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

13015 

Vol. 77, No. 43 

Monday, March 5, 2012 

DEPARTMENT OF AGRICULTURE 

Food and Nutrition Service 

7 CFR Parts 211 and 235 

RIN 0584–AD96 

Fresh Fruit and Vegetable Program 

Correction 

In proposed rule document 2012– 

4181 appearing on pages 10981–10997 

in the issue of February 24, 2012, make 

the following correction: 

On page 10981, in the second column, 

after FOR FURTHER INFORMATION CONTACT, 

the contact information is corrected to 

read ‘‘Julie Brewer, Chief, Policy and 

Program Development Branch, Child 

Nutrition Division, Food and Nutrition 

Service, USDA, 3101 Park Center Drive, 

Room 634, Alexandria, Virginia 22302; 

telephone: (703) 305–2590.’’ 

[FR Doc. C1–2012–4181 Filed 3–2–12; 8:45 am] 

BILLING CODE 1505–01–D 

DEPARTMENT OF AGRICULTURE 

Agricultural Marketing Service 

7 CFR Part 930 

[Doc. No. AO–370–A9; 11–0093; AMS–FV– 

10–0087; FV10–930–5] 

Tart Cherries Grown in Michigan, New 

York, Pennsylvania, Oregon, Utah, 

Washington, and Wisconsin; 

Secretary’s Decision and Referendum 

Order on Proposed Amendment of 

Marketing Order No. 930 

AGENCY: Agricultural Marketing Service, 

USDA. 

ACTION: Proposed rule and referendum 

order. 

SUMMARY: This decision proposes 

amendments to Marketing Order No. 

930 (order), which regulates the 

handling of tart cherries grown in 

Michigan, New York, Pennsylvania, 

Oregon, Utah, Washington, and 

Wisconsin and provides growers and 

processors with the opportunity to vote 

in a referendum to determine if they 

favor the changes. These amendments 

were proposed by the Cherry Industry 

Administrative Board (CIAB), which is 

responsible for local administration of 

the order. These amendments would 

revise: Section 930.10, the definition of 

‘‘Handle’’; Section 930.50, ‘‘Marketing 

Policy’’ and Section 930.58, ‘‘Grower 

Diversion Privilege.’’ The amendments 

are intended to improve the operation 

and administration of the order. 

DATES: The referendum will be 

conducted from March 19, 2012 to 

March 30, 2012. The representative 

period for the purpose of the 

referendum is July 1, 2010 through June 

30, 2011. 

FOR FURTHER INFORMATION CONTACT: 

Parisa Salehi, Marketing Order and 

Agreement Division, Fruit and 

Vegetable Programs, AMS, USDA, 1400 

Independence Avenue SW., Stop 0237, 

Washington DC 20250–0237; 

Telephone: (202) 270–9918, Fax: (202) 

720–8938, or Email: 

Parisa.Salehi@ams.usda.gov; or Martin 

Engeler, Marketing Order and 

Agreement Division, Fruit and 

Vegetable Program, AMS, USDA, 2202 

Monterey Street, Fresno, California 

93721; Telephone: (559) 487–5110, Fax: 

(559) 487–5110, or Email: 

Martin.Engeler@ams.usda.gov. 

Small businesses may request 

information on this proceeding by 

contacting Laurel May, Marketing Order 

and Agreement Division, Fruit and 

Vegetable Programs, AMS, USDA, 1400 

Independence Avenue SW., Stop 0237, 

Washington, DC 20250–0237; 

Telephone: (202) 205–2830, Fax: (202) 

720–8938, Email: 

Laurel.May@ams.usda.gov. 

SUPPLEMENTARY INFORMATION: Prior 

documents in this proceeding: Notice of 

Hearing issued on March 4, 2011, and 

published in the March 14, 2011, issue 

of the Federal Register (76 FR 13528). 

The Recommended Decision was issued 

on November 3, 2011 and published in 

the November 9, 2011, issue of the 

Federal Register (76 FR 69673). 

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 

The proposed amendments are based 

on the record of a public hearing held 

April 20 and 21, 2011, in Grand Rapids, 

Michigan, and a second public hearing 

held April 26, 2011, in Provo, Utah. 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). Notice of 

this hearing was published in the 

Federal Register on March 14, 2011 (76 

FR 13528). The notice of hearing 

contained the proposal submitted by 

CIAB and one proposal by the 

Agricultural Marketing Service (AMS). 

