[Federal Register Volume 88, Number 234 (Thursday, December 7, 2023)]
[Proposed Rules]
[Pages 85130-85133]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-26887]
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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. 88 , No. 234 / Thursday, December 7, 2023 /
Proposed Rules
[[Page 85130]]
DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Parts 929 and 926
[Doc. No. AMS-SC-23-0047]
Cranberries Grown in Massachusetts, et al.; Termination of
Marketing Order and Data Collection Requirements for Cranberries Not
Subject to the Marketing Order
AGENCY: Agricultural Marketing Service, USDA.
ACTION: Proposed rule.
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SUMMARY: This proposed action invites comments on the proposed
termination of the Federal marketing 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 and the rules and
regulations issued thereunder (Marketing Order No. 929). The data
collection, reporting and recordkeeping requirements applicable to
cranberries not subject to the cranberry marketing order would also be
terminated.
DATES: Comments must be received by February 5, 2024.
ADDRESSES: Interested persons are invited to submit written comments
concerning this proposed rule. Comments can be sent to the Docket
Clerk, Market Development Division, Specialty Crops Program, AMS, USDA,
1400 Independence Avenue SW, STOP 0237, Washington, DC 20250-0237; Fax:
(202) 720-8938; or internet: https://www.regulations.gov. Comments
should reference the document number and the date and page number of
this issue of the Federal Register and can be viewed at: https://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: Jennie M. Varela, Marketing
Specialist, or Christian D. Nissen, Chief, Southeast Region Branch,
Market Development Division, Specialty Crops Program, AMS, USDA;
Telephone: (863) 324-3375 or Email: [email protected] or
[email protected].
Small businesses may request information on complying with this
regulation by contacting Richard Lower, Market Development Division,
Specialty Crops Program, AMS, USDA, 1400 Independence Avenue SW, STOP
0237, Washington, DC 20250-0237; Telephone: (202) 720-8085 or Email:
[email protected].
SUPPLEMENTARY INFORMATION: This action, pursuant to 5 U.S.C. 553,
proposes the termination of regulations issued to carry out a marketing
order as defined in 7 CFR 900.2(j). This proposed rule 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.'' The Cranberry Marketing
Committee (Committee) locally administers the Order and is comprised of
producers operating within the production area and a public member.
This proposed rule is also issued under section 8d of the Act (7
U.S.C. 608d(3)), which authorizes the collection of cranberry and
cranberry product information from producer-handlers, second handlers,
processors, brokers, and importers including those not subject to
regulation under the Order.
The United States Department of Agriculture (USDA) is issuing this
proposed rule in conformance with Executive Orders 12866, 13563, and
14094. Executive Orders 12866, and 13563 direct agencies to assess all
costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits (including potential economic, environmental, public
health and safety effects, distributive impacts, and equity). Executive
Order 13563 emphasizes the importance of quantifying both costs and
benefits, reducing costs, harmonizing rules, and promoting flexibility.
Executive Order 14094 reaffirms, supplements, and updates Executive
Order 12866 and further directs agencies to solicit and consider input
from a wide range of affected and interested parties through a variety
of means. This action falls within a category of regulatory actions
that the Office of Management and Budget (OMB) exempted from Executive
Order 12866 review.
In addition, this proposed rule has been reviewed under Executive
Order 13175--Consultation and Coordination with Indian Tribal
governments, which requires agencies to consider whether their
rulemaking actions would have Tribal implications. Agricultural
Marketing Service (AMS) has determined this proposed rule is unlikely
to have substantial direct effects on one or more Indian Tribes, on the
relationship between the Federal Government and Indian Tribes, or on
the distribution of power and responsibilities between the Federal
Government and Indian Tribes.
This proposed rule has been reviewed under Executive Order 12988,
Civil Justice Reform. This proposed 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 a marketing order may file with the USDA a
petition stating that the marketing order, any provision of the
marketing order, or any obligation imposed in connection with the
marketing order is not in accordance with law and request a
modification of the marketing 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.
The Order has been in effect since 1962 and regulates the handling
of
[[Page 85131]]
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 Order
provides the cranberry industry with authority for production research,
marketing promotion and development, to include paid advertising, as
well as authority for volume regulation through producer allotments or
handler withholding. The Order also authorizes reporting and
recordkeeping functions required for operation of the program. The
Committee, which locally administers the Order, is funded by
assessments imposed on handlers.
This rule proposes termination of the Order and the rules and
regulations thereunder. This action is based on the results of a
continuance referendum in which producers failed to support
continuation of the Order. USDA believes termination of this program
would be appropriate as the Order is no longer favored by industry
producers.
