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

5646 

Vol. 72, No. 25 

Wednesday, February 7, 2007 

DEPARTMENT OF AGRICULTURE 

Agricultural Marketing Service 

7 CFR Part 930 

[Docket No. AO–322–A7; AMS–FV–06–0213; 

FV07–930–2] 

Tart Cherries Grown in the States of 

Michigan, New York, Pennsylvania, 

Oregon, Utah, Washington, and 

Wisconsin; Hearing on Proposed 

Amendment of Marketing Agreement 

and Order No. 930 

AGENCY: Agricultural Marketing Service, 

USDA. 

ACTION: Notice of hearing on proposed 

rulemaking. 

SUMMARY: Notice is hereby given of a 

public hearing to receive evidence on 

proposed amendments to Marketing 

Agreement and Order No. 930 (order), 

which regulate the handling of tart 

cherries grown in Michigan, New York, 

Pennsylvania, Oregon, Utah, 

Washington, and Wisconsin. Seven 

amendments are proposed by the Cherry 

Industry Administrative Board (Board), 

which is responsible for local 

administration of the order. These 

proposed amendments would: 

Authorize changing the primary reserve 

capacity associated with the volume 

control provisions of the order; 

authorize establishment of a minimum 

inventory level at which all remaining 

product held in reserves would be 

released to handlers for use as free 

tonnage; establish an age limitation on 

product placed into reserves; revise the 

voting requirements necessary to 

approve a Board action; revise the 

nomination and election process for 

handler members on the Board; revise 

Board membership affiliation 

requirements; and update order 

language to more accurately reflect 

grower and handler participation in the 

nomination and election process in 

Districts with only one Board 

representative. In addition, the 

Agricultural Marketing Service (AMS) 

proposes to make any such changes as 

may be necessary to the order or 

administrative rules and regulations to 

conform to any amendment that may 

result from the hearing. The proposals 

are intended to provide additional 

flexibility in administering the volume 

control provisions of the order, and to 

update Board nomination, election, and 

membership requirements. These 

proposed amendments are intended to 

improve the operation and 

administration of the order. 

DATES: The hearing dates are: 

1. February 21, 2007, 9 a.m. to 5 p.m.; 

and continuing on February 22, 2007, at 

9 a.m., if necessary, in Grand Rapids, 

Michigan. 

2. March 1, 2007, 9 a.m. to 5 p.m.; and 

continuing on March 2, 2007, at 9 a.m., 

if necessary, in Provo, Utah. 

ADDRESSES: The hearing locations are: 

1. Grand Rapids—U.S. Bankruptcy 

Court, One Division Ave., N, 3rd Floor 

Courtroom C, Grand Rapids, MI 49503. 

2. Provo—Utah County 

Administration Building, 100 E. Center 

Street, Room L900, Provo, Utah 84606. 

FOR FURTHER INFORMATION CONTACT: 

Martin Engeler, Marketing Order 

Administration Branch, Fruit and 

Vegetable Programs, AMS, USDA, 2202 

Monterey Street, Fresno, California 

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

(559) 487–5906; or Kathleen M. Finn, 

Marketing Order Administration 

Branch, Fruit and Vegetable Programs, 

AMS, USDA, 1400 Independence 

Avenue, SW., Stop 0237, Washington, 

DC 20250–0237; telephone: (202) 720– 

2491, Fax: (202) 720–8938, or E-mail: 

Martin.Engeler@usda.gov or 

Kathy.Finn@usda.gov. 

Small businesses may request 

information on this proceeding by 

contacting Jay Guerber, Marketing Order 

Administration Branch, Fruit and 

Vegetable Programs, AMS, USDA, 1400 

Independence Avenue, SW., Stop 0237, 

Washington, DC 20250–0237; telephone: 

(202) 720–2491, Fax: (202) 720–8938, or 

E-mail: Jay.Guerber@usda.gov. 

SUPPLEMENTARY INFORMATION: This 

administrative action is instituted 

pursuant to the Agricultural Marketing 

Agreement Act of 1937, as amended (7 

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

as the ‘‘Act.’’ This action is governed by 

the provisions of sections 556 and 557 

of title 5 of the United States Code and, 

therefore, is excluded from the 

requirements of Executive Order 12866. 

