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Rules and Regulations Federal Register

10471 

Vol. 76, No. 38 

Friday, February 25, 2011 

DEPARTMENT OF AGRICULTURE 

Agricultural Marketing Service 

7 CFR Part 930 

[Doc. No. AMS–FV–10–0081; FV10–930–4 

FR] 

Tart Cherries Grown in the States of 

Michigan, et al.; Final Free and 

Restricted Percentages for the 2010– 

2011 Crop Year for Tart Cherries 

AGENCY: Agricultural Marketing Service, 

USDA. 

ACTION: Final rule. 

SUMMARY: This rule establishes final free 

and restricted percentages under the tart 

cherry marketing order for the 2010– 

2011 crop year. The percentages are 58 

percent free and 42 percent restricted 

and will establish the proportion of 

cherries from the 2010 crop which may 

be handled in commercial outlets. The 

percentages are intended to stabilize 

supplies and prices, and strengthen 

market conditions. The percentages 

were recommended by the Cherry 

Industry Administrative Board (Board), 

the body that locally administers the 

marketing order. The marketing order 

regulates the handling of tart cherries 

grown in the States of Michigan, New 

York, Pennsylvania, Oregon, Utah, 

Washington, and Wisconsin. 

DATES: Effective Date: February 26, 

2011. 

FOR FURTHER INFORMATION CONTACT: 

Kenneth G. Johnson, Marketing Order 

Administration Branch, Fruit and 

Vegetable Programs, AMS, USDA, Unit 

155, 4700 River Road, Riverdale, MD 

20737; telephone: (301) 734–5245, Fax: 

(301) 734–5275; E-mail: 

Kenneth.Johnson@ams.usda.gov. 

Small businesses may request 

information on complying with this 

regulation 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– 

2491, Fax: (202) 720–8938, or E-mail: 

Antoinette.Carter@ams.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 produced in the States of 

Michigan, New York, Pennsylvania, 

Oregon, Utah, Washington, and 

Wisconsin, hereinafter referred to as the 

‘‘order.’’ 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 Department of Agriculture 

(Department) 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 provisions now in effect, final free 

and restricted percentages may be 

established for tart cherries handled by 

handlers during the crop year. This rule 

establishes final free and restricted 

percentages for tart cherries for the 

2010–2011 crop year, beginning July 1, 

2010, through June 30, 2011. 

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 the Secretary 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 exempt therefrom. Such 

handler is afforded the opportunity for 

a hearing on the petition. After the 

hearing, the Secretary 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 in 

equity to review the Secretary’s ruling 

on the petition, provided an action is 

filed not later than 20 days after the date 

of the entry of the ruling. 

The order prescribes procedures for 

computing an optimum supply and 

preliminary and final percentages that 

establish the amount of tart cherries that 

can be marketed throughout the season. 

The regulations apply to all handlers of 

tart cherries that are in the regulated 

districts. Tart cherries in the free 

percentage category may be shipped 

immediately to any market, while 

restricted percentage tart cherries must 

be held by handlers in a primary or 

secondary reserve, or be diverted in 

accordance with § 930.59 of the order 

and § 930.159 of the regulations, or used 

for exempt purposes (to obtain diversion 

credit) under § 930.62 of the order and 

§ 930.162 of the regulations. The 

regulated Districts for the 2010–2011 

crop year are: District two-Central 

Michigan; District three-Southern 

Michigan; District four-New York; 

District seven-Utah; District eightWashington; and District nineWisconsin. Districts one, five, and six 

(Northern Michigan, Oregon, and 

Pennsylvania, respectively) are not 

regulated for the 2010–2011 season. 

The order prescribes under § 930.52 

that those districts to be regulated shall 

be those districts in which the average 

annual production of cherries over the 

prior three years has exceeded six 

million pounds. A district not meeting 

the six million-pound requirement shall 

not be regulated in such crop year. 

Because this requirement was not met in 

the Districts of Oregon and 

Pennsylvania, handlers in those districts 

are not subject to volume regulation 

during the 2010–2011 crop year. Section 

930.52 of the order also provides that 

any district producing a crop which is 

less than 50 percent of the average 

annual processed production in that 

district in the previous five years is 

exempt from volume regulation. Thus, 

Northern Michigan is also not subject to 

volume regulation for the 2010–2011 

crop year because its 2010 crop 

production was less than 50 percent of 

its 5-year average production due to 

weather related crop damage. 

