[Federal Register Volume 65, Number 247 (Friday, December 22, 2000)]
[Rules and Regulations]
[Pages 80733-80735]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-32715]



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 Rules and Regulations
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  Federal Register / Vol. 65, No. 247 / Friday, December 22, 2000 / 
Rules and Regulations  

[[Page 80733]]



DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 929

[Docket No. FV00-929-6 FIR]


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

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 
that suspended 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 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 
allowed the Committee to inform growers more timely how many 
cranberries handlers could purchase under this season=s volume 
regulation and facilitated grower harvesting decisions.

EFFECTIVE DATE: January 22, 2001.

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 finalizes an interim final rule that temporarily 
suspended, through November 15, 2000, 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 allowed growers to take 
their appeals directly to the Secretary for a final decision. 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

[[Page 80734]]

with the Committee's decision. All decisions by the Secretary are 
final.
    A volume regulation has been implemented for the 2000-2001 
cranberry crop 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 described above could take 60 or more days to 
complete, and the number of appeals received for the season was large. 
At the Committee meeting on August 28, 2000, the appeals committee 
reviewed about 150 grower appeals, and more needed to be reviewed at 
this level.
    Due to the lateness of the season, and the numerous appeals 
received, the Committee recommended that the review by the full 
Committee be suspended from the procedures to shorten the process. This 
was intended to allow growers to take their appeals directly to the 
Secretary for a final decision if they were not satisfied with the 
appeals subcommittee's determinations. To date all such appeals have 
been reviewed by the appeals subcommittee and reviewed and acted upon 
by the Secretary, if warranted.
    The Committee recommended that the full Committee review step 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 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 finalizes an interim final rule that temporarily 
suspended 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. 
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 recommended that the review by the full 
Committee be suspended from the procedures to shorten the process.
    This suspension action allowed growers, who filed appeals, to know 
their sales histories and annual allotments sooner. Handlers need this 
information to plan their acquisitions throughout this crop year under 
volume regulation. In addition, the Committee received over 200 appeals 
and needed to act on them quickly to render decisions as soon as 
possible. To date all such appeals have been reviewed by the appeals 
subcommittee and reviewed and acted upon by the Secretary, if 
warranted.
    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 have allowed growers 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 were invited 
to submit information on the regulatory and informational impacts of 
this action on small businesses.
    An interim final rule concerning this action was published in the 
Federal Register on September 14, 2000. Copies of the rule were mailed 
by the Committee's staff to all Committee members and handlers. In 
addition, the rule was made available through the Internet by the 
Office of the Federal Register. That rule provided for a 60-day comment 
period which ended November 13, 2000. 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 finalizing the interim 
final rule, without change, as published in the Federal Register (65 FR 
55436, September 14, 2000) will tend to effectuate the declared policy 
of the Act.

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 65 FR 55436 on September

[[Page 80735]]

14, 2000, is adopted as a final rule without change.

    Dated: December 19, 2000.
Robert C. Keeney,
Deputy Administrator, Fruit and Vegetable Programs.
[FR Doc. 00-32715 Filed 12-21-00; 8:45 am]
BILLING CODE 3410-02-P