Sweet Cherries Grown in Designated Counties in Washington; Establishment of Minimum Size and Maturity Requirements for Lightly Colored Sweet Cherry Varieties, 6999-7002 [05-2545]
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6999
Rules and Regulations
Federal Register
Vol. 70, No. 27
Thursday, February 10, 2005
This section of the FEDERAL REGISTER
contains regulatory documents having general
applicability and legal effect, most of which
are keyed to and codified in the Code of
Federal Regulations, which is published under
50 titles pursuant to 44 U.S.C. 1510.
The Code of Federal Regulations is sold by
the Superintendent of Documents. Prices of
new books are listed in the first FEDERAL
REGISTER issue of each week.
DEPARTMENT OF AGRICULTURE
Animal and Plant Health Inspection
Service
7 CFR Part 319
[Docket No. 03–022–6]
RIN 0579–AB81
Mexican Hass Avocado Import
Program
Animal and Plant Health
Inspection Service, USDA.
ACTION: Final rule; correction.
AGENCY:
SUMMARY: We are correcting an error in
the rule portion of our final rule
amending the fruits and vegetables
regulations to expand the number of
States in which fresh Hass avocado fruit
grown in approved orchards in
approved municipalities in Michoacan,
Mexico, may be distributed and to allow
the distribution of the avocados during
all months of the year. The final rule
was published in the Federal Register
on November 30, 2004 (69 FR 69747–
69774, Docket No. 03–022–5), and
became effective on January 31, 2005.
EFFECTIVE DATE: January 31, 2005.
FOR FURTHER INFORMATION CONTACT: Ms.
Karen Bedigian, Import Specialist,
Phytosanitary Issues Management Team,
PPQ, APHIS, 4700 River Road Unit 140,
Riverdale, MD 20737–1236; (301) 734–
6799.
SUPPLEMENTARY INFORMATION: In a final
rule published in the Federal Register
on November 30, 2004 (69 FR 69747–
69774, Docket No. 03–022–5), and
effective on January 31, 2005, we
amended the fruits and vegetable
regulations in 7 CFR part 319 to expand
the number of States in which fresh
Hass avocado fruit grown in approved
orchards in approved municipalities in
Michoacan, Mexico, may be distributed
and to allow the distribution of the
avocados during all months of the year.
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In the rule portion of the final rule, it
was our intention to amend paragraph
(a) of § 319.56–2ff by revising paragraph
(a)(2) and by removing paragraph (a)(3).
These changes were discussed in the
SUPPLEMENTARY INFORMATION section of
the final rule, and the text of revised
(a)(2) was presented in the rule portion
of the final rule along with the other
changes made to § 319.56–2ff. However,
we inadvertently failed to include a
specific amendatory instruction
directing the revision of paragraph (a)(2)
and the removal of paragraph (a)(3).
This document corrects that error.
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
PART 319—[CORRECTED]
Specialist, Northwest Marketing Field
Office, Marketing Order Administration
I In FR Doc. 04–26336, published on
Branch, Fruit and Vegetable Programs,
November 30, 2004 (69 FR 69747–
AMS, USDA, 1220 SW., Third Avenue,
69774), make the following correction:
Suite 385, Portland, OR 97204;
§ 319.56–2ff [Corrected]
telephone: (503) 326–2724; Fax: (503)
I 1. On page 69773, in the amendments
326–7440; or George J. Kelhart,
to 7 CFR part 319, in instruction 3 for
Technical Advisor, Marketing Order
§ 319.56–2ff, an instruction h. is added to Administration Branch, Fruit and
read as follows:
Vegetable Programs, AMS, USDA, 1400
I h. By revising paragraph (a)(2) to read
Independence Avenue, SW., STOP
as set forth below and removing
0237, Washington, DC 20250–0237;
paragraph (a)(3).
telephone: (202) 720–2491; Fax: (202)
720–8938.
Done in Washington, DC, this 7th day of
February 2005.
