Cranberries Grown in States of Massachusetts, Rhode Island, Connecticut, New Jersey, Wisconsin, Michigan, Minnesota, Oregon, Washington, and Long Island in the State of New York; Revising Determination of Sales History, 51043-51046 [2013-20253]
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Federal Register / Vol. 78, No. 161 / Tuesday, August 20, 2013 / Rules and Regulations
the higher grade packs. Therefore, the
Committee also rejected this alternative.
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 Office of
Management and Budget (OMB) and
assigned OMB No. 0581–0189, Generic
Fruit Crops. No changes in those
requirements as a result of this action
are necessary. Should any changes
become necessary, they would be
submitted to OMB for approval.
This final rule revises the minimum
grade requirement under the Florida
avocado marketing order. Accordingly,
this action will not impose any
additional reporting or recordkeeping
requirements on either small or large
Florida avocado 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.
As noted in the initial regulatory
flexibility analysis, USDA has not
identified any relevant Federal rules
that duplicate, overlap or conflict with
this final rule. Further, no comments
were received concerning the initial
regulatory flexibility analysis.
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.
In addition, the Committee’s meeting
was widely publicized throughout the
Florida avocado industry and all
interested persons were invited to
attend the meeting and participate in
Committee deliberations on all issues.
Like all Committee meetings, the
October 10, 2012, meeting was a public
meeting. All entities, both large and
small, were able to express views on
this issue.
A proposed rule concerning this
action was published in the Federal
Register on May 23, 2013 (78 FR 30782).
Copies of the rule were mailed or sent
via facsimile to all Committee members
and avocado handlers. Finally, the rule
was made available through the Internet
by USDA and the Office of the Federal
Register. A 30-day comment period
ending June 24, 2013, was provided to
allow interested persons to respond to
the proposal. No comments were
received. Accordingly, no changes will
be made to the rule as proposed.
A small business guide on complying
with fruit, vegetable, and specialty crop
marketing agreements and orders may
be viewed at: www.ams.usda.gov/
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22:41 Aug 19, 2013
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MarketingOrdersSmallBusinessGuide.
Any questions about the compliance
guide should be sent to Jeffrey Smutny
at the previously mentioned address in
the FOR FURTHER INFORMATION CONTACT
section.
After consideration of all relevant
matter presented, including the
information and recommendation
submitted by the Committee and other
available information, it is hereby found
that this rule, as hereinafter set forth,
will tend to effectuate the declared
policy of the Act.
It is further found that good cause
exists for not postponing the effective
date of this rule until 30 days after
publication in the Federal Register (5
U.S.C. 553) as handlers are already
shipping avocados for the 2013–14
season. Further, handlers are aware of
this rule, which was recommended at a
public meeting. Also, a 30-day comment
period was provided for in the proposed
rule, and no comments were received.
List of Subjects in 7 CFR Part 915
Avocados, Reporting and
recordkeeping requirements.
For the reasons set forth in the
preamble, 7 CFR part 915 is amended as
follows:
PART 915—AVOCADOS GROWN IN
SOUTH FLORIDA
1. The authority citation for 7 CFR
part 915 continues to read as follows:
■
Authority: 7 U.S.C. 601–674.
2. In § 915.306, paragraph (a)(1) is
revised to read as follows:
■
§ 915.306 Florida avocado grade, pack and
container marking regulation.
(a) * * *
(1) Such avocados grade at least U.S.
Combination, except that avocadoes
handled to destinations within the
production area grade U.S. No. 2 and
except further that such avocados may
be placed in containers with avocados
of dissimilar varietal characteristics.
*
*
*
*
*
Dated: August 14, 2013.
Rex A. Barnes,
Associate Administrator, Agricultural
Marketing Service.
[FR Doc. 2013–20274 Filed 8–19–13; 8:45 am]
BILLING CODE 3410–02–P
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DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Part 929
[Doc. No. AMS–FV–12–0042; FV12–929–2
FR]
Cranberries Grown in States of
Massachusetts, Rhode Island,
Connecticut, New Jersey, Wisconsin,
Michigan, Minnesota, Oregon,
Washington, and Long Island in the
State of New York; Revising
Determination of Sales History
Agricultural Marketing Service,
USDA.
ACTION: Final rule.
AGENCY:
This rule revises the
determination of sales history
provisions currently prescribed under
the cranberry marketing order (order).
