This section of the FEDERAL REGISTER contains notices to the public of the proposed issuance of rules and regulations. The purpose of these notices is to give interested persons an opportunity to participate in the rule making prior to the adoption of the final

rules. 

# Proposed Rules Federal Register 

### 12702

Vol. 75, No. 51

Wednesday, March 17, 2010

**DEPARTMENT OF AGRICULTURE**

**Agricultural Marketing Service**

**7 CFR Part 930**

**[Doc. No. AMS–FV–0069; FV09–930–2 PR]**

**Tart Cherries Grown in the States of Michigan, et al.; Final Free and**  **Restricted Percentages for the 2009– 2010 Crop Year for Tart Cherries** 

**AGENCY :**  Agricultural Marketing Service,

USDA.

**ACTION :**  Proposed rule.

**SUMMARY :**  This rule invites comments

on the establishment of final free and restricted percentages for the 2009–2010 crop year. The percentages are 32 percent free and 68 percent restricted and will establish the proportion of cherries from the 2009 crop which may

be handled in commercial outlets. The percentages are intended to stabilize supplies and prices, and strengthen market conditions. The percentages were recommended by the Cherry Industry Administrative Board (Board), the body that locally administers the marketing order. The marketing order regulates the handling of tart cherries grown in the States of Michigan, New York, Pennsylvania, Oregon, Utah, Washington, and Wisconsin.

**DATES :**  Comments must be received by April 1, 2010.

**ADDRESSES :**  Interested persons are

invited to submit written comments concerning this rule. 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 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 :**  Patricia A. Petrella or Kenneth G. Johnson, Marketing Order
Administration Branch, Fruit and Vegetable Programs, AMS, USDA, Unit
155, 4700 River Road, Riverdale, MD 20737; telephone: (301) 734–5243, Fax: (301) 734–5275; E-mail Patricia.Petrella@ams.usda.gov or Kenneth.Johnson@ams.usda.gov.

Small businesses may request information on complying with this regulation by contacting Antoinette Carter, Marketing Order Administration Branch, Fruit and Vegetable Programs, AMS, USDA, 1400 Independence Avenue, SW., STOP 0237, Washington, DC 20250–0237; telephone: (202) 720– 2491, Fax: (202) 720–8938, or E-mail: Antoinette.Carter@ams.usda.gov.

**SUPPLEMENTARY INFORMATION :**  This proposed rule is issued under Marketing Agreement and Order No. 930 (7 CFR part 930), regulating the handling of tart cherries produced in the States of Michigan, New York, Pennsylvania, Oregon, Utah, Washington, and
Wisconsin, hereinafter referred to as the

‘‘order. ’’ The order is effective under the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601–674),

hereinafter referred to as the ‘‘Act. ’’

The Department of Agriculture (Department) is issuing this rule in

conformance with Executive Order

12866.

This proposal has been reviewed
under Executive Order 12988, Civil Justice Reform. Under the marketing order provisions now in effect, final free and restricted percentages may be established for tart cherries handled by handlers during the crop year. This proposed rule would establish final free and restricted percentages for tart cherries for the 2009–2010 crop year, beginning July 1, 2009, through June 30,

2010.

The Act provides that administrative proceedings must be exhausted before parties may file suit in court. Under section 608c(15)(A) of the Act, any handler subject to an order may file with the Secretary a petition stating that the order, any provision of the order, or any obligation imposed in connection

with the order is not in accordance with law and request a modification of the order or to be exempt therefrom. Such handler is afforded the opportunity for a hearing on the petition. After the hearing, the Secretary would rule on the petition. The Act provides that the district court of the United States in any

district in which the handler is an inhabitant, or has his or her principal place of business, has jurisdiction in equity to review the Secretary’s ruling on the petition, provided an action is filed not later than 20 days after the date of the entry of the ruling.

The order prescribes procedures for computing an optimum supply and preliminary and final percentages that

establish the amount of tart cherries that can be marketed throughout the season. The regulations apply to all handlers of tart cherries that are in the regulated

districts. Tart cherries in the free percentage category may be shipped immediately to any market, while restricted percentage tart cherries must be held by handlers in a primary or secondary reserve, or be diverted in accordance with § 930.59 of the order and § 930.159 of the regulations, or used for exempt purposes (to obtain diversion credit) under § 930.62 of the order and § 930.162 of the regulations. The regulated Districts for this season are: District one—Northern Michigan; District two—Central Michigan; District three—Southern Michigan; District
four—New York; District seven—Utah; and District eight—Washington. Districts five, six and nine (Oregon, Pennsylvania, and Wisconsin, respectively) will not be regulated for

the 2009–2010 season.

