[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
Federal Register
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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.
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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
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Column 2
Column 1, row count/row size diameter
(inches)
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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\
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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