[Federal Register Volume 64, Number 176 (Monday, September 13, 1999)]
[Rules and Regulations]
[Pages 49349-49352]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-23791]
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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.Guerber@usda.gov.
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