Section 929.69 of the Order states USDA shall conduct a referendum
during the month of May 1975 and every fourth year thereafter to
ascertain whether continuance is favored by producers. Under this
section, USDA shall terminate the Order if termination is favored by a
majority of the growers, and that this majority has, during the current
fiscal year, produced more than 50 percent of the cranberries produced
in the production area. As required by the Order, USDA held a
continuance referendum among cranberry producers from June 9 through
June 30, 2023, to determine if they favored continuation of the
program.
USDA mailed ballots to 944 producers in the production area. Those
producers cast 366 valid ballots. The results indicate 73.5 percent of
cranberry growers, who produced 79.9 percent of the production volume,
voted in the referendum and favored termination of the program.
Consequently, the vote met the Order's criteria for termination,
demonstrating a lack of the producer support needed to carry out the
objectives of the Act.
Section 608c(16)(A) of the Act provides that USDA shall terminate
or suspend the operation of any order whenever the order or any
provision thereof obstructs or does not tend to effectuate the declared
policy of the Act. Based on the foregoing, and pursuant to section
608c(16)(A) of the Act and Sec. 929.69 of the Order, USDA is
considering termination of the Order. If USDA decides to terminate the
Order, trustees would be appointed to conclude and liquidate the
affairs of the Committee and would continue in that capacity until
discharged by USDA. In addition, USDA would notify Congress of USDA's
intent to terminate the Order not later than 60 days before the Order
is terminated pursuant to section 608c(16)(A) of the Act.
A notice announcing the results of the referendum was issued on
August 16, 2023. On October 25, 2023, USDA suspended collection of
assessments and all reporting requirements under the Order while the
proposed termination of the program is being processed. All other
provisions, including promotion and research, would remain in effect
until the Order is terminated.
Section 608d(3) of the Act authorizes the collection of cranberry
and cranberry product information from producer-handlers, second
handlers, processors, brokers, and importers. This data collection is
codified in 7 CFR part 926, Data Collection, Reporting and
Recordkeeping Requirements Applicable to Cranberries Not Subject to the
Cranberry Marketing Order, establishing reporting requirements for
cranberry and cranberry products not subject to the Order and how they
were to be reported to the Committee. Section 926.21 states this part
shall be suspended or terminated whenever there is no longer a Federal
cranberry marketing order in effect. This proposal would also terminate
part 926 which has been suspended since December 28, 2006.
Initial Regulatory Flexibility Analysis
Pursuant to requirements set forth in the Regulatory Flexibility
Act (RFA) (5 U.S.C. 601-612), USDA has considered the economic impact
of this proposed rule on small entities. Accordingly, USDA 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 so that small businesses will not be
unduly or disproportionately burdened. Marketing orders issued pursuant
to the Act are unique in that they are brought about through group
action of essentially small entities acting on their own behalf.
There are approximately 950 cranberry growers in the regulated area
and approximately 45 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
$3,750,000, (North American Industry Classification System (NAICS) code
111334) and small agricultural service firms are defined as those whose
annual receipts are less than $34,000,000 (NAICS code 115114) (13 CFR
121.201).
According to the National Agricultural Statistics Service (NASS),
the average grower price for U.S. cranberries during the 2022-23 season
was $36.60 per barrel and utilized production was 8,010,070 barrels.
The value for cranberries that year totaled $293,168,562, ($36.60 per
barrel multiplied by 8,010,070 barrels). Taking the total value of
production for cranberries and dividing it by the total number of
cranberry growers provides an average return per grower of $308,598.
Using the average price and utilization information, and assuming a
normal distribution, the majority of cranberry growers receive less
than $3,750,000 annually.
According to USDA's Market News retail averages report, the price
per pound of fresh cranberries on average was $1.64 in December of
2022. On average, NASS reports that grower prices for fresh cranberries
are almost double (199 percent) grower prices for processed
cranberries. Dividing the average fresh retail price as reported by
Market News ($1.64) by 1.99 calculates to an estimated average retail
processed price of $0.82 per pound. There are 100 pounds of cranberries
per barrel so the average retail price for a barrel of cranberries
would be $82. Multiplying the average retail price by total utilization
of 8 million barrels results in an estimated cranberry retail value of
$656 million. Dividing this figure by the number of handlers (45)
yields an estimated average annual handler receipts of $14.6 million,
which is below the SBA threshold for small agricultural service firms.
Therefore, the majority of producers and handlers of cranberries may be
classified as small entities.
This rule proposes to terminate the Order, and the rules and
regulations issued thereunder. Termination would remove the Order from
the Code of Federal Regulations. Section 929.69 of the Order provides
that USDA shall conduct a referendum during the month of May 1975 and
every fourth year thereafter to ascertain whether continuance is
favored by producers. The section states USDA shall terminate the Order
if termination is favored by a majority of the growers, and if that
majority has, during the current fiscal year, produced more than 50
percent of the cranberries produced in the production area. The results
of a continuance referendum held from June 9 through June 30, 2023,
indicate 73.5 percent of cranberry growers, who produced 79.9 percent
of the production
[[Page 85132]]
volume, voted in the referendum and favored termination of the program.
