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Rules and Regulations Federal Register

33673 

Vol. 75, No. 114 

Tuesday, June 15, 2010 

DEPARTMENT OF AGRICULTURE 

Agricultural Marketing Service 

7 CFR Part 930 

[Doc. No. AO–370–A8; AMS–FV–06–0213; 

FV07–930–2] 

Tart Cherries Grown in the States of 

Michigan, New York, Pennsylvania, 

Oregon, Utah, Washington, and 

Wisconsin; Order Amending Marketing 

Order No. 930 

AGENCY: Agricultural Marketing Service, 

USDA. 

ACTION: Final rule. 

SUMMARY: This final rule amends 

Marketing Order No. 930 (order), which 

regulates the handling of tart cherries 

grown in Michigan, New York, 

Pennsylvania, Oregon, Utah, 

Washington, and Wisconsin. The 

amendments were proposed by the 

Cherry Industry Administrative Board 

(Board), which is responsible for local 

administration of the order. These 

amendments will: Authorize changing 

the primary reserve capacity associated 

with the volume control provisions of 

the order; authorize establishment of a 

minimum inventory level at which all 

remaining product held in reserves 

would be released to handlers for use as 

free tonnage; establish an age limitation 

on product placed into reserves; revise 

the nomination and election process for 

handler members on the Board; revise 

Board membership affiliation 

requirements; and update order 

language to more accurately reflect 

grower and handler participation in the 

nomination and election process in 

districts with only one Board 

representative. 

The amendments are designed to 

provide flexibility in administering the 

volume control provisions of the order 

and to update Board nomination, 

election, and membership requirements. 

The amendments are intended to 

improve the operation and 

administration of the order. 

DATES: This rule is effective July 15, 

2010. 

FOR FURTHER INFORMATION CONTACT: 

Martin Engeler, Marketing Order 

Administration Branch, Fruit and 

Vegetable Programs, AMS, USDA, 2202 

Monterey Street, Suite 102–B, Fresno, 

California 93721; telephone: (559) 487– 

5110, Fax: (559) 487–5906, or e-mail: 

Martin.Engeler@ams.usda.gov; or Kathy 

Finn, Marketing Order Administration 

Branch, Fruit and Vegetable Programs, 

AMS, USDA, 1400 Independence 

Avenue, SW., Stop 0237, Washington, 

DC 20250–0237; telephone: (202) 720– 

9921, fax: (202) 720–8938, or e-mail: 

Kathy.Finn@ams.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) 720–2491, Fax: (202) 720–8938, Email: Antoinette.Carter@ams.usda.gov. 

SUPPLEMENTARY INFORMATION: Prior 

documents in this proceeding: Notice of 

Hearing issued on February 5, 2007, and 

published in the February 7, 2007, issue 

of the Federal Register (72 FR 5646), a 

Recommended Decision issued on May 

7, 2009 and published in the May 12, 

2009, issue of the Federal Register (74 

FR 22112), and a Secretary’s Decision 

and Referendum Order issued on 

January 6, 2010, and published in the 

January 13, 2010, issue of the Federal 

Register (75 FR 1724). 

This action is governed by the 

provisions of sections 556 and 557 of 

title 5 of the United States Code and is 

therefore excluded from the 

requirements of Executive Order 12866. 

Preliminary Statement 

This final rule was formulated on the 

record of a public hearing held on 

February 21 and 22, 2007, in Grand 

Rapids, Michigan, and March 1 and 2, 

2007, in Provo, Utah. Notice of this 

hearing was issued on February 5, 2007, 

and published in the February 7, 2007, 

issue of the Federal Register (72 FR 

5646). The hearing was held to consider 

proposed amendments to the order. 

The hearing was held pursuant to the 

provisions of the Agricultural Marketing 

Agreement Act of 1937, as amended (7 

U.S.C. 601–674), hereinafter referred to 

as the ‘‘Act’’, and the applicable rules of 

practice and procedure governing the 

formulation of marketing agreements 

and orders (7 CFR part 900). 

The Notice of Hearing contained 

several amendment proposals submitted 

by the Board. Upon the basis of 

evidence introduced at the hearing and 

the record thereof, the Administrator of 

AMS on May 7, 2009, filed with the 

Hearing Clerk, U.S. Department of 

Agriculture, a Recommended Decision 

and Opportunity to File Written 

Exceptions thereto. This Recommended 

Decision was published in the May 12, 

2009, issue of the Federal Register (74 

FR 22112). Six exceptions were filed 

during the exception period. 

