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

10442 

Vol. 75, No. 44 

Monday, March 8, 2010 

DEPARTMENT OF AGRICULTURE 

Agricultural Marketing Service 

7 CFR Part 923 

[Doc. No. AMS–FV–09–0033; FV09–923–1 

PR] 

Sweet Cherries Grown in Designated 

Counties in Washington; Change in the 

Handling Regulation 

AGENCY: Agricultural Marketing Service, 

USDA. 

ACTION: Proposed rule. 

SUMMARY: This rule invites comments 

on proposed changes to the handling 

regulation currently prescribed for 

cherries 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 

would add quality and pack 

requirements for Rainier cherries and 

other lightly colored sweet cherry 

varieties that are designated as 

‘‘premium’’ when handled. This change 

is expected to reduce market confusion 

regarding the marketing of such 

cherries; improve producer returns by 

providing pack differentiation; and 

benefit producers, handlers, and 

consumers. 

DATES: Comments must be received by 

May 7, 2010. 

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; or Internet: http:// 

www.regulations.gov. All comments 

should reference the document number 

and the date and page number of this 

issue of the Federal Register and will be 

made available for public inspection in 

the Office of the Docket Clerk during 

regular business hours, or can be viewed 

at: http://www.regulations.gov. All 

comments submitted in response to this 

rule will be included in the record and 

will be made available to the public. 

Please be advised that the identity of the 

individuals or entities submitting the 

comments will be made public on the 

Internet at the address provided above. 

FOR FURTHER INFORMATION CONTACT: 

Robert J. Curry or Gary D. Olson, 

Northwest Marketing Field Office, 

Marketing Order Administration 

Branch, Fruit and Vegetable Programs, 

AMS, USDA, 1220 SW Third Avenue, 

suite 385, Portland, Oregon 97204; 

Telephone: (503) 326–2724, Fax: (503) 

326–7440, or E-mail: 

Robert.Curry@ams.usda.gov or 

GaryD.Olson@ams.usda.gov. 

Small businesses may request 

information on complying with this 

regulation by contacting Antoinette 

Carter, 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: 

Antoinette.Carter@ams.usda.gov. 

SUPPLEMENTARY INFORMATION: This rule 

is issued under Marketing Agreement 

and Order No. 923, both as amended (7 

CFR part 923), regulating the handling 

of 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. 

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. A 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 

proposed changes to the handling 

regulation currently prescribed for 

cherries under the order. Specifically, 

this rule would add minimum 

requirements for Rainier cherries and 

other lightly-colored sweet cherry 

varieties that are designated as 

‘‘premium’’ when marketed. Under this 

proposal, such Rainier cherries or other 

varieties of lightly colored sweet 

cherries must be packed so that at least 

90 percent, by count, of the cherries in 

any lot shall measure not less than 64/ 

64-inch (101⁄2-row) in diameter and not 

more than 5 percent, by count, may be 

less than 61/64-inch (11-row) in 

diameter. In addition, 90 percent, by 

count, of the cherries in any lot must 

exhibit a pink-to-red surface blush. For 

any given sample, not more than 20 

percent of the cherries shall be absent a 

pink-to-red surface blush. 

This change would help reduce 

market confusion and improve producer 

returns by providing pack 

differentiation and is expected to benefit 

producers, handlers, and consumers. 

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. 

Section 923.322 of the order’s rules 

and regulations currently provide grade, 

size, maturity, and pack regulations for 

Washington grown sweet cherries. 

Rainier cherries and other lightlycolored sweet cherry varieties have 

variety-specific minimum size and 

maturity requirements as well as the 

same pack requirements as all 

Washington sweet cherries, but do not 


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Federal Register / Vol. 75, No. 44 / Monday, March 8, 2010 / Proposed Rules 10443 

share the minimum grade requirements 

with dark colored cherries. 

