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

84075 

Vol. 88, No. 231 

Monday, December 4, 2023 

DEPARTMENT OF AGRICULTURE 

Agricultural Marketing Service 

7 CFR Part 930 

[Doc. No. AMS–SC–22–0052] 

Tart Cherries Grown in the States of 

Michigan, New York, Pennsylvania, 

Oregon, Utah, Washington, and 

Wisconsin; Amendments to the 

Marketing Order 

AGENCY: Agricultural Marketing Service, 

USDA. 

ACTION: Proposed rule. 

SUMMARY: This proposed rule invites 

comments on proposed amendments to 

Marketing Order No. 930, which 

regulates the handling of tart cherries 

grown in Michigan, New York, 

Pennsylvania, Oregon, Utah, 

Washington, and Wisconsin. The 

proposed amendments would modify 

the basis for calculating district 

representation on the Cherry Industry 

Administrative Board (‘‘Board’’), change 

the starting date for the term of office for 

Board members, simplify the way a 

Board member’s sales constituency is 

determined, clarify how the sales 

constituency applies to alternate Board 

members, change the timeframe for 

submitting nominations, and clarify 

when districts are subject to volume 

regulation. 

DATES: Comments must be received by 

February 2, 2024. 

ADDRESSES: Interested persons are 

invited to submit written comments 

concerning this proposed rule. 

Comments must be sent to the Docket 

Clerk, Market Development Division, 

Specialty Crops Program, AMS, USDA, 

1400 Independence Avenue SW, STOP 

0237, Washington, DC 20250–0237; Fax: 

(202) 720–8938; or internet: https://

www.regulations.gov. Comments should 

reference the document number and the 

date and page number of this issue of 

the Federal Register. All comments will 

be made available for public inspection 

in the Office of the Docket Clerk during 

regular business hours, or can be viewed 

at: https://www.regulations.gov. All 

comments submitted in response to this 

proposed rule will be included in the 

record and will be made available to the 

public on the internet at the address 

provided above. Please be advised that 

the identity of the individuals or entities 

submitting the comments will be made 

public. 

FOR FURTHER INFORMATION CONTACT: 

Thomas Nalepa, Marketing Specialist, or 

Matthew Pavone, Chief, Rulemaking 

Services Branch, Market Development 

Division, Specialty Crops Program, 

AMS, USDA, 1400 Independence 

Avenue SW, STOP 0237, Washington, 

DC 20250–0237; Telephone: (202) 720– 

8085, Fax: (202) 720–8938, or Email: 

MarketingOrderComment@usda.gov. 

Small businesses may request 

information on complying with this 

regulation by contacting Richard Lower, 

Market Development Division, Specialty 

Crops Program, AMS, USDA, 1400 

Independence Avenue SW, STOP 0237, 

Washington, DC 20250–0237; 

Telephone: (202) 720–8085, or Email: 

Richard.Lower@usda.gov. 

SUPPLEMENTARY INFORMATION: This 

action, pursuant to 5 U.S.C. 553, 

proposes to amend regulations issued to 

carry out a marketing order as defined 

in 7 CFR 900.2(j). This proposal is 

issued under Marketing Order No. 930, 

as amended (7 CFR part 930), regulating 

the handling of tart cherries grown in 

Michigan, New York, Pennsylvania, 

Oregon, Utah, Washington, and 

Wisconsin. Part 930 (referred to as 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 

Board locally administers the Order and 

is comprised of growers and handlers of 

tart cherries operating within the 

production area and a public member. 

Section 8c(17) of the Act (7 U.S.C. 

608c(17)) and the applicable rules of 

practice and procedure governing the 

formulation of marketing agreements 

and orders (7 CFR part 900) authorize 

amendment of the Order through this 

informal rulemaking action. The 

Agricultural Marketing Service (AMS) 

will consider comments received in 

response to this proposed rule, and 

based on all the information available, 

will determine if Order amendment is 

warranted. If AMS determines 

amendment of the Order is warranted, a 

subsequent proposed rule and notice of 

referendum would be issued, and 

producers and handlers would be 

allowed to vote for or against the 

proposed amendments. AMS would 

then issue a final rule effectuating any 

amendments approved by producers 

and handlers in the referendum. 

AMS is issuing this proposed rule in 

conformance with Executive Orders 

12866, 13563, and 14094. Executive 

Orders 12866 and 13563 direct agencies 

to assess all costs and benefits of 

available regulatory alternatives and, if 

regulation is necessary, to select 

regulatory approaches that maximize 

net benefits (including potential 

economic, environmental, public health 

and safety effects, distributive impacts 

and equity). Executive Order 13563 

emphasizes the importance of 

quantifying both costs and benefits, 

reducing costs, harmonizing rules, and 

promoting flexibility. Executive Order 

14094 reaffirms, supplements, and 

updates Executive Order 12866 and 

further directs agencies to solicit and 

consider input from a wide range of 

affected and interested parties through a 

variety of means. This action falls 

within a category of regulatory actions 

that the Office of Management and 

Budget (OMB) exempted from Executive 

Order 12866 review. 

This proposed rule has been reviewed 

under Executive Order 13175, 

Consultation and Coordination with 

Indian Tribal Governments, which 

requires agencies to consider whether 

their rulemaking actions would have 

tribal implications. AMS has 

determined this proposed rule is 

unlikely to have substantial direct 

effects on one or more Indian tribes, on 

the relationship between the Federal 

Government and Indian tribes, or on the 

distribution of power and 

responsibilities between the Federal 

Government and Indian tribes. 

This proposal has been reviewed 

under Executive Order 12988, Civil 

Justice Reform. This 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 8c(15)(A) of the Act (7 U.S.C. 

608c(15)(A)), 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 


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accordance with law and requesting a 

modification of the order or to be 

exempted therefrom. A handler is 

afforded the opportunity for a hearing 

on the petition. After the hearing, USDA 

would rule on the petition. The Act 

provides that the district court of the 

United States in any district in which 

the handler is an inhabitant, or has his 

or her principal place of business, has 

jurisdiction to review USDA’s ruling on 

the petition, provided an action is filed 

no later than 20 days after the date of 

entry of the ruling. 

