Cranberries Grown in States of Massachusetts, et al.; Establishment of Handler Diversion and Reporting Requirements and New Information Collection, 32193-32198 [2018-14939]
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Agricultural Marketing Service
7 CFR Part 929
[Doc. No. AMS–SC–17–0066; SC17–929–3
FR]
Cranberries Grown in States of
Massachusetts, et al.; Establishment of
Handler Diversion and Reporting
Requirements and New Information
Collection
Agricultural Marketing Service,
USDA.
ACTION: Final rule.
AGENCY:
This rule implements a
recommendation to establish handler
diversion and reporting requirements
under the marketing order for
cranberries grown in the production
area (Order). This action establishes the
procedures handlers use to divert fruit
through disposal or into noncompetitive
outlets. The reporting requirements
support the diversion procedures by
providing the necessary documentation
to help ensure compliance when a
volume regulation is established.
DATES: Effective August 13, 2018.
FOR FURTHER INFORMATION CONTACT:
Doris Jamieson, Marketing Specialist, or
Christian D. Nissen, Regional Director,
Southeast Marketing Field Office,
Marketing Order and Agreement
Division, Specialty Crops Program,
AMS, USDA; Telephone: (863) 324–
3375, Fax: (863) 291–8614, 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 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:
Richard.Lower@ams.usda.gov.
SUPPLEMENTARY INFORMATION: This final
rule, pursuant to 5 U.S.C. 553, amends
regulations used to carry out a
marketing order as defined in 7 CFR
900.2(j). This final rule is issued under
Marketing Agreement and 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),
SUMMARY:
■
§ 894.101
DEPARTMENT OF AGRICULTURE
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32193
hereinafter referred to as the ‘‘Act.’’ The
Committee locally administers the
Order and is comprised of growers of
cranberries operating within the
production area, and a public member.
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 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’ ’’ (February 2, 2017).
This rule has been reviewed under
Executive Order 12988, Civil Justice
Reform. This final 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 establishes handler
diversion and reporting requirements
under the Order. This rule establishes
procedures handlers use to divert fruit
through disposal or into noncompetitive
outlets. The reporting requirements
support the diversion procedures by
providing the necessary documentation
to help ensure compliance when a
volume regulation is established. This
action was recommended by the
Committee at its August 31, 2017,
September 15, 2017, and October 13,
2017, meetings.
The Order provides for the use of
volume regulation to stabilize prices
and improve grower returns during
periods of oversupply. Section
929.51(a)(2) specifies that a handler
withholding program must be
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recommended by the Committee no
later than August 31 and that such
recommendation shall include the free
and restricted percentages for the crop
year. On August 31, 2017, the
Committee met and recommended free
and restricted percentages of 85 percent
free and 15 percent restricted. Handler
diversion is one method that handlers
can utilize to meet restricted percentage
requirements.
Section 929.54 provides, in part, that
whenever the Secretary of Agriculture
(Secretary) has fixed the free and
restricted percentages for any fiscal
period, each handler shall withhold
from handling a portion of the
cranberries acquired during such
period. This section also provides the
authority for the Committee to establish,
with the approval of the Secretary, rules
and regulations necessary to administer
this section. Section 929.56 provides
special provisions relating to withheld
(restricted) cranberries, and § 929.57
provides authority for the Committee to
establish, with the approval of the
Secretary, outlets for withheld
cranberries which are noncompetitive
with outlets for unrestricted (free
percentage) cranberries.
Section 929.62 provides, in part,
authority to require handlers to submit
reports of cranberries acquired, held in
inventory, quantity handled, total
cranberries withheld from handling, the
portion of such withheld cranberries on
hand, and the quantity and manner of
disposition of any such withheld
cranberries diverted. Section 929.62(f)
further provides authority for the
Committee, with the approval of the
Secretary, to collect other reports and
information from handlers needed to
perform its duties.
This final rule uses these authorities
to establish new §§ 929.157 and
929.162. Section 929.157 establishes the
procedures to be used for handler
diversion when free and restricted
percentages are instituted. Section
929.162 requires handlers of
cranberries, during years when free and
restricted percentages are applied, to
report to the Committee diversion plans
and year-end reports, information on
cranberries diverted and cranberries
shipped to noncompetitive outlets, and
other information to verify compliance
with the program, using six specific
Committee forms.
The Committee recommended
establishing free and restricted
percentages under a handler
withholding volume regulation for the
2017–18 season in response to
historically high inventory levels for
cranberries. As this is the first time the
Committee has used this volume
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regulation provision under the Order, it
recognized the need to establish
procedures outlining the diversion
requirements for restricted fruit.
Free percentage cranberries can be
used to supply any available market,
including juice, sweetened dried
cranberries, sauce, and frozen
cranberries. Restricted percentage
cranberries can be diverted through
disposal or utilized in markets that are
noncompetitive with free cranberries.
Possible outlets for restricted
cranberries include, in part, for fresh
export, except to Canada; charity;
research and development projects; and
any nonhuman food use. Handlers also
have the option to divert processed
products in lieu of fresh fruit to meet up
to 50 percent of their restricted
obligation.
At the 2017 meetings in August,
September, and October, the Committee
discussed the handler diversion
procedures and the associated reporting
requirements necessary to help ensure
compliance with a free and restricted
percentage volume regulation. As a
result, the Committee developed and
approved six specific forms and related
procedures to be used during seasons
when free and restricted percentages are
established for volume regulation.
Committee members discussed the
need for Committee staff to know how
handlers plan to meet their restricted
percentage obligation and if, at the end
of the season, they met their diversion
requirement. As a result, the Committee
developed two specific forms to be
added to the reporting requirements
under the Order.
With the first form, the Handler
Withholding Report (CMC–JUN),
handlers provide information on how
they plan to meet their restricted
percentage obligation. The form will be
submitted to the Committee by June 1
during years with established free and
restricted percentages and requires the
following information: The name and
address of the handler, the amount of
cranberries to be acquired, the amount
of cranberries to be diverted by disposal,
the amount of cranberries to be diverted
to noncompetitive outlets, and the types
of cranberry products to be withheld.
The Committee will use this
information to estimate the amount of
fruit that will be taken off the market,
the proposed disposition of the fruit,
and as a starting point for tracking
handler compliance.
The second form, the Final Handler
Withholding Report (CMC–AUG), will
be submitted by the end of the crop
year. The report requires the same
information as the Handler Withholding
Report but provides the Committee with
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the actual year-end seasonal totals. This
form is due by August 31. The final
report will be used to verify that
handlers met their restricted percentage
obligation.
