[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
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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. 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