99-16055. Sweet Cherries Grown in Designated Counties in Washington; Change in Pack Requirements  

  • [Federal Register Volume 64, Number 121 (Thursday, June 24, 1999)]
    [Rules and Regulations]
    [Pages 33741-33743]
    From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
    [FR Doc No: 99-16055]
    
    
    
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    Federal Register / Vol. 64, No. 121 / Thursday, June 24, 1999 / Rules 
    and Regulations
    
    [[Page 33741]]
    
    
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    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: 
    moab.docketclerk@usda.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.
    
    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.Guerber@usda.gov. 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\
    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\
    ------------------------------------------------------------------------
    
    * * * * *
    
        Dated: June 18, 1999.
    Robert C. Keeney,
    Deputy Administrator, Fruit and Vegetable Programs.
    [FR Doc. 99-16055 Filed 6-23-99; 8:45 am]
    BILLING CODE 3410-02-P
    
    
    

Document Information

Effective Date:
6/25/1999
Published:
06/24/1999
Department:
Agricultural Marketing Service
Entry Type:
Rule
Action:
Interim final rule with request for comments.
Document Number:
99-16055
Dates:
Effective June 25, 1999; comments received by August 23, 1999 will be considered prior to issuance of a final rule.
Pages:
33741-33743 (3 pages)
Docket Numbers:
Docket No. FV99-923-1 IFR
PDF File:
99-16055.pdf
CFR: (1)
7 CFR 923.322