[Federal Register Volume 59, Number 118 (Tuesday, June 21, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-15143]
[[Page Unknown]]
[Federal Register: June 21, 1994]
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DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Part 923
[Docket No. FV94-923-1FR]
Sweet Cherries Grown In Designated Counties in Washington;
Establishment of Minimum Size and Maturity Requirements for Rainier
Variety Cherries
AGENCY: Agricultural Marketing Service, USDA.
ACTION: Final rule.
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SUMMARY: This final rule establishes a minimum size requirement of 11
row size (\61/64\ inch diameter) and a minimum maturity requirement of
17 percent soluble solids for Rainier variety cherries that can be
shipped to fresh market outlets under Marketing Order No. 923. This
final rule ensures that consumers receive cherries of acceptable size
and maturity. This is intended to enhance the quality and image of
Washington Rainier cherries in the fresh market, thereby increasing
sales and improving returns to producers. This final rule was
recommended by the Washington Cherry Marketing Committee (committee),
which works with the Department of Agriculture (Department) in
administering the marketing order covering sweet cherries grown in
designated counties in Washington.
EFFECTIVE DATE: June 21, 1994.
FOR FURTHER INFORMATION CONTACT: Mark J. Kreaggor, Marketing Order
Administration Branch, Fruit and Vegetable Division, Agricultural
Marketing Service, U.S. Department of Agriculture, room 2523-S, P.O.
Box 96456, Washington, DC 20090-6456; telephone: (202) 720-5127; or
Teresa Hutchinson, Northwest Marketing Field Office, Fruit and
Vegetable Division, AMS, USDA, 1220 SW Third Avenue, Room 369,
Portland, OR 97204; telephone: (503) 326-2724.
SUPPLEMENTARY INFORMATION: This final 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 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 is issuing this rule in conformance with Executive
Order 12866.
This final rule has been reviewed under Executive Order 12778,
Civil Justice Reform. This final rule is not intended to have
retroactive effect. This final 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 in equity to review the
Secretary's ruling on the petition, provided a bill in equity is filed
not later than 20 days after the date of the entry of the ruling.
Pursuant to requirements set forth in the Regulatory Flexibility
Act (RFA), the Administrator of the Agricultural Marketing Service
(AMS) has considered the economic impact of this action on small
entities.
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 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 50 handlers of Washington sweet cherries
that are subject to regulation under the order. In addition, there are
approximately 1,100 producers in the regulated area. Small agricultural
service firms, which include handlers of Washington sweet cherries,
have been defined by the Small Business Administration [13 CFR 121.601]
as those whose annual receipts are less than $5,000,000, and small
agricultural producers are defined as those whose annual receipts are
less than $500,000. A majority of these handlers and producers may be
classified as small entities.
This final rule revises Sec. 923.322 to establish a minimum size
requirement of 11 row (\61/64\ inch diameter) and a minimum maturity
requirement of 17 percent soluble solids for Rainier variety cherries
under the order. The committee recommended these minimum size and
maturity requirements by a vote of 13 to 1.
Section 923.52 of the order authorizes the establishment of grade,
size, quality, maturity, pack and container regulations for any variety
or varieties of cherries grown in the production area. Section 923.53
further authorizes the modification, suspension, or termination of
regulations issued under Sec. 923.52. Section 923.55 provides that
whenever cherries are regulated pursuant to Sec. 923.52 or Sec. 923.53,
such cherries must be inspected by the Federal-State Inspection
Service, and certified as meeting the applicable requirements of such
regulations.
Currently, the regulations require that dark sweet cherries such as
Bing cherries, the predominant variety grown in the production area,
meet certain grade, size, pack and container requirements. Such
cherries are also required to be inspected. Light sweet cherries,
including the Rainier variety, are currently exempt from these
requirements.
