bank holding companies: Change in bank control, 57461-57462 03-25078 Formations, acquisitions, and mergers, 57462 03-25079 03-25190 Meetings: Consumer Advisory Council, 57462-57463 03-25191 Fish Fish and Wildlife Service NOTICES Endangered and threatened species: Recovery plans— Alabama beach mouse, 57483-57484 03-25087 Food Food and Drug Administration RULES Animal drugs, feeds, and related products: Praziquantel tablets, 57351-57352 03-25090 NOTICES Agency information collection activities; proposals, submissions, and approvals, 57468-57470 03-25042 03-25043 Foreign-Trade Zones Board Foreign-Trade Zones Board NOTICES *Applications, hearings, determinations, etc.:* Alabama Mercedes-Benz U.S. International, Inc.; motor vehicle manufacturing plant, 57404-57405 03-25161 Arkansas Lion Oil Co.; oil refining facilities, 57405 03-25162 New York Minolta Advance Technology, Inc.; bulk toner and toner cartridges manufacturing plant, 57405-57406 03-25163 Texas, 57406 03-25164 Forest Forest Service NOTICES Environmental statements; notice of intent: Manti-La Sal National Forest, UT, 57402 03-25129 Meetings: Land Between the Lakes Advisory Board, 57402 03-25080 GSA General Services Administration NOTICES Agency information collection activities; proposals, submissions, and approvals, 57463 03-25097 Health Health and Human Services Department See Centers for Disease Control and Prevention See Centers for Medicare & Medicaid Services See Food and Drug Administration See Health Resources and Services Administration See National Institutes of Health Health Health Resources and Services Administration NOTICES Agency information collection activities; proposals, submissions, and approvals, 57470 03-25092 Meetings: Interdisciplinary, Community-Based Linkages Advisory Committee, 57470-57471 03-25091 Homeland Homeland Security Department See Coast Guard Housing Housing and Urban Development Department RULES Community facilities: Urban empowerment zones and renewal communities; Round III designation, 57603-57606 03-25041 NOTICES Agency information collection activities; proposals, submissions, and approvals, 57480-57482 03-25038 03-25039 03-25040 Grants and cooperative agreements; availability, etc.: Facilities to assist homeless— Excess and surplus Federal property, 57482 03-24811 Industry Industry and Security Bureau NOTICES Export privileges, actions affecting: Mahdi, Abdulamir, 57406-57423 03-25076 Interior Interior Department See Fish and Wildlife Service See Land Management Bureau See Surface Mining Reclamation and Enforcement Office International International Trade Administration NOTICES Antidumping: Corrosion-resistant carbon steel flat products from— Korea, 57423-57424 03-25160 Preserved mushrooms from— India and China, 57424 03-25158 Stainless steel sheet and strip in coils from— Germany, 57424-57425 03-25159 Justice Justice Department See Drug Enforcement Administration See Justice Programs Office Justice Justice Programs Office NOTICES Meetings: Violence Against Women National Advisory Committee, 57485-57486 03-25073 Labor Labor Department See Employment and Training Administration See Employment Standards Administration NOTICES Agency information collection activities; proposals, submissions, and approvals, 03-25106 57486-57489 03-25107 03-25108 03-25109 Land Land Management Bureau NOTICES Public land orders: California, 57484 03-25066 Realty actions; sales, leases, etc.: California, 57484-57485 03-25065 Maritime Maritime Administration NOTICES *Applications, hearings, determinations, etc.:* Maersk Line, Ltd, 57507-57508 03-25077 National National Council on Disability NOTICES Meetings: Youth Advisory Committee, 57492 03-25102 National Highway National Highway Traffic Safety Administration NOTICES Agency information collection activities; proposals, submissions, and approvals, 57508-57511 03-25154 NIH National Institutes of Health NOTICES Agency information collection activities; proposals, submissions, and approvals, 57471-57472 03-25067 03-25068 Inventions, Government-owned; availability for licensing, 57472-57473 03-25072 Meetings: National Cancer Institute, 57473 03-25179 03-25180 National Institute of Allergy and Infectious Diseases, 57475-57476 03-25175 03-25176 03-25178 National Institute of Diabetes and Digestive and Kidney Diseases, 57476 03-25181 National Institute of Environmental Health Sciences, 57474-57475 03-25174 National Institute of Nursing Research, 57473-57474 03-25069 03-25070 03-25071 National Institute on Alcohol Abuse and Alcoholism, 57475-57476 03-25177 Scientific Review Center, 57476-57478 03-25171 03-25172 03-25173 NOAA National Oceanic and Atmospheric Administration RULES Fishery conservation and management: Alaska; fisheries of Exclusive Economic