[Federal Register Volume 71, Number 141 (Monday, July 24, 2006)]
[Rules and Regulations]
[Pages 41723-41725]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-11736]



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 Rules and Regulations
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  Federal Register / Vol. 71, No. 141 / Monday, July 24, 2006 / Rules 
and Regulations  

[[Page 41723]]



DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 923

[Docket No. FV06-923-1 FIR]


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

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Final rule.

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SUMMARY: The Department of Agriculture (USDA) is adopting, as a final 
rule, without change, an interim final rule that removed the container 
regulations prescribed under the Washington sweet cherry marketing 
order. Specifically, this rule finalizes the removal of the requirement 
that dark-colored sweet cherries 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 
regulatory relaxation provides 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 Date: August 23, 2006.

FOR FURTHER INFORMATION CONTACT: Robert J. Curry or Gary D. Olson, 
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.
    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 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.''
    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 finalizes the removal of the requirement that dark-
colored sweet cherries be handled in containers having a certain net 
weight. This relaxation in the regulations 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) provided 
that: ``No handler shall handle any lot of cherries, except

[[Page 41724]]

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 specified 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.'' Since the provisions of (b)(2)(i) and (ii) referred 
to experimental containers exempt under 923.322(d)(2), this rule also 
finalizes the removal of 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 removed container regulation.
    Although Sec.  923.322(d)(2) provided for experimental container 
exemptions, those handlers who have utilized this exemption in the past 
felt that the process was too cumbersome and time-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 provides the industry with needed flexibility.
    This rule not only finalizes the removal of the container 
regulations (Sec.  923.322(d)), but also finalizes necessary conforming 
changes through the removal of Sec.  923.322(b)(2)(i) and (ii), as well 
as references to container requirements in Sec.  923.322(f)(1)(ii) and 
Sec.  923.322(g).

Final 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 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 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 $6,500,000.
    For the 2005 shipping season, the Washington Agricultural 
Statistics Service 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 $6,500,000 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 finalizes the removal of 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 action 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.
    In addition, USDA has not identified any relevant Federal rules 
that duplicate, overlap or conflict with this rule.
    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.
    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

[[Page 41725]]

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.
    An interim final rule regarding this action was published in the 
Federal Register on April 10, 2006. Committee staff ensured that copies 
of the rule were made available to Committee members and Washington 
sweet cherry industry members. In addition, the rule was made available 
through the Internet by USDA and the Office of the Federal Register. 
The interim final rule provided for a 60-day comment period that ended 
June 9, 2006. No comments were received.
    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.
    After consideration of all relevant material presented, including 
the Committee's recommendation, and other information, it is found that 
finalization of the interim final rule, without change, as published in 
the Federal Register (71 FR 17982, April 10, 2006) 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

0
Accordingly, the interim final rule amending 7 CFR part 923 which was 
published at 71 FR 17982 on April 10, 2006, is adopted as a final rule 
without change.

    Dated: July 18, 2006.
Lloyd C. Day,
Administrator, Agricultural Marketing Service.
 [FR Doc. E6-11736 Filed 7-21-06; 8:45 am]
BILLING CODE 3410-02-P