The Rainier variety was developed at Washington State University's
Irrigated Agricultural Research and Extension Center in Prosser,
Washington, and was first released to the Northwest cherry industry in
1960. Rainiers were initially used primarily as canning cherries.
However, since the 1980s, production of the Rainier variety for the
fresh market has increased substantially. Less than 600 tons were
marketed fresh in 1987, but that increased to 1,543 tons in 1989 and
1,937 tons in 1992. A record crop of 2,427 tons was marketed in 1993,
about 5 percent of Washington's total sweet cherry crop.
As the Rainier variety gained in importance as a fresh market
cherry, the Washington cherry industry began to consider the need to
establish minimum standards of size and quality for the variety. At its
December 15, 1993, meeting, the committee made its first recommendation
to regulate Rainier cherries. Specifically, the committee recommended
that a minimum size requirement be established at 10\1/2\ row size (1
inch in diameter) for fresh market shipments of Rainier variety
cherries. No minimum maturity requirement was recommended at that time,
although concerns were expressed about ensuring that only ripe cherries
be marketed.
Subsequent to the December meeting, the Department received
correspondence from 19 cherry producers, packers, and marketers
concerning the committee's recommended regulation. The majority (13 of
19) were in favor of the recommendation, and 6 were in opposition to
regulating the Rainier variety.
Comments supporting the proposed minimum size requirement stated
that such a regulation would be in the best interests of producers.
Growing Rainier cherries is more labor intensive and costly than
producing other varieties. Producers need to offer a quality product in
order to recoup these higher production costs. The sale of small,
immature cherries results in buyer dissatisfaction, which reduces
repeat purchases and damages the market for all cherries. Good cultural
practices (e.g., proper pruning) will result in acceptable sizes. Fruit
quality and maturity are enhanced by fruit size.
Those opposed to the recommendation stated that it would reduce the
volume of Rainier cherries permitted to be marketed fresh, thus
reducing returns on the crop. Further, they stated that taste and
appearance are more important to cherry buyers than size. Those in
opposition also claimed that a minimum size requirement would be
detrimental to producers who farm at higher elevations, where fruit
tends to be smaller, but may be sweeter.
Given the lack of industry consensus on this issue, the Department
asked the committee to reconsider the need to regulate Rainier variety
cherries, particularly in light of the concerns raised in the above-
mentioned letters. The committee met again on March 15, 1994, and
rescinded its earlier recommendation. The committee recommended a lower
size requirement--at least 11 row size (\61/64\ inch in diameter)--
coupled with a minimum maturity requirement of 17 percent soluble
solids. The vote on this recommendation was 13 to 1, with the
dissenting voter in favor of a smaller minimum size of 11\1/2\ row
(\57/64\ inch in diameter).
The Rainier cherry is distinct from other cherry varieties marketed
by the Washington cherry industry. It is a yellow-colored cherry, with
some rosy blush. It is considered a specialty item, compared with the
darker colored varieties.
The committee reports the costs of producing and handling Rainier
cherries are higher than those associated with other cherry varieties.
Rainier cherry trees need to be pruned more heavily than other cherry
trees to ensure acceptable sized fruit. Rainier cherry trees are picked
several times during a season, reflecting the fact that not all the
fruit matures at the same time and that the cherries will not ripen
after harvest. Rainier cherries are also fragile and susceptible to
damage during handling. Thus, most Rainier cherries are sorted and
packed by hand.
Rainier cherries are typically marketed from mid-June through July.
AMS Market News data show that prices are highest for the earliest
offerings of these cherries, and that such prices decline as the season
progresses. In 1992, for example, the opening f.o.b. price on June 18
was $35.00 per carton. This declined to $25.00 to $28.00 per carton a
week later, and f.o.b. prices were $22.00 to $28.00 per carton at
season's end. This price trend serves as an incentive for producers to
harvest early, which has resulted in immature, sour Rainier cherries
being marketed.