Handlers have several diversion
options available to meet their restricted
percentage obligation. One method of
diversion available to handlers is the
disposal of fresh cranberries or
cranberry products. In its discussions,
Committee members expressed concern
regarding verifying the accuracy of the
amount of fruit or processed product
diverted using this method. The
Committee recommended that all
disposals take place under the
supervision of a non-industry-related
third party who will review the
handler’s disposal documentation,
witness the disposal whenever possible,
and certify as to the completion of the
disposal process. The Committee
initially agreed to hire two inspectors to
supervise and verify handler
compliance. However, due to the size of
the production area, the Committee
hired four inspectors, one from each of
the primary growing regions, who will
perform these tasks. The inspection and
verification costs will be paid by the
handler.
To facilitate this process, the
Committee recommended establishing
another form. This form, the Handler
Disposal Certification (CMC–DISP), will
be the primary form used to initiate,
track, and certify this method of
diversion during years in which a free
and restricted percentage volume
regulation has been established. The
form will be used to notify the
Committee of the handler’s intent to
dispose of cranberries or cranberry
products. Information required on the
form include the handler’s name and
address; the amount of fruit to be
diverted; the type of cranberry product
to be diverted; the amount of processed
fruit diverted, if any; and the lot
identification information.
Upon receipt of the form, the
Committee office will notify the
inspector in the handler’s growing
region. The inspector will contact the
handler to schedule a date for the
disposal to take place, usually within a
week of receipt of the notification. The
inspector will meet with the handler on
that date to verify the documentation
provided and, when possible, witness
the disposal.
The Committee recognized that, due
to scheduling conflicts, the inspector
may not be available to visually witness
each disposal of restricted cranberries.
Therefore, the Committee agreed that,
should the inspector not be available to
witness the diversion within seven
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days, the handler may proceed with the
disposal. The inspector will then verify
and complete the certification upon the
inspector’s next visit to the handler’s
facility. If the cranberries or cranberry
product were disposed of at a landfill,
through composting, incineration, at a
wastewater treatment facility, or any
other site, the inspector may request
receipts, visual proof, or any other
additional information needed to
support the disposal as reported on the
form. Once the verification process is
completed, the inspector will sign the
certification section of the form, and
return it to the Committee.
Another method of diversion
available is to divert cranberries or
cranberry products to noncompetitive
outlets. Section 929.57 specifies that
cranberries withheld from handling may
be disposed of only through diversion to
such outlets as the Committee, with the
approval of the Secretary, finds are
noncompetitive to outlets for
unrestricted (free percentage)
cranberries. The Committee discussed
various outlets and recommended the
following: Foreign countries, except
Canada; charitable institutions; any
nonhuman food use; and research and
development projects approved by the
Committee dealing with the
development of foreign and domestic
markets, including but not limited to
dehydration, radiation, freeze drying, or
freezing of cranberries. The Committee
further recommended that cranberries
may not be converted into canned,
frozen, or dehydrated cranberries or
other cranberry products by any
commercial process when being
diverted to foreign countries. The
specific outlets are being considered
under a separate rulemaking action.
The Agricultural Marketing Service
(AMS) submitted and received OMB’s
approval on the five initial forms.
Handlers complete the forms and
submit them to the Committee for
purposes of tracking compliance with
the handler withholding requirement.
OMB approved the forms on October 16,
2017, and assigned them OMB No.
0581–0304. Upon full completion of the
forms-approval process, AMS will seek
to merge the five forms into the OMBapproved 0581–0189 Fruit Crops
containing other forms related to the
Federal marketing order for cranberries.
Two specific reporting requirements
relating to the diversion of fruit to
noncompetitive outlets are added to part
929: A Handler Application for Outlets
for Withheld Fruit (CMC–OUT) and a
Third-Party Confirmation of Receipt of
Withheld Fruit (CMC–CONF). Should a
handler elect to divert cranberries or
cranberry products to noncompetitive
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outlets, the handler must first request
Committee approval of the outlet or
research project using the Handler
Application for Outlets for Withheld
Fruit prior to each disposal activity of
this type. Information requested on the
form includes, among other things, the
handler’s name and address,
information identifying the
noncompetitive outlet, the amount and
type of cranberry products to be
diverted, and how the cranberries will
be utilized. The Committee will review
the information and approve or
disapprove the diversion request.
If the request is approved and the
product is delivered, the receiving
outlet needs to acknowledge receipt of
the product by completing the ThirdParty Confirmation of Receipt of
Withheld Fruit form, and the handler
then returns the completed form to the
Committee.
The two above-described reporting
requirements help track the disposition
of withheld cranberries in
noncompetitive outlets and facilitates
the compliance process under the
recommended handler withholding.
The last form approved by the
Committee provides handlers a method
for appealing any decision made by the
Committee relating to the diversion
process. Should a handler disagree with
a Committee decision, such as denying
the request for approval of a
noncompetitive outlet, or a
determination that diversion could not
be verified, the handler can appeal the
decision by submitting a Handler
Withholding Appeal form (CMC–APPL).
The handler making the appeal is
required to submit the form within 30
days of receiving the determination
from the Committee. This form includes
information about why the handler is
making the appeal and provides
additional information to support the
appeal. The appeal request is reviewed
by an Appeals Subcommittee
(Subcommittee) for re-consideration.
The Subcommittee consists of two
independent growers, two members
from the major cooperative, and one
public member. The handler will be
notified of the Subcommittee’s
determination within 30 days. If the
appeal is denied by the Subcommittee,
the handler has the option of appealing
the decision to the Secretary within 15
days after the notification of the
Subcommittee’s findings.
In order to enable the Committee to
inform the industry of the information
needed for handlers to manage their
inventories in a way that complies with
the industry-supported handler
withholding program, the five initial
forms were previously submitted to
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32195
OMB for approval. These five forms
(CMC–JUN, CMC–DISP, CMC–OUT,
CMC–CONF and CMC–APPL) were
approved by OMB on October 16, 2017,
for use for a six-month period,
beginning the date of approval. This
final rule is necessary for the industry
to use the forms beyond the six-month
period.
Establishing these handler diversion
and reporting requirements facilitates
the implementation of, and ensures
compliance with, free and restricted
percentages when recommended by the
Committee.
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 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 for 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 handlerlevel cranberry value of $285 million.
Dividing this figure by the number of
handlers (65) yields an estimated
average annual handler receipt of $4.3
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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.
This final rule establishes handler
diversion and reporting requirements
under the Order. This final rule
establishes procedures handlers will use
to divert fruit through disposal or into
noncompetitive outlets. The reporting
requirements support the diversion
procedures by providing the necessary
documentation to help ensure
compliance when a volume regulation is
established. This rule establishes new
§§ 929.157 and 929.162. The authority
for this action is provided in §§ 929.54,
929.56, 929.57, and 929.62.
