[Federal Register Volume 68, Number 63 (Wednesday, April 2, 2003)]
[Rules and Regulations]
[Pages 15923-15926]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-7846]



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 Rules and Regulations
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  Federal Register / Vol. 68, No. 63 / Wednesday, April 2, 2003 / Rules 
and Regulations  

[[Page 15923]]


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DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 923

[Docket No. FV02-923-1 IFR]


Sweet Cherries Grown in Designated Counties in Washington; 
Establishment of Procedures To Allow the Grading or Packing of Sweet 
Cherries Outside the Production Area

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Interim final rule with request for comments.

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SUMMARY: This rule allows the grading or packing of sweet cherries 
outside the production area established under the Washington sweet 
cherry marketing order (order). The order regulates the handling of 
sweet cherries grown in designated counties in Washington. Persons 
desiring to ship Washington sweet cherries for grading or packing 
outside the production area will apply and report to the Washington 
Cherry Marketing Committee (Committee) on forms provided by the 
Committee. The reporting requirement will provide the Committee with 
safeguard information on the grading or packing of sweet cherries 
outside the production area to assure that acceptable quality fruit is 
shipped. This rule will provide greater flexibility in the grading, 
packing, and marketing of Washington sweet cherries. In some cases, the 
facilities outside the production area are closer to where the fruit is 
produced, and the ability to grade and pack outside the production area 
would reduce costs. This rule was recommended unanimously by the 
Committee, the agency responsible for local administration of the 
order.

DATES: Effective April 3, 2003; comments received by June 2, 2003 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, 
Marketing Order Administration Branch, Fruit and Vegetable Programs, 
AMS, USDA, 1400 Independence Avenue SW., STOP 0237, Washington, DC 
20250-0237; Fax: (202) 720-8938; 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, or can be viewed at: http://www.ams.usda.gov/fv/moab.html.

FOR FURTHER INFORMATION CONTACT: Teresa L. Hutchinson, Marketing 
Specialist, Northwest Marketing Field Office, Marketing Order 
Administration Branch, Fruit and Vegetable Programs, AMS, USDA, 1220 
SW. Third Avenue, suite 385, Portland, Oregon 97204; telephone (503) 
326-2724; Fax: (503) 326-7440; or George Kelhart, Technical Advisor, 
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.
    Small businesses may request information on complying with this 
regulation by contacting Jay Guerber, Marketing Order Administration 
Branch, Fruit and Vegetable Programs, AMS, USDA, 1400 Independence 
Avenue SW., STOP 0237, Washington, DC 20250-0237; telephone (202) 720-
2491, Fax: (202) 720-8938, or E-mail: [email protected].

SUPPLEMENTARY INFORMATION: This rule is issued under Marketing 
Agreement No. 134 and 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 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 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 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 the 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 the USDA's ruling on the petition, 
provided an action is filed not later than 20 days after the date of 
the entry of the ruling.
    Minimum grade, size, maturity, container, pack and inspection 
requirements are currently established under the order. This rule 
establishes procedures and safeguard requirements that allow for the 
grading or packing of Washington sweet cherries outside the production 
area. Persons desiring to ship Washington sweet cherries for grading or 
packing outside the production area will apply and report to the 
Committee on forms provided by the Committee.
    Consistent with the authorities and procedures outlined in the Act, 
the order was amended on November 21, 2001 (66 FR 58350). One of the 
amendments increased the size of the production area to include all 
counties east of the Cascade Range and provided authority in Sec.  
923.54 for the establishment of procedures to allow the shipment of 
Washington sweet cherries outside the production area for grading and 
packing. Section 923.54 also provides authority for the establishment 
of such safeguards as may be necessary to ensure the sweet cherries are 
handled in accordance with the order's provisions.
    The Committee met on May 14, 2002, and unanimously recommended the 
establishment of procedures and safeguard requirements to allow the 
grading or packing of sweet cherries

[[Page 15924]]