The order regulates the handling of
cranberries grown in Massachusetts,
Rhode Island, Connecticut, New Jersey,
Wisconsin, Michigan, Minnesota,
Oregon, Washington, and Long Island in
the State of New York, and is
administered locally by the Cranberry
Marketing Committee (Committee). This
rule modifies sales history calculations
so that they are applicable for future
seasons and adjusts the number of years
that can be considered when
determining the highest four years of
past sales.
DATES: Effective Date: August 21, 2013.
FOR FURTHER INFORMATION CONTACT:
Doris Jamieson, Marketing Specialist, or
Christian D. Nissen, Regional Director,
Southeast Marketing Field Office,
Marketing Order and Agreement
Division, Fruit and Vegetable Program,
AMS, USDA; Telephone: (863) 324–
3375, Fax: (863) 325–8793, or Email:
Doris.Jamieson@ams.usda.gov or
Christian.Nissen@ams.usda.gov.
Small businesses may request
information on complying with this
regulation by contacting Jeffrey Smutny,
Marketing Order and Agreement
Division, Fruit and Vegetable Program,
AMS, USDA, 1400 Independence
Avenue SW., STOP 0237, Washington,
DC 20250–0237; Telephone: (202) 720–
2491, Fax: (202) 720–8938, or Email:
Jeffrey.Smutny@ams.usda.gov.
SUPPLEMENTARY INFORMATION: This final
rule is issued under Marketing
Agreement and Order No. 929, as
amended (7 CFR part 929), regulating
the handling of cranberries produced in
Massachusetts, Rhode Island,
Connecticut, New Jersey, Wisconsin,
Michigan, Minnesota, Oregon,
Washington, and Long Island in the
SUMMARY:
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Federal Register / Vol. 78, No. 161 / Tuesday, August 20, 2013 / Rules and Regulations
State of New York, hereinafter referred
to as the ‘‘order.’’ 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 Department of Agriculture
(USDA) is issuing this rule in
conformance with Executive Order
12866.
This final rule 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
not later than 20 days after the date of
the entry of the ruling.
This final rule revises the order’s
rules and regulations pertaining to the
determination of grower sales history.
This change modifies sales history
calculations so that they are applicable
for future seasons and adjusts the
number of years that can be considered
when determining the highest four years
of past sales. These changes were
unanimously recommended by the
Committee at a meeting on February 20,
2012.
The order provides authority for
volume control in the form of a grower
allotment program. This program
provides a method for limiting the
quantity of cranberries that handlers
may purchase or handle on behalf of
growers in years of oversupply. Under
this program, a marketable quantity and
allotment percentage are established by
the Committee. Each grower’s sales
history is calculated by averaging recent
years’ sales data using information
submitted by the grower on a
production and eligibility report filed
with the Committee. If volume control
regulations are to be implemented, each
grower’s allotment is then calculated by
multiplying the allotment percentage by
the grower’s sales history.
Section 929.48 of the order prescribes
provisions for computing grower sales
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history. These provisions include a
requirement that a new sales history be
calculated for each grower after each
crop year, using the formula established
in § 929.48(a) or such other formula as
determined by the Committee, with the
approval of the Secretary. Section
929.149 provides another formula for
calculating grower sales history, which
includes provisions for additional sales
history to make calculations more
equitable for growers with new acreage.
The calculations in this section are
currently based on, and specifically
reference, the six years immediately
preceding the last year volume
regulation was in effect, 2001–02,
making them applicable for only the one
season. This section also specifies that
sales history can be calculated using the
average of the highest four of the most
recent seven years of sales for acreage
with seven or more years of sales
history.
In an effort to update the regulations
pertaining to the calculation of grower
sales history, the Committee
recommended two changes to § 929.149.
The first change removes the outdated
references to specific years used in
calculating sales history. The second
change reduces the maximum number
of years of sales that can be used to
determine the highest four years of sales
from seven years to six years.
The formula for determining sales
history in § 929.149 was developed
specifically for the implementation of
volume regulation during the 2001–02
season, the last time volume regulation
was used under the order. The
Committee developed the formula to
address potential inequities that could
result when calculating sales history,
especially in regards to new acreage.
Because a cranberry bog does not reach
full production capacity until several
years after being planted, using an
average of early sales for bogs which
have not reached maturity could result
in a sales history that does not reflect
future sales potential. Because
calculated sales history impacts the
amount of allotment received under
volume regulation, it is important that
the calculated sales history is as
representative of grower sales as
possible.
Therefore, in 2001 the Committee
created a formula to determine an
amount of additional sales history per
acre to be applied to acreage planted in
1995, 1996, 1997, 1998, 1999, and 2000.