The Regulatory Flexibility Act (5 

U.S.C. 601 et seq.) seeks to ensure that 

within the statutory authority of a 

program, the regulatory and 

informational requirements are tailored 

to the size and nature of small 

businesses. Interested persons are 

invited to present evidence at the 

hearing on the possible regulatory and 

informational impacts of the proposals 

on small businesses. 

The amendments proposed herein 

have been reviewed under Executive 

Order 12988, Civil Justice Reform. They 

are not intended to have retroactive 

effect. If adopted, the proposed 

amendments would not preempt any 

State or local laws, regulations, or 

policies, unless they present an 

irreconcilable conflict with the 

proposals. 

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. 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 the 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 hearing is called pursuant to the 

provisions of the Act and the applicable 

rules of practice and procedure 

governing the formulation of marketing 

agreements and orders (7 CFR part 900). 

The proposed amendments were 

recommended by the Board and initially 

submitted to USDA on December 16, 

2005. Additional information was 

submitted in June 2006 at the request of 

USDA and a determination was 

subsequently made to schedule this 

matter for hearing. 

The proposed amendments to the 

order recommended by the Board are 

summarized as follows: 

1. Amend § 930.50 of the order to 

authorize changing the primary reserve 

capacity associated with the volume 

control provisions of the order. 


erjones on PRODPC74 with PROPOSALS
Federal Register / Vol. 72, No. 25 / Wednesday, February 7, 2007 / Proposed Rules 5647 

2. Amend § 930.54 of the order to 

authorize establishment of a minimum 

inventory level at which all remaining 

product held in reserves would be 

released to handlers for use as free 

tonnage. 

3. Amend § 930.55 to establish an age 

limitation on product placed into 

reserves. 

4. Amend § 930.32 to revise the voting 

requirements necessary to approve a 

Board action. 

5. Amend § 930.23 to revise the 

nomination and election process for 

handler members on the Board. 

6. Amend § 930.20 to revise Board 

membership affiliation requirements. 

7. Amend § 930.23 to update order 

language to more accurately reflect 

grower and handler participation in the 

nomination and election process in 

Districts with only one Board 

representative. 

The Board works with USDA in 

administering the order. These 

proposals submitted by the Board have 

not received the approval of USDA. The 

Board believes that its proposed changes 

would provide additional flexibility in 

administering the volume control 

provisions of the order, and would 

update the nomination, election, and 

membership requirements for the Board. 

The proposed amendments are intended 

to improve the operation and 

administration of the order. 

In addition to the proposed 

amendments to the order, AMS 

proposes to make any such changes as 

may be necessary to the order or 

administrative rules and regulations to 

conform to any amendment that may 

result from the hearing. 

The public hearing is held for the 

purpose of: (i) Receiving evidence about 

the economic and marketing conditions 

which relate to the proposed 

amendments of the order; (ii) 

determining whether there is a need for 

the proposed amendments to the order; 

and (iii) determining whether the 

proposed amendments or appropriate 

modifications thereof will tend to 

effectuate the declared policy of the Act. 

Testimony is invited at the hearing on 

all the proposals and recommendations 

contained in this notice, as well as any 

appropriate modifications or 

alternatives. 

All persons wishing to submit written 

material as evidence at the hearing 

should be prepared to submit four 

copies of such material at the hearing 

and should have prepared testimony 

available for presentation at the hearing. 

From the time the notice of hearing is 

issued and until the issuance of a final 

decision in this proceeding, USDA 

employees involved in the decisional 

process are prohibited from discussing 

the merits of the hearing issues on an ex 

parte basis with any person having an 

interest in the proceeding. The 

prohibition applies to employees in the 

following organizational units: Office of 

the Secretary of Agriculture; Office of 

the Administrator, AMS; Office of the 

General Counsel, except any designated 

employee of the General Counsel 

assigned to represent the Board in this 

proceeding; and the Fruit and Vegetable 

Programs, AMS. 

Procedural matters are not subject to 

the above prohibition and may be 

discussed at any time. 

List of Subjects in 7 CFR Part 930 

Marketing agreements, Reporting and 

recordkeeping requirements, Tart 

cherries. 

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. Testimony is invited on the 

following proposals or appropriate 

alternatives or modifications to such 

proposals. 

Proposals submitted by the Cherry 

Industry Administrative Board: 

Proposal Number 1 

3. Revise paragraph (i) of § 930.50 to 

read as follows: 

§ 930.50 Marketing policy. 