Section 1504 of the Food, 

Conservation, and Energy Act of 2008 

(2008 Farm Bill) (Pub. L. 110–246) 

amended section 8c(17) of the Act, 

which in turn required the addition of 

supplemental rules of practice to 7 CFR 

part 900 (73 FR 49307; August 21, 

2008). The amendment of section 8c(17) 

of the Act and the supplemental rules of 

practice authorize the use of informal 

rulemaking (5 U.S.C. 553) to amend 

Federal fruit, vegetable, and nut 

marketing agreements and orders. AMS 

may use informal rulemaking to amend 

marketing orders depending upon the 

nature and complexity of the proposed 

amendments, the potential regulatory 

and economic impacts on affected 

entities, and any other relevant matters. 

AMS has considered these factors and 

has determined that the amendments 

proposed herein are not unduly 

complex and the nature of the proposed 

amendments is appropriate for utilizing 

the informal rulemaking process to 

amend the Order. This proposed rule 

encompasses a number of changes that 

are primarily administrative and 

modernizing in nature. These changes 

would clarify regulatory text or align it 

with current industry practices. Changes 

would also simplify the administration 

of seating the Board. In addition, as 

discussed in the ‘‘Initial Regulatory 

Flexibility Analysis’’ section below, this 

proposed rule is not anticipated to 

impose any new costs on affected 

entities. The amendments would apply 

equally to all producers and handlers, 

regardless of size. The proposed 

amendments also have no additional 

impact on the reporting, recordkeeping, 

or compliance costs of small businesses. 

The Board unanimously 

recommended all the proposed 

amendments to the Order following 

deliberations at a public meeting held 

on February 15, 2022, except one 

dissenting vote on the method for 

establishing a member’s sales 

constituency. The Board submitted its 

formal recommendation to amend the 

Order through the informal rulemaking 

process on April 8, 2022. At AMS’s 

request, the Board conducted an 

additional meeting on December 15, 

2022, to publicly clarify its original 

intent that the sales constituency 

provisions of the proposal would apply 

to both growers and handlers, and that 

sales constituency would be established 

at the time of nomination. Specifically, 

the Board adjusted the language of the 

initial February 15th recommendation 

for when a member’s sales constituency 

is established from ‘‘nomination and 

appointment’’ to just at the time of 

‘‘nomination.’’ The Board then 

unanimously voted to clarify that the 

established sales constituency applies to 

both handlers and growers for the 

duration of the term of office. A separate 

vote to remove the words ‘‘and 

appointment’’ from the language had 

one dissenting individual who believed 

sales constituency should be calculated 

at the time of appointment. The 

proposed rule would: 

• Modify the method for allocating 

Board seats to a district so that it is 

based on the district’s maximum 

volume of production in the most recent 

five harvests (Proposal 1); 

• Change the starting date for the 

term of office for Board members 

(Proposal 2); 

• Modify the basis for determining a 

Board member’s sales constituency 

when a member has multiple affiliations 

(Proposal 3); 

• Clarify how sales constituency 

applies to alternate Board members 

(Proposal 4); 

• Adjust the timeframe for submitting 

nominations to USDA (Proposal 5); and 

• Clarify when districts are subject to 

the Order’s volume regulations 

(Proposal 6). 

Proposal 1—Establishment of 

Membership 

Section 930.20 establishes the Board 

and provides a method for calculating 

its membership, which is drawn from 

nine subdivisions (or ‘‘districts’’) in the 

production area. Section 930.20(b) states 

that district representation on the Board 

is based on the previous three-year 

average production in the district and 

may vary depending on the production 

levels of the district. If the three-year 

average production in a district changes, 

so that a different number of seats 

should be allocated to it, § 930.20(f) 

states that the Board’s membership must 

be adjusted accordingly. Currently, the 

Board is required to calculate the threeyear average production in each of the 

nine districts annually. This updated 

yearly calculation of the three-year 

average may result in a change to the 

number of representative seats in a 

given district. 

This method for determining the 

Board’s membership has proved to be 

inefficient and costly. If the Board’s 

calculation of the three-year average 

production in a district reduces the 

number of seats for the district, the 

members of that district follow the 

procedures specified in § 930.120 and 

recommend to the Board who among 

them should be removed from office. 

The Board then makes a 

recommendation to the Secretary for 

approval of the member and alternate to 

be removed from the Board. This 

process is time-intensive and disrupts 

the continuity of the Board’s operations 

by removing members and alternates 

from the Board as frequently as every 

year. If the new three-year average 

calculation results in an increase to a 

district’s representation on the Board, 

the Board staff would conduct an 

election in that district to fill the newly 

established seat. This process costs the 

Board significant time and financial 

resources because it requires conducting 

additional outreach and nominations 

annually. Consequently, the Board 

discussed ways to alter § 930.20 to 

provide a more sustainable method for 

calculating its membership. 

The Board recommended modifying 

§ 930.20(b) so that district 

representation on the Board is based on 

each district’s maximum production in 

the most recent five harvest periods, 

rather than on the district’s average 

production over the previous three 

years. The Board further recommended 

that the proposed calculation would 

commence from the first season’s 

harvest following implementation of 

this action. In addition, § 930.20(f) 

would be revised to specify that each 

district’s maximum production for the 

most recent five harvests would be 

determined every five years and as soon 

as possible after the most recent year’s 

production is known. Production 

numbers would be calculated after the 

Board receives final reports in early 

September. The five-harvest periods for 

calculating maximum volume for each 

district would continue in perpetuity 

until otherwise modified through a 

Board recommendation and rulemaking. 

The choice of the five-year period is 

based on balancing the interests of the 

industry. A five-year period would 

provide continuity of district 

representation on the Board, yet it 

would also allow trends and/or changes 

impacting tart cherry production to be 

accommodated periodically. 

The Board also recommended 

amending § 930.20 to insert two new 

sections, §§ 930.20(g) and 930.20(h). 

Section 930.20(g) would further clarify 

that in the event a district experiences 


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substantial changes requiring 

reconsideration of the number of seats 

in the district, the Secretary, based on 

the Board’s recommendation, could 

allocate a different number of seats to 

the district. In deciding whether to 

make any such recommendation, the 

Board would consider several factors. 

