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contains regulatory documents having general

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REGISTER issue of each week.

Rules and Regulations Federal Register

31663 

Vol. 75, No. 107 

Friday, June 4, 2010 

DEPARTMENT OF AGRICULTURE 

Agricultural Marketing Service 

7 CFR Part 923 

[Doc. No. AMS–FV–09–0033; FV09–923–1 

FR] 

Sweet Cherries Grown in Designated 

Counties in Washington; Change in the 

Handling Regulation 

AGENCY: Agricultural Marketing Service, 

USDA. 

ACTION: Final rule. 

SUMMARY: This rule revises the handling 

regulation 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 adds 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: Effective Date: June 5, 2010. 

FOR FURTHER INFORMATION CONTACT: 

Robert Curry or Gary 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: 

AntoinetteCarter@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 rule 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 final rule changes the handling 

regulation for cherries under the order. 

Specifically, this rule adds minimum 

requirements for Rainier cherries and 

other lightly-colored sweet cherry 

varieties that are designated as 

‘‘premium’’ when marketed. Under this 

regulation, when labeled ‘‘premium, a 

Rainier cherry or other lightly-colored 

sweet cherry variety container 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 is intended to 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 

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 


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31664 Federal Register / Vol. 75, No. 107 / Friday, June 4, 2010 / Rules and Regulations 

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. Prior to this change in the 

handling regulations, there was 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 change, industry handlers 

will 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 will add 

further incentive to produce superior 

quality sweet cherries and strengthen 

the producer’s position in the 

marketplace. 

This rule requires any regulated 

handler packing cherries with the 

‘‘premium’’ designation to adhere to the 

new requirements as provided in new 

section 923.322(e). All cherries not so 

designated continue to be allowed to be 

marketed without regard to the new 

requirements. Nevertheless, all sweet 

cherries must continue to meet the other 

minimum requirements of the order and 

the order’s regulations. 

Further changes are made to § 923.322 

to reflect the addition of the new 

requirements. The existing paragraph (e) 

is redesignated as paragraph (d), and the 

introductory sentence of paragraph (g) is 

revised to reference the new paragraph 

(e). 

Final 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 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. 

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 

negative pricing pressure that some 

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 price depressing 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 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 

May 14, 2009 Committee meeting. This 

is largely due to consumer preference 

for lightly colored cherries that exhibit 

a reddish blush. 

The Committee believes that this 

change will not negatively impact either 

small or large handlers or producers. 

Comments made at the May 14, 2009 

meeting indicate that a majority of the 

Washington sweet cherry industry is 

already packing to such standards or 

better. Comments also indicate that it is 

possible to control the amount of blush 

on lightly-colored sweet cherries, 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 by controlling 

how much direct sunlight makes it 

though the foliage to the fruit. 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. 

Among the alternative actions 

discussed by the Committee at the May 

14, 2009 meeting was a potential 

requirement that there be a minimum 

percentage of reddish color on all 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 meeting, 

however, indicated that a mandatory 

change in size and pack requirements 


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Federal Register / Vol. 75, No. 107 / Friday, June 4, 2010 / Rules and Regulations 31665 

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 does 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. 

In addition, 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. 

A proposed rule concerning this 

action was published in the Federal 

Register on March, 8, 2010 (75 FR 

10442). Copies of the rule were made 

available to all Committee members and 

sweet cherry handlers. The proposed 

rule was also made available through 

the Internet by USDA and the Office of 

the Federal Register. A 60-day comment 

period ending May 7, 2010, was 

provided to allow interested persons to 

respond to the proposal. No comments 

were received. 

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=Template

N&page=MarketingOrdersSmall

BusinessGuide. Any questions about the 

compliance guide should be sent to 

Antoinette Carter 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. 

It is further found that good cause 

exists for not postponing the effective 

date of this rule until 30 days after 

publication in the Federal Register (5 

U.S.C. 553) because the 2010 cherry 

harvest may start as early as the last 

week in May and handlers will want to 

take advantage of the potential 

economic benefits of this rule. Further, 

handlers are aware of this rule, which 

was recommended at a public meeting. 

Finally, a 60-day comment period was 

provided for in the proposed rule. 

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: 

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, 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: May 28, 2010. 

Rayne Pegg, 

Administrator, Agricultural Marketing 

Service. 

[FR Doc. 2010–13408 Filed 6–3–10; 8:45 am] 

BILLING CODE 3410–02–P 

FEDERAL RESERVE SYSTEM 

12 CFR Part 205 

[Regulation E; Docket No. R–1343] 

Electronic Fund Transfers 

AGENCY: Board of Governors of the 

Federal Reserve System. 

ACTION: Final rule. 

SUMMARY: On November 17, 2009, the 

Board published a final rule amending 

Regulation E, which implements the 

Electronic Fund Transfer Act, and the 

official staff commentary to the 

regulation (Regulation E final rule). The 

Regulation E final rule limited the 

ability of financial institutions to assess 

overdraft fees for paying automated 

teller machine (ATM) and one-time 

debit card transactions that overdraw a 

consumer’s account, unless the 

consumer affirmatively consents, or opts 

in, to the institution’s payment of 

overdrafts for those transactions. The 

Board is amending Regulation E and the 

official staff commentary to clarify 

certain aspects of the Regulation E final 

rule. 

DATES: This rule is effective July 6, 

2010. 

FOR FURTHER INFORMATION CONTACT: 

Dana E. Miller or Vivian W. Wong, 

Senior Attorneys, or Ky Tran-Trong, 

Counsel, Division of Consumer and 

Community Affairs, at (202) 452–3667 

or (202) 452–2412, Board of Governors 

of the Federal Reserve System, 20th and 

C Streets, NW., Washington, DC 20551. 

For users of Telecommunications 

Device for the Deaf (TDD) only, contact 

(202) 263–4869. 

SUPPLEMENTARY INFORMATION: 

I. Background 

In November 2009, the Board adopted 

a final rule under Regulation E, which 

implements the Electronic Fund 

Transfer Act (EFTA), limiting a financial 

institution’s ability to assess fees for 

paying ATM and one-time debit card 

transactions pursuant to the institution’s 

overdraft service without the 

consumer’s affirmative consent. The 

rule was published in the Federal 

Register in November 2009 and has a 

mandatory compliance date of July 1, 

2010. See 74 FR 59033 (November 17, 

2009) (Regulation E final rule). 


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