outside the production area. Currently, all cherries are required to be 
graded and packed before leaving the production area. Committee members 
believe that this will give shippers an opportunity to choose those 
grading and packing facilities that will be most beneficial to their 
individual circumstances. The grading and packing costs that are 
charged to growers may be different among differenet handlers in the 
production area or packing facilities outside the production area. 
There may be differences in the type of packaging or other services 
offered by packing facilities within or outside the production area.
    For example, a packing facility outside the area of production is 
experimenting with modified atmosphere packaging that increases the 
shelf life of sweet cherries. There are also Washington sweet cherry 
growers who are part owners of packing facilities that are located 
outside the area of production, and it may be advantageous for them to 
be able to deliver to those facilities for grading and packing. 
Finally, some of the facilities are closer to where the fruit is 
produced, and allowing these facilities to be used for grading, 
packing, or both could reduce producer and handler delivery costs.
    The Committee believes that the minimum grade, size, maturity, 
container, and pack requirements established under the order are very 
important to the industry. The Committee believes such requirements 
create orderly marketing, are good for consumers, encourage repeat 
purchases, and ultimately improve returns to growers. Therefore, the 
Committee also recommended the establishment of safeguards to ensure 
that all sweet cherries graded and packed outside the production area 
are ultimately inspected and certified by the Federal or Federal-State 
Inspection Service as meeting the minimum grade, size, maturity, 
container, and pack requirements established under the order. Persons 
desiring to ship or receive sweet cherries for grading or packing 
outside the production area will apply to the Committee on a Shippers/
Receivers Application for Special Purpose Shipment Certificate. Such 
applicants will submit an application each year prior to shipping or 
receiving sweet cherries for grading or packing outside the production 
area. Information collected on the application will include the date, 
name, address, phone number, signature of the applicant, and such other 
information as the Committee may require. The form includes a 
certification that all production are cherries graded or packed outside 
the production area will be inspected by the Federal or Federal-State 
Inspection Service and will meet the minimum grade, size, maturity, 
container, and pack requirements established under Sec.  923.322 prior 
to shipment.
    After the Committee approves an application, the applicant within 
the area of production and the applicant packing facility outside the 
area will be required to submit a weekly Special Purpose Shipment 
Report to the Committee when Washington sweet cherries are shipped out 
of the production area for grading or packing, along with inspection 
certificates, and other information required by the Committee for 
verification purposes. Information collected on the reports will 
include the names, addresses, telephone numbers, signatures of the 
applicants, names of the growers and handlers of such cherries, and the 
total quantities of each variety of cherries shipped or received. These 
reports will be submitted to the Committee at the close of business 
every Friday during those weeks when the shipper applicant has shipped 
or the receiver applicant has received sweet cherries for grading and 
packing outside the production area. The Committee estimates that each 
affected applicant will submit approximately 10 of these reports 
annually.

Initial Regulatory Flexibility Analysis

    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.
    Based on Committee data, there are approximately 1,500 producers 
(growers) of sweet cherries in the production are and approximately 62 
handlers subject to regulation under the order. The Committee estimates 
that there are about 6 prospective applicants that may take advantage 
of this marketing opportunity. Small agricultural producers are defined 
by the Small Business Administration (SBA) (13 CFR 121.201) as those 
having annual receipts of less than $750,000 and small agricultural 
service firms are defined as those whose annual receipts are less than 
$5,000,000.
    Based on Committee data, the average production of sweet cherries 
in Washington State for the last three years is 64,676 tons. Based on 
Washington Agricultural Statistics Service data, the average producer 
price for sweet cherries in Washington State for the last three years 
is $1,943 per ton. With a Committee estimated 1,500 sweet cherry 
producers of record, the average annual producer revenue is calculated 
to be approximately $83,777. Using Committee data regarding each 
individual handler's's total shipments during the 2001 marketing year 
and a Committee estimated average F.O.B. price of $24.00 per 20-pound 
container in 2001, 79 percent of the Washington sweet cherry handlers 
ship under $5,000,000 worth of sweet cherries and 21 percent ship over 
$5,000,000 worth of sweet cherries. Therefore, the majority of 
Washington sweet cherry producers and handlers may be classified as 
small entities. Also, there are an estimated 6 packing facilities or 
receivers that would be affected by this action. Although their size is 
not known, it is estimated that most would be considered small 
entities.
    Committee meetings are widely publicized in advance of the meetings 
and are held in a location central to the production area. The meetings 
are open to all industry members and other interested persons who are 
encouraged to participate in the deliberations and voice their opinions 
on topics under discussion. Thus, Committee recommendations can be 
considered to represent the interests of small business entities in the 
industry.
    This rule will allow persons to ship Washington sweet cherries 
outside the area of production for grading and packing. Applicants 
desiring to ship or receive sweet cherries for grading or packing 
outside the production area will be required to submit an application 
to the Committee. The applicants will certify that all production area 
cherries graded or packed outside the production area will be inspected 
by the Federal-State Inspection Service and will meet the minimum 
grade, size, maturity, container, and pack requirements established 
under Sec.  923.322 prior to shipment. Persons who are approved by the 
Committee to ship or receive will report all production area sweet 
cherries shipped or received for grading or packing outside the 
production area at the close of business every Friday.
    Regarding the impact of the proposed action on affected entities, 
this rule will