These factors would include shifts in 

the tart cherry acreage and/or the 

number of bearing trees within districts 

and within the production area during 

recent years, the volume of tart cherries 

produced in the district, the importance 

of either increased or decreased 

production in its relation to existing 

districts, the equitable relationship of 

Board membership and districts, 

enhanced economies to producers 

through more efficient administration of 

Board reapportionments, and other 

relevant factors. 

Additionally, § 930.20(h) would state 

that no change in the number of seats 

allocated to a district could become 

effective less than 30 days prior to the 

date on which the term of office begins 

each year, and no recommendation for 

a change in allocated seats could be 

made less than six months prior to such 

date. Current § 930.20(g), (h), and (i) 

would be redesignated § 930.20(i), (j), 

and (k), respectively. 

The Board considered alternatives to 

the proposed five-year period for 

determining a district’s maximum 

production, including 3-year and 10- 

year periods. The Board assessed each 

period and cross-compared historical 

production data to review the 

hypothetical impact of these options on 

district representation levels. The Board 

determined the five-year period 

calculation as optimal because it 

induced the least volatility in the seat 

allocations to each district. Ultimately, 

the Board believes this proposal would 

stabilize its composition and improve 

the efficiency of its operations. 

Proposal 2—Starting Date for Term of 

Office 

Section 930.22 states that the term of 

office for Board members and alternates 

is three fiscal years. Section 930.7 

defines a fiscal year as the 12-month 

period beginning on July 1 of any year 

and ending on June 30 of the following 

year. These dates have been used as the 

beginning and end dates for the term of 

office since the inception of the Order. 

Proposal 2 would adjust the term of 

office to start on June 1 and end on May 

31 of the third subsequent year. This 

change would allow for activities such 

as Board forecasting, planning, and final 

recommendations for the optimum 

supply volume to be conducted by the 

same membership, which industry 

believes will improve Board operations. 

The optimum supply volume is referred 

to by the Board as the Optimum Supply 

Formula (OSF). 

Under the Order’s current marketing 

policy located in § 930.50, the Board is 

required to meet on or about July 1 of 

each crop year to establish a preliminary 

free market tonnage percentage and a 

preliminary restricted percentage, and 

to meet again no later than September 

15 to make any modifications to the 

preliminary percentages based on 

consideration of actual production data, 

inventories, and other current economic 

information. Therefore, the final OSF 

recommendation incorporates the 

updated market data, and the Board 

reviews the preliminary estimates 

calculated by the prior Board 

membership during its June meeting 

(which is when the Board typically 

holds the meeting required to be held on 

or about July 1). However, the 

preliminary recommendation from its 

June meeting can impact industry 

operations during harvest in July and 

August. 

Therefore, to establish greater 

continuity of Board operations that is 

stabilizing for industry, the Board 

recommended changing § 930.22 so the 

term of office would be three years, 

starting on June 1 and ending on May 

31 of the third subsequent year, prior to 

the start of the crop year. This would 

allow the same Board members to 

calculate both the preliminary estimate 

and the final OSF recommendation. 

In addition, the Board usually 

formulates its budget and assessment 

rates for the upcoming season at its June 

meeting. With this change, the newly 

seated Board would also be making 

these decisions. 

Proposal 3—Determination of Member 

Sales Constituency 

This proposal would clarify how the 

term ‘‘sales constituency’’ is applied to 

growers and handlers. As defined in 

§ 930.16, a sales constituency is a 

common marketing organization, 

brokerage firm, or individual 

representing a group of handlers and 

growers. An organization that receives 

consignments of cherries but does not 

direct where the consigned cherries are 

sold is not a sales constituency. The 

determination of a Board member’s (or 

prospective Board member’s) sales 

constituency is important because, in a 

district with multiple Board members, 

only one member may be from a given 

sales constituency. This limitation is 

intended ‘‘to achieve a fair and balanced 

representation on the Board’’ and ‘‘to 

prevent any one sales constituency from 

gaining control of the Board’’ (7 CFR 

930.20(g)). 

The lack of additional guidance in the 

Order relating to sales constituency 

determinations has created significant 

challenges. First, the lack of guidance 

has led to confusion in the industry 

about how these determinations should 

be made. In addition, under the current 

regulatory criteria, Board members and 

nominees may be found to have 

multiple sales constituencies since 

many growers and handlers conduct 

business with several entities at the 

same time. Further, these business 

transactions may change year-to-year, or 

even within a year. The complicated 

and volatile nature of sales constituency 

determinations under the current rules 

means that Board members may become 

ineligible to serve before their terms 

expire, and this contributes to high 

turnover rates among members. These 

issues have also made it increasingly 

difficult to identify qualified candidates 

to serve on the Board, exacerbating the 

economic conditions that have caused 

the tart cherry industry to shrink over 

time. 

The proposal would address these 

problems by simplifying sales 

constituency determinations and by 

providing that such determinations, 

once made at the time of a prospective 

member’s nomination, would remain in 

place until the end of the member’s term 

of office. Specifically, this proposal 

would amend § 930.23(b) to provide that 

a grower’s sales constituency is 

determined by the handler that 

purchases the ‘‘majority of pounds’’ of 

the grower’s cherries at the time of their 

nomination. A handler’s sales 

constituency would be the entity that 

directs the sales of its cherries, which is 

commonly the handler itself. Sales 

constituency determinations for growers 

and handlers would be based on the 

most recently harvested crop at the time 

of nomination. This assigned sales 

constituency would remain in effect 

throughout the grower’s or handler’s 

term of office. Since growers and 

handlers do business with multiple 

entities, this clarification would 

standardize the process for determining 

sales constituency and ensure that the 

sales constituency relationship would 

remain in place throughout a member’s 

three-year term of office. Therefore, the 

Board recommended this proposal to 

address industry confusion on how to 

accurately determine a nominee’s sales 

constituency relationship. 

