[Federal Register Volume 76, Number 49 (Monday, March 14, 2011)]
[Proposed Rules]
[Pages 13528-13530]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-5717]


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DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 930

[Docket No. AMS-FV-10-0087; FV10-930-5; AO-370-A9; 11-0093]


Tart Cherries Grown in the States of Michigan, New York, 
Pennsylvania, Oregon, Utah, Washington, and Wisconsin; Hearing on 
Proposed Amendment of Marketing Agreement and Order No. 930

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Notice of hearing on proposed rulemaking.

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SUMMARY: Notice is hereby given of a public hearing to receive evidence 
on proposed amendments to Marketing Agreement and Order No. 930 
(order), which regulate the handling of tart cherries grown in 
Michigan, New York, Pennsylvania, Oregon, Utah, Washington, and 
Wisconsin. Three amendments are proposed by the Cherry Industry 
Administrative Board (Board), which is responsible for local 
administration of the order. The proposed amendments would change how 
grower diversion of cherries is accounted for under the order and would 
affect volume control in years when grower diversions are utilized. In 
addition, the Agricultural Marketing Service (AMS) proposes to make any 
such changes as may be necessary to the order or administrative rules 
and regulations to conform to any amendment that may result from the 
hearing. These proposed amendments are intended to improve the 
operation and administration of the order.

DATES: The hearing dates are:
    1. April 20, 2011, 9 a.m. to 5 p.m.; and continuing on April 21, 
2011, at 9 a.m., if necessary, in Grand Rapids, Michigan.
    2. April 26, 2011, 9 a.m. to 5 p.m.; and continuing on April 27, 
2011, at 9 a.m., if necessary, in Provo, Utah.

ADDRESSES: The hearing locations are:
    1. Grand Rapids--U.S. Bankruptcy Court, One Division Ave., N, 3rd 
Floor Courtroom A, Grand Rapids, MI 49503.
    2. Provo--Utah County Administration Building, 100 E. Center 
Street, Room L900, Provo, Utah 84606.

FOR FURTHER INFORMATION CONTACT: Parisa Salehi, Marketing Order 
Administration Branch, Fruit and Vegetable Programs, AMS, USDA, 1400 
Independence Ave., SW., Stop 0237, Washington, DC 20250, telephone: 
(202) 720-9918, Fax: (202) 720-8938; or Kathleen M. Finn, 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: 
[email protected] or [email protected].
    Small businesses may request information on this proceeding by 
contacting Antoinette Carter, Marketing Order Administration Branch, 
Fruit and Vegetable Programs, AMS, USDA, 1400 Independence Avenue, SW., 
Stop 0237, Washington, DC 20250-0237; telephone: (202) 720-6862, Fax: 
(202) 720-8938, or e-mail: [email protected].

SUPPLEMENTARY INFORMATION: This administrative action is instituted 
pursuant to the Agricultural Marketing Agreement Act of 1937, as 
amended (7 U.S.C. 601-674), hereinafter referred to as the ``Act.'' 
This action is governed by the provisions of sections 556 and 557 of 
title 5 of the United States Code and, therefore, is excluded from the 
requirements of Executive Order 12866.
    The Regulatory Flexibility Act (5 U.S.C. 601-612) seeks to ensure 
that within the statutory authority of a program, the regulatory and 
informational requirements are tailored to the size and nature of small 
businesses. Interested persons are invited to present evidence at the 
hearing on the possible regulatory and informational impacts of the 
proposals on small businesses.
    The amendments proposed herein have been reviewed under Executive 
Order 12988, Civil Justice Reform. They are 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 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. A 
handler is afforded the opportunity for a hearing 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 the USDA's 
ruling on the

[[Page 13529]]