[[Page 15925]]

impose minimal additional costs. As previously mentioned, the Committee 
estimates that about six prospective applicants may desire to ship or 
receive sweet cherries for grading or packing outside the production 
area during the marketing year. Such applicants will be required to 
submit a Shippers/Receivers Application for Special Purpose Shipment 
Certificate and receive approval from the Committee prior to shipping 
or receiving any production area sweet cherries each year for grading 
or packing. After the Committee approves an application, both 
applicants will be required to submit a weekly Special Purpose 
Statement Report to the Committee when Washington sweet cherries are 
shipped or received for grading or packing along with inspection 
certificates or other information required by the Committee for 
verification purposes. The Committee estimates that each affected 
applicant will submit about 10 of these reports annually. The annual 
industry burden associated with this information collection is 
estimated to total approximately 5 hours.
    An alternative to this action would be to not allow Washington 
sweet cherries to be shipped outside the production area for grading or 
packing. This alternative would limit the flexibility of growers and 
handlers to make decisions related to the grading, packing, and 
marketing of Washington sweet cherries. Another alternative would be to 
allow shipments of such sweet cherries for grading or packing outside 
the production area, but not require any reporting. The Committee did 
not support this alternative because of the lack of any safeguards to 
ensure compliance with the handling requirements implemented under the 
order. Allowing the shipment of Washington sweet cherries outside the 
production area for grading or packing is a relaxation of order 
requirements and any costs related to additional reporting will be 
greatly outweighed by the benefits of allowing such shipments.
    This rule will impose an additional reporting and recordkeeping 
burden on persons who ship or receive sweet cherries for grading or 
packing outside the production area. This action requires two new 
Committee forms. The information collection requirements are discussed 
in the following section.
    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. In addition, USDA 
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 sweet cherry industry and all interested persons were invited to 
attend the meeting and participate in Committee deliberations on all 
issues. Like all Committee meetings, the May 14, 2002, meeting was a 
public meeting and all entities, both large and small, were able to 
express views on this issue. Finally, interested persons are invited to 
submit information on the regulatory and informational impacts of this 
action on small businesses.
    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/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.

Paperwork Reduction Act

    In accordance with the Paperwork Reduction act of 1995 (44 U.S.C. 
Chapter 35), this notice announces that AMS is seeking emergency 
approval for a new information collection request for Sweet Cherries 
Grown in Designated Counties in Washington, Marketing Order No. 923. 
The emergency request was necessary because insufficient time was 
available to follow normal clearance procedures. This collection will 
be merged with the forms currently approved for use under OMB No. 0581-
0189 ``Generic OMB Fruit Crops.''
    Title: Sweet Cherries Grown in Designated Counties in Washington, 
Marketing Order No. 923.
    OMB Number: 0581-NEW.
    Type of Request: New collection.
    Abstract: The information collection requirements in this request 
are essential to carry out the intent of the Act, to provide the 
respondents the type of service they request, and to administer the 
Washington sweet cherry marketing order program, which has been 
operating since 1957.
    On May 14,2002, the Committee unanimously recommended the 
establishment of procedures and safeguard requirements to allow the 
grading or packing of sweet cherries outside the production area. This 
information will be reported on two new Committee forms. The safeguard 
requirements require an applicant to apply to the Committee on a 
Shipper/Receivers Application for Special Purpose Shipment Certificate 
form once a year, and receive approval from the Committee, prior to 
shipping or receiving sweet cherries for grading or packing outside the 
production area. After the Committee approves the application, the 
applicant will be required to submit weekly a Special Purpose Shipment 
Report to the Committee when Washington sweet cherries are shipped or 
received for grading or packing along with inspection certificates or 
other information required by the Committee for verification purposes. 
The new Committee forms will help ensure compliance with the 
regulations and assist the Committee and the USDA with oversight and 
planning.
    The information collected is used only by authorized 
representatives of the USDA, including AMS, Fruit and Vegetable 
Programs' regional and headquarter's staff, and authorized Committee 
employees. Authorized Committee employees are the primary users of the 
information and AMS is the secondary user.
    The request for approval of the new information collections under 
the order is as follows:
    Shippers/Receivers Application for special Purpose Shipment 
Certificate.
    Estimate of Burden: Public reporting burden for this collection is 
estimated to average 2 minutes per response.
    Respondents: Persons who ship or receive Washington sweet cherries 
for grading or packing outside the production area.
    Estimated Number of Respondents: 6.
    Estimated Number of Responses per Respondent: 1.
    Estimated Total Annual burden on Respondents: 0.18 hours.
    Special Purpose Shipment Report. Estimate of Burden: Public 
reporting burden for this collection of information is estimated to 
average 5 minutes per response.
    Respondents: Persons who ship or receive Washington sweet cherries 
for grading or packing outside the production area.
    Estimated Number of Respondents: 6.
    Estimated Number of Responses per Respondent: 10.
    Estimated Total Annual Burden on Respondents: 4.98 hours
    Comments: Comments are invited on: (1) Whether the proposed 
collection of information is necessary for the proper performance of 
the functions of the agency, including whether the information will 
have practical utility; (2) the accuracy of the agency's estimate of 
the burden of the proposed collection of information, including the 
validity of the methodology and assumptions used; (3) ways to enhance 
the quality, utility, and clarity of the information to be collected; 
and (4) ways to minimize the burden of the collection of information

