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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]

# 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                           ( print 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 § 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*                             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 

* * * * *

                            (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 

                            (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                                   ( print 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 § 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