Sweet Cherries Grown in Designated Counties in Washington; Modification of Handling Regulations

Issuing agencies

Abstract

This final rule implements a recommendation from the Washington Cherry Marketing Committee (Committee) to update the marketing order regulating the handling of sweet cherries grown in designated counties in Washington. This final rule increases the minimum size requirements for all sweet cherry varieties, except the Rainier, Royal Anne, and similar varieties, commonly referred to as "light sweet cherries." In addition, this final rule removes one row count/row size designation, adds two new row count/row size designations, and revises the title of the table in the marketing order's pack requirements table.

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<title>Federal Register, Volume 91 Issue 165 (Thursday, August 27, 2026)</title>
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[Federal Register Volume 91, Number 165 (Thursday, August 27, 2026)]
[Rules and Regulations]
[Pages 55233-55236]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2026-17510]



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Rules and Regulations
                                                Federal Register
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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. 

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Federal Register / Vol. 91, No. 165 / Thursday, August 27, 2026 / 
Rules and Regulations

[[Page 55233]]



DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 923

[Doc. No. AMS-SC-25-0617]


Sweet Cherries Grown in Designated Counties in Washington; 
Modification of Handling Regulations

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: This final rule implements a recommendation from the 
Washington Cherry Marketing Committee (Committee) to update the 
marketing order regulating the handling of sweet cherries grown in 
designated counties in Washington. This final rule increases the 
minimum size requirements for all sweet cherry varieties, except the 
Rainier, Royal Anne, and similar varieties, commonly referred to as 
``light sweet cherries.'' In addition, this final rule removes one row 
count/row size designation, adds two new row count/row size 
designations, and revises the title of the table in the marketing 
order's pack requirements table.

DATES: Effective January 1, 2027.

FOR FURTHER INFORMATION CONTACT: Virginia Tjemsland, Marketing 
Specialist, or Barry Broadbent, Chief, Northwest Region Branch, Market 
Development Division, Specialty Crops Program, AMS, USDA; telephone: 
(503) 326-2724; or email: <a href="/cdn-cgi/l/email-protection#98cef1eafff1f6f1f9b6d4b6ccf2fdf5ebf4f9f6fcd8edebfcf9b6fff7ee"><span class="__cf_email__" data-cfemail="43152a31242a2d2a226d0f6d1729262e302f222d2703363027226d242c35">[email&#160;protected]</span></a> or 
<a href="/cdn-cgi/l/email-protection#ecae8d9e9e95c2ae9e838d888e898298ac999f888dc28b839a"><span class="__cf_email__" data-cfemail="1f5d7e6d6d66315d6d707e7b7d7a716b5f6a6c7b7e31787069">[email&#160;protected]</span></a>.

