[Federal Register Volume 83, Number 82 (Friday, April 27, 2018)]
[Proposed Rules]
[Pages 18460-18462]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-08526]


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 Proposed Rules
                                                 Federal Register
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 This section of the FEDERAL REGISTER contains notices to the public of 
 the proposed issuance of rules and regulations. The purpose of these 
 notices is to give interested persons an opportunity to participate in 
 the rule making prior to the adoption of the final rules.
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  Federal Register / Vol. 83, No. 82 / Friday, April 27, 2018 / 
Proposed Rules  

[[Page 18460]]



DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 929

[Doc. No. AMS-SC-18-0017; SC18-929-3 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 Order No. 929, 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), recommended adding authority to accept contributions from 
domestic sources. Contributed funds would be used solely for research 
and development activities authorized under the marketing order and 
would be free from any encumbrances as to their usage by the donor.

DATES: Comments must be received by June 26, 2018.

ADDRESSES: Interested persons are invited to submit written comments 
concerning this proposed rule. Comments must be sent to the Docket 
Clerk, Marketing Order and Agreement Division, Specialty Crops Program, 
AMS, USDA, 1400 Independence 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 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. All comments submitted in response to this 
proposal will be included in the record and will be made available to 
the public. 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: Geronimo Quinones, Marketing 
Specialist, or Julie Santoboni, 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 Richard Lower, 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 action, pursuant to 5 U.S.C. 553, 
amends regulations issued to carry out a marketing order as defined in 
7 CFR 900.2(j). This rulemaking is issued under Marketing 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. Part 929 
(referred to as 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. The Agricultural Marketing Service (AMS) 
will consider all timely-filed 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 and processors 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 and processors in the 
referendum.
    The Department of Agriculture (USDA) is issuing this rule in 
conformance with Executive Orders 13563 and 13175. This proposed rule 
falls within a category of regulatory actions that the Office of 
Management and Budget (OMB) exempted from Executive Order 12866 review. 
Additionally, because this proposed rule does not meet the definition 
of a significant regulatory action, it does not trigger the 
requirements contained in Executive Order 13771. See OMB's Memorandum 
titled ``Interim Guidance Implementing Section 2 of the Executive Order 
of January 30, 2017, titled `Reducing Regulation and Controlling 
Regulatory Costs'[thinsp]'' (February 2, 2017).
    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 608c(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 608c(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,

[[Page 18461]]

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 proposed rule.
    The Committee, which is responsible for the local administration of 
the order and is comprised of growers of cranberries operating within 
the production area, unanimously recommended this proposal following 
deliberations at a public meeting. The proposed amendment would give 
the Committee authority to receive and use 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 affiliated with the Order have expressed an interest in supporting 
many of the research and development projects currently funded by the 
Order but the Committee has had to decline these offers. This proposal 
would provide authority to accept financial contributions from domestic 
sources. With the additional funding, more research and development 
projects could be undertaken.
    This proposal would add a new section, Sec.  929.43, Contributions, 
to the Order which 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 and the contributed funds 
would only be used to fund 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), 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.
    There are approximately 1,100 cranberry growers in the regulated 
area and approximately 65 cranberry handlers subject to regulation 
under the 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 whose annual receipts are less than $7,500,000 (13 CFR 121.201).
    According to industry and Committee data, the average grower price 
for cranberries during the 2016-17 crop year was $23.50 per barrel, and 
total sales were around 9.5 million barrels. The value for cranberries 
that crop year totaled $223,250,000 ($23.50 per barrel multiplied by 
9.5 million barrels). Taking the total value of production for 
cranberries and dividing it by the total number of cranberry growers 
(1,100) provides an average return per grower of $202,955. Based on 
USDA's Market News reports, the average free on board (f.o.b.) price 
for cranberries was around $30.00 per barrel. Multiplying the f.o.b. 
price by total utilization of 9.5 million barrels results in an 
estimated handler-level cranberry value of $285 million. Dividing this 
figure by the number of handlers (65) yields an estimated average 
annual handler receipt of $4.3 million, which is below the SBA 
threshold for small agricultural service firms. Therefore, the majority 
of growers and handlers of cranberries may be classified as small 
entities.
    The Committee's proposed amendment was unanimously recommended at a 
public meeting. If the proposal is approved in a referendum, there 
would be no direct financial effect on growers or handlers. This 
proposal would provide the Committee 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 implementation of the proposed rule. Additionally, a past 
referendum concerning a similar action was supported by most eligible 
producers and processors. However, that referendum failed due to an 
oversight by processors not casting their ballot in a timely manner (82 
FR 36991).

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 OMB and assigned OMB No. 0581-0189, 
``Generic Fruit Crops.'' No changes in those requirements are necessary 
as a result of this action. 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.
    The Committee meeting was public, and all entities, both large and 
small, were encouraged to express their views on this proposal.
    Finally, interested persons are invited to submit comments on the 
proposed amendment to the Order, including comments on the regulatory 
and information collection impacts of this action on small businesses.
    Following the analysis of any comments received on the amendment 
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 and processors 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 and processors 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.

[[Page 18462]]

    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 Richard Lower at 
the previously mentioned address in the FOR FURTHER INFORMATION CONTACT 
section.

General Findings

    These findings are supplementary to the findings and determinations 
which were previously made in connection with the issuance of the 
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 Order as proposed to be amended and all of the terms and 
conditions thereof, would tend to effectuate the declared policy of the 
Act;
    2. The Order as 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 Order as 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 Order as 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
    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 this proposal. Any comments received on the amendment 
proposed in this rulemaking will be analyzed, and if AMS determines to 
proceed based on all the information presented, a referendum would be 
conducted to determine support for the proposed amendment. If 
appropriate, a final rule would then be issued to effectuate the 
amendment favored by producers and processors 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 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: April 19, 2018.
Bruce Summers,
Acting Administrator, Agricultural Marketing Service.
[FR Doc. 2018-08526 Filed 4-26-18; 8:45 am]
 BILLING CODE 3410-02-P