[Federal Register Volume 59, Number 135 (Friday, July 15, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-17240]


[[Page Unknown]]

[Federal Register: July 15, 1994]


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DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service

7 CFR Part 929

[FV94-929-1IFR]

 

Cranberries Grown in States of Massachusetts, Rhode Island, 
Connecticut, New Jersey, Wisconsin, Michigan, Minnesota, Oregon, 
Washington, and Long Island in the State of New York; Changes to the 
Rules and Regulations

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Interim final rule with request for comments.

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SUMMARY: This interim final rule changes the rules and regulations 
under the cranberry marketing order. The marketing order regulates the 
handling of cranberries grown in 10 States and is administered locally 
by the Cranberry Marketing Committee (Committee). This rule revises or 
deletes language in the order's rules and regulations to reflect 
amendatory changes to the marketing order completed in 1992. This rule 
will make the order's rules and regulations consistent with the current 
marketing order language.

DATES: Effective July 15, 1994; comments received by August 15, 1994, 
will be considered prior to issuance of a final rule.

ADDRESSES: Interested persons are invited to submit written comments 
concerning this rule. Comments must be sent in triplicate to the Docket 
Clerk, Fruit and Vegetable Division, AMS, USDA, Room 2525-S, P.O. Box 
96456, Washington, DC 20090-6456. All comments should reference the 
docket 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.

FOR FURTHER INFORMATION CONTACT: Patricia A. Petrella or Mark Hessel, 
Marketing Specialists, Marketing Order Administration Branch, F&V, AMS, 
USDA, Room 2522-S, P.O. Box 96456, Washington, DC 20090-6456; 
telephone: (202) 720-3923.

