Unknown. Final rule

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--- schema: federal-register doc_type: fedreg source_file: FR-2011-10-21.xml --- 76 204 Friday, October 21, 2011 Contents Agricultural Marketing Agricultural Marketing Service RULES Suspension of Marketing Order Provisions: Irish Potatoes Grown in Southeastern States, 65360-65362 2011-27275 Suspension of Order Regulations Regarding Random Row Diversion: Tart Cherries Grown in Michigan, New York, Pennsylvania, Oregon, Utah, Washington, and Wisconsin, 65357-65360 2011-27276 PROPOSED RULES Specialty Crops:

Pistachio Import Requirements, 65411-65419 2011-27285 Agriculture Agriculture Department See Agricultural Marketing Service See Commodity Credit Corporation Antitrust Division Antitrust Division NOTICES National Cooperative Research and Production Act of 1993: IMS Global Learning Consortium, Inc., 65536 C1--2011--26426 Blind or Severely Disabled, Committee for Purchase From People Who Are See Committee for Purchase From People Who Are Blind or Severely Disabled Bureau of Ocean Energy Management NOTICES Agency Information Collection Activities;

Proposals, Submissions, and Approvals: Geological and Geophysical Explorations of the Outer Continental Shelf, 65521-65524 2011-27331 Centers Disease Centers for Disease Control and Prevention NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 65512-65514 2011-27245 Centers Medicare Centers for Medicare & Medicaid Services NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 65514-65516 2011-27300 2011-27301 Coast Guard Coast Guard RULES Drawbridge Operations:

Passaic River, Harrison, NJ, 65375-65376 2011-26549 Regulated Navigation Areas: Chelsea Street Bridge Construction, Chelsea, MA, 65376-65378 2011-27126 Safety Zones: 2011 Head of the South Regatta, Savannah River, Augusta, GA, 65380-65382 2011-27259 The Florida Orchestra Pops in the Park Fireworks Display, Tampa Bay, St. Petersburg, FL, 65378-65380 2011-27258 Commerce Commerce Department See Foreign-Trade Zones Board See International Trade Administration See National Oceanic and Atmospheric Administration NOTICES Agency Information Collection Activities;

Proposals, Submissions, and Approvals, 65494-65495 2011-27254 Committee for Purchase Committee for Purchase From People Who Are Blind or Severely Disabled NOTICES Procurement List; Additions and Deletions, 65501 2011-27273 Procurement List; Proposed Additions and Deletions, 65501-65502 2011-27274 Commodity Credit Commodity Credit Corporation NOTICES Environmental Assessments; Availability, etc.: Giant Miscanthus in REPREVE Renewables, LLC Project Areas under the Biomass Crop Assistance Program, 65493-65494 2011-27339 Defense Department Defense Department NOTICES Agency Information Collection Activities;

Proposals, Submissions, and Approvals: Buy American—Construction, 65510 2011-27333 Drug Drug Enforcement Administration RULES Schedules of Controlled Substances: Temporary Placement of Three Synthetic Cathinones Into Schedule I, 65371-65375 2011-27282 PROPOSED RULES Schedules of Controlled Substances: Placement of Ezogabine into Schedule V, 65424-65428 2011-27253 NOTICES Controlled Substances: Proposed Aggregate Production Quotas for 2012, 65537-65540 2011-27283 Education Education Department NOTICES Agency Information Collection Activities;

Proposals, Submissions, and Approvals, 65502-65503 2011-27341 2011-27342 Performance Review Board Membership, 65503 2011-27336 Energy Department Energy Department See Federal Energy Regulatory Commission See National Nuclear Security Administration RULES Energy Conservation Program: Compliance Date Regarding the Test Procedures for Walk-In Coolers and Freezers and the Certification for Metal Halide Lamp Ballasts and Fixtures, 65362-65365 2011-27154 NOTICES Extension of Comment Period:

