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

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