Zone— Pollock, 57381 03-25140 Caribbean, Gulf, and South Atlantic fisheries— South Atlantic pelagic sargassum habitat, 57375-57379 03-25149 West Coast States and Western Pacific fisheries— Pacific mackerel, 57379-57381 03-25141 PROPOSED RULES Fishery conservation and management: Caribbean, Gulf, and South Atlantic fisheries— Red grouper, 57400 03-25147 Shrimp, 57400-57401 03-25148 NOTICES Agency information collection activities; proposals, submissions, and approvals, 03-25143 57425-57426 03-25144 03-25145 Coastal zone management programs and estuarine sanctuaries: Consistency appeals— Islander East Pipeline Co., L.L.C., 57426-57427 03-24832 Marine mammals: Incidental taking; authorization letters, etc.— California Transportation Department; Richmond-San Rafael Bridge, San Francisco Bay; CA; seismic retrofit construction; Pacific harbor seals, etc., 57430-57433 03-25150 San Nicolas Island, CA; research activities; California Sea lions, Pacific harbor seals and northern elephant seals, 57427-57429 03-25142 Navy Navy Department NOTICES Inventions, Government-owned; availability for licensing, 57437 03-25059 03-25060 03-25081 Patent licenses; non-exclusive, exclusive, or partially exclusive: InnovaLight, Inc., 57437-57438 03-25061 Nuclear Nuclear Regulatory Commission RULES Materials licensees; financial assurance amendments, 57327-57337 03-25093 PROPOSED RULES Rulemaking petitions: Nuclear Energy Institute; denied, 57383-57392 03-25094 Office of U.S. Trade Office of United States Trade Representative See Trade Representative, Office of United States Postal Postal Service RULES Practice and procedure: Subpoenas, summonses, and court orders served on Office of Inspector General employees; compliance, 57372-57375 03-24619 Presidential Presidential Documents ADMINISTRATIVE ORDERS International Criminal Court; waiving prohibition on United States military assistance to parties of the Rome Statute (Presidential Determination No. 2003-40 of September 24, 2003), 57319 03-25285 SEC Securities and Exchange Commission NOTICES Agency information collection activities; proposals, submissions, and approvals, 57492 03-25115 Meetings; Sunshine Act, 57492-57493 03-25248 Self-regulatory organizations; proposed rule changes: American Stock Exchange LLC, 57493-57494 03-25117 03-25118 National Association of Securities Dealers, Inc., 57494-57496 03-25116 New York Stock Exchange, Inc., 57496-57498 03-25074 03-25075 State State Department RULES International Traffic in Arms regulations: Defense trade controls; general authorities and eligibility, 57352 03-25169 NOTICES Agency information collection activities; proposals, submissions, and approvals, 03-25168 57498-57499 03-25170 Grants and cooperative agreements; availability, etc.: Congress-Bundestag Youth Exchange Program, 57499-57503 03-25167 State State Justice Institute NOTICES Reports and guidance documents; availability, etc.: Grants, cooperative agreements, and contracts, guidelines, 57555-57602 03-24592 Surface Surface Mining Reclamation and Enforcement Office RULES Permanent program and abandoned mine land reclamation plan submissions: Ohio, 57352-57356 03-25056 PROPOSED RULES Permanent program and abandoned mine land reclamation plans submission: Kentucky, 57398-57400 03-25055 Surface Surface Transportation Board NOTICES Railroad operation, acquisition, construction, etc.: Union Pacific Railroad Co., 57511 03-25098 Railroad services abandonment: CSX Transportation, Inc., 57511-57512 03-24984 Textile Textile Agreements Implementation Committee See Committee for the Implementation of Textile Agreements Trade Trade Representative, Office of United States NOTICES Intellectual property rights, countries denying; identification: Various countries, 57503 03-25057 Trade Policy Staff Committee: U.S.-Morocco Free Trade Agreement— Environmental review, 57503-57504 03-25189 Transportation Transportation Department See Federal Aviation Administration See Maritime Administration See National Highway Traffic Safety Administration See Surface Transportation Board NOTICES Aviation proceedings: Agreements filed, weekly receipts, 57504 03-25155 Treasury Treasury Department PROPOSED RULES Drawback: Merchandise processing fees; claim eligibility based on substitution of finished petroleum derivatives [ **Editorial Note:** This joint document, published at 68 FR 56804 in the **Federal Register** of October 2, 2003, was inadvertently carried only under Customs and Border Protection Bureau in that issue's Table of Contents.] NOTICES Agency information collection activities; proposals, submissions, and approvals, 57512-57514 03-25151 03-25152 03-25153 Veterans Veterans Affairs Department NOTICES Meetings: Capital Asset Realignment for Enhanced Services