International Transmission Company, d/b/a ITCTransmission, 65503-65504 2011-27278 Environmental Protection Environmental Protection Agency RULES Fuel and Fuel Additives: Alternative Test Method for Olefins in Gasoline, 65382-65385 2011-27219 Testing of Certain High Production Volume Chemicals: Third Group of Chemicals, 65385-65410 2011-27227 PROPOSED RULES Approval and Promulgation of Implementation Plans; Designation of Areas for Air Quality Planning Purposes: Kentucky; Redesignation of the Kentucky Portion of the Cincinnati-Hamilton 1997 Annual Fine Particulate Area, 65458-65472 2011-26773 Certain High Production Volume Chemicals:

Test Rule and Significant New Use Rule; Fourth Group of Chemicals, 65580-65608 2011-26894 National Pollutant Discharge Elimination System Concentrated Animal Feeding Operation Reporting, 65431-65458 2011-27189 NOTICES Environmental Impact Statements; Availability, etc.: Weekly Receipt, 65509-65510 2011-27284 Executive Office of the President See Trade Representative, Office of United States Federal Aviation Federal Aviation Administration PROPOSED RULES Airworthiness Directives:

Schempp-Hirth Flugzeugbau GmbH Gliders, 65421-65424 2011-27267 SOCATA Airplanes, 65419-65421 2011-27264 Federal Communications Federal Communications Commission PROPOSED RULES Review of Foreign Ownership Policies for Common Carrier and Aeronautical Radio Licensees, 65472-65485 2011-26826 Federal Energy Federal Energy Regulatory Commission NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 65504-65505 2011-27225 Applications: Consolidated Water Power Co., 65506-65507 2011-27228 Pacific Gas and Electric Co., 65506 2011-27229 Filings:

Crosstex LIG, LLC, 65507 2011-27230 Petitions for Rate Approval: Eagle Ford Midstream, LP, 65507-65508 2011-27231 Requests under Blanket Authorization: Northwest Pipeline GP, 65508 2011-27226 Federal Highway Federal Highway Administration NOTICES Multistate Corridor Operations and Management Program, 65561-65562 2011-27249 Federal Reserve Federal Reserve System NOTICES Proposals to Engage in or to Acquire Companies Engaged in Permissible Nonbanking Activities, 65510 2011-27238 Fish Fish and Wildlife Service NOTICES Environmental Assessments;

Availability, etc.: Huron, Madison, and Sand Lake Wetland Management District Comprehensive Conservation Plan, 65525-65526 2011-27263 Environmental Impact Statements; Availability, etc.: Proposed Demolition of the Ballville Dam on the Sandusky River, Fremont, OH, 65526-65527 2011-27244 Yolo County, CA, Habitat Conservation Plan/Natural Community Conservation Plan, 65527-65529 2011-27266 Foreign Assets Foreign Assets Control Office NOTICES Unblocking of One Specially Designated National or Blocked Person Pursuant to Executive Order 13315, 65562-65563 2011-27248 Foreign Trade Foreign-Trade Zones Board NOTICES Grants of Authority for Subzone Status:

Cabela's Inc., Prairie Du Chien, WI, 65495-65496 2011-27298 Cabela's Inc., Sidney, NE, 65495 2011-27296 Cabela's Inc., Triadelphia, WV, 65495 2011-27297 Reorganizations Under Alternative Site Framework: Foreign-Trade Zone 119, Minneapolis/St. Paul, MN, 65496 2011-27299 General Services General Services Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Buy American—Construction, 65510 2011-27333 Meetings: Green Building Advisory Committee, 65511-65512 2011-27347 President's Management Advisory Board, 65511 2011-27335 Record of Decision:

DHS Headquarters Consolidation at St. Elizabeths in Southeast, Washington, DC, 65512 2011-27349 Geological Geological Survey NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 65529-65530 2011-27268 Health and Human Health and Human Services Department See Centers for Disease Control and Prevention See Centers for Medicare & Medicaid Services See National Institutes of Health See Substance Abuse and Mental Health Services Administration Homeland Homeland Security Department See Coast Guard See U.S.