These actions could result in some
additional costs to the industry.
Specifically, handlers could incur some
additional costs as a result of inspector
verification and certification of the
diversion process. In addition, requiring
reports of cranberries acquired, handled,
and withheld imposes an increase in the
reporting burden on all cranberry
handlers. However, the benefits are
expected to outweigh the costs and
increase in reporting burden. The
provisions considered in this action will
help facilitate the implementation of
any recommended handler withholding
volume regulation and help ensure
compliance with the recommended
regulation. Consequently, these changes
will help provide important guidance
during times when market conditions
support the need for establishing
volume regulation.
The impact of this rule will be
beneficial to growers and handlers.
Establishing diversion procedures
benefits the entire industry by ensuring
handler diversion is conducted
consistently and accurately by all
handlers, which also helps ensure
compliance with the handler
withholding program. Authorizing
various diversion outlets means
handlers are not required to divert
cranberries only through destruction.
Instead, fruit can be utilized in
noncompetitive outlets, such as for
charitable purposes. The benefits of this
rule are expected to be equally available
to all cranberry growers and handlers,
regardless of their size, and are greater
than any associated costs.
The Committee discussed other
alternatives to this action, including
using different methods of ensuring
accurate diversion of restricted fruit.
One method considered was allowing
handlers to self-report their diversion of
restricted fruit without a formal
verification process. However, the
Committee deemed this insufficient
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verification to ensure compliance with
the program. Members were concerned
that fruit could be re-routed to a
different handling facility for
processing, and without established
verification procedures, the industry
would not have confidence that
restricted fruit was being properly
diverted. The Committee also
considered the value and importance of
each of the forms and whether all were
required. However, the Committee
agreed each of the recommended forms
provide important information for the
industry and for administering the
Order. Therefore, these alternatives
were rejected.
In accordance with the Paperwork
Reduction Act of 1995 (44 U.S.C.
Chapter 35), this collection has been
submitted to OMB for approval. The five
currently approved forms in 0581–0304
and one additional form will be merged
with forms currently approved under
OMB No. 0581–0189, Fruit Crops. This
final rule establishes the use of six new
reporting requirements and six new
Committee forms, which impose a total
annual burden increase of 38.4 hours.
The forms, ‘‘Handler Withholding
Report,’’ ‘‘Handler Disposal
Certification,’’ ‘‘Handler Application for
Outlets for Withheld Fruit,’’ ‘‘ThirdParty Confirmation of Receipt of
Withheld Fruit,’’ ‘‘Handler Withholding
Appeal,’’ and ‘‘Final Handler
Withholding Report,’’ require the
minimum information necessary to
effectively carry out the requirements of
the Order. The information will enable
the Committee to ensure compliance
when a volume regulation is
established.
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 rule. Further, the public comment
received concerning the proposal did
not address 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.
Further, the Committee’s meetings
were widely publicized throughout the
cranberry industry, and all interested
persons were invited to attend the
meetings and participate in Committee
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deliberations on all issues. Additionally,
the Committee’s meetings held August
31, September 15, and October 13, 2017,
were public meetings, 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 February 15, 2018 (83 FR
6800). Copies of the proposed rule were
sent via email to Committee members
and cranberry handlers. Finally, the
proposed rule was made available
through the internet by USDA and the
Office of the Federal Register. A 60-day
comment period ending April 16, 2018,
was provided to allow interested
persons to respond to the proposal.
Two comments were received which
did not address the merits of the
proposed rule. Accordingly, no changes
will be made to the rule as proposed
based on the comments received.
The proposed rule contained
administrative revisions to the Order’s
subpart headings to bring the language
into conformance with the Office of
Federal Register requirements. These
revisions are not included in this rule as
they were included in a final rule
published in the Federal Register on
April 4, 2018 (83 FR 14350).
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.
After consideration of all relevant
matter presented, including the
information and recommendation of 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.
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
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 part 929
continues to read as follows:
■
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Authority: 7 U.S.C. 601–674.
■
2. Add § 929.157 to read as follows:
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§ 929.157
Handler diversion.
(a) Methods of diversion. Handlers
may divert cranberries by disposing of
cranberries or cranberry products.
Diversion by disposal may take place
prior to placing the cranberries into the
processing line or after processing.
Handlers may also divert cranberries or
cranberry products to approved,
noncompetitive outlets for withheld
fruit. Whole berries or processed
products diverted must come from the
current crop year. Any information
collected of a confidential and/or
proprietary nature would be held in
confidence pursuant to § 929.65.
(1) Diversion through disposal. This
type of diversion is to be carried out
under the supervision of the Committee,
and the cost of such supervision is to be
paid by the handler. Handlers shall
notify the Committee of their intent to
dispose of cranberries or cranberry
products using Form CMC–DISP as
specified in § 929.162(c). Following
notification, a Committee inspector will
meet with the handler to verify the
documentation provided and, when
possible, witness the destruction. The
Committee inspector may request
receipts, visual proof, or any other
information needed to support the
disposal as reported. Once the
verification process has been completed,
the Committee inspector will sign the
certification section of Form CMC–DISP
and return it to the Committee.
(2) Diversion through noncompetitive
outlets. To divert cranberries or
cranberry products to a noncompetitive
outlet, handlers must apply to the
Committee using Form CMC–OUT as
specified in § 929.162(d) prior to each
disposal activity of this type. The
Committee will review the information
and approve or disapprove the diversion
request. Once the cranberries or
cranberry products are delivered to the
approved noncompetitive outlets, the
Committee must receive satisfactory
documentation of the transaction using
Form CMC–CONF as specified in
§ 929.162(e).
(b) Committee notification and
handler plan. Any handler intending to
divert cranberries or cranberry products
pursuant to § 929.54 must notify the
Committee of such intent and provide a
plan by June 1 that shows how the
handler intends to meet the restricted
percentage obligation. The handler shall
submit this plan using Form CMC–JUNE
as specified in the reporting
requirements under § 929.162(a). The
handler will have until August 31 to
fulfill the plan, by which time the
VerDate Sep<11>2014
16:03 Jul 11, 2018
Jkt 244001
handler shall submit a final report
detailing how the restricted percentage
obligation was met using Form CMC–
AUG as specified in § 929.162(b).
(c) Request for review. (1) If a handler
is dissatisfied with a determination
made by the Committee which affects
such handler, the handler may submit to
the Committee within 30 days after
receipt of the Committee’s
determination, a request for a review by
an appeals subcommittee composed of
two independent growers and two
cooperative representatives, as well as a
public member. The appeals
subcommittee shall be appointed by the
Committee chairperson. The handler
may forward with the request any
pertinent materials for consideration of
the appeal.