Commission, 57514 03-25095 Homeless Veterans Advisory Committee, 57514-57515 03-25096 Separate Parts In This Issue Part II Environmental Protection Agency, 57517-57553 03-24004 Part III State Justice Institute, 57555-57602 03-24592 Part IV Housing and Urban Development Department, 57603-57606 03-25041 Reader Aids Consult the Reader Aids section at the end of this issue for phone numbers, online resources, finding aids, reminders, and notice of recently enacted public laws. To subscribe to the Federal Register Table of Contents LISTSERV electronic mailing list, go to http://listserv.access.gpo.gov and select Online mailing list archives, FEDREGTOC-L, Join or leave the list (or change settings); then follow the instructions. 68 192 Friday, October 3, 2003 Rules and Regulations DEPARTMENT OF AGRICULTURE Agricultural Marketing Service 7 CFR Part 930 [Docket No. FV03-930-3 FR] Tart Cherries Grown in the States of Michigan, et al.; Increased Assessment Rate AGENCY: Agricultural Marketing Service, USDA. ACTION: Final rule. SUMMARY: This final rule increases the assessment rate for tart cherries that are utilized in the production of tart cherry products from $0.0019 to $0.0021 per pound. The assessment rate was recommended by the Cherry Industry Administrative Board (Board) under Marketing Order No. 930 for the 2003-2004 and subsequent fiscal periods. The Board is responsible for local administration of the marketing order which regulates the handling of tart cherries grown in the production area. Authorization to assess tart cherry handlers enables the Board to incur expenses that are reasonable and necessary to administer the program. The fiscal period began July 1 and ends June 30. The assessment rate will remain in effect indefinitely unless modified, suspended, or terminated. EFFECTIVE DATE: This final rule becomes effective October 6, 2003. FOR FURTHER INFORMATION CONTACT: Patricia A. Petrella or Kenneth G. Johnson, Marketing Order Administration Branch, Fruit and Vegetable Programs, AMS, USDA, Suite 2A04, Unit 155, 4700 River Road, Riverdale, MD 20737, telephone:

(301)734-5243, or Fax: (301)-734-5275; or George Kelhart, Technical Advisor, Marketing Order Administration Branch, Fruit and Vegetable Programs, AMS, USDA, 1400 Independence Avenue, SW., STOP 0237, Washington, DC 20250-0237; telephone:

(202)720-2491, or Fax:

(202)720-8938. Small businesses may request information on complying with this regulation by contacting Jay Guerber, Marketing Order Administration Branch, Fruit and Vegetable Programs, AMS, USDA, 1400 Independence Avenue, SW., STOP 0237, Washington, DC 20250-0237; telephone:

(202)720-2491, Fax:

(202)720-8938, or e-mail: *Jay.Guerber@usda.gov.* SUPPLEMENTARY INFORMATION: This final rule is issued under Marketing Agreement and Order No. 930 (7 CFR part 930), regulating the handling of tart cherries grown in the States of Michigan, New York, Pennsylvania, Oregon, Utah, Washington, and Wisconsin, hereinafter referred to as the “order.” The marketing agreement and order are effective under the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), hereinafter referred to as the “Act.” The Department of Agriculture

(USDA)is issuing this rule in conformance with Executive Order 12866. This final rule has been reviewed under Executive Order 12988, Civil Justice Reform. Under the marketing order now in effect, tart cherry handlers are subject to assessments. Funds to administer the order are derived from such assessments. It is intended that the assessment rate as issued herein will be applicable to all assessable tart cherries beginning July 1, 2003, and continue until amended, suspended, or terminated. This rule will not preempt any State or local laws, regulations, or policies, unless they present an irreconcilable conflict with this rule. The Act provides that administrative proceedings must be exhausted before parties may file suit in court. Under section 608c(15)(A) of the Act, any handler subject to an order may file with USDA a petition stating that the order, any provision of the order, or any obligation imposed in connection with the order is not in accordance with law and request a modification of the order or to be exempted therefrom. Such handler is afforded the opportunity for a hearing on the petition. After the hearing USDA would rule on the petition. The Act provides that the district court of the United States in any district in which the handler is an inhabitant, or has his or her principal place of business, has jurisdiction to review USDA's ruling on the petition, provided an action is filed not later than 20 days after the date of the entry of the ruling. This final rule increases the assessment rate established for the Board