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; Amendment to Marketing Order 929 and Referendum Order, 9937-9940 [2019-05079]

Agencies

• Agricultural Marketing Service
• DEPARTMENT OF AGRICULTURE

[Federal Register Volume 84, Number 53 (Tuesday, March 19, 2019)]
[Rules and Regulations]
[Pages 9937-9940]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-05079]



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Rules and Regulations
                                                Federal Register
________________________________________________________________________

This section of the FEDERAL REGISTER contains regulatory documents 
having general applicability and legal effect, most of which are keyed 
to and codified in the Code of Federal Regulations, which is published 
under 50 titles pursuant to 44 U.S.C. 1510.

The Code of Federal Regulations is sold by the Superintendent of Documents. 

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Federal Register / Vol. 84, No. 53 / Tuesday, March 19, 2019 / Rules 
and Regulations

[[Page 9937]]



DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 929

[Doc. No. AMS-SC-18-0017; SC18-929-3 FR]


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; Amendment to 
Marketing Order 929 and Referendum Order

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Final rule.

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SUMMARY: This final rule amends Marketing Order No. 929, which 
regulates the handling of cranberries grown in the states of 
Massachusetts, Rhode Island, Connecticut, New Jersey, Wisconsin, 
Michigan, Minnesota, Oregon, Washington, and Long Island in the State 
of New York. The amendment, which was proposed by the Cranberry 
Marketing Committee (Committee), was approved by growers and processors 
in the referendum. This action authorizes the Committee to accept 
contributions from domestic sources for research and development 
activities authorized under the marketing order that would be free from 
any encumbrances as to their use by the donor.

DATES: This rule is effective March 20, 2019.

FOR FURTHER INFORMATION CONTACT: Geronimo Quinones, Marketing 
Specialist, Marketing Order and Agreement Division, Specialty Crops 
Program, AMS, USDA, 1400 Independence Avenue SW, Stop 0237, Washington, 
DC 20250-0237; Telephone: (202) 720-2491, Fax: (202) 720-8938, or 
Email: Geronimo.Quinones@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@usda.gov.

SUPPLEMENTARY INFORMATION: This action, pursuant to 5 U.S.C. 553, 
amends regulations issued to carry out a marketing order as defined in 
7 CFR 900.2(j). This rule is issued under Marketing Order No. 929, as 
amended (7 CFR part 929), regulating the handling of cranberries grown 
in the States of Massachusetts, Rhode Island, Connecticut, New Jersey, 
Wisconsin, Michigan, Minnesota, Oregon, Washington, and Long Island in 
the State of New York. Part 929 (referred to as the ``Order'') is 
effective under the Agricultural Marketing Agreement Act of 1937, as 
amended (7 U.S.C. 601-674), hereinafter referred to as the ``Act.'' The 
Committee, which is responsible for the local administration of the 
Order, is comprised of cranberry growers operating within the 
production area and a public member. Section 608c(17) of the Act and 
the applicable rules of practice and procedure governing the 
formulation of marketing agreements and orders (7 CFR part 900) 
authorize amendment of the Order through this informal rulemaking 
action.
    The Department of Agriculture (USDA) is issuing this rule in 
conformance with Executive Orders 13563 and 13175. This action falls 
within a category of regulatory actions that the Office of Management 
and Budget (OMB) exempted from Executive Order 12866 review. 
Additionally, because this proposed rule does not meet the definition 
of a significant regulatory action, it does not trigger the 
requirements contained in Executive Order 13771. See OMB's Memorandum 
titled ``Interim Guidance Implementing Section 2 of the Executive Order 
of January 30, 2017, titled `Reducing Regulation and Controlling 
Regulatory Costs'[thinsp]'' (February 2, 2017).
    This 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 no later than 20 days after the date of 
entry of the ruling.
    Section 1504 of the Food, Conservation, and Energy Act of 2008 
(2008 Farm Bill) (Pub. L. 110-246) amended section 608c(17) of the Act, 
which in turn required the addition of supplemental rules of practice 
to 7 CFR part 900 (73 FR 49307; August 21, 2008). The amendment of 
section 8c(17) of the Act and additional supplemental rules of practice 
authorize the use of informal rulemaking (5 U.S.C. 553) to amend 
Federal fruit, vegetable, and nut marketing agreements and orders. USDA 
may use informal rulemaking to amend marketing orders based on the 
nature and complexity of the proposed amendments, the potential 
regulatory and economic impacts on affected entities, and any other 
relevant matters.
    The Agricultural Marketing Service (AMS) considered these factors 
and has determined that amending the Order as proposed could 
appropriately be accomplished through informal rulemaking.
    The proposed amendment was unanimously recommended by the Committee 
following deliberations at a public meeting held in August 2017. A 
proposed rule soliciting comments on the amendment was issued on April 
19, 2018, and published in the Federal Register on April 27, 2018 (83 
FR 18460). One comment was received. No changes to the proposed rule 
were made. A proposed rule and referendum order was then issued on 
September 7, 2018, and published in the Federal Register on September 
14, 2018 (83 FR 46661). This document directed that a referendum among 
cranberry producers and processors be conducted October 29, 2018, 
through November 19, 2018, to determine whether they favored the