(2) The subcommittee shall review the
information submitted by the handler
and render a decision within 30 days of
receipt of such appeal. The
subcommittee shall notify the handler of
its decision, accompanied by the
reasons for its conclusions and findings.
(3) The handler may further appeal to
the Secretary, within 15 days after
notification of the subcommittee’s
findings, if such handler is not satisfied
with the appeals subcommittee’s
decision. The Committee shall forward
a file to the Secretary with all pertinent
information related to the handler’s
appeal. The Secretary shall inform the
handler and all interested parties of the
Secretary’s decision. All decisions by
the Secretary are final.
■
3. Add § 929.162 to read as follows:
§ 929.162
Handler diversion reports.
(a) Handler withholding report.
Handlers shall submit to the Committee,
by June 1, a handler withholding report.
The report shall be submitted using
Form CMC–JUN and contain the
following information:
(1) The name and address of the
handler;
(2) The amount of cranberries
acquired;
(3) The amount of cranberries
withheld by disposal;
(4) The amount of cranberries
diverted to noncompetitive outlets;
(5) The form of cranberry products
withheld; and
(6) The total withholding obligation.
(b) Handler Withholding Final Report.
Handlers shall submit to the Committee,
by August 31, a final handler
withholding report. The final report
shall be submitted using Form CMC–
AUG and contain the following
information:
(1) The name and address of the
handler;
PO 00000
Frm 00007
Fmt 4700
Sfmt 4700
32197
(2) The seasonal total of cranberries
acquired;
(3) The seasonal total of cranberries
withheld by disposal;
(4) The seasonal total of cranberries
diverted to noncompetitive outlets;
(5) The form of cranberry products
withheld during the season; and
(6) The total withholding obligation.
(c) Handler disposal certification.
Handlers shall submit to the Committee
Form CMC–DISP for each lot of
cranberries or cranberry products to be
diverted through disposal. The form
shall contain the following information:
(1) Name and address of the handler;
(2) Marketable cranberries in whole
fruit or processed cranberries converted
to whole fruit equivalent disposed of in
this lot;
(3) Form of cranberries;
(4) Volume if in processed form;
(5) Lot details;
(6) Disposal site and method; and
(7) Inspector certification of the
completion of the disposal.
(d) Handler application for outlets for
withheld fruit. Handlers shall submit to
the Committee Form CMC–OUT for
approval for each lot of cranberries or
cranberry products to be diverted to
noncompetitive outlets in accordance
with § 929.57. The form shall contain
the following information:
(1) Name and address of the handler;
(2) Project type;
(3) Product form;
(4) Quantity of cranberries in whole
fruit or processed cranberries converted
to whole fruit equivalent diverted;
(5) A description of the project and
how the cranberries will be used.
(e) Third-party confirmation of receipt
of withheld fruit. Handlers shall submit
to the Committee Form CMC–CONF for
each diversion to a noncompetitive
outlet to verify the receipt of the
cranberries or cranberry product by the
approved outlet. The form shall contain
the following information:
(1) Name and address of the handler;
(2) Project type;
(3) Product form;
(4) Quantity of cranberries in whole
fruit or processed cranberries converted
to whole fruit equivalent utilized; and
(5) Confirmation or documentation of
receipt from the receiving outlet.
(f) Handler withholding appeal.
Handlers may appeal a determination
made by the Committee relating to a
handler withholding regulation using
the appeals process outlined in
§ 929.157(c) and Form CMC–APPL,
which shall contain the following
information:
(1) Name and address of the handler;
(2) Reason for appeal; and
(3) Information in support of appeal.
E:\FR\FM\12JYR1.SGM
12JYR1
32198
Federal Register / Vol. 83, No. 134 / Thursday, July 12, 2018 / Rules and Regulations
Dated: July 9, 2018.
Bruce Summers,
Administrator, Agricultural Marketing
Service.
[FR Doc. 2018–14939 Filed 7–11–18; 8:45 am]
BILLING CODE 3410–02–P
DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Part 39
[Docket No. FAA–2018–0588; Product
Identifier 2017–NM–105–AD; Amendment
39–19328; AD 2018–14–08]
RIN 2120–AA64
Airworthiness Directives; The Boeing
Company Airplanes
Federal Aviation
Administration (FAA), DOT.
ACTION: Final rule; request for
comments.
AGENCY:
We are adopting a new
airworthiness directive (AD) for certain
The Boeing Company Model 777–200LR
series airplanes. This AD requires
revising certain documents to provide
revised operating limitations. For
certain airplanes, modification of the
water and fuel scavenge systems in the
fuel tanks, electrical changes in the
main equipment center, and installation
of new electrical load management
system (ELMS2) software is an
acceptable alternative to the documents
revision. This AD was prompted by
reports of unreliable performance of the
water and fuel scavenge systems. We are
issuing this AD to address the unsafe
condition on these products.
DATES: This AD is effective July 27,
2018.
The Director of the Federal Register
approved the incorporation by reference
of a certain publication listed in this AD
as of July 27, 2018.
We must receive comments on this
AD by August 27, 2018.
ADDRESSES: You may send comments,
using the procedures found in 14 CFR
11.43 and 11.45, by any of the following
methods:
• Federal eRulemaking Portal: Go to
https://www.regulations.gov. Follow the
instructions for submitting comments.
• Fax: 202–493–2251.
• Mail: U.S. Department of
Transportation, Docket Operations,
M–30, West Building Ground Floor,
Room W12–140, 1200 New Jersey
Avenue SE, Washington, DC 20590.
• Hand Delivery: Deliver to Mail
address above between 9 a.m. and 5
p.m., Monday through Friday, except
Federal holidays.
amozie on DSK3GDR082PROD with RULES
SUMMARY:
VerDate Sep<11>2014
16:03 Jul 11, 2018
Jkt 244001
For service information identified in
this final rule, contact Boeing
Commercial Airplanes, Attention:
Contractual & Data Services (C&DS),
2600 Westminster Blvd., MC 110–SK57,
Seal Beach, CA 90740–5600; telephone
562–797–1717; internet https://
www.myboeingfleet.com. You may view
this service information at the FAA,
Transport Standards Branch, 2200
South 216th St., Des Moines, WA. For
information on the availability of this
material at the FAA, call 206–231–3195.
It is also available on the internet at
https://www.regulations.gov by searching
for and locating Docket No. FAA–2018–
0588.