Customs and Border Protection Housing Housing and Urban Development Department NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Construction Complaint -- Request for Financial Assistance, 65519-65520 2011-27334 Federal Properties Suitable as Facilities to Assist Homeless, 65520-65521 2011-26924 Interior Interior Department See Bureau of Ocean Energy Management See Fish and Wildlife Service See Geological Survey See Land Management Bureau International Trade Adm International Trade Administration NOTICES Antidumping Duty Administrative Reviews;

Extension of Time Limits for Preliminary Results: Certain Orange Juice from Brazil, 65496-65497 2011-27295 Antidumping Duty Administrative Reviews; Preliminary Results: Freshwater Crawfish Tail Meat From the People's Republic of China, 65497 C1--2011--26069 Countervailing Duty Administrative Review Pursuant to Court Decision; Amended Final Results: Certain Hot-Rolled Carbon Steel Flat Products from India, 65497-65498 2011-27292 Executive-led Business Development Mission to Kabul, Afghanistan, 65498-65500 2011-27302 Justice Department Justice Department See Antitrust Division See Drug Enforcement Administration See Prisons Bureau NOTICES Lodging of Modification of Consent Decrees Under the Resource Conservation and Recovery Act, 65534-65535 2011-27260 Privacy Act of 1974;

System of Records, 65535-65536 2011-27281 Land Land Management Bureau NOTICES Alaska Native Claims Selections, 65530-65531 2011-27269 2011-27271 Environmental Impact Statements; Availability, etc.: North Steens Transmission Line Project in Harney County, OR, 65531-65532 2011-27146 Proposed Sonoran Solar Energy Project, Maricopa County, AZ, 65532-65533 2011-27272 Filings of Plats of Survey: Eastern States, 65533-65534 2011-27265 Requests for Nominations: Pinedale Anticline Working Group, Wyoming, 65534 2011-27270 NASA National Aeronautics and Space Administration NOTICES Agency Information Collection Activities;

Proposals, Submissions, and Approvals: Buy American—Construction, 65510 2011-27333 Meetings: Audit, Finance, and Analysis Committee, 65540 2011-27329 NASA Advisory Council; Cancellation, 65540-65541 2011-27311 National Space-Based Positioning, Navigation, and Timing Advisory Board, 65540 2011-27256 National Highway National Highway Traffic Safety Administration PROPOSED RULES Petition for Approval of Alternate Odometer Disclosure Requirements, 65485-65492 2011-27089 National Institute National Institutes of Health NOTICES Meetings:

Eunice Kennedy Shriver National Institute of Child Health and Human Development, 65516-65517 2011-27303 2011-27304 2011-27306 2011-27307 National Institute on Drug Abuse, 65517-65518 2011-27293 2011-27294 Prospective Grants of Exclusive Licenses: Development of a Companion Diagnostic Kit for Predicting Therapeutic Efficacy of Anti-cancer Agents, 65518-65519 2011-27308 National Nuclear National Nuclear Security Administration NOTICES Environmental Impact Statements; Availability, etc.:

Continued Operation of the Nevada National Security Site and Off-Site Locations in the State of Nevada, 65508-65509 2011-27287 National Oceanic National Oceanic and Atmospheric Administration PROPOSED RULES Fagatele Bay National Marine Sanctuary; Expansion, Name Change, 65566-65577 2011-27007 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Highly Migratory Species Permit Family of Forms, 65500 2011-27251 Public Workshops: Fisheries of the Exclusive Economic Zone Off Alaska;