This proposal will help keep the sales 

constituency static throughout the term 

of office and stabilize Board 

membership, thereby reducing turnover 

interruptions prior to the term of office 


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ending for the member. As explained 

above, this stability is becoming more 

important given business attrition and 

the economic conditions that contribute 

to the shrinking of the tart cherry 

industry over time, which has made 

identifying qualified candidates to serve 

on the Board increasingly more difficult. 

In sum, the Board seeks to limit the 

impact of any single sales constituency 

and maintain a wide array of 

perspectives and industry interests 

while simultaneously incorporating the 

flexibility to fully seat the Board. This 

proposal would promote diverse Board 

representation to reflect industry’s 

business interests while retaining the 

capacity to seat diverse representation 

for the entire three-year term of office in 

each district. This proposal also makes 

clear that both handlers and growers are 

subject to sales constituency 

requirements. 

Proposal 4—Alternate Member Sales 

Constituency 

Section 930.28 establishes the criteria 

to seat an alternate member at a Board 

meeting during the absence of the 

member for whom that member serves 

as an alternate. The current language 

does not include any provision that 

incorporates sales constituency with 

regard to alternate members being 

seated. This proposal clarifies the 

interpretation of the regulatory language 

regarding who may represent a member 

seat within a district, and the intent of 

industry on nominating and seating an 

alternate member. When the Order was 

initially established, the intent of 

industry regarding sales constituencies 

was to permit the seating of alternate 

members even though they were of the 

same sales constituency as the member 

for whom they serve as an alternate. It 

was understood that members of the 

same sales constituency could occupy 

the member and the corresponding 

alternate seat for that chair on the 

Board. The proposed amendment would 

confirm this original interpretation of 

the sales constituency limitation and 

clarify when an alternate may serve in 

place of a member. 

Before 2018, the Board’s policy was to 

allow members and their alternates to be 

from the same sales constituency, even 

though this practice was not explicitly 

codified. However, in 2018 a district 

court issued an order that disapproved 

of this practice. In Burnette Foods Inc. 

v. United States Department of 

Agriculture, the United States District 

Court for the Western District of 

Michigan held that CherrCo, Inc., a 

grower cooperative, was a sales 

constituency. Burnette Foods, Inc. v. 

U.S. Dep’t of Agriculture, No. 1:16–cv– 

21, 2018 WL 538583, at *4 (W.D. Mich. 

Jan. 24, 2018). In connection with this 

holding, the court issued an order 

stating that ‘‘Not more than one Board 

member (including an alternate Board 

member) may be from, or affiliated with, 

CherrCo in those districts having more 

than one seat on the Board.’’ Burnette 

Foods, ECF No. 51 (Mar. 9, 2018) 

(emphasis added). 

USDA’s implementation of the district 

court’s order made it difficult to find 

and seat representatives on the Board 

who did not have a ‘‘constituency 

conflict’’ (that is, a shared sales 

constituency) with other members and 

alternates on the Board. Under USDA’s 

implementation of the order, sales of 

cherries by a grower to more than one 

handler required that all such handler 

relationships be considered in assessing 

constituency conflicts. All these grower 

relationships were compared to all 

constituencies of other members and 

alternates serving on the Board from a 

multi-seat district, including the 

member holding the seat for which an 

alternate was standing for nomination 

and election. With this interpretation, if 

any conflict existed between a candidate 

and any other Board representative in 

the same district, alternates included, 

the candidate could not be nominated 

for appointment to the Board. 

USDA appealed the district court’s 

decision to the United States Court of 

Appeals for the Sixth Circuit, which 

reversed the district court’s judgment 

and remanded the case for entry of 

judgment in USDA’s favor. Burnette 

Foods, Inc. v. U.S. Dep’t of Agriculture, 

920 F.3d 461, 464, 470 (6th Cir. 2019). 

However, because the Sixth Circuit 

ruled in USDA’s favor on a preliminary 

issue, it did not address the question of 

whether (or how) the sales constituency 

limitation in § 930.20(g) applies to 

alternate members. 

To clarify this issue, the Board 

recommended adding language to 

§ 930.28 to explicitly state how the sales 

constituency limitation applies to 

alternate members. Currently, 

§ 930.20(g) provides that any conflict of 

sales constituency in a district for Board 

members is not allowed. The current 

language in § 930.20(g) does not address 

how an alternate’s sales constituency 

affects a member’s qualification to serve. 

The proposed amendment to § 930.28 

would add the necessary language to 

clarify the Board’s intentions when 

seating alternate members. 

As previously mentioned, attrition 

and difficult economic conditions are 

shrinking the tart cherry industry. In 

2021 and 2022, three tart cherry 

handling operations closed. The Board 

also recently had open alternate seats as 

a result of the lawsuit surrounding the 

sales constituency clause. Finding and 

electing candidates to serve has become 

increasingly more difficult. The current 

process of determining sales 

constituency adds to this difficulty, 

especially when a member’s sales 

constituency may change yearly, and 

the existing process significantly limits 

the availability of qualified candidates. 

To seat a functioning Board that 

appropriately represents growers and 

handlers from their corresponding 

districts, the Board believes that 

members of the same sales constituency 

must be allowed to sit as member and 

alternate on the Board. This was 

commonly understood by industry as 

how the Order was originally intended 

to operate. This is also how industry 

interpreted the Order until 2018. 

This amendment would clarify the 

regulations and confirm these original 

intentions and the interpretation of sales 

constituency for alternates. The 

proposal would reclassify the original 

paragraph comprising § 930.28 as 

§ 930.28(a) and add two new paragraphs 

§ 930.28(b) and § 930.28(c). Section 

930.28(b) would state that alternate 

members may be from the same sales 

constituency as the member for whom 

they serve as an alternate. It would also 

provide that, if a member and their 

alternate are absent from a meeting of 

the Board, another alternate of a 

different district may act for the member 

following the requirements of 

§ 930.28(a), provided this does not 

create a sales constituency conflict with 

the other members of that district. 

Section 930.28(c) would allow the 

Board, with the approval of the 

Secretary, to establish rules and 

regulations necessary and incidental to 

the administration of § 930.28. 

