[Federal Register Volume 81, Number 150 (Thursday, August 4, 2016)]
[Proposed Rules]
[Pages 51383-51386]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-18115]


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DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 929

[Doc. No. AMS-SC-16-0041; SC16-929-1 PR]


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; Proposed 
Amendment to Marketing Order

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Proposed rule.

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SUMMARY: This proposed rule invites comments on a proposed amendment to 
Marketing Orders, 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. The Cranberry Marketing Committee (Committee), 
which is responsible for the local administration of the order and is 
comprised of growers of cranberries operating within the production 
area, recommended adding authority to accept donations from domestic 
contributors. Contributed funds would be used solely for research and 
development activities authorized under the regulation of the order and 
would be free from any encumbrances as to their usage by the donor.

DATES: Comments must be received by October 3, 2016.

ADDRESSES: Written comments should be submitted to the Docket Clerk, 
Marketing Order and Agreement Division, Specialty Crops Program, AMS, 
USDA, 1400 Independence

[[Page 51384]]

Avenue SW., STOP 0237, Washington, DC 20250-0237; Fax: (202) 720-8938; 
or Internet: http://www.regulations.gov. All comments should reference 
the document number and the date and page number of this issue of the 
Federal Register. All comments submitted in response to this proposed 
rule will be included in the record and will be made available for 
public inspection in the Office of the Docket Clerk during regular 
business hours, or can be viewed at: http://www.regulations.gov. Please 
be advised that the identity of the individuals or entities submitting 
the comments will be made public on the Internet at the address 
provided above.

FOR FURTHER INFORMATION CONTACT: Abdullah Orozco, Marketing Specialist, 
or Michelle P. Sharrow, Rulemaking Branch Chief, Marketing Order and 
Agreement Division, Specialty Crops 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] or [email protected].
    Small businesses may request information on complying with this 
regulation by contacting Antoinette Carter, Marketing Order and 
Agreement Division, Specialty Crops 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 proposal is issued under Marketing 
Order and Agreement 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.'' Section 608c(17) of 
the Act and the applicable rules of practice and procedure governing 
the formulation of marketing agreements and orders (7 CFR part 900) 
authorizes amendment of the order through this informal rulemaking 
action. AMS will consider comments received in response to this rule, 
and based on all the information available, will determine if order 
amendment is warranted. If AMS determines amendment of the order is 
warranted, a subsequent proposed rule and referendum order would be 
issued, and producers of cranberries regulated within the production 
area would be allowed to vote for or against the proposed amendment. 
AMS would then issue a final rule effectuating the amendment if it is 
approved by producers in the referendum.
    The Department of Agriculture (USDA) is issuing this proposed rule 
in conformance with Executive Orders 12866, 13563, and 13175.
    This proposal has been reviewed under Executive Order 12988, Civil 
Justice Reform. This rule is not intended to have retroactive effect. 
This rule shall not be deemed to preclude, preempt, or supersede any 
State program covering cranberries in the production area.
    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 no later than 20 days after the date of 
entry of the ruling.
    Section 1504 of the Food, Conservation, and Energy Act of 2008 
(2008 Farm Bill) (Pub. L. 110-246) amended section 18c(17) of the Act, 
which in turn required the addition of supplemental rules of practice 
to 7 CFR part 900 (73 FR 49307; August 21, 2008). The amendment of 
section 18c(17) of the Act and additional supplemental rules of 
practice authorize the use of informal rulemaking (5 U.S.C. 553) to 
amend Federal fruit, vegetable, and nut marketing agreements and 
orders. USDA may use informal rulemaking to amend marketing orders 
based on the nature and complexity of the proposed amendments, the 
potential regulatory and economic impacts on affected entities, and any 
other relevant matters.
    AMS has considered these factors and has determined that this 
proposed amendment is not unduly complex and its nature is appropriate 
for utilizing the informal rulemaking process to amend the order. A 
discussion of the potential regulatory and economic impacts on affected 
entities is discussed later in the ``Initial Regulatory Flexibility 
Analysis'' section of this rule.
    The proposed amendment was unanimously recommended by the Committee 
following deliberations at a public meeting held August 17-18, 2015. 
The proposed amendment would give the Committee authority to receive 
and expend voluntary contributions from domestic sources to fund 
production research, marketing research, and market development 
projects, including paid advertising, designed to assist, improve, or 
promote the marketing, distribution, consumption or efficient 
production of cranberries, as authorized under Sec.  929.45, Research 
and development.
    Currently, program operations are solely financed through 
assessments collected from handlers regulated under the order. Sources 
not subject to the order have expressed an interest in supporting many 
of the research and development projects currently funded by the order. 
However, without the ability to accept financial contributions, the 
Committee has had to decline these offers. This proposal would provide 
authority to accept financial contributions. With the potential for 
additional funding, more research and development projects could be 
undertaken.
    This proposal would add a new section, Sec.  929.43, Contributions, 
to the order. If implemented, this section would authorize the 
Committee to accept voluntary financial contributions. Such 
contributions could only be accepted from domestic sources and would be 
free from any encumbrances or restrictions on their use by the donor. 
When received, the Committee would retain complete control of their 
use. The use of contributed funds would be limited to funding program 
activities authorized under Sec.  929.45, Research and development.

Initial Regulatory Flexibility Analysis

    Pursuant to the 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 initial 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.