Recordkeeping and Reporting Requirements, 65500-65501 2011-27345 Nuclear Regulatory Nuclear Regulatory Commission NOTICES Assuring the Availability of Funds for Decommissioning Nuclear Reactors, 65541 2011-27338 Environmental Assessments, Availability, etc.: Zion Nuclear Power Station, Lake County, IL, 65541-65542 2011-27332 Exemption from Certain Security Requirements: N.S. Savannah, 65542-65544 2011-27279 Standard Format and Content of License Applications for Mixed Oxide Fuel Fabrication Facilities, 65544-65545 2011-27343 Office of United States Trade Representative See Trade Representative, Office of United States Personnel Personnel Management Office NOTICES Revision of Standard Form 1152, Unpaid Compensation of Deceased Civilian Employee, 65545 2011-27255 Postal Regulatory Postal Regulatory Commission NOTICES Post Office Closings, 65545-65546 2011-27247 Prisons Prisons Bureau PROPOSED RULES Classification and Program Review, 65428-65430 2011-27179 Securities Securities and Exchange Commission NOTICES Self-Regulatory Organizations;

Proposed Rule Changes: Financial Industry Regulatory Authority, Inc., 65546-65555 2011-27262 2011-27277 International Securities Exchange, LLC, 65555-65557 2011-27305 Small Business Small Business Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 65557 2011-27239 Disaster Declarations: Massachusetts, 65557-65558 2011-27242 Social Social Security Administration RULES Amendments to Procedures for Certain Determinations and Decisions, 65366-65371 2011-27236 NOTICES Rescission of Social Security Ruling 97-2p, 65558 2011-27234 State Department State Department NOTICES Culturally Significant Objects Imported for Exhibition Determinations:

Masterpieces of Landscape Painting from the Forbidden City, 65558-65559 2011-27288 Mummy; Secrets of the Tomb, 65559 2011-27289 Substance Substance Abuse and Mental Health Services Administration NOTICES Statement of Organization, Functions, and Delegations of Authority, 65519 2011-27235 Trade Representative Trade Representative, Office of United States NOTICES North American Free Trade Agreement; Invitation for Applications for Inclusion on the Chapter 19 Roster, 65559-65561 2011-27257 Transportation Department Transportation Department See Federal Aviation Administration See Federal Highway Administration See National Highway Traffic Safety Administration Treasury Treasury Department See Foreign Assets Control Office See United States Mint RULES U.S. - Oman Free Trade Agreement, 65365-65366 2011-27310 Customs U.S.

Customs and Border Protection RULES U.S. - Oman Free Trade Agreement, 65365-65366 2011-27310 U.S. Mint United States Mint NOTICES Pricing for 2011 American Eagle Silver Proof and Uncirculated Coins, 65563 2011-27250 Pricing for America the Beautiful Five Ounce Silver Uncirculated Coins, 65563 2011-27252 Veteran Affairs Veterans Affairs Department NOTICES Meetings: Genomic Medicine Program Advisory Committee, 65563 2011-27291 Separate Parts In This Issue Part II Commerce Department, National Oceanic and Atmospheric Administration, 65566-65577 2011-27007 Part III Environmental Protection Agency, 65580-65608 2011-26894 Reader Aids Consult the Reader Aids section at the end of this page for phone numbers, online resources, finding aids, reminders, and notice of recently enacted public laws.

To subscribe to the Federal Register Table of Contents LISTSERV electronic mailing list, go to http://listserv.access.gpo.gov and select Online mailing list archives, FEDREGTOC-L, Join or leave the list (or change settings); then follow the instructions. 76 204 Friday, October 21, 2011 Rules and Regulations DEPARTMENT OF AGRICULTURE Agricultural Marketing Service 7 CFR Part 930 [Doc. No. AMS-FV-11-0047; FV11-930-1 FR] Tart Cherries Grown in Michigan, New York, Pennsylvania, Oregon, Utah, Washington, and Wisconsin;

Suspension of Order Regulations Regarding Random Row Diversion AGENCY: Agricultural Marketing Service, USDA. ACTION: Final rule. SUMMARY: This rule changes the grower diversion regulations prescribed under the marketing order for tart cherries (order). The order regulates the handling of tart cherries grown in the States of Michigan, New York, Pennsylvania, Oregon, Utah, Washington, and Wisconsin and is administered locally by the Cherry Industry Administrative Board (Board).