The order prescribes under § 930.52 that those districts to be regulated shall be those districts in which the average annual production of cherries over the prior three years has exceeded six million pounds. A district not meeting the six million-pound requirement shall not be regulated in such crop year. Because this requirement was not met in the Districts of Oregon, Pennsylvania,

and Wisconsin handlers in those districts would not be subject to volume regulation during the 2009–2010 crop

year.

Demand for tart cherries at the farm

level is derived from the demand for tart cherry products at retail. Demand for tart cherries and tart cherry products


### 12703 Federal Register / Vol. 75, No. 51 / Wednesday, March 17, 2010 / Proposed Rules

tend to be relatively stable from year to year. The supply of tart cherries, by contrast, varies greatly from crop year to crop year. The magnitude of annual fluctuations in tart cherry supplies is one of the most pronounced for any agricultural commodity in the United
States. In addition, since tart cherries are processed either into cans or frozen, they can be stored and carried over from crop year to crop year. This creates substantial coordination and marketing problems. The supply and demand for tart cherries is rarely balanced. The primary purpose of setting free and restricted percentages is to balance supply with demand and reduce large surpluses that may occur.

Section 930.50(a) of the order prescribes procedures for computing an optimum supply for each crop year. The Board must meet on or about July 1 of each crop year, to review sales data, inventory data, current crop forecasts and market conditions. The optimum supply volume shall be calculated as 100 percent of the average sales of the prior three years to which is added a desirable carryout inventory not to exceed 20 million pounds or such other amount as may be established with the approval of the Secretary. The optimum supply represents the desirable volume

of tart cherries that should be available for sale in the coming crop year.

The order also provides that on or about July 1 of each crop year, the Board is required to establish preliminary free and restricted percentages. These percentages are computed by deducting the actual carryin inventory from the optimum supply figure (adjusted to raw product equivalent—the actual weight of cherries handled to process into cherry products) and subtracting that figure from the current year’s USDA crop forecast or from an average of such other crop estimates the Board votes to use. If the resulting number is positive,this represents the estimated overproduction, which would be the restricted percentage tonnage. The restricted percentage tonnage is then divided by the sum of the crop estimates for the regulated districts to obtain percentages for the regulated districts. The Board is required to establish a preliminary restricted percentage equal to the quotient, rounded to the nearest whole number, with the complement being the preliminary free tonnage percentage. If the tonnage requirements for the year are more than the USDA crop forecast, the Board is required to establish a preliminary free tonnage percentage of 100 percent and a preliminary restricted percentage of zero. The Board is required to announce the preliminary percentages in accordance with paragraph (h) of

§ 930.50.

The Board met on June 18, 2009, and computed, for the 2009–2010 crop year, an optimum supply of 183 million pounds. The Board recommended that the desirable carryout figure be zero pounds. Desirable carryout is the amount of fruit required to be carried into the succeeding crop year and is set by the Board after considering market circumstances and needs. This figure can range from zero to a maximum of 20 million pounds.

The Board calculated preliminary free and restricted percentages as follows: The USDA estimate of the crop for the entire production area was 284 million pounds; a 31 million pound carryin (based on Board estimates) was subtracted from the optimum supply of 183 million pounds which resulted in the 2009–2010 poundage requirements (adjusted optimum supply) of 152 million pounds. The carryin figure

reflects the amount of cherries that handlers actually have in inventory at the beginning of the 2008–2009 crop year. Subtracting the adjusted optimum supply of 152 million pounds from the USDA crop estimate, (284 million pounds) results in a surplus of 131 million pounds of tart cherries. The surplus was divided by the production in the regulated districts (269 million pounds) and resulted in a restricted percentage of 49 percent for the 2009– 2010 crop year. The free percentage was 51 percent (100 percent minus 49 percent). The Board established these percentages and announced them to the industry as required by the order.