To help establish the additional amount
of sales volume to be provided for new
acreage, the Committee and USDA
conducted surveys to determine average
yields on new acreage over the first five
years of production. Recognizing that
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the averages may not be reflective of all
growers, the averages were adjusted
upward by 25 barrels and were used to
calculate the numbers for additional
sales history provided in Table 1 in
§ 929.149 for bogs planted from 1995
through 2000.
At its February 20, 2012, meeting, the
Committee discussed the volume
regulation provisions in the order’s
rules and regulations and how these
provisions may need to be updated for
upcoming seasons in the event volume
regulation is implemented. The
Committee reviewed § 929.149 and how
it calculates sales history and agreed
that the adjustments for additional sales
history were still important in
establishing equity for new acreage.
Recognizing the specific dates
currently in § 929.149 are not applicable
for future seasons, the Committee
recommended revising this section to
remove the date-specific language so
that it is applicable to each individual
season. Rather than referring to acreage
planted in the years 1995 through 2000,
this revision refers to acreage planted
between one and six years prior to the
current season. With this change,
§ 929.149 is applicable to the
calculation of grower sales history for
any season, making the additional sales
history adjustment available to growers
with new acreage.
In regards to the specific amounts of
additional sales history per acre
provided for new acreage in Table 1 in
§ 929.149, the Committee recommended
no change. While the amounts were
based on production data collected in
2000, the majority of cranberry
production still comes from the same
variety as in 2000, as do the majority of
new plantings. Further, with the average
yields used to calculate the amounts
increased by 25 barrels, the calculated
yields used to develop the additional
sales history should still be reflective of
the average yields for new acreage.
Therefore, the current amounts of
additional sales history to be applied
per acre for new or re-planted cranberry
acreage remain unchanged by this final
rule.
The Committee also discussed the
time period that should be used to
determine a grower’s highest four years
of sales when calculating sales history.
Section 929.149 currently uses the
average of the highest four of the most
recent seven years of sales for acreage
with seven or more years of sales
history. The formula in § 929.48
calculates sales history using the
average of the highest four of the most
recent six years of sales. The additional
year provided for in § 929.149 was to
compensate growers for possible lower
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sales numbers stemming from volume
regulation in 2000–01, so that grower
sales history would be more reflective of
their typical sales. Committee members
agreed that since volume regulation has
not been implemented for more than six
years, the additional year is no longer
needed, and that the most recent six
years of sales data is adequate for
determining a grower’s highest four
years of sales.
Therefore, this final rule revises
§ 929.149 to remove the outdated
references to specific years so that its
provisions can be utilized to calculate a
grower’s sales history for all future
seasons. The final rule also reduces the
time period used to determine the
highest four years of sales from seven
years to six years.
Final Regulatory Flexibility Analysis
Pursuant to 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
business 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 55 handlers
of cranberries who are subject to
regulation under the marketing order
and approximately 1,200 cranberry
producers in the regulated area. Small
agricultural service firms are defined by
the Small Business Administration
(SBA) as those having annual receipts of
less than $7,000,000, and small
agricultural producers are defined as
those having annual receipts of less than
$750,000 (13 CFR 121.201).
Based on Committee data and
information from the National
Agricultural Statistics Service, the
average annual f.o.b. price of cranberries
during the 2012 season was
approximately $41.25 per barrel and
total shipments were approximately 8.0
million barrels. Using the average f.o.b.
price and shipment data, the majority of
cranberry handlers could be considered
small businesses under SBA’s
definition. In addition, based on
production, producer prices, and the
total number of cranberry growers, the
average grower revenue is less than
$750,000. Therefore, the majority of
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growers and handlers of cranberries may
be considered small entities.
This final rule revises the rules and
regulations pertaining to the
determination of sales history currently
prescribed under the order in § 929.149.
This change updates sales history
calculations so that they are applicable
for future seasons and adjusts the
number of years that can be considered
when determining the highest four years
of past sales. These changes were
unanimously recommended by the
Committee at a meeting on February 20,
2012. Authority for these changes is
provided in § 929.48 of the order.
It is not anticipated that this action
will impose any additional costs on the
industry. Each year, the Committee is
required to calculate a sales history for
each grower. This rule updates
§ 929.149 making its provisions for
calculating grower sales history
applicable to any season. Reducing the
number of seasons that can be
considered when determining the
highest four years of sales from seven
years to six years in this section, could
result in a slightly lower average for the
highest four years. However, as this
change makes this section reflect the
calculation currently used by the
industry for the highest four, and given
that a grower allotment volume
regulation has not been implemented in
more than ten years, the effects of this
change should be minimal.