This rule suspends indefinitely the regulations establishing random row as a method of grower diversion. With growers consistently choosing other diversion methods which offer more flexibility and fewer potential problems, the Board recommended this suspension to bring grower diversion requirements in line with current industry practices. DATES: *Effective Date:* October 22, 2011. FOR FURTHER INFORMATION CONTACT: Jennie M. Varela, Marketing Specialist, or Christian D. Nissen, Regional Manager, Southeast Marketing Field Office, Marketing Order and Agreement Division, Fruit and Vegetable Programs, AMS, USDA;

Telephone:

(863)324-3375, Fax:

(863)325-8793, or E-mail: *Jennie.Varela@ams.usda.gov* or *Christian.Nissen@ams.usda.gov.* Small businesses may request information on complying with this regulation by contacting Laurel May, Marketing Order Administration Branch, Fruit and Vegetable Programs, AMS, USDA, 1400 Independence Avenue, SW., STOP 0237, Washington, DC 20250-0237; Telephone:

(202)720-2491, Fax:

(202)720-8938, or E-mail: *Laurel.May@ams.usda.gov.* SUPPLEMENTARY INFORMATION: This final rule is issued under Marketing Agreement and Order No. 930, both as amended (7 CFR part 930), regulating the handling of tart cherries grown in Michigan, New York, Pennsylvania, Oregon, Utah, Washington, and Wisconsin, hereinafter referred to as the “order.” The order is effective under the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), hereinafter referred to as the “Act.” The Department of Agriculture

