[Federal Register Volume 65, Number 179 (Thursday, September 14, 2000)]
[Rules and Regulations]
[Pages 55436-55439]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-23821]


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DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 929

[Docket No. FV00-929-6 IFR]


Cranberries Grown in the States of Massachusetts, et al.; 
Temporary Suspension of Provisions in the Rules and Regulations

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Interim final rule with request for comments.

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SUMMARY: This rule suspends certain sections in the rules and 
regulations to shorten the appeals procedure for growers who disagree 
with their sales history determination made by the Cranberry Marketing 
Committee (Committee) for the 2000/2001 marketing season. Due to the 
lateness of the season, and the numerous appeals received, the 
Committee recommended

[[Page 55437]]

that review of the subcommittee's determination by the full Committee 
be suspended to shorten the appeal process during the current season. 
This time savings is important because harvest is expected to begin 
soon and final decisions need to be made so growers know how many 
cranberries handlers can buy from them under this season's volume 
regulation.

DATES: Effective September 15, 2000, through November 15, 2000. 
Comments received by November 13, 2000, 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 to the Docket Clerk, Fruit 
and Vegetable Programs, AMS, USDA, room 2525-S, PO Box 96456, 
Washington, DC 20090-6456; Fax: (202) 720-5698; or E-mail: 
[email protected]. Comments should reference the docket number 
and the date and page number of this issue of the Federal Register and 
will be available for public inspection in the Office of the Docket 
Clerk during regular business hours or can be viewed at: http://www.ams.usda.gov/fv/moab.html.

FOR FURTHER INFORMATION CONTACT: Patricia A. Petrella or Kenneth G. 
Johnson, DC Marketing Field Office, Fruit and Vegetable Programs, AMS, 
USDA, Suite 2A04, Unit 155, 4700 River Road, Riverdale, Maryland 20737, 
telephone: (301) 734-5243; Fax: (301) 734-5275; or George Kelhart, 
Technical Advisor, Marketing Order Administration Branch, Fruit and 
Vegetable Programs, AMS, USDA, room 2525-S, PO Box 96456, Washington, 
DC 20090-6456; telephone: (202) 720-2491, Fax: (202) 720-5698. Small 
businesses may request information on complying with this regulation 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: [email protected].

SUPPLEMENTARY INFORMATION: This rule is issued under Marketing Order 
No. 929, as amended (7 CFR part 929), regulating the handling of 
cranberries grown in Massachusetts, Rhode Island, Connecticut, New 
Jersey, Wisconsin, Michigan, Minnesota, Oregon, Washington, and Long 
Island in the State of New York, hereinafter referred to as the 
``order.'' The marketing 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 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. Such 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.
    This rule temporarily suspends provisions in Sec. 929.125 of the 
rules and regulations (65 FR 42598, July 11, 2000) to shorten the sales 
history appeal process for the 2000/2001 marketing season. The 
Committee is responsible for calculating each grower's sales history on 
an annual basis. The appeals process includes three levels of review, a 
review by the appeals subcommittee of the Committee, the full 
Committee, and finally the Secretary of Agriculture. Due to the 
lateness of the season, and the numerous appeals received from growers, 
the Committee unanimously recommended that the review by the Committee 
be suspended for the 2000/2001 season. This will allow growers to take 
their appeals directly to the Secretary for a final decision. Final 
decisions need to be made promptly because the harvest is expected to 
begin in late September and growers need to know how many cranberries 
handlers can acquire from them. The Committee unanimously recommended 
this action at its August 28, 2000, meeting.
    Section 929.48 of the order and Sec. 929.149 of the rules and 
regulations describe how the Committee computes a sales history for 
each grower. There are different computations used depending on the 
number of years a grower has been producing on such acreage. The 
Committee has been updating growers' sales histories each season. The 
Committee accomplishes this by using information submitted by the 
grower on a production and eligibility report filed with the Committee. 
The Committee established a review procedure in Sec. 929.125 of the 
rules and regulations for growers who disagree with the Committee's 
computation.
    Currently, Sec. 929.125 (65 FR 42598; July 11, 2000) provides that 
a grower may appeal to an appeals subcommittee within 30 days of 
receipt of the Committee's determination of his/her sales history. If 
the grower is not satisfied with the subcommittee's decision, the 
grower may further appeal to the full Committee. Such grower must 
notify the full Committee of his or her appeal within 15 days after 
notification of the subcommittee's decision. The Committee has 15 days 
to review the appeal. The grower may further appeal to the Secretary, 
within 15 days after notification of the full Committee's findings, if 
the grower is not satisfied with the Committee's decision. All 
decisions by the Secretary are final.
    A volume regulation has been implemented for the 2000-2001 
cranberry crop in order to address an oversupply situation currently 
being experienced by the industry. The Committee determined the best 
method of volume control to be the producer allotment program which 
provides for an annual marketable quantity and allotment percentage. 
Marketable quantity is defined as the number of pounds of cranberries 
needed to meet total demand and to provide for an adequate carryover 
into the next season. The allotment percentage equals the marketable 
quantity divided by the total of all growers' sales histories. The 
Committee is responsible for calculating each grower's sales history on 
an annual basis.
    The appeals procedure as described above could take 60 or more days 
to complete, and the number of appeals received to date has been large. 
At the Committee meeting on August 28, 2000, the appeals committee 
reviewed about 150 grower appeals, and more need to be reviewed at this 
level.
    Due to the lateness of the season, and the numerous appeals 
received, the Committee has recommended that the review by the full 
Committee be suspended from the procedures to shorten the process. 
Thus, growers will be able to take their appeals directly to the 
Secretary for a final decision if they are not satisfied with the 
appeals