[[Page 51385]]

    There are approximately 1,200 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 
$7,500,000 (13 CFR 121.201).
    According to the National Agricultural Statistics Service (NASS), 
grower prices were $30.90 per barrel for cranberries during the 2014-15 
marketing year. NASS also reported total bearing acres at 40,600 and 
average yield per acre at 10.3 tons for the 2014-15 marketing year.
    Based on the total bearing acres provided by NASS and the 
approximate number of cranberry growers (1,200 growers), the average 
acreage per grower is 33.8 acres. Multiplying the average acreage per 
grower (33.8 acres) by the average yield per acre (10.3 tons) results 
in an average production of 348.5 tons. To convert the average 
production from tons to barrels, 348.5 tons is multiplied by 2,000 
pounds (one ton equals 2,000 pounds) to equal 696,966.7 pounds and is 
then divided by 100 (100 pounds equals 1 barrel), resulting in an 
average production per growers of 6,969.7 barrels.
    Multiplying the average production (6,967.7 barrels) by the grower 
price ($30.90 per barrel), provided by NASS, equals an average grower 
revenue of $215,301.90. Based on this calculation, the average annual 
grower revenue for the 2014-15 marketing year was below $750,000.
    Using Committee information and shipment data, the majority of 
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 under SBA definitions.
    The amendment proposed by the Committee would add a new section, 
Sec.  929.43, Contributions, to the order. If implemented, this section 
would authorize the Committee to accept voluntary financial 
contributions. Such contributions could only be accepted from domestic 
sources and would be free from any encumbrances or restrictions on 
their use by the donor. When received, the Committee would retain 
complete control of their use. The use of contributed funds would be 
limited to funding program activities authorized under Sec.  929.45, 
Research and development.
    The Committee's proposed amendment was unanimously recommended at a 
public meeting on August 17-18, 2015. If the proposal is approved in 
referendum, there would be no direct financial effect on growers or 
handlers. This proposal would provide authority to accept additional 
funding. With the potential for additional funding, more research and 
promotional projects could be undertaken. Therefore, it is anticipated 
that both small and large producer and handler businesses would benefit 
from its implementation.

Paperwork Reduction Act

    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 would be necessary. 
Should any changes become necessary, they would be submitted to OMB for 
approval.
    This proposed rule would impose 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 Committee's meeting was widely publicized throughout the 
cranberry production area. All interested persons were invited to 
attend the meeting and encouraged to participate in Committee 
deliberations on all issues. Like all Committee meetings, the August 
17-18, 2015, meeting was public, and all entities, both large and 
small, were encouraged to express their views on these proposals. 
Finally, interested persons are invited to submit comments on the 
proposed amendments to the order, including comments on the regulatory 
and informational impacts of this action on small businesses.
    Following analysis of any comments received on the amendments 
proposed in this rule, AMS will evaluate all available information and 
determine whether to proceed. If appropriate, a proposed rule and 
referendum order would be issued, and producers would be provided the 
opportunity to vote for or against the proposed amendment. Information 
about the referendum, including dates and voter eligibility 
requirements, would be published in a future issue of the Federal 
Register. A final rule would then be issued to effectuate the 
amendment, if favored by producers participating in the referendum.
    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.
    USDA has not identified any relevant Federal rules that duplicate, 
overlap, or conflict with this action. A small business guide on 
complying with fruit, vegetable, and specialty crop marketing 
agreements and orders may be viewed at: https://www.ams.usda.gov/rules-regulations/moa/small-businesses. Any questions about the compliance 
guide should be sent to Antoinette Carter at the previously mentioned 
address in the FOR FURTHER INFORMATION CONTACT section.

General Findings

    The findings hereinafter set forth are supplementary to the 
findings and determinations which were previously made in connection 
with the issuance of the marketing order; and all said previous 
findings and determinations are hereby ratified and affirmed, except 
insofar as such findings and determinations may be in conflict with the 
findings and determinations set forth herein.
    1. The marketing order as hereby proposed to be amended and all of 
the terms and conditions thereof, would tend to effectuate the declared 
policy of the Act;
    2. The marketing order as hereby proposed to be amended 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 in the 
same manner as, and is applicable only to, persons in the respective 
classes of commercial and industrial activity specified in the 
marketing order;
    3. The marketing order as hereby proposed to be amended is limited 
in application to the smallest regional production area which is 
practicable, consistent with carrying out the declared policy of the 
Act, and the issuance of several orders applicable to subdivisions of 
the production area would not effectively carry out the declared policy 
of the Act;
    4. The marketing order as hereby proposed to be amended prescribes, 
insofar as practicable, such different terms applicable to different 
parts of the production area as are necessary to give due recognition 
to the differences in the production and marketing of cranberries 
produced or handled in the production area; and

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    5. All handling of cranberries produced in the production area as 
defined in the order is in the current of interstate or foreign 
commerce or directly burdens, obstructs, or affects such commerce.
    A 60-day comment period is provided to allow interested persons to 
respond to these proposals. Any comments received on the amendments 
proposed in this rule will be analyzed, and if AMS determines to 
proceed based on all the information presented, a producer referendum 
would be conducted to determine producer support for the proposed 
amendments. If appropriate, a final rule would then be issued to 
effectuate the amendment favored by producers participating in the 
referendum.

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 
proposed to be 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.

0
2. Add a new Sec.  929.43 to read as follows:


Sec.  929.43  Contributions.

    The Committee may accept voluntary contributions to pay expenses 
incurred pursuant to Sec.  929.45, Research and development. Such 
contributions may only be accepted if they are sourced from domestic 
contributors and are free from any encumbrances or restrictions on 
their use by the donor. The Cranberry Marketing Committee shall retain 
complete control of their use.
* * * * *

    Dated: July 27, 2016.
Elanor Starmer,
Administrator, Agricultural Marketing Service.
[FR Doc. 2016-18115 Filed 8-3-16; 8:45 am]
 BILLING CODE 3410-02-P