The preliminary percentages were based on the USDA production estimate and the following supply and demand information available at the June meeting for the 2009–2010 year:

Millions of

pounds

Optimum Supply Formula: (1) Average sales of the prior three years ..................................................................................... .............................................. 183 (2) Plus desirable carryout .................................................................................................... ....................................................... 0 (3) Optimum supply calculated by the Board at the June meeting ................................................................. ............................ 183 Preliminary Percentages: (4) USDA crop estimate ......................................................................................................... ...................................................... 284 (5) Carryin held by handlers as of July 1, 2008 ................................................................................ .......................................... 31 (6) Adjusted optimum supply for current crop year .............................................................................. ....................................... 152 (7) Surplus .................................................................................................................... ................................................................ 131 (8) USDA crop estimate for regulated districts ................................................................................. ........................................... 269

Free Restricted

(9) Preliminary percentages (item 7 divided by item 8 × 100 equals restricted percentage; 100 minus restricted percentage equals free percentage) .................................................................................... ............ 51 49

Between July 1 and September 15 of each crop year, the Board may modify the preliminary free and restricted percentages by announcing interim free and restricted percentages to adjust to the actual pack occurring in the industry. No later than September 15,

the Board must recommend final free and restricted percentages to the
Secretary. The Secretary establishes final free and restricted percentages through the informal rulemaking process. These percentages would make available the tart cherries necessary to achieve the optimum supply figure calculated by the Board. The difference between any final free percentage and 100 percent is the final restricted percentage. The Board met on September 10, 2009, to recommend final free and restricted

percentages.

The actual production reported by the Board was 355 million pounds, which is a 71 million pound increase from the USDA crop estimate of 284 million pounds. The Board adjusted the optimum supply figure from 183 million pounds calculated for preliminary percentages to 176 million pounds


### 12704 Federal Register / Vol. 75, No. 51 / Wednesday, March 17, 2010 / Proposed Rules

when calculating the final percentages. This adjustment was made because the sales figure for June 2009, which is used to compute three-year average sales, was estimated for preliminary percentages,

but was based on actual numbers for final percentages.

A 52 million pound carryin (based on handler reports) was subtracted from the optimum supply of 176 million pounds which resulted in the 2009–2010 poundage requirements (adjusted optimum supply) of 124 million pounds. Subtracting the adjusted optimum supply of 124 million pounds from the USDA crop estimate (355 million pounds), results in a surplus of 231 million pounds of tart cherries. The surplus was divided by the production in the regulated districts (338 million pounds) and resulted in a restricted percentage of 68 percent for the 2009– 2010 crop year. The free percentage was 32 percent (100 percent minus 68 percent).

The final percentages are based on the Board’s reported production figures and the following supply and demand information available in September for the 2009–2010 crop year:

Millions of pounds

Optimum Supply Formula: (1) Average sales of the prior three years ..................................................................................... .............................................. 176 (2) Plus desirable carryout .................................................................................................... ....................................................... 0 (3) Optimum supply calculated by the Board ..................................................................................... .......................................... 176 Final Percentages: (4) Board reported production .................................................................................................. .................................................... 355 (5) Plus carryin held by handlers as of July 1, 2009 ........................................................................... ........................................ 52 (6) Tonnage available for current crop year .................................................................................... ............................................ 407 (7) Surplus (item 6 minus item 3) .............................................................................................. .................................................. 231 (8) Production in regulated districts .......................................................................................... ................................................... 338

Percentages

Free Restricted

(9) Final Percentages (item 7 divided by item 8 × 100 equals restricted percentage; 100 minus restricted

percentage equals free percentage) ............................................................................................. ................ 32 68

The USDA’s ‘‘Guidelines for Fruit, Vegetable, and Specialty Crop Marketing Orders ’’ specify that 110 percent of recent years’ sales should be made available to primary markets each

season before recommendations for volume regulation are approved. This goal would be met by the establishment of a preliminary percentage which releases 100 percent of the optimum supply and the additional release of tart cherries provided under § 930.50(g). This release of tonnage, equal to 10 percent of the average sales of the prior three years sales, is made available to

handlers each season. The Board

recommended that such release should

be made available to handlers the first

week of December and the first week of May. Handlers can decide how much of the 10 percent release they would like to receive on the December and May
release dates. Once released, such cherries are released for free use by such handler. Approximately 18 million pounds would be made available to

handlers this season in accordance with Department Guidelines. This release would be made available to every

handler and released to such handler in proportion to the handler’s percentage of the total regulated crop handled. If a

handler does not take his/her proportionate amount, such amount remains in the inventory reserve. Initial Regulatory Flexibility Analysis

Pursuant to requirements set forth in the Regulatory Flexibility Act (RFA), the Agricultural Marketing Service (AMS) has considered the economic impact of

this action on small entities. Accordingly, AMS has prepared this 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. Thus, both statutes have small entity orientation and compatibility.