* * * * * 

(i) Restricted Percentages. Restricted 

percentage requirements established 

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

section may be fulfilled by handlers by 

either establishing an inventory reserve 

in accordance with § 930.55 or § 930.57 

or by diversion of product in accordance 

with § 930.59. In years where required, 

the Board shall establish a maximum 

percentage of the restricted quantity 

which may be established as a primary 

inventory reserve such that the total 

primary inventory reserve does not 

exceed 50 million pounds; Provided, 

That such 50 million pound quantity 

may be changed upon recommendation 

of the Board and approval of the 

Secretary. Any such change shall be 

recommended by the Board on or before 

September 30 of any crop year to 

become effective for the following crop 

year, and the quantity may be changed 

no more than one time per crop year. 

Handlers will be permitted to divert (at 

plant or with grower diversion 

certificates) as much of the restricted 

percentage requirement as they deem 

appropriate, but may not establish a 

primary inventory reserve in excess of 

the percentage established by the Board 

for restricted cherries. In the event 

handlers wish to establish inventory 

reserve in excess of this amount, they 

may do so, in which case it may be 

classified as a secondary inventory 

reserve and will be regulated 

accordingly. 

* * * * * 

Proposal Number 2 

4. Add a new paragraph (d) to 

§ 930.54 to read as follows: 

§ 930.54 Prohibition on the use or 

disposition of inventory reserve cherries. 

* * * * * 

(d) Should the volume of cherries 

held in the primary inventory reserves 

and, subsequently, the secondary 

inventory reserves reach a minimum 

amount, which level will be established 

by the Secretary upon recommendation 

from the Board, the products held in the 

respective reserves shall be released 

from the reserves and made available to 

the handlers as free tonnage. 

Proposal Number 3 

5. Revise paragraph (b) of § 930.55 to 

read as follows: 

§ 930.55 Primary inventory reserves. 

* * * * * 

(b) The form of the cherries, frozen, 

canned in any form, dried, or 

concentrated juice, placed in the 

primary inventory reserve is at the 

option of the handler. The product(s) 

placed by the handler in the primary 

inventory reserve must have been 

produced in either the current or the 

preceding two crop years. Except as may 

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

permitted pursuant to §§ 930.59 and 

930.62, such inventory reserve portion 

shall be equal to the sum of the products 

obtained by multiplying the weight or 

volume of the cherries in each lot of 

cherries acquired during the fiscal 

period by the then effective restricted 

percentage fixed by the Secretary; 

Provided, That in converting cherries in 

each lot to the form chosen by the 

handler, the inventory reserve 

obligations shall be adjusted in 

accordance with uniform rules adopted 

by the Board in terms of raw fruit 

equivalent. 

* * * * * 

Proposal Number 4 

6. Revise paragraph (a) of § 930.32 to 

read as follows: 


erjones on PRODPC74 with PROPOSALS
5648 Federal Register / Vol. 72, No. 25 / Wednesday, February 7, 2007 / Proposed Rules 

§ 930.32 Procedure. 

(a) Two-thirds (2⁄3) of the members of 

the Board, including alternates acting 

for absent members, shall constitute a 

quorum. For any action of the Board to 

pass, at least two-thirds (2⁄3) of those 

present at the meeting must vote in 

support of such action. 

* * * * * 

Proposal Number 5 

7. Revise paragraph (b)(2), redesignate 

paragraph (c)(3) as paragraph (c)(3)(i) 

and add a new paragraph (c)(3)(ii) to 

§ 930.23 to read as follows: 

§ 930.23 Nomination and election. 

* * * * * 

(b) * * * 

(2) In order for the name of a handler 

nominee to appear on an election ballot, 

the nominee’s name must be submitted 

with a petition form, to be supplied by 

the Secretary or the Board, which 

contains the signature of one or more 

handler(s), other than the nominee, from 

the nominee’s district who is or are 

eligible to vote in the election and that 

handle(s) a combined total of no less 

than five percent (5%) of the average 

production, as that term is used in 

§ 930.20, handled in the district. 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. 

* * * * * 

(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 average production, 

as that term is used in § 930.20, handled 

in the district. 

* * * * * 

Proposal Number 6 

8. Revise paragraph (g) of § 930.20 to 

read as follows: 

§ 930.20 Establishment and membership. 