petition, provided an action is filed not later than 20 days after the 
date of the entry of the ruling.
    The hearing is called pursuant to the provisions of the Act and the 
applicable rules and supplemental rules of practice and procedure 
governing the formulation of marketing agreements and orders (7 CFR 
part 900).
    The proposed amendments were recommended by the Board and initially 
submitted to USDA on September, 2010. Additional information was 
submitted in November 2010 at the request of USDA and a determination 
was subsequently made to schedule this matter for hearing.
    The proposed amendments to the order recommended by the Board are 
summarized as follows:
    1. Amend the definition of ``handle'' in Sec.  930.10 of the order 
so handler acquisition of grower diversion certificates is not 
considered handling.
    2. Amend the ``marketing policy'' provisions in Sec.  930.50 of the 
order so grower-diverted cherries are not counted as production in the 
volume control formula.
    3. Amend Sec.  930.58 of the order so grower-diverted cherries are 
not treated as actual harvested cherries.
    The Board works with USDA in administering the order. These 
proposals submitted by the Board have not received the approval of 
USDA. The proposed amendments are intended to improve the operation and 
administration of the order.
    In addition to the proposed amendments to the order, AMS proposes 
to make any such changes as may be necessary to the order or 
administrative rules and regulations to conform to any amendment that 
may result from the hearing.
    The public hearing is held for the purpose of: (i) Receiving 
evidence about the economic and marketing conditions which relate to 
the proposed amendments of the order; (ii) determining whether there is 
a need for the proposed amendments to the order; and (iii) determining 
whether the proposed amendments or appropriate modifications thereof 
will tend to effectuate the declared policy of the Act.
    Testimony is invited at the hearing on all the proposals and 
recommendations contained in this notice, as well as any appropriate 
modifications or alternatives.
    All persons wishing to submit written material as evidence at the 
hearing should be prepared to submit four copies of such material at 
the hearing. Four copies of prepared testimony for presentation at the 
hearing should also be made available. To the extent practicable, eight 
additional copies of evidentiary exhibits and testimony prepared as an 
exhibit should be made available to USDA representatives on the day of 
appearance at the hearing. Any requests for preparation of USDA data 
for this rulemaking hearing should be made at least 10 days prior to 
the beginning of the hearing.
    From the time the notice of hearing is issued and until the 
issuance of a final decision in this proceeding, USDA employees 
involved in the decisional process are prohibited from discussing the 
merits of the hearing issues on an ex parte basis with any person 
having an interest in the proceeding. The prohibition applies to 
employees in the following organizational units: Office of the 
Secretary of Agriculture; Office of the Administrator, AMS; Office of 
the General Counsel, except any designated employee of the General 
Counsel assigned to represent the Board in this proceeding; and the 
Fruit and Vegetable Programs, AMS.
    Procedural matters are not subject to the above prohibition and may 
be discussed at any time.

List of Subjects in 7 CFR Part 930

    Marketing agreements, Reporting and recordkeeping requirements, 
Tart cherries.

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. Testimony is invited on the following proposals or appropriate 
alternatives or modifications to such proposals.
    Proposal submitted by the Cherry Industry Administrative Board:

Proposal Number 1

    3. Revise the introductory paragraph in Sec.  930.10 to read as 
follows:


Sec.  930.10  Handle.

    Handle means the process to brine, can, concentrate, freeze, 
dehydrate, pit, press or puree cherries, or in any other way convert 
cherries commercially into a processed product, or divert cherries 
pursuant to Sec.  930.59, or to otherwise place cherries into the 
current of commerce within the production area or from the area to 
points outside thereof: Provided, That the term handle shall not 
include:
* * * * *
    4. Revise paragraphs (d) and (e) of Sec.  930.50 to read as 
follows:


Sec.  930.50  Marketing policy.

* * * * *
    (d) Final percentages. No later than September 15 of each crop 
year, the Board shall review the most current information available 
including, but not limited to, processed production and grower 
diversions of cherries during the current crop year. The Board shall 
make such adjustments as are necessary between free and restricted 
tonnage to achieve the optimum supply and recommend such final free 
market tonnage and restricted percentages to the Secretary and announce 
them in accordance with paragraph (h) of this section. The difference 
between any final free market tonnage percentage designated by the 
Secretary and 100 percent shall be the final restricted percentage. 
With its recommendation, the Board shall report on its consideration of 
the factors in paragraph (e) of this section.
    (e) Factors. When computing preliminary and interim percentages, or 
determining final percentages for recommendation to the Secretary, the 
Board shall give consideration to the following factors:
    (1) The estimated total production of cherries;
    (2) The estimated size of the crop to be handled;
    (3) The expected general quality of such cherry production;
    (4) The expected carryover as of July 1 of canned and frozen 
cherries and other cherry products;
    (5) The expected demand conditions for cherries in different market 
segments;
    (6) Supplies of competing commodities;
    (7) An analysis of economic factors having a bearing on the 
marketing of cherries;
    (8) The estimated tonnage held by handlers in primary or secondary 
inventory reserves;
    (9) Any estimated release of primary or secondary inventory reserve 
cherries during the crop year; and
    (10) The quantity of grower-diverted cherries during the crop year.
* * * * *
    5. Revise paragraph (a) of Sec.  930.58 to read as follows:


Sec.  930.58  Grower diversion privilege.

    (a) In general. Any grower may voluntarily elect to divert, in 
accordance with the provisions of this section, all or a portion of the 
cherries which otherwise, upon delivery to a handler, would become 
restricted percentage

[[Page 13530]]

cherries. Upon such diversion and compliance with the provisions of 
this section, the Board shall issue to the diverting grower a grower 
diversion certificate which such grower may deliver to a handler. Any 
grower diversions completed in accordance with this section, but which 
are undertaken in districts subsequently exempted by the Board from 
volume regulation under Sec.  930.52(d), shall qualify for diversion 
credit.
* * * * *
    Proposal submitted by USDA:

Proposal Number 2

    Make such changes as may be necessary to the order to conform with 
any amendment thereto that may result from the hearing.

    Dated: March 4, 2011.
Rayne Pegg,
Administrator, Agricultural Marketing Service.
[FR Doc. 2011-5717 Filed 3-11-11; 8:45 am]
BILLING CODE 3410-02-P