As just stated, Rainier cherries and 

other lightly- colored sweet cherry 

varieties have certain current mandatory 

grading requirements, including a 

minimum maturity requirement of 17 

percent soluble solids and a minimum 

size requirement of 61/64-inch diameter 

(11-row) as provided in section 

923.322(c). However, lightly-colored 

varieties are not currently required to 

meet a minimum grade or pack 

standard. As a consequence, the cherry 

industry markets several different 

qualities or packs of lightly colored 

sweet cherries without the benefit of 

any clear differentiation between 

competing products. This lack of 

differentiation in the marketing of 

lightly-colored sweet cherries has led to 

market confusion and downward 

pricing pressure in recent years. 

The worldwide retail trade is 

currently demanding a consistently 

large lightly-colored sweet cherry that 

arrives with a pink to red blush on its 

external surface. Likewise, the retail 

trade is willing to pay a premium price 

for large lightly-colored sweet cherries 

that consistently exhibit this surface 

blush. Conversely, the market for 

lightly-colored sweet cherries without a 

blush—cherries pure yellow in color— 

is decreasing and this sub-group of 

cherries is generally sold at a lower 

market price. Within the order’s existing 

handling regulation, there is no clear 

articulation of a ‘‘premium’’ designation 

within the lightly-colored cherry 

category and buyers have used the price 

of the packs containing all-yellow 

cherries to put downward pricing 

pressure on cherries that have been 

produced with the preferred pink-to-red 

blush. 

With this proposed change, industry 

handlers would be able to differentiate 

packs of lightly colored cherries and the 

price point that comes with producing 

a superior sweet cherry. It is also 

expected that the change would add 

further incentive to produce superior 

quality sweet cherries and strengthen 

the producer’s position in the 

marketplace. 

This rule would require any regulated 

handler handling cherries with the 

‘‘premium’’ designation to adhere to the 

new requirements as provided in new 

section 923.322(e). All cherries not so 

designated would continue to be 

allowed to be marketed without regard 

to the new requirements. 

Notwithstanding, all sweet cherries 

must continue to meet the other 

minimum requirements of the order and 

regulations. 

Conforming changes would be made 

to § 923.322 to reflect the addition of the 

new requirements. The existing 

paragraph (e) would be redesignated as 

paragraph (d), and the introductory 

sentence of paragraph (g) would be 

revised to reference the new paragraph 

(e). 

Initial Regulatory Flexibility Analysis 

Pursuant to requirements set forth in 

the Regulatory Flexibility Act (RFA) 

(5 U.S.C. 601–612), the Agricultural 

Marketing Service (AMS) has 

considered the economic impact of this 

action on small entities. Accordingly, 

AMS has prepared this initial regulatory 

flexibility analysis. 

The purpose of the RFA is to fit 

regulatory actions to the scale of 

business subject to such actions in order 

that small businesses will not be unduly 

or disproportionately burdened. 

Marketing orders issued pursuant to the 

Act, and the rules issued thereunder, are 

unique in that they are brought about 

through group action of essentially 

small entities acting on their own 

behalf. 

There are approximately 44 handlers 

of Washington sweet cherries subject to 

regulation under the marketing order 

and approximately 1,500 cherry 

producers in the regulated area. Small 

agricultural service firms are defined by 

the Small Business Administration 

(SBA) (13 CFR 121.201) as those having 

annual receipts of less than $7,000,000, 

and small agricultural producers are 

defined as those having annual receipts 

of less than $750,000. 

Based on the 2005–2007 three-year 

average fresh cherry utilization of 

121,666 tons and average fresh cherry 

producer price of $2,400 per ton as 

reported by the National Agricultural 

Statistics Service, USDA, and 1,500 

Washington cherry producers, the 

recent three-year average annual 

producer revenue was approximately 

$194,666. In addition, the Committee 

reports that none of the 44 handlers 

have annual receipts of over $7,000,000. 

Based on this information, the majority 

of Washington sweet cherry producers 

and handlers may be classified as small 

entities. 

Utilizing authority contained in 

sections 923.52, 923.53, and 923.55, the 

Committee recommended that a 

definition for premium packed lightlycolored sweet cherries be added to 

section 923.322(h) in the order’s 

handling regulation to identify the 

minimum size and color requirements 

that a premium packed cherry must 

meet. In addition, to help stabilize the 

downwards pricing pressure that 

varying unmarked grades have on the 

market, the Committee recommended 

adding a new paragraph 923.322(e)(3) to 

this subpart establishing a requirement 

that all cherries packed in containers 

marked ‘‘premium’’ must adhere to the 

definition. 

