56 Agric. Dec. 1045

2. Recommended effective date and reason that date is needed.

Effective date by mid-May. Rainier harvests begins in June but we need time to notify the industry of the regulations.

Small, sour cherries getting to the market. These cherries ruin the later market for the larger, sweeter cherries.

5.

6.

Small, sour cherries getting the early market. Consumers will not buy the larger cherries after buying the earlier small fruit.

How recommendation will address or correct the situation.

By regulating the row size, the cherries will have the sugar content that is needed for this variety. The larger the cherry the sweeter it is.

Whether there are viable alternatives to the recommended action.

The only viable alternative would be for the Committee to recommend the warehouses set their own row size. Some warehouses have done this with good results.

9.

Most Rainier growers are small business people. The acreage is small compared to the dark sweet cherries. Larger cherries on the market would bring greater returns to the growers.

Vote on the recommendation and a discussion of the reasons for dissenting votes.

Yea 13 Nay - 1. Nay voted against the 101⁄2 Row because he felt it would take too much fruit off the market and they would only go out of the production area to be packed. Not true.

10. Indications that the action is controversial or raises special problems.

Growers with poor farming practices will naturally have smaller fruit. Some orchards use Rainiers as pollenizers and do not prune as heavily as they should. These are the cherries that are not doing the industry a favor. Most Rainier growers have specific blocks of Rainiers. This regulation has long been mentioned by the Rainier growers as what the industry needs to have a good marketable product for the

consumer.

[RX 3 at 1-2.]

6. There was opposition to [Washington Cherry Marketing] Committee's [recommendation], including the submission of various written letters. A typical reply by the Department to various commentators was similar to, or the same, as:

Dear Mr... .:

This is in response to your letter regarding the Washington Cherry Marketing Committee's (committee) recommendation to limit the size, to 101⁄2 row and larger, of Rainier variety cherries that can be sold on the fresh market.

The Department of Agriculture (Department) has received a number of letters from Washington cherry growers and shippers both in support of, and in opposition to, the committee's recommendation. Given this lack of consensus, we have asked the committee to reconsider the need to regulate Rainier variety cherries, particularly in light of the concerns raised in these letters. (Copies have been supplied to the committee.) The committee has agreed to hold a meeting March 15, 1994, where it will further discuss this issue. We at the Department encourage you to participate in this meeting to express any further concerns you have.

56 Agric. Dec. 1045

We appreciate your interest regarding this proposal.

Sincerely,

/s/ Anne M. Dec

for Ronald L. Cioffi, Chief

Marketing Order Administration Branch

cc: Gary Olson, OIC, NWMFO

[RX 4 at 13.]

7. The Chairman of the Washington Cherry Marketing Committee[, Mr. Truman Yeager,] was advised by Mr. Cioffi, Chief, Marketing Order Administration Branch, [by letter] dated February 14, 1994:

As you may be aware, we have received a number of letters from Washington cherry growers and shippers both in support of, and in opposition to, the committee's recommendation. Some of the handlers raised concerns that were not addressed in the information we received from the committee in support of this rulemaking action. We would appreciate the committee responding to the concerns raised in these letters to assist us in making a decision on this matter. (Copies of the letters are enclosed for your information.) This reconsideration should take place in an open committee meeting to allow all interested parties to participate in the discussion of this issue.

[RX 6 at 1.]

8. A special meeting was called and held on March 15, 1994, to reconsider the matter and to include the views of those who were opposed to the [Washington Cherry Marketing] Committee's actions. In addition to hearing statements by growers and handlers, the Committee heard a presentation by Robert A. Brown, an Engineering Consultant from Wenatchee, Washington. Inherent in some of the discussions of the March 15, 1994, special meeting was the fact that a minimum Brix(******] sugar content would be a desirable factor. As a result, the Committee,

[ "Brix relates to the Brix scale of the 19th Century Austrian scientist, Adolph F. Brix: "a hydrometer scale for sugar solutions so graduated that its readings at a specified temperature represent percentages by weight of sugar in the solution--called also Brix." Webster's Ninth New Collegiate

on March 15, 1994, proposed recommending the minimum size of 11 row and a composite sample of 17 Brix minimum per grower lot [(RX 6 at 5, 19-20)].

