[Federal Register Volume 89, Number 134 (Friday, July 12, 2024)]
[Rules and Regulations]
[Pages 57059-57061]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-15246]



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 Rules and Regulations
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 This section of the FEDERAL REGISTER contains regulatory documents 
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  Federal Register / Vol. 89, No. 134 / Friday, July 12, 2024 / Rules 
and Regulations  

[[Page 57059]]



DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Parts 926 and 929

[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: Final rule; termination of order.

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SUMMARY: This rulemaking terminates Federal Marketing Order No. 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, and the rules and regulations issued thereunder. The data 
collection, reporting and recordkeeping requirements applicable to 
cranberries not subject to the marketing order are also terminated (7 
CFR part 926). This rulemaking also removes the marketing order from 
the Code of Federal Regulations.

DATES: Effective Date: July 31, 2024.

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, 
terminates regulations issued to carry out a marketing order as defined 
in 7 CFR part 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.'' The Cranberry Marketing 
Committee (Committee) locally administers the Order and is comprised of 
producers operating within the production area and a public member.
    This rulemaking 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 Agricultural Marketing Service (AMS) is issuing this rulemaking 
in conformance with Executive Orders 12866, 13563, and 14094. Executive 
Orders 12866, 13563, and 14094 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 rulemaking 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. AMS has determined 
this rulemaking 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 rulemaking has been reviewed under Executive Order 12988, 
Civil Justice Reform. This rulemaking 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 (7 U.S.C. 608c(15)(A)), any handler subject to a marketing order 
may file with 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.
    This rulemaking terminates 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, and removes the 
Order from the Code of Federal Regulations. Section 929.69 of the Order 
states AMS 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, the Secretary 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, AMS held a continuance referendum among 
cranberry producers from June 9 through June 30, 2023, to determine if

[[Page 57060]]

they favored continuation of the program. AMS 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 favor of 
terminating 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 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 rulemaking also terminates 7 
CFR part 926 which has been suspended since December 29, 2006.
    In addition, section 608c(16)(A) of the Act provides that the 
Secretary 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 Sec.  608c(16)(A) of the Act and Sec.  929.69 of the 
Order, the Secretary is terminating the Order.
    The Order has been in effect since 1962 and provided the cranberry 
industry with authority for production research, marketing promotion 
and development, paid advertising, authority for volume regulation 
through producer allotments or handler withholding, and reporting and 
recordkeeping functions needed to operate the program. The Committee, 
which locally administered the Order, was funded by assessments imposed 
on handlers. Although marketing order requirements are applied to 
handlers, the costs of such requirements are often passed on to 
producers.
    Terminating the Order and all the rules and regulations issued 
thereunder, means the perceived benefits correlated with the Order are 
also lost. An alternative to this action would be to maintain the Order 
and its current provisions. However, a review of the continuance 
referendum results showed producers believe the benefits of the program 
no longer outweigh the costs to handlers and producers. In addition, 
termination of the Order and the resulting regulatory relaxation is 
expected to reduce costs for both producers and handlers. Therefore, 
this alternative was rejected.
    This rulemaking terminates the Order and the rules and regulations 
issued thereunder and removes the suspended data collection 
requirements in 7 CFR part 926.

Final Regulatory Flexibility Analysis

    Pursuant to requirements set forth in the Regulatory Flexibility 
Act (RFA) (5 U.S.C. 601-612), AMS has considered the economic impact of 
this rulemaking 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 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, Berry (except Strawberry) Farming) and small agricultural 
service firms are defined as those whose annual receipts are less than 
$34,000,000 (NAICS code 115114, Postharvest Crop Activities) (13 CFR 
part 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 of 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 rulemaking terminates the Order, and the rules and regulations 
issued thereunder and will remove the Order from the Code of Federal 
Regulations. Section 929.69 states the Secretary 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. This 
rulemaking also removes the requirements of 7 CFR part 926, which 
required the data collection of cranberries not covered under the 
Order. In addition, section 608c(16)(A) of the Act provides that the 
Secretary 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. An additional provision requires that 
Congress be notified no later than 60 days before the date the Order is 
terminated.
    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

[[Page 57061]]

committee that is made up of growers and/or handlers that work 
collectively to solve industry problems. After considering the 
alternative, the Committee concluded that regulating the handling of 
cranberries under the Order is no longer necessary to ensure orderly 
marketing of cranberries. The costs associated with the administration 
of the Order outweigh the benefits, and that termination of the Order 
would not have a negative impact on industry.
    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. 
After finalizing termination, AMS will extract the remaining cranberry 
marketing order-related forms from the forms package during the next 
three-year renewal process. OMB's three-year expiration date for the 
package containing cranberry marketing order forms is January 31, 2027.
    This rule effectuates 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, AMS has not identified any 
relevant Federal rules that duplicate, overlap or conflict with this 
rulemaking.
    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 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.
    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.
    A proposed rule inviting comments on the termination of the Order 
was published in the Federal Register on December 7, 2023 (88 FR 
85130). A 60-day comment period was provided to allow interested 
persons an opportunity to respond to the proposed termination of the 
Order. In addition, AMS published on its website and distributed to 
industry stakeholders a notice to trade announcing the proposed 
termination of the Order. Five total comments were received. One 
comment supported the termination, and one comment was not relevant to 
the proposal. Three non-substantive comments opposed the termination of 
the Order, expressing the program is a value to small businesses. 
Producers of both large and small businesses were provided the 
opportunity to show support for the Order during the continuance 
referendum. Further, producers who voted in the referendum elected to 
terminate the Order indicating the costs associated with the 
administration of the Order outweigh the benefits and, therefore, the 
Order is no longer meeting the needs of the industry. Those producers 
also believe that terminating the Order will not have a negative impact 
on the industry. Accordingly, after reviewing and considering all 
comments received during the comment period, the Secretary determined 
that termination of the Order was appropriate. All the comments may be 
viewed at https://www.regulations.gov.
    Based on the foregoing, and pursuant to section 608c(16)(A) of the 
Act and Sec.  929.69 of the Order, it is hereby found that Federal 
Marketing Order No. 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 does not tend to effectuate the declared policy 
of the Act and is therefore terminated.
    Following termination, trustees will be appointed to conclude and 
liquidate the Committee affairs and will continue in that capacity 
until discharged by the Secretary. In addition, pursuant to 608c(16)(A) 
of the Act, USDA is required to notify Congress 60 days in advance of 
termination. Congress was so notified on April 11, 2024.

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.

PARTS 926 AND 929--[REMOVED]

0
For the reasons set forth in the preamble, and under the authority of 7 
U.S.C. 601-674, the Agricultural Marketing Service amends title 7, 
chapter IX of the Code of Federal Regulations by removing parts 926 and 
929.

Erin Morris,
Associate Administrator, Agricultural Marketing Service.
[FR Doc. 2024-15246 Filed 7-11-24; 8:45 am]
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