USDA subsequently determined that, 

rather than adding a new definition, it 

would be more appropriate to add 

minimum requirements for cherries that 

are designated as ‘‘premium’’ to section 

923.322 of the handling regulation. 

The Committee reports that cherry 

size and quality are important to buyers. 

Consistency and dependability are 

equally important. In recent seasons, 

there has not been marketing 

consistency in the quality and size of 

lightly-colored cherries. This has 

resulted in a downwards pricing 

pressure on all cherries, regardless of 

the quality, color, and size of the fruit 

packed. 

Cherry size is related to maturity and 

other quality factors. That is, larger 

sized cherries tend to be sweeter and of 

higher overall quality, and thus 

generally provide higher prices for the 

producer. Although AMS Market News 

Service data is not reported for Rainier 

cherries smaller than 101⁄2-row (1-inch 

diameter), this correlation is supported 

by prices received for Bing cherries of 

various sizes. For example, the Market 

News Service reported f.o.b. prices for 

12-row sized Bing cherries (54/64 inch 

diameter) of $24.00 per carton in late 

June 2007. Concurrently, 101⁄2-row size 

Bing cherries were selling for $35.00 to 

$36.00 per carton (101⁄2-row Rainier 

cherries were being quoted by Market 

News at $35.00 to $40.00 per carton in 

late June 2007). This price relationship 

generally holds steady throughout each 

season. Furthermore, market research by 

the Washington cherry industry shows 

that larger sizes correlate with higher 

maturity levels, and that larger sizes are 

preferred by cherry consumers. 

Although research showing a 

correlation between the flavor of lightlycolored sweet cherry varieties and the 

degree of reddish blush is lacking, 

actual market experience has shown the 

industry that a definite price correlation 

exists according to remarks made at the 

recent Committee meeting. This is 

largely due to consumer preference for 

lightly colored cherries that exhibit a 

reddish blush. 

The Committee believes that this 

change would not have a negative 

impact economically on either small or 

large handlers or producers. Comments 

received at the May 14, 2009, meeting 

indicate that the majority of the 

Washington sweet cherry industry is 

already packing to such standards or 

better. Comments also indicate that it is 


srobinson on DSKHWCL6B1PROD with PROPOSALS
10444 Federal Register / Vol. 75, No. 44 / Monday, March 8, 2010 / Proposed Rules 

relatively easy to produce lightlycolored sweet cherries with a pink to 

reddish surface blush, since the added 

color is related to the amount of direct 

sunlight available to the fruit. Pruning 

and other common cultural practices 

can greatly affect the amount of blush 

on the cherries. Finally, since this 

change is only required should a 

handler choose to pack and mark 

lightly-colored cherries to the 

‘‘premium’’ standard, any additional 

costs can be eliminated by the handler. 

The Committee discussed alternatives 

to the recommended action. The most 

significant alternative would have been 

a recommendation that mandated a 

minimum percentage of reddish color 

on lightly colored sweet cherries, as 

well as a mandatory increase in the 

minimum size (currently 11-row size or 

61/64 minimum diameter). There were 

other various options briefly discussed 

under this alternative related to sizing 

and the actual degree of blush. 

Comments from many of those attending 

the May 14th meeting indicated that a 

mandatory change in size and pack 

requirements would not be well 

received by the industry at this time, 

and that the less restrictive 

recommendation subsequently made 

should adequately solve the current 

marketing problem. 

This 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 duplication by 

industry and public sector agencies. In 

addition, USDA has not identified any 

relevant Federal rules that duplicate, 

overlap or conflict with this rule. 

AMS is committed to complying with 

the E-Government Act, to promote the 

use of the Internet and other 

information technologies to provide 

increased opportunities for citizen 

access to Government information and 

services, and for other purposes. 

Further, the Committee meeting was 

widely publicized throughout the 

Washington cherry industry and all 

interested persons were invited to 

attend the meeting and participate in 

the deliberations. Like all Committee 

meetings, the May 14, 2009, meeting 

was a public meeting and all entities, 

both large and small, were able to 

express their views on this issue. 