Examining the AD Docket
You may examine the AD docket on
the internet at https://
www.regulations.gov by searching for
and locating Docket No. FAA–2018–
0588; or in person at the Docket
Management Facility between 9 a.m.
and 5 p.m., Monday through Friday,
except Federal holidays. The AD docket
contains this final rule, the regulatory
evaluation, any comments received, and
other information. The street address for
the Docket Office (phone: 800–647–
5527) is in the ADDRESSES section.
Comments will be available in the AD
docket shortly after receipt.
FOR FURTHER INFORMATION CONTACT:
Kevin Nguyen, Aerospace Engineer,
Propulsion Section, FAA, Seattle ACO
Branch, 2200 South 216th St., Des
Moines, WA 98198; phone and fax: 206–
231–3555; email: Kevin.Nguyen@
faa.gov.
SUPPLEMENTARY INFORMATION:
Discussion
Operators have reported unreliable
performance of the water and fuel
scavenge systems. During flight, any
water in the fuel can sink to the bottom
of the fuel tank. This water can enter the
fuel scavenge inlets and can then freeze
as it travels from the body center fuel
tank into the colder fuel scavenge tubes
in the left and right cheek center fuel
tanks (outboard of the side of body ribs).
The frozen water can restrict the flow of
scavenge fuel from the center fuel tank
to the main fuel tanks, causing the fuel
flow to decrease or stop. When this
occurs, as much as 700 pounds of fuel
can remain unavailable during flight. If
the flightcrew is not aware that this fuel
is unavailable and the fuel quantity
decreases to the quantity of the
unavailable fuel, then fuel exhaustion
will occur, which could lead to
subsequent power loss of all engines
due to loss of capability to scavenge fuel
in the center fuel tank.
PO 00000
Frm 00008
Fmt 4700
Sfmt 4700
Related Rulemaking
We issued AD 2016–11–03,
Amendment 39–18530 (81 FR 34867,
June 1, 2016) (‘‘AD 2016–11–03’’), that
applied to certain Boeing Model 777–
200LR series airplanes equipped with or
without auxiliary fuel tanks. For
airplanes with auxiliary fuel tanks,
variable numbers WD049–WD053
inclusive only, AD 2016–11–03 requires
modification of the water and fuel
scavenge systems after removal of the
auxiliary fuel tanks. This AD requires
incorporation of revised operating
limitations for those airplanes, which
terminates the associated requirements
of AD 2016–11–03. This AD also
provides the option of modifying the
water and fuel scavenge systems in the
fuel tanks, making electrical changes in
the main equipment center, and
installing new ELMS2 software after
removal of the auxiliary fuel tanks.
Either compliance method terminates
the requirements of paragraphs (g), (h),
and (i) of AD 2016–11–03 for those
airplanes.
Additionally, paragraph (g) of this AD
requires a revision to certain documents
to provide revised operating limitations
for airplane variable numbers WD011
through WD015 inclusive and WD016
through WD018 inclusive. These
airplanes are not affected by AD 2016–
11–03, which refers to Boeing Special
Attention Service Bulletin 777–28–
0078, Revision 1, dated April 27, 2015,
for the applicability.
Airplane variable numbers WD011
through WD015 inclusive are included
in the effectivity of Boeing Special
Attention Service Bulletin 777–28–
0078, Revision 3, dated December 19,
2017; therefore, this AD provides a
modification of the water and fuel
scavenge systems in the fuel tanks,
electrical changes in the main
equipment center, and installation of
new ELMS2 software as an acceptable
alternative to the documents revision.
However, there is no approved service
information for airplane variable
numbers WD016 through WD018
inclusive for the modification of the
water and fuel scavenge systems in the
fuel tanks, electrical changes in the
main equipment center, and installation
of new ELMS2 software; therefore, there
is no alternative to the documents
revision specified in this AD for these
airplanes.
Related Service Information Under
1 CFR Part 51
We reviewed Boeing Special
Attention Service Bulletin 777–28–
0078, Revision 3, dated December 19,
2017. The service information describes
E:\FR\FM\12JYR1.SGM
12JYR1
]]>Agencies
[Federal Register Volume 83, Number 134 (Thursday, July 12, 2018)]
[Rules and Regulations]
[Pages 32193-32198]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-14939]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Part 929
[Doc. No. AMS-SC-17-0066; SC17-929-3 FR]
Cranberries Grown in States of Massachusetts, et al.;
Establishment of Handler Diversion and Reporting Requirements and New
Information Collection
AGENCY: Agricultural Marketing Service, USDA.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This rule implements a recommendation to establish handler
diversion and reporting requirements under the marketing order for
cranberries grown in the production area (Order). This action
establishes the procedures handlers use to divert fruit through
disposal or into noncompetitive outlets. The reporting requirements
support the diversion procedures by providing the necessary
documentation to help ensure compliance when a volume regulation is
established.
DATES: Effective August 13, 2018.
FOR FURTHER INFORMATION CONTACT: Doris Jamieson, Marketing Specialist,
or Christian D. Nissen, Regional Director, Southeast Marketing Field
Office, Marketing Order and Agreement Division, Specialty Crops
Program, AMS, USDA; Telephone: (863) 324-3375, Fax: (863) 291-8614, or
Email: [email protected] or [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 final rule, pursuant to 5 U.S.C. 553,
amends regulations used to carry out a marketing order as defined in 7
CFR 900.2(j). This final rule is issued under Marketing Agreement and
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 Committee locally
administers the Order and is comprised of growers of cranberries
operating within the production area, and a public member.
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 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' '' (February 2, 2017).
This rule has been reviewed under Executive Order 12988, Civil
Justice Reform. This final 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 establishes handler diversion and reporting
requirements under the Order. This rule establishes procedures handlers
use to divert fruit through disposal or into noncompetitive outlets.
The reporting requirements support the diversion procedures by
providing the necessary documentation to help ensure compliance when a
volume regulation is established. This action was recommended by the
Committee at its August 31, 2017, September 15, 2017, and October 13,
2017, meetings.
The Order provides for the use of volume regulation to stabilize
prices and improve grower returns during periods of oversupply. Section
929.51(a)(2) specifies that a handler withholding program must be
[[Page 32194]]
recommended by the Committee no later than August 31 and that such
recommendation shall include the free and restricted percentages for
the crop year. On August 31, 2017, the Committee met and recommended
free and restricted percentages of 85 percent free and 15 percent
restricted. Handler diversion is one method that handlers can utilize
to meet restricted percentage requirements.