Proposal 5—Submission of 

Nominations 

Preparing and completing Board 

member nomination packages for 

submission to the Secretary entails 

several stages of work that require 

months to complete. The process begins 

with the issuance of notices of open 

seats transmitted to industry, followed 

by the solicitation of nominations in the 

applicable districts. Grower members 

and at-large members (i.e., members in 

districts with only one seat and who 

may be growers or handlers) are 

nominated first, then handler members 

are nominated. Once this is completed, 

the Board focuses efforts on the 

nomination of alternate members, a 

process that adds several more weeks to 

the timetable. 

Currently, the Board is required to 

announce the expiration of a member’s 


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term of office and solicit nominations 

for the position at least 180 days before 

the term expires. Board staff must then 

complete the above-mentioned steps 

and submit the nomination package to 

the Secretary or Board at least 120 days 

before the term expires, in accordance 

with § 930.23(b)(7). This means the 

Board may have as few as 60 days (180 

days minus 120 days) to prepare and 

submit a nomination package that 

adheres to the 120-day deadline. In 

practice, the Board staff cannot 

complete the process by the 120-day 

deadline. Therefore, the Board has 

recommended reducing the number of 

days in advance of a term’s expiration 

that nominations must be submitted 

from 120 to 60 days. By making the 

submission date 60 days prior to the end 

of the term of the outgoing Board 

member, the Board staff would have an 

additional 60 days to conduct outreach 

for nominees and complete the 

nomination process. 

This proposal is an administrative 

change for the Board. Aside from the 

proposed change, the Board staff would 

continue to conduct the nomination and 

election processes in the same manner 

as they have been conducted since the 

inception of the Order. This amendment 

would adjust by 60 days the deadline 

for submission of nominations to the 

Secretary for the selection of the elected 

members and alternates. This change 

would not adversely impact the USDA’s 

requirement to carry out the nomination 

or election processes. 

Proposal 6—Districts Subject to Volume 

Regulation 

This proposal would change language 

in § 930.52 to address two industry 

concerns about how this section 

establishes which districts are subject to 

the Order’s volume regulations. The first 

issue involves the number of years that 

§ 930.52(a) considers in determining a 

district’s average production of tart 

cherries. The second issue involves 

§ 930.52(d)’s exemption from volume 

regulation based on a district’s 

‘‘processed production,’’ which is an 

undefined term. These two issues have 

created confusion when calculating 

production in a district. 

Section 930.52 establishes which 

districts in the production area are 

subject to the Order’s volume 

regulations. Section 930.52(a) states 

that, as a general rule, the districts in 

which handlers are subject to the 

volume regulations are those in which 

the average annual production of 

cherries over the prior three years has 

exceeded six million pounds. Handlers 

become subject to volume regulation in 

the crop year that follows any three-year 

period in which the six-million-pound 

average production requirement is 

exceeded in that district. 

Currently, the Board uses all tart 

cherry production for each district in 

calculating the OSF and for determining 

whether a district is regulated in any 

given year. The industry’s production 

information comes from multiple 

sources. Handlers provide the Board 

with the amount of fruit that growers 

deliver to their facilities and from which 

district produced the fruit. Some 

growers divert cherries in the field in 

those years when a restriction is 

calculated under the OSF. The Board 

oversees and calculates the volume of 

cherries diverted from fields by growers. 

Using all available information, the 

Board determines the production of tart 

cherries by district that is used to 

calculate the OSF for any given year. 

Tart cherry production can vary 

dramatically from year to year, making 

the production totals extremely volatile 

over multiple seasons. To make the 

average calculation for each district less 

volatile, the Board recommended 

moving to a five-year average instead of 

the current three-year average. The 

additional two years included in the 

calculation provide a longer window to 

assess the average production in each 

district, thereby reducing the weight 

each season has in determining the 

average number. The Board further 

noted that extending the period from 

three to five years would have a 

minimal impact on the regulation of the 

various districts and allow for more 

consistent averages when calculating 

the six-million-pound threshold for 

determining if a district is subject to 

regulation. Consequently, the Board 

unanimously recommended changing 

the period for calculating the average 

pounds for each district from three to 

five years in § 930.52(a). 

The second issue involves 

§ 930.52(d)’s use of the term ‘‘processed 

production.’’ Section 930.52(d) exempts 

a district from volume regulation in a 

particular year if it produces less than 

50 percent of its ‘‘average annual 

processed production’’ in the previous 

five years. At present, industry operates 

with the understanding that in years 

with volume restriction, grower diverted 

cherries are subtracted from the 

district’s production when calculating 

the five-year average. However, since 

grower diverted cherries represent an 

insignificant portion of the district’s 

total production, this has a negligible 

impact on the five-year average. By 

eliminating the term ‘‘processed’’ from 

§ 930.52(d), it would be clearer to the 

industry that ‘‘production’’ means all 

cherries produced in a district when 

determining the exempt status. 

Therefore, in years where there is a 

restriction, all production, including 

grower diverted cherries, would be part 

of the production average. This change 

would simplify the calculation for the 

Board and keep the calculation 

consistent in years with and without 

volume restriction. A district’s 

production average is most impacted by 

weather conditions from year to year, 

and not the volume of grower diverted 

fruit. 

Therefore, eliminating the word 

‘‘processed’’ from ‘‘processed 

production’’ would not meaningfully 

alter the way the industry or the Board 

are already operating, but it would 

simply the five-year production average 

and make the calculation consistent 

from year to year. Elimination of the 

term would also make it clearer to the 

industry to include all tart cherries 

produced in a district when determining 

the regulation status of districts. The 

Board unanimously recommended this 

proposed change that would remove the 

term ‘‘processed’’ from § 930.52(d). 

Initial Regulatory Flexibility Analysis 

Pursuant to requirements set forth in 

the Regulatory Flexibility Act (RFA) (5 

U.S.C. 601–612), 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 

businesses subject to such actions in 

order that small businesses will not be 

unduly or disproportionately burdened. 

Marketing orders issued pursuant to the 

Act are unique in that they are brought 

about through group action of 

essentially small entities acting on their 

own behalf. 