A Secretary’s Decision and 

Referendum Order was issued on 

January 6, 2010, and published in the 

January 13, 2010, issue of the Federal 

Register (75 FR 1724). This document 

directed that a referendum among tart 

cherry growers and processors be 

conducted during the period February 1, 

2010, through February 13, 2010 to 

determine whether they favor the 

proposed amendments to the order. To 

become effective, the amendments had 

to be approved by at least two-thirds of 

the growers voting in the referendum or 

two-thirds of the production 

represented by such growers. In 

addition, processors who had frozen or 

canned at least fifty percent of the 

volume of tart cherries had to vote in 

favor of the amendments for them to 

become effective. All of the proposed 

amendments were approved by growers 

and processors. The amendments 

included in this final order will: 

1. Amend § 930.50 of the order to 

authorize changing the primary reserve 

capacity associated with the volume 

control provisions of the order. 

2. Amend § 930.54 of the order to 

authorize establishment of a minimum 

inventory level at which all remaining 

product held in reserves would be 

released to handlers for use as free 

tonnage. 

3. Amend § 930.55 to establish an age 

limitation on product placed into 

reserves. 

4. Amend § 930.23 to revise the 

nomination and election process for 

handler members on the Board, 

including revisions to conform this 

section to amendment of § 930.20 

regarding membership affiliation 

requirements. 

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33674 Federal Register / Vol. 75, No. 114 / Tuesday, June 15, 2010 / Rules and Regulations 

5. Amend § 930.20 to revise Board 

membership affiliation requirements. 

6. Amend § 930.23 to update order 

language to more accurately reflect 

grower and handler participation in the 

nomination and election process in 

Districts with only one Board 

representative. 

In addition to these amendments to 

the order, AMS proposed to make any 

such additional changes as may be 

necessary to the order to conform to any 

amendments that may be adopted. To 

the extent necessary, conforming 

changes have been made to the 

amendments. 

An amended marketing agreement 

was subsequently mailed to all tart 

cherry handlers in the production area 

for their approval. The marketing 

agreement was not approved by 

handlers representing more than 50 

percent of the volume of tart cherries 

handled by all handlers during the 

representative period of July 1, 2008, 

through June 30, 2009. 

Small Business Considerations 

Pursuant to the requirements set forth 

in the Regulatory Flexibility Act (RFA), 

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 so that 

small businesses will not be unduly or 

disproportionately burdened. Marketing 

orders and amendments thereto are 

unique in that they are normally 

brought about through group action of 

essentially small entities for their own 

benefit. 

Small agricultural producers have 

been defined by the Small Business 

Administration (SBA) (13 CFR 121.201) 

as those having annual receipts of less 

than $750,000. Small agricultural 

service firms, which include handlers 

regulated under the order, are defined as 

those with annual receipts of less than 

$7,000,000. 

There are approximately 40 handlers 

and processors of tart cherries subject to 

regulation under the order and 

approximately 600 producers of tart 

cherries in the regulated area. A 

majority of the producers, processors, 

and handlers are considered small 

entities according to the SBA’s 

definition. 

The geographic region regulated 

under the order covers the states of 

Michigan, New York, Oregon, 

Pennsylvania, Utah, Washington, and 

Wisconsin. Acreage devoted to tart 

cherry production in the regulated area 

has declined in recent years. According 

to data presented at the hearing, bearing 

acreage in 1987–88 totaled 50,050 acres; 

by 2006–2007 it had declined to 37,200 

acres. Michigan accounts for 74 percent 

of total U.S. bearing acreage with 27,700 

bearing acres. Utah is second, with a 

reported 2,800 acres, or approximately 

eight percent of the total. The remaining 

states’ acreage ranges from 700 to 2,000 

acres. 

Production of tart cherries can 

fluctuate widely from year to year. The 

magnitude of these fluctuations is one of 

the most pronounced for any 

agricultural commodity in the United 

States, and is due in large part to 

weather related conditions during the 

bloom and growing seasons. This 

fluctuation in supplies presents a 

marketing challenge for the tart cherry 

industry because demand for the 

product is relatively static. In addition, 

the demand for tart cherries is inelastic, 

which means a change in the supply has 

a proportionately larger change in the 

price level. 

Authorities under the order include 

volume regulation, promotion and 

research, and grade and quality 

standards. Volume regulation is used 

under the order to augment supplies 

during short supply years with product 

placed in reserves during large supply 

years. This practice is intended to 

reduce the annual fluctuations in 

supplies and corresponding fluctuations 

in prices. 

