42072 Federal Register / Vol. 76, No. 137 / Monday, July 18, 2011 / Proposed Rules 

DEPARTMENT OF AGRICULTURE 

Agricultural Marketing Service 

7 CFR Part 930 

[Doc. No. AMS–FV–11–0047; FV11–930–1 

PR] 

Tart Cherries Grown in Michigan, New 

York, Pennsylvania, Oregon, Utah, 

Washington, and Wisconsin; 

Suspension of Order Regulations 

Regarding Random Row Diversion 

AGENCY: Agricultural Marketing Service, 

USDA. 

ACTION: Proposed rule. 

SUMMARY: This proposed rule invites 

comments on changes to the grower 

diversion regulations prescribed under 

the marketing order for tart cherries 

(order). The order regulates the handling 

of tart cherries grown in the States of 

Michigan, New York, Pennsylvania, 

Oregon, Utah, Washington, and 

Wisconsin and is administered locally 

by the Cherry Industry Administrative 

Board (Board). This rule would suspend 

indefinitely the regulations establishing 

random row as a method of grower 

diversion. With growers consistently 

choosing other diversion methods 

which offer more flexibility and fewer 

potential problems, the Board 

recommended this suspension to bring 

grower diversion requirements in line 

with current industry practices. 

DATES: Comments must be received by 

July 28, 2011. 

ADDRESSES: Interested persons are 

invited to submit written comments 

concerning this proposal. Comments 

must be sent to the Docket Clerk, 

Marketing Order Administration 

Branch, Fruit and Vegetable Programs, 

AMS, USDA, 1400 Independence 

Avenue, SW., STOP 0237, Washington, 

DC 20250–0237; Fax: (202) 720–8938; or 

Internet: http://www.regulations.gov. All 

comments should reference the docket 

number and the date and page number 

of this issue of the Federal Register and 

will be made available for public 

inspection in the Office of the Docket 

Clerk during regular business hours, or 

can be viewed at: http:// 

www.regulations.gov. All comments 

submitted in response to this 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 the 

comments will be made public on the 

Internet at the address provided above. 

FOR FURTHER INFORMATION CONTACT: 

Jennie M. Varela, Marketing Specialist, 

or Christian D. Nissen, Regional 

Manager, Southeast Marketing Field 

Office, Marketing Order Administration 

Branch, Fruit and Vegetable Programs, 

AMS, USDA; Telephone: (863) 324– 

3375, Fax: (863) 325–8793, or E-mail: 

Jennie.Varela@ams.usda.gov or 

Christian.Nissen@ams.usda.gov. 

Small businesses may request 

information on complying with this 

regulation by contacting Laurel May, 

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: 

Laurel.May@ams.usda.gov. 

SUPPLEMENTARY INFORMATION: This 

proposal is issued under Marketing 

Agreement and Order No. 930, both as 

amended (7 CFR part 930), regulating 

the handling of tart cherries grown in 

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 

(USDA) is issuing this rule in 

conformance with Executive Order 

12866. 

This proposal has been reviewed 

under Executive Order 12988, Civil 

Justice Reform. This proposed rule is 

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 

not later than 20 days after the date of 

the entry of the ruling. 

This proposed rule invites comments 

on changes to the grower diversion 

regulations prescribed under the order. 

This rule would suspend indefinitely 

the regulations establishing random row 

as a method of grower diversion. With 

growers consistently choosing other 

diversion methods which offer more 

flexibility and fewer potential problems, 

the Board recommended this 

suspension to bring grower diversion 

requirements in line with current 

industry practices. The Board 

unanimously recommended this action 

at a meeting on March 24, 2011. 

Section 930.58 of the order provides 

authority for voluntary grower 

diversion. Under volume regulation, 

growers can divert all or a portion of 

their cherries which otherwise, upon 

delivery to a handler, would be subject 

to regulation. Section 930.158 prescribes 

the rules and regulations for grower 

diversion, including the procedures and 

deadline dates for applying for 

diversion and the types of diversion 

available to growers. Currently, there are 

four types of grower diversion: Random 

row, whole block, partial block, and inorchard tank. This rule would suspend 

portions of § 930.158 that provide 

random row as an option under grower 

diversion. 