This action is a decision addressing the 

amendments listed in the notice of 

hearing. 

The proposed amendments were 

recommended by CIAB and submitted 

to USDA on September 22, 2010. 

The proposed amendments 

recommended by the CIAB are 

summarized below. 

1. Amendment 1 would revise the 

term ‘‘handle’’ within the order. This 

proposal would revise existing section 

930.10, Handle, to exclude handler 

acquisition of grower diversion 

certificates from definition of handle. 

2. Amendment 2 would revise the 

‘‘marketing policy’’ provisions in 

section 930.50 of the order so that 

grower-diverted cherries are not 

counted as production in the volume 

control formula. 

3. Amendment 3 would revise the 

existing section 930.58, so growerdiverted cherries are not treated as 

actual harvested cherries. 

In addition to the proposed 

amendments to the order, AMS 

proposed to making any additional 

changes to the order as may be 

necessary to conform to any amendment 

that may result from the hearings. 

Upon the basis of evidence 

introduced at the hearings and the 

record thereof, the Administrator of 

AMS issued a Recommended Decision 

published in the Federal Register on 

November 9, 2011 (76 FR 69673). An 

opportunity to file written exceptions 

was provided through November 25, 

2011. Two comments were received 

during that period. A comment was 

received on behalf of the Cherry 


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13016 Federal Register / Vol. 77, No. 43 / Monday, March 5, 2012 / Proposed Rules 

Industry Administrative Board. The 

second comment was from a grower/ 

handler in Michigan. Both supported 

the proposed amendments. Therefore, 

no changes were adopted by AMS based 

on the received comments. 

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. 

There are approximately 40 handlers 

of tart cherries subject to regulation 

under the order and approximately 600 

producers of tart cherries in the 

regulated area. Small agricultural 

service firms, which include 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 tart cherry 

producers and handlers are considered 

small entities under the SBA standards. 

The geographic region regulated by 

the order includes 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 hearings, 

bearing acreage in 1987–88 totaled 

50,050 acres; by 2010–11 it had 

declined to 35,650 acres. Michigan 

accounts for 73 percent of total U.S. 

bearing acreage with 26,200 bearing 

acres. Utah is second, with a reported 

3,300 acres, or approximately nine 

percent of the total. The remaining 

states’ acreage ranges from 600 to 1,800 

acres. The order includes authority for 

(1) volume regulation, (2) promotion 

and research, and (3) grade and quality 

standards. Volume regulation is used 

under the order to augment supplies 

during low supply years, with product 

placed in reserves during large supply 

years. 

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 supply presents a 

marketing challenge for the tart cherry 

industry because demand for the 

product is relatively inelastic; meaning 

a change in supply has a 

proportionately larger change in price. 

According to data presented at the 

hearing, production has ranged from a 

low of 62.5 million pounds in 2002–03 

to a high of 395.6 million pounds in 

1995–96. For 2010–11, Michigan 

accounted for 71 percent of total U.S. 

production with 135 million pounds. 

Utah is second, with a reported 23 

million pounds, or approximately 

twelve percent of the total. The 

remaining states produce between 15.4 

and 1.2 million pounds. 

During the hearings, multiple 

witnesses testified that they did not 

believe that the proposed amendments 

would have any adverse impacts on 

small agricultural service firms or small 

agricultural producers as defined by the 

SBA. According to the record, the 

proposed amendments would help 

agricultural businesses and growers by 

encouraging growers to divert some of 

their tart cherries in the orchard during 

years of extremely large supply. The 

proposed amendments would result in 

higher grower returns during years of 

extremely large supply. Furthermore, 

the growers who divert their crop do not 

incur harvest and transportation costs. 

The proposed amendments would result 

in a lower possibility of market 

saturation. Overall the supply of tart 

cherries in extremely large supply years 

would result in higher returns for 

growers. 

The proposed amendments are 

intended to provide additional 

flexibility in administering the volume 

control provisions of the order, and to 

improve its operation and 

administration. Record evidence 

indicates that the proposed amendments 

are intended to benefit all producers 

and handlers under the order, regardless 

of size. 