There are approximately 40 handlers of tart cherries who are subject to regulation under the tart cherry marketing order and approximately 900 producers of tart cherries in the regulated area. Small agricultural
service firms, which includes handlers, have been defined by the Small Business Administration (SBA) (13 CFR 121.201) as those having annual receipts
of less than $7,000,000, and small agricultural producers are defined as those having annual receipts of less than $750,000. A majority of the producers

and handlers are considered small

entities under SBA’s standards. The principal demand for tart cherries is in the form of processed products.
Tart cherries are dried, frozen, canned, juiced, and pureed. During the period 1997/98 through 2008/09, approximately 96 percent of the U.S. tart cherry crop, or 244.4 million pounds, was processed annually. Of the 244.4 million pounds of tart cherries processed, 61 percent was frozen, 27 percent was canned, and 12 percent was utilized for juice and other products.

Based on National Agricultural Statistics Service data, acreage in the United States devoted to tart cherry production has been trending downward. Bearing acreage has declined from a high of 50,050 acres in
1987/88 to 34,650 acres in 2008/09. This represents a 31 percent decrease in total bearing acres. Michigan leads the nation in tart cherry acreage with 70 percent of the total and produces about 75 percent of the U.S. tart cherry crop each year.

The 2009/10 crop is large in size at 355 million pounds. This production level is 71.5 million pounds greater than the 283.6 million pounds estimated by the National Agricultural Statistics Service (NASS) in June. The largest crop occurred in 1995 with production in the regulated districts reaching a record 395.6 million pounds. The price per pound received by tart cherry growers ranged from a low of 7.3 cents in 1987 to a high of 46.4 cents in 1991. These problems of wide supply and price fluctuations in the tart cherry industry


### 12705 Federal Register / Vol. 75, No. 51 / Wednesday, March 17, 2010 / Proposed Rules

are national in scope and impact. Growers testified during the order promulgation process that the prices they received often did not come close to covering the costs of production.

The industry demonstrated a need for an order during the promulgation process of the marketing order because large variations in annual tart cherry supplies tend to lead to fluctuations in prices and disorderly marketing. As a result of these fluctuations in supply and price, growers realize less income. The industry chose a volume control marketing order to even out these wide variations in supply and improve returns to growers. During the promulgation process, proponents testified that small growers and processors would have the most to gain from implementation of a marketing order because many such growers and handlers had been going out of business due to low tart cherry prices. They also testified that, since an order would help increase grower returns, this should

increase the buffer between business

success and failure because small growers and handlers tend to be less capitalized than larger growers and

handlers.

Aggregate demand for tart cherries and tart cherry products tends to be relatively stable from year-to-year. Similarly, prices at the retail level show minimal variation. Consumer prices in grocery stores, and particularly in food service markets, largely do not reflect fluctuations in cherry supplies. Retail demand is assumed to be highly inelastic which indicates that price reductions do not result in large increases in the quantity demanded.

Most tart cherries are sold to food service outlets and to consumers as pie filling; frozen cherries are sold as an ingredient to manufacturers of pies and cherry desserts. Juice and dried cherries are expanding market outlets for tart

cherries.

Demand for tart cherries at the farm

level is derived from the demand for tart cherry products at retail. In general, the farm-level demand for a commodity

consists of the demand at retail or food service outlets minus per-unit processing and distribution costs incurred in transforming the raw farm commodity into a product available to consumers. These costs comprise what

is known as the ‘‘marketing margin. ’’

The supply of tart cherries, by contrast, varies greatly. The magnitude of annual fluctuations in tart cherry supplies is one of the most pronounced for any agricultural commodity in the
United States. In addition, since tart cherries are processed either into cans or frozen, they can be stored and carried over from year-to-year. This creates substantial coordination and marketing problems. The supply and demand for tart cherries is rarely in equilibrium. As a result, grower prices fluctuate widely, reflecting the large swings in annual supplies.

In an effort to stabilize prices, the tart cherry industry uses the volume control mechanisms under the authority of the Federal marketing order. This authority allows the industry to set free and restricted percentages. These restricted percentages are only applied to states or districts with a 3-year average of production greater than six million pounds, and to states or districts in which the production is 50 percent or more of the previous 5-year processed production average.