Further, the provisions in § 929.149
were developed to make the
calculations of sales history more
equitable for growers with new acreage.
Because a cranberry bog does not reach
full production capacity until several
years after being planted, using an
average of early sales for bogs which
have not reached maturity could result
in sales histories that do not reflect
future sales potential. As calculated
sales history impacts the amount of
allotment received under volume
regulation, it is important that the
calculated sales history is as
representative of grower sales as
possible. Revising the calculations in
§ 929.149 could actually increase the
calculated amount of sales history for
new acreage, which in turn would
provide the grower with additional
allotment should volume regulation be
implemented. The benefits of this rule
are not expected to be
disproportionately greater or less for
small handlers or growers than for large
entities.
The Committee considered one
alternative to these changes: Making no
change to the rules and regulations
pertaining to the determination of sales
history. The Committee recognized
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51045
making no revisions to the way sales
history is calculated under § 929.149
could mean new acreage not yet
producing at full capacity could receive
sales history below their potential
average. Therefore, this alternative was
rejected.
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 Office of
Management and Budget (OMB) and
assigned OMB No. 0581–0189, Generic
Fruit Crops. No changes in those
requirements as a result of this action
are necessary. Should any changes
become necessary, they would be
submitted to OMB for approval.
This final rule will not impose any
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.
As noted in the initial regulatory
flexibility analysis, USDA has not
identified any relevant Federal rules
that duplicate, overlap or conflict with
this final rule. Further, no public
comments were received concerning the
proposal not addressing the initial
regulatory flexibility analysis.
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.
In addition, the Committee’s meeting
was widely publicized throughout the
cranberry industry and all interested
persons were invited to attend the
meeting and participate in Committee
deliberations on all issues. Like all
Committee meetings, the February 20,
2012, meeting was a public meeting and
all entities, both large and small, were
able to express views on this issue.
A proposed rule concerning this
action was published in the Federal
Register on May 14, 2013 (78 FR 28149).
Copies of the rule were mailed or sent
via facsimile to all Committee members
and cranberry handlers. Finally, the rule
was made available through the Internet
by USDA and the Office of the Federal
Register. A 30-day comment period
ending June 13, 2013, was provided to
allow interested persons to respond to
the proposal. No comments were
received.
A small business guide on complying
with fruit, vegetable, and specialty crop
marketing agreements and orders may
E:\FR\FM\20AUR1.SGM
20AUR1
51046
Federal Register / Vol. 78, No. 161 / Tuesday, August 20, 2013 / Rules and Regulations
be viewed at: www.ams.usda.gov/
MarketingOrdersSmallBusinessGuide.
Any questions about the compliance
guide should be sent to Jeffrey Smutny
at the previously mentioned address in
the FOR FURTHER INFORMATION CONTACT
section.
After consideration of all relevant
matter presented, including the
information and recommendation
submitted by the Committee and other
available information, it is hereby found
that this rule, as hereinafter set forth,
will tend to effectuate the declared
policy of the Act.
It is further found that good cause
exists for not postponing the effective
date of this rule until 30 days after
publication in the Federal Register (5
U.S.C. 553) because the Committee is
planning its next industry meeting for
August, and having this final rule in
place would be helpful to any
discussion involving volume control.
Further, the industry is aware of this
rule, which was recommended at a
public meeting. Also, a 30-day comment
period was provided for in the proposed
rule.
6 years ago or later, the sales history
shall be computed by averaging the
highest 4 of the 5 years and shall be
adjusted as provided in paragraph (d).
* * *
(c) For growers with acreage with no
sales history or for the first harvest of replanted acres, the sales history will be
75 barrels per acre for acres planted or
re-planted 1 year ago and first harvested
in the current crop year and 156 barrels
per acre for acres planted or re-planted
2 years ago and first harvested in the
current crop year.
(d) In addition to the sales history
computed in accordance with
paragraphs (a) and (b) of this section,
additional sales history shall be
assigned to growers with acreage
planted in the last 6 years. The
additional sales histories depending on
the date the acreage is planted are
shown in Table 1.
TABLE 1—ADDITIONAL SALES HISTORY
ASSIGNED TO ACREAGE
Additional
current crop
year sales history per acre
Date planted
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 amended as
follows:
6
5
4
3
2
1
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
*
1. The authority citation for 7 CFR
part 929 continues to read as follows:
years ago ...........................
years ago ...........................
years ago ...........................
years ago ...........................
years ago ...........................
year ago ............................
*
*
*
49
117
157
183
156
75
*
Dated: August 14, 2013.