Section 929.54 provides, in part, that whenever the Secretary of
Agriculture (Secretary) has fixed the free and restricted percentages
for any fiscal period, each handler shall withhold from handling a
portion of the cranberries acquired during such period. This section
also provides the authority for the Committee to establish, with the
approval of the Secretary, rules and regulations necessary to
administer this section. Section 929.56 provides special provisions
relating to withheld (restricted) cranberries, and Sec. 929.57
provides authority for the Committee to establish, with the approval of
the Secretary, outlets for withheld cranberries which are
noncompetitive with outlets for unrestricted (free percentage)
cranberries.
Section 929.62 provides, in part, authority to require handlers to
submit reports of cranberries acquired, held in inventory, quantity
handled, total cranberries withheld from handling, the portion of such
withheld cranberries on hand, and the quantity and manner of
disposition of any such withheld cranberries diverted. Section
929.62(f) further provides authority for the Committee, with the
approval of the Secretary, to collect other reports and information
from handlers needed to perform its duties.
This final rule uses these authorities to establish new Sec. Sec.
929.157 and 929.162. Section 929.157 establishes the procedures to be
used for handler diversion when free and restricted percentages are
instituted. Section 929.162 requires handlers of cranberries, during
years when free and restricted percentages are applied, to report to
the Committee diversion plans and year-end reports, information on
cranberries diverted and cranberries shipped to noncompetitive outlets,
and other information to verify compliance with the program, using six
specific Committee forms.
The Committee recommended establishing free and restricted
percentages under a handler withholding volume regulation for the 2017-
18 season in response to historically high inventory levels for
cranberries. As this is the first time the Committee has used this
volume regulation provision under the Order, it recognized the need to
establish procedures outlining the diversion requirements for
restricted fruit.
Free percentage cranberries can be used to supply any available
market, including juice, sweetened dried cranberries, sauce, and frozen
cranberries. Restricted percentage cranberries can be diverted through
disposal or utilized in markets that are noncompetitive with free
cranberries. Possible outlets for restricted cranberries include, in
part, for fresh export, except to Canada; charity; research and
development projects; and any nonhuman food use. Handlers also have the
option to divert processed products in lieu of fresh fruit to meet up
to 50 percent of their restricted obligation.
At the 2017 meetings in August, September, and October, the
Committee discussed the handler diversion procedures and the associated
reporting requirements necessary to help ensure compliance with a free
and restricted percentage volume regulation. As a result, the Committee
developed and approved six specific forms and related procedures to be
used during seasons when free and restricted percentages are
established for volume regulation.
Committee members discussed the need for Committee staff to know
how handlers plan to meet their restricted percentage obligation and
if, at the end of the season, they met their diversion requirement. As
a result, the Committee developed two specific forms to be added to the
reporting requirements under the Order.
With the first form, the Handler Withholding Report (CMC-JUN),
handlers provide information on how they plan to meet their restricted
percentage obligation. The form will be submitted to the Committee by
June 1 during years with established free and restricted percentages
and requires the following information: The name and address of the
handler, the amount of cranberries to be acquired, the amount of
cranberries to be diverted by disposal, the amount of cranberries to be
diverted to noncompetitive outlets, and the types of cranberry products
to be withheld. The Committee will use this information to estimate the
amount of fruit that will be taken off the market, the proposed
disposition of the fruit, and as a starting point for tracking handler
compliance.
The second form, the Final Handler Withholding Report (CMC-AUG),
will be submitted by the end of the crop year. The report requires the
same information as the Handler Withholding Report but provides the
Committee with the actual year-end seasonal totals. This form is due by
August 31. The final report will be used to verify that handlers met
their restricted percentage obligation.
Handlers have several diversion options available to meet their
restricted percentage obligation. One method of diversion available to
handlers is the disposal of fresh cranberries or cranberry products. In
its discussions, Committee members expressed concern regarding
verifying the accuracy of the amount of fruit or processed product
diverted using this method. The Committee recommended that all
disposals take place under the supervision of a non-industry-related
third party who will review the handler's disposal documentation,
witness the disposal whenever possible, and certify as to the
completion of the disposal process. The Committee initially agreed to
hire two inspectors to supervise and verify handler compliance.
However, due to the size of the production area, the Committee hired
four inspectors, one from each of the primary growing regions, who will
perform these tasks. The inspection and verification costs will be paid
by the handler.
To facilitate this process, the Committee recommended establishing
another form. This form, the Handler Disposal Certification (CMC-DISP),
will be the primary form used to initiate, track, and certify this
method of diversion during years in which a free and restricted
percentage volume regulation has been established. The form will be
used to notify the Committee of the handler's intent to dispose of
cranberries or cranberry products. Information required on the form
include the handler's name and address; the amount of fruit to be
diverted; the type of cranberry product to be diverted; the amount of
processed fruit diverted, if any; and the lot identification
information.
Upon receipt of the form, the Committee office will notify the
inspector in the handler's growing region. The inspector will contact
the handler to schedule a date for the disposal to take place, usually
within a week of receipt of the notification. The inspector will meet
with the handler on that date to verify the documentation provided and,
when possible, witness the disposal.
The Committee recognized that, due to scheduling conflicts, the
inspector may not be available to visually witness each disposal of
restricted cranberries. Therefore, the Committee agreed that, should
the inspector not be available to witness the diversion within seven
[[Page 32195]]
days, the handler may proceed with the disposal. The inspector will
then verify and complete the certification upon the inspector's next
visit to the handler's facility. If the cranberries or cranberry
product were disposed of at a landfill, through composting,
incineration, at a wastewater treatment facility, or any other site,
the inspector may request receipts, visual proof, or any other
additional information needed to support the disposal as reported on
the form. Once the verification process is completed, the inspector
will sign the certification section of the form, and return it to the
Committee.
Another method of diversion available is to divert cranberries or
cranberry products to noncompetitive outlets. Section 929.57 specifies
that cranberries withheld from handling may be disposed of only through
diversion to such outlets as the Committee, with the approval of the
Secretary, finds are noncompetitive to outlets for unrestricted (free
percentage) cranberries. The Committee discussed various outlets and
recommended the following: Foreign countries, except Canada; charitable
institutions; any nonhuman food use; and research and development
projects approved by the Committee dealing with the development of
foreign and domestic markets, including but not limited to dehydration,
radiation, freeze drying, or freezing of cranberries. The Committee
further recommended that cranberries may not be converted into canned,
frozen, or dehydrated cranberries or other cranberry products by any
commercial process when being diverted to foreign countries. The
specific outlets are being considered under a separate rulemaking
action.