SUPPLEMENTARY INFORMATION: This action, pursuant to 5 U.S.C. 553, 
amends regulations issued to carry out a marketing order as defined in 
7 CFR 900.2(j). This final rule is issued under the Agricultural 
Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674) (Act), 
amending Marketing Order No. 923 (7 CFR part 923; the Order), 
regulating the handling of sweet cherries grown in designated counties 
of Washington. The Committee locally administers the Order and is 
comprised of growers and handlers of sweet cherries operating within 
the area of production.
    This action is exempt from the Office of Management and Budget 
(OMB) review process required by Executive Order 12866. This rule 
amends existing Marketing Order No. 923, as amended (7 CFR part 923), 
Sweet Cherries Grown in Designated Counties in Washington, and is 
necessary for the continued operation of the Order. Additionally, this 
action is exempt from the requirements of Executive Order 14192, 
``Unleashing Prosperity Through Deregulation,'' pursuant to section 
5(c).
    This final rule has been reviewed under Executive Order 13175, 
``Consultation and Coordination with Indian Tribal Governments,'' which 
requires Federal agencies to consider whether their rulemaking actions 
would have Tribal implications. The Agricultural Marketing Service 
(AMS) has determined this final rule is unlikely to have substantial 
direct effects on one or more Indian Tribes, on the relationship 
between the Federal Government and Indian Tribes, or on the 
distribution of power and responsibilities between the Federal 
Government and Indian Tribes.
    This final rule has been reviewed under Executive Order 12988, 
``Civil Justice Reform.'' This final rule is not intended to have a 
retroactive effect.
    The Act provides that administrative proceedings must be exhausted 
before parties may file suit in court. Under section 608(c)(15)(A) of 
the Act, any handler subject to an order may file with the U.S. 
Department of Agriculture (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.
    Under the Order, sweet cherries produced in designated counties in 
Washington are required to be inspected and are subject to grade, size, 
quality, maturity, pack, and container requirements. This final rule 
increases the minimum size requirements for all sweet cherry varieties, 
except the Rainier, Royal Anne, and similar varieties commonly referred 
to as ``light sweet cherries.'' In addition, this action removes one 
row count/row size designation and adds two new row count/row size 
designations to the Order's pack requirements.
    Section 923.51 of the Order authorizes the Committee to recommend 
handling regulations to the Secretary. Section 923.52 of the Order 
authorizes the Secretary to establish such handling regulations. 
Further, Sec.  923.53 authorizes the Committee to recommend the 
modification, suspension, or termination of handling regulations when 
it finds that industry conditions so dictate. Section 923.322 
establishes the minimum grade, size, quality, maturity, pack, and 
container requirements for sweet cherries handled subject to the Order. 
Section 923.322(b) establishes the Order's minimum size requirements 
and Sec.  923.322(d) details the Order's pack requirements. Section 
923.322(d)(1) includes a table that specifies the allowable row count/
row size designations and the corresponding allowable size variation 
tolerance.
    The Committee held two public meetings on May 22, 2024, and August 
27, 2025, to consider changes to the Order's handling regulations. The 
Committee determined that the production and marketing conditions of 
Washington sweet cherries have changed and that the Order's handling 
regulations should be modified accordingly pursuant to Sec.  923.53. 
The Committee met on May 22, 2024, and recommended, with a vote of nine 
in favor, three opposed, and one abstention, modifying the Order's 
handling regulations by increasing the minimum size requirements for 
all cherries, except cherries of the Rainier, Royal Anne, and other 
similar ``light sweet cherries,'' in Sec.  923.322(b)(2). The Committee 
met again on August 27, 2025, and unanimously recommended, with a vote 
of 12 in favor and none opposed, modifying the Order's pack

[[Page 55234]]