9. The [Washington Cherry Marketing] Committee's recommendation on size and Brix was forwarded to the Agricultural Marketing Service [(RX 7 at 1)]; was published in the Federal Register [as a notice of proposed rule making] on May 19, 1994 (59 Fed. Reg. 26,148) [(RX 7 at 4)]; was adopted by the Department and incorporated in 7 C.F.R. pt. 923, and the final rule was published on June 21, 1994 (59 Fed. Reg. 31,917) [(RX 7 at 13)]. Among other things, the final rule

states:

The general consensus of the Washington cherry industry is that the shipment of poor quality Rainier cherries is disrupting the marketplace and that some minimum quality standards are needed to maintain the Rainier cherry market. However, some disagreement was expressed at the committee meeting as to precisely what those minimum standards should be.

Some questioned, for example, the 10%1⁄2 row size requirement initially recommended by the committee, saying that this requirement would result in too many cherries being diverted to processors (an outlet exempt from regulation). Others stated that the smaller 11 row cherries have adequate sugar content. Still others opposed any size requirement, believing that other criteria (e.g., maturity levels) are more important than size and that size bears no relationship to those criteria. Additionally, concern was expressed that producers at higher elevations would be more adversely impacted than other producers by a minimum size requirement.

In regards to this last concern, the committee concluded that producers at higher elevations should not be adversely impacted by the 11 row minimum size regulation, since these producers have demonstrated the ability to produce other varieties at acceptable sizes (e.g., Bing cherries). Further, a number of producers who farm at higher elevations attended the meeting, and stated that they would not have a problem meeting the proposed minimum size requirement, and that proper cultural practices (including pruning) would ensure that other producers achieve appropriate sizing.

In an attempt to reach an industry compromise, the committee rescinded its December recommendation to establish a minimum size

Dictionary 180 (1986).]

56 Agric. Dec. 1045

requirement for Rainier cherries at 101⁄2 row size. It recommended instead a lower minimum size requirement of 11 row, coupled with a maturity requirement of at least 17 percent soluble solids. This recommendation is considered to be conservative, in that most handlers in the Washington cherry industry pack to higher standards. The committee intends to conduct research during the 1994 and subsequent seasons to determine whether further refinements in Rainier variety cherry standards are needed.

[59 Fed. Reg. at 31,919; RX 7 at 15.] The Department [also] noted [in the final rule making document] that prices for fresh cherries tend to be highest early in the season and that this "price trend serves as an incentive for producers to harvest early, which has resulted in immature, sour Rainier cherries being marketed." [(59 Fed. Reg. at 31,919; RX 7 at 15)]. The Department placed emphasis on the maturity of Rainier cherries being marketed when it adopted the minimum 17 Brix level. In the final rule, Agricultural Marketing Service discussed parity price: "The AMS has calculated an equivalent parity price for Washington sweet cherries of $2,083 per ton, and does not expect that prices received during the 1994 season will exceed parity levels." 59 Fed. Reg. at 31,920 [(RX 7 at 16)].

10. [Section 8c(15)(A) of the AMAA] (7 U.S.C. § 608c(15)(A)) provides that only handlers [subject to an Order] may file a written petition. See In re M & R Tomato Distribs., Inc., 41 Agric. Dec. 33 (1982); In re Sequoia Orange Co., 40 Agric. Dec. 1908 (1981). [Section] 923.41 [of the Cherry Order] provides . . .:

§ 923.41 Assessments.

(a)

Each person who first handles cherries shall, with respect to the cherries so handled by him, pay to the committee upon demand such person's pro rata share of the expenses which the Secretary finds will be incurred by the committee during each fiscal period. Each such person's share of such expenses shall be equal to the ratio between the total quantity of cherries handled by him as the first handler thereof during the applicable fiscal period and the total quantity of cherries so handled by all persons during the same fiscal period.... (Emphasis added [by the ALJ]).

[7 C.F.R. § 923.41(a).]

Section 923.12 of the [Cherry] Order [states] that "[h]andler is synonymous with shipper and means any person (except a common or contract carrier