The Agricultural Marketing Service (AMS) submitted and received
OMB's approval on the five initial forms. Handlers complete the forms
and submit them to the Committee for purposes of tracking compliance
with the handler withholding requirement. OMB approved the forms on
October 16, 2017, and assigned them OMB No. 0581-0304. Upon full
completion of the forms-approval process, AMS will seek to merge the
five forms into the OMB-approved 0581-0189 Fruit Crops containing other
forms related to the Federal marketing order for cranberries.
Two specific reporting requirements relating to the diversion of
fruit to noncompetitive outlets are added to part 929: A Handler
Application for Outlets for Withheld Fruit (CMC-OUT) and a Third-Party
Confirmation of Receipt of Withheld Fruit (CMC-CONF). Should a handler
elect to divert cranberries or cranberry products to noncompetitive
outlets, the handler must first request Committee approval of the
outlet or research project using the Handler Application for Outlets
for Withheld Fruit prior to each disposal activity of this type.
Information requested on the form includes, among other things, the
handler's name and address, information identifying the noncompetitive
outlet, the amount and type of cranberry products to be diverted, and
how the cranberries will be utilized. The Committee will review the
information and approve or disapprove the diversion request.
If the request is approved and the product is delivered, the
receiving outlet needs to acknowledge receipt of the product by
completing the Third-Party Confirmation of Receipt of Withheld Fruit
form, and the handler then returns the completed form to the Committee.
The two above-described reporting requirements help track the
disposition of withheld cranberries in noncompetitive outlets and
facilitates the compliance process under the recommended handler
withholding.
The last form approved by the Committee provides handlers a method
for appealing any decision made by the Committee relating to the
diversion process. Should a handler disagree with a Committee decision,
such as denying the request for approval of a noncompetitive outlet, or
a determination that diversion could not be verified, the handler can
appeal the decision by submitting a Handler Withholding Appeal form
(CMC-APPL). The handler making the appeal is required to submit the
form within 30 days of receiving the determination from the Committee.
This form includes information about why the handler is making the
appeal and provides additional information to support the appeal. The
appeal request is reviewed by an Appeals Subcommittee (Subcommittee)
for re-consideration. The Subcommittee consists of two independent
growers, two members from the major cooperative, and one public member.
The handler will be notified of the Subcommittee's determination within
30 days. If the appeal is denied by the Subcommittee, the handler has
the option of appealing the decision to the Secretary within 15 days
after the notification of the Subcommittee's findings.
In order to enable the Committee to inform the industry of the
information needed for handlers to manage their inventories in a way
that complies with the industry-supported handler withholding program,
the five initial forms were previously submitted to OMB for approval.
These five forms (CMC-JUN, CMC-DISP, CMC-OUT, CMC-CONF and CMC-APPL)
were approved by OMB on October 16, 2017, for use for a six-month
period, beginning the date of approval. This final rule is necessary
for the industry to use the forms beyond the six-month period.
Establishing these handler diversion and reporting requirements
facilitates the implementation of, and ensures compliance with, free
and restricted percentages when recommended by the Committee.
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 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 for 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
[[Page 32196]]
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.
This final rule establishes handler diversion and reporting
requirements under the Order. This final rule establishes procedures
handlers will use to divert fruit through disposal or into
noncompetitive outlets. The reporting requirements support the
diversion procedures by providing the necessary documentation to help
ensure compliance when a volume regulation is established. This rule
establishes new Sec. Sec. 929.157 and 929.162. The authority for this
action is provided in Sec. Sec. 929.54, 929.56, 929.57, and 929.62.
These actions could result in some additional costs to the
industry. Specifically, handlers could incur some additional costs as a
result of inspector verification and certification of the diversion
process. In addition, requiring reports of cranberries acquired,
handled, and withheld imposes an increase in the reporting burden on
all cranberry handlers. However, the benefits are expected to outweigh
the costs and increase in reporting burden. The provisions considered
in this action will help facilitate the implementation of any
recommended handler withholding volume regulation and help ensure
compliance with the recommended regulation. Consequently, these changes
will help provide important guidance during times when market
conditions support the need for establishing volume regulation.
The impact of this rule will be beneficial to growers and handlers.
Establishing diversion procedures benefits the entire industry by
ensuring handler diversion is conducted consistently and accurately by
all handlers, which also helps ensure compliance with the handler
withholding program. Authorizing various diversion outlets means
handlers are not required to divert cranberries only through
destruction. Instead, fruit can be utilized in noncompetitive outlets,
such as for charitable purposes. The benefits of this rule are expected
to be equally available to all cranberry growers and handlers,
regardless of their size, and are greater than any associated costs.
The Committee discussed other alternatives to this action,
including using different methods of ensuring accurate diversion of
restricted fruit. One method considered was allowing handlers to self-
report their diversion of restricted fruit without a formal
verification process. However, the Committee deemed this insufficient
verification to ensure compliance with the program. Members were
concerned that fruit could be re-routed to a different handling
facility for processing, and without established verification
procedures, the industry would not have confidence that restricted
fruit was being properly diverted. The Committee also considered the
value and importance of each of the forms and whether all were
required. However, the Committee agreed each of the recommended forms
provide important information for the industry and for administering
the Order. Therefore, these alternatives were rejected.
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C.
Chapter 35), this collection has been submitted to OMB for approval.
The five currently approved forms in 0581-0304 and one additional form
will be merged with forms currently approved under OMB No. 0581-0189,
Fruit Crops. This final rule establishes the use of six new reporting
requirements and six new Committee forms, which impose a total annual
burden increase of 38.4 hours. The forms, ``Handler Withholding
Report,'' ``Handler Disposal Certification,'' ``Handler Application for
Outlets for Withheld Fruit,'' ``Third-Party Confirmation of Receipt of
Withheld Fruit,'' ``Handler Withholding Appeal,'' and ``Final Handler
Withholding Report,'' require the minimum information necessary to
effectively carry out the requirements of the Order. The information
will enable the Committee to ensure compliance when a volume regulation
is established.
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 rule. Further, the public comment received
concerning the proposal did not address 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.
Further, the Committee's meetings were widely publicized throughout
the cranberry industry, and all interested persons were invited to
attend the meetings and participate in Committee deliberations on all
issues. Additionally, the Committee's meetings held August 31,
September 15, and October 13, 2017, were public meetings, 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 February 15, 2018 (83 FR 6800). Copies of the proposed rule
were sent via email to Committee members and cranberry handlers.
Finally, the proposed rule was made available through the internet by
USDA and the Office of the Federal Register. A 60-day comment period
ending April 16, 2018, was provided to allow interested persons to
respond to the proposal.
Two comments were received which did not address the merits of the
proposed rule. Accordingly, no changes will be made to the rule as
proposed based on the comments received.