[[Page 15926]]

on those who are to respond, including the use of appropriate 
automated, electronic, mechanical, or other technological collection 
techniques or other forms of information technology.
    Comments should reference OMB No. 0581-NEW and the Marketing Order 
for Sweet Cherries Grown in Designated Counties in Washington and be 
sent to the USDA in care of the Docket Clerk at the previously 
mentioned address. All comments received will be available for public 
inspection during regular business hours at the same address.
    All responses to this notice will be summarized and included in the 
request for OMB approval. All comments will become a matter of public 
record. As mentioned before, because there was insufficient time for a 
normal clearance procedure and prompt implementation is needed, AMS has 
obtained emergency approval from OMB for the use of the new forms for 
the year. This collection will be merged with the forms currently 
approved for use under OMB No. 0581-0189 ``Generic OMB Fruit Crops.'' 
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.
    This rule allows the grading or packing of sweet cherries outside 
the production area established under the Washington sweet cherry 
marketing order. Persons desiring to ship or receive sweet cherries for 
grading or packing outside the production area will apply and report to 
the Washington Cherry Marketing Committee on forms provided by the 
Committee. The reporting requirement will provide the Committee with 
safeguard information to ensure compliance on the grading or packing of 
sweet cherries outside the production area.
    Any comments received will be considered prior to finalization of 
this rule.
    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.
    Pursuant to 5 U.S.C. 553, is also found and determined upon good 
cause that it is impracticable, unnecessary, and contrary to 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) The order amendments prompting these changes were 
implemented on November 21, 2001, after approval in a grower 
referendum;
    (2) the Committee unanimously recommended these changes at a public 
meeting and all interested parties had an opportunity to provide input;
    (3) Washington sweet cherry growers and handlers are aware of this 
rule and need no additional time to comply with the relaxed 
requirements;
    (4) sweet cherries will begin being shipped in June; and
    (5) 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.

0
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

0
1. The authority citation for 7 CFR part 923 continues to read as 
follows:

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


0
2. Section 923.322 is amended by redesignating paragraphs (f) and (g) 
as (g) and (h), respectively, and adding a new paragraph (f) to read as 
follows:


Sec.  923.322  Washington Cherry Regulation.

* * * * *
    (f) Grading or packing cherries outside the production area. (1) 
Persons desiring to ship or receive cherries for grading or packing 
outside the production area shall apply to the committee on a 
``Shippers/Receivers Application for Special Purpose Shipment 
Certificate'' form, and receive approval from the Committee. The 
application shall contain the following: (i) Name, address, telephone 
number, and signature of applicant;
    (ii) Certification by the applicant that cherries graded and packed 
outside the production area shall be inspected by the Federal-State 
Inspection Service and shall meet the grade, size, maturity, container, 
and pack requirements of this section prior to shipment; and
    (iii) Such other information as the committee may require.
    (2) Each approved applicant shall furnish to the committee, at the 
close of business every Friday, a report containing the following 
information on a ``Special Purpose Shipment Report'' form:
    (i) Name, address, telephone number, and signature of applicant;
    (ii) Names of growers and handlers of such cherries;
    (iii) The total quantity of each variety of cherries; and
    (iv) Such other information as the committee may require.
    (3) The committee may rescind or deny to any applicant its approval 
of the ``Shippers/Receivers Application for Special Purpose Shipment 
Certificate'' if proof satisfactory to the committee is obtained that 
any cherries shipped or received by such applicant for grading or 
packing were handled contrary to the provisions of this section.
* * * * *

    Dated: March 26, 2003.
A.J. Yates,
Administrator, Agricultural Marketing Service.
[FR Doc. 03-7846 Filed 4-1-03; 8:45 am]
BILLING CODE 3410-02-M