There are three proposed 

amendments. Amendment one would 

amend Section 930.10 of the order to 

change the definition of ‘‘handle,’’ so 

that handler acquisition of grower 

diversion certificates is not considered 

handling. Amendment two would 

amend the ‘‘marketing policy’’ 

provisions in Section 930.50 of the 

order so that grower-diverted cherries 

are not counted as production in the 

OSF. Amendment three would amend 

section 930.58 of the order so that 

grower-diverted cherries are not treated 

as actual harvested cherries. The 

proposed amendments would modify 

how grower diversions are accounted 

for under the order. 

Evidence presented when the order 

was promulgated indicated that a 

grower diversion program could benefit 

the industry by managing fluctuating 

supply. Witnesses indicated that the 

order has been successful in this regard. 

However, the record indicated that the 

order should be more flexible in 

addressing how grower diversions are 

utilized under the order. 

The most efficient method to deal 

with a surplus is at the lowest level of 

the production and processing chain. 

The industry wastes the least amount of 

resources if it diverts cherries in the 

orchard. Once they are harvested, 

chilled, washed, de-stemmed, sorted, 

pitted, and packed, significantly higher 

costs are incurred and there is a greater 

risk of waste. Diverting surplus cherries 

in the orchard is the most cost effective 

method of dealing with a surplus 

situation and provides the largest 

benefit to growers through lower costs. 

The order establishes an opportunity 

for growers to undertake in-orchard 

diversions of cherries (section 930.58). 

These diversions are done during 

harvest in accordance with procedures 

defined under the order and are 

overseen by the CIAB. The CIAB issues 

grower diversion certificates to the 

growers that represent the pounds of 

cherries that were left in the orchard. 

Growers redeem the diversion 

certificates with handlers, who use them 

as one of their compliance alternatives 

to meet their reserve or restricted 

obligation. However, under the current 

order definition of ‘‘handle,’’ handlers 

must include the pounds of cherries 

represented by the certificates as part of 

the total cherries that have been 

delivered and processed. 

Consequently, grower in-orchard 

diversions effectively increase the 

supply of restricted cherries even 

though none of those cherries were 

delivered for processing. Grower 

diversion certificates are considered to 

be part of the total quantity of cherries 

that a handler receives and processes, 

and contribute to the total supply of 

restricted cherries in the OSF. This 

creates confusion in accounting for the 

cherries in years when cherries are 

restricted for both the growers and 

processors. 

The OSF is the mechanism specified 

in the order and used by CIAB to 

determine the relationship between the 

demand and supply of tart cherries in a 

given year. When the supply of tart 

cherries exceeds the average demand, 

volume regulation is implemented. 


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Federal Register / Vol. 77, No. 43 / Monday, March 5, 2012 / Proposed Rules 13017 

In an effort to stabilize supply and 

prices, the tart cherry industry uses 

volume regulation which allows the 

industry to set free and restricted 

percentages. Free percentage cherries 

can be marketed by handlers to any 

outlet, while restricted percentage 

cherries are placed in a reserve 

inventory. The primary purpose of 

setting restricted percentages and 

placing cherries in a reserve inventory 

is to attempt to balance supply with 

demand. 

A related component of the OSF 

under the order involves growers 

diverting cherries by leaving them unharvested in the orchard. Handlers can 

coordinate with their growers in large 

crop years by encouraging them to 

divert cherries from production. 

Handlers can then acquire the diversion 

certificates issued to growers and use 

them as credit toward their restriction or 

reserve obligations. 

The interaction of sections 930.10 and 

930.50 of the order establishes that 

grower in-orchard diversion is subject to 

the restriction percentage calculated for 

the year. Because of this, grower 

diversion certificates have less value 

when growers redeem them with 

handlers. Therefore, when a handler 

utilizes the grower diversion certificates 

received from growers, the certificates 

have a reduced value as a compliance 

tool in meeting the restricted obligation. 

Because the certificates have a reduced 

value growers will deliver most of their 

crop to handlers instead of diverting 

cherries in the orchard in large crop 

years. 

The intent of these amendments is to 

remove the grower disincentive for inorchard diversion. If the way grower 

diversions are accounted for is changed, 

the grower diversion program is 

expected to help mitigate the negative 

effects of oversupply, by increasing the 

amount of cherries diverted from 

production. 

