[Federal Register Volume 64, Number 121 (Thursday, June 24, 1999)]
[Rules and Regulations]
[Pages 33741-33743]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-16055]



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 Rules and Regulations
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  Federal Register / Vol. 64, No. 121 / Thursday, June 24, 1999 / Rules 
and Regulations  

[[Page 33741]]


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DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 923

[Docket No. FV99-923-1 IFR]


Sweet Cherries Grown in Designated Counties in Washington; Change 
in Pack Requirements

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Interim final rule with request for comments.

-----------------------------------------------------------------------

SUMMARY: This rule changes the pack requirements currently prescribed 
under the Washington cherry marketing order. The marketing order 
regulates the handling of sweet cherries grown in designated counties 
in Washington and is administered locally by the Washington Cherry 
Marketing Committee (Committee). This rule establishes two additional 
row count/row size designations for Washington cherries when containers 
destined for fresh market channels are marked with a row count/row size 
designation. The two additional row count/row size designations are 8 
row (\84/64\ inches in diameter) and 8\1/2\ row (\79/64\ inches in 
diameter). This change will allow the Washington cherry industry to 
further differentiate cherries by row count/row size. The change is 
intended to provide handlers more marketing flexibility, clarify the 
choices available to buyers, and improve returns to producers.

DATES: Effective June 25, 1999; comments received by August 23, 1999 
will be considered prior to issuance of a final rule.

ADDRESSES: Interested persons are invited to submit written comments 
concerning this rule. Comments must be sent to the Docket Clerk, Fruit 
and Vegetable Programs, AMS, USDA, Room 2525-S, P.O. Box 96456, 
Washington, DC 20090-6456; Fax: (202) 720-5698; or E-mail: 
[email protected]. All comments should reference the docket 
number and the date and page number of this issue of the Federal 
Register and will be made available for public inspection in the Office 
of the Docket Clerk during regular business hours.

FOR FURTHER INFORMATION CONTACT: Teresa L. Hutchinson, Northwest 
Marketing Field Office, Marketing Order Administration Branch, Fruit 
and Vegetable Programs, AMS, USDA, 1220 SW Third Avenue, Room 369, 
Portland, Oregon 97204-2807; telephone: (503) 326-2724, Fax: (503) 326-
7440; or George Kelhart, Technical Advisor, Marketing Order 
Administration Branch, Fruit and Vegetable Programs, AMS, USDA, Room 
2525-S, P.O. Box 96456, Washington, DC 20090-6456; telephone: (202) 
720-2491, Fax: (202) 720-5698. Small businesses may request information 
on complying with this regulation, or obtain a guide on complying with 
fruit, vegetable, and specialty crop marketing agreements and orders by 
contacting Jay Guerber, Marketing Order Administration Branch, Fruit 
and Vegetable Programs, AMS, USDA, P.O. Box 96456, Room 2525-S, 
Washington, DC 20090-6456; telephone: (202) 720-2491, Fax: (202) 720-
5698, or E-mail: Jay.G[email protected]. You may view the marketing 
agreement and order small business compliance guide at the following 
web site: http://www.ams.usda.gov/fv/moab.html.

