13528 Federal Register / Vol. 76, No. 49 / Monday, March 14, 2011 / Proposed Rules 

(1) How can the Department best 

promote meaningful periodic reviews of 

its existing significant regulations, and 

how can it best identify those rules that 

might be modified, streamlined, 

expanded, or repealed? 

(2) What factors should the agency 

consider in selecting and prioritizing 

rules for review? 

(3) Are there regulations that simply 

make no sense or have become 

unnecessary, ineffective, or ill advised 

and, if so, what are they? Are there rules 

that can simply be repealed without 

impairing the Department’s regulatory 

programs and, if so, what are they? 

(4) Are there rules that have become 

outdated and, if so, how can they be 

modernized to accomplish their 

regulatory objectives better? 

(5) Are there rules that are still 

necessary, but have not operated as well 

as expected such that a modified, 

stronger, or slightly different approach 

is justified? 

(6) Does the Department currently 

collect information that it does not need 

or use effectively to achieve regulatory 

objectives? 

(7) Are there regulations that are 

unnecessarily complicated or could be 

streamlined to achieve regulatory 

objectives in more efficient ways? 

(8) Are there rules that have been 

overtaken by technological 

developments? Can new technologies be 

leveraged to modify, streamline, or do 

away with existing regulatory 

requirements? 

(9) Are there any of the Department’s 

regulations that are not tailored to 

impose the least burden on society, 

consistent with achieving the regulatory 

objectives? 

(10) How can the Department best 

obtain and consider accurate, objective 

information and data about the costs, 

burdens, and benefits of existing 

regulations? Are there existing sources 

of data the Department can use to 

evaluate the post-promulgation effects 

of regulations over time? 

(11) Are there regulations that are 

working well that can be expanded or 

used as a model to fill gaps in other 

DHS regulatory programs? 

(12) Are there any regulations that 

create difficulty because of duplication, 

overlap, or inconsistency of 

requirements? 

The Department notes that this notice 

is issued solely for information and 

program-planning purposes. Responses 

to this notice do not bind DHS to any 

further actions related to the response. 

Ivan K. Fong, 

General Counsel. 

[FR Doc. 2011–5829 Filed 3–11–11; 8:45 am] 

BILLING CODE 9110–9B–P 

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. 

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: Parisa.Salehi@usda.gov or 

Kathy.Finn@usda.gov. 

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: Antoinette.Carter@usda.gov. 

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 


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Federal Register / Vol. 76, No. 49 / Monday, March 14, 2011 / Proposed Rules 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 § 930.10 of the order so handler 

acquisition of grower diversion 

certificates is not considered handling. 

2. Amend the ‘‘marketing policy’’ 

provisions in § 930.50 of the order so 

grower-diverted cherries are not 

counted as production in the volume 

control formula. 

3. Amend § 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 § 930.10 to read as follows: 

§ 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 § 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 

§ 930.50 to read as follows: 

§ 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 § 930.58 to 

read as follows: 

§ 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 


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13530 Federal Register / Vol. 76, No. 49 / Monday, March 14, 2011 / Proposed Rules 

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 § 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 

DEPARTMENT OF AGRICULTURE 

Agricultural Marketing Service 

7 CFR Part 1206 

[Doc No. AMS–FV–10–0092] 

Mango Promotion, Research, and 

Information Order; Reapportionment 

AGENCY: Agricultural Marketing Service. 

ACTION: Proposed rule. 

SUMMARY: This rule proposes to adjust 

the number of members on the National 

Mango Board (Board) from 20 to 18 to 

reflect the elimination of two non-voting 

wholesaler/retailer positions. In 

accordance with the Mango Promotion, 

Research, and Information Order 

(Order), which is authorized under the 

Commodity Promotion, Research, and 

Information Act of 1996 (Act), a review 

of the composition of the Board must be 

conducted every five years. The Board 

has reviewed the production volumes 

and geographical distribution of 

domestic and imported mangos, and 

submitted this information to the U.S. 

Department of Agriculture with a 

recommendation that no changes be 

made to the number of importer, first 

handler, or producer seats on the Board. 

However, the Board recommends 

elimination of two non-voting 

wholesaler/retailer positions that have 

not been filled since 2007. 

DATES: Comments must be received by 

April 13, 2011. 