[[Page 9938]]

proposal. To become effective, the amendment had to be approved by two-
thirds of producers voting or by those producers voting in the 
referendum who represented at least two-thirds of the volume of 
cranberries. In addition, the proposed amendment had to be approved by 
processors who had frozen or canned more than 50 percent of the volume 
of cranberries within the production area.
    The amendment was favored by 88 percent of the growers voting and 
by 96 percent of the volume represented, the second of which exceeds 
the two-thirds volume requirement. In addition, the amendment was 
favored by the cranberry processors voting in the referendum. The 
processor vote met the requirement of being favored by processors of 
cranberries that processed more than 50 percent of the total volume of 
cranberries.
    The amendment in this final rule authorizes the Committee to 
receive and expend voluntary contributions from domestic sources for 
research and development activities.

Final Regulatory Flexibility Analysis

    Pursuant to the requirements set forth in the Regulatory 
Flexibility Act (RFA) (5 U.S.C. 601-612), the Agricultural Marketing 
Service (AMS) has considered the economic impact of this action on 
small entities. Accordingly, AMS has prepared this final regulatory 
flexibility analysis.
    The purpose of the RFA is to fit regulatory actions to the scale of 
businesses subject to such actions in order that small businesses will 
not be unduly or disproportionately burdened. Marketing orders issued 
pursuant to the Act, and rules issued thereunder, are unique in that 
they are brought about through group action of essentially small 
entities acting on their own behalf.
    There are approximately 1,100 cranberry growers in the regulated 
area and approximately 65 cranberry handlers subject to regulation 
under the Order. Small agricultural producers are defined by the Small 
Business Administration (SBA) as those having annual receipts of less 
than $750,000, and small agricultural service firms are defined as 
those whose annual receipts are less than $7,500,000 (13 CFR 121.201).
    According to industry and Committee data, the average grower price 
for cranberries during the 2016-17 crop year was $23.50 per barrel, and 
total sales were around 9.5 million barrels. The value of cranberries 
that crop year totaled $223,250,000 ($23.50 per barrel multiplied by 
9.5 million barrels). Taking the total value of production for 
cranberries and dividing it by the total number of cranberry growers 
(1,100) provides an average return per grower of $202,955. Based on 
USDA's Market News reports, the average free on board (f.o.b.) price 
for cranberries was around $30.00 per barrel. Multiplying the f.o.b. 
price by total utilization of 9.5 million barrels results in an 
estimated handler-level cranberry value of $285 million. Dividing this 
figure by the number of handlers (65) yields an estimated average 
annual handler receipt of $4.3 million, which is below the SBA 
threshold for small agricultural service firms. Therefore, the majority 
of growers and handlers of cranberries may be classified as small 
entities.
    The amendment, which was unanimously recommended by the Committee 
at a public meeting in August 2017, will add a new section, Sec.  
929.43, Contributions, to the Order. This section will authorize the 
Committee to accept voluntary financial contributions. Such 
contributions may only be accepted from domestic sources and must be 
free from any encumbrances or restrictions on their use by the donor. 
When received, the Committee will retain complete control of their use. 
The use of contributed funds will be limited to funding program 
activities authorized under Sec.  929.45, Research and development.
    This amendment will have no direct economic effect on growers or 
handlers. This amendment authorizes the Committee to accept financial 
contributions. With the potential for additional funding, more research 
and promotional projects can be undertaken.
    Therefore, it is anticipated that both small and large producer and 
handler businesses will benefit from this amendment.
    Alternatives to this proposal, including making no changes at this 
time, were considered. However, the Committee believes it will be 
beneficial to authorize the acceptance of financial contributions from 
domestic sources, which will help support research and promotional 
activities.