The proposed rule contained administrative revisions to the Order's
subpart headings to bring the language into conformance with the Office
of Federal Register requirements. These revisions are not included in
this rule as they were included in a final rule published in the
Federal Register on April 4, 2018 (83 FR 14350).
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.
After consideration of all relevant matter presented, including the
information and recommendation of 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.
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 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 part 929 continues to read as follows:
[[Page 32197]]
Authority: 7 U.S.C. 601-674.
0
2. Add Sec. 929.157 to read as follows:
Sec. 929.157 Handler diversion.
(a) Methods of diversion. Handlers may divert cranberries by
disposing of cranberries or cranberry products. Diversion by disposal
may take place prior to placing the cranberries into the processing
line or after processing. Handlers may also divert cranberries or
cranberry products to approved, noncompetitive outlets for withheld
fruit. Whole berries or processed products diverted must come from the
current crop year. Any information collected of a confidential and/or
proprietary nature would be held in confidence pursuant to Sec.
929.65.
(1) Diversion through disposal. This type of diversion is to be
carried out under the supervision of the Committee, and the cost of
such supervision is to be paid by the handler. Handlers shall notify
the Committee of their intent to dispose of cranberries or cranberry
products using Form CMC-DISP as specified in Sec. 929.162(c).
Following notification, a Committee inspector will meet with the
handler to verify the documentation provided and, when possible,
witness the destruction. The Committee inspector may request receipts,
visual proof, or any other information needed to support the disposal
as reported. Once the verification process has been completed, the
Committee inspector will sign the certification section of Form CMC-
DISP and return it to the Committee.
(2) Diversion through noncompetitive outlets. To divert cranberries
or cranberry products to a noncompetitive outlet, handlers must apply
to the Committee using Form CMC-OUT as specified in Sec. 929.162(d)
prior to each disposal activity of this type. The Committee will review
the information and approve or disapprove the diversion request. Once
the cranberries or cranberry products are delivered to the approved
noncompetitive outlets, the Committee must receive satisfactory
documentation of the transaction using Form CMC-CONF as specified in
Sec. 929.162(e).
(b) Committee notification and handler plan. Any handler intending
to divert cranberries or cranberry products pursuant to Sec. 929.54
must notify the Committee of such intent and provide a plan by June 1
that shows how the handler intends to meet the restricted percentage
obligation. The handler shall submit this plan using Form CMC-JUNE as
specified in the reporting requirements under Sec. 929.162(a). The
handler will have until August 31 to fulfill the plan, by which time
the handler shall submit a final report detailing how the restricted
percentage obligation was met using Form CMC-AUG as specified in Sec.
929.162(b).
(c) Request for review. (1) If a handler is dissatisfied with a
determination made by the Committee which affects such handler, the
handler may submit to the Committee within 30 days after receipt of the
Committee's determination, a request for a review by an appeals
subcommittee composed of two independent growers and two cooperative
representatives, as well as a public member. The appeals subcommittee
shall be appointed by the Committee chairperson. The handler may
forward with the request any pertinent materials for consideration of
the appeal.
(2) The subcommittee shall review the information submitted by the
handler and render a decision within 30 days of receipt of such appeal.
The subcommittee shall notify the handler of its decision, accompanied
by the reasons for its conclusions and findings.
(3) The handler may further appeal to the Secretary, within 15 days
after notification of the subcommittee's findings, if such handler is
not satisfied with the appeals subcommittee's decision. The Committee
shall forward a file to the Secretary with all pertinent information
related to the handler's appeal. The Secretary shall inform the handler
and all interested parties of the Secretary's decision. All decisions
by the Secretary are final.
0
3. Add Sec. 929.162 to read as follows:
Sec. 929.162 Handler diversion reports.
(a) Handler withholding report. Handlers shall submit to the
Committee, by June 1, a handler withholding report. The report shall be
submitted using Form CMC-JUN and contain the following information:
(1) The name and address of the handler;
(2) The amount of cranberries acquired;
(3) The amount of cranberries withheld by disposal;
(4) The amount of cranberries diverted to noncompetitive outlets;
(5) The form of cranberry products withheld; and
(6) The total withholding obligation.
(b) Handler Withholding Final Report. Handlers shall submit to the
Committee, by August 31, a final handler withholding report. The final
report shall be submitted using Form CMC-AUG and contain the following
information:
(1) The name and address of the handler;
(2) The seasonal total of cranberries acquired;
(3) The seasonal total of cranberries withheld by disposal;
(4) The seasonal total of cranberries diverted to noncompetitive
outlets;
(5) The form of cranberry products withheld during the season; and
(6) The total withholding obligation.
(c) Handler disposal certification. Handlers shall submit to the
Committee Form CMC-DISP for each lot of cranberries or cranberry
products to be diverted through disposal. The form shall contain the
following information:
(1) Name and address of the handler;
(2) Marketable cranberries in whole fruit or processed cranberries
converted to whole fruit equivalent disposed of in this lot;
(3) Form of cranberries;
(4) Volume if in processed form;
(5) Lot details;
(6) Disposal site and method; and
(7) Inspector certification of the completion of the disposal.
(d) Handler application for outlets for withheld fruit. Handlers
shall submit to the Committee Form CMC-OUT for approval for each lot of
cranberries or cranberry products to be diverted to noncompetitive
outlets in accordance with Sec. 929.57. The form shall contain the
following information:
(1) Name and address of the handler;
(2) Project type;
(3) Product form;
(4) Quantity of cranberries in whole fruit or processed cranberries
converted to whole fruit equivalent diverted;
(5) A description of the project and how the cranberries will be
used.
(e) Third-party confirmation of receipt of withheld fruit. Handlers
shall submit to the Committee Form CMC-CONF for each diversion to a
noncompetitive outlet to verify the receipt of the cranberries or
cranberry product by the approved outlet. The form shall contain the
following information:
(1) Name and address of the handler;
(2) Project type;
(3) Product form;
(4) Quantity of cranberries in whole fruit or processed cranberries
converted to whole fruit equivalent utilized; and
(5) Confirmation or documentation of receipt from the receiving
outlet.
(f) Handler withholding appeal. Handlers may appeal a determination
made by the Committee relating to a handler withholding regulation
using the appeals process outlined in Sec. 929.157(c) and Form CMC-
APPL, which shall contain the following information:
(1) Name and address of the handler;
(2) Reason for appeal; and
(3) Information in support of appeal.
[[Page 32198]]
Dated: July 9, 2018.
Bruce Summers,
Administrator, Agricultural Marketing Service.
[FR Doc. 2018-14939 Filed 7-11-18; 8:45 am]
BILLING CODE 3410-02-P