Rex A Barnes,
Associate Administrator, Agricultural
Marketing Service.
[FR Doc. 2013–20253 Filed 8–19–13; 8:45 am]
BILLING CODE 3410–02–P
■
FARM CREDIT ADMINISTRATION
Authority: 7 U.S.C. 601–674.
2. Section 929.149 is amended by
revising paragraph (a), the first sentence
in paragraph (b), paragraphs (c) and (d),
and Table 1 to read as follows:
■
§ 929.149
Determination of sales history.
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*
*
*
*
*
(a) For each grower with acreage with
6 or more years of sales history, a new
sales history shall be computed using an
average of the highest 4 of the most
recent 6 years of sales. If the grower has
acreage with 5 years of sales history and
such acreage was planted more than 6
years ago, a new sales history shall be
computed by averaging the highest 4 of
the 5 years.
(b) For growers whose acreage has 5
years of sales history and was planted
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12 CFR Part 610
RIN 3052–AC78
Registration of Mortgage Loan
Originators
Farm Credit Administration.
Interim rule with request for
comments.
AGENCY:
ACTION:
The Farm Credit
Administration (FCA, we or us) is
repealing its regulations that govern the
registration of residential mortgage loan
originators employed by Farm Credit
System (FCS or System) institutions. We
are repealing these regulations because
the Bureau of Consumer Financial
Protection (CFPB), pursuant to its
SUMMARY:
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authority under the Dodd-Frank Wall
Street Reform and Consumer Protection
Act (Dodd-Frank Act), is consolidating
and recodifying the regulations that six
Federal agencies jointly enacted to
implement the Secure and Fair
Enforcement for Mortgage Licensing Act
(S.A.F.E. Act), which require residential
mortgage loan originators at banks,
savings associations, credit unions, FCS
institutions, and their subsidiaries to
register with the National Mortgage
Licensing System and Registry (NMLSR
or Registry) and obtain a unique
identifier. Repealing these regulations
avoids duplication, which is likely to
cause confusion at FCS institutions.
DATES: This interim rule will become
effective 30 days after publication in the
Federal Register during which either or
both Houses of Congress are in session.
We will publish notice of the effective
date in the Federal Register. Please send
your comments to us by September 19,
2013.
ADDRESSES: We offer a variety of
methods for you to submit your
comments. For accuracy and efficiency,
commenters are encouraged to submit
comments by email or through the
FCA’s Web site. As facsimiles (fax) are
difficult for us to process and achieve
compliance with section 508 of the
Rehabilitation Act, we are no longer
accepting comments submitted by fax.
Regardless of the method you use,
please do not submit your comment
multiple times via different methods.
You may submit comments by any of
the following methods:
• Email: Send us an email at regcomm@fca.gov.
• FCA Web site: https://www.fca.gov.
Select ‘‘Public Comments’’ and follow
the directions for ‘‘Submitting a
Comment.’’
• Federal eRulemaking Portal: https://
www.regulations.gov. Follow the
instructions for submitting comments.
• Mail: Gary K. Van Meter, Director,
Office of Regulatory Policy, Farm Credit
Administration, 1501 Farm Credit Drive,
McLean, VA 22102–5090.
You may review copies of comments
we receive at our office in McLean,
Virginia, or from our Web site at
https://www.fca.gov. Once you are in the
Web site, select ‘‘Public Commenters,’’
then ‘‘Public Comments,’’ and follow
the directions for ‘‘Reading Submitted
Public Comments.’’ We will show your
comments as submitted, but for
technical reasons we may omit items
such as logos and special characters.
Identifying information that you
provide, such as phone numbers and
addresses, will be publicly available.
However, we will attempt to remove
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]]>Agencies
[Federal Register Volume 78, Number 161 (Tuesday, August 20, 2013)]
[Rules and Regulations]
[Pages 51043-51046]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-20253]
-----------------------------------------------------------------------
DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Part 929
[Doc. No. AMS-FV-12-0042; FV12-929-2 FR]
Cranberries Grown in States of Massachusetts, Rhode Island,
Connecticut, New Jersey, Wisconsin, Michigan, Minnesota, Oregon,
Washington, and Long Island in the State of New York; Revising
Determination of Sales History
AGENCY: Agricultural Marketing Service, USDA.
ACTION: Final rule.
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SUMMARY: This rule revises the determination of sales history
provisions currently prescribed under the cranberry marketing order
(order). The order regulates the handling of cranberries grown in
Massachusetts, Rhode Island, Connecticut, New Jersey, Wisconsin,
Michigan, Minnesota, Oregon, Washington, and Long Island in the State
of New York, and is administered locally by the Cranberry Marketing
Committee (Committee). This rule modifies sales history calculations so
that they are applicable for future seasons and adjusts the number of
years that can be considered when determining the highest four years of
past sales.