requirements in Sec.  923.322(d)(1). The Committee recommended these 
changes to the Order, discussed in further detail below, to allow the 
industry to maximize market returns and facilitate access to crop 
insurance for growers, when necessary.
    Currently, the size requirements in the Order's handling 
regulations require that at least 90 percent of all sweet cherries, 
except the Rainier, Royal Anne, and other similar ``light sweet 
cherries,'' be a minimum size of 54/64 inch in diameter and not more 
than 5 percent, by count, may be less than 52/64 inch in diameter. In 
addition, under the Order's pack requirements, the minimum row count/
row size designation is 12-row, with at least 90 percent, by count, not 
smaller than 54/64 inch in diameter. The largest defined row count/row 
size designation is an 8-row, with at least 90 percent, by count, not 
allowed to be smaller than 84/64 inch in diameter. Because there is no 
maximum size requirement defined by the Order's handling regulations, 
cherries larger than 84/64 inches in diameter were all designated as 8-
row size/row count. For context, higher number row count/row size 
designations correlate to smaller fruit and lower number row count/row 
size designations correlate to larger size fruit.
    At its meeting on May 22, 2024, the Committee recommended, with a 
vote of nine in favor, three opposed, and one in abstention, modifying 
the Order's handling regulations by increasing the minimum size 
requirements for all cherries, except cherries of the Rainier, Royal 
Anne, and other similar ``light sweet cherries,'' from 54/64 inch in 
diameter (12-row count/row size designation) to 57/64 inch in diameter 
(11\1/2\-row count/row size designation). Under the change, at least 90 
percent, by count, of cherries in any lot will be required to measure 
not less than 57/64 inch in diameter, and not more than 5 percent, by 
count, could measure less than 54/64 inch in diameter. Additionally, 
the Committee recommended eliminating the 12-row count/row size 
designation from the table in the Order's pack requirements to conform 
with the minimum size requirement increase to 57/64 inch in diameter 
(11\1/2\-row count/row size). The three members opposed did not believe 
the recommendation would be good for industry and would limit growers' 
ability to market all their fruit, as in some very specific 
circumstances, 12-row count/row size designated sweet cherries can be 
marketed. The abstaining member wanted additional time to consider the 
recommendation.
    According to the Committee, small size cherries ranging from 54/64 
to 57/64 inch in diameter (12-row count/row size) account for 
approximately 1 to 2 percent of the Washington sweet cherry market 
annually. In addition to making up a very small percentage of sweet 
cherry volume, small size cherries usually command a lower market 
price, which can create competition with the larger size fruit which is 
also produced within the production area. Further, during difficult 
crop years when weather events adversely impact yield and fruit size, 
growers are often required to pick and deliver their 12-row count/row 
size cherries to handlers to qualify for crop insurance coverage, even 
if picking the smaller size cherries is not economically viable. This 
is because crop insurance adjustors typically require harvesting all 
``marketable'' fruit prior to submission of a crop insurance claim, 
even though the smaller size cherries have little market value to the 
grower or the handler. For these reasons, the Committee believes that 
increasing the minimum size requirement to 57/64 inch in diameter and 
eliminating the corresponding 12-row count/row size designation in the 
Order's pack requirements will be beneficial to the industry by 
preventing low value, small size cherries from competing in the market 
against larger, more valuable fruit, and by reducing crop insurance 
barriers for growers following weather-induced crop losses.
    At its public meeting on August 27, 2025, the Committee 
recommended, with a vote of 12 in favor and none opposed, to further 
modify the Order's handling regulations by adding two new row count/row 
size designations to the Order's pack requirements. The rule will add a 
7\1/2\-row count/row size designation, with a minimum 88/64 inches in 
diameter, and a 7-row count/row size designation, with a minimum 92/64 
inches in diameter. Prior to this action, number 8-row count/row size 
(minimum 84/64 inches in diameter) and larger sweet cherries are 
marketed without further size definition, making it difficult for 
industry to differentiate and capitalize on the larger size fruit. The 
Committee believes that adding the two larger size designations will 
benefit growers and handlers of larger size sweet cherries and 
facilitate industry's desire to market larger size cherries in export 
markets at premium prices.
    Therefore, this final rule amends the size requirements in Sec.  
923.322(b)(2) by increasing the minimum size requirement from 54/64 
inch in diameter to 57/64 inch in diameter. Additionally, at least 90 
percent, by count, of cherries in any lot are required to measure not 
less than 57/64 inch in diameter, and not more than 5 percent, by 
count, could measure less than 54/64 inch in diameter. Further, this 
final rule amends the table in Sec.  923.322(d)(1) by removing the 12-
row count/row size designation in Column 1, as well as the 
corresponding minimum 54/64 inch in diameter from same row in Column 2. 
This action also adds two new row count/row size designations to the 
table: a 7\1/2\-row count/row size in Column 1, with a corresponding 
minimum 88/64 inches in diameter in Column 2, and a 7-row count/row 
size in Column 1, with a corresponding minimum 92/64 inches in diameter 
in Column 2. Lastly, this final rule makes a technical amendment to 
revise the title of the pack requirements table to ``Table 1 to 
Paragraph (d)(1).'' For the reasons stated above, the changes in the 
Order's handling regulations effectuated by this final rule are 
expected to benefit growers, handlers, and consumers of Washington 
sweet cherries.

Final Regulatory Flexibility Analysis

    Pursuant to requirements set forth in the Regulatory Flexibility 
Act (RFA) (5 U.S.C. 601-612), AMS has considered the economic impact of 
this final 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 
businesses subject to such actions in order that small businesses will 
not be unduly or disproportionately burdened. Marketing orders issued 
pursuant to the Act are unique regulations in that they are brought 
about through group action of typically small entities acting on their 
own behalf.
    There are approximately 1,350 sweet cherry growers in the 
production area and approximately 35 handlers subject to regulation 
under the Order. At the time this analysis was prepared, the Small 
Business Administration (SBA) defined small agricultural producers as 
those having annual receipts equal to or less than $3,500,000 (NAICS 
code 111339, Other Noncitrus Fruit Farming) (13 CFR 121.201). Small 
agricultural service firms, which include sweet cherry handlers, were 
defined by the SBA as those having annual receipts equal to or less 
than $34,000,000 (NAICS code 115114, Postharvest Crop Activities).
    Based on data from the National Agricultural Statistics Service 
(NASS) and the Committee, the reported average price growers received 
for Washington sweet cherries during the 2024-2025 fiscal year was 
approximately $1.08 per pound, with total shipments of around

[[Page 55235]]