The committee reports that cherry size and quality are important to
buyers. Consistency and dependability are equally important. Shipments
of immature, low quality, under-sized Rainier cherries in recent
seasons have resulted in disappointment by buyers and consumers. This
reduces repeat purchases, and results in declines in prices and overall
sales volumes. The general consensus of the industry is that some
mandatory quality standards are needed to ensure buyer confidence.
Voluntary standards have been unsuccessful.
Cherry size is related to maturity and other quality factors. That
is, larger sized cherries tend to be sweeter and of higher overall
quality. This is supported by prices received for different sizes of
Bing cherries. Market News data show that f.o.b. prices for 12 row
sized Bings (\54/64\ inch diameter) averaged about $15.00 per carton in
mid-June 1992. At the same time, 10\1/2\ row sized (1 inch diameter)
Bings were selling for about $25.00 per carton. This price relationship
held steady throughout the season. Further, the committee has conducted
research that shows that larger sizes correlate with higher maturity
levels, and that larger sizes are preferred by cherry consumers. While
research results and prices by size specifically for Rainier variety
cherries are currently unavailable, industry consensus is that the same
relationships are true for Rainier cherries.
The Washington cherry industry promotes the sale of Rainier variety
cherries through the Washington State Fruit Commission (WSFC), a State
research and promotion program funded by industry assessments. The WSFC
publicizes the current voluntary 1-inch minimum size standard for
Rainier variety cherries in its promotion efforts. The WSFC has
reported that it receives buyer complaints when such standards are not
upheld. For example, three large retail chains cancelled all of their
in-store promotions of Rainier variety cherries planned for the 1993
season due to the receipt of small, immature Rainier cherries early in
the season. Thus, the industry believes it needs to establish minimum
size and maturity standards to protect its investment in promoting the
crop.
The general consensus of the Washington cherry industry is that the
shipment of poor quality Rainier cherries is disrupting the marketplace
and that some minimum quality standards are needed to maintain the
Rainier cherry market. However, some disagreement was expressed at the
committee meeting as to precisely what those minimum standards should
be.
Some questioned, for example, the 10\1/2\ row size requirement
initially recommended by the committee, saying that this requirement
would result in too many cherries being diverted to processors (an
outlet exempt from regulation). Others stated that the smaller 11 row
cherries have adequate sugar content. Still others opposed any size
requirement, believing that other criteria (e.g., maturity levels) are
more important than size and that size bears no relationship to those
criteria. Additionally, concern was expressed that producers at higher
elevations would be more adversely impacted than other producers by a
minimum size requirement.
In regards to this last concern, the committee concluded that
producers at higher elevations should not be adversely impacted by the
11 row minimum size regulation, since these producers have demonstrated
the ability to produce other varieties at acceptable sizes (e.g., Bing
cherries). Further, a number of producers who farm at higher elevations
attended the meeting, and stated that they would not have a problem
meeting the proposed minimum size requirement, and that proper cultural
practices (including pruning) would ensure that other producers achieve
appropriate sizing.
In an attempt to reach an industry compromise, the committee
rescinded its December recommendation to establish a minimum size
requirement for Rainier cherries at 10\1/2\ row size. It recommended
instead a lower minimum size requirement of 11 row, coupled with a
maturity requirement of at least 17 percent soluble solids. This
recommendation is considered to be conservative, in that most handlers
in the Washington cherry industry pack to higher standards. The
committee intends to conduct research during the 1994 and subsequent
seasons to determine whether further refinements in Rainier variety
cherry standards are needed.
This final rule adds a new provision to Sec. 923.322, Washington
Cherry Regulation 22, to establish a minimum size requirement of \61/
64\ inch in diameter for Rainier variety cherries, which corresponds to
the 11 row size. To provide for variances in packing, a tolerance of 10
percent will be provided for undersized Rainier cherries. Further, the
regulation will provide that not more than 5 percent of the Rainier
cherries in any lot could be less than \57/64\ inch in diameter, which
is 11\1/2\ row size, one size lower than the 11 row size. These
tolerances are comparable to those in effect for other Washington
cherry varieties.