This action is expected to have a 

positive impact on growers. The value 

of the grower diversion certificates is 

expected to increase. As the value of the 

certificates increases, grower diversion 

of cherries in large crop years is 

expected to increase. Increased grower 

diversion activity will help to reduce 

excess supplies, which in turn is 

expected to have a positive impact on 

grower returns. In addition, grower costs 

associated with harvesting and 

transporting cherries to handlers will be 

reduced as more cherries are diverted. 

This action is also expected to have a 

positive impact on handlers. As more 

fruit is diverted in the orchard, handlers 

will avoid the processing and storage 

costs that they would otherwise incur if 

growers harvested and delivered the 

fruit. Reducing the available supply of 

cherries is expected to mitigate the price 

depressing effects that oversupply 

typically has on the market, resulting in 

a positive effect for both growers and 

handlers. 

Testimony at the hearing suggested 

that the amendments, which would 

encourage grower diversions, would not 

have a negative impact on small growers 

or handlers. The hearing record suggests 

that these amendments would benefit 

small growers by providing better 

opportunities to divert cherries in the 

orchard in large crop years. Small 

handlers are not always able to ship to 

export markets or have as much new 

product activity as larger handlers. 

Small handlers would benefit from 

these amendments by providing 

diversion credits as a way to meet their 

restrictions. 

Paperwork Reduction Act 

In accordance with the Paperwork 

Reduction Act of 1995, (44 U.S.C. 

Chapter 35), the order’s information 

collection requirements have been 

previously approved by the Office of 

Management and Budget (OMB) and 

assigned OMB No. 0581–0177, (Tart 

cherries Grown in the States of 

Michigan, New York, Pennsylvania, 

Oregon, Utah, Washington and 

Wisconsin). No changes in those 

requirements is necessary a result of this 

action. Should any change become 

necessary, it 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. USDA has not 

identified any relevant Federal rules 

that duplicate, overlap or conflict with 

this proposed rule. All of these 

amendments are designed to enhance 

the administration and functioning of 

the marketing order to the benefit of the 

industry. 

The implementation of these 

requirements is not expected to have 

any additional costs on handlers. In fact, 

these proposed changes are expected to 

reduce costs for both growers and 

handlers. 

In addition, the meetings regarding 

these proposals as well as the hearing 

dates were widely publicized 

throughout the existing tart cherry 

production area and all interested 

persons were invited to attend the 

meetings and the hearings and 

participate in CIAB deliberations on all 

issues. All CIAB meetings and the 

hearing were public forums and all 

entities, both large and small, were able 

to express views on these issues. The 

CIAB itself is composed of members 

representing handlers, producers and 

the public. Finally, interested persons 

were invited to present evidence at the 

hearing on the regulatory and 

informational impacts of this action on 

small businesses. 

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 

The amendments to Marketing Order 

930 proposed herein have been 

reviewed under Executive Order 12988, 

Civil Justice Reform. They are not 

intended to have retroactive effect. 

The Act provides that administrative 

proceedings must be exhausted before 

parties may file suit in court. Under 

section 608c(15)(A) of the Act, any 

handler subject to an order may file 

with USDA a petition stating that the 

order, any provision of the order, or any 

obligation imposed in connection with 

the order, is not in accordance with the 

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 Sates 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. 

Findings and Conclusions 

The findings and conclusions, rulings, 

and general findings and determinations 

included in the Recommended Decision 

set forth in the November 9, 2011 (76 FR 

69673) issue of the Federal Register are 

hereby approved and adopted. 

Marketing Order 

Annexed hereto and made a part 

hereof is the document entitled ‘‘Order 

Amending the Order Regulating the 

Handling of Tart Cherries Grown in 

Michigan, New York, Pennsylvania, 

Oregon, Utah, Washington, and 

Wisconsin.’’ This document has been 

decided upon as the detailed and 

appropriate means of effectuating the 

foregoing findings and conclusions. 

It is hereby ordered, that this entire 

decision be published in the Federal 

Register. 


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13018 Federal Register / Vol. 77, No. 43 / Monday, March 5, 2012 / Proposed Rules 

1This order shall not become effective unless and 

until the requirements of § 900.14 of the rules of 

practice and procedure governing proceedings to 

formulate marketing agreements and marketing 

orders have been met. 