The order contains volume control 

provisions that allow the industry to 

address fluctuations in production from 

season to season, helping to stabilize 

supplies and prices. When volume 

control is in effect, free and restricted 

percentages are established. Handlers 

can meet their restricted percentage 

obligation by placing cherries in 

inventory reserve, diverting cherries 

themselves, or redeeming grower 

diversion certificates. 

Under voluntary grower diversion, 

growers can divert cherries from 

production in exchange for Board issued 

grower diversion certificates stating the 

quantity diverted. Growers can then 

present these certificates to handlers 

who may redeem them as a method of 

complying with their restricted 

percentage obligation under volume 

regulation. By diverting cherries from 

production, growers can avoid the costs 

of harvesting and transporting fruit, 

reduce the supply, and mitigate the 

downward pressure on prices that result 

from oversupply. 

Following the promulgation of the 

order in 1996, the Board recommended 

regulations outlining two grower 

diversion options for the 1997 crop year, 

whole block and random row (63 FR 

20019). Under whole block diversion, 

growers select entire orchard blocks to 

be left unharvested. With random row 

diversion, the Board randomly selects 


srobinson on DSK4SPTVN1PROD with PROPOSALS
Federal Register / Vol. 76, No. 137 / Monday, July 18, 2011 / Proposed Rules 42073 

rows of trees the grower is to leave 

unharvested, providing growers with a 

way to divert a portion of an orchard 

rather than a whole orchard block. 

For the 1998 crop year and 

subsequent seasons, the grower 

diversion program was expanded to 

include two additional options, partial 

block and in-orchard tank diversions (63 

FR 33523). Partial block diversion 

allows the grower to select a contiguous 

portion of an orchard block that will be 

left unharvested. With in-orchard tank 

diversion, cherries are harvested into 

tanks, the volume is calculated, and 

then diverted in the orchard. 

The addition of these options 

provided growers with greater flexibility 

when considering diversion, and 

marked a substantial decline in the use 

of random row. For the last ten years, 

random row has been the least utilized 

grower diversion option, and accounted 

for less than three percent of total 

grower diversion during the last three 

seasons. 

During the discussion of this issue, 

the Board noted several issues that have 

contributed to the nominal use of 

random row as a grower diversion 

option. Random row diversion is the 

least flexible of grower diversion 

options in terms of quality control. 

When a grower selects a whole block or 

partial block to divert, the grower 

controls which fruit will be harvested 

and which trees will be left 

unharvested. Similarly, under inorchard tank diversion, the grower 

determines what fruit is picked and 

stored in the tanks for diversion. 

Consequently, these three methods 

allow the grower to incorporate quality 

into the decision of which cherries to 

divert. Delivering higher quality fruit 

not only brings the grower a greater 

return, but higher quality benefits the 

industry overall. 

Under the random row method of 

diversion, the diverted rows are selected 

randomly by the Board. This could 

result in the best quality fruit being left 

in the orchard, with lower quality fruit 

delivered to handlers, leading to lower 

grower returns. 

In addition to quality concerns, the 

logistics of random row also present 

particular challenges to the grower. 

With the exception of in-orchard tank 

diversion, all grower diversion methods 

require the grower to submit an orchard 

map to the Board. The burden of having 

to keep orchard maps precisely up-todate is borne by growers. The random 

selection of rows by the Board places 

additional importance on the accuracy 

and precision of submitted maps. 

Inaccurate maps can lead to harvesting 

errors, with rows selected for diversion 

being inadvertently harvested. 

Even if maps are kept current, 

diverting random rows during harvest 

can be challenging. While whole and 

partial block diversions allow growers 

to leave contiguous areas unharvested, 

random row diversions require that 

specified rows be left unharvested, 

increasing the likelihood of error. 

Further, given the prevalence of contract 

harvesting, workers are often unfamiliar 

with the groves they are harvesting, and 

mistakes are made in identifying the 

specific rows to be left unharvested. 

The greater potential for error during 

harvesting is of major concern to 

growers because penalties for errors in 

random row diversion are costly. If a 

grower discovers an error during 

harvest, two trees must be left 

unharvested for every one of the trees 

improperly harvested in order to remain 

in compliance, with the grower only 

receiving the original diversion amount. 