Demand for tart cherries at the farm 

level is derived from the demand for tart 

cherry products at retail. Demand for 

tart cherries and tart cherry products 

tend to be relatively stable from year to 

year. The supply of tart cherries, by 

contrast, varies greatly from crop year to 

crop year. The magnitude of annual 

fluctuations in tart cherry supplies is 

one of the most pronounced for any 

agricultural commodity in the United 

States. In addition, since tart cherries 

are processed either into cans or frozen, 

they can be stored and carried over from 

crop year to crop year. This creates 


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substantial coordination and marketing 

problems. The supply and demand for 

tart cherries is rarely balanced. The 

primary purpose of setting free and 

restricted percentages is to balance 

supply with demand and reduce large 

surpluses that may occur. 

Section 930.50(a) of the order 

prescribes procedures for computing an 

optimum supply for each crop year. The 

Board must meet on or about July 1 of 

each crop year, to review sales data, 

inventory data, current crop forecasts 

and market conditions. The optimum 

supply volume is calculated as 100 

percent of the average sales of the prior 

three years to which is added a 

desirable carryout inventory not to 

exceed 20 million pounds or such other 

amount as may be established with the 

approval of the Secretary. The optimum 

supply represents the desirable volume 

of tart cherries that should be available 

for sale in the coming crop year. 

The order also provides that on or 

about July 1 of each crop year, the Board 

is to establish preliminary free and 

restricted percentages. These 

percentages are computed by deducting 

the actual carryin inventory from the 

optimum supply figure (adjusted to raw 

product equivalent—the actual weight 

of cherries handled to process into 

cherry products) and subtracting that 

figure from the current year’s USDA 

crop forecast or from an average of such 

other crop estimates the Board votes to 

use. If the resulting number is positive, 

this represents the estimated overproduction, which would be the 

restricted tonnage. The restricted 

tonnage is then divided by the sum of 

the crop estimates for the regulated 

districts to obtain a preliminary 

restricted percentage for the regulated 

districts. The preliminary free 

percentage is the difference between the 

restricted percentage and 100 percent. If 

the tonnage requirements for the year 

are more than the USDA crop forecast, 

the Board is required to establish a 

preliminary free tonnage percentage of 

100 percent and a preliminary restricted 

percentage of zero. The Board is 

required to announce the preliminary 

percentages in accordance with 

paragraph (h) of § 930.50. 

The Board met on June 17, 2010, and 

computed, for the 2010–2011 crop year, 

an optimum supply of 170 million 

pounds. The Board recommended that 

the desirable carryout figure be zero 

pounds. Desirable carryout is the 

amount of fruit required to be carried 

into the succeeding crop year and is set 

by the Board after considering market 

circumstances and needs. This figure 

can range from zero to a maximum of 20 

million pounds. 

The Board calculated preliminary free 

and restricted percentages as follows: 

The USDA estimate of the crop for the 

entire production area was 195 million 

pounds; a 51 million pound carryin 

(based on Board estimates) was 

subtracted from the optimum supply of 

170 million pounds which resulted in 

the 2010–2011 poundage requirements 

(adjusted optimum supply) of 119 

million pounds. The carryin figure 

reflects the amount of cherries that 

handlers actually have in inventory at 

the beginning of the 2010–2011 crop 

year. Subtracting the adjusted optimum 

supply of 119 million pounds from the 

USDA crop estimate, (195 million 

pounds) resulted in a surplus of 76 

million pounds of tart cherries. The 

surplus was divided by the production 

in the regulated districts (191 million 

pounds) and resulted in a restricted 

percentage of 40 percent for the 2010– 

2011 crop year. The free percentage was 

60 percent (100 percent minus 40 

percent). The Board established these 

percentages and announced them to the 

industry as required by the order. 