[[Page 55438]]

subcommittee's determinations. Final decisions need to be made soon 
because the harvest is expected to begin in mid-September and growers 
need to know their sales histories and how much allotment they have 
available for market. Under the current procedure, some growers 
availing themselves of the full appeal process would not know their 
sales histories and the amount of annual allotment that can be acquired 
by their handler until after harvest was completed.
    Therefore, the Committee recommended that the full Committee review 
step of the appeals process described in the rules and regulations be 
temporarily suspended through November 15, 2000, to expedite the 
process for the current harvest. The complete procedures will be 
available to growers next season, if needed.

The Regulatory Flexibility Act and Effects on Small Businesses

    Pursuant to requirements set forth in the Regulatory Flexibility 
Act (RFA), the Agricultural Marketing Service (AMS) has considered the 
economic impact of this action on small entities. Accordingly, AMS has 
prepared this initial 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 rules 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, are defined by the Small Business 
Administration (13 CFR 121.201) 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 cranberry 
handlers and producers may be classified as small businesses.
    Currently, of the 1,100 cranberry growers, between 86 and 95 
percent are estimated to have sales equal to or less than $500,000. 
Fewer than 60 growers are estimated to have sales that would have 
exceeded this threshold in 1999. Over two-thirds of the U.S. cranberry 
crop is handled by a grower-owned marketing cooperative. Five other 
major processors, together with the cooperative, handle over 97 percent 
of the crop. Using Committee data on volumes handled, AMS has 
determined that none of these handlers qualify as small businesses 
under the SBA's definition. The remainder of the crop is marketed by 
about a dozen grower-handlers who handle their own crops. Dividing the 
remaining 3 percent of the crop by these grower-handlers, all would be 
considered small businesses.
    This rule temporarily suspends provisions in Sec. 929.125 of the 
rules and regulations regarding the appeals procedure for growers who 
disagree with their sales history determination made by the Cranberry 
Marketing Committee (Committee). The Committee is responsible for 
calculating each grower's sales history on an annual basis. The appeals 
process includes a review by the appeals subcommittee, the full 
Committee, and finally the Secretary. Due to the lateness of the 
season, and the numerous appeals received, the Committee has 
recommended that the review by the full Committee be suspended from the 
procedures to shorten the process. Expeditious final decisions are 
needed because the 2000 crop harvest is expected to begin in mid-
September. Growers need to know their sales histories and how much of 
their crop can acquired by handlers during the 2000-2001 season under 
volume regulation.
    This action will allow growers, who have filed appeals, to know 
their sales histories and annual allotments sooner. Handlers need to 
know this information to plan their acquisitions throughout this crop 
year under volume regulation. In addition, the Committee has received 
over 200 appeals and needs to act on them quickly to render decisions 
as soon as possible.
    The Committee discussed the alternative of delegating the 
Committee's review to the appeals subcommittee, however, such action is 
not authorized under the rules and regulations. The Committee also 
discussed not revising the rules and regulations, however, this would 
not allow the growers who have appealed to know their sales histories 
and annual allotment as promptly as possible.
    This action imposes no additional reporting or 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 duplication by industry 
and public sector agencies.
    The Department has not identified any relevant Federal rules that 
duplicate, overlap, or conflict with this rule.
    Further, the Committee's meeting was widely publicized throughout 
the cranberry industry and all interested persons were invited to 
attend the meeting and participate in Committee deliberations on all 
issues. Like all Committee meetings, the August 28, 2000, meeting was a 
public meeting and all entities, both large and small, were able to 
express views on this issue. Finally, interested persons are invited to 
submit information on the regulatory and informational impacts of this 
action on small businesses.
    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/fv/moab.html. Any questions about the compliance 
guide should be sent to Jay Guerber at the previously mentioned address 
in the FOR FURTHER INFORMATION CONTACT section.
    This rule invites comments on a temporary suspension of provisions 
in Sec. 929.125 in the rules and regulations currently prescribed under 
the cranberry marketing order. Any comments received will be considered 
prior to finalization of this rule.
    After consideration of all relevant material 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.
    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 1999-2000 crop harvest is expected to begin 
in mid-September and growers and handlers need to know their sales 
histories and annual allotments for delivery purposes; (2) growers and 
handlers are aware of this action which was unanimously recommended by 
the Committee at a public meeting; and (3) this interim final rule 
provides a 60-day comment period, and all comments timely received will 
be considered prior to finalization of this rule.

List of Subjects in 7 CFR Part 929

    Marketing agreements, Cranberries, Reporting and recordkeeping 
requirements.


[[Page 55439]]


    For the reasons set forth in the preamble, 7 CFR part 929 is 
amended as follows:

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

    1. The authority citation for 7 CFR part 929 continues to read as 
follows:

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


Sec. 929.125  [Amended]

    2. Section 929.125 is amended by suspending the word 
``Committee's'' everywhere it appears in paragraph (d) and suspending 
paragraph (c) in its entirety effective September 15, 2000, through 
November 15, 2000.

    Dated: September 12, 2000.
Robert C. Keeney,
Deputy Administrator, Fruit and Vegetable Programs.
[FR Doc. 00-23821 Filed 9-12-00; 3:42 pm]
BILLING CODE 3410-02-U