for the 2003-2004 and subsequent fiscal periods for cherries that are utilized in the production of tart cherry products from $0.0019 to $0.0021 per pound of cherries. The tart cherry marketing order provides authority for the Board, with the approval of USDA, to formulate an annual budget of expenses and collect assessments from handlers to administer the program. The members of the Board are producers and handlers of tart cherries. They are familiar with the Board's needs and with the costs for goods and services in their local area and are thus in a position to formulate an appropriate budget and assessment rate. The assessment rate is formulated and discussed in a public meeting. Thus, all directly affected persons have an opportunity to participate and provide input. For the 2002-2003 fiscal period, the Board recommended, and the Department approved, an assessment rate that would continue in effect from fiscal period to fiscal period unless modified, suspended, or terminated by the USDA upon recommendation and information submitted by the Board or other information available to USDA. Section 930.42(a) of the order authorizes a reserve sufficient to cover one year's operating expenses. The increased rate is expected to generate enough income to meet the Board's operating expenses in 2003-2004. The Board met on January 23, 2003, and unanimously recommended 2003-2004 expenditures of $532,000. The industry completed a formal rulemaking proceeding which amended the assessment rate section by authorizing one assessment rate rather than two assessment rates for different tart cherry products [67 FR 51697]. The provisions requiring the establishment of different assessment rates for different products were removed. In their place, the Board is required to consider the volume of cherries used in making various products and the relative market value of those products in deciding whether the assessment rate should be a single, uniform rate applicable to all cherries or whether varying rates should be recommended for cherries manufactured into different products. In addition, the amended order provides that the assessment rate not apply to cherries diverted in orchard by growers, and those diverted by handlers through destruction at their plants. The Board recommended the amendment to allow them to establish one assessment rate for all tart cherry products handled. In making its recommendation, the Board stated that while a two-tiered assessment rate scheme may be appropriate in some years, it may not be in others due to the fact that the absolute and relative market values of various tart cherry products fluctuate from year to year. The amended order specifically provides that under section 930.41(f)(1) and

(2)the established assessment rate may be uniform, or may vary depending on the product the cherries are used to manufacture. The Board must consider the differences in the number of pounds of cherries utilized for various cherry products and the relative market values of such cherry products. On June 25, 2003 (68 FR 37726), a final rule was published in the **Federal Register** that established a single assessment rate for the 2002-2003 fiscal period for all tart cherries handled regardless of the product the cherries are used to manufacture. The Board determined that the markets for juice, juice concentrate, and puree were gaining in importance and that cherries used in such products should be assessed the same as those sold for use in assorted bakery items, as canned pie fill and as dried cherries. The Board considered the above items and decided that one assessment rate should be recommended for all cherry products during 2003-2004. According to the Board, processors have developed a strong market for juice and concentrate products over the past few years. There is considerable belief that juice will be one of the growth outlets for tart cherries. This derives from the industry's promotional efforts being undertaken for juice and concentrate products, the segmentation of the market into retail and industrial components, and the nutritional/nutraceutical profile of the product. As a result, there has been an increase in consumer recognition, acceptance, purchases, and the value of tart cherry juice and concentrate. According to the Board, prices received for tart cherry juice concentrate are now $25.00 per gallon or more. This is derived by using the fairly common conversion ratio of 100 pounds to the gallon for mid-west production, which has a raw product value of $0.25 per pound. Using a 50 gallon conversion for the product, as has been seen on the west coast, this represents a per pound value of $0.50. The difference in the west and mid-west conversion factors is that tart cherries produced in the western United States generally have a higher sugar content and larger fruit size, thus fewer raw product is needed. The average grower price received ranges between $0.17 to $0.20 per pound. According to the Board, puree products are as valuable and comparable to juice and juice concentrate products. The Board reported that the spot price for single strength puree for 2001 was about 60 cents per pound. The raw product equivalent