The Board is comprised of 

representatives from all producing areas 

based on the volume of cherries 

produced in those areas. The Board 

consists of a mix of handler and grower 

members, and a member that represents 

the public. Board meetings where 

regulatory recommendations and other 

decisions are made are open to the 

public. All members are able to 

participate in Board deliberations, and 

each Board member has an equal vote. 

Others in attendance at meetings are 

also allowed to express their views. 

The Board appointed a subcommittee 

to consider amendments to the 

marketing order. The subcommittee met 

several times for this purpose, and 

ultimately recommended several 

amendments to the order. The Board 

subsequently requested that USDA 

conduct a hearing to consider the 

proposed amendments. The views of all 

participants were considered 

throughout this process. 

In addition, the hearing to receive 

evidence on the proposed amendments 

was open to the public and all 

interested parties were invited and 

encouraged to participate and express 

their views. 

The proposed amendments are 

intended to provide additional 

flexibility in administering the volume 

control provisions of the order, and to 

update Board nomination, election, and 

membership requirements. The 

amendments are intended to improve 

the operation and administration of the 

order. Record evidence indicates the 

proposals are intended to benefit all 

producers and handlers under the order, 

regardless of size. 

Amendment 1—Adding Authority To 

Change the Primary Reserve Capacity 

This amendment revises § 930.50 of 

the order to authorize changing the 

primary reserve capacity associated 

with the volume control provisions of 

the order through informal rulemaking. 

Prior to this amendment, changing the 

reserve capacity required amendment of 

the order through the formal rulemaking 

process. 

The order establishes a fixed quantity 

of 50 million pounds of tart cherries and 

tart cherry products that can be held in 

the primary reserve. Any reserve 

product in excess of the 50-millionpound limitation must be placed in the 

secondary reserve. 

Free tonnage product can be sold to 

any market outlet, but most shipments 

are sold domestically, which is 

considered the primary market. Reserve 

product can be used only in specific 

outlets which are considered secondary 

markets. These secondary markets 

include development of export markets, 

new product development, new 

markets, and government purchases. 

When the order was promulgated, a 

50-million-pound limitation was placed 

on the capacity of the primary reserve. 

Proponents of the order proposed a 

limitation on the quantity of product 

that could be placed into the primary 

reserve. That limitation was 

incorporated into the order, and could 

only be changed through the formal 

rulemaking process. 

Economic data presented when the 

order was promulgated indicated that a 

reserve program could benefit the 

industry by managing fluctuating 

supplies. Witnesses at the February and 

March 2007 hearing indicated the order 

has been successful in this regard. 

However, the record indicated that the 

order could be more flexible in allowing 

modifications to the 50-million-pound 

limitation should conditions warrant 

such a change in the future. 

If the reserve capacity is changed, 

costs associated with storing product in 

reserves could also change. In addition, 

to the extent such a change could affect 

supplies in the marketplace, returns to 

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both growers and handlers could also be 

affected. 

Any Board recommendation to change 

the reserve capacity will be required to 

be implemented through the informal 

rulemaking process. As part of the 

informal rulemaking process, USDA 

expects any Board recommendation to 

include an analysis of the pertinent 

factors and issues, including the impact 

of a proposed regulation on producers 

and handlers. During that process, the 

Board will recommend a change to 

USDA, and only if the recommendation 

is accompanied by adequate 

justification will USDA proceed with 

the change. 

Amendment 2—Adding Authority To 

Establish a Minimum Inventory Level 

at Which Reserves Will Be Released 

This amendment revises § 930.54 of 

the order to provide the Board with the 

authority to recommend establishment 

of a minimum inventory level at which 

reserves will be released and made 

available to handlers as free tonnage. 

Establishment of such a minimum 

inventory level will allow the Board to 

clear out the primary reserve and 

subsequently the secondary reserve 

when a specified minimum inventory 

level of tart cherries is reached. The 

specified minimum level would be 

established through the informal 

rulemaking process. 

Under the order, handlers cannot 

access the secondary reserve until the 

primary reserve is empty. Thus, one 

handler who has not completely 

disposed of or otherwise fulfilled its 

reserve obligation can prevent access to 

the secondary reserve by other handlers. 

This amendment will allow the Board 

to recommend informal rulemaking to 

establish a minimum inventory level at 

which it can clear out the primary 

reserve in order to provide the industry 

access to secondary reserve inventories. 

If such a minimum inventory level is 

established, costs to both handlers and 

the Board could be reduced. Handlers 

incur costs in maintaining reserves. 

According to the record, these costs 

include the cost of storage, which can be 

in the range of $.01 per pound per 

month. Handlers also incur costs 

associated with tracking their own 

inventory levels. Witnesses stated that 

when inventory levels reach a minimal 

amount the costs of tracking inventory 

outweigh the benefit from carrying 

inventory in the primary reserve. 