DATES: Effective Date: August 21, 2013.
FOR FURTHER INFORMATION CONTACT: Doris Jamieson, Marketing Specialist,
or Christian D. Nissen, Regional Director, Southeast Marketing Field
Office, Marketing Order and Agreement Division, Fruit and Vegetable
Program, AMS, USDA; Telephone: (863) 324-3375, Fax: (863) 325-8793, or
Email: Doris.Jamieson@ams.usda.gov or Christian.Nissen@ams.usda.gov.
Small businesses may request information on complying with this
regulation by contacting Jeffrey Smutny, Marketing Order and Agreement
Division, Fruit and Vegetable Program, AMS, USDA, 1400 Independence
Avenue SW., STOP 0237, Washington, DC 20250-0237; Telephone: (202) 720-
2491, Fax: (202) 720-8938, or Email: Jeffrey.Smutny@ams.usda.gov.
SUPPLEMENTARY INFORMATION: This final rule is issued under Marketing
Agreement and Order No. 929, as amended (7 CFR part 929), regulating
the handling of cranberries produced in Massachusetts, Rhode Island,
Connecticut, New Jersey, Wisconsin, Michigan, Minnesota, Oregon,
Washington, and Long Island in the
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State of New York, hereinafter referred to as the ``order.'' 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 Department of Agriculture (USDA) is issuing this rule in
conformance with Executive Order 12866.
This final rule 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 not later than 20 days after the date of
the entry of the ruling.
This final rule revises the order's rules and regulations
pertaining to the determination of grower sales history. This change
modifies sales history calculations so that they are applicable for
future seasons and adjusts the number of years that can be considered
when determining the highest four years of past sales. These changes
were unanimously recommended by the Committee at a meeting on February
20, 2012.
The order provides authority for volume control in the form of a
grower allotment program. This program provides a method for limiting
the quantity of cranberries that handlers may purchase or handle on
behalf of growers in years of oversupply. Under this program, a
marketable quantity and allotment percentage are established by the
Committee. Each grower's sales history is calculated by averaging
recent years' sales data using information submitted by the grower on a
production and eligibility report filed with the Committee. If volume
control regulations are to be implemented, each grower's allotment is
then calculated by multiplying the allotment percentage by the grower's
sales history.
Section 929.48 of the order prescribes provisions for computing
grower sales history. These provisions include a requirement that a new
sales history be calculated for each grower after each crop year, using
the formula established in Sec. 929.48(a) or such other formula as
determined by the Committee, with the approval of the Secretary.
Section 929.149 provides another formula for calculating grower sales
history, which includes provisions for additional sales history to make
calculations more equitable for growers with new acreage. The
calculations in this section are currently based on, and specifically
reference, the six years immediately preceding the last year volume
regulation was in effect, 2001-02, making them applicable for only the
one season. This section also specifies that sales history can be
calculated using the average of the highest four of the most recent
seven years of sales for acreage with seven or more years of sales
history.
In an effort to update the regulations pertaining to the
calculation of grower sales history, the Committee recommended two
changes to Sec. 929.149. The first change removes the outdated
references to specific years used in calculating sales history. The
second change reduces the maximum number of years of sales that can be
used to determine the highest four years of sales from seven years to
six years.
The formula for determining sales history in Sec. 929.149 was
developed specifically for the implementation of volume regulation
during the 2001-02 season, the last time volume regulation was used
under the order. The Committee developed the formula to address
potential inequities that could result when calculating sales history,
especially in regards to new acreage. Because a cranberry bog does not
reach full production capacity until several years after being planted,
using an average of early sales for bogs which have not reached
maturity could result in a sales history that does not reflect future
sales potential. Because calculated sales history impacts the amount of
allotment received under volume regulation, it is important that the
calculated sales history is as representative of grower sales as
possible.
Therefore, in 2001 the Committee created a formula to determine an
amount of additional sales history per acre to be applied to acreage
planted in 1995, 1996, 1997, 1998, 1999, and 2000. To help establish
the additional amount of sales volume to be provided for new acreage,
the Committee and USDA conducted surveys to determine average yields on
new acreage over the first five years of production. Recognizing that
the averages may not be reflective of all growers, the averages were
adjusted upward by 25 barrels and were used to calculate the numbers
for additional sales history provided in Table 1 in Sec. 929.149 for
bogs planted from 1995 through 2000.