Paperwork Reduction Act

    In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 
Chapter 35), the Order's information collection requirements have been 
previously approved by OMB and assigned OMB No. 0581-0189, ``Fruit 
Crops.'' No changes in those requirements are necessary as a result of 
this action. Should any changes become necessary, they would be 
submitted to OMB for approval.
    As with all Federal marketing order programs, reports and forms are 
periodically reviewed to reduce information requirements and 
duplication by industry and public sector agencies. In addition, USDA 
has not identified any relevant Federal rules that duplicate, overlap, 
or conflict with this rule.
    AMS is committed to complying with the E-Government Act, to promote 
the use of the internet and other information technologies to provide 
increased opportunities for citizens to access Government information 
and services, and for other purposes.
    The Committee's meeting was widely publicized throughout the 
cranberry production area. All interested persons were invited to 
attend the meeting and encouraged to participate in Committee 
deliberations on all issues. The Committee meeting was public, and all 
entities, both large and small, were encouraged to express their views 
on this proposal.
    A proposed rule concerning this action was published in the Federal 
Register on April 27, 2018 (83 FR 18460). Copies of the proposed rule 
were mailed or sent via facsimile to all Committee members and 
cranberry handlers. The rule was made available through the internet by 
USDA and the Office of the Federal Register. A 60-day comment period 
ending June 26, 2018, was provided to allow interested persons to 
respond to the proposal. One comment was received. The comment 
submitted was not related to this proposal; therefore, no changes were 
made to the proposed amendment.
    A proposed rule and referendum order was then issued on September 
7, 2018, and published in the Federal Register on September 14, 2018 
(83 FR 46661). This document directed that a referendum among cranberry 
producers and processors be conducted October 29, 2018, through 
November 19, 2018, to determine whether they favored the proposal. To 
become effective, the amendment had to be approved by two-thirds of 
producers voting or by those producers voting in the referendum who 
represented at least two-thirds of the volume of cranberries. In 
addition, the proposed amendment had to be approved by processors who 
had frozen or canned more than 50 percent of the volume of cranberries 
within the production area.
    The amendment was favored by 88 percent of the growers voting and 
by 96 percent of the volume represented, the second of which exceeds 
the two-thirds volume requirement. In addition, the amendment was 
favored by the cranberry processors voting in the

[[Page 9939]]

referendum. The processor vote met the requirement of being favored by 
processors of cranberries that processed more than 50 percent of the 
total volume of cranberries.
    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/MarketingOrdersSmallBusinessGuide. Any questions 
about the compliance guide should be sent to Richard Lower at his 
previously mentioned address in the FOR FURTHER INFORMATION CONTACT 
section.

Order Amending the Order Regulating the Handling of Cranberries Grown 
in the States of Massachusetts, Rhode Island, Connecticut, New Jersey, 
Wisconsin, Michigan, Minnesota, Oregon, Washington, and Long Island in 
the State of New York 1
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    \1\ This order shall not become effective unless and until the 
requirements of Sec.  900.14 of the rules of practice and procedure 
governing proceedings to formulate marketing agreements and 
marketing orders have been met.
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Findings and Determinations