The preliminary percentages were 

based on the USDA production estimate 

and the following supply and demand 

information available at the June 

meeting for the 2010–2011 crop year: 

Millions of 

pounds 

Optimum Supply Formula: 

(1) Average sales of the prior three years ................................................................................................................................... 170 

(2) Plus desirable carryout ........................................................................................................................................................... 0 

(3) Optimum supply calculated by the Board at the June meeting ............................................................................................. 170 

Preliminary Percentages: 

(4) USDA crop estimate ............................................................................................................................................................... 195 

(5) Carryin held by handlers as of July 1, 2009 .......................................................................................................................... 51 

(6) Adjusted optimum supply for current crop year ..................................................................................................................... 119 

(7) Surplus .................................................................................................................................................................................... 76 

(8) USDA crop estimate for regulated districts ............................................................................................................................ 191 

Percentages 

Free Restricted 

(9) Preliminary percentages (item 7 divided by item 8 × 100 equals restricted percentage; 100 minus restricted 

percentage equals free percentage) .................................................................................................................... 60 40 

Between July 1 and September 15 of 

each crop year, the Board may modify 

the preliminary free and restricted 

percentages by announcing interim free 

and restricted percentages to adjust to 

the actual pack occurring in the 

industry. No later than September 15, 

the Board must recommend final free 

and restricted percentages to the 

Secretary. 

The Secretary establishes final free 

and restricted percentages through the 

informal rulemaking process. These 

percentages would make available the 

tart cherries necessary to achieve the 

optimum supply figure calculated by 

the Board. The difference between any 

final free percentage and 100 percent is 

the final restricted percentage. 

The Board met on September 10, 

2010, to recommend final free and 

restricted percentages. The actual 

production reported by the Board was 

189 million pounds, which is a 6 

million pound decrease from the USDA 

crop estimate of 195 million pounds. 

The Board also recommended an 

economic adjustment of 20 million 

pounds to be subtracted from the 

surplus to adjust the supply for the poor 

quality and yields due to adverse 

harvest conditions in various parts of 

the production area. Handlers stated 

that processing yields from the 2010 tart 

cherry harvest were significantly lower 

this year than in previous years. The 

lower yields resulted in processors 

using more raw tart cherries than usual 


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Federal Register / Vol. 76, No. 38 / Friday, February 25, 2011 / Rules and Regulations 10473 

to produce a given amount of finished 

product. 

A 51 million pound carryin (based on 

handler reports) was subtracted from the 

optimum supply of 170 million pounds 

which resulted in the 2010–2011 

poundage requirements (adjusted 

optimum supply) of 119 million 

pounds. Subtracting the adjusted 

optimum supply of 119 million pounds 

from the actual production of 189 

million pounds results in a surplus of 

70 million pounds of tart cherries. An 

economic adjustment of 20 million 

pounds was subtracted from the 

surplus, resulting in an adjusted surplus 

of 50 million pounds of tart cherries. 

The adjusted surplus of 50 million 

pounds was divided by the production 

in the regulated districts (120 million 

pounds) and resulted in a restricted 

percentage of 42 percent for the 2010– 

2011 crop year. The free percentage was 

58 percent (100 percent minus 42 

percent). 

The final percentages are based on the 

Board’s reported production figures and 

the following supply and demand 

information available in September for 

the 2010–2011 crop year: 

Millions of 

pounds 

Optimum Supply Formula: 

(1) Average sales of the prior three years ................................................................................................................................... 170 

(2) Plus desirable carryout ........................................................................................................................................................... 0 

(3) Optimum supply calculated by the Board ............................................................................................................................... 170 

Final Percentages: 

(4) Board reported production ...................................................................................................................................................... 189 

(5) Carryin held by handlers as of July 1, 2010 .......................................................................................................................... 51 

(6) Adjusted optimum supply ........................................................................................................................................................ 119 

(7) Surplus (item 4 minus item 6) ................................................................................................................................................ 70 

(8) Economic adjustment .............................................................................................................................................................. 20 

(9) Adjusted surplus (item 7 minus item 8) .................................................................................................................................. 50 

(10) Production in regulated districts ........................................................................................................................................... 120 

Percentages 

Free Restricted 

(11) Final Percentages (item 9 divided by item 10 × 100 equals restricted percentage; 100 minus restricted percentage equals free percentage) ................................................................................................ 58 42 

The USDA’s ‘‘Guidelines for Fruit, 

Vegetable, and Specialty Crop 

Marketing Orders’’ specify that 110 

percent of recent years’ sales should be 

made available to primary markets each 

season before recommendations for 

volume regulation are approved. This 

goal would be met by the establishment 

of a final percentage which releases 100 

percent of the optimum supply and the 

additional release of tart cherries 

provided under § 930.50(g). This release 

of tonnage, equal to 10 percent of the 

average sales of the prior three years, is 

made available to handlers each season. 