Section 923.322 is also revised by adding a new section to require
that any lot of Rainier cherries would have to contain a minimum of 17
percent soluble solids. The percentage of soluble solids would be
determined by using a refractometer to measure the sugar level in a
composite sample of cherries. This maturity test would be taken at the
time of packing or just prior to shipment, at the option of the
handler.
As previously discussed, Sec. 923.55 of the order provides that
whenever cherries are subject to grade, size, quality, maturity, pack
or container regulations, those cherries must be inspected by the
Federal-State Inspection Service (FSIS). Since this rule would
establish minimum size and maturity requirements for Rainier variety
cherries, such cherries would have to be inspected and certified by the
FSIS as meeting the applicable requirements of the regulation.
A proposed rule concerning this action was published in the Federal
Register on May 19, 1994, (59 FR 26148), which provided a 15 day
comment period ending June 3, 1994. Three comments were received. The
Washington Cherry Committee recommended a modification to the original
minimum maturity requirement. Mr. Mike Hambelton of Stemilt Growers,
Inc. did not support the original minimum maturity requirement, but
supported the committee's recommended modification. Mr. Grady Auvil of
Auvil Fruit Company also supported the modification recommended by the
committee. Both Mr. Hambelton and Mr. Auvil did not support the minimum
size requirement.
The Washington Cherry Committee's comment stated that the
modification to its recommended minimum maturity requirement for
Rainier cherries was to provide more flexibility for handlers. The
proposed rule stated that maturity testing was to be conducted at the
time of packing or shipment only. Since handlers use different methods
of packing Rainier cherries, the committee agreed that it is important
that handlers have the option to determine when the maturity test will
be conducted. This will prevent the unnecessary packing and repacking
of Rainier cherries that do not meet the minimum size requirements. The
new language will accommodate different methods by permitting maturity
inspection, prior to packing, at the time of packing, or just prior to
shipment. The Department believes that the comments concerning
modifying the minimum maturity requirements for Rainier cherries have
merit. Therefore, this final rule is modified to revise Sec. 923.322(c)
of Washington Cherry Regulation 22, to provide more flexibility in
inspection.
Mr. Hambelton and Mr. Auvil also filed comments requesting that the
Department not approve the committee's size recommendation. Mr.
Hambelton suggested that the committee lacked formal research in the
areas of Rainier cherry maturity and size. The committee has done
research concerning cherries showing that size and quality are very
important to buyers. Although no formal research was specifically
conducted on Rainier cherries, there is among growers and handlers a
tremendous amount of knowledge and experience about the marketing of
Rainier cherries. The overwhelming view of the committee, which is made
up of growers and handlers, is that shipments of small, sour Rainier
cherries has been poorly received by consumers. In addition, the
committee gave the issue full and timely consideration, as noted in the
two meetings which were held. The committee in its final decision voted
13 to 1 in favor of its recommendation.
Mr. Auvil also stated that the minimum size requirement would limit
supply, resulting in higher prices. Mr. Hambelton also claimed that the
size regulation would reduce Rainier cherry supplies and result in
grower prices exceeding parity levels. He cited that the 1993 parity
price for sweet cherries was $1,640 per ton, and that Rainier cherry
producers received on average $1,822 per ton. However, the $1,640
figure used by Mr. Hambelton is a national sweet cherry parity figure
from the July 1993 National Agricultural Statistics Service report.
This figure reflects prices for all sweet cherries grown in the United
States, including Rainier cherries and other varieties of sweet
cherries grown in the regulated area. There are no separate official
data on Rainier cherries. The AMS has calculated an equivalent parity
price for Washington sweet cherries of $2,083 per ton, and does not
expect that prices received during the 1994 season will exceed parity
levels.