If the grower reports an error at the end 

of harvesting, a reduced diversion 

amount is calculated. If an unreported 

error is discovered by the Board after 

harvesting is complete, no diversion 

certificate would be issued. 

In addition to the issues affecting 

grower interest in this option, the Board 

also has concerns regarding the use of 

random row diversion. Specifically, the 

Board is concerned about the potential 

for miscalculations or misuse that could 

lead to overstated diversion amounts. 

Random row diversion differs from the 

other options in that the diverted 

tonnage receiving certificates is 

calculated based on volume delivered 

from the orchard. In contrast, whole and 

partial block diversions involve 

sampling trees in the selected area to 

determine the volume being diverted 

before harvest takes place, and inorchard tank diversion is determined by 

the actual volume measured in the 

tanks. 

Calculating the diverted volume after 

delivery creates opportunity for error. It 

can be difficult to determine if the 

volume delivered to the handler all 

came from appropriately mapped 

groves, included in the grower’s 

diversion application. With diversion 

calculations based on delivered volume, 

it is important that the volume only 

include cherries from those orchards in 

which random rows were diverted. 

Some growers care for and deliver fruit 

from orchards other than their own. 

There is concern that the handler 

accepting delivery could easily mistake 

how much volume came from the 

grower’s own mapped orchards, 

resulting in the overstatement of the 

amount diverted. 

With the availability of other 

diversion options that offer the grower 

more flexibility and less potential 

problems, random row represents a very 

small percentage of total grower 

diversion. Further, with the higher 

potential for harvesting errors and for 

miscalculations of diversion amounts, 

the Board believes random row is the 

most problematic of the diversion 

options. Consequently, the Board 

unanimously recommended this action 

which would suspend the regulations 

providing random row as a grower 

diversion option. The Board voted to 

suspend the regulations rather than 

eliminating them altogether in the event 

the industry would want to reinstate 

random row diversion in the future. 

Initial Regulatory Flexibility Analysis 

Pursuant to requirements set forth in 

the Regulatory Flexibility Act (RFA) (5 

U.S.C. 601–612), the Agricultural 

Marketing Service (AMS) has 

considered the economic impact of this 

action on small entities. Accordingly, 

AMS has prepared this initial 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. 

There are approximately 40 handlers 

of tart cherries who are subject to 

regulation under the marketing order 

and approximately 600 producers of tart 

cherries in the regulated area. Small 

agricultural service firms have been 

defined by the Small Business 

Administration (SBA) 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 (13 CFR 121.201). 

According to the National 

Agricultural Statistics Service, and 

Board data, the average annual grower 

price for tart cherries during the 2009– 

2010 season was $0.197 per pound, and 

total shipments were around 227 

million pounds. Therefore, average 

receipts for tart cherry producers were 

around $75,000, well below the SBA 

threshold for small producers. The Food 

Institute estimates an f.o.b. price of 

$0.84 per pound for frozen tart cherries, 

which make up the majority of 

processed tart cherries. Using this data, 

average annual handler receipts were 

about $4.8 million, also below the SBA 

threshold for small agricultural service 


srobinson on DSK4SPTVN1PROD with PROPOSALS
42074 Federal Register / Vol. 76, No. 137 / Monday, July 18, 2011 / Proposed Rules 

firms. Assuming a normal distribution, 

the majority of producers and handlers 

of tart cherries may be classified as 

small entities. 

This action would change the grower 

diversion regulations prescribed under 

the order. This rule would suspend 

indefinitely the regulations in § 930.158 

establishing random row as a method of 

grower diversion. With growers 

consistently choosing other diversion 

methods which offer more flexibility 

and fewer potential problems, the Board 

recommended this suspension to bring 

grower diversion requirements in line 

with current industry practices. The 

authority for this action is provided for 

in § 930.58 of the order. The Board 

unanimously recommended this action 

at a meeting on March 24, 2011. 

This proposed rule would not impose 

any additional costs on growers. The 

grower diversion program under the 

order is completely voluntary. In an 

effort to stabilize supplies and prices, 

the tart cherry industry uses 

mechanisms under the order to attempt 

to bring supply and demand into 

balance. Under voluntary grower 

diversion, growers can divert cherries 

from production in exchange for Board 

issued grower diversion certificates 

stating the quantity diverted. Growers 

can then present these certificates to 

handlers who may redeem them as a 

method of complying with their 

restricted percentage obligation under 

volume regulation. By diverting cherries 

from production, growers can avoid the 

costs of harvesting and transporting 

fruit, reduce the supply, and mitigate 

the downward pressure on prices that 

result from oversupply. 

