[Federal Register Volume 80, Number 126 (Wednesday, July 1, 2015)]
[Rules and Regulations]
[Pages 37531-37533]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-16177]



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  Federal Register / Vol. 80, No. 126 / Wednesday, July 1, 2015 / Rules 
and Regulations  

[[Page 37531]]



DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 929

[Doc. No. AMS-FV-14-0091; FV15-929-1 FR]


Cranberries Grown in States of Massachusetts, et al.; Revising 
Determination of Sales History

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: This rule implements a recommendation from the Cranberry 
Marketing Committee (Committee) to revise the determination of sales 
history provisions currently prescribed under the cranberry marketing 
order (order). The Committee, which consists of 13 growers and 1 public 
member, locally administers the order 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. Under the order, there are two 
different sales history calculations that have been established for 
this program. This action clarifies when the different methods for 
calculating sales history will be used. This action also removes the 
fresh fruit exemption from one of the calculations.

DATES: Effective July 2, 2015.

FOR FURTHER INFORMATION CONTACT: Doris Jamieson, Marketing Specialist, 
or Christian D. Nissen, Regional Director, Southeast Marketing Field 
Office, Marketing Order and Agreement Division, Fruit and Vegetable 
Program, AMS, USDA; Telephone: (863) 324-3375, Fax: (863) 291-8614, or 
Email: [email protected] or [email protected].
    Small businesses may request information on complying with this 
regulation by contacting Jeffrey Smutny, Marketing Order and Agreement 
Division, Fruit and Vegetable Program, AMS, USDA, 1400 Independence 
Avenue SW., STOP 0237, Washington, DC 20250-0237; Telephone: (202) 720-
2491, Fax: (202) 720-8938, or Email: [email protected].

SUPPLEMENTARY INFORMATION: This final rule is issued under Marketing 
Agreement and Order No. 929, as amended (7 CFR part 929), regulating 
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, 
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 (USDA) is issuing this rule in 
conformance with Executive Orders 12866, 13563, and 13175.
    This final rule has been reviewed under Executive Order 12988, 
Civil Justice Reform. This rule is not intended to have retroactive 
effect.
    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 USDA 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, USDA 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 USDA's ruling on the petition, 
provided an action is filed not later than 20 days after the date of 
the entry of the ruling.
    There are two sales history calculations in effect under two 
separate sections of the order. This final rule clarifies when the 
different methods for calculating sales history will be used. This 
final rule also removes the exemption for fresh fruit from the sales 
history calculation found in Sec.  929.149. The Committee unanimously 
recommended these changes at meetings held on February 10 and August 
20, 2014.
    The order provides authority for volume control in the form of a 
producer allotment program. When in effect, this program limits the 
quantity of cranberries that handlers may purchase or handle on behalf 
of growers in years of oversupply. Each year, prior to determining if 
volume regulation is needed, grower sales histories are calculated. The 
sales history averages recent years' sales data using information 
submitted by each grower on a production and eligibility report filed 
with the Committee. If the Committee determines that volume regulation 
is needed, a producer allotment percentage is calculated. Each grower's 
allotment of cranberries eligible for handling is then calculated by 
multiplying the allotment percentage by the grower's sales history.
    Section 929.48 of the order contains provisions for computing an 
annual grower sales history. Section 929.48 also provides that the 
Committee, with the approval of the Secretary, may establish 
alternative grower's sales history calculations as warranted. One such 
alternative calculation is established in Sec.  929.149. This 
alternative calculation supplements the calculation found in Sec.  
929.48 by including an additional sales history for growers with new 
and renovated acreage. It also provides that the sales history be 
computed for processed fruit only, with fresh fruit sales deducted from 
the calculation. The alternative calculation method established in 
Sec.  929.149 was developed for the 2001-02 marketing year, the last 
time volume regulation was implemented, and was recently revised so 
that it could be used for any season.
    The Committee believes the provisions in the alternative sales 
history calculation are beneficial and provide equity to growers who 
have recently planted or renovated acreage. However, the alternative 
method for calculating sales history requires physical verification of 
the renovated or new acreage, thus resulting in additional costs to the 
Committee. When considering the costs and the benefits of both sales 
history calculation methods, the Committee concluded that the method in 
Sec.  929.48 was adequate for annual calculations when volume 
regulation was not anticipated.

[[Page 37532]]

However, due to the importance of a grower's sales history in the 
determination of that grower's allotment during years of volume 
regulation, the inclusion of new and renovated acreage is paramount. 
Accordingly, the Committee concluded that the sales history calculation 
in Sec.  929.149 should be used in all years when volume regulation is 
anticipated.
    Consequently, at its February 10 and August 20, 2014, meetings, the 
Committee recommended that the alternative calculation method found in 
Sec.  929.149 only apply during times when a producer allotment volume 
regulation is being implemented. When a producer allotment volume 
regulation is not being implemented, the Committee will calculate 
grower's sales history according to the provisions provided in Sec.  
929.48 of the order.
    The Committee also recommended revising the alternative calculation 
method in Sec.  929.149 by removing the exemption for fresh fruit 
sales. Committee members stated that automatically exempting fresh 
fruit from the sales history calculation provides the grower with an 
inaccurate representation of their total sales. Further, the exclusion 
of fresh fruit affects the industry's total sales history, which is 
used to determine the allotment percentage under a producer allotment 
program. The Committee believes if any exemptions to future producer 
allotment calculations are warranted, such exemptions should be 
considered and recommended to USDA as part of a proposed volume 
regulation. Removing the fresh exemption provision from the alternative 
calculation allows the Committee to determine, on an as-needed basis, 
whether or not volume regulation should apply to the fresh cranberry 
supply.