(RPE)volume of pureed fruit was 539,504 pounds which is about 0.15 percent of all processed fruit. The Board also reported for 2001 that the price for five plus one product was 67 cents per pound. Five plus one is a product of cherries and sugar which is manufactured by many processors (25 pounds of cherries and 5 pounds of sugar to make a 30 pound commercial container). It is the main product that handlers produce. Five plus one cherries are primarily sold and remanufactured into assorted bakery items, canned pie fill, and dried cherries. Since juice, juice concentrate, and puree are not considered to be low value products at this time, the Board considers one assessment to be appropriate. It is important to understand that product is moved around between production areas and may be converted into puree or concentrate at a later date. The market drives the processing of these various products each season. In comparing the costs of juice, juice concentrate, and puree, the Board has determined that current prices are similar for these products when compared to the 5 plus 1 product. The information received from the Board indicates that puree products are becoming a viable market and should be assessed at a higher assessment rate. As a result of last season's short crop, much of the tart cherry products released from inventory were in the form of tart cherry juice and/or juice concentrate. There is not much, if any, of this product that is available on the market today. The Board contends that given these factors, it is hard to suggest that juice/concentrate, or puree, are of lesser value than are the more traditional products such as pie-fill or individually quick frozen tart cherries. Thus, the Board determined that one assessment rate is appropriate for the 2003-04 fiscal period. Budgeted expenditures for the 2003-04 fiscal period were unanimously recommended at $532,000. The major expenditures recommended by the Board for the 2003-2004 fiscal period include $81,000 for meetings, $149,000 for compliance, $191,000 for personnel, $106,000 for office expenses, and $5,000 for industry educational efforts. Budgeted expenses for those items in 2002-2003 were $85,000 for meetings, $170,000 for compliance, $185,000 for personnel, $80,000 for office expenses, and $2,500 for industry educational efforts, respectively. In comparison, last year's budgeted expenditures were $522,500. Last season, the tart cherry industry experienced a significant frost mainly in Michigan which severely impacted the crop. Only 60 million pounds of cherries were produced in comparison to a normal crop of about 260 million pounds. The Board staff has responded to this decrease in funds by cutting its expenditures. The Board reduced its staff and Committee travel for meetings and used reserve funds to continue administrative operations in 2002-2003. The recommended assessment rate of $0.0021 is higher than the current rate of $0.0019 per pound. The Board recommended an increased assessment rate to generate larger revenue to meet its expenses and keep its reserves at an acceptable level. In deriving the recommended assessment rate in January, the Board estimated assessable tart cherry production for the fiscal period at 260 million pounds. However, actual production was 222 million pounds. Therefore, total assessment income for 2003-2004 based on actual production of 222 million pounds is $466,200. This amount plus adequate funds in the reserve and interest income will be adequate to cover budgeted expenses. Funds in the reserve (approximately $66,000) will be kept within the approximately six months' operating expenses as recommended by the Board consistent with section 930.42(a). The assessment rate established in this rule will continue in effect indefinitely unless modified, suspended, or terminated by USDA upon recommendation and other information submitted by the Board or other available information. Although the assessment rate is effective for an indefinite period, the Board will continue to meet prior to or during each fiscal period to recommend a budget of expenses and consider recommendations for modification of the assessment rate. The dates and times of Board meetings are available from the Board or the USDA. Board meetings are open to the public and interested persons may express their views at these meetings. USDA will evaluate Board recommendations and other available information to determine whether modifications of the assessment rate is needed. Further rulemaking will be undertaken as necessary. The Board's 2003-2004 budget and those for subsequent fiscal periods would be reviewed and, as appropriate, approved by the USDA. The Regulatory Flexibility Act and Effects on Small Businesses The Agricultural Marketing Service