There are approximately 400 tart 

cherry growers in the production area 

and approximately 40 handlers subject 

to regulation under the Order. At the 

time this analysis was performed, the 

Small Business Administration (SBA) 

defined small agricultural producers of 

tart cherries as those having annual 

receipts equal to or less than $3,500,000 

(Other Noncitrus Fruit Farming, North 

American Industry Classification 

System Code 111339). Small 

agricultural service firms were defined 

as those having annual receipts equal to 

or less than $34,000,000 (Postharvest 

Crop Activities, North American 

Industry Classification System Code 

115114) (13 CFR 121.201). 

The National Agricultural Statistics 

Service (NASS) reported that the 2021– 

22 value of the tart cherry crop for 

processed utilization was approximately 


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84080 Federal Register / Vol. 88, No. 231 / Monday, December 4, 2023 / Proposed Rules 

$83 million. This tart cherry production 

was 171.0 million pounds and the 

season average grower price for 

processed tart cherries was $0.485 per 

pound. Dividing the crop value by the 

estimated number of producers (400) 

yields an estimated average annual 

receipts per producer of $207,500 ($83 

million divided by 400 producers). This 

is well below the SBA threshold for 

small producers. 

An estimate of the season average 

price of $0.94 per pound received by 

handlers for processed tart cherries was 

derived from USDA’s purchases of dried 

tart cherries for feeding programs in the 

2021–22 season at an average price of 

$4.70 per pound. The dried cherry price 

was converted to a raw product 

equivalent price of $0.94 per pound at 

an industry recognized ratio of five to 

one ($4.70 divided by 5 equals $0.94). 

Multiplying this price by 2021 total 

processed utilization of 171.0 million 

pounds results in an estimated handlerlevel tart cherry value of $160.7 million 

($0.94 per pound multiplied by 171.0 

million pounds). Dividing this figure by 

the number of handlers (40) yields 

estimated average annual receipts per 

handler of approximately $4.0 million 

($160.7 million divided by 40 handlers), 

which is well below the SBA threshold 

of $34 million for small agricultural 

service firms. Assuming a normal 

distribution, the majority of producers 

and handlers of tart cherries may be 

classified as small entities. 

This proposed rule would revise 

multiple provisions in the Order’s 

subpart regulating handling of tart 

cherries grown in Michigan, New York, 

Pennsylvania, Oregon, Utah, 

Washington, and Wisconsin: 

• Proposal 1: modify the method for 

allocating Board seats to a district so 

that it is based on the district’s 

maximum volume of production in the 

most recent five harvests; 

• Proposal 2: change the starting date 

for the term of office for Board members; 

• Proposal 3: modify the basis for 

determining a Board member’s sales 

constituency when a member has 

multiple affiliations; 

• Proposal 4: clarify how sales 

constituency applies to alternate Board 

members; 

• Proposal 5: adjust the timeframe for 

submitting nominations to USDA; and 

• Proposal 6: clarify when districts 

are subject to the Order’s volume 

regulations. 

The proposed changes may be 

considered either modifications of, or 

clarifications to existing administrative 

Board processes, and affect only the 

Board’s activity. AMS does not 

anticipate that any of the proposed 

changes will increase costs on 

producers or handlers. The goal of these 

proposed changes is to help further 

standardize and stabilize Board 

membership and improve Board 

efficiency and decision making 

throughout the year. 

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 OMB and 

assigned OMB No. 0581–0177, Tart 

Cherries Grown in Michigan, New York, 

Pennsylvania, Oregon, Utah, 

Washington, and Wisconsin. No 

changes in those requirements are 

necessary as a result of this proposed 

rule. Should any changes become 

necessary, they would be submitted to 

OMB for approval. 

This proposed rule would impose no 

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 publicsector 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. 

The Board’s meetings are widely 

publicized throughout the tart cherries 

production area. All interested persons 

are invited to attend the meetings and 

encouraged to participate in Board 

deliberations on all issues. Like all 

Board meetings, the meetings held on 

February 15 and December 15, 2022, 

were public, and all entities, both large 

and small, were encouraged to express 

their views on the proposed 

amendments. 

Interested persons are invited to 

submit comments on the proposed 

amendments to the Order, including 

comments on the regulatory and 

information collection impacts of this 

action on small businesses. 

Following analysis of any comments 

received on the amendments in this 

proposed rule, AMS will evaluate all 

available information and determine 

whether to proceed. If appropriate, a 

proposed rule and notice of referendum 

would be issued, and growers and 

handlers would be provided the 

opportunity to vote for or against the 

proposed amendments. Information 

about the referendum, including dates 

and voter eligibility requirements, 

would be published in a future issue of 

the Federal Register. A final rule would 

then be issued to effectuate any 

amendments favored by growers and 

handlers participating in the 

referendum. 

A small business guide on complying 

with fruit, vegetable, and specialty crop 

marketing agreements and orders may 

be viewed at: https://

www.ams.usda.gov/rules-regulations/ 

moa/small-businesses. Any questions 

about the compliance guide should be 

sent to Richard Lower at the previously 

mentioned address in the FOR FURTHER

INFORMATION CONTACT section. 

General Findings 

The findings hereinafter set forth are 

supplementary to the findings and 

determinations which were previously 

made in connection with the issuance of 

Marketing Order 930; 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. 

1. Marketing Order 930 as hereby 

proposed to be amended and all the 

terms and conditions thereof, would 

tend to effectuate the declared policy of 

the Act; 

2. Marketing Order 930 as hereby 

proposed to be amended regulates the 

handling of tart cherries grown in 

Michigan, New York, Pennsylvania, 

Oregon, Utah, Washington, and 

Wisconsin and is applicable only to 

persons in the respective classes of 

commercial and industrial activity 

specified in the Order; 

3. Marketing Order 930 as hereby 

proposed to be amended is limited in 

application to the smallest regional 

production area which is practicable, 

consistent with carrying out the 

declared policy of the Act, and the 

issuance of several marketing orders 

applicable to subdivisions of the 

production area would not effectively 

carry out the declared policy of the Act; 

4. Marketing Order 930 as hereby 

proposed to be 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 produced or packed in the 

production area; and 

5. All handling of tart cherries grown 

or handled in the production area, as 

defined in Marketing Order 930, is in 

the current of interstate or foreign 


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Federal Register / Vol. 88, No. 231 / Monday, December 4, 2023 / Proposed Rules 84081 

commerce or directly burdens, 

obstructs, or affects such commerce. 

