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

Federal RegisterJun 24, 1999

Ask Donna

What actually matters in this document.

Text

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.

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

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

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

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

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 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\