The primary purpose of setting restricted percentages is an attempt to bring supply and demand into balance. If the primary market is over-supplied with cherries, grower prices decline substantially.

The tart cherry sector uses an industry-wide storage program as a supplemental coordinating mechanism under the Federal marketing order. The primary purpose of the storage program is to warehouse supplies in large crop years in order to supplement supplies in short crop years. The storage approach

is feasible because the increase in price—when moving from a large crop to a short crop year—more than offsets the costs for storage, interest, and handling of the stored cherries.

The price that growers receive for their crop is largely determined by the total production volume and carryin inventories. The Federal marketing order permits the industry to exercise supply control provisions, which allow

for the establishment of free and restricted percentages for the primary market, and a storage program. The establishment of restricted percentages impacts the production to be marketed in the primary market, while the storage program has an impact on the volume

of unsold inventories.

The volume control mechanism used by the cherry industry results in decreased shipments to primary

markets. Without volume control the primary markets (domestic) would likely be over-supplied, resulting in lower grower prices.

To assess the impact that volume control has on the prices growers receive for their product, an econometric model has been developed. The econometric model provides a way to see what impacts volume control may have on grower prices. The three districts in Michigan, along with the
districts in Utah, New York, and Washington are the restricted areas for this crop year and their combined total production is 338 million pounds. A 68 percent restriction means 108 million pounds is available to be shipped to primary markets from these four states.

Production levels of 10.7 million pounds for Wisconsin, 2.7 million pounds for Oregon, and 3.8 million pounds for Pennsylvania (the unregulated areas in 2009/10), result in an additional 17.2 million pounds available for primary market shipments.

In addition, USDA requires a 10 percent release from reserves as a market growth factor. This results in an additional 18 million pounds being available for the primary market. The 108 million pounds from Michigan, Utah, Washington, and New York, the 17.2 million pounds from the other producing states, the 18 million pound release, and the 52 million pound carryin inventory gives a total of 195.2 million pounds being available for the primary markets.

The econometric model is used to estimate the impact of establishing a reserve pool for this year’s crop. With the volume controls, grower prices are estimated to be approximately $0.12 per pound higher than without volume

controls.

The use of volume controls is estimated to have a positive impact on growers’ total revenues. With regulation, growers’ total revenue from processed
cherries are estimated to be $17.3 million higher than without restrictions.

The without-restrictions scenario assumes that all tart cherries produced would be delivered to processors for

payments.

It is concluded that the 68 percent volume control would not unduly burden producers, particularly smaller growers. The 68 percent restriction would be applied to the growers in Michigan, New York, Utah, and Washington. The growers in the other three states covered under the marketing

order will benefit from this restriction.

Recent grower prices have been as high as $0.44 per pound in 2002–03 when there was a crop failure. Prices in the last two crop years have been $0.268 in 2007–08 and $0.372 per pound in 2008–09. At current production levels, yield is estimated at approximately 10,251 pounds per acre. At this level of yield the cost of production is estimated to be $0.25 per pound (costs were estimated by representatives of Michigan State University with input provided by growers for the current crop). While grower prices have not been established in the 2009–10 crop year, some processors have reported that growers have received an initial


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payment of ten cents per pound. Additional payments by processors will be based on the volume of packed crop that can be marketed. These low prices are the result of the large crop for the 2009–10 marketing year. The final grower price will likely be around $0.15 per pound for the combined free and restricted production. Thus, this year’s grower price even with regulation is

estimated to be below the cost of production. The use of volume controls

is believed to have little or no effect on consumer prices and will not result in

fewer retail sales or sales to food service

outlets.

Without the use of volume controls, the industry could be expected to start to build large amounts of unwanted

inventories. These inventories have a depressing effect on grower prices. The econometric model shows for every 1 million-pound increase in carryin inventories, a decrease in grower prices of $0.0036 per pound occurs. The use of volume controls allows the industry to supply the primary markets whileavoiding the disastrous results of oversupplying these markets. In addition, through volume control, the industry has an additional supply of cherries that can be used to develop secondary markets such as exports and the development of new products. The use of reserve cherries in the production shortened 2002/03 crop year proved to be very useful and beneficial to growers and packers.