SUPPLEMENTARY INFORMATION: This rule is issued under Marketing 
Agreement No. 134 and Marketing Order No. 923, both as amended (7 CFR 
part 923), regulating the handling of sweet cherries grown in 
designated counties in Washington, hereinafter referred to as the 
``order.'' The marketing agreement and order are effective under the 
Agricultural Marketing Agreement Act of 1937, as amended, (7 U.S.C. 
601-674), hereinafter referred to as the ``Act.''
    The Department of Agriculture (Department) is issuing this rule in 
conformance with Executive Order 12866.
    This rule has been reviewed under Executive Order 12988, Civil 
Justice Reform. This rule is not intended to have retroactive effect. 
This rule will not preempt any State or local laws, regulations, or 
policies, unless they present an irreconcilable conflict with this 
rule.
    The Act provides that administrative proceedings must be exhausted 
before parties may file suit in court. Under section 608c(15)(A) of the 
Act, any handler subject to an order may file with the Secretary a 
petition stating that the order, any provision of the order, or any 
obligation imposed in connection with the order is not in accordance 
with law and request a modification of the order or to be exempted 
therefrom. A handler is afforded the opportunity for a hearing on the 
petition. After the hearing the Secretary would rule on the petition. 
The Act provides that the district court of the United States in any 
district in which the handler is an inhabitant, or has his or her 
principal place of business, has jurisdiction to review the Secretary's 
ruling on the petition, provided an action is filed not later than 20 
days after the date of the entry of the ruling.
    This rule changes the pack requirements currently prescribed under 
the Washington cherry marketing order. This rule establishes two 
additional row count/row size designations for Washington cherries when 
containers destined for fresh market channels are marked with a row 
count/row size designation.
    Section 923.52 of the order authorizes the issuance of regulations 
for grade, size, quality, maturity, pack, and container for any variety 
or varieties of cherries grown in any district or districts of the 
production area during any period or periods. Section 923.53 further 
authorizes the modification, suspension, or termination of regulations 
issued under Sec. 923.52.
    Minimum grade, size, quality, maturity, container, and pack 
requirements for cherries regulated under the order are specified in 
Sec. 923.322. Paragraph (e) of that section provides that when 
containers of cherries are marked with a row count/row size designation 
the row count/row size marked shall be one of those shown in Column 1 
of the following table and at least 90 percent, by count, of the 
cherries in any lot shall be not smaller than the corresponding 
diameter shown in Column 2 of the table: Provided, That the content of 
individual containers in the lot are not limited as to the percentage 
of undersize; but the total of

[[Page 33742]]

undersize of the entire lot shall be within the tolerance specified.

                                  Table
------------------------------------------------------------------------
                                                               Column 2
                Column 1, row count/row size                   diameter
                                                               (inches)
------------------------------------------------------------------------
9..........................................................      \75/64\
9\1/2\.....................................................      \71/64\
10.........................................................      \67/64\
10\1/2\....................................................      \64/64\
11.........................................................      \61/64\
11\1/2\....................................................      \57/64\
12.........................................................      \54/64\
------------------------------------------------------------------------