ADDRESSES: Comments may be 

submitted electronically at http:// 

www.regulations.gov. Comments may 

also be sent to the Research and 

Promotion Branch, Fruit and Vegetable 

Programs, AMS, U.S. Department of 

Agriculture, Room 0632–S, Stop 0244, 

1400 Independence Avenue, SW., 

Washington, DC 20250–0244; fax: 202– 

205–2800. All comments should 

reference the document number and the 

date and page number of this issue of 

the Federal Register. Comments will be 

made available for public inspection in 

the above office during regular business 

hours, or may be viewed at http:// 

www.regulations.gov. All comments 

submitted in response to this proposed 

rule will be included in the record and 

will be made available to the public. 

Please be advised that the identity of the 

individuals or entities submitting 

comments will be made public on the 

Internet at the address provided above. 

FOR FURTHER INFORMATION CONTACT: 

Veronica Douglass, Marketing 

Specialist, Research and Promotion 

Branch, Fruit and Vegetable Programs, 

AMS, U.S. Department of Agriculture, 

Stop 0244, Room 0632–S, 1400 

Independence Avenue, SW., 

Washington, DC 20250–0244; telephone: 

888–720–9917; fax: 202–205–2800; or email: veronica.douglass@ams.usda.gov. 

SUPPLEMENTARY INFORMATION: This rule 

is issued under the Mango Promotion, 

Research, and Consumer Information 

Order (Order) [7 CFR part 1206]. The 

Order is authorized by the Commodity 

Promotion, Research, and Information 

Act of 1996 (Act) [7 U.S.C. 7411–7425]. 

Executive Order 12866 

The Office of Management and Budget 

(OMB) has waived the review process 

required by Executive Order 12866 for 

this action. 

Executive Order 12988 

This rule has been reviewed under 

Executive Order 12988, Civil Justice 

Reform. It is not intended to have a 

retroactive effect. 

Section 524 of the Act provides that 

the Act shall not affect or preempt any 

other State or Federal law authorizing 

promotion or research relating to an 

agricultural commodity. 

Under the Act, a person subject to an 

order may file a petition with the U.S. 

Department of Agriculture (Department) 

stating that an order, any provision of an 

order, or any obligation imposed in 

connection with an order, is not 

established in accordance with the law, 

and requesting a modification of an 

order or an exemption from an order. 

Any petition filed challenging an order, 

any provision of an order, or any 

obligation imposed in connection with 

an order, shall be filed within two years 

after the effective date of an order, 

provision, or obligation subject to 

challenge in the petition. The petitioner 

will have the opportunity for a hearing 

on the petition. Thereafter, the 

Department will issue a ruling on the 

petition. The Act provides that the 

district court of the United States for 

any district in which the petitioner 

resides or conducts business shall have 

the jurisdiction to review a final ruling 

on the petition, if the petitioner files a 

complaint for that purpose not later 

than 20 days after the date of the entry 

of the Department’s final ruling. 

Regulatory Flexibility Analysis and 

Paperwork Reduction Act 

In accordance with the Regulatory 

Flexibility Act (RFA) (5 U.S.C. 601– 

612), AMS has considered the economic 

impact of this rule on small entities that 

would be affected by this rule. The 

purpose of the RFA is to fit regulatory 

action to scale on businesses subject to 

such action, so that small businesses 

will not be disproportionately 

burdened. 

The Small Business Administration 

defines small agricultural producers as 

those having annual receipts of no more 

than $750,000, and small agricultural 

service firms as those having annual 

receipts of no more than $7 million (13 

CFR part 121). First handlers, importers, 

wholesalers, and retailers would be 

considered agricultural service firms. 

Currently, fewer than five first handlers 

and 193 importers are subject to 

assessment under the Order. The 

majority of producers would be 

considered small businesses. The 

majority of these first handlers and 

importers would be considered small 

businesses, while wholesalers and 

retailers would not. 

First handlers and importers who 

market or import less than 500,000 

pounds of mangos annually are exempt 

from the assessment. Mangos that are 

exported out of the United States are 

also exempt from assessment. In 

addition, domestic producers, foreign 

producers, wholesalers, and retailers are 

not subject to assessment under the 

Order, but such individuals are eligible 

to serve on the Board along with 

importers and first handlers. 

Section 1206.30 (c) of the Order 

requires that the Board review the 

volume and geographical distribution of 

mango production and imports at least 

once every five years. If warranted, the 

Board will recommend to the 

Department that membership on the 

Board be altered to reflect any changes 


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