404,000,000 pounds. Using the average grower price, shipment 
information, and the number of growers, and assuming a normal 
distribution, the majority of growers have estimated average annual 
receipts of significantly less than $3,500,000 ($1.08 multiplied by 
404,000,000 pounds equals $436,320,000, divided by 1,350 growers equals 
$323,200 per grower). Thus, the majority of growers may be classified 
as small entities.
    According to data from Market News and production records from the 
Committee, the average price of Washington sweet cherries handled 
during the 2024-2025 fiscal year was approximately $3.17 per pound, 
with total shipments of around 404,000,000 pounds. Based on the average 
terminal market price, shipment information, and the number of 
handlers, and assuming a normal distribution, the majority of 
Washington sweet cherry handlers have estimated average annual receipts 
of more than $34,000,000 ($3.17 multiplied by 404,000,000 pounds equals 
$1,280,680,000 divided by 35 handlers equals $36,590,857 per handler). 
Thus, the majority of handlers may be classified as large entities.
    This final rule increases the minimum size requirements in the 
Order's handling regulation for all varieties, other than Rainier, 
Royal Anne, and other similar ``light sweet cherries,'' from 54/64 inch 
in diameter to 57/64 inch in diameter. Under the amended minimum size, 
at least 90 percent, by count, of cherries in any lot are required to 
measure not less than 57/64 inch in diameter, and not more than 5 
percent, by count, could measure less than 54/64 inch in diameter. The 
Committee stated that 12-row (54/64 inch in diameter) cherries 
regularly make up only 1 to 2 percent of the market and are not readily 
accepted by wholesale buyers, nor do handlers often choose to pack and 
market such small cherries. The Committee further indicated that in 
years of weather-induced crop failure or yield reductions, crop 
insurance requires growers to harvest and deliver all the cherries 
produced, even if handlers prefer that growers forgo delivery of small 
size fruit and growers prefer to avoid the expense and burden of 
harvesting such small size fruit. With this final rule, sweet cherry 
growers will be able to harvest fruit that is more readily accepted by 
handlers and successfully market such fruit to consumers. This action 
is expected to facilitate growers' use of crop insurance in years when 
the industry experiences a crop failure.
    Additionally, this action modifies the table in the Order's pack 
requirements by eliminating the 12-row count/row size designation, 
which corresponds to a minimum diameter of 54/64 inches, and by adding 
a 7\1/2\-row count/row size designation (88/64 inches in diameter) and 
a 7-row count/row size designation (92/64 inches in diameter). With 
this final rule, the minimum row count/row size designation will be 
11\1/2\, with a corresponding minimum diameter of 57/64 inches. The 
Committee believes that adding these size designations will allow the 
industry to differentiate markets and facilitate marketing large size, 
premium sweet cherries.
    This final rule will not impose any additional costs to industry. 
It is not expected to have a significant impact positively or 
negatively on the revenue of handlers or growers of Washington sweet 
cherries, as the quantity of small, 12-row size fruit produced is very 
small, the market currently does not readily accept 12-row size sweet 
cherries, and such cherries, when produced and marketed, command lower 
prices than larger size fruit. The quality of sweet cherries is not 
expected to be significantly affected by this change and increasing the 
minimum size of marketable cherries aligns with what the market already 
demands. In addition, the Order's minimum grade requirements will not 
be impacted by this final rule and the addition of the larger size 
designations in the Order's pack requirements is expected to have a 
neutral or positive impact.
    The Committee considered alternatives to the recommended changes 
made at its May 2024 meeting, including taking no action and continuing 
to regulate according to the requirements currently in effect under the 
Order. The Committee considered increasing the minimum size requirement 
to 61/64 inch in diameter and raising the minimum row count/row size 
designation to 11-row, thereby eliminating both the 12 and 11\1/2\-row 
count/row size designations from the pack requirements. However, the 
Committee determined that the minimum size and minimum row count/row 
size designation, as established through this action, will be in the 
best interest of the growers, handlers, and consumers of Washington 
sweet cherries. As such, the Committee rejected all other alternatives.
    Further, the Committee also discussed alternatives to the 
recommended changes made at the August 2025 meeting, including taking 
no action and continuing to regulate based on the recommended proposals 
presented at the May 2024 meeting. The Committee considered various 
options regarding defining larger size fruit in the table in the 
Order's pack requirements. However, the Committee ultimately determined 
that adding two additional row count/row size designations (7\1/2\-row 
(88/64 inches in diameter) and 7-row (92/64 inches in diameter)) will 
be in the best interest of the growers, handlers, and consumers of 
Washington sweet cherries and rejected all other alternatives.
    Committee meetings are widely publicized throughout the Washington 
sweet cherry industry and designated area. All interested persons are 
invited to attend meetings and participate in Committee deliberations. 
Like all Committee meetings, the May 22, 2024, and August 27, 2025, 
meetings were public meetings and all entities, both large and small, 
were able to express their views on this issue. Finally, interested 
persons were invited to submit comments on this rule, including the 
regulatory and informational impacts of this action on small 
businesses.
    In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 
chapter 35), the Order's information collection requirements have been 
previously approved by the Office of Management and Budget (OMB) and 
assigned OMB No. 0581-0189, Fruit Crops. This final rule does not 
require changes to the current information collection. Should any 
changes become necessary, they would be submitted to OMB for approval.
    This final rule 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 
duplication by industry and public sector agencies.
    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.
    AMS has not identified any relevant Federal rules that duplicate, 
overlap, or conflict with this final rule.
    A proposed rule concerning this action was published in the Federal 
Register on March 9, 2026 (91 FR 11181). Copies of the proposed rule 
were provided to all Washington sweet cherry handlers. In addition, the 
proposal was made available through the internet by AMS and the Office 
of the Federal Register via <a href="https://www.regulations.gov">https://www.regulations.gov</a>. A 30-day 
comment period ending April 8, 2026, was provided for interested 
persons to

