[Federal Register Volume 71, Number 68 (Monday, April 10, 2006)]
[Rules and Regulations]
[Pages 17979-17982]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-3419]


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DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 923

[Docket No. FV06-923-1 IFR]


Sweet Cherries Grown in Designated Counties in Washington; 
Removal of Container Regulations

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Interim final rule with request for comments.

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SUMMARY: This rule removes the container regulations prescribed under 
the Washington sweet cherry marketing order. Specifically, this rule 
removes the requirement that dark-colored sweet cherries must be 
handled in containers having a certain net weight. The marketing order 
regulates the handling of fresh sweet cherries grown in designated 
counties in the State of Washington, and is administered locally by the 
Washington Cherry Marketing Committee (Committee). By eliminating the 
container requirements, this relaxation will provide handlers with the 
ability to meet the rapidly changing wholesale, retail, and consumer 
demand for innovative product packaging. This is expected to enhance 
industry marketing flexibility and efficiency.

DATES: Effective April 11, 2006. Comments received by June 9, 2006 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; E-mail: [email protected], or 
Internet: http://www.regulations.gov. 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: Robert J. Curry, Northwest Marketing 
Field Office, Marketing Order Administration Branch, Fruit and 
Vegetable Programs, AMS, USDA, 1220 SW Third Avenue, Suite 385, 
Portland, Oregon 97204-2807; Telephone: (503) 326-2724; Fax: (503) 326-
7440; or George Kelhart, Technical Advisor,

[[Page 17980]]

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 and 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 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 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. Such 
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 rule removes the container regulations prescribed under the 
Washington sweet cherry order. Specifically, this rule removes the 
requirement that dark-colored sweet cherries must be handled in 
containers having a certain net weight. By eliminating the container 
requirements, this relaxation provides handlers with the ability to 
meet the rapidly changing wholesale, retail, and consumer demand for 
innovative product packaging, thereby enhancing industry marketing 
flexibility and efficiency.
    Section 923.52 of the order authorizes the issuance of regulations 
for grade, size, quality, maturity, pack, and container for any variety 
of sweet cherries grown in the production area. Section 923.52(a)(3) 
specifically authorizes the establishment of the container regulations 
found in Sec.  923.322. Section 923.53 authorizes the modification, 
suspension, or termination of regulations issued pursuant to Sec.  
923.52.
    Authority to regulate the size, capacity, weight, dimension, 
markings or pack of containers used in the handling of fresh sweet 
cherries was included in the order when promulgated in 1957. This 
authority was included in the order to facilitate container 
standardization and thus help establish orderly marketing conditions 
and increase producer returns.
    The Committee meets prior to each season to consider 
recommendations for modification, suspension, or termination of any 
regulatory requirements for Washington sweet cherries that are issued 
on a continuing basis. Committee meetings are open to the public and 
interested persons may express their views at these meetings. The USDA 
reviews the Committee recommendations along with any supportive 
information submitted by the Committee, as well as information from 
other available resources, and determines whether modification, 
suspension, or termination of the regulatory requirements would tend to 
effectuate the declared policy of the Act.
    At its February 28, 2006, meeting, the Committee recommended that 
the container regulations be entirely removed from the handling 
regulations. The Committee recommended that this rule be effective as 
early as May 1, 2006, to ensure that the earliest shipments of sweet 
cherries benefit from the relaxed regulations, and that container 
manufacturers have adequate time prior to the beginning of the shipping 
season to retool if new containers are ordered by the industry.
    The container requirements provide the Washington cherry industry 
with container standardization to help ensure orderly marketing 
conditions and increased producer returns. Section 923.322(d) provides 
that: ``No handler shall handle any lot of cherries, except cherries of 
the Rainier, Royal Anne, and similar varieties commonly referred to as 
``light sweet cherries'', unless such cherries are in containers which 
meet each of the following applicable requirements:
    (1) The net weight of loose packed (jumble-filled) cherries in any 
container shall be 12 pounds or less, or 20 pounds or more. The net 
weight of face packed cherries in any container shall be 15 pounds, or 
12 pounds or less: Provided, That containers with a net weight of 12 
pounds or less may be packed together with like containers in a master 
shipping container.
    (2) Subject to the provisions of paragraphs (b)(2)(i) and (ii) of 
this section, shipments of cherries may be handled in such experimental 
containers as have been approved by the Washington Cherry Marketing 
Committee.''
    Paragraph (2) above refers to the provisions of Sec.  
923.322(b)(2)(i) and (ii), which specify that: ``(i) All shipments 
handled in such containers shall be under the supervision of the 
committee; and (ii) at least 90 percent, by count, of the cherries in 
any lot of such containers shall measure not less than \54/64\ inch in 
diameter, and not more than 5 percent, by count, may be less than \52/
64\ inch in diameter.'' Because the provisions of (b)(2)(i) and (ii) 
refer to experimental containers exempt under 923.322(d)(2), this rule 
also removes both paragraphs from the handling regulations.
    Comments made at the public meeting indicate that container 
standardization has contributed to orderly marketing in the past. Due 
to the changing dynamics in the fresh produce industry, however, 
buyers--at the wholesale, retail and consumer level--are seeking many 
more packaging options than have been available in the past. Handlers 
report that buyers are increasingly interested in non-traditional 
packaging options designed for better handling and greater consumer 
acceptance. Handlers also desire greater latitude in choosing the 
optimum weight for a particular type of pack. Of specific concern to 
this industry is the ability to pack cherries in containers with net 
weights of between 12 and 20 pounds--a weight range specifically barred 
under the container regulation. Packaging options could also include 
consumer-friendly ``clam shell'' containers of any desired net weight, 
or other similar containers designed to enhance the appearance of 
individual pieces of fruit.
    Although Sec.  923.322(d)(2) provides for experimental container 
exemptions, those handlers who have utilized this exemption in the past 
feel that the process is too cumbersome and time-