A significant portion of the Board 

staff’s time is directed at tracking 

reserve inventory maintained at 

handlers’ facilities. Hearing witnesses 

testified that while it is difficult to 

quantify the exact value of the Board 

staff’s time to conduct these activities, 

the time could be better spent on other 

industry issues, and it is unnecessary to 

track minimal levels of inventory. 

The establishment of a minimum 

inventory level at which reserves will be 

released could have a positive impact 

on the market. As inventories are 

released from the reserves, products 

could be sold, generating revenue for 

the industry. 

If the authority provided by this 

amendment is utilized, it is expected to 

reduce costs to handlers and the Board, 

thus having a positive economic impact. 

Amendment 3—Establishing an Age 

Limitation on Products Placed Into 

Reserves 

This amendment revises § 930.55 to 

require that products placed in reserves 

must have been produced in the current 

or immediately preceding two crop 

years. This amendment will allow the 

Board to place an age limit on products 

carried in the reserve. The purpose of 

the amendment is to help ensure that 

products of saleable quality are 

maintained in reserve inventories. 

Witness supported the amendment by 

stating that it will add credibility to 

product quality for all products carried 

in the reserve. Prior to this amendment, 

handlers could carry products they have 

no intention of selling just to meet their 

reserve obligation. This amendment will 

require handlers to rotate product in 

their reserve inventory, thus preventing 

them from maintaining the same 

product in the reserve year after year. 

Product held in inventory tends to 

deteriorate over time. This amendment 

will help ensure that when reserve 

product is ultimately released, it is in 

saleable condition and can satisfy the 

market’s needs. Assuring product is 

available to satisfy the market helps to 

foster long term market stability. 

In terms of costs, handlers may 

experience some minimal costs 

associated with periodically rotating 

product through their reserve inventory. 

It is difficult to estimate such costs 

because they will vary depending upon 

each handler’s operation. To the extent 

costs may increase, they will be 

proportionate to each handler’s share of 

the entire industry’s reserve inventory. 

Each handler’s reserve inventory 

obligation is based on the handler’s 

share of the total crop handled. Thus, 

small handlers will not be 

disproportionately burdened. 

It is anticipated that the benefits of 

providing a good quality product in 

reserves to ultimately supply markets 

when needed will outweigh any costs 

associated with implementation of this 

amendment. 

Amendment 4—Revision of Nomination 

and Election Process for Handler 

Members on the Board 

This amendment relates to 

nomination and election of Board 

members under § 930.23 of the order. It 

will require a handler to receive support 

from handlers that handled at least five 

percent of the average production of tart 

cherries in the applicable district in 

order to be a candidate and to be elected 

by the industry and recommended to 

the Secretary for Board membership. 

Prior to this amendment, there was no 

accounting for handler volume in the 

nomination and balloting process. Each 

handler was entitled to one equal vote. 

This amendment will continue to allow 

each handler to have one vote, but will 

also require handler candidates to be 

supported by handlers representing at 

least five percent of the average 

production in the applicable district to 

be eligible to run for a Board position 

and to be elected by the industry for 

recommendation to the Secretary. This 

will help to ensure that handler 

members on the Board represent the 

interests of handlers in their district that 

account for at least a minimal 

percentage of the volume in the district. 

The amendment proposed by the Board 

was modified by AMS. The amendment 

as modified by AMS will not apply the 

five percent support requirements to 

candidates whose potential election 

could prevent a sales constituency 

conflict from occurring, as discussed 

under amendment number five. The 

modification will help to ensure that all 

qualified handlers can participate in the 

election process. 

This amendment is not anticipated to 

have a significant economic impact on 

small businesses. It only affects the 

nomination and election criteria for 

membership on the Board by adding 

volume as an element of support to help 

ensure that Board membership reflects 

the interests of its constituency. All 

qualified handlers, regardless of size, 

will continue to be able to participate in 

the nomination and election process. 

The process will continue to allow for 

both small and large handlers to be 

represented on the Board. 

Amendment 5—Revision of Board 

Membership Affiliation Requirements 

This amendment revises § 930.20 to 

allow more than one Board member to 

be affiliated with the same sales 

constituency from the same district, if 

such a conflict cannot be avoided. 