The Board recommended that such 

release should be made available to 

handlers the first week of December and 

the first week of May. Handlers can 

decide how much of the 10 percent 

release they would like to receive on the 

December and May release dates. Once 

released, such cherries are available for 

free use by such handler. 

Approximately 17 million pounds 

would be made available to handlers 

this season in accordance with 

Department Guidelines. This release 

would be made available to every 

handler in proportion to the handler’s 

percentage of the total regulated crop 

handled. If a handler does not take his/ 

her proportionate amount, such amount 

remains in the inventory reserve. 

Final Regulatory Flexibility Analysis 

Pursuant to requirements set forth in 

the Regulatory Flexibility Act (RFA), the 

Agricultural Marketing Service (AMS) 

has considered the economic impact of 

this action on small entities. 

Accordingly, AMS has prepared this 

final regulatory flexibility analysis. 

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 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 tart cherry 

marketing order and approximately 600 

producers of tart cherries in the 

regulated area. Small agricultural 

service firms, which includes handlers, 

have been defined by the Small 

Business Administration (SBA) (13 CFR 

121.201) as those having annual receipts 

of less than $7,000,000, and small 

agricultural producers are defined as 

those having annual receipts of less than 

$750,000. A majority of the producers 

and handlers are considered small 

entities under SBA’s standards. 

The principal demand for tart cherries 

is in the form of processed products. 

Tart cherries are dried, frozen, canned, 

juiced, and pureed. During the period 

1997/98 through 2008/09, 

approximately 85 percent of the U.S. 

tart cherry crop, or 222.7 million 

pounds, was processed annually. Of the 

222.7 million pounds of tart cherries 

processed, 61 percent was frozen, 27 

percent was canned, and 12 percent was 

utilized for juice and other products. 

Based on National Agricultural 

Statistics Service data, acreage in the 

United States devoted to tart cherry 

production has been trending 

downward. Bearing acreage has 

declined from a high of 50,050 acres in 

1987/88 to 35,550 acres in 2009/10. This 

represents a 29 percent decrease in total 

bearing acres. Michigan leads the nation 

in tart cherry acreage with 73 percent of 

the total and produces about 75 percent 

of the U.S. tart cherry crop each year. 

The 2010/11 crop is 189 million 

pounds. This production level is 6 

million pounds less than the 195.3 

million pounds estimated by the 

National Agricultural Statistics Service 

(NASS) in June. The largest crop 

occurred in 1995 with production in the 

regulated districts reaching a record 

395.6 million pounds. The price per 

pound received by tart cherry growers 


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10474 Federal Register / Vol. 76, No. 38 / Friday, February 25, 2011 / Rules and Regulations 

ranged from a low of 7.3 cents in 1987 

to a high of 46.4 cents in 1991. These 

problems of wide supply and price 

fluctuations in the tart cherry industry 

are national in scope and impact. 

Growers testified during the order 

promulgation process that the prices 

they received often did not come close 

to covering the costs of production. 

The industry demonstrated a need for 

an order during the promulgation 

process of the marketing order because 

large variations in annual tart cherry 

supplies tend to lead to fluctuations in 

prices and disorderly marketing. As a 

result of these fluctuations in supply 

and price, growers realize less income. 

The industry chose a volume control 

marketing order to even out these wide 

variations in supply and improve 

returns to growers. During the 

promulgation process, proponents 

testified that small growers and 

processors would have the most to gain 

from implementation of a marketing 

order because many such growers and 

handlers had been going out of business 

due to low tart cherry prices. They also 

testified that, since an order would help 

increase grower returns, this should 

increase the buffer between business 

success and failure because small 

growers and handlers tend to be less 

capitalized than larger growers and 

handlers. 

Aggregate demand for tart cherries 

and tart cherry products tends to be 

relatively stable from year-to-year. 

Similarly, prices at the retail level show 

minimal variation. Consumer prices in 

grocery stores, and particularly in food 

service markets, largely do not reflect 

fluctuations in cherry supplies. Retail 

demand is assumed to be highly 

inelastic which indicates that price 

reductions do not result in large 

increases in the quantity demanded. 

