[Federal Register: February 10, 2005 (Volume 70, Number 27)]
[Rules and Regulations]
[Page 6999-7002]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr10fe05-2]
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DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Part 923
[Docket No. FV04-923-1 FR]
Sweet Cherries Grown in Designated Counties in Washington;
Establishment of Minimum Size and Maturity Requirements for Lightly
Colored Sweet Cherry Varieties
AGENCY: Agricultural Marketing Service, USDA.
ACTION: Final rule.
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SUMMARY: This 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 all lightly colored sweet cherry varieties
shipped to fresh markets under the Washington sweet cherry marketing
order. This rule was recommended by the Washington Cherry Marketing
Committee (Committee), the agency responsible for local administration
of the marketing order. Previously, only the Rainier variety of lightly
colored sweet cherries met these requirements. This rule is intended to
enhance the quality and image of all lightly colored sweet cherry
varieties shipped to the fresh market, thereby increasing sales and
improving returns to producers.
EFFECTIVE DATE: April 1, 2005.
FOR FURTHER INFORMATION CONTACT: Teresa L. Hutchinson, Marketing
Specialist, Northwest Marketing Field Office, Marketing Order
Administration Branch, Fruit and Vegetable Programs, AMS, USDA, 1220
SW., Third Avenue, Suite 385, Portland, OR 97204; telephone: (503) 326-
2724; Fax: (503) 326-7440; or George J. Kelhart, Technical Advisor,
Marketing Order Administration Branch, Fruit and Vegetable Programs,
AMS, USDA, 1400 Independence Avenue, SW., STOP 0237, Washington, DC
20250-0237; telephone: (202) 720-2491; Fax: (202) 720-8938.
Small businesses may request information on complying with this
regulation by contacting Jay Guerber, Marketing Order Administration
Branch, Fruit and Vegetable Programs, AMS, USDA, 1400 Independence
Avenue, SW., STOP 0237, Washington, DC 20250-0237; telephone: (202)
720-2491, Fax: (202) 720-8938, or e-mail: Jay.Guerber@usda.gov.
SUPPLEMENTARY INFORMATION: This final rule is issued under Marketing
Agreement and 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 of Agriculture (USDA) is issuing this rule in
conformance with Executive Order 12866.
This final 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
[[Page 7000]]
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 USDA 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. Such
handler is afforded the opportunity for a hearing on the petition.
After the hearing USDA 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 USDA'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 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 all lightly colored sweet cherry varieties
shipped to fresh markets. Previously, Rainier variety cherries were the
only lightly colored sweet cherries under these requirements. This rule
establishes the same requirements for all other varieties of lightly
colored sweet cherries as are established for Rainier variety cherries.
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.
On May 18, 2004, the Committee recommended, by a nine to four vote,
the establishment of a minimum size requirement of 11-row size (\61/
64\-inch diameter) and a minimum maturity requirement of 17 percent
soluble solids for all lightly colored sweet cherry varieties shipped
to fresh markets under the order. The Committee recommended the
requirement become effective on April 1, 2005, which is the beginning
of the 2005-2006 marketing season.
Supporters of the recommendation believe that this regulation is in
the best interests of producers and consumers. Growing lightly colored
sweet cherries for the fresh market is more labor intensive and costly
than producing dark colored varieties. Trees that produce lightly
colored sweet cherries need to be pruned more heavily than the trees
that produce dark colored sweet cherries to ensure acceptable size
fruit. The lightly colored sweet varieties are fragile and susceptible
to damage during handling with most lightly colored sweet cherries
being sorted and packed by hand. Producers need to offer a quality
product in order to recoup the higher production costs. The sale of
small, immature or poor quality cherries results in buyer
dissatisfaction, which reduces repeat purchases and damages the market
for all lightly colored sweet cherries.
Supporters of the recommendation believe that the requirements
currently in place for Rainier variety cherries (59 FR 31917, June 21,
1994) have benefited producers. Concern was also expressed that the
non-regulation of new varieties of lightly colored sweet cherries would
have an adverse effect in the future on the marketing of Rainier
variety cherries if the newer varieties are not regulated in the same
manner. It is difficult to distinguish between the different varieties
of lightly colored cherries and this can result in confusion in the
marketplace.