Referendum Order 

It is hereby directed that a referendum 

be conducted in accordance with the 

procedure for the conduct of referenda 

(7 CFR 900.400–407) to determine 

whether the annexed order amending 

the order regulating the handling of Tart 

cherries is approved or favored by 

growers and processors, as defined 

under the terms of the order, who 

during the representative period were 

engaged in the production or processing 

of tart cherries in the production area. 

The representative period for the 

conduct of such referendum is hereby 

determined to be July 1, 2010, through, 

June 30, 2011. 

The agents of the Secretary to conduct 

such referendum are hereby designated 

to be Christian Nissen, or Jennie Varela, 

Southeast Marketing Field Office, 

Marketing Order and Agreement 

Division, Fruit and Vegetable Programs, 

AMS, USDA; Telephone: (863)324– 

3375, Fax (863)325–8793, or Email: 

Christian.Nissen@ams.usda.gov or 

Jennie.Varela@ams.usda.gov, 

respectively. 

List of Subjects in 7 CFR Part 930 

Marketing agreements, Reporting and 

recordkeeping requirements, Tart 

cherries. 

Dated: February 28, 2012. 

Robert C. Keeney, 

Acting Administrator, Agricultural Marketing 

Service. 

Order Amending the Order Regulating 

the Handling of Tart Cherries Grown in 

Michigan, New York, Pennsylvania, 

Oregon, Utah, Washington, and 

Wisconsin1

Findings and Determinations 

The findings and determinations 

hereinafter set forth are supplementary 

to the findings and determinations 

which were previously made in 

connection with the issuance of the 

marketing 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 further 

amendment of Marketing Agreement 

and Order No. 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; 

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 its 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. 

Order Relative to Handling 

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 

proposed to be amended as follows: 

The provisions of the proposed 

marketing order amending the order 

contained in the Recommended 

Decision issued on November 3, 2011 

and published on November 9, 2011 (76 

FR 69673) will be and are the terms and 

provisions of this order amending the 

order and are set forth in full below. 

For the reasons stated in the 

preamble, the Agricultural Marketing 

Service proposes to amend 7 CFR Part 

930 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 the introductory paragraph 

in § 930.10 to read as follows: 

§ 930.10 Handle. 

Handle means the process to brine, 

can, concentrate, freeze, dehydrate, pit, 

press or puree cherries, or in any other 

way convert cherries commercially into 

a processed product, or divert cherries 

pursuant to § 930.59, or to otherwise 

place cherries into the current of 

commerce within the production area or 

from the area to points outside thereof: 

Provided, That the term handle shall not 

include: 

* * * * * 

3. Revise paragraphs (d) and (e) of 

§ 930.50 to read as follows: 

§ 930.50 Marketing Policy. 

* * * * * 

(d) Final percentages. No later than 

September 15 of each crop year, the 

Board shall review the most current 

information available including, but not 

limited to, processed production and 

grower diversions of cherries during the 

current crop year. The Board shall make 

such adjustments as are necessary 

between free and restricted tonnage to 

achieve the optimum supply and 

recommend such final free market 

tonnage and restricted percentages to 

the Secretary and announce them in 

accordance with paragraph (h) of this 

section. The difference between any 

final free market tonnage percentage 

designated by the Secretary and 100 

percent shall be the final restricted 

percentage. With its recommendation, 

the Board shall report on its 

consideration of the factors in paragraph 

(e) of this section. 

(e) Factors. When computing 

preliminary and interim percentages, or 

determining final percentages for 

recommendation to the Secretary, the 

Board shall give consideration to the 

following factors: 

(1) The estimated total production of 

cherries; 

(2) The estimated size of the crop to 

be handled; 

(3) The expected general quality of 

such cherry production; 


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Federal Register / Vol. 77, No. 43 / Monday, March 5, 2012 / Proposed Rules 13019 

(4) The expected carryover as of July 

1 of canned and frozen cherries and 

other cherry products; 

(5) The expected demand conditions 

for cherries in different market 

segments; 

(6) Supplies of competing 

commodities; 

(7) An analysis of economic factors 

having a bearing on the marketing of 

cherries; 

(8) The estimated tonnage held by 

handlers in primary or secondary 

inventory reserves; 

(9) Any estimated release of primary 

or secondary inventory reserve cherries 

during the crop year; and 

(10) The quantity of grower-diverted 

cherries during the crop year. 

* * * * * 

4. Revise paragraph (a) of § 930.58 to 

read as follows: 

§ 930.58 Grower Diversion privilege. 