Consequently, the vote met the Order's criteria for termination,
indicating continuance of the program is no longer favored by industry
producers. Consequently, USDA is considering termination of the Order.
This proposed rule would also terminate part 926, the suspended data
collection requirements for cranberries not covered under the Order.
Marketing orders provide industries with tools to assist producers
and handlers in addressing challenges facing the industry. These tools
include establishing minimum grade, size, quality, and maturity
requirements, setting size, capacity, weight, dimensions or pack of the
containers, collecting and publishing market information useful to
producers and handlers, conducting research and promotions, and
establishing volume control requirements. Each marketing order is
different, with the industries deciding the authorities needed and the
scope of their marketing order. Marketing orders are approved by
producers through referenda and regulate handlers to ensure compliance
with all requirements. The authority of a marketing order allows each
industry to create a local administrative committee that is made up of
growers and/or handlers that work collectively to solve industry
problems.
The Order has been in effect since 1962 and provides the cranberry
industry with authority for production research, marketing promotion
and development, to include paid advertising, as well as authority for
volume regulation through producer allotments or handler withholding.
The Order also authorizes reporting and recordkeeping functions
required for operation of the program. The Committee, which locally
administers the Order, is funded by assessments imposed on handlers. As
this change would terminate the Order and all the rules and regulations
issued thereunder, the perceived benefits correlated with the Order
would be lost. However, there would also be savings by eliminating
costs associated with the Order, which include the payment of
assessments and costs related to reporting and occasional volume
regulation.
A review of the referendum results shows that producers failed to
reach the necessary threshold for the vote to pass by either vote or by
volume as specified in the Order, indicating that voting producers
believe the benefits of the program no longer outweigh the costs to
handlers and producers. Although marketing order requirements are
applied to handlers, the costs of such requirements are often passed on
to producers. Termination of the Order, and the resulting regulatory
relaxation, could therefore be expected to reduce costs for both
producers and handlers.
An alternative to this action would be to maintain the Order and
its current provisions. However, the Order requires that a continuance
referendum be conducted every fourth year to determine industry support
for the program. The results of a recently held producer continuance
referendum on the cranberry program indicated a lack of producer
support, indicating that the Order no longer meets the needs of
producers and handlers. Therefore, this alternative was rejected, and
USDA is considering terminating the Order and removing the suspended
data collection requirements in part 926.
This proposed rule is intended to solicit input and other available
information from interested parties on whether the Order should be
terminated. USDA will evaluate all available information prior to
making a final determination on this matter.
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 Fruit Crops.
Termination of the Order, and the reporting requirements prescribed
therein, would reduce the reporting burden by 1,265 hours. Handlers
would no longer be required to file forms with the Committee, which is
expected to reduce industry expenses. This rulemaking would not impose
any additional reporting or recordkeeping requirements on either large
or small cranberry handlers.
This rulemaking would effectuate the removal of reporting and
recordkeeping requirements on cranberry handlers, both small and large.
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 proposed rule.
USDA 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 producer referendum was well publicized in the production area,
and referendum ballots were provided to all known producers. As such,
producers of U.S. cranberries had an opportunity to indicate their
continued support for the Order. Further, interested persons are
invited to submit comments on this proposed rule, including the
regulatory and information collection impacts of this proposed action
on small businesses.
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.
This rule invites comments on the proposed termination of 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. A 60-day comment period is provided to allow
interested persons to respond to this proposal. All written comments
timely received will be considered before a final determination is made
on this matter.
Based on the foregoing, and pursuant to section 608c(16)(A) of the
Act and Sec. 929.69 of the Order, USDA is considering termination of
the Order. If USDA decides to terminate the Order, trustees would be
appointed to conclude and liquidate the Committee affairs and would
continue in that capacity until discharged by USDA. In addition, USDA
would notify Congress 60 days in advance of termination pursuant to
section 608c(16)(A) of the Act.
List of Subjects
7 CFR Part 926
Cranberries, Reporting and recordkeeping requirements.
7 CFR Part 929
Acreage allotments, Cranberries, Marketing agreements, Reporting
and recordkeeping requirements.
0
For the reasons set forth in the preamble, and under the authority of 7
U.S.C. 601-674, the Agricultural Marketing Service proposes to amend
title 7, chapter IX of the Code of Federal Regulations by removing
parts 926 and 929.
[[Page 85133]]
PART 926--[REMOVED]
PART 929--[REMOVED]
Erin Morris,
Associate Administrator, Agricultural Marketing Service.
[FR Doc. 2023-26887 Filed 12-6-23; 8:45 am]
BILLING CODE 3410-02-P