Those opposed to the recommendation believe that the tonnage of the
newer lightly colored sweet cherry varieties is not enough to impact
the Rainier market at this time. They believe that the regulation of
all lightly colored sweet cherries will reduce the volume of such
cherries on the market and reduce overall returns on the crop. Some
believe that the additional cost of inspection will increase costs with
little added return to the producer.
The Committee estimates that there were less than 500 tons of
lightly colored sweet cherry varieties other than the Rainier variety
marketed during the 2004 marketing season. By comparison, there were
8,080 tons (Committee records) of Rainier cherries marketed from the
production area in 2004.
This rule adds a new provision to Sec. 923.322 to establish a
minimum size requirement of \61/64\-inch in diameter for all lightly
colored sweet cherries which corresponds to the 11-row size. To provide
for variances in packing, a tolerance of 10 percent is provided for
undersized lightly colored sweet cherries. Further, the regulation
provides that not more than 5 percent of lightly colored sweet cherries
in any lot can be less than \57/64\-inch in diameter, or 11\1/2\-row
size. These tolerances are identical to those in effect for Rainier
cherries and comparable to those in effect for dark colored sweet
cherry varieties.
Section 923.322 is also revised to include a requirement that any
lot of lightly colored sweet cherries must contain a minimum of 17
percent soluble solids. The percentage of soluble solids will be
determined by using a refractometer to measure the sugar level in a
composite sample of cherries. This maturity test can be taken prior to
packing, at the time of packing, or at time of shipment, provided that
individual lots shall not be combined with other lots to meet soluble
solids requirements.
This rule also changes the heading of Sec. 923.322 from
``Washington Cherry Regulation 22'' to ``Washington Cherry Handling
Regulation'' to more accurately describe the requirements contained
therein.
Final Regulatory Flexibility Analysis
Pursuant to requirements set forth in the Regulatory Flexibility
Act (RFA), the Agricultural Marketing Service (AMS) has considered the
economic impact of this rule on small entities. Accordingly, 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 1,800 producers of sweet cherries grown in
designated counties in Washington. In addition, there are approximately
69 handlers subject to regulation under the order. Small agricultural
producers are defined by the Small Business Administration (13 CFR
121.201) as those having annual receipts of less than $750,000, and
small agricultural service firms are defined as those whose annual
receipts are less than $5,000,000.
Based on a three-year (2001-2003) average fresh cherry production
of 79,763 tons (Committee records), a three-year average producer price
of $1,390 per ton as reported by the National Agricultural Statistics
Service, USDA, and 1,800 Washington cherry producers, the average
annual producer revenue is approximately $61,595. In addition, based on
Committee records and an average 2003 f.o.b. price of $28.00 per 20-
pound container as
[[Page 7001]]
reported by AMS Market News, approximately 75 percent of the Washington
sweet cherry handlers ship under $5,000,000 worth of cherries. Based on
this information, the majority of Washington sweet cherry producers and
handlers may be classified as small entities.
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 all lightly colored sweet cherry varieties
shipped to fresh markets. Previously, Rainier variety cherries were the
only lightly colored sweet cherries under these requirements.
Rainier and other lightly colored sweet cherry varieties are
typically marketed from mid-June through July. AMS Market News data
shows that prices are the highest for the earliest offerings of these
cherries, and that such prices decline as the season progresses. In
2003, for example, the opening f.o.b. price on June 23 ranged from
$45.00 to $45.50 per carton. This declined to $35.00 to $36.50 a week
later, and f.o.b. prices were $38.00 to $40.50 per carton at season's
end for similar quality and sizes. This price trend serves as an
incentive for producers to harvest early, which has resulted in
immature and poor quality lightly colored sweet 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 lightly colored sweet cherries in
recent seasons have disappointed buyers and consumers. This reduces
repeat purchases and results in declines in prices and overall sales
volumes.