Prior to this amendment, § 930.20 did 

not allow more than one Board member 

to be affiliated with the same sales 

constituency from the same district 

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33676 Federal Register / Vol. 75, No. 114 / Tuesday, June 15, 2010 / Rules and Regulations 

under any circumstances. The purpose 

of that provision is to prevent any one 

sales constituency from having a 

controlling influence on Board issues 

and actions. However, a situation 

occurred in District 7, Utah, where this 

particular provision of the order did not 

allow the district from having two 

representatives on the Board, as it was 

entitled to under section 930.20(b) of 

the order. In that situation, the only 

candidates willing to serve on the Board 

from Utah were affiliated with the same 

sales constituency. Thus Utah was only 

able, under the marketing order rules, to 

seat one of the two Board 

representatives it was entitled to. 

This amendment is designed to 

prevent a similar problem from 

occurring in the future by allowing more 

than one Board member affiliated with 

the same sales constituency to represent 

a district, if such a sales constituency 

conflict cannot be avoided. The hearing 

record is clear that the sales 

constituency provision should not 

prevent a district from having its 

allocated number of seats on the Board 

if there are eligible candidates willing to 

serve on the Board. 

This amendment is not expected to 

have an economic impact on growers or 

handlers. It relates to representation on 

the Board, and is intended to help 

ensure each area covered under the 

order has the opportunity to achieve its 

allocated representation on the Board. 

Amendment 6—Update Order 

Language To Accurately Reflect Grower 

and Handler Participation in the 

Nomination and Election Process in 

Districts With Only One Board 

Representative 

This amendment to § 930.23 revises 

and updates order language to more 

accurately reflect grower and handler 

participation in the nomination and 

election process in districts with only 

one Board representative. 

Sections 930.23(b)(5) and (c)(4) 

previously referenced Districts 5, 6, 8 

and 9 in regard to the nomination and 

election process. Those were the 

districts entitled to one Board seat when 

the order was initially promulgated. 

However, districts that are entitled to 

one Board seat have changed over time 

due to shifts in production. Amending 

§ 930.23(b)(5) and (c)(4) by removing the 

specific references to Districts 5, 6, 8 

and 9 and replacing it with generic 

language to cover any district that is 

entitled to only one Board 

representative based on the 

representative calculation established in 

§ 930.20 will update order language to 

better reflect the constantly changing 

tart cherry industry. 

This amendment updates order 

language to remove incorrect references 

to district representation in the event 

production shifts occur. It has no 

economic impact on handlers, growers, 

or any other entities. 

Interested persons were invited to 

present evidence at the hearing on the 

probable regulatory and informational 

impacts of the proposed amendments to 

the order on small entities. The record 

evidence is that some of the proposed 

amendments may result in some 

minimal cost increases while others will 

result in cost decreases. To the extent 

there are any cost increases, the benefits 

of the proposed changes are expected to 

outweigh the costs. In addition, changes 

in costs as a result of these amendments 

would be proportional to the size of 

businesses involved and would not 

unduly or disproportionately impact 

small entities. The informational impact 

of these amendments is addressed in the 

Paperwork Reduction Act discussion 

that follows. 

USDA has not identified any relevant 

Federal rules that duplicate, overlap or 

conflict with this rule. These 

amendments are intended to improve 

the operation and administration of the 

order to the benefit of the tart cherry 

industry. 

Paperwork Reduction Act 

Information collection requirements 

for part 930 are currently approved by 

the Office of Management and Budget 

(OMB), under OMB Number 0581–0177, 

Tart Cherries Grown in the States of 

Michigan, New York, Pennsylvania, 

Oregon, Utah, Washington, and 

Wisconsin. Implementation of these 

amendments will not trigger any 

changes to those requirements. It is 

possible that a change to the reporting 

requirements may occur in the future if 

the Board believes it would be necessary 

to assist in program compliance efforts. 

Should any such changes become 

necessary in the future, they would be 

submitted to OMB for approval. 

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. 

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. 

Civil Justice Reform 

These amendments to Marketing 

Order 930 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. 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 

no later than 20 days after the date of 

the entry of the ruling. 

Order Amending the Order Regulating 

the Handling of Tart Cherries Grown in 

Michigan, New York, Pennsylvania, 

Oregon, Utah, Washington, and 

Wisconsin 

Findings and Determinations 

The findings and determinations 

hereinafter set forth are supplementary 

to the findings and determinations that 

were previously made in connection 

with the issuance of the marketing 

agreement and order; and all said 

previous findings and determinations 

are hereby ratified and affirmed, except 

insofar as such findings and 

determinations may be in conflict with 

the findings and determinations set 

forth herein. 

