[Federal Register Volume 64, Number 124 (Tuesday, June 29, 1999)]
[Rules and Regulations]
[Pages 34705-34707]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-16508]
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Rules and Regulations
Federal Register
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Federal Register / Vol. 64, No. 124 / Tuesday, June 29, 1999 / Rules
and Regulations
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DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Part 929
[Docket No. FV99-929-1 FIR]
Cranberries Grown in the States of Massachusetts, et al.;
Temporary Suspension of a Provision on Producer Continuance Referenda
Under the Cranberry Marketing Order
AGENCY: Agricultural Marketing Service, USDA.
ACTION: Final rule.
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SUMMARY: The Department of Agriculture (Department) is adopting, as a
final rule, without change, the provisions of an interim final rule
which temporarily suspended an order provision requiring a producer
continuance referendum to be conducted on the marketing order during
the month of May 1999. The industry currently is experiencing unsettled
marketing conditions due to a surplus of product. The temporary delay
in holding the continuance referendum is allowing the Cranberry
Marketing Committee (Committee) to finalize the development of a plan
to improve the marketing situation, hold producer meetings throughout
the production area to update them on the situation, and begin
implementing the plan.
EFFECTIVE DATE: July 29, 1999.
FOR FURTHER INFORMATION CONTACT: Patricia A. Petrella or Kenneth G.
Johnson, Marketing Order Administration Branch, F&V, AMS, USDA, room
2530-S, P.O. Box 96456, Washington, DC 20090-6456, telephone: (202)
720-2491; Fax: (202) 720-5698 or Anne M. Dec, Marketing Order
Administration Branch, Fruit and Vegetable Programs, AMS, USDA, room
2525-S, P.O. Box 96456, Washington, DC 20090-6456; telephone: (202)
720-2491; Fax: (202) 720-5698. Small businesses may request information
on compliance with this regulation or obtain a guide on complying with
fruit, vegetable, and specialty crop marketing agreements and orders by
contacting Jay Guerber, Marketing Order Administration Branch, Fruit
and Vegetable Programs, AMS, USDA, P.O. Box 96456, room 2525-S,
Washington, DC 20090-6456; telephone (202) 720-2491; Fax: (202) 720-
5698; or E-mail: Jay.G[email protected]. You may also view the marketing
agreements and orders small business compliance guide at the following
website: http://www.ams.usda.gov/fv/moab.html.
SUPPLEMENTARY INFORMATION: This rule is issued under Marketing Order
No. 929, as amended (7 CFR part 929), regulating the handling of
cranberries grown in 10 States. 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 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.
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 to review the Secretary's
ruling on the petition, provided an action is filed not later than 20
days after the date of the entry of the ruling.
The action temporarily suspended a provision in Sec. 929.69(d) of
the order which specifies the month and year when a continuance
referendum should be conducted to determine if producers favor
continuance of the cranberry marketing order. This action was
unanimously recommended by the Committee at its March 15, 1999,
meeting.
Section 929.69(d) of the order provides that the Secretary shall
conduct a referendum during the month of May 1975 to ascertain whether
continuance of the order is favored by the producers, and that the
Secretary shall conduct such a referendum during the month of May of
every fourth year thereafter. The next continuance referendum was
scheduled to be conducted in May 1999. The last continuance referendum
was held in May 1995.
Section 929.69(b) of the order authorizes the Secretary to
terminate or suspend the operation of any or all of the provisions of
this part whenever the Secretary finds that such provisions do not tend
to effectuate the declared policy of the Act.
At its March 15, 1999, meeting, the Committee recommended delaying
the May 1999 referendum because the cranberry industry currently is
experiencing significant marketing problems. Over the last few months,
inventories of cranberry juice have been at record levels and producer
prices have dropped significantly.
The Committee reported that, over the last five years, the industry
has enjoyed increasing demand for cranberry products, primarily due to
the success of numerous cranberry juice based beverages. However, such
success has attracted additional production. With increased production
and a leveling of demand, carry-out stocks of cranberry juice and juice
products are at record levels and are predicted to increase
significantly over the next few years. The Committee reported that
carryout stocks at the end of August were approximately 1.2 million
(mill.) barrels (bbls) in 1997, 2.1 mill. bbls in 1998, and are
projected to be 2.7 and 3.2 mill. bbls in 1999 and 2000, respectively.