* * * * * 

(g) In order to achieve a fair and 

balanced representation on the Board, 

and to prevent any one sales 

constituency from gaining control of the 

Board, not more than one Board member 

may be from, or affiliated with, a single 

sales constituency in those districts 

having more than one seat on the Board; 

Provided, That this prohibition shall not 

apply in a district where such a conflict 

cannot be avoided. There is, however, 

no prohibition on the number of Board 

members from differing districts that 

may be elected from a single sales 

constituency which may have 

operations in more than one district. 

However, as provided in § 930.23, a 

handler or grower may only nominate 

Board members and vote in one district. 

* * * * * 

Proposal Number 7 

9. Revise paragraphs (b)(5) and (c)(4) 

of § 930.23 to read as follows: 

§ 930.23 Nomination and election. 

* * * * * 

(b) * * * 

(5) In districts entitled to only one 

Board member, both growers and 

handlers may be nominated for the 

district’s Board seat. Grower and 

handler nominations must follow the 

petition procedures outlined in 

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

section. 

* * * * * 

(c) * * * 

(4) In districts entitled to only one 

Board member, growers and handlers 

may vote for either the grower or 

handler nominee(s) for the single seat 

allocated to those districts. 

* * * * * 

Proposal submitted by USDA: 

Proposal Number 8 

Make such changes as may be 

necessary to the order to conform with 

any amendment thereto that may result 

from the hearing. 

Dated: February 5, 2007. 

Lloyd C. Day, 

Administrator, Agricultural Marketing 

Service. 

[FR Doc. 07–549 Filed 2–5–07; 10:43 am] 

BILLING CODE 3410–02–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration, National Marine 

Fisheries Service 

50 CFR Part 223 

[Docket No. [070123015–7015–01; I.D. 

052104F] 

RIN 0648–AV18 

Endangered and Threatened Species: 

Proposed Protective Regulations 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Proposed rule; request for 

comments; notice of availability of a 

draft environmental assessment. 

SUMMARY: We, NMFS, are proposing to 

issue protective regulations under 

section 4(d) of the Endangered Species 

Act (ESA) for a distinct population 

segment (DPS) of steelhead in Puget 

Sound, Washington, presently proposed 

for listing as a threatened species. The 

4(d) regulations prohibit the take of 

listed species, unless a ‘‘limit’’ applies 

for specified categories of activities 

determined to be adequately protective 

of listed salmonids. In addition, we are 

announcing the availability of an 

environmental assessment (EA) that 

analyzes the impacts of promulgating 

these 4(d) regulations. We are furnishing 

this notification to allow other agencies 

and the public an opportunity to review 

and comment on the draft EA. All 

comments received will become part of 

the public record and will be available 

for review. 

DATES: Comments on this proposed rule 

and the draft EA must be received by no 

later than 5 p.m. P.S.T. on March 9, 

2007. (See ADDRESSES). 

ADDRESSES: Comments may be 

submitted by mail to Chief, Protected 

Resources Division, NMFS, 1201 NE 

Lloyd Blvd - Suite 1100, Portland, OR 

97232–1274. Comments may be 

submitted by e-mail to 

salmon.nwr@noaa.gov. Include in the 

subject line of the e-mail the following 

document identifier: [070123015–7015– 

01]. Comments may also be submitted 

via facsimile (fax) to 503–230–5441, or 

via the Internet through the Federal eRulemaking portal at http:// 

www.regulations.gov. The draft EA and 

other information regarding Pacific 

salmon and steelhead can be found at 

http://www.nwr.noaa.gov/ESA-SalmonRegulations-Permits/4d-Rules/. 

FOR FURTHER INFORMATION CONTACT: For 

further information regarding this 

proposed rule contact Steve Stone, 

NMFS, Northwest Region, (503) 231– 

2317; or Marta Nammack, NMFS, Office 

of Protected Resources, (301) 713–1401. 

SUPPLEMENTARY INFORMATION: 

Background 

Regulatory Authority 

NMFS is responsible for determining 

whether species, subspecies, or distinct 

population segments (DPSs) of most 

marine and anadromous species warrant 

listing as threatened or endangered 

under the ESA (16 U.S.C. 1531 et seq.). 

For species listed as endangered, section 

9(a) of the ESA prohibits activities that 

result in take. Under the ESA the term 

‘‘take’’ means to harass, harm, pursue, 

hunt, shoot, wound, kill, trap, capture, 

or collect, or to attempt to engage in any 

such conduct. Activities that may harm 


erjones on PRODPC74 with PROPOSALS