[Federal Register Volume 83, Number 179 (Friday, September 14, 2018)]
[Proposed Rules]
[Pages 46661-46664]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-19834]
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Proposed Rules
Federal Register
________________________________________________________________________
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. 179 / Friday, September 14, 2018 /
Proposed Rules
[[Page 46661]]
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 929 and Referendum Order
AGENCY: Agricultural Marketing Service, USDA.
ACTION: Proposed rule and referendum order.
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SUMMARY: This rulemaking proposes an 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 for
research and development activities authorized under the marketing
order and that would be free from any encumbrances as to their use by
the donor.
DATES: The referendum will be conducted from October 29, 2018 through
November 19, 2018. The representative period for the referendum is
September 1, 2016 through August 31, 2017.
ADDRESSES: Marketing Order and Agreement Division, Specialty Crops
Program, AMS, USDA, 1400 Independence Avenue SW, STOP 0237, Washington,
DC 20250-0237.
FOR FURTHER INFORMATION CONTACT: Geronimo Quinones, Marketing
Specialist, 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].
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 proposal, pursuant to 5 U.S.C. 553,
proposes an amendment to regulations issued to carry out a marketing
order as defined in 7 CFR 900.2(j). This proposal 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 Department of Agriculture (USDA) is issuing this rule in
conformance with Executive Orders 13563 and 13175. This action 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).
This proposal 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 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 8c(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 the
amendment proposed is not unduly complex and the nature of the proposed
amendment is appropriate for utilizing the informal rulemaking process
to amend the Order.
The proposed amendment was unanimously recommended by the Committee
following deliberations at a public meeting held August 2017. The
proposal would amend the Order by giving the Committee the authority to
accept and expend voluntary contributions from domestic sources to fund
research and development projects. All voluntary donations must be free
from any restrictions on use by the donor, and the Committee would
retain control over the use of all donated funds.
[[Page 46662]]
A proposed rule soliciting comments on the proposed amendment was
issued on April 19, 2018, and published in the Federal Register on
April 27, 2018 (83 FR 18460). One comment was received. AMS will
conduct a producer and processor referendum to determine support for
the proposed amendment. If appropriate, a final rule will then be
issued to effectuate the amendment favored by producers and processors
in the referendum.
The Committee's proposed amendment would amend the Order by
authorizing the Committee to receive and expend voluntary contributions
from domestic sources for research and development activities.
Proposal--Voluntary Contributions
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 must be
free from any 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.
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
authorize the Committee to accept financial contributions. With the
potential for additional funding, more research and development
projects could be undertaken.
For the reasons stated above, it is proposed that Sec. 929.43,
Contributions, be added to authorize the Committee to accept voluntary
financial contributions.
Final 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 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 1,100 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 of 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 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 must 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.
If the proposal is approved in referendum, there would be no direct
financial effect on growers or handlers. This proposal would authorize
the Committee to accept financial contributions. 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 this proposal.
Additionally, a past referendum concerning a similar action was
supported by most eligible producers and processors. However, that
referendum failed because the handlers that voted in the referendum did
not represent the required minimum 50 percent of the total volume of
cranberries processed during the representative period (82 FR 36991).
Alternatives to this proposal, including making no changes at this
time, were considered. However, the Committee believes it would be
beneficial to authorize the acceptance of financial contributions from
domestic sources which would help support research and promotional
activities.
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 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.
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. In addition, USDA
has not identified any relevant Federal rules that duplicate, overlap,
or conflict with this rule.
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.
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.
A proposed rule concerning this action was published in the Federal
Register on April 27, 2018 (83 FR 18460). Copies of the proposed rule
were mailed or sent via facsimile to all
[[Page 46663]]
Committee members and cranberry handlers. Finally, the rule was made
available through the internet by USDA and the Office of the Federal
Register. A 60-day comment period ending June 26, 2018, was provided to
allow interested persons to respond to the proposal. One comment was
received. The comment submitted was not related to this proposal,
therefore, no changes have been made to the proposed amendment.
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 Richard Lower at his
previously mentioned address in the FOR FURTHER INFORMATION CONTACT
section.
Findings and Conclusions
The findings and conclusions and general findings and
determinations included in the proposed rule set forth in the April 27,
2018, issue of the Federal Register are hereby approved and adopted.
Marketing Order
Annexed hereto and made a part hereof is the document entitled
``Order Amending the Order 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.'' This document has been decided upon as the
detailed and appropriate means of effectuating the foregoing findings
and conclusions. It is hereby ordered, that this entire rule be
published in the Federal Register.
Referendum Order
It is hereby directed that a producer and processor referendum be
conducted in accordance with the procedure for the conduct of referenda
(7 CFR 900.400-900.407) to determine whether the annexed order amending
the Order 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 is approved by producers as well as by processors who have
frozen or canned cranberries grown within the production area during
the representative period. The representative period for the conduct of
such referendum is hereby determined to be September 1, 2016 through
August 31, 2017.
The agents of the Secretary of Agriculture to conduct such
referendum are designated to be Doris Jamieson and Christian D. Nissen,
Southeast Marketing Field Office, Marketing Order and Agreement
Division, Specialty Crops Program, AMS, USDA; Telephone: (863) 324-
3375, Fax: (863) 325-8793, or email: [email protected] or
[email protected]. respectively.
Order Amending the Order 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 \1\
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\1\ This order shall not become effective unless and until the
requirements of Sec. 900.14 of the rules of practice and procedure
governing proceedings to formulate marketing agreements and
marketing orders have been met.
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Findings and Determinations
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 Order, as amended, and as hereby proposed to be further
amended, and all of the terms and conditions thereof, would tend to
effectuate the declared policy of the Act;
2. The Order, as amended, and as hereby proposed to be further
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 are applicable only to, persons
in the respective classes of commercial and industrial activity
specified in the Order;
3. The Order, as amended, and as hereby proposed to be further
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 amended, and as hereby proposed to be further
amended, prescribe, 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 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.
Order Relative to Handling
It is therefore ordered, that on and after the effective date
hereof, all 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 shall be in conformity to, and in compliance with, the
terms and conditions of the said order as hereby proposed to be amended
as follows:
The provisions of the proposed marketing order amending the Order
contained in the proposed rule issued by the Administrator on April 19,
2018, and published in the Federal Register (83 FR 18460) on April 27,
2018, will be and are the terms and provisions of this order amending
the Order and are set forth in full herein.
List of Subjects in 7 CFR Part 929
Cranberries, Marketing agreements, Reporting and recordkeeping
requirements.
Dated: September 7, 2018.
Bruce Summers,
Administrator, Agricultural Marketing Service.
For the reasons discussed in the preamble, AMS proposes to amend 7
CFR part 929 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
[[Page 46664]]
Cranberry Marketing Committee shall retain complete control of their
use.
[FR Doc. 2018-19834 Filed 9-13-18; 8:45 am]
BILLING CODE 3410-02-P