At its February 20, 2012, meeting, the Committee discussed the
volume regulation provisions in the order's rules and regulations and
how these provisions may need to be updated for upcoming seasons in the
event volume regulation is implemented. The Committee reviewed Sec.
929.149 and how it calculates sales history and agreed that the
adjustments for additional sales history were still important in
establishing equity for new acreage.
Recognizing the specific dates currently in Sec. 929.149 are not
applicable for future seasons, the Committee recommended revising this
section to remove the date-specific language so that it is applicable
to each individual season. Rather than referring to acreage planted in
the years 1995 through 2000, this revision refers to acreage planted
between one and six years prior to the current season. With this
change, Sec. 929.149 is applicable to the calculation of grower sales
history for any season, making the additional sales history adjustment
available to growers with new acreage.
In regards to the specific amounts of additional sales history per
acre provided for new acreage in Table 1 in Sec. 929.149, the
Committee recommended no change. While the amounts were based on
production data collected in 2000, the majority of cranberry production
still comes from the same variety as in 2000, as do the majority of new
plantings. Further, with the average yields used to calculate the
amounts increased by 25 barrels, the calculated yields used to develop
the additional sales history should still be reflective of the average
yields for new acreage. Therefore, the current amounts of additional
sales history to be applied per acre for new or re-planted cranberry
acreage remain unchanged by this final rule.
The Committee also discussed the time period that should be used to
determine a grower's highest four years of sales when calculating sales
history. Section 929.149 currently uses the average of the highest four
of the most recent seven years of sales for acreage with seven or more
years of sales history. The formula in Sec. 929.48 calculates sales
history using the average of the highest four of the most recent six
years of sales. The additional year provided for in Sec. 929.149 was
to compensate growers for possible lower
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sales numbers stemming from volume regulation in 2000-01, so that
grower sales history would be more reflective of their typical sales.
Committee members agreed that since volume regulation has not been
implemented for more than six years, the additional year is no longer
needed, and that the most recent six years of sales data is adequate
for determining a grower's highest four years of sales.
Therefore, this final rule revises Sec. 929.149 to remove the
outdated references to specific years so that its provisions can be
utilized to calculate a grower's sales history for all future seasons.
The final rule also reduces the time period used to determine the
highest four years of sales from seven years to six years.
Final Regulatory Flexibility Analysis
Pursuant to 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
business 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 55 handlers of cranberries who are subject
to regulation under the marketing order and approximately 1,200
cranberry producers in the regulated area. Small agricultural service
firms are defined by the Small Business Administration (SBA) as those
having annual receipts of less than $7,000,000, and small agricultural
producers are defined as those having annual receipts of less than
$750,000 (13 CFR 121.201).
Based on Committee data and information from the National
Agricultural Statistics Service, the average annual f.o.b. price of
cranberries during the 2012 season was approximately $41.25 per barrel
and total shipments were approximately 8.0 million barrels. Using the
average f.o.b. price and shipment data, the majority of cranberry
handlers could be considered small businesses under SBA's definition.
In addition, based on production, producer prices, and the total number
of cranberry growers, the average grower revenue is less than $750,000.
Therefore, the majority of growers and handlers of cranberries may be
considered small entities.
This final rule revises the rules and regulations pertaining to the
determination of sales history currently prescribed under the order in
Sec. 929.149. This change updates sales history calculations so that
they are applicable for future seasons and adjusts the number of years
that can be considered when determining the highest four years of past
sales. These changes were unanimously recommended by the Committee at a
meeting on February 20, 2012. Authority for these changes is provided
in Sec. 929.48 of the order.
It is not anticipated that this action will impose any additional
costs on the industry. Each year, the Committee is required to
calculate a sales history for each grower. This rule updates Sec.
929.149 making its provisions for calculating grower sales history
applicable to any season. Reducing the number of seasons that can be
considered when determining the highest four years of sales from seven
years to six years in this section, could result in a slightly lower
average for the highest four years. However, as this change makes this
section reflect the calculation currently used by the industry for the
highest four, and given that a grower allotment volume regulation has
not been implemented in more than ten years, the effects of this change
should be minimal.
Further, the provisions in Sec. 929.149 were developed to make the
calculations of sales history more equitable for growers with new
acreage. Because a cranberry bog does not reach full production
capacity until several years after being planted, using an average of
early sales for bogs which have not reached maturity could result in
sales histories that do not reflect future sales potential. As
calculated sales history impacts the amount of allotment received under
volume regulation, it is important that the calculated sales history is
as representative of grower sales as possible. Revising the
calculations in Sec. 929.149 could actually increase the calculated
amount of sales history for new acreage, which in turn would provide
the grower with additional allotment should volume regulation be
implemented. The benefits of this rule are not expected to be
disproportionately greater or less for small handlers or growers than
for large entities.