Most tart cherries are sold to food 

service outlets and to consumers as pie 

filling; frozen cherries are sold as an 

ingredient to manufacturers of pies and 

cherry desserts. Juice and dried cherries 

are expanding market outlets for tart 

cherries. 

Demand for tart cherries at the farm 

level is derived from the demand for tart 

cherry products at retail. In general, the 

farm-level demand for a commodity 

consists of the demand at retail or food 

service outlets minus per-unit 

processing and distribution costs 

incurred in transforming the raw farm 

commodity into a product available to 

consumers. These costs comprise what 

is known as the ‘‘marketing margin.’’ 

The supply of tart cherries, by 

contrast, varies greatly. The magnitude 

of annual fluctuations in tart cherry 

supplies is one of the most pronounced 

for any agricultural commodity in the 

United States. In addition, since tart 

cherries are processed either into cans 

or frozen, they can be stored and carried 

over from year-to-year. This creates 

substantial coordination and marketing 

problems. The supply and demand for 

tart cherries is rarely in equilibrium. As 

a result, grower prices fluctuate widely, 

reflecting the large swings in annual 

supplies. 

In an effort to stabilize prices, the tart 

cherry industry uses the volume control 

mechanisms under the authority of the 

Federal marketing order. This authority 

allows the industry to set free and 

restricted percentages. These restricted 

percentages are only applied to states or 

districts with a 3-year average of 

production greater than six million 

pounds, and to states or districts in 

which the production is 50 percent or 

more of the previous 5-year processed 

production average. 

The primary purpose of setting 

restricted percentages is an attempt to 

bring supply and demand into balance. 

If the primary market is over-supplied 

with cherries, grower prices decline 

substantially. 

The tart cherry sector uses an 

industry-wide storage program as a 

supplemental coordinating mechanism 

under the Federal marketing order. The 

primary purpose of the storage program 

is to warehouse supplies in large crop 

years in order to supplement supplies in 

short crop years. The storage approach 

is feasible because the increase in 

price—when moving from a large crop 

to a short crop year—more than offsets 

the costs for storage, interest, and 

handling of the stored cherries. 

The price that growers receive for 

their crop is largely determined by the 

total production volume and carryin 

inventories. The Federal marketing 

order permits the industry to exercise 

supply control provisions, which allow 

for the establishment of free and 

restricted percentages for the primary 

market, and a storage program. The 

establishment of restricted percentages 

impacts the production to be marketed 

in the primary market, while the storage 

program has an impact on the volume 

of unsold inventories. 

The volume control mechanism used 

by the cherry industry results in 

decreased supplies to primary markets. 

Without volume control the primary 

markets (domestic) would likely be 

over-supplied, resulting in lower grower 

prices. 

To assess the impact that volume 

control has on the prices growers 

receive for their product, an 

econometric model has been developed. 

The econometric model provides a way 

to see what impacts volume control may 

have on grower prices. The two districts 

in Michigan, along with the districts in 

Utah, New York, Washington, and 

Wisconsin are the restricted areas for 

this crop year and their combined total 

production is 120 million pounds. A 42 

percent restriction means 70 million 

pounds is available to be shipped to 

primary markets from these five states. 

Production levels of 65.3 million 

pounds for Northwest Michigan, 1.2 

million pounds for Oregon, and 2.2 

million pounds for Pennsylvania (the 

unregulated areas in 2010/11), result in 

an additional 69 million pounds 

available for primary market shipments. 

In addition, USDA requires a 10 

percent release from reserves as a 

market growth factor. This results in an 

additional 17 million pounds being 

available for the primary market. The 70 

million pounds from the two Michigan 

districts, Utah, Washington, Wisconsin, 

and New York, the 69 million pounds 

from the other producing states, the 17 

million pound release, and the 51 

million pound carryin inventory gives a 

total of 207 million pounds being 

available for the primary markets. 

The econometric model is used to 

estimate the impact of establishing a 

reserve pool for this year’s crop. With 

the volume controls, grower prices are 

estimated to be approximately $0.12 per 

pound higher than without volume 

controls. 

