This section of the FEDERAL REGISTER

contains notices to the public of the proposed

issuance of rules and regulations. The

purpose of these notices is to give interested

persons an opportunity to participate in the

rule making prior to the adoption of the final

rules.

Proposed Rules Federal Register

63958

Vol. 69, No. 212

Wednesday, November 3, 2004

DEPARTMENT OF AGRICULTURE 

Agricultural Marketing Service 

7 CFR Part 923

[Docket No. FV04–923–1 PR] 

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: Proposed rule.

SUMMARY: This rule invites comments 

on 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 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. Currently, only the 

Rainier variety of lightly colored sweet 

cherries must meet 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.

DATES: Comments must be received by 

January 3, 2005.

ADDRESSES: Interested persons are 

invited to submit written comments 

concerning this rule. Comments must be 

sent to the Docket Clerk, Marketing 

Order Administration Branch, Fruit and 

Vegetable Programs, AMS, USDA, 1400 

Independence Avenue SW., STOP 0237, 

Washington, DC 20250–0237; Fax: (202) 

720–8938; E-mail: 

moab.docketclerk@usda.gov; or Internet: 

http://www.regulations.gov. Comments 

should reference the docket number and 

the date and page number of this issue 

of the Federal Register and will be 

available for public inspection in the 

Office of the Docket Clerk during regular 

business hours, or can be viewed at: 

http://www.ams.usda.gov/fv/moab.html.

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 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 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 proposal has been reviewed 

under Executive Order 12988, Civil 

Justice Reform. This rule is not intended 

to have retroactive effect. This proposal 

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 proposal invites comments on 

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. 

Currently, Rainier variety cherries are 

the only lightly colored sweet cherries 

under these requirements. This rule 

would establish 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 proposal believe 

that such a regulation would be 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 

Federal Register / Vol. 69, No. 212 / Wednesday, November 3, 2004 / Proposed Rules 63959

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 proposal 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 would 

reduce the volume of such cherries on 

the market and reduce overall returns 

on the crop. Some believe that the 

additional cost of inspection would 

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 proposes adding 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 would 

be provided for undersized lightly 

colored sweet cherries. Further, the 

regulation would provide that not more 

than 5 percent of lightly colored sweet 

cherries in any lot could be less than 

57⁄64-inch in diameter, which is 111⁄2-

row size, one size lower than the 11-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 would also be revised 

to include that any lot of lightly colored 

sweet cherries would have to contain a 

minimum of 17 percent soluble solids. 

The percentage of soluble solids would 

be determined by using a refractometer 

to measure the sugar level in a 

composite sample of cherries. This 

maturity test would be taken 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. The rule would be 

effective April 1, 2005, the beginning of 

the next marketing season. 

This rule would also change the 

section heading of § 923.322 from 

‘‘Washington Cherry Regulation 22’’ to 

‘‘Washington Cherry Handling 

Regulation’’ to more accurately describe 

the requirements contained therein. 

Initial 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 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 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 

reported by the 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 proposal would establish 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 that can 

be shipped to fresh markets. Currently, 

Rainier variety cherries are the only 

lightly colored sweet cherries currently 

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 

63960 Federal Register / Vol. 69, No. 212 / Wednesday, November 3, 2004 / Proposed Rules 

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 proposed rule would 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 proposed 

rule would 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. 

USDA has not identified any relevant 

Federal rules that duplicate, overlap or 

conflict with this proposed rule. 

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. 

Finally, interested persons are invited to 

submit information on the regulatory 

and informational impacts of this action 

on small businesses. 

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.

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 proposed to 

be 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. In § 923.322, paragraphs (b) 

introductory text, (b)(1), and (c) are 

revised to read as follows:

§ 923.322 Washington Cherry Regulation 

22.

* * * * *

(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 

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: October 27, 2004. 

A.J. Yates, 

Administrator, Agricultural Marketing 

Service.

[FR Doc. 04–24443 Filed 11–2–04; 8:45 am] 

BILLING CODE 3410–02–P

DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration 

14 CFR Part 39

[Docket No. FAA–2004–19494; Directorate 

Identifier 2004–NM–135–AD] 

RIN 2120–AA64

Airworthiness Directives; Airbus Model 

A318, A319, A320, and A321 Series 

Airplanes Equipped With Air Cruisers/

Aerazur Forward and Aft Passenger 

Door Emergency Escape Slides

AGENCY: Federal Aviation 

Administration (FAA), DOT.

ACTION: Notice of proposed rulemaking 

(NPRM). 

SUMMARY: The FAA proposes to adopt a 

new airworthiness directive (AD) for 

certain Airbus Model A318, A319, 

A320, and A321 series airplanes 

equipped with certain forward and aft 

passenger door emergency escape slides. 

This proposed AD would require 

modifying the forward and aft door 

slides. This proposed AD is prompted 

by manufacturer testing that has shown 

contact between the inflation hose and 

fabric roll, within a short period of time 

after inflation of the emergency escape 

slides, can rupture the inflation hose at 

its end fittings. We are proposing this 

AD to prevent interference between the 

inflation hose and slide fabric and 

rupture of the inflation hose, which 

could result in incomplete inflation of 

the emergency escape slides and 

consequent unavailability of those 

slides during an emergency evacuation.

DATES: We must receive comments on 

this proposed AD by December 3, 2004.

ADDRESSES: Use one of the following 

addresses to submit comments on this 

proposed AD. 

• DOT Docket web site: Go to

http://dms.dot.gov and follow the 

instructions for sending your comments 

electronically. 

• Government-wide rulemaking web 

site: Go to http://www.regulations.gov

and follow the instructions for sending 

your comments electronically. 

• Mail: Docket Management Facility, 

U.S. Department of Transportation, 400 

Seventh Street SW, Nassif Building, 

room PL–401, Washington, DC 20590. 

• By fax: (202) 493–2251. 

• Hand Delivery: Room PL–401 on 

the plaza level of the Nassif Building, 

400 Seventh Street SW., Washington, 

DC, between 9 a.m. and 5 p.m., Monday 

through Friday, except Federal holidays. 

For service information identified in 

this proposed AD, contact Airbus, 1 

Rond Point Maurice Bellonte, 31707 

Blagnac Cedex, France. 

You can examine the contents of this 

AD docket on the Internet at http://

dms.dot.gov, or at the Docket 

Management Facility, U.S. Department 

of Transportation, 400 Seventh Street 

SW., room PL–401, on the plaza level of 

the Nassif Building, Washington, DC.

FOR FURTHER INFORMATION CONTACT: 

Technical information: Dan Rodina, 

Aerospace Engineer, International 

Branch, ANM–116, FAA, Transport 

Airplane Directorate, 1601 Lind 

Avenue, SW., Renton, Washington 

98055–4056; telephone (425) 227–2125; 

fax (425) 227–1149. 

Plain language information: Marcia 

Walters, marcia.walters@faa.gov.