The Committee also reported that, in recent months, producer prices
have responded to this surplus by dropping from $70-80/barrel to $38/
barrel.
The Committee plans a series of producer meetings throughout the
10-State production area to inform producers about positive actions
being
[[Page 34706]]
undertaken by the Committee to help strengthen marketing conditions.
Some of these actions include proposing amendments to the order, and
filing an application with the Department's Foreign Agricultural
Service for Market Access Program funds to help the industry further
develop export markets for cranberries and cranberry products. The
industry also is working with Congress on amendments to the Act to
include reporting requirements for processors and importers, and adding
cranberries to the list of commodities with the authority to establish
marketing research projects, including paid advertising, to more
effectively promote cranberries and cranberry products.
The Committee believes that a temporary delay in holding the
continuance referendum provided time for its actions to help stabilize
the current marketing situation. The Committee further believes that
holding a continuance referendum in May 1999, given the current
unsettled marketing situation, would not have provided a true indicator
of support for and the value of the order.
Pursuant to Sec. 929.69(b), the interim final rule suspended
provisions in Sec. 929.69(d) to postpone the May 1999 continuance
referendum under the cranberry marketing order. The Department
currently plans to conduct a producer continuance referendum in May
2000. However, a final decision on holding that referendum will not be
made until the spring of 2000. The Committee traditionally meets each
year during the months of February or March to assess the current
marketing situation and prospects for the upcoming season. The
Committee's assessment of marketing conditions at that time will be
used in making the final decision. In accordance with Sec. 929.69(d) of
the order, a continuance referendum is required to be held in May 2003.
The Regulatory Flexibility Act and Effects on Small Businesses
Pursuant to requirements set forth in the Regulatory Flexibility
Act (RFA), 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. Thus, both statutes have small
entity orientation and compatibility.
There are approximately 20 handlers of cranberries who are subject
to regulation under the order and approximately 1,100 producers of
cranberries in the regulated area. Small agricultural service firms,
which include handlers, have been defined by the Small Business
Administration (13 CFR 121.601) as those having annual receipts of less
than $5,000,000, and small agricultural producers are defined as those
having annual receipts of less than $500,000. The majority of handlers
and producers of cranberries may be classified as small entities.
The interim final rule temporarily suspended a provision in the
order requiring a producer referendum to be held in May 1999 to
determine whether producers favor continuance of the order.
Section 929.69(d) of the order provides that the Secretary shall
conduct a referendum during the month of May 1975 to ascertain whether
continuance of the order is favored by the producers, and that the
Secretary shall conduct such a referendum during the month of May of
every fourth year thereafter. The next continuance referendum was
scheduled to be conducted in May 1999. The last continuance referendum
was held in May 1995.
Section 929.69(b) of the order authorizes the Secretary to
terminate or suspend the operation of any or all of the provisions of
this part whenever the Secretary finds that such provisions do not tend
to effectuate the declared policy of the Act.
At its March 15, 1999, meeting, the Committee recommended delaying
the May 1999 referendum because the cranberry industry currently is
experiencing significant marketing problems. Over the last few months,
inventories of cranberry juice have been at record levels and producer
prices have dropped significantly.
The Committee reported that, over the last five years, the industry
has enjoyed increasing demand for cranberry products, primarily due to
the success of numerous cranberry juice based beverages. However, such
success has attracted additional production. With increased production
and a leveling of demand, carry-out stocks of cranberry juice and juice
products are at record levels and are predicted to increase
significantly over the next few years. The Committee reported that
carryout stocks at the end of August were approximately 1.2 million
(mill.) barrels (bbls) in 1997, 2.1 mill. bbls in 1998, and are
projected to be 2.7 and 3.2 mill. bbls in 1999 and 2000, respectively.
The Committee also reported that, in recent months, producer prices
have responded to this surplus by dropping from $70-80/barrel to $38/
barrel.