(a) Findings and Determinations Upon 

the Basis of the Hearing Record 

Pursuant to the provisions of the 

Agricultural Marketing Agreement Act 

of 1937, as amended, (7 U.S.C. 601– 

612), and the applicable rules of 

practice and procedure effective 

thereunder (7 CFR part 900), a public 

hearing was held upon proposed 

amendment of Marketing Agreement 

and Order No. 930 (7 CFR part 930), 

regulating the handling of tart cherries 

grown in Michigan, New York, 

Pennsylvania, Oregon, Utah, 

Washington, and Wisconsin. Upon the 

basis of the evidence introduced at such 

hearing and the record thereof, it is 

found that: 

(1) The marketing order, as amended, 

and as hereby proposed to be further 

amended, and all of the terms and 

conditions thereof, would tend to 

effectuate the declared policy of the Act; 

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(2) The marketing order, as amended, 

and as hereby proposed to be further 

amended, regulates the handling of tart 

cherries grown in the production area in 

the same manner as, and is applicable 

only to, persons in the respective classes 

of commercial and industrial activity 

specified in the marketing order upon 

which a hearing has been held; 

(3) The marketing order, as amended, 

and as hereby proposed to be further 

amended, is limited in application to 

the smallest regional production area 

which is practicable, consistent with 

carrying out the declared policy of the 

Act, and the issuance of several orders 

applicable to subdivisions of the 

production area would not effectively 

carry out the declared policy of the Act; 

(4) The marketing order, as amended, 

and as hereby proposed to be further 

amended, prescribes, insofar as 

practicable, such different terms 

applicable to different parts of the 

production area as are necessary to give 

due recognition to the differences in the 

production and marketing of tart 

cherries grown in the production area; 

and 

(5) All handling of tart cherries grown 

in the production area as defined in the 

marketing order is in the current of 

interstate or foreign commerce or 

directly burdens, obstructs, or affects 

such commerce. 

(b) Determinations. It is hereby 

determined that: 

(1) Handlers (excluding cooperative 

associations of producers who are not 

engaged in processing, distributing, or 

shipping tart cherries covered by the 

order as hereby amended) who, during 

the period July 1, 2008, through June 30, 

2009, handled 50 percent or more of the 

volume of such cherries covered by said 

order, as hereby amended, have not 

signed a marketing agreement; and 

(2) The issuance of this amendatory 

order, further amending the aforesaid 

order, is favored or approved by at least 

two-thirds of the produces who 

participated in a referendum on the 

question of approval and who, during 

the period of July 1, 2008 through June 

30, 2009, (which has been determined to 

be a representative period), have been 

engaged within the production area in 

the production of such cherries, such 

producers having also produced for 

market at least two-thirds of the volume 

of such commodity represented in the 

referendum. 

(3) In the absence of a signed 

marketing agreement, the issuance of 

this amendatory order is the only 

practical means pursuant to the 

declared policy of the Act of advancing 

the interests of producers of tart cherries 

in the production area. 

Order Relative to Handling of Tart 

Cherries Grown in Michigan, New 

York, Pennsylvania, Oregon, Utah, 

Washington, and Wisconsin 

It is therefore ordered, That on and 

after the effective date hereof, all 

handling of tart cherries grown in 

Michigan, New York, Pennsylvania, 

Oregon, Utah, Washington, and 

Wisconsin shall be in conformity to, and 

in compliance with the terms and 

conditions of the said order as hereby 

amended as follows: 

The provisions of the proposed order 

amending the order amending the order 

contained in the Secretary’s Decision 

issued on January 6, 2010, and 

published in the Federal Register on 

January 13, 2010 (75 FR 1724), shall be 

and are the terms and provisions of this 

order amending the order and are set 

forth in full herein. 

List of Subjects in 7 CFR Part 930 

Marketing agreements, Reporting and 

recordkeeping requirements, Tart 

cherries. 

■ For the reasons set forth in the 

preamble, Chapter XI of Title 7 of the 

Code of Federal Regulations 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. Revise paragraph (g) of § 930.20 to 

read as follows: 

§ 930.20 Establishment and membership. 

* * * * * 

(g) In order to achieve a fair and 

balanced representation on the Board, 

and to prevent any one sales 

constituency from gaining control of the 

Board, not more than one Board member 

may be from, or affiliated with, a single 

sales constituency in those districts 

having more than one seat on the Board; 

Provided, That this prohibition shall not 

apply in a district where such a conflict 

cannot be avoided. There is no 

prohibition on the number of Board 

members from differing districts that 

may be elected from a single sales 

constituency which may have 

operations in more than one district. 

However, as provided in § 930.23, a 

handler or grower may only nominate 

Board members and vote in one district. 