(AMS)has considered the economic impact of this action on small entities and has prepared this final regulatory flexibility analysis. The Regulatory Flexibility Act

(RFA)allows AMS to certify that regulations do not have a significant economic impact on a substantial number of small entities. However, as a matter of general policy, AMS's Fruit and Vegetable Programs (Programs) no longer opts for such certification, but rather performs regulatory flexibility analyses for any rulemaking that would generate the interest of a significant number of small entities. Performing such analyses shifts the Programs' efforts from determining whether regulatory flexibility analyses are required to the consideration of regulatory options and economic or regulatory impacts. The purpose of the RFA is to fit regulatory actions to the scale of business subject to such actions in order that small businesses will not be unduly or disproportionately burdened. Marketing orders issued pursuant to the Act, and the rules issued thereunder, are unique in that they are brought about through group action of essentially small entities acting on their own behalf. Thus, both statutes have small entity orientation and compatibility. There are approximately 40 handlers of tart cherries who are subject to regulation under the order and approximately 900 producers of tart cherries in the regulated area. Small agricultural service firms have been defined by the Small Business Administration (13 CFR 121.201) as those having annual receipts less than $5,000,000, and small agricultural producers are those whose annual receipts are less than $750,000. A majority of the tart cherry handlers and producers may be classified as small entities. The Board unanimously recommended 2003-2004 expenditures of $532,000 and an assessment rate increase from $0.0019 to $0.0021 per pound. This rule increases the assessment rate established for the Board and collected from handlers for the 2003-2004 and subsequent fiscal periods for cherries that are utilized in the production of tart cherry products. The quantity of assessable tart cherries produced during the 2003-2004 crop year is 222 million pounds. Assessment income, based on this crop, along with interest income and reserves, would be adequate to cover budgeted expenses. The major expenditures recommended by the Board for the 2003-2004 fiscal period include $81,000 for meetings, $149,000 for compliance, $191,000 for personnel, $106,000 for office expenses, and $5,000 for industry educational efforts. Budgeted expenses for those items in 2002-2003 were $85,000 for meetings, $170,000 for compliance, $185,000 for personnel, $80,000 for office expenses, and $2,500 for industry educational efforts, respectively. The Board discussed the alternative of continuing the existing assessment rate, but concluded that would cause the amount in the operating reserve to be reduced to an unacceptable level. The principal demand for tart cherries is in the form of processed products. Tart cherries are dried, frozen, canned, juiced, and pureed. Data from the National Agricultural Statistics Service

(NASS)states that during the period 1995/96 through 2002/03, approximately 92 percent of the U.S. tart cherry crop, or 285.7 million pounds, was processed annually. Of the 285.7 million pounds of tart cherries processed, 58 percent was frozen, 30 percent was canned, and 12 percent was utilized for juice. Based on NASS data, acreage in the United States devoted to tart cherry production has been trending downward. Since 1987/88 tart cherry bearing acres have decreased from 50,050 acres, to 36,900 acres in the 2002/03 crop year. In 2002/03, 93 percent of domestic tart cherry acreage was located in four States: Michigan, New York, Utah, and Wisconsin. Michigan leads the nation in tart cherry acreage with 74 percent of the total. Michigan produces about 75 percent of the U.S. tart cherry crop each year. Tart cherry acreage in Michigan decreased from 28,500 acres in 2000-2001, to 27,400 acres in 2002-2003. In deriving the recommended assessment rate, the Board estimated assessable tart cherry production for the fiscal period at 260 million pounds. However, actual 2003-2004 production is