Final Regulatory Flexibility Analysis

    Pursuant to requirements set forth in the Regulatory Flexibility 
Act (RFA) (5 U.S.C. 601-612), 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 
businesses 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.
    There are approximately 1,300 cranberry growers in the regulated 
area and approximately 45 cranberry handlers who are subject to 
regulation under the marketing order. Small agricultural producers are 
defined by the Small Business Administration (SBA) as those having 
annual receipts of less than $750,000, and small agricultural service 
firms are defined as those having annual receipts of less than 
$7,000,000 (13 CFR 121.201).
    According to industry and Committee data, grower prices ranged 
between $15 and $47 per barrel for cranberries during the 2012-13 
marketing year, and total sales were around 7.8 million barrels. Based 
on production data and grower prices, the average annual grower revenue 
is below $750,000. Using Committee information and shipment data, 44 
out of the 45 cranberry handlers could also be considered small 
businesses under SBA's definition. Therefore, the majority of cranberry 
growers and handlers may be classified as small entities.
    This final rule revises the rules and regulations pertaining to the 
determination of sales history currently prescribed in Sec.  929.149 of 
the order. There are two sales history calculations under two separate 
sections of the order. This action clarifies when the different methods 
for calculating sales history will be used. It also removes the 
exemption for fresh fruit from the calculation method found in Sec.  
929.149. These changes were unanimously recommended by the Committee at 
meetings held on February 10 and August 20, 2014. Authority for these 
changes is provided in Sec.  929.48 of the order.
    It is not anticipated that this action will impose any additional 
costs on the industry. Each year, the Committee is required to 
calculate a sales history for each grower. This rule clarifies that the 
alternative sales history calculation method established under Sec.  
929.149 will only apply when a producer allotment regulation is being 
implemented. The calculation method found in Sec.  929.48 will be used 
when volume regulation is not being implemented.
    Removing the fresh exemption provision from the calculation found 
in Sec.  929.149 allows the Committee to determine, on an as-needed 
basis, whether or not volume regulation should apply to the fresh 
cranberry supply. It also provides growers, and the Committee, with a 
more accurate representation of their sales history. The benefits of 
this rule are not expected to be disproportionately greater or lesser 
for small handlers or producers than for large entities.
    The Committee considered the alternative of making no changes to 
the rules and regulations pertaining to the determination of sales 
history. However, the Committee recognized that this change would help 
the industry avoid the additional costs of acreage verification in 
years when volume regulation is not being implemented. Also, the 
Committee agreed that the current grower sales history tabulation 
exempting fresh fruit was not representative of the actual sales. 
Therefore, this alternative was rejected.
    In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 
Chapter 35), the order's information collection requirements have been 
previously approved by the Office of Management and Budget (OMB) and 
assigned OMB No. 0581-0189, Generic Fruit Crops. No changes in those 
requirements as a result of this action are necessary. Should any 
changes become necessary, they would be submitted to OMB for approval.
    This action will not impose any 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.
    AMS is committed to complying with the E-Government Act, to promote 
the use of the internet and other information technologies to provide 
increased opportunities for citizen access to Government information 
and services, and for other purposes.
    As noted in the initial regulatory flexibility analysis, USDA has 
not identified any relevant Federal rules that duplicate, overlap or 
conflict with this final rule.
    In addition, the Committee's meetings were widely publicized 
throughout the cranberry industry, and all interested persons were 
invited to attend the meetings and participate in Committee 
deliberations on all issues. Like all Committee meetings, the February 
10 and August 20, 2014, meetings were public meetings, and all 
entities, both large and small, were able to express views on this 
issue.
    A proposed rule concerning this action was published in the Federal 
Register on April 22, 2015 (80 FR 22431). Copies of the rule were 
mailed or sent via facsimile to all Committee members and cranberry 
handlers. Finally, the rule was made available through the internet by 
USDA and the Office of the Federal Register. A 15-day comment period 
ending May 7, 2015, was provided to allow interested

[[Page 37533]]

persons to respond to the proposal. No comments were received. 
Accordingly, no changes will be made to the rule as proposed.
    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/MarketingOrdersSmallBusinessGuide. Any questions 
about the compliance guide should be sent to Jeffrey Smutny at the 
previously mentioned address in the FOR FURTHER INFORMATION CONTACT 
section.
    After consideration of all relevant matter 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.
    It is further found that good cause exists for not postponing the 
effective date of this rule until 30 days after publication in the 
Federal Register (5 U.S.C. 553) because the Committee is beginning 
discussions regarding establishing a producer allotment volume 
regulation for the coming season. As such, it is important to have 
these changes in place as the Committee moves forward with these 
discussions and potential implementation. Further, handlers are aware 
of this rule, which was recommended at a public meeting. Also, a 15-day 
comment period was provided for in the proposed 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:

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

0
1. The authority citation for 7 CFR part 929 continues to read as 
follows:

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


Sec.  929.149  [Amended]

0
2. In Sec.  929.149, the words ``when a producer allotment volume 
regulation is in effect'' are added to the end of the introductory 
text, and paragraphs (e) and (f) are removed.

    Dated: June 26, 2015.
Rex A. Barnes,
Associate Administrator, Agricultural Marketing Service.
[FR Doc. 2015-16177 Filed 6-30-15; 8:45 am]
 BILLING CODE 3410-02-P