* * * * * 

■ 3. Revise paragraphs (b)(2) and (b)(5), 

redesignate paragraph (c)(3) as 

paragraph (c)(3)(i), add a new paragraph 

(c)(3)(ii), and revise paragraph (c)(4) of 

§ 930.23 to read as follows: 

§ 930.23 Nomination and election. 

* * * * * 

(b) * * * 

(2) In order for the name of a handler 

nominee to appear on an election ballot, 

the nominee’s name must be submitted 

with a petition form, to be supplied by 

the Secretary or the Board, which 

contains the signature of one or more 

handler(s), other than the nominee, from 

the nominee’s district who is or are 

eligible to vote in the election and that 

handle(s) a combined total of no less 

than five percent (5%) of the average 

production, as that term is used 

§ 930.20, handled in the district. 

Provided, that this requirement shall not 

apply if its application would result in 

a sales constituency conflict as provided 

in § 930.20(g). The requirement that the 

petition form be signed by a handler 

other than the nominee shall not apply 

in any district where fewer than two 

handlers are eligible to vote. 

* * * * * 

(5) In districts entitled to only one 

Board member, both growers and 

handlers may be nominated for the 

district’s Board seat. Grower and 

handler nominations must follow the 

petition procedures outlined in 

paragraphs (b)(1) and (b)(2) of this 

section. 

* * * * * 

(c) * * * 

(3) * * * 

(ii) To be seated as a handler 

representative in any district, the 

successful candidate must receive the 

support of handler(s) that handled a 

combined total of no less than five 

percent (5%), of the average production, 

as that term is used in § 930.20, handled 

in the district; Provided, that this 

paragraph shall not apply if its 

application would result in a sales 

constituency conflict as provided in 

§ 930.20(g). 

(4) In districts entitled to only one 

Board member, growers and handlers 

may vote for either the grower or 

handler nominee(s) for the single seat 

allocated to those districts. 

* * * * * 

■ 4. Revise paragraph (i) of § 930.50 to 

read as follows: 

§ 930.50 Marketing policy. 

* * * * * 

(i) Restricted Percentages. Restricted 

percentage requirements established 

under paragraphs (b), (c), or (d) of this 

section may be fulfilled by handlers by 

either establishing an inventory reserve 

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33678 Federal Register / Vol. 75, No. 114 / Tuesday, June 15, 2010 / Rules and Regulations 

in accordance with § 930.55 or § 930.57 

or by diversion of product in accordance 

with § 930.59. In years where required, 

the Board shall establish a maximum 

percentage of the restricted quantity 

which may be established as a primary 

inventory reserve such that the total 

primary inventory reserve does not 

exceed 50-million pounds; Provided, 

That such 50-million-pound quantity 

may be changed upon recommendation 

of the Board and approval of the 

Secretary. Any such change shall be 

recommended by the Board on or before 

September 30 of any crop year to 

become effective for the following crop 

year, and the quantity may be changed 

no more than one time per crop year. 

Handlers will be permitted to divert (at 

plant or with grower diversion 

certificates) as much of the restricted 

percentage requirement as they deem 

appropriate, but may not establish a 

primary inventory reserve in excess of 

the percentage established by the Board 

for restricted cherries. In the event 

handlers wish to establish inventory 

reserve in excess of this amount, they 

may do so, in which case it will be 

classified as a secondary inventory 

reserve and will be regulated 

accordingly. 

* * * * * 

■ 5. Add a new paragraph (d) to § 930.54 

to read as follows: 

§ 930.54 Prohibition on the use or 

disposition of inventory reserve cherries. 

* * * * * 

(d) Should the volume of cherries 

held in the primary inventory reserves 

and, subsequently, the secondary 

inventory reserves reach a minimum 

amount, which level will be established 

by the Secretary upon recommendation 

from the Board, the products held in the 

respective reserves shall be released 

from the reserves and made available to 

the handlers as free tonnage. 

■ 6. Revise paragraph (b) of § 930.55 to 

read as follows: 

§ 930.55 Primary inventory reserves. 

* * * * * 

(b) The form of the cherries, frozen, 

canned in any form, dried, or 

concentrated juice, placed in the 

primary inventory reserve is at the 

option of the handler. The product(s) 

placed by the handler in the primary 

inventory reserve must have been 

produced in either the current or the 

preceding two crop years. Except as may 

be limited by § 930.50(i) or as may be 

permitted pursuant to §§ 930.59 and 

930.62, such inventory reserve portion 

shall be equal to the sum of the products 

obtained by multiplying the weight or 

volume of the cherries in each lot of 

cherries acquired during the fiscal 

period by the then effective restricted 

percentage fixed by the Secretary; 

Provided, That in converting cherries in 

each lot to the form chosen by the 

handler, the inventory reserve 

obligations shall be adjusted in 

accordance with uniform rules adopted 

by the Board in terms of raw fruit 

equivalent. 