    The Committee meets prior to and during each season to consider 
recommendations for modification, suspension, or termination of the 
regulatory requirements for Washington cherries which have been issued 
on a continuing basis. Committee meetings are open to the public and 
interested persons may express their views at these meetings. The 
Department reviews Committee recommendations and information submitted 
by the Committee and other available information, and determines 
whether modification, suspension, or termination of the regulatory 
requirements would tend to effectuate the declared policy of the Act.
    At its May 13, 1999, meeting, the Committee unanimously recommended 
changing the pack requirements currently prescribed under the 
Washington cherry marketing order. The Committee recommended 
establishing two additional row count/row size designations for 
Washington cherries when containers are marked with a row count/row 
size designation. The additional row count/row size designations 
recommended are 8 row (\84/64\ inches in diameter) and 8\1/2\ row (\79/
64\ inches in diameter). The Committee requested that this rule be 
effective as soon as possible as shipments of the 1999 Washington 
cherry crop may begin as early as mid-June.
    When the current row count/row sizes were modified in 1993, cherry 
sizes as large as 8 and 8\1/2\ row were not produced. The new varieties 
developed since that time tend to size larger. Further differentiation 
by row count/row size will allow handlers and producers to benefit from 
the extra effort and costs involved in producing and marketing larger 
sized cherries, and accrue the premium prices generally received for 
large-sized cherries.
    Price data during peak shipment periods shows an increase of $2 per 
container for each row count/row size designation increase. Therefore, 
it is anticipated that 8 row and 8\1/2\ row cherries will receive an 
additional $2 and $4 per container, respectively, over 9 row cherries. 
While the current percentage of larger cherries produced and shipped is 
small, the production of large-sized cherry varieties is trending 
upward.
    The largest row count/row size now designated is 9 row (\75/64\ 
inches in diameter). Hence, handlers marketing cherries larger than 9 
row are not able to differentiate their pack to receive the higher 
prices generally received for larger-sized cherries. The Committee 
believes that differentiation by row count/row size will provide 
handlers more marketing flexibility and clarify the choices available 
to buyers. By allowing handlers the opportunity to differentiate these 
cherries with the larger row count/row size designations, the Committee 
believes that producers' returns will improve.
    Pursuant to requirements set forth in the Regulatory Flexibility 
Act (RFA), the Agricultural Marketing Service (AMS) has considered the 
economic impact of this action on small entities. Accordingly, AMS has 
prepared this initial regulatory flexibility analysis.
    The purpose of the RFA is to fit regulatory actions to the scale of 
business subject to such actions in order that small businesses will 
not be unduly or disproportionately burdened. Marketing orders issued 
pursuant to the Act, and the rules issued thereunder, are unique in 
that they are brought about through group action of essentially small 
entities acting on their own behalf. Thus, both statutes have small 
entity orientation and compatibility.
    There are approximately 70 handlers of Washington cherries who are 
subject to regulation under the marketing order and approximately 1,100 
cherry producers in the regulated area. Small agricultural service 
firms have been defined by the Small Business Administration (13 CFR 
121.601) as those having annual receipts of less than $5,000,000, and 
small agricultural producers are defined as those having annual 
receipts of less than $500,000.
    Currently, about 93 percent of the Washington cherry handlers ship 
under $5,000,000 worth of cherries and 7 percent ship over $5,000,000 
worth on an annual basis. In addition, based on acreage, production, 
and producer prices reported by the National Agricultural Statistics 
Service, and the total number of Washington cherry producers, the 
average annual grower revenue is approximately $100,000. In view of the 
foregoing, it can be concluded that the majority of handlers and 
producers of Washington cherries may be classified as small entities.
    This rule changes the pack requirements currently prescribed under 
the Washington cherry marketing order by establishing two additional 
row count/row size designations for Washington cherries when containers 
are marked with a row count/row size designation.
    At its May 13, 1999, meeting, the Committee unanimously recommended 
changing the pack requirements currently prescribed under the 
Washington cherry marketing order. The Committee recommended 
establishing two additional row count/row size designations for 
Washington cherries when containers destined for fresh market channels 
are marked with a row count/row size designation. The additional row 
count/row size designations recommended are 8 row (\84/64\ inches in 
diameter) and 8\1/2\ row (\79/64\ inches in diameter).
    When the current row count/row sizes were modified in 1993, cherry 
sizes as large as 8 and 8\1/2\ row were not produced. The new varieties 
developed since that time tend to size larger. Further differentiation 
by row count/row size cherries will allow handlers and producers to 
benefit from the extra effort and costs involved in producing and 
marketing larger-sized cherries, and accrue the premium prices 
generally received for large-sized cherries.
    Price data for peak shipment periods shows an increase of $2 per 
container for each row count/row size designation increase. Therefore, 
it is anticipated that 8 row and 8\1/2\ row cherries will receive an 
additional $2 and $4 per container, respectively, over 9 row cherries. 
While the current percentage of larger cherries is small, the 
production of large-sized cherry varieties is trending upward.
    The largest row count/row size now designated is 9 row (75/64 
inches in diameter). Hence, handlers marketing cherries larger than 9 
row are not able to differentiate their pack to receive the higher 
prices generally received for larger-sized cherries. The Committee 
believes that differentiation by row count/row size will provide 
handlers more marketing flexibility and clarify the choices available 
to buyers. By allowing handlers the opportunity to differentiate these 
cherries with the larger row count/row size designations, the Committee 
believes that producers' returns will improve.
    The Committee anticipates that this rule will not negatively impact 
small businesses. This rule will allow handlers to market larger 
cherries in containers designated with the larger row counts/row sizes. 
Accurate