In discussing the possibility of marketing percentages for the 2009– 2010 crop year, the Board considered the following factors contained in the marketing policy: (1) The estimated total production of tart cherries; (2) the estimated size of the crop to be handled; (3) the expected general quality of such cherry production; (4) the expected carryover as of July 1 of canned and frozen cherries and other cherry products; (5) the expected demand

conditions for cherries in different market segments; (6) supplies of competing commodities; (7) an analysis of economic factors having a bearing on the marketing of cherries; (8) the estimated tonnage held by handlers in primary or secondary inventory reserves; and (9) any estimated release of primary or secondary inventory reserve cherries during the crop year.

The Board’s review of the factors resulted in the computation and announcement in September 2009 of the free and restricted percentages proposed to be established by this rule (32 percent free and 68 percent restricted).

One alternative to this action would be not to have volume regulation this

season. Board members stated that no volume regulation would be detrimental to the tart cherry industry due to the size of the 2009–2010 crop. Returns to growers would not cover their costs of production for this season which might cause some to go out of business.

As mentioned earlier, the Department’s ‘‘Guidelines for Fruit, Vegetable, and Specialty Crop Marketing Orders ’’ specify that 110 percent of recent years’ sales should be made available to primary markets each

season before recommendations for volume regulation are approved. The quantity available under this rule is 110 percent of the quantity shipped in the prior three years.

The free and restricted percentages established by this rule release the optimum supply and apply uniformly to all regulated handlers in the industry, regardless of size. There are no known additional costs incurred by small handlers that are not incurred by large handlers. The stabilizing effects of the percentages impact all handlers positively by helping them maintain and expand markets, despite seasonal supply fluctuations. Likewise, price stability positively impacts all producers by allowing them to better anticipate the revenues their tart cherries will generate.

The Department has not identified any relevant Federal rules that duplicate, overlap, or conflict with this regulation.

In addition, the Board’s meeting was widely publicized throughout the tart cherry industry and all interested persons were invited to attend the meeting and participate in Board

deliberations on all issues. Like all Board meetings, the September 10, 2009, 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 information on the regulatory and informational impacts of this action

on small businesses.

While the benefits resulting from this rulemaking are difficult to quantify, the stabilizing effects of the volume regulations impact both small and large handlers positively by helping them maintain markets even though tart cherry supplies fluctuate widely from

season to season.

In compliance with Office of Management and Budget (OMB) regulations (5 CFR part 1320) which implement the Paperwork Reduction Act of 1995 (Pub. L. 104–13), the

information collection and recordkeeping requirements under the tart cherry marketing order have been previously approved by OMB and assigned OMB Number 0581–0177. Reporting and recordkeeping burdens are necessary for compliance purposes and for developing statistical data for maintenance of the program. The forms require information which is readily

available from handler records and which can be provided without data processing equipment or trained
statistical staff. As with other, similar marketing order programs, reports and forms are periodically studied to reduce or eliminate duplicate information collection burdens by industry and public sector agencies. This rule does not change those requirements.

AMS is committed to complying with the E-Government Act, to promote the

use of the Internet and other information technologies to provide increased opportunities for citizen

access to Government information and services and for other purposes.

A small business guide on complying with fruit, vegetable, and specialty crop marketing agreements and orders may

be viewed at: http://www.ams.usda.gov/ fv/moab.html. Any questions about the compliance guide should be sent to Antoinette Carter at the previously

mentioned address in the **FOR FURTHER**

**INFORMATION CONTACT** section.

A 15-day comment period is provided to allow interested persons to respond to this proposal. Fifteen days is deemed appropriate because this rule would need to be in place as soon as possible since handlers are already shipping tart cherries from the 2009–2010 crop. 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 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. Section 930.256 is added to read as

follows:

Note: This section will not appear in the annual Code of Federal Regulations.

**§ 930.256 Final free and restricted percentages for the 2009–2010 crop year.** 

The final percentages for tart cherries handled by handlers during the crop


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year beginning on July 1, 2009, which shall be free and restricted, respectively, are designated as follows: Free percentage, 32 percent and restricted

percentage, 68 percent.

Dated: March 11, 2010.

David R. Shipman,

Acting Administrator, Agricultural Marketing

Service.

[FR Doc. 2010–5772 Filed 3–16–10; 8:45 am]

**BILLING CODE 3410–02–P**

**DEPARTMENT OF AGRICULTURE**

**Agricultural Marketing Service**

**7 CFR Part 1218**

**[Document Number AMS–FV–09–0022; FV–**
**09–705]**

**Blueberry Promotion, Research, and Information Order; Increase**  **Membership**

**AGENCY :**  Agricultural Marketing Service,

USDA.