Small businesses may request
information on complying with this
Elizabeth E. Gaston,
regulation by contacting Jay Guerber,
Acting Administrator, Animal and Plant
Marketing Order Administration
Health Inspection Service.
Branch, Fruit and Vegetable Programs,
[FR Doc. 05–2668 Filed 2–9–05; 8:45 am]
AMS, USDA, 1400 Independence
BILLING CODE 3410–34–P
Avenue, SW., STOP 0237, Washington,
DC 20250–0237; telephone: (202) 720–
2491, Fax: (202) 720–8938, or e-mail:
DEPARTMENT OF AGRICULTURE
Jay.Guerber@usda.gov.
Agricultural Marketing Service
SUPPLEMENTARY INFORMATION: This final
rule is issued under Marketing
7 CFR Part 923
Agreement and Order No. 923 (7 CFR
[Docket No. FV04–923–1 FR]
part 923) regulating the handling of
sweet cherries grown in designated
Sweet Cherries Grown in Designated
counties in Washington, hereinafter
Counties in Washington;
referred to as the ‘‘order.’’ The order is
Establishment of Minimum Size and
effective under the Agricultural
Maturity Requirements for Lightly
Marketing Agreement Act of 1937, as
Colored Sweet Cherry Varieties
amended (7 U.S.C. 601–674), hereinafter
AGENCY: Agricultural Marketing Service, referred to as the ‘‘Act.’’
The Department of Agriculture
USDA.
(USDA) is issuing this rule in
ACTION: Final rule.
conformance with Executive Order
12866.
SUMMARY: This rule establishes a
This final rule has been reviewed
minimum size requirement of 11-row
under Executive Order 12988, Civil
size (61⁄64-inch diameter) and a
Justice Reform. This rule is not intended
minimum maturity requirement of 17
to have retroactive effect. This rule will
percent soluble solids for all lightly
not preempt any State or local laws,
colored sweet cherry varieties shipped
regulations, or policies, unless they
to fresh markets under the Washington
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Federal Register / Vol. 70, No. 27 / Thursday, February 10, 2005 / Rules and Regulations
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 (61⁄64inch 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
§ 923.52. Section 923.55 provides that
whenever cherries are regulated
pursuant to § 923.52 or § 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
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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
§ 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 111⁄2-row size. These tolerances are
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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
§ 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
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Federal Register / Vol. 70, No. 27 / Thursday, February 10, 2005 / Rules and Regulations
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 (61⁄64inch 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, 101⁄2 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
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16:15 Feb 09, 2005
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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
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7001
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: https://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.
For the reasons set forth in the
preamble, 7 CFR part 923 is amended as
follows:
I
PART 923—SWEET CHERRIES
GROWN IN DESIGNATED COUNTIES
IN WASHINGTON
1. The authority citation for 7 CFR part
923 continues to read as follows:
I
Authority: 7 U.S.C. 601–674.
2. In § 923.322, the section heading,
paragraphs (b) introductory text, (b)(1),
and (c) are revised to read as follows:
I
§ 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 61⁄64inch in diameter and not more than 5
percent, by count, may be less than 57⁄64inch in diameter.
*
*
*
*
*
(c) Maturity. No handler shall handle,
except as otherwise provided in this
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Federal Register / Vol. 70, No. 27 / Thursday, February 10, 2005 / Rules and Regulations
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
DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Part 984
[Docket No. FV04–984–2 FIR]
Walnuts Grown in California;
Decreased Assessment Rate
Agricultural Marketing Service,
USDA.
ACTION: Final rule.
AGENCY:
SUMMARY: The Department of
Agriculture (USDA) is adopting, as a
final rule, an interim final rule which
decreased the assessment rate
established for the Walnut Marketing
Board (Board) for the 2004–05 and
subsequent marketing years from
$0.0101 to $0.0094 per kernelweight
pound of assessable walnuts. The Board
locally administers the marketing order
(order) which regulates the handling of
walnuts grown in California.
Authorization to assess walnut handlers
enables the Board to incur expenses that
are reasonable and necessary to
administer the program. The marketing
year began August 1 and ends July 31.