approximately 222 million pounds. Cherries used for handler destruction and grower diversion outlets are exempt from assessment obligations. Funds in the reserve (approximately $66,000) will be kept within the approximately six months' operational expenses as recommended by the Board which would be consistent with the order (§ 930.42(a)). While this action will impose additional costs on handlers, the costs are in the form of assessments which are applied uniformly. Some of the costs may also be passed on to producers. However, these costs are offset by the benefits derived from the operation of the marketing order. The Board's meeting was widely publicized throughout the tart cherry industry and all interested persons were invited to attend the meeting and participate in Board deliberations on all issues. Like all Board meetings, the January 23, 2003, meeting was a public meeting and all entities, both large and small, were able to express views on this issue. Finally, interested persons were invited to submit information on the regulatory and informational impacts of this action on small businesses. This action will impose no additional reporting or recordkeeping requirements on either small or large tart cherry handlers. As with all Federal marketing order programs, reports and forms are periodically reviewed to reduce information requirements and duplication by industry and public sector agencies. USDA has not identified any relevant Federal rules that duplicate, overlap, or conflict with this rule. A proposed rule concerning this action was published in the **Federal Register** on July 25, 2003 (68 FR 43978). Copies of the rule were mailed and sent via facsimile to all Board members and cherry handlers. Finally, the rule was made available through the Internet by the Office of the Federal Register and USDA. A 30-day comment period ending August 25, 2003, was provided to allow interested persons to respond to the proposal. One comment was received from Mr. Perry Hedin, Executive Director of the Board. He commented that the Board is in support of the proposed rule but he wanted to make one clarification. The terms of the order allow the Board to maintain one year's operational expenses as a reserve. The Board policy, however, intends to maintain cash reserves equal to one half of one year's operational budget. The Board's increase in the assessment rate this year was intended to replenish the cash reserves depleted when the crop was extremely short in 2002. The commenter stated that the Board should be able to rebuild some of the intended cash reserves under the current assessment, but it is as yet unknown if reserves will be fully replenished this season. Accordingly, no changes will be made to the rule based on the comment received. A small business guide on complying with fruit, vegetable, and specialty crop marketing agreements and orders may be viewed at: *http://www.ams.usda.gov/fv/moab/html.* Any questions about the compliance guide should be sent to Jay Guerber at the previously mentioned address in the FOR FURTHER INFORMATION CONTACT section. After consideration of all relevant matters presented, including the information and recommendation submitted by the Board and other available information, it is hereby found that this rule, as hereinafter set forth, will tend to effectuate the declared policy of the Act. It is further found that good cause exists for not postponing the effective date of this rule until 30 days after publication in the **Federal Register** (5 U.S.C. 553) because the 2003-2004 fiscal period began on July 1, 2003, and ends on June 30, 2004, and the marketing order requires that the rate of assessment for each fiscal period apply to all assessable tart cherries handled during such fiscal period. Further, handlers are aware of this action which was unanimously recommended by the Board at a public meeting. Also, a 30-day comment period was provided in the proposed rule. 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 amended as follows: PART 930—TART CHERRIES GROWN IN THE STATES OF MICHIGAN, NEW YORK, PENNSYLVANIA, OREGON, UTAH, WASHINGTON, AND WISCONSIN 1. The authority citation for 7 CFR part 930 continues to read as follows: Authority: 7 U.S.C. 601-674. 2. Section 930.200 is revised to read as follows: § 930.200 Handler assessment rate. On and after July 1, 2003, the assessment rate imposed on handlers shall be $0.0021 per pound of cherries handled for tart cherries grown in the production area and utilized in the production of tart cherry products. Dated: September 29, 2003. A.J. Yates, Administrator, Agricultural Marketing Service. [FR Doc. 03-25110 Filed 10-2-03; 8:45 am]

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