The Committee plans a series of producer meetings throughout the
10-State production area to inform producers about positive actions
being undertaken by the Committee to help strengthen marketing
conditions. Some of these actions include proposing amendments to the
order, and filing an application with the Department's Foreign
Agricultural Service for Market Access Program funds to help the
industry further develop export markets for cranberries and cranberry
products. The industry also is working with Congress on amendments to
the Act to include reporting requirements for processors and importers,
and adding cranberries to the list of commodities with the authority to
establish marketing research projects, including paid advertising, to
more effectively promote cranberries and cranberry products.
The Committee believes that a temporary delay in holding the
continuance referendum provided time for its actions to help stabilize
the current marketing situation. The Committee further believes that
holding a continuance referendum in May 1999, given the current
unsettled marketing situation, would not have provided a true indicator
of support for and the value of the order.
Pursuant to Sec. 929.69(b), this action suspended provisions in
Sec. 929.69(d) to postpone the May 1999 continuance referendum under
the cranberry marketing order. The Department currently plans to
conduct a producer continuance referendum in May 2000. This should
serve as an alternative to just suspending the May 1999 continuance
referendum. However, a final decision on holding that referendum will
not be made until the spring of 2000. The Committee traditionally meets
each year during the months of February or March to assess the current
marketing situation and prospects for the upcoming season. The
Committee's assessment of marketing conditions at that time will be
used in making the final decision. In accordance with Sec. 929.69(d) of
the order, a continuance referendum is required to be held in May 2003.
This action did not impose any additional recordkeeping
requirements on either small or large cranberry handlers. As with all
Federal marketing order programs, reports and forms are periodically
reviewed to reduce information requirements and
[[Page 34707]]
duplication by industry and public sectors. In addition, the Department
has not identified any relevant Federal rules which duplicate, overlap
or conflict with this rule.
In compliance with Office of Management and Budget (OMB)
regulations (5 CFR part 1320) which implement the Paperwork Reduction
Act of 1995 (44 U.S.C. Chapter 35), the information collection and
recordkeeping requirements imposed by Part 929 have been previously
approved by OMB and assigned OMB Number 0581-0103.
Committee meetings are widely publicized throughout the cranberry
industry and are open to all industry members and entities (including
both small and large business entities) and other interested persons--
who are encouraged to participate in the deliberations and voice their
opinions on topics under discussion. Like all Committee meetings, the
March 1999 meeting was a public meeting and all entities, both large
and small, were able to express their views on these issues. The
Committee itself is composed of eight members, of which seven members
are growers and one represents the public.
The interim final rule concerning this action was published in the
Federal Register (64 FR 24023, May 5, 1999) with an effective date of
May 6, 1999, through May 31, 1999. Copies of the rule were mailed by
the Committee's staff to all Committee members and cranberry producers.
In addition, the rule was made available through the Internet by the
Office of the Federal Register. That rule provided for a 15-day comment
period which ended May 20, 1999. No comments were received.
After consideration of all available information, and pursuant to
Sec. 929.69(b), it is found that the second sentence in Sec. 929.69(d)
does not tend to effectuate the declared policy of the Act for the
period specified in the interim final rule and it is temporarily
suspended.
List of Subjects in 7 CFR Part 929
Cranberries, Marketing agreements, Reporting and recordkeeping
requirements.
PART 929--CRANBERRIES GROWN IN THE STATES OF MASSACHUSETTS, RHODE
ISLAND, CONNECTICUT, NEW JERSEY, WISCONSIN, MICHIGAN, MINNESOTA,
OREGON, WASHINGTON, AND LONG ISLAND IN THE STATE OF NEW YORK
Accordingly the interim final rule amending 7 CFR part 929 which
was published at 64 FR 24023 on May 5, 1999, is adopted as a final rule
without change.
Dated: June 17, 1999.
Enrique E. Figueroa,
Administrator, Agricultural Marketing Service.
[FR Doc. 99-16508 Filed 6-28-99; 8:45 am]
BILLING CODE 3410-02-P