Finally, interested persons are invited to 

submit comments on this interim final 

rule, including 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.ams.usda.gov/ 

AMSv1.0/ams.fetchTemplateData.

do?template=TemplateN&page=

MarketingOrdersSmallBusinessGuide. 

Any questions about the compliance 

guide should be sent to Antoinette 

Carter at the previously mentioned 

address in the FOR FURTHER INFORMATION

CONTACT section. 

A 60-day comment period is provided 

to allow interested persons to respond 

to this proposal. All written comments 

received will be considered before a 

final determination is made on this 

matter. 

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. 

§ 923.322 [Amended] 

2. In § 923.322, redesignate paragraph 

(e) as paragraph (d), add a new 

paragraph (e), and revise the 

introductory sentence of paragraph (g) 

to read as follows: 

§ 923.322 Washington cherry handling 

regulation. 

* * * * * 

(e) Light sweet cherries marked as 

premium. No handler shall handle, 

except as otherwise provided in this 

section, any package or container of 

Rainier cherries or other varieties of 

lightly colored sweet cherries marked as 

premium except in accordance with the 

following: 

(1) Quality. 90 percent, by count, of 

such cherries in any lot must exhibit a 

pink-to-red surface blush and, for any 

given sample, not more than 20 percent 

of the cherries shall be absent a pink-tored surface blush. 

(2) Pack. At least 90 percent, by 

count, of the cherries in any lot shall 

measure not less than 64/64-inch (101⁄2- 

row) in diameter and not more than 5 

percent, by count, may be less than 61/ 

64-inch (11-row) in diameter. 

* * * * * 

(g) Exceptions. Any individual 

shipment of cherries which meets each 

of the following requirements may be 

handled without regard to the 

provisions of paragraphs (a), (b), (c), (d), 

and (e) of this section, and of §§ 923.41 

and 923.55. 

* * * * * 

Dated: February 25, 2010. 

Rayne Pegg, 

Administrator, Agricultural Marketing 

Service. 

[FR Doc. 2010–4341 Filed 3–5–10; 8:45 am] 

BILLING CODE P 

NUCLEAR REGULATORY 

COMMISSION 

10 CFR Part 73 

[Docket No. PRM–73–14; NRC–2009–0493] 

Nuclear Energy Institute; Denial of 

Petition for Rulemaking 

AGENCY: Nuclear Regulatory 

Commission. 

ACTION: Petition for rulemaking; denial. 

SUMMARY: The Nuclear Regulatory 

Commission (NRC) is denying a petition 

for rulemaking (PRM) submitted by the 

Nuclear Energy Institute (NEI) (the 

petitioner). The petitioner requested 

that the NRC amend the compliance 

date for specific requirements in the 

NRC’s regulations. The NRC decided to 

deny PRM–73–14 for the reasons stated 

in this document. 

ADDRESSES: You can access publicly 

available documents related to this 

petition for rulemaking using the 

following methods: 

NRC’s Public Document Room (PDR): 

The public may examine and have 

copied for a fee publicly available 

documents at the NRC’s PDR, Room O1 

F21, One White Flint North, 11555 

Rockville Pike, Rockville, Maryland. 

NRC’s Agencywide Documents Access 

and Management System (ADAMS): 

Publicly available documents created or 

received at the NRC are available 

electronically at the NRC’s electronic 

Reading Room at http://www.nrc.gov/ 

reading-rm/adams.html. From this page, 

the public can gain entry into ADAMS, 

which provides text and image files of 

NRC’s public documents. If you do not 

have access to ADAMS or if there are 

problems in accessing the documents 

located in ADAMS, contact the NRC 

PDR reference staff at 1–800–397–4209, 

301–415–4737, or by e-mail to 

pdr.resource@nrc.gov. 

Federal Rulemaking Web site: 

Supporting materials related to this 

petition for rulemaking can be found at 

http://www.regulations.gov by searching 

on Docket ID: NRC–2009–0493. Address 

questions about NRC dockets to Carol 


srobinson on DSKHWCL6B1PROD with PROPOSALS