The use of volume controls is 

estimated to have a positive impact on 

growers’ total revenues. With regulation, 

growers’ total revenue from processed 

cherries is estimated to be $23 million 

higher than without restrictions. The 

without-restrictions scenario assumes 

that all tart cherries produced would be 

delivered to processors for payments. 

It is concluded that the 42 percent 

volume control would not unduly 

burden producers, particularly smaller 

growers. The 42 percent restriction 

would be applied to the growers in two 

districts in Michigan, New York, Utah, 

Washington, and Wisconsin. The 

growers in the other unregulated areas 

covered under the marketing order will 

benefit from this restriction. 

Recent grower prices have been as 

high as $0.44 per pound in 2002–03 

when there was a crop failure. Prices in 

the last two crop years have been $0.372 

in 2008–09 and $0.194 per pound in 

2009–10. At current production levels, 

yield is estimated at approximately 

10,251 pounds per acre. At this level of 

yield the cost of production is estimated 

to be $0.25 per pound (costs were 

estimated by representatives of 

Michigan State University with input 

provided by growers for the current 


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Federal Register / Vol. 76, No. 38 / Friday, February 25, 2011 / Rules and Regulations 10475 

crop). The grower price for 2010–11 will 

likely be less than $0.25 per pound for 

the combined free and restricted 

production. Thus, this year’s grower 

price even with regulation is estimated 

to be below the cost of production. The 

use of volume controls is believed to 

have little or no effect on consumer 

prices and will not result in fewer retail 

sales or sales to food service outlets. 

Without the use of volume controls, 

the industry could be expected to start 

to build large amounts of unwanted 

inventories. These inventories have a 

depressing effect on grower prices. The 

econometric model shows for every 1 

million-pound increase in carryin 

inventories, a decrease in grower prices 

of $0.0036 per pound occurs. The use of 

volume controls allows the industry to 

supply the primary markets while 

avoiding the disastrous results of oversupplying these markets. In addition, 

through volume control, the industry 

has an additional supply of cherries that 

can be used to develop secondary 

markets such as exports and the 

development of new products. The use 

of reserve cherries in the production 

shortened 2002/03 crop year proved to 

be very useful and beneficial to growers 

and packers. 

In discussing the possibility of 

marketing percentages for the 2010– 

2011 crop year, the Board considered 

the following factors contained in the 

marketing policy: (1) The estimated total 

production of tart 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; and (9) any estimated release 

of primary or secondary inventory 

reserve cherries during the crop year. 

The Board’s review of the factors 

resulted in the computation and 

announcement in September 2010 of the 

free and restricted percentages proposed 

to be established by this rule (58 percent 

free and 42 percent restricted). 

One alternative to this action would 

be not to have volume regulation this 

season. Board members believed that no 

volume regulation would be detrimental 

to the tart cherry industry. 

As mentioned earlier, the 

Department’s ‘‘Guidelines for Fruit, 

Vegetable, and Specialty Crop 

Marketing Orders’’ specify that 110 

percent of recent years’ sales should be 

made available to primary markets each 

season before recommendations for 

volume regulation are approved. The 

quantity available under this rule is 110 

percent of the quantity shipped in the 

prior three years. 

The free and restricted percentages 

established by this rule release the 

optimum supply and apply uniformly to 

all regulated handlers in the industry, 

regardless of size. There are no known 

additional costs incurred by small 

handlers that are not incurred by large 

handlers. The stabilizing effects of the 

percentages impact all handlers 

positively by helping them maintain 

and expand markets, despite seasonal 

supply fluctuations. Likewise, price 

stability positively impacts all 

producers by allowing them to better 

anticipate the revenues their tart 

cherries will generate. 

While the benefits resulting from this 

rulemaking are difficult to quantify, the 

stabilizing effects of the volume 

regulations impact both small and large 

handlers positively by helping them 

maintain markets even though tart 

cherry supplies fluctuate widely from 

season to season. 

In compliance with Office of 

Management and Budget (OMB) 

regulations (5 CFR part 1320) which 

implement the Paperwork Reduction 

Act of 1995 (Pub. L. 104–13), the 

information collection and 

recordkeeping requirements under the 

tart cherry marketing order have been 

previously approved by OMB and 

assigned OMB Number 0581–0177. 