    (a) Findings and Determinations Upon the Basis of the Rulemaking 
Record.
    The findings hereinafter set forth are supplementary to the 
findings and determinations which were previously made in connection 
with the issuance of the Order; and all said previous findings and 
determinations are hereby ratified and affirmed, except insofar as such 
findings and determinations may be in conflict with the findings and 
determinations set forth herein.
    1. The Order, as amended, and as hereby proposed to be further 
amended, and all of the terms and conditions thereof, would tend to 
effectuate the declared policy of the Act;
    2. The Order, as amended, and as hereby proposed to be further 
amended, regulates the handling of cranberries grown in the States of 
Massachusetts, Rhode Island, Connecticut, New Jersey, Wisconsin, 
Michigan, Minnesota, Oregon, Washington, and Long Island in the State 
of New York in the same manner as, and are applicable only to, persons 
in the respective classes of commercial and industrial activity 
specified in the Order;
    3. The Order, as amended, and as hereby proposed to be further 
amended, is limited in application to the smallest regional production 
area which is practicable, consistent with carrying out the declared 
policy of the Act, and the issuance of several orders applicable to 
subdivisions of the production area would not effectively carry out the 
declared policy of the Act;
    4. The Order, as amended, and as hereby proposed to be further 
amended, prescribes, insofar as practicable, such different terms 
applicable to different parts of the production area as are necessary 
to give due recognition to the differences in the production and 
marketing of cranberries produced in the production area; and
    5. All handling of cranberries produced in the production area as 
defined in the Order is in the current of interstate or foreign 
commerce or directly burdens, obstructs, or affects such commerce.
    (b) Additional Findings.
    It is necessary and in the public interest to make this amendment 
effective not later than one day after publication in the Federal 
Register. A later effective date would unnecessarily delay 
implementation of the amendment. This amendment should be in place as 
soon as possible so that the Committee may accept financial 
contributions from sources not subject to the Order who have previously 
expressed interest in supporting research and development projects 
currently funded by the Order. Prior to this amendment, the Committee 
could only fund program operations, including research and development 
projects, from assessments. This amendment will now allow the Committee 
to accept financial contributions and potentially undertake more 
research and development projects. In view of the foregoing, it is 
hereby found and determined that good cause exists for making this 
amendment effective one day after publication in the Federal Register 
and that it would be contrary to the public interest to delay the 
effective date for 30 days after publication in the Federal Register. 
(Sec. 553(d), Administrative Procedure Act; 5 U.S.C. 551-559.)
    (c) Determinations.
    It is hereby determined that:
    1. Handlers (excluding cooperative associations of producers who 
are not engaged in processing, distributing, or shipping of cranberries 
covered under the Order) who during the period September 1, 2016, 
through August 31, 2017, handled not less than 50 percent of the volume 
of such cranberries covered by said Order, as hereby amended, have 
signed an amended marketing agreement; and
    2. The issuance of this amendatory order, amending the aforesaid 
Order, is favored or approved by at least two-thirds of the producers 
who participated in a referendum on the question of approval and who, 
during the period of September 1, 2016, through August 31, 2017, have 
been engaged within the production area in the production of such 
cranberries, such producers having also produced for market at least 
two-thirds of the volume of such commodity represented in the 
referendum; and is favored or approved by processors who had frozen or 
canned more than 50 percent of the volume of cranberries within the 
production area during the period September 1, 2016, through August 31, 
2017.
    3. The issuance of this amendatory order together with a signed 
marketing agreement advances the interests of growers of cranberries in 
the production area pursuant to the declared policy of the Act.

Order Relative to Handling

    It is therefore ordered, that on and after the effective date 
hereof, all handling of cranberries grown in the States of 
Massachusetts, Rhode Island, Connecticut, New Jersey, Wisconsin, 
Michigan, Minnesota, Oregon, Washington, and Long Island in the State 
of New York shall be in conformity to, and in compliance with, the 
terms and conditions of the said Order as hereby proposed to be amended 
as follows:
    The provisions of the proposed marketing order amending the Order 
contained in the proposed rule issued by the Administrator on April 19, 
2018, and published in the Federal Register on April 27, 2018, (83 FR 
18460) will be and are the terms and provisions of this order amending 
the Order and are set forth in full herein.

List of Subjects in 7 CFR Part 929

    Cranberries, Marketing agreements, Reporting and recordkeeping 
requirements.

    Dated: March 13, 2019.
Bruce Summers,
Administrator, Agricultural Marketing Service.

    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. Add Sec.  929.43 to read as follows:

[[Page 9940]]

Sec.  929.43  Contributions.

    The Committee may accept voluntary contributions to pay expenses 
incurred pursuant to Sec.  929.45, Research and development. Such 
contributions may only be accepted if they are sourced from domestic 
contributors and are free from any encumbrances or restrictions on 
their use by the donor. The Cranberry Marketing Committee shall retain 
complete control of their use.

[FR Doc. 2019-05079 Filed 3-18-19; 8:45 am]
 BILLING CODE 3410-02-P