* * * * * 

Dated: June 9, 2010. 

Rayne Pegg, 

Administrator, Agricultural Marketing 

Service. 

[FR Doc. 2010–14286 Filed 6–14–10; 8:45 am] 

BILLING CODE 3410–02–P 

NUCLEAR REGULATORY 

COMMISSION 

10 CFR Part 72 

[NRC–2010–0140] 

RIN 3150–AI86 

List of Approved Spent Fuel Storage 

Casks: MAGNASTOR System, Revision 

1 

AGENCY: Nuclear Regulatory 

Commission. 

ACTION: Direct final rule. 

SUMMARY: The U. S. Nuclear Regulatory 

Commission (NRC) is amending its 

spent fuel storage regulations by 

revising the NAC International Inc. 

(NAC) MAGNASTOR System listing 

within the ‘‘List of Approved Spent Fuel 

Storage Casks’’ to include Amendment 

No. 1 to Certificate of Compliance (CoC) 

Number 1031. Amendment No. 1 to the 

MAGNASTOR System CoC will change 

Technical Specifications (TS) related to 

neutron absorber qualification and 

acceptance testing. Specifically, the 

amendment will revise TS 4.1.1.b and 

incorporate by reference into the 

MAGNASTOR CoC, Sections 10.1.6.4.5, 

10.1.6.4.6, 10.1.6.4.7, and 10.1.6.4.8 of 

the Final Safety Analysis Report (FSAR) 

regarding the acceptance testing of 

borated aluminum alloy and borated 

metal matrix composite neutron 

absorber material. The amendment will 

also include other changes in 

Appendices A and B of the TS to 

incorporate minor editorial corrections. 

DATES: The final rule is effective August 

30, 2010, unless significant adverse 

comments are received by July 15, 2010. 

A significant adverse comment is a 

comment where the commenter 

explains why the rule would be 

inappropriate, including challenges to 

the rule’s underlying premise or 

approach, or would be ineffective or 

unacceptable without a change. If the 

rule is withdrawn, timely notice will be 

published in the Federal Register. 

ADDRESSES: You can access publicly 

available documents related to this 

document using the following methods: 

Federal e-Rulemaking Portal: Go to 

http://www.regulations.gov and search 

for documents filed under Docket ID 

NRC–2010–0140. Address questions 

about NRC dockets to Carol Gallagher at 

301–492–3668; e-mail 

Carol.Gallagher@nrc.gov. 

NRC’s Public Document Room (PDR): 

The public may examine and have 

copied for a fee publicly available 

documents at the NRC’s PDR, Room O– 

1F21, One White Flint North, 11555 

Rockville Pike, Rockville, Maryland. 

NRC’s Agencywide Documents Access 

and Management System (ADAMS): 

Publicly available documents created or 

received at the NRC are available 

electronically at the NRC’s Electronic 

Reading Room at http://www.nrc.gov/ 

reading-rm/adams.html. From this page, 

the public can gain entry into ADAMS, 

which provides text and image files of 

NRC’s public documents. If you do not 

have access to ADAMS or if there are 

problems in accessing the documents 

located in ADAMS, contact the NRC’s 

PDR reference staff at 1–899–397–4209, 

301–415–4737, or by e-mail to 

pdr.resource@nrc.gov. An electronic 

copy of the proposed CoC, TS, and 

preliminary safety evaluation report 

(SER) can be found under ADAMS 

Package Number ML100130178. The 

ADAMS Accession Number for the NAC 

application, dated March 26, 2009, is 

ML090890292. 

CoC No. 1031, the TS, the preliminary 

SER, and the environmental assessment 

are available for inspection at the NRC 

PDR, Room O–1F21, One White Flint 

North, 11555 Rockville Pike, Rockville, 

MD. Single copies of these documents 

may be obtained from Jayne M. 

McCausland, Office of Federal and State 

Materials and Environmental 

Management Programs, U.S. Nuclear 

Regulatory Commission, Washington, 

DC 20555–0001, telephone (301) 415– 

6219, e-mail 

Jayne.McCausland@nrc.gov. 

FOR FURTHER INFORMATION CONTACT: 

Jayne M. McCausland, Office of Federal 

and State Materials and Environmental 

Management Programs, U.S. Nuclear 

Regulatory Commission, Washington, 

DC 20555–0001, telephone (301) 415– 

6219, e-mail 

Jayne.McCausland@nrc.gov. 

SUPPLEMENTARY INFORMATION: 

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