More importantly, however, the intent of this action is to
establish minimum levels of size and maturity to ensure consumer
satisfaction and maintain current markets. The objective of this action
is not to reduce supplies of Rainier cherries. As previously discussed,
higher prices for earliest offerings of Rainier cherries provide an
incentive for producers to harvest early, which has resulted in
immature, sour Rainier cherries being marketed. The establishment of
minimum size and maturity requirements should reduce this propensity to
harvest prematurely, but should not reduce the overall volume of
Rainier cherries.
Considering complaints received from consumers last season about
immature Rainier cherries, the committee made its recommendation to
make 11 row size the minimum for such cherries. The size recommendation
ensures cherries of a good size will be shipped to market.
For the reasons stated above, the Department is not making any
changes to the size requirements for Rainier cherries.
Based on available information, the Administrator of the AMS has
determined that this action will not have a significant impact on a
substantial number of small entities.
After consideration of all available information, it is found that
establishing minimum size and maturity requirements, as set forth in
this final rule, will tend to effectuate the declared policy of the
Act.
Pursuant to 5 U.S.C. 553, it is also found and determined that good
cause exist for not postponing the effective date of this final rule
until 30 days after publication in the Federal Register because: (1)
The committee held several meetings concerning the need to regulate
Rainier variety cherries and all interested persons were invited to
participate and express their opinions on this issue; (2) the proposed
rule provided a comment period and modifications were made based on the
comments; and (3) to be of maximum benefit to the industry, any
regulation covering Rainier cherries should be in place for the 1994
season which begins in mid-June, and adequate time is needed to advise
producers and shippers.
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 removing the introductory text,
revising paragraph (a), redesignating paragraphs (b), (c), (d), and (e)
as paragraphs (d), (e), (f), and (g) respectively, adding new
paragraphs (b) and (c), and revising paragraphs (d)(2) and (f) to read
as follows:
Sec. 923.322 Washington Cherry Regulation 22.
(a) Grade. No handler shall handle, except as otherwise provided in
this section, any lot of cherries, except cherries of the Rainier,
Royal Anne, and similar varieties, commonly referred to as ``light
sweet cherries'' unless such cherries grade at least Washington No. 1
grade except that the following tolerances, by count, of the cherries
in the lot shall apply in lieu of the tolerances for defects provided
in the Washington State Standards for Grades of Sweet Cherries:
Provided, That a total of 10 percent for defects including in this
amount not more than 5 percent, by count, of the cherries in the lot,
for serious damage, and including in this latter amount not more than
one percent, by count, of the cherries in the lot, for cherries
affected by decay: Provided further, That the contents of individual
packages in the lot are not limited as to the percentage of defects but
the total of the defects of the entire lot shall be within the
tolerances specified.
(b) Size. No handler shall handle, except as otherwise provided in
this section, any lot of cherries, except cherries of the Royal Anne
and similar varieties other than the Rainier variety commonly referred
to as ``light sweet cherries'' unless such cherries meet the following
minimum size requirements:
(1) For the Rainier variety, at least 90 percent, by count, of the
cherries in any lot shall measure not less than \61/64\ inch in
diameter and not more than 5 percent, by count, may be less than \57/
64\ inch in diameter.
(2) For all other varieties, at least 90 percent, by count, of the
cherries in any lot 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.
(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.
(c) Maturity. No handler shall handle, except as otherwise provided
in this section, any lot of Rainier cherries unless such cherries meet
a minimum of 17 percent soluble solids as determined from a composite
sample by refractometer prior to packing, at time of packing, or at
time of shipment. Provided, That individual lots shall not be combined
with other lots to meet soluble solids requirements.
(d) * * *
(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.
* * * * *
(f) Exceptions. Any individual shipment of cherries which meets
each of the following requirements may be handled without regard to the
provisions of paragraphs (a), (b), (c), (d), and (e) of this section,
and of Secs. 923.41 and 923.55.
Dated: June 16, 1994.
Robert C. Keeney,
Deputy Director, Fruit and Vegetable Division.
[FR Doc. 94-15143 Filed 6-20-94; 8:45 am]
BILLING CODE 3410-02-P
