[Federal Register Volume 65, Number 213 (Thursday, November 2, 2000)]
[Rules and Regulations]
[Pages 65707-65709]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-28142]


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DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 929

[Docket No. FV00-929-4 FIR]


Cranberries Grown in States of Massachusetts, et al.; Increased 
Assessment Rate

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 increased the assessment rate established for the Cranberry 
Marketing Committee (Committee) for the 1999-2000 and subsequent fiscal 
periods from $0.04 to $0.06 per barrel of cranberries acquired by 
handlers. The Committee locally administers the marketing order which 
regulates the handling of 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. Authorization to assess cranberry handlers enables the 
Committee to incur expenses that are reasonable and necessary to 
administer the program. The fiscal period began September 1, 1999, and 
ended August 31, 2000. The assessment rate will remain in effect 
indefinitely unless modified, suspended, or terminated.

EFFECTIVE DATE: November 3, 2000.

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, P.O. 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 is issuing this rule in conformance with Executive 
Order 12866.
    This rule has been reviewed under Executive Order 12988, Civil 
Justice Reform. Under the marketing order now in effect, cranberry 
handlers are subject to assessments. Funds to administer the order are 
derived from such assessments. It is intended that the assessment rate 
as issued herein will be applicable to all assessable cranberries 
beginning September 1, 1999, and continue until amended, suspended, or 
terminated. 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 continues the increase in the assessment rate established 
for the Committee for the 1999-2000 and

[[Page 65708]]

subsequent fiscal periods from $0.04 to $0.06 per barrel of cranberries 
acquired by handlers.
    The cranberry marketing order provides authority for the Committee, 
with the approval of the Department, to formulate an annual budget of 
expenses and collect assessments from handlers to administer the 
program. The members of the Committee are producers of cranberries. 
They are familiar with the Committee's needs and with the costs for 
goods and services in their local area and are thus in a position to 
formulate an appropriate budget and assessment rate. The assessment 
rate is formulated and discussed in a public meeting. Thus, all 
directly affected persons have an opportunity to participate and 
provide input.
    For the 1996-1997 fiscal period, the Committee recommended, and the 
Department approved, an assessment rate that would continue in effect 
from fiscal period to fiscal period unless modified, suspended or 
terminated by the Secretary upon recommendation and information 
submitted by the Committee or other information available to the 
Secretary.
    In August of 1999, the Committee recommended, and the Department 
administratively approved, 1999-2000 expenditures of $548,231. The 
Committee met on March 30, 2000, and unanimously recommended additional 
1999-2000 expenditures of $127,108 for total 1999-2000 expenditures of 
$675,339 and an assessment rate of $0.06 per barrel of cranberries. An 
increased assessment rate was recommended by the Committee to cover 
additional startup costs in connection with implementing a volume 
control program for 2000-2001. The Committee held numerous meetings to 
discuss the need for volume regulation which were not contemplated in 
the original budget for 1999-2000. Volume regulation has been 
implemented by the Department for the 2000-2001 season to address the 
industry's oversupply situation.
    The major increased expenditures recommended by the Committee for 
the 1999-2000 fiscal period included $128,239 for administration costs, 
$120,307 for personnel, and $81,700 for Committee meetings. Budgeted 
expenses for these items in the original 1999-2000 budget were $63,531 
for administration, $93,407 for personnel, and $49,200 for Committee 
meetings.
    In deriving the recommended assessment rate increase, the Committee 
used the actual assessable production of 6,355,413 barrels. This figure 
is 1,005,413 barrels more than the 5,350,413 barrels estimated at the 
beginning of the fiscal period. This increased rate generated an 
additional $127,108 for a total of $341,108 in assessment income. This 
amount plus interest income, funds from other sources, and funds in the 
reserve will be sufficient to cover budgeted expenses. Funds in the 
reserve (currently $45,000) will be kept within the approximately one 
year's operational expenses permitted by the order (Sec. 929.42(a)).
    The assessment rate will continue in effect indefinitely unless 
modified, suspended, or terminated by the Secretary upon recommendation 
and information submitted by the Committee or other available 
information.
    Although the assessment rate is effective for an indefinite period, 
the Committee will continue to meet prior to or during each fiscal 
period to recommend a budget of expenses and consider recommendations 
for modification of the assessment rate. The dates and times of 
Committee meetings are available from the Committee or the Department. 
Committee meetings are open to the public and interested persons may 
express their views at these meetings. The Department will evaluate 
Committee recommendations and other available information to determine 
whether modification of the assessment rate is needed. Further 
rulemaking will be undertaken as necessary. The Committee's 1999-2000 
budget and those for subsequent fiscal periods will be reviewed and, as 
appropriate, approved by the Department.
    In a separate action, the Department will propose to increase the 
assessment rate for the 2000-2001 fiscal period to cover the 
Committee's increased costs associated with implementing volume 
regulation. The proposed rule inviting comments on the increase is 
being published in this issue of the Federal Register.