A 60-day comment period is provided 

to allow interested persons to respond 

to these proposals. Any comments 

received on the amendments proposed 

in this rule will be analyzed. If AMS 

determines to proceed based on all the 

information presented, a producer and 

handler referendum would be 

conducted to determine the industry 

support for the proposed amendments. 

If appropriate, a final rule would then 

be issued to effectuate the amendments 

favored by producers and handlers 

participating in the referendum. 

List of Subjects in 7 CFR Part 930 

Cherries, Marketing agreements, 

Reporting and recordkeeping 

requirements. 

For the reasons set forth 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. Amend § 930.20 by: 

■ a. Revising paragraph (b) introductory 

text, and paragraph (f); 

■ b. Redesignating paragraphs (g), (h), 

and (i) as paragraphs (i), (j), and (k), 

respectively; and 

■ c. Adding new paragraphs (g) and (h). 

The revisions and the additions read 

as follows: 

§ 930.20 Establishment and membership. 

* * * * * 

(b) District representation on the 

Board shall be based upon the 

maximum volume of production in the 

most recent five harvests in the district 

and shall be established as follows: 

* * * * * 

(f) If the maximum production for the 

most recent five harvests in a district 

changes so that a different number of 

seats should be allocated to the district, 

then the Board will be reestablished by 

the Secretary and such seats will be 

filled according to the applicable 

provisions of this part. Each district’s 

maximum production for the five most 

recent harvests shall be determined 

every five years and as soon as possible 

after the most recent year’s production 

is known. 

(g) In the event of substantial changes 

within a district that require 

reconsideration of the number of seats 

allocated to the district, the Board may 

recommend, and pursuant thereto, the 

Secretary may approve, allocation of a 

different number of seats to the district. 

In making any such recommendation, 

the Board shall consider: 

(1) Shifts in tart cherry acreage and/ 

or the number of bearing trees within 

districts and within the production area 

during recent years; 

(2) The volume of tart cherries 

produced in the district; 

(3) The importance of either increased 

or decreased production in its relation 

to existing districts; 

(4) The equitable relationship of 

Board membership and districts; 

(5) Economies to result for producers 

in promoting efficient administration of 

the Board due to reapportionments; 

(6) Other relevant factors. 

(h) No change in the allocated number 

of seats for district(s) may become 

effective less than 30 days prior to the 

date on which terms of office begin each 

year and no recommendation for a 

change in allocated seats may be made 

less than six months prior to such date. 

* * * * * 

■ 3. Revise § 930.22 to read as follows: 

§ 930.22 Term of office. 

The term of office of each member 

and alternate member of the Board shall 

be for three years beginning on June 1 

of the year when appointed and ending 

on May 31 three years later: Provided 

that, of the nine initial members and 

alternates from the combination of 

Districts 1, 2 and 3, one-third of such 

initial members and alternates shall 

serve only one year, one-third of such 

members and alternates shall serve only 

two years, and one-third of such 

members and alternates shall serve three 

years; and one-half of the initial 

members and alternates from Districts 4 

and 7 shall serve only one year, and 

one-half of such initial members and 

alternates shall serve two years 

(determination of which of the initial 

members and their alternates shall serve 

for one, two, or three years shall be by 

lot). Members and alternate members 

shall serve in such capacity for the 

portion of the term of office for which 

they are selected and have qualified 

until their respective successors are 

selected, have qualified, and are 

appointed. The consecutive terms of 

office of grower, handler and public 

members and alternate members shall 

be limited to two 3-year terms, 

excluding any initial term lasting less 

than three years. The term of office of 

a member and alternate member for the 

same seat shall be the same. The term 

of office specified in this section will 

become effective for all members, 

including members whose terms are not 

expiring, upon the first nomination 

cycle following the effectiveness of the 

final rule establishing this new term of 

office. 

The Board, with the approval of the 

Secretary, may establish rules and 

regulations necessary and incidental to 

the administration of this section. 

■ 4. Amend § 930.23 by revising 

paragraphs (b)(2) through (4) and (7) and 

(c)(3)(ii) to read as follows: 

§ 930.23 Nomination and election. 

* * * * * 

(b) * * * 

(2) In order for the name of a handler 

nominee to appear on an election ballot, 

the nominee’s name must be submitted 

with a petition form, to be supplied by 

the Secretary or the Board, which 

contains the signature of one or more 

handler(s), other than the nominee, from 

the nominee’s district who is or are 

eligible to vote in the election and that 

handle(s) a combined total of no less 

than five percent (5%) of the previous 

three-year average production handled 

in the district. Provided, that this 

requirement shall not apply if its 

application would result in a sales 

constituency conflict as provided in 

§ 930.20(i). The requirement that the 

petition form be signed by a handler 

other than the nominee shall not apply 

in any district where fewer than two 

handlers are eligible to vote. 

(3) Only growers, including duly 

authorized officers or employees of 

growers, who are eligible to serve as 

grower members of the Board shall 

participate in the nomination of grower 

members and alternate grower members 

of the Board. No grower shall participate 

in the submission of nominees in more 

than one district during any nomination 

cycle. If a grower produces cherries in 

more than one district, that grower may 

select in which district he or she wishes 

to participate in the nominations and 

election process and shall notify the 

Secretary or the Board of such selection. 

A grower may not participate in the 

nomination process in one district and 

the election process in a second district 

in the same election cycle. A grower’s 

sales constituency is determined by the 

common marketing organization or 

brokerage firm or individual 

representing a group of handlers and 

growers that purchased the majority of 

pounds of the grower’s fruit in a given 

year. For the duration of a grower’s term 

on the Board, the sales constituency 

affiliation for said grower will be the 

affiliation at the time of their 

nomination and will be based on the 


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84082 Federal Register / Vol. 88, No. 231 / Monday, December 4, 2023 / Proposed Rules 

most recently harvested crop at that 

time. 

