Cranberries Grown in Massachusetts, et al.; Termination of Marketing Order and Data Collection Requirements for Cranberries Not Subject to the Marketing Order, 85130-85133 [2023-26887]

Agencies

• Agricultural Marketing Service
• DEPARTMENT OF AGRICULTURE

[Federal Register Volume 88, Number 234 (Thursday, December 7, 2023)]
[Proposed Rules]
[Pages 85130-85133]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-26887]


========================================================================
Proposed Rules
                                                Federal Register
________________________________________________________________________

This section of the FEDERAL REGISTER contains notices to the public of 
the proposed issuance of rules and regulations. The purpose of these 
notices is to give interested persons an opportunity to participate in 
the rule making prior to the adoption of the final rules.

========================================================================


Federal Register / Vol. 88 , No. 234 / Thursday, December 7, 2023 / 
Proposed Rules

[[Page 85130]]



DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Parts 929 and 926

[Doc. No. AMS-SC-23-0047]


Cranberries Grown in Massachusetts, et al.; Termination of 
Marketing Order and Data Collection Requirements for Cranberries Not 
Subject to the Marketing Order

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Proposed rule.

-----------------------------------------------------------------------

SUMMARY: This proposed action invites comments on the proposed 
termination of the Federal marketing order regulating the handling of 
cranberries grown in the States of Massachusetts, Rhode Island, 
Connecticut, New Jersey, Wisconsin, Michigan, Minnesota, Oregon, 
Washington, and Long Island in the State of New York and the rules and 
regulations issued thereunder (Marketing Order No. 929). The data 
collection, reporting and recordkeeping requirements applicable to 
cranberries not subject to the cranberry marketing order would also be 
terminated.

DATES: Comments must be received by February 5, 2024.

ADDRESSES: Interested persons are invited to submit written comments 
concerning this proposed rule. Comments can be sent to the Docket 
Clerk, Market Development Division, Specialty