(USDA)is issuing this rule in conformance with Executive Order 12866. This final rule 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 608c(15)(A) of the Act, any handler subject to an order may file with USDA a petition stating that the order, any provision of the order, or any obligation imposed in connection with the order is not in accordance with law and request a modification of the order or to be exempted therefrom. A handler is afforded the opportunity for a hearing on the petition. After the hearing, USDA would rule on the petition. The Act provides that the district court of the United States in any district in which the handler is an inhabitant, or has his or her principal place of business, has jurisdiction to review USDA's ruling on the petition, provided an action is filed not later than 20 days after the date of the entry of the ruling. This final rule changes the grower diversion regulations prescribed under the order. This rule suspends indefinitely the regulations establishing random row as a method of grower diversion. With growers consistently choosing other diversion methods which offer more flexibility and fewer potential problems, the Board recommended this suspension to bring grower diversion requirements in line with current industry practices. The Board unanimously recommended this action at a meeting on March 24, 2011. Section 930.58 of the order provides authority for voluntary grower diversion. Under volume regulation, growers can divert all or a portion of their cherries which otherwise, upon delivery to a handler, would be subject to regulation. Section 930.158 prescribes the rules and regulations for grower diversion, including the procedures and deadline dates for applying for diversion and the types of diversion available to growers. Currently, there are four types of grower diversion: Random row, whole block, partial block, and in-orchard tank. This rule suspends the portions of § 930.158 that provide random row as an option under grower diversion. The order contains volume control provisions that allow the industry to address fluctuations in production from season to season, helping to stabilize supplies and prices. When volume control is in effect, free and restricted percentages are established. Handlers can meet their restricted percentage obligation by placing cherries in inventory reserve, diverting cherries themselves, or redeeming grower diversion certificates. Under voluntary grower diversion, growers can divert cherries from production in exchange for Board issued grower diversion certificates stating the quantity diverted. Growers can then present these certificates to handlers who may redeem them as a method of complying with their restricted percentage obligation under volume regulation. By diverting cherries from production, growers can avoid the costs of harvesting and transporting fruit, reduce the supply, and mitigate the downward pressure on prices that result from oversupply. Following the promulgation of the order in 1996, the Board recommended regulations outlining two grower diversion options for the 1997 crop year, whole block and random row (63 FR 20019). Under whole block diversion, growers select entire orchard blocks to be left unharvested. With random row diversion, the Board randomly selects rows of trees the grower is to leave unharvested, providing growers with a way to divert a portion of an orchard rather than a whole orchard block. For the 1998 crop year and subsequent seasons, the grower diversion program was expanded to include two additional options, partial block and in-orchard tank diversions (63 FR 33523). Partial block diversion allows the grower to select a contiguous portion of an orchard block that will be left unharvested. With in-orchard tank diversion, cherries are harvested into tanks, the volume is calculated, and then diverted in the orchard. The addition of these options provided growers with greater flexibility when considering diversion, and marked a substantial decline in the use of random row. For the last ten years, random row has been the least utilized grower diversion option, and accounted for less than three percent of total grower diversion during the last three seasons. During the discussion of this issue, the Board noted several issues that have contributed to the nominal use of random row as a grower diversion option. Random row diversion is the least flexible of grower diversion options in terms of quality control. When a grower selects a whole block or partial block to divert, the grower controls which fruit will be harvested and which trees will be left unharvested. Similarly, under in-orchard tank diversion, the grower determines what fruit is picked and stored in the tanks for diversion. Consequently, these three methods allow the grower to incorporate quality into the decision of which cherries to divert. Delivering higher quality fruit not only brings the grower a greater return, but higher quality benefits the industry overall. Under the random row method of diversion, the diverted rows are selected randomly by the Board. This could result in the best quality fruit being left in the orchard, with lower quality fruit delivered to handlers, leading to lower grower returns. In addition to quality concerns, the logistics of random row also present particular challenges to the grower. With the exception of in-orchard tank diversion, all grower diversion methods require the grower to submit an orchard map to the Board. The burden of having to keep orchard maps precisely up-to-date is borne by growers. The random selection of rows by the Board places additional importance on the accuracy and precision of submitted maps. Inaccurate maps can lead to harvesting errors, with rows selected for diversion being inadvertently harvested. Even if maps are kept current, diverting random rows during harvest can be challenging. While whole and partial block diversions allow growers to leave contiguous areas unharvested, random row diversions require that specified rows be left unharvested, increasing the likelihood of error. Further, given the prevalence of contract harvesting, workers are often unfamiliar with the orchards they are harvesting, and mistakes are made in identifying the specific rows to be left unharvested. The greater potential for error during harvesting is of major concern to growers because penalties for errors in random row diversion are costly. If a grower discovers an error during harvest, two trees must be left unharvested for every one of the trees improperly harvested in order to remain in compliance, with the grower only receiving the original diversion amount. If the grower reports an error at the end of harvesting, a reduced diversion amount is calculated. If an unreported error is discovered by the Board after harvesting is complete, no diversion certificate would be issued. In addition to the issues affecting grower interest in this option, the Board also has concerns regarding the use of random row diversion. Specifically, the Board is concerned about the potential for miscalculations or misuse that could lead to overstated diversion amounts. Random row diversion differs from the other options in that the diverted tonnage receiving certificates is calculated based on volume delivered from the orchard. In contrast, whole and partial block diversions involve sampling trees in the selected area to determine the volume being diverted before harvest takes place, and in-orchard tank diversion is determined by the actual volume measured in the tanks. Calculating the diverted volume after delivery creates opportunity for error. It can be difficult to determine if the volume delivered to the handler all came from appropriately mapped groves, included in the grower's diversion application. With diversion calculations based on delivered volume, it is important that the volume only include cherries from those orchards in which random rows were diverted. Some growers care for and deliver fruit from orchards other than their own. There is concern that the handler accepting delivery could easily mistake how much volume came from the grower's own mapped orchards, resulting in the overstatement of the amount diverted. With the availability of other diversion options that offer the grower more flexibility and less potential problems, random row represents a very small percentage of total grower diversion. Further, with the higher potential for harvesting errors and for miscalculations of diversion amounts, the Board believes random row is the most problematic of the diversion options. Consequently, the Board unanimously recommended this action which suspends the regulations providing random row as a grower diversion option. The Board voted to suspend the regulations rather than eliminating them altogether in the event the industry would want to reinstate random row diversion in the future. Final Regulatory Flexibility Analysis Pursuant to requirements set forth in the Regulatory Flexibility Act