[[Page 55236]]

respond to the proposal. AMS received nine comments during the comment 
period. Of the nine comments received, six expressed support for the 
proposal. One of the six supporting comments also proposed that 
cherries imported into the production area should also be required to 
meet the same requirements as cherries produced in the production area. 
However, because the Order does not regulate cherries imported into the 
production area, this recommendation is not permissible under the Order 
and, accordingly, no changes have been made to the rule as proposed.
    Of the three remaining comments, one did not address the merits of 
the proposal and two expressed neither support nor opposition for the 
proposal but instead provided additional recommendations. One of those 
two comments recommended further increasing the minimum size 
requirement by removing up to and including the 11-row count/row size 
designation from the Order's pack requirements. As previously noted, 
the Committee had considered increasing the minimum row count/row size 
designation to 11-row, thereby eliminating both the 12 and 11\1/2\-row 
count/row size designations from the pack requirements. Ultimately, 
however, the Committee determined that the 11\1/2\-row minimum size and 
minimum row count/row size designation, as established by this final 
rule, would be in the best interest of the growers, handlers, and 
consumers of Washington sweet cherries because 11\1/2\ and 11-row sweet 
cherries remain marketable. Accordingly, AMS made no changes to the 
rule as proposed based on this recommendation.
    The second comment recommended that AMS establish an effective date 
of January 1, 2027, so as not to disrupt the industry with mid-season 
handling regulation changes and to provide industry adequate time to 
prepare, implement, and support compliance with the final rule. AMS 
agrees with this request to minimize mid-season disruptions to industry 
and has established an effective date of January 1, 2027 for this final 
rule.
    After consideration of all relevant material presented, including 
the information and recommendations submitted by the Committee, public 
comments, and all other available information, AMS has determined that 
this final rule is consistent with and effectuates the purposes of the 
Act.

List of Subjects in 7 CFR Part 923

    Cherries, Fruits, Marketing agreements, Reporting and recordkeeping 
requirements.

    For the reasons set forth in the preamble, AMS amends 7 CFR part 
923 as follows:

PART 923--SWEET CHERRIES GROWN IN DESIGNATED COUNTIES IN WASHINGTON

0
1. The authority citation for part 923 continues to read as follows:

    Authority: 7 U.S.C. 601-674.


0
2. Amend Sec.  923.322 by revising paragraph (b)(2), and by in 
paragraph (d)(1) revising the title of the table and the table itself 
to read as follows:


Sec.  923.322  Washington cherry handling regulation.

* * * * *
    (b) * * *
    (2) For all other varieties, at least 90 percent, by count, of the 
cherries in any lot shall measure not less than 57/64 inch in diameter 
and not more than 5 percent, by count, may be less than 54/64 inch in 
diameter.
* * * * *
    (d) * * *
    (1) * * *

                       Table 1 to Paragraph (d)(1)
------------------------------------------------------------------------
                                                             Column 2
              Column 1, row count/row size                   diameter
                                                             (inches)
------------------------------------------------------------------------
7.......................................................           92/64
7\1/2\..................................................           88/64
8.......................................................           84/64
8\1/2\..................................................           79/64
9.......................................................           75/64
9\1/2\..................................................           71/64
10......................................................           67/64
10\1/2\.................................................           64/64
11......................................................           61/64
11\1/2\.................................................           57/64
------------------------------------------------------------------------

* * * * *

Erin Morris,
Administrator, Agricultural Marketing Service.
[FR Doc. 2026-17510 Filed 8-26-26; 8:45 am]
BILLING CODE 3410-02-P


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