[[Page 33743]]

identification of the sizes packed in the containers is expected to 
benefit buyers. Further, this rule will allow handlers greater 
flexibility in marketing the Washington cherry crop.
    The Committee did not discuss any alternatives to this rule, except 
not to allow the larger row count/row size designations for larger 
cherries. This was not acceptable because producers and handlers would 
not be able to reap the benefits expected from further differentiation 
of the larger sizes.
    This rule will not impose any additional reporting or recordkeeping 
requirements on either small or large 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 sectors. In addition, the Department has not identified any 
relevant Federal rules that duplicate, overlap or conflict with this 
rule.
    Further, the Committee's meeting was widely publicized throughout 
the Washington cherry industry and all interested persons were invited 
to attend the meeting and participate in Committee deliberations. Like 
all Committee meetings, the May 13, 1999, meeting was a public meeting 
and all entities, both large and small, were able to express their 
views on this issue. The Committee itself is composed of 15 members, of 
which 5 are handlers and 10 are producers. Finally, interested persons 
are invited to submit information on the regulatory and informational 
impacts of this action on small businesses.
    After consideration of all relevant material presented, including 
the Committee's recommendation, and other information, it is found that 
this interim final rule, as hereinafter set forth, will tend to 
effectuate the declared policy of the Act.
    This rule invites comments on changes to the pack requirements 
currently prescribed under the Washington cherry marketing order. Any 
comments received will be considered prior to finalization of this 
rule.
    Pursuant to 5 U.S.C. 553, it is also found and determined upon good 
cause that it is impracticable, unnecessary, and contrary to the public 
interest to give preliminary notice prior to putting this rule into 
effect and that good cause exists for not postponing the effective date 
of this rule until 30 days after publication in the Federal Register 
because: (1) This rule changes the pack requirements for Washington 
cherries which should be in effect as soon as possible as 1999-2000 
season shipments of Washington cherries are expected to begin shortly, 
and this action should apply to as much of the season's shipments as 
possible; (2) this rule was unanimously recommended by the Committee at 
an open public meeting and all interested persons had an opportunity to 
express their views and provide input; (3) Washington cherry handlers 
are aware of this rule and need no additional time to comply with the 
relaxed requirements; and (4) this rule provides a 60-day comment 
period, and any comments received will be considered prior to 
finalization of this rule.

List of Subjects in 7 CFR Part 923

    Cherries, Marketing agreements, Reporting and recordkeeping 
requirements.

    For the reasons set forth in the preamble, 7 CFR Part 923 is 
amended as follows:

PART 923--SWEET CHERRIES GROWN IN DESIGNATED COUNTIES IN WASHINGTON

    1. The authority citation for 7 CFR Part 923 continues to read as 
follows:

    Authority: 7 U.S.C. 601-674.

    2. Section 923.322 is amended by revising paragraph (e) to read as 
follows:


Sec. 923.322  Washington Cherry Regulation 22.

* * * * *
    (e) Pack. (1) When containers of cherries are marked with a row 
count/row size designation the row count/row size marked shall be one 
of those shown in Column 1 of the following table and at least 90 
percent, by count, of the cherries in any lot shall be not smaller than 
the corresponding diameter shown in Column 2 of such table: Provided, 
That the content of individual containers in the lot are not limited as 
to the percentage of undersize; but the total of undersize of the 
entire lot shall be within the tolerance specified.

                                  Table
------------------------------------------------------------------------
                                                               Column 2
                Column 1, row count/row size                   diameter
                                                               (inches)
------------------------------------------------------------------------
8..........................................................      \84/64\
8\1/2\.....................................................      \79/64\
9..........................................................      \75/64\
9\1/2\.....................................................      \71/64\
10.........................................................      \67/64\
10\1/2\....................................................      \64/64\
11.........................................................      \61/64\
11\1/2\....................................................      \57/64\
12.........................................................      \54/64\
------------------------------------------------------------------------

* * * * *

    Dated: June 18, 1999.
Robert C. Keeney,
Deputy Administrator, Fruit and Vegetable Programs.
[FR Doc. 99-16055 Filed 6-23-99; 8:45 am]
BILLING CODE 3410-02-P