[Federal Register Volume 64, Number 176 (Monday, September 13, 1999)]
[Rules and Regulations]
[Pages 49349-49352]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-23791]


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DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 923

[Docket No. FV99-923-1 FIR]


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

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Final rule.

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[[Page 49350]]

SUMMARY: The Department of Agriculture (Department) is adopting, as a 
final rule without change, the provisions of an interim final rule 
changing 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 finalizes the establishment of 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.

EFFECTIVE DATE: October 13, 1999.

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 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].

SUPPLEMENTARY INFORMATION: This rule is issued under Marketing 
Agreement No. 134 and Marketing Order No. 923 (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 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 continues in effect changes to 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 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 923.52.
    Minimum grade, size, quality, maturity, container, and pack 
requirements for cherries regulated under the order are specified in 
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 that at least 90 percent, by count, of the cherries 
in any lot shall not be 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 undersize of the entire lot shall be within 
the tolerance specified.
    The following table shows the row count/row size designations prior 
to this change:

                                  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 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 are 8 row (84/64 inches in diameter) and 
8\1/2\ row (79/64 inches in diameter) and are shown in the following 
revised table from 923.322(e):

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


[[Page 49351]]

    When the 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 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 previously designated was 9 row (75/
64 inches in diameter). Hence, handlers marketing cherries larger than 
9 row were 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, the 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 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 continues in effect changes to 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 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 are 8 row 
(84/64 inches in diameter) and 8\1/2\ row (79/64 inches in diameter).
    When the 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 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 previously designated was 9 row (75/
64 inches in diameter). Hence, handlers marketing cherries larger than 
9 row were 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 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, as noted in the initial regulatory 
flexibility analysis, 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, the majority of whom are 
small entities.
    An interim final rule concerning this action was published in the 
Federal Register on June 24, 1999. A copy of the rule was mailed to the 
Committee's administrative office for distribution to producers and 
handlers. In addition, the rule was made available through the Internet 
by the Office of the Federal Register. That rule provided for a 60-day 
comment period which ended August 23, 1999. No comments were received.
    A small business guide on complying with fruit, vegetable, and 
specialty crop marketing agreements and orders may

[[Page 49352]]

be viewed at the following web site: http://www.ams.usda.gov/fv/
moab.html. Any questions about the compliance guide should be sent to 
Jay Guerber at the previously mentioned address in the FOR FURTHER 
INFORMATION CONTACT section.
    After consideration of all relevant material presented, including 
the Committee's recommendation, and other information, it is found that 
finalizing the interim final rule, without change, as published in the 
Federal Register (64 FR 33741, June 24, 1999) will tend to effectuate 
the declared policy of the Act.

List of Subjects in 7 CFR Part 923

    Cherries, Marketing agreements, Reporting and recordkeeping 
requirements.

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

    Accordingly, the interim final rule amending 7 CFR part 923 which 
was published at 64 FR 33741 on June 24, 1999, is adopted as a final 
rule without change.

    Dated: September 7, 1999.
Robert C. Keeney,
Deputy Administrator, Fruit and Vegetable Programs.
[FR Doc. 99-23791 Filed 9-10-99; 8:45 am]
BILLING CODE 3410-02-P