This action would only suspend the 

regulations that provide random row as 

a method of grower diversion. The other 

three options, whole lot, partial block, 

and in-orchard tank, would remain 

unchanged by this action. Random row 

is the least utilized of the grower 

diversion options, with the other three 

options accounting for 97 percent of 

diversion volume. Consequently, this 

change would bring the regulations in 

line with current industry preferences 

and practices. Further, the remaining 

grower diversion options offer the 

grower some flexibility to control 

quality, which in turn could increase 

grower returns. The effects of this rule 

are not expected to be 

disproportionately greater or less for 

small entities than for larger entities. 

One alternative action considered by 

the Board was to remove the regulations 

pertaining to random row diversion. 

However, the Board agreed that 

suspension would be the most 

appropriate action should the industry 

determine it would like to reinstate 

random row as a diversion option in the 

future. Thus, termination was rejected 

as an alternative. 

This rule would not impose any 

additional reporting or recordkeeping 

requirements on either small or large 

tart cherry handlers. 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. 

USDA has not identified any relevant 

Federal rules that duplicate, overlap or 

conflict with this proposed rule. 

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 March 24, 2011, 

meeting was a public meeting and all 

entities, both large and small, were able 

to express views on this issue. Finally, 

interested persons are invited to submit 

comments on this proposed rule, 

including the regulatory and 

informational impacts of this action on 

small businesses. 

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/ 

MarketingOrdersSmallBusinessGuide. 

Any questions about the compliance 

guide should be sent to Laurel May at 

the previously mentioned address in the 

FOR FURTHER INFORMATION CONTACT

section. 

A ten-day comment period is 

provided to allow interested persons to 

respond to this proposal. Ten days is 

deemed appropriate because the 2011– 

12 tart cherry crop harvest will begin in 

mid to late July 2011. Also, growers 

need to make their determinations as to 

grower diversion prior to harvest. 

Further, growers and handlers are aware 

of this action, which was unanimously 

recommended by the Board at a public 

meeting on March 24, 2011. All written 

comments timely received will be 

considered before a final determination 

is made on this matter. 

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 proposed to 

be amended as follows: 

PART 930—TART CHERRIES GROWN 

IN 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. 

§ 930.158 [Amended] 

2. In § 930.158: 

A. Suspend paragraph (b)(1) 

indefinitely. 

B. In paragraph (c)(3), redesignate the 

first two sentences as paragraph (c)(3)(i) 

and the remaining sentences as 

paragraph (c)(3)(ii). 

C. Newly redesignated paragraph 

(c)(3)(ii) is suspended indefinitely. 

Dated: July 12, 2011. 

Rayne Pegg, 

Administrator, Agricultural Marketing 

Service. 

[FR Doc. 2011–17883 Filed 7–15–11; 8:45 am] 

BILLING CODE P 

NUCLEAR REGULATORY 

COMMISSION 

10 CFR Part 20 

[NRC–2011–0162] 

Consideration of Rulemaking To 

Address Prompt Remediation of 

Residual Radioactivity During 

Operations 

AGENCY: Nuclear Regulatory 

Commission. 

ACTION: Notice of public Webinar and 

request for comment. 

SUMMARY: The U.S. Nuclear Regulatory 

Commission (Commission or NRC) is 

seeking input from the public, licensees, 

Agreement States, non-Agreement 

States, and other stakeholders on a 

potential rulemaking to address prompt 

remediation of residual radioactivity 

during the operational phase of licensed 

material sites and nuclear reactors. The 

NRC has not initiated a rulemaking, but 

is in the process of gathering 

information and seeking stakeholder 

input on this subject for developing a 

technical basis document. To aid in this 

process, the NRC is requesting 

comments on the issues discussed in 

Section III, ‘‘Specific Questions,’’ in the 

Supplementary Information Section of 

this document. Additionally, the NRC 

will hold a public Webinar to facilitate 

the public’s and other stakeholders’ 


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