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 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 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.
    This rule continues the increase in the assessment rate established 
for the Committee and collected from handlers for the 1999-2000 and 
subsequent fiscal periods from $0.04 to $0.06 per barrel of 
cranberries. In August of 1999, the Committee recommended, and the 
Department administratively approved, 1999-2000 expenditures of 
$548,231. On March 30, 2000, the Committee met and unanimously 
recommended additional expenditures of $127,108 for total 1999-2000 
expenditures of $675,339. The assessment rate of $0.06 is $0.02 higher 
than the previous rate. The quantity of assessable cranberries for the 
1999-2000 year was 6,355,413 barrels, 1,005,413 barrels more than the 
5,350,000 estimated at the beginning of the fiscal period. Income 
derived from handler assessments, along with interest income and funds 
from the Committee's authorized reserve, will be adequate to cover 
budgeted expenses.
    The major increased expenditures recommended by the Committee for 
the 1999-2000 fiscal period include $128,239 for administration costs, 
$120,307 for personnel, and $81,700 for Committee meetings. Budgeted 
expenses for these items in the original 1999-2000 budget were $63,531 
for administration, $93,407 for personnel, and $49,200 for Committee 
meetings.
    An increased assessment rate was recommended by the Committee 
because the industry is in a surplus situation and recommended a volume 
regulation for the 2000-2001 season. The Department has approved that 
volume regulation. The Committee incurred additional startup costs in 
connection with the development and implementation of the volume 
regulation program. Also, the Committee held numerous meetings to 
discuss the volume regulation which were not contemplated in the 
original budget.
    The Committee discussed the alternative of continuing the existing

[[Page 65709]]

assessment rate, but concluded that the Committee could run out of 
funds with the implementation of the volume regulation program. In 
deriving the recommended assessment rate increase, the Committee used 
the actual assessable production for the crop year at 6,355,413 
barrels. This amount plus adequate supplies in the reserve will be 
sufficient to cover budgeted expenses. Funds in the reserve (currently 
$45,000) will be kept within the approximately one year's operational 
expenses permitted by the order (Sec. 929.42(a)).
    This action continues the increase in the assessment obligation 
imposed on handlers. While assessments impose some additional costs on 
handlers, the costs are minimal and uniform on all handlers. Some of 
the additional costs may be passed on to producers. However, these 
costs are offset by the benefits derived by the operation of the 
marketing order. In addition, 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 March 30, 
2000, meeting was a public meeting and all entities, both large and 
small, were able to express views on this issue.
    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.
    An interim final rule concerning this action was published in the 
Federal Register on August 8, 2000. Finally, the interim final rule was 
made available through the Internet by the Office of the Federal 
Register. A 60-day comment period was provided for interested persons 
to respond to the interim final rule. The comment period ended on 
October 10, 2000, and no comments were received.
    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.
    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 that good cause exists 
for not postponing the effective date of this action until 30 days 
after publication in the Federal Register because: (1) The 1999-2000 
fiscal period ended August 31, 2000, and all assessable cranberries 
acquired by handlers during that period have been assessed; (2) 
handlers are aware of this action which was unanimously recommended by 
the Committee at a public meeting and is similar to other assessment 
rate actions issued in past years; and (3) an interim final rule was 
published on this action which provided for a 60-day comment period; no 
comments were received.

List of Subjects in 7 CFR Part 929

    Marketing agreements, Cranberries, 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 65 FR 48349 on August 8, 2000, is adopted as a final 
rule without change.

Robert C. Keeney,
Deputy Administrator, Fruit and Vegetable Programs.
[FR Doc. 00-28142 Filed 11-1-00; 8:45 am]
BILLING CODE 3410-02-P