**ACTION :**  Proposed rule.

**SUMMARY :**  This rule proposes to add two importer members and their alternates to the U.S. Highbush Blueberry Council (Council) to reflect changes in the quantity of highbush blueberry imports in the past three years. The change was proposed by the Council in accordance with the provisions of the Blueberry
Promotion, Research, and Information Order (Order) which is authorized by the Commodity Promotion, Research, and Information Act of 1996 (Act). The Order requires that the Council review the geographical distribution of the United States production and the quantity of imports of highbush blueberries at least every five years. As a result of these changes, the total Council membership would increase

from 14 to 16 members and their
alternates. In addition, this rule proposes to increase the quorum

minimum from seven to nine members.

**DATES :**  Comments must be received by April 6, 2010.

**ADDRESSES :**  Interested persons are

invited to submit written comments on

the Internet at: http:// www.regulations.gov or to the Research
and Promotion Branch, Fruit and Vegetable Programs, Agricultural Marketing Service (AMS), U.S. Department of Agriculture, (Department) Room 0632–S, Stop 0244, 1400 Independence Avenue, SW., Washington, DC 20250–0244; facsimile: (202) 205–2800. 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 above office during regular business

hours or it can be viewed at http:// www.regulations.gov. All comments received will be posted without change, including any personal information provided.

**FOR FURTHER INFORMATION CONTACT :**  Jeanette Palmer, Marketing Specialist,
Research and Promotion Branch, Fruit and Vegetable Programs, AMS, U.S. Department of Agriculture, Stop 0244, 1400 Independence Avenue, SW., Room 0632–S, Washington, DC 20250–0244; telephone: (888) 720–9917; facsimile: (202) 205–2800; or electronic mail: Jeanette.Palmer@ams.usda.gov.

**SUPPLEMENTARY INFORMATION :**  This rule is issued under the Blueberry
Promotion, Research, and Information Order [7 CFR part 1218]. The Order is authorized under 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. The rule is not intended to have

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.

The Act provides that any person subject to an order may file a written petition with the Department if they believe that the order, any provision of the order, or any obligation imposed in
connection with the order, is not

established in accordance with law. In any petition, the person may request a

modification of the order or an exemption from the order. The petitioner is afforded the opportunity for a hearing on the petition. After a hearing, the Department would rule on the petition. The Act provides that the district court of the United States in any district in which the petitioner resides

or conducts business shall have the jurisdiction to review the Department’s ruling on the petition, provided a complaint is filed not later than 20 days after the date of the entry of the ruling.

Initial 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 action on the small producers, first handlers, importers, and exporters 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, in 13 CFR part 121, 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. There are approximately 2,000 producers, 200 first handlers, 50 importers, and 4 exporters of highbush blueberries subject to the program. Most of the producers would

be classified as small businesses under the criteria established by the Small

Business Administration. Most importers, first handlers, and exporters

would not be classified as small businesses. Producers who produce less than 2,000 pounds of highbush blueberries annually are exempt from this program. Importers who import less than 2,000 pounds of fresh and frozen highbush blueberries annually are also exempt from this program.

The Department’s National Agricultural Statistics Service (NASS) data for the 2008 crop year shows that about 5,790 pounds of highbush blueberries were produced per acre. The 2008 average grower price for highbush blueberries published by NASS was $1.54 per pound. Thus, the value of highbush blueberry production per acre in 2008 averaged about $8,917 (5,790 pounds multiplied by $1.54). At that average value, a producer would have to

farm over 84 acres to receive an annual income from highbush blueberries of $750,000 ($750,000 divided by $8,916 per acre equals 84). Accordingly, as previously noted, a majority of the producers of highbush blueberries

would be classified as small businesses.

According to the Council, assessments
received in 2008 reached $2.4 million.
Of the total, the Council received $830,222 from import assessment collections which is approximately 35 percent of the Council’s total budget. The Council has projected import
assessment collections at $850,000 for the 2009 budget year.

According to the Council’s World Blueberry Acreage and Production Report, highbush blueberry acreage in
North America increased from 71,075
acres in 2005 to an estimated 95,607 acres in 2008, a 35 percent increase in just three years. The United States’
share of this total increased from 56,665

acres in 2005 to 74,992 acres in 2008, a 32 percent increase. Most of this