SUPPLEMENTARY INFORMATION: This rule is issued under Marketing 
Agreement and Order No. 929 [7 CFR Part 929], as amended, regulating 
the handling of cranberries grown in 10 States, 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 (Department) is issuing this rule in 
conformance with Executive Order 12866.
    This rule has been reviewed under Executive Order 12778, Civil 
Justice Reform. This rule is not intended to have retroactive effect. 
This rule 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 the Secretary 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 the Secretary 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 in equity to review the 
Secretary's ruling on the petition, provided a bill in equity is filed 
not later than 20 days after date of the entry of the ruling.
    Pursuant to requirements set forth in the Regulatory Flexibility 
Act (RFA), the Administrator of the Agricultural Marketing Service 
(AMS) has considered the economic impact of this action on small 
entities.
    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 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 30 handlers of cranberries who are subject 
to regulation under the order and approximately 1,050 producers of 
cranberries in the regulated area. Small agricultural service firms 
have been defined by the Small Business Administration [13 CFR 121.601] 
as those having annual receipts of less than $3,500,000, and small 
agricultural producers are defined as those whose annual receipts are 
less than $500,000. The majority of handlers and producers of 
cranberries may be classified as small entities.
    This rule revises or deletes language in the order's rules and 
regulations to reflect amendatory changes to the order completed in 
1992. This rule makes the order's rules and regulations consistent with 
current order language. These changes were unanimously recommended by 
the Cranberry Marketing Committee (Committee) at its March 1, 1994, 
meeting.
    In 1992, the cranberry marketing order was amended [57 FR 38748, 
August 27, 1992] to change, among other provisions, the volume control 
features of the order. Prior to the amendment, the order authorized a 
base quantity program in which each producer received a base quantity 
calculated by the Committee from a representative period in the order. 
Base quantity was annually distributed to existing producers and new 
producers based on a formula in the order. The 1992 order amendments 
authorized a volume control program to be based on the sales history of 
each producer. The Committee now calculates a sales history for each 
producer based on the average of sales for a specified period for each 
producer or, in the case of a new producer, sales history is based on a 
State's average yield per acre. Other order amendments were made to 
reflect current industry practices.
    The first change revises section 929.107 which currently provides 
the basis for determining established cranberry acreage. The section is 
revised by deleting various terms, dates, and section references. The 
term ``established'' cranberry acreage and the reference to section 
929.16 are no longer applicable since they were removed by the 1992 
amendment. The reference to growing cranberries during a specified 
period of time (i.e., 1965-66 through 1967-68) and other similar date 
references are removed since producers are no longer required to 
produce during this period to have a commercial crop of cranberries. 
Other modifications are made in the section for clarity.
    The second change deletes section 929.108 which provides for 
procedures to substantiate a firm and substantial commitment for use in 
determining base quantities. This section is no longer applicable since 
the order amendments authorize a sales history to be computed for every 
producer. New or existing producers no longer have to show a firm and 
substantial commitment to receive base quantity.
    The third change revises section 929.110 which provides for 
transfers or sales of cranberry acreage during the representative 
period. This section is revised by deleting the term ``representative 
period.'' This term is no longer applicable since all reference to a 
representative period for computing base quantities was removed by the 
1992 amendment. Producers must inform the Committee at any time when 
transfers or sales of acreage are made. Also, the term ``base 
quantity'' is deleted and replaced with the term ``sales history.'' 
Other minor changes are made to the section to make it consistent with 
the order amendment.
    The fourth change deletes section 929.148 which provides factors to 
be considered when assigning or adjusting base quantities for 
producers. This section is no longer applicable since the order 
amendment authorizes the computation of a sales history for each 
producer. These factors are not used when calculating sales history.
    The fifth change revises section 929.150(a) which provides for the 
transfer or assignment of base quantities. This section is revised by 
deleting the term ``base quantity'' and replacing it with the term 
``sales history.'' The term base quantity is no longer applicable since 
the order amendment authorizes a sales history to be calculated for 
each producer.
    The last change deletes section 929.153 which provides for the 
establishment and distribution of a base quantity reserve. This section 
is no longer applicable since the 1992 order amendment provides for a 
volume control program to be based on sales histories of producers. A 
producer's sales history is updated annually based on the highest four 
out of six years' sales. Therefore, a base quantity reserve is not 
necessary for updating producers' sales histories or for allowing entry 
of new growers.
    Based on these considerations, the Administrator of the AMS has 
determined that this action will not have a significant economic impact 
on a substantial number of small entities.
    The information collection requirements contained in the referenced 
sections have been previously approved by the Office of Management and 
Budget (OMB) under the provisions of 44 U.S.C. Chapter 35 and have been 
assigned OMB number 0581-0103.
    After consideration of all relevant material presented, including 
the Committee's recommendation, and other available information, it is 
found that this interim final rule, as hereinafter set forth, will tend 
to effectuate the declared policy of the Act.
    Pursuant to 5 U.S.C. 553, it is also found and determined upon good 
cause that it is impracticable, unnecessary, and contrary to the public 
interest to give preliminary notice prior to putting this rule into 
effect and that good cause exists for not postponing the effective date 
of this rule until 30 days after publication in the Federal Register 
because: (1) The rules and regulations need to be consistent with the 
marketing order to allow the order to operate efficiently; (2) the 
Committee unanimously recommended this rule at a public meeting and all 
interested persons had an opportunity to provide input; (3) this rule 
is administrative in nature and provides no new restriction on 
handlers; (4) cranberry handlers are aware of this rule and need no 
additional time to comply with its requirements; and (5) this rule 
provides a 30-day comment period and any comments timely received will 
be considered prior to finalization of this rule.

List of Subjects in 7 CFR Part 929

    Cranberries, Marketing agreements, Reporting and recordkeeping 
requirements.

    For the reasons set forth in the preamble, 7 CFR Part 929 is 
amended as follows:
    1. The authority citation for 7 CFR Part 929 continues to read as 
follows:

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

PART 929--CRANBERRIES GROWN IN STATES OF MASSACHUSETTS, RHODE 
ISLAND, CONNECTICUT, NEW JERSEY, WISCONSIN, MICHIGAN, MINNESOTA, 
OREGON, WASHINGTON, AND LONG ISLAND IN THE STATE OF NEW YORK

    2. Section 929.107 is revised to read as follows:


Sec. 929.107  Basis for determining cranberry acreage.