The Committee considered one alternative to these changes: Making
no change to the rules and regulations pertaining to the determination
of sales history. The Committee recognized making no revisions to the
way sales history is calculated under Sec. 929.149 could mean new
acreage not yet producing at full capacity could receive sales history
below their potential average. Therefore, this alternative was
rejected.
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 Office of Management and Budget (OMB) and
assigned OMB No. 0581-0189, Generic Fruit Crops. No changes in those
requirements as a result of this action are necessary. Should any
changes become necessary, they would be submitted to OMB for approval.
This final rule will not impose any 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.
As noted in the initial regulatory flexibility analysis, USDA has
not identified any relevant Federal rules that duplicate, overlap or
conflict with this final rule. Further, no public comments were
received concerning the proposal not addressing the initial regulatory
flexibility analysis.
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.
In addition, the Committee's meeting was widely publicized
throughout the cranberry industry and all interested persons were
invited to attend the meeting and participate in Committee
deliberations on all issues. Like all Committee meetings, the February
20, 2012, meeting was a public meeting and all entities, both large and
small, were able to express views on this issue.
A proposed rule concerning this action was published in the Federal
Register on May 14, 2013 (78 FR 28149). Copies of the rule were mailed
or sent via facsimile to all Committee members and cranberry handlers.
Finally, the rule was made available through the Internet by USDA and
the Office of the Federal Register. A 30-day comment period ending June
13, 2013, was provided to allow interested persons to respond to the
proposal. No comments were received.
A small business guide on complying with fruit, vegetable, and
specialty crop marketing agreements and orders may
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be viewed at: www.ams.usda.gov/MarketingOrdersSmallBusinessGuide. Any
questions about the compliance guide should be sent to Jeffrey Smutny
at the previously mentioned address in the FOR FURTHER INFORMATION
CONTACT section.
After consideration of all relevant matter presented, including the
information and recommendation submitted by the Committee and other
available information, it is hereby found that this rule, as
hereinafter set forth, will tend to effectuate the declared policy of
the Act.
It is further found that good cause exists for not postponing the
effective date of this rule until 30 days after publication in the
Federal Register (5 U.S.C. 553) because the Committee is planning its
next industry meeting for August, and having this final rule in place
would be helpful to any discussion involving volume control. Further,
the industry is aware of this rule, which was recommended at a public
meeting. Also, a 30-day comment period was provided for in the proposed
rule.
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
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. Section 929.149 is amended by revising paragraph (a), the first
sentence in paragraph (b), paragraphs (c) and (d), and Table 1 to read
as follows:
Sec. 929.149 Determination of sales history.
* * * * *
(a) For each grower with acreage with 6 or more years of sales
history, a new sales history shall be computed using an average of the
highest 4 of the most recent 6 years of sales. If the grower has
acreage with 5 years of sales history and such acreage was planted more
than 6 years ago, a new sales history shall be computed by averaging
the highest 4 of the 5 years.
(b) For growers whose acreage has 5 years of sales history and was
planted 6 years ago or later, the sales history shall be computed by
averaging the highest 4 of the 5 years and shall be adjusted as
provided in paragraph (d). * * *
(c) For growers with acreage with no sales history or for the first
harvest of re-planted acres, the sales history will be 75 barrels per
acre for acres planted or re-planted 1 year ago and first harvested in
the current crop year and 156 barrels per acre for acres planted or re-
planted 2 years ago and first harvested in the current crop year.
(d) In addition to the sales history computed in accordance with
paragraphs (a) and (b) of this section, additional sales history shall
be assigned to growers with acreage planted in the last 6 years. The
additional sales histories depending on the date the acreage is planted
are shown in Table 1.
Table 1--Additional Sales History Assigned to Acreage
------------------------------------------------------------------------
Additional
current crop
Date planted year sales
history per
acre
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6 years ago............................................. 49
5 years ago............................................. 117
4 years ago............................................. 157
3 years ago............................................. 183
2 years ago............................................. 156
1 year ago.............................................. 75
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Dated: August 14, 2013.
Rex A Barnes,
Associate Administrator, Agricultural Marketing Service.
[FR Doc. 2013-20253 Filed 8-19-13; 8:45 am]
BILLING CODE 3410-02-P