Reporting and recordkeeping burdens 

are necessary for compliance purposes 

and for developing statistical data for 

maintenance of the program. The forms 

require information which is readily 

available from handler records and 

which can be provided without data 

processing equipment or trained 

statistical staff. As with other, similar 

marketing order programs, reports and 

forms are periodically studied to reduce 

or eliminate duplicate information 

collection burdens by industry and 

public sector agencies. This rule does 

not change those requirements. 

As noted in the initial regulatory 

flexibility analysis, the Department has 

not identified any relevant Federal rules 

that duplicate, overlap, or conflict with 

this regulation. 

In addition, 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 September 10, 

2010, meeting was a public meeting and 

all entities, both large and small, were 

able to express views on this issue. 

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. 

A proposed rule concerning this 

action was published in the Federal 

Register on December 13, 2010 (75 FR 

77564). Copies of the rule were mailed 

or sent via facsimile to all Board 

members and alternates. Finally, the 

rule was made available through the 

Internet by USDA and the Office of the 

Federal Register. A 30-day comment 

period ending January 12, 2011, was 

provided to allow interested persons to 

respond to the proposal. No comments 

were 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 

Antoinette Carter at the previously 

mentioned address in the FOR FURTHER

INFORMATION CONTACT section. 

After consideration of all relevant 

matter 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 handlers are already 

shipping tart cherries from the 2010– 

2011 crop. Further, handlers are aware 

of this rule, which was recommended at 

a public meeting. Also a 30-day 

comment period was provided for in the 

proposed rule. No comments were 

received. 

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. 


srobinson on DSKHWCL6B1PROD with RULES
10476 Federal Register / Vol. 76, No. 38 / Friday, February 25, 2011 / Rules and Regulations 

■ 2. Section 930.256 is added to read as 

follows: 

Note: This section will not appear in the 

annual Code of Federal Regulations. 

§ 930.256 Final free and restricted 

percentages for the 2010–2011 crop year. 

The final percentages for tart cherries 

handled by handlers during the crop 

year beginning on July 1, 2010, which 

shall be free and restricted, respectively, 

are designated as follows: Free 

percentage, 58 percent and restricted 

percentage, 42 percent. 

Dated: February 18, 2011. 

Rayne Pegg, 

Administrator, Agricultural Marketing 

Service. 

[FR Doc. 2011–4269 Filed 2–24–11; 8:45 am] 

BILLING CODE 3410–02–P 

DEPARTMENT OF ENERGY 

10 CFR Part 1023 

48 CFR Parts 901, 902, 903, 904, 906, 

907, 908, 909, 911, 914, 915, 916, 917, 

and 952 

RIN 1991–AB81 

(General Provisions) Contract Appeals 

and the Acquisition Regulation: 

General, Acquisition Planning, and 

Contracting Methods and Contract 

Types 

Correction 

In rule document 2011–1320 

appearing on pages 7685–7694 in the 

issue of Friday, February 11, 2011, make 

the following correction: 

915.404 [Table Corrected] 

On page 7693, in the table, in the last 

row, in the column labeled ‘‘Add’’, 

‘‘ ‘‘DOE to’’ ’’ should read ‘‘ ‘‘DOE to—’’ ’’. 

[FR Doc. C1–2011–1320 Filed 2–24–11; 8:45 am] 

BILLING CODE 1505–01–D 

DEPARTMENT OF TRANSPORTATION 

Federal Aviation Administration 

14 CFR Part 25 

[Docket No. NM412 Special Conditions No. 

25–419–SC] 

Special Conditions: Boeing Model 

787–8 Airplane; Overhead Crew-Rest 

Compartment 

AGENCY: Federal Aviation 

Administration (FAA), DOT. 

ACTION: Final special conditions. 

SUMMARY: These special conditions are 

issued for the Boeing Model 787–8 

airplane. This airplane will have novel 

or unusual design features associated 

with installation of an overhead crewrest (OCR) compartment. The applicable 

airworthiness regulations do not contain 

adequate or appropriate safety standards 

for this design feature. These special 

conditions contain the additional safety 

standards that the Administrator 

considers necessary to establish a level 

of safety equivalent to that established 

by the existing airworthiness standards. 

Additional special conditions will be 

issued for other novel or unusual design 

features of the Boeing Model 787–8 

airplanes. 