(4) Only handlers, including duly 

authorized officers or employees of 

handlers, who are eligible to serve as 

handler members of the Board shall 

participate in the nomination of handler 

members and alternate handler 

members of the Board. No handler shall 

participate in the selection of nominees 

in more than one district during any 

nomination cycle. If a handler handles 

cherries in more than one district, that 

handler may select in which district he 

or she wishes to participate in the 

nominations and election process and 

shall notify the Secretary or the Board 

of such selection. A handler may not 

participate in the nominations process 

in one district and the elections process 

in a second district in the same election 

cycle. If a person is a grower and a 

grower-handler only because some or all 

of his or her cherries were custom 

packed, but he or she does not own or 

lease and operate a processing facility, 

such person may vote only as a grower. 

For the duration of a handler’s term on 

the Board, the sales constituency 

affiliation for said handler will be the 

affiliation at the time of nomination. 

* * * * * 

(7) After the appointment of the initial 

Board, the Secretary or the Board shall 

announce at least 180 days in advance 

when a Board member’s term is expiring 

and shall solicit nominations for that 

position in the manner described in this 

section. Nominations for such position 

should be submitted to the Secretary or 

the Board not less than 60 days prior to 

the expiration of such term. 

(c) * * * 

(3) * * * 

(i) * * * 

(ii) To be seated as a handler 

representative in any district, the 

successful candidate must receive the 

support of handler(s) that handled a 

combined total of no less than five 

percent (5%) of the previous three-year 

average production handled in the 

district; Provided, that this paragraph 

shall not apply if its application would 

result in a sales constituency conflict as 

provided in § 930.20(i). 

* * * * * 

■ 5. Revise § 930.28 to read as follows: 

§ 930.28 Alternate members. 

(a) An alternate member of the Board, 

during the absence of the member for 

whom that member serves as an 

alternate, shall act in the place and 

stead of such member and perform such 

other duties as assigned. However, if a 

member is in attendance at a meeting of 

the Board, an alternate member may not 

act in the place and stead of such 

member. In the event a member and his 

or her alternate are absent from a 

meeting of the Board, such member may 

designate, in writing and prior to the 

meeting, another alternate to act in his 

or her place: Provided, that such 

alternate represents the same group 

(grower or handler) as the member and 

is not from the same sales constituency 

as another acting member or acting 

alternate member in that district. In the 

event of the death, removal, resignation 

or disqualification of a member, the 

alternate shall act for the member until 

a successor is appointed and has 

qualified. 

(b) Alternate members may be from 

the same sales constituency as the 

member for whom they serve as an 

alternate. In the event a member and his 

or her alternate are absent from a 

meeting of the Board, another alternate 

may act for the member following the 

requirements of § 930.28(a), provided 

this does not create a sales constituency 

conflict with the other members of that 

district. 

(c) The Board, with the approval of 

the Secretary, may establish rules and 

regulations necessary and incidental to 

the administration of this section. 

■ 6. Amend § 930.52 by revising 

paragraphs (a) and (d) to read as follows: 

§ 930.52 Establishment of districts subject 

to volume regulations. 

(a) The districts in which handlers 

shall be subject to any volume 

regulations implemented in accordance 

with this part shall be those districts in 

which the average annual production of 

cherries over the prior 5 years has 

exceeded 6 million pounds. Handlers 

shall become subject to volume 

regulation implemented in accordance 

with this part in the crop year that 

follows any 5-year period in which the 

6-million-pound average production 

requirement is exceeded in that district. 

* * * * * 

(d) Any district producing a crop 

which is less than 50 percent of the 

average annual production in that 

district in the previous 5 years would be 

exempt from any volume regulation if, 

in that year, a restricted percentage is 

established. 

* * * * * 

■ 7. Amend § 930.62 by revising the 

introductory text of paragraph (a) to 

read as follows: 

§ 930.62 Exempt uses. 

(a) The Board, with the approval of 

the Secretary, may exempt from the 

provisions of §§ 930.41, 930.44, 930.51, 

930.53, or 930.55 through 930.57 

cherries for designated uses. Such uses 

may include, but are not limited to: 

* * * * * 

Erin Morris, 

Associate Administrator, Agricultural 

Marketing Service. 

[FR Doc. 2023–26396 Filed 12–1–23; 8:45 am] 

BILLING CODE P 

DEPARTMENT OF ENERGY 

10 CFR Chapter III 

RIN 1901–ZA02 

Interpretation of Foreign Entity of 

Concern 

AGENCY: Office of Manufacturing and 

Energy Supply Chains (MESC), U.S. 

Department of Energy. 

ACTION: Notification of proposed 

interpretive rule; request for comments. 

SUMMARY: The U.S. Department of 

Energy (DOE or the Department) 

provides this notification of proposed 

interpretive rule and request for public 

comment on its interpretation of the 

statutory definition of ‘‘foreign entity of 

concern’’ (FEOC) in the Infrastructure 

Investment and Jobs Act, also known as 

the Bipartisan Infrastructure Law (BIL). 

This statutory definition provides that, 

among other criteria, a foreign entity is 

a FEOC if it is ‘‘owned by, controlled by, 

or subject to the jurisdiction or direction 

of a government of a foreign country 

that is a covered nation.’’ In this 

document, DOE proposes to clarify the 

term ‘‘foreign entity of concern’’ by 

providing interpretations of the 

following key terms: ‘‘government of a 

foreign country;’’ ‘‘foreign entity;’’ 

‘‘subject to the jurisdiction;’’ and 

‘‘owned by, controlled by, or subject to 

the direction of.’’ 

DATES: DOE invites stakeholders to 

submit written comments on its 

interpretation. DOE will accept 

comments, data, and information 

regarding this interpretation no later 

than January 3, 2024. Only comments 

received through one of the methods 

described in the ADDRESSES section will 

be accepted. 

ADDRESSES: Interested persons are 

encouraged to submit comments using 

the Federal eRulemaking Portal at 

www.regulations.gov. Follow the 

instructions for submitting comments 

for RIN 1901–ZA02. 

Alternatively, interested persons may 

submit comments, including comments 

containing information for which 

disclosure is restricted by statute, such 

as trade secrets and commercial or 


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