(RFA)(5 U.S.C. 601-612), the Agricultural Marketing Service

(AMS)has considered the economic impact of this action on small entities. Accordingly, AMS has prepared this final regulatory flexibility analysis. The purpose of the RFA is to fit regulatory actions to the scale of business subject to such actions in order that small businesses will not be unduly or disproportionately burdened. Marketing orders issued pursuant to the Act, and rules issued thereunder, are unique in that they are brought about through group action of essentially small entities acting on their own behalf. There are approximately 40 handlers of tart cherries who are subject to regulation under the marketing order and approximately 600 producers of tart cherries in the regulated area. Small agricultural service firms have been defined by the Small Business Administration

(SBA)as those having annual receipts of less than $7,000,000, and small agricultural producers are defined as those having annual receipts of less than $750,000 (13 CFR 121.201). According to the National Agricultural Statistics Service, and Board data, the average annual grower price for tart cherries during the 2009-2010 season was $0.197 per pound, and total shipments were around 227 million pounds. Therefore, average receipts for tart cherry producers were around $75,000, well below the SBA threshold for small producers. The Food Institute estimates an f.o.b. price of $0.84 per pound for frozen tart cherries, which make up the majority of processed tart cherries. Using this data, average annual handler receipts were about $4.8 million, also below the SBA threshold for small agricultural service firms. Assuming a normal distribution, the majority of producers and handlers of tart cherries may be classified as small entities. This action changes the grower diversion regulations prescribed under the order. This rule suspends indefinitely the regulations in § 930.158 establishing random row as a method of grower diversion. With growers consistently choosing other diversion methods which offer more flexibility and fewer potential problems, the Board recommended this suspension to bring grower diversion requirements in line with current industry practices. The authority for this action is provided for in § 930.58 of the order. The Board unanimously recommended this action at a meeting on March 24, 2011. This final rule will not impose any additional costs on growers. The grower diversion program under the order is completely voluntary. In an effort to stabilize supplies and prices, the tart cherry industry uses mechanisms under the order to attempt to bring supply and demand into balance. Under voluntary grower diversion, growers can divert cherries from production in exchange for Board issued grower diversion certificates stating the quantity diverted. Growers can then present these certificates to handlers who may redeem them as a method of complying with their restricted percentage obligation under volume regulation. By diverting cherries from production, growers can avoid the costs of harvesting and transporting fruit, reduce the supply, and mitigate the downward pressure on prices that result from oversupply. This action suspends only the regulations that provide random row as a method of grower diversion. The other three options, whole block, partial block, and in-orchard tank, remain unchanged by this action. Random row is the least utilized of the grower diversion options, with the other three options accounting for 97 percent of diversion volume. Consequently, this change brings the regulations in line with current industry preferences and practices. Further, the remaining grower diversion options offer the grower some flexibility to control quality, which in turn could increase grower returns. The effects of this rule are not expected to be disproportionately greater or less for small entities than for larger entities. One alternative action considered by the Board was to remove the regulations pertaining to random row diversion. However, the Board agreed that suspension would be the most appropriate action should the industry determine it would like to reinstate random row as a diversion option in the future. Thus, termination was rejected as an alternative. 