(a) In general. Any grower may 

voluntarily elect to divert, in accordance 

with the provisions of this section, all 

or a portion of the cherries which 

otherwise, upon delivery to a handler, 

would become restricted percentage 

cherries. Upon such diversion and 

compliance with the provisions of this 

section, the Board shall issue to the 

diverting grower a grower diversion 

certificate which such grower may 

deliver to a handler. Any grower 

diversions completed in accordance 

with this section, but which are 

undertaken in districts subsequently 

exempted by the Board from volume 

regulation under § 930.52(d), shall 

qualify for diversion credit. 

* * * * * 

[FR Doc. 2012–5197 Filed 3–2–12; 8:45 am] 

BILLING CODE 3410–02–P 

DEPARTMENT OF AGRICULTURE 

Agricultural Marketing Service 

7 CFR Part 985 

[Doc. No. AMS–FV–11–0088; FV12–985–1 

PR] 

Marketing Order Regulating the 

Handling of Spearmint Oil Produced in 

the Far West; Salable Quantities and 

Allotment Percentages for the 2012– 

2013 Marketing Year 

AGENCY: Agricultural Marketing Service, 

USDA. 

ACTION: Proposed rule. 

SUMMARY: This rule would establish the 

quantity of spearmint oil produced in 

the Far West, by class, that handlers 

may purchase from, or handle on behalf 

of, producers during the 2012–2013 

marketing year, which begins on June 1, 

2012. This rule invites comments on the 

establishment of salable quantities and 

allotment percentages for Class 1 

(Scotch) spearmint oil of 782,413 

pounds and 38 percent, respectively, 

and for Class 3 (Native) spearmint oil of 

1,162,473 pounds and 50 percent, 

respectively. The Spearmint Oil 

Administrative Committee (Committee), 

the agency responsible for local 

administration of the marketing order 

for spearmint oil produced in the Far 

West, recommended these limitations 

for the purpose of avoiding extreme 

fluctuations in supplies and prices to 

help maintain stability in the spearmint 

oil market. 

DATES: Comments must be received by 

April 4, 2012. 

ADDRESSES: Interested persons are 

invited to submit written comments 

concerning this proposal. Comments 

must be sent to the Docket Clerk, 

Marketing Order and Agreement 

Division, 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 

document 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: 

Manuel Michel, Marketing Specialist, or 

Gary Olson, Regional Manager, 

Northwest Marketing Field Office, 

Marketing Order and Agreement 

Division, Fruit and Vegetable Programs, 

AMS, USDA; Telephone: (503) 326– 

2724, Fax: (503) 326–7440, or Email: 

Manuel.Michel@ams.usda.gov or 

GaryD.Olson@ams.usda.gov. 

Small businesses may request 

information on complying with this 

regulation by contacting Laurel May, 

Marketing Order and Agreement 

Division, 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 Email: 

Laurel.May@ams.usda.gov. 

SUPPLEMENTARY INFORMATION: This rule 

is issued under Marketing Order No. 

985 (7 CFR part 985), as amended, 

regulating the handling of spearmint oil 

produced in the Far West (Washington, 

Idaho, Oregon, and designated parts of 

Nevada and Utah), 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 proposed rule has been reviewed 

under Executive Order 12988, Civil 

Justice Reform. Under the marketing 

order now in effect, salable quantities 

and allotment percentages may be 

established for classes of spearmint oil 

produced in the Far West. This 

proposed rule would establish the 

quantity of spearmint oil produced in 

the Far West, by class, which handlers 

may purchase from, or handle on behalf 

of, producers during the 2012–2013 

marketing year, which begins on June 1, 

2012. 

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. 

The Committee meets annually in the 

fall to adopt a marketing policy for the 

ensuing marketing year or years. In 

determining such marketing policy, the 

Committee considers a number of 

factors, including, but not limited to, the 

current and projected supply, estimated 

future demand, production costs, and 

producer prices for all classes of 

spearmint oil, as well as input from 

spearmint oil handlers and producers 

regarding prospective marketing 

conditions. During the meeting, the 

Committee recommends to USDA any 

volume regulations deemed necessary to 

meet market requirements and to 

establish orderly marketing conditions 

for Far West spearmint oil. If the 

Committee’s marketing policy 


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