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 (dark colored) cherries. AMS Market News data show that f.o.b.
prices for 12 row sized Bing cherries (\54/64\-inch diameter) averaged
about $18.00 per carton in mid-June 2003. At the same time, 10\1/2\ row
sized (1-inch diameter) Bing cherries were selling for $24.50 to $26.50
per carton. This price relationship held steady throughout the season.
Further, the Committee has conducted research showing 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 or other lightly colored sweet cherry
varieties are currently unavailable, industry consensus is that the
same relationships are true for Rainier and other lightly colored sweet
cherries, and Bings.
The Committee discussed alternatives to this rule, including not
establishing a minimum size and maturity requirement. The general
consensus of the industry is that mandatory size and quality
requirements are needed to ensure product quality and to encourage
repeat purchases. Previous voluntary standards for lightly colored
sweet cherries such as Rainier variety cherries have not been
successful.
This final rule will establish a minimum size requirement of 11-row
size (\61/64\-inch diameter) and a minimum maturity requirement of 17
percent soluble solids for lightly colored sweet cherry varieties
shipped to fresh markets. Accordingly, this action will not impose any
additional reporting or recordkeeping requirements on either small or
large sweet cherry handlers. As with all Federal marketing order
programs, reports and forms are periodically reviewed to reduce
information requirements and duplications by industry and public sector
agencies.
As noted in the initial regulatory flexibility analysis, USDA has
not identified any relevant Federal rules that duplicate, overlap or
conflict with this final rule. Further, the public comments received
concerning the proposal did not address the initial regulatory
flexibility analysis.
In addition, the Committee's meeting was widely publicized
throughout the Washington sweet cherry industry and all interested
persons were invited to attend and participate in the Committee's
deliberations on all issues. Like all Committee meetings, the May 18,
2004, meeting was a public meeting and all entities, both large and
small, were able to express views on this issue.
A proposed rule concerning this action was published in the Federal
Register on November 3, 2004 (69 FR 63958). Copies of the rule were
mailed or sent via facsimile to all Committee members. Finally, the
rule was made available through the Internet by USDA and the Office of
the Federal Register. A 60-day comment period ending January 3, 2005,
was provided to allow interested persons to respond to the proposal.
Two comments were received during the comment period in response to
the proposal. One commenter opposed the proposed requirements
indicating that regulation was overly restrictive. The second commenter
was of the view that cherries should not be regulated by size at all.
We disagree with the commenters. Implementation of a minimum size
of \61/64\-inch diameter and a 17 percent soluble solids requirement
for all varieties of lightly colored cherries should help enhance their
quality and image. With such a minimum size and maturity, the Committee
believes that consumers will purchase more cherries, thereby increasing
sales and improving returns to producers.
Accordingly, based on the comments received, no changes will be
made to the rule as proposed.
A small business guide on complying with fruit, vegetable, and
specialty crop marketing agreements and orders may be viewed at: http://www.ama.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 matter presented, including the
information and recommendation submitted by the Committee, and other
available information, it is hereby found that this rule, as
hereinafter set forth, 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.
0
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
0
1. The authority citation for 7 CFR part 923 continues to read as
follows:
Authority: 7 U.S.C. 601-674.
0
2. In Sec. 923.322, the section heading, paragraphs (b) introductory
text, (b)(1), and (c) are revised to read as follows:
Sec. 923.322 Washington cherry handling regulation.
* * * * *
(b) Size. No handler shall handle, except as otherwise provided in
this section, any lot of cherries unless such cherries meet the
following minimum size requirements:
(1) For the Rainier variety and similar varieties commonly referred
to as ``lightly colored sweet cherries,'' 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.
* * * * *
(c) Maturity. No handler shall handle, except as otherwise provided
in this
[[Page 7002]]
section, any lot of Rainier cherries or other varieties of ``lightly
colored sweet 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.
* * * * *
Dated: February 4, 2005.
Kenneth C. Clayton,
Acting Administrator, Agricultural Marketing Service.
[FR Doc. 05-2545 Filed 2-9-05; 8:45 am]
BILLING CODE 3410-02-P