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 MI, NY, PA, OR, UT, WA and WI. No changes in those requirements as a result of this action are necessary. Should any changes become necessary, they would be submitted to OMB for approval. This rule will not impose any additional reporting or recordkeeping requirements on either small or large tart cherry handlers. As with all Federal marketing order programs, reports and forms are periodically reviewed to reduce information requirements and duplication by industry and public sector agencies. As noted in the initial regulatory flexibility analysis, USDA has not identified any relevant Federal rules that duplicate, overlap or conflict with this final rule. Further, the public comments received concerning the proposal did not address the initial regulatory flexibility analysis. 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. In addition, the Board's meeting was widely publicized throughout the tart cherry industry and all interested persons were invited to attend the meeting and participate in Board deliberations on all issues. Like all Board meetings, the March 24, 2011, meeting was a public meeting and all entities, both large and small, were able to express views on this issue. A proposed rule concerning this action as published in the **Federal Register** on Monday, July 18, 2011 (76 FR 42072). Copies of the rule were mailed or sent via facsimile to all Board members and tart cherry handlers. Finally, the rule was made available through the Internet by USDA and the Office of the Federal Register. A 10-day comment period ending July 28, 2011, was provided to allow interested persons to respond to the proposal. One comment was received during the comment period. The commenter, a small grower, opposed the proposed change. The commenter claimed that random row diversion allows their operation to save time and labor. The commenter stated that by using random row they do not have to wait for weights and estimates for each load and it speeds up harvesting as the trees that are to remain unpicked are marked in advance. Grower diversion is a voluntary program established under the order. Growers can choose whether or not they want to participate. While this action suspends random row as an option under grower diversion, three options remain: whole block, partial block, and in-orchard tank. Of these options, whole block and partial block can be used similarly to random row by leaving segments of the grower's production unharvested. Further, like random row, weights and estimates of each load are not required and the trees that are to remain unharvested are determined in advance, so harvest speeds are not affected. In addition to having characteristics similar to random row, whole and partial block diversions also provide the grower with control over which trees will be left unharvested, allowing the grower some flexibility to control for quality. Accordingly, no changes will be made to the rule as proposed, based on the comment received. A small business guide on complying with fruit, vegetable, and specialty crop marketing agreements and orders may be viewed at: *http://www.ams.usda.gov/MarketingOrdersSmallBusinessGuide.* Any questions about the compliance guide should be sent to Laurel May at the previously mentioned address in the FOR FURTHER INFORMATION CONTACT section. After consideration of all relevant matter presented, including the information and recommendation submitted by the Board and other available information, it is hereby found that the provision suspended, as hereinafter set forth, no longer tends to effectuate the declared policy of the Act. It is further found that good cause exists for not postponing the effective date of this rule until 30 days after publication in the **Federal Register** (5 U.S.C. 553) because handlers are already processing tart cherries from the 2011 crop and the Board wants to implement this change as soon as possible. Further, handlers are aware of this rule, which was recommended at a public meeting. Also, a 10-day comment period was provided for in the proposed rule. List of Subjects in 7 CFR Part 930 Marketing agreements, Reporting and recordkeeping requirements, Tart Cherries. For the reasons set forth in the preamble, 7 CFR part 930 is amended as follows: PART 930—TART CHERRIES GROWN IN MICHIGAN, NEW YORK, PENNSYLVANIA, OREGON, UTAH, WASHINGTON, AND WISCONSIN 1. The authority citation for 7 CFR part 930 continues to read as follows: Authority: 7 U.S.C. 601-674. § 930.158 [Amended] 2. In § 930.158: A. Suspend paragraph (b)(1) indefinitely. B. In paragraph (c)(3), redesignate the first two sentences as paragraph (c)(3)(i) and the remaining sentences as paragraph (c)(3)(ii). C. Newly designated paragraph (c)(3)(ii) is suspended indefinitely. Dated: October 14, 2011. David R. Shipman, Acting Administrator, Agricultural Marketing Service. [FR Doc. 2011-27276 Filed 10-20-11; 8:45 am]

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