    (a) To be classified as cranberry acreage pursuant to section 
929.48, all such acreage must be producing cranberries on a commercial 
basis or planted, in accordance with order provisions, so as to produce 
cranberries on a commercial basis. Commercial crop is synonymous with 
commercial basis and shall mean acreage that has a sufficient density 
of growing vines to show that such acreage can produce a commercial 
crop of at least 15 barrels per acre without replanting or renovation 
of any kind.
    (b) So that the committee may properly identify cranberry acreage, 
the grower shall furnish, upon request, on forms furnished by the 
committee, information sufficient for the committee to establish that 
such grower is the grower for the acreage involved. It shall be the 
responsibility of the committee to determine by physical inspection or 
other means whether there is sufficient vine density as to qualify as 
``cranberry acreage'' in accordance with paragraph (a) of this section. 
In making such determination, the committee shall be guided by 
standards of comparison between the potential bog and existing bogs in 
the same area.
    (c) If the determination were that all or part of the acreage 
eligible under paragraph (a) of this section does not have sufficient 
vine coverage to produce 15 barrels per acre, that portion without 
sufficient vine coverage will not qualify as cranberry acreage under 
this section. In the event only a portion of an acreage has sufficient 
vine population and density to produce 15 barrels of cranberries per 
acre, such portion will qualify as cranberry acreage pursuant to this 
section. Since such qualified portion of the acreage would be eligible 
for a sales history, it must be definitely and permanently delineated.
    (d) It shall be the responsibility of the grower to maintain 
adequate sales records to show actual sales from their cranberry 
acreage and submit such records to the committee separately from sales 
records pertaining to any other acreage. The report of sales must be 
filed by the grower no later than January 15 of the calendar year 
succeeding the crop year to which such sales pertain.
    3. Section 929.108 is removed.
    4. Section 929.110 is revised to read as follows:


Sec. 929.110  Transfers or sales of cranberry acreage.

    (a) Sales or transfers of cranberry acreage shall be reported by 
the transferor and transferee to the committee, in writing, on forms 
provided by the committee. Completed forms shall be sent to the 
committee office not later than 30 days after the transaction has 
occurred.
    (b) Upon transfer of all or a portion of a growers' acreage, the 
committee shall be provided with certain information on the forms it 
will provide to the parties. The transferor and transferee must provide 
the following information:
    (1) Crop records for the acreage involved;
    (2) Annual production and sales for each crop year on the acreage 
involved, either in total, or for each individual parcel; and
    (3) Such other information as the committee deems necessary.
    (c) Cranberry acreage sold or transferred shall be recognized in 
connection with the issuance of sales history as follows:
    (1) If a grower sells all of the acreage comprising the entity, all 
prior sales history shall accrue to the purchaser;
    (2) If a grower sells only a portion of the acreage comprising the 
entity from which prior sales have been made, the purchaser and the 
seller must agree as to the amount of sales history attributed to each 
portion and shall provide, on a form provided by the committee, 
sufficient information so that sales are shown separately by crop year. 
However, the sales history attributed to each portion shall not exceed 
the total sales history, as determined by the committee, for such 
acreage at the time of transfer.
    5. Section 929.148 is removed.
    6. In Sec. 929.150, the section heading and paragraph (a) are 
revised to read as follows:


Sec. 929.150  Transfer or assignment of sales history.

    (a) If indebtedness is incurred with regard to the acreage to which 
the cranberries are attributed, and on which a sales history is 
established, the sales history holder may transfer or assign the sales 
history solely as security for the loan. During the existence of such 
indebtedness no further transfer or assignment of sales history by the 
sales history holder shall be recognized by the committee unless the 
lender agrees thereto: Provided, That a copy of such loan agreement or 
assignment shall be filed with the committee before any right expressed 
therein, with regard to the sales history, shall be recognized by the 
committee under this paragraph (a).
* * * * *
    7. Section 929.153 is removed.

    Dated: July 11, 1994.
Robert C. Keeney,
Deputy Director, Fruit and Vegetable Division.
[FR Doc. 94-17240 Filed 7-14-94; 8:45 am]
BILLING CODE 3410-02-P