The assessment rate will remain in
effect indefinitely unless modified,
suspended, or terminated.
EFFECTIVE DATE: March 14, 2005.
FOR FURTHER INFORMATION CONTACT: Toni
Sasselli, Program Analyst, or Kurt J.
Kimmel, Regional Manager, California
Marketing Field Office, Marketing Order
Administration Branch, Fruit and
Vegetable Programs, AMS, USDA, 2202
Monterey Street, Suite 102B, Fresno,
California 93721; Telephone: (559) 487–
5901, Fax: (559) 487–5906; or George
Kelhart, Technical Advisor, Marketing
Order Administration Branch, Fruit and
Vegetable Programs, AMS, USDA, 1400
Independence Avenue SW., Stop 0237,
Washington, DC 20250–0237;
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16:15 Feb 09, 2005
Jkt 205001
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.
This rule
is issued under Marketing Agreement
and Order No. 984, both as amended (7
CFR part 984), regulating the handling
of walnuts grown in California,
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.’’
USDA is issuing this rule in
conformance with Executive Order
12866.
This rule has been reviewed under
Executive Order 12988, Civil Justice
Reform. Under the marketing order now
in effect, California walnut handlers are
subject to assessments. Funds to
administer the order are derived from
such assessments. It is intended that the
assessment rate as issued herein will be
applicable to all assessable walnuts
beginning on August 1, 2004, and
continue until amended, suspended, or
terminated. 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 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 rule continues in effect the
action that decreased the assessment
rate established for the Board for the
2004–05 and subsequent marketing
SUPPLEMENTARY INFORMATION:
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years from $0.0101 to $0.0094 per
kernelweight pound of assessable
walnuts.
The order provides authority for the
Board, with the approval of the USDA,
to formulate an annual budget of
expenses and collect assessments from
handlers to administer the program. The
members of the Board are producers and
handlers of California walnuts. They are
familiar with the Board’s needs and
with the costs for goods and services in
their local area and are thus in a
position to formulate an appropriate
budget and assessment rate. The
assessment rate is formulated and
discussed in a public meeting. Thus, all
directly affected persons have an
opportunity to participate and provide
input.
For the 2003–04 and subsequent
marketing years, the Board
recommended, and USDA approved, an
assessment rate of $0.0101 per
kernelweight pound of assessable
walnuts that would continue in effect
from year to year unless modified,
suspended, or terminated by USDA
upon recommendation and information
submitted by the Board or other
information available to USDA.
The Board met on September 10,
2004, and unanimously recommended
2004–05 expenditures of $2,749,500 and
an assessment rate of $0.0094 per
kernelweight pound of assessable
walnuts. In comparison, last year’s
budgeted expenditures were $2,863,350.
The assessment rate of $0.0094 is
$0.0007 lower than the $0.0101 rate
previously in effect. The lower
assessment rate is necessary because
this year’s crop is estimated by the
California Agricultural Statistics Service
(CASS) to be 325,000 tons (292,500,000
kernelweight pounds merchantable),
and the budget is about 4 percent less
than last year’s budget. Sufficient
income should be generated at the lower
rate for the Board to meet its anticipated
expenses.
Major categories in the budget
recommended by the Board for 2004–05
include $2,037,500 for research and
marketing programs ($1,393,500 for
market research and development,
$550,000 for production research, and
$94,000 to the California Agricultural
Statistics Service for a crop estimate),
$332,000 for employee expenses
(administrative and office salaries,
payroll taxes, workers compensation,
and other employee benefits), $97,000
for office expenses (rent, office supplies,
telephone, fax, postage, printing,
equipment maintenance, and furniture),
$96,000 for other operating expenses
(management travel, field travel,
insurance, and financial audits), $5,000
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]]>Agencies
[Federal Register Volume 70, Number 27 (Thursday, February 10, 2005)]
[Rules and Regulations]
[Pages 6999-7002]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 05-2545]
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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
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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
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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
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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