DATES: Effective Date: March 28, 2011. 

FOR FURTHER INFORMATION CONTACT: Jeff 

Gardlin, FAA, Airframe/Cabin Safety 

Branch, ANM–115, Transport Standards 

Staff, Transport Airplane Directorate, 

Aircraft Certification Service, 1601 Lind 

Avenue, SW., Renton, Washington 

98055–4056; telephone (425) 227–2136; 

facsimile (425) 227–1320. 

SUPPLEMENTARY INFORMATION: 

Background 

On March 28, 2003, The Boeing 

Commercial Airplane Group (hereafter 

referred to as ‘‘Boeing’’) applied for an 

FAA type certificate for its new Boeing 

Model 787–8 passenger airplane. The 

company applied for an extension of 

time for the type certificate on March 9, 

2009, and was granted that extension on 

March 13, 2009. The Boeing Model 

787–8 airplane will be an all-new, twoengine, jet transport airplane with a 

two-aisle cabin. The maximum takeoff 

weight will be 476,000 pounds, with a 

maximum passenger capacity of 381. 

Type Certification Basis 

Under provisions of Title 14 Code of 

Federal Regulations (14 CFR) 21.17, 

Boeing must show that the Boeing 

Model 787–8 airplane (hereafter referred 

to as ‘‘the 787’’) meets the applicable 

provisions of 14 CFR part 25, as 

amended by Amendments 25–1 through 

25–117, 25–120, 25–124, 25–125 and 

25–128, except that § 25.1309 remains at 

Amendment 25–117 for cargo-fire 

protection systems. If the Administrator 

finds that the applicable airworthiness 

regulations (i.e., 14 CFR part 25) do not 

contain adequate or appropriate safety 

standards for the 787 because of a novel 

or unusual design feature, special 

conditions are prescribed under the 

provisions of § 21.16. 

In addition to complying with the 

applicable airworthiness regulations 

and special conditions, the 787 must 

comply with the fuel-vent and exhaustemission requirements of 14 CFR part 

34, and the noise-certification 

requirements of 14 CFR part 36. In 

addition, the FAA must issue a finding 

of regulatory adequacy pursuant to 

section 611 of Public Law 92–574, the 

‘‘Noise Control Act of 1972.’’ 

The FAA issues special conditions, as 

defined in 14 CFR 11.19, in accordance 

with § 11.38, and they become part of 

the type certification basis under 

§ 21.17(a)(2). 

Special conditions are initially 

applicable to the model for which they 

are issued. Should the type certificate 

for that model be amended later to 

include any other model that 

incorporates the same novel or unusual 

design features, the special conditions 

would also apply to the other model 

under provisions of § 21.101. 

Novel or Unusual Design Features 

Crew-rest compartments have been 

installed and certificated on several 

Boeing airplane models in locations as 

varied as the main passenger-seating 

area, the overhead space above the main 

passenger-cabin seating area, and below 

the passenger-cabin seating area within 

the cargo compartment. In each case, the 

Administrator has determined that the 

applicable regulations (i.e., 14 CFR part 

25) did not provide all of the necessary 

requirements because each installation 

had unique features by virtue of its 

design, location, and use on the 

airplane. The special conditions contain 

safety standards that the Administrator 

considers necessary to establish a level 

of safety equivalent to that established 

by the existing airworthiness standards. 

Most recently for the Boeing Model 

777 series airplanes, the FAA has issued 

Special Conditions No. 25–230–SC, 

dated April 9, 2003, for crew-rest 

compartments allowed to be occupied 

by crewmembers and flight 

crewmembers during flight, and Special 

Conditions No. 25–260–SC, dated April 

14, 2004, for crew-rest compartments 

allowed to be occupied by 

crewmembers and flight crewmembers 

during TT&L, as well as during flight. 

The OCR compartment on the 787 

identified by Boeing as an overhead 

flight-attendant rest is located above the 

main passenger cabin, adjacent to Door 

4, and will be accessed from the main 

deck by stairs through a vestibule. This 

OCR compartment will contain six 

private berths, an emergency hatch that 

opens directly into the main passengercabin area, a smoke-detection system, an 

oxygen system, and various occupant 

amenities. This OCR compartment will 

only be occupied by trained 

crewmembers in flight. It will not be 


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