[[Page 17981]]

consuming, thus failing to provide the optimal flexibility they need 
under current marketing conditions.
    Regardless of the size, capacity, or type containers the industry 
may eventually use, the Committee believes that the Washington cherry 
industry desires flexibility in packaging dark-colored sweet cherries. 
This action will provide the industry with needed flexibility.
    This rule not only removes the container regulations in Sec.  
923.322(d)), but also makes necessary conforming changes by removing 
Sec.  923.322(b)(2)(i) and (ii), and removing references to container 
requirements in Sec.  923.322(f)(1)(ii) and Sec.  923.322(g).

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 rule 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 1,500 cherry producers within the regulated 
production area and approximately 53 regulated handlers. Small 
agricultural producers are defined by the Small Business Administration 
(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 $6,000,000.
    For the 2005 shipping season, the Washington Agricultural 
Statistics Service has prepared a preliminary report showing that the 
total 113,000 ton fresh market sweet cherry utilization sold for an 
average of $2,830 per ton. Based on the number of producers in the 
production area, the average producer revenue from the sale of sweet 
cherries in 2005 is estimated at approximately $213,200 per year. In 
addition, the Committee reports that most of the industry's 53 handlers 
would have each averaged gross receipts of less than $6,000,000 from 
the sale of fresh sweet cherries last season. Thus, the majority of 
producers and handlers of Washington sweet cherries may be classified 
as small entities.
    At its February 28, 2006, meeting the Committee recommended that 
the container regulations in Sec.  923.322(d) be removed from the 
order's rules and regulations. Section 923.52(a)(3) of the order 
specifically authorizes the establishment of container regulations. 
Further, Sec.  923.53 authorizes the modification, suspension, or 
termination of regulations issued pursuant to Sec.  923.52. This 
relaxation in the regulations provides handlers with the ability to 
meet the rapidly changing wholesale, retail, and consumer demand for 
innovative product packaging, thus enhancing industry marketing 
flexibility and efficiency.
    The Committee anticipates that this rule will not negatively impact 
small businesses. This rule removes the container requirements found 
under Sec.  923.322(d) of the order's rules and regulations, and, thus, 
should provide the industry with greater marketing opportunities. The 
Committee believes that any additional costs this rule may have on the 
industry would be associated with the development and use of new 
containers. Such costs would likely be offset by new marketing 
opportunities.
    The Committee discussed alternatives to its recommendation to 
remove the container regulations. The Committee explored the option of 
leaving the container regulations intact without change. This option 
was rejected as being an inadequate response to the demand for greater 
flexibility in the packaging of fresh cherries. Temporary suspension of 
the regulations was considered, and then discarded, as also being 
inadequate for the current marketing situation.
    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 sector agencies.
    AMS is committed to compliance with the Government Paperwork 
Elimination Act (GPEA), which requires Government agencies in general 
to provide the public the option of submitting information or 
transacting business electronically to the maximum extent possible.
    In addition, USDA has not identified any relevant Federal rules 
that duplicate, overlap or conflict with this rule.
    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 February 28, 2006, meeting was a public meeting 
and all entities, both large and small, were able to express their 
views on this issue.
    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.
    This rule invites comments on removal of the container regulations 
under the Washington cherry marketing order. 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 
the regulation removed by this action no longer tends to effectuate the 
declared policy of the Act.
    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 removes the container regulations for Washington 
sweet cherries for the 2006 shipping season and subsequent seasons; (2) 
this rule should be in effect by May 15, 2006, the date 2006 season 
shipments of the Washington sweet cherry crop are expected to begin, 
and this action should apply to the entire season's shipments; (3) the 
removal of the container regulations was recommended by the Committee 
at a public meeting and all interested persons had an opportunity to 
express their views and provide input; (4) Washington cherry handlers 
are aware of this recommendation and need no additional time to comply 
with the relaxed requirements; 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:

[[Page 17982]]

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.


Sec.  923.322  [Amended]

0
2. Section 923.322 is amended by:
0
a. Removing paragraphs (b)(2)(i) and (b)(2)(ii);
0
b. Removing and reserving paragraph (d);
0
c. Removing the word ``container'' from paragraph (f)(1)(ii); and
0
d. Removing paragraph designation ``(d)'' in paragraph (g).

    Dated: April 5, 2006.
Lloyd C. Day,
Administrator, Agricultural Marketing Service.
[FR Doc. 06-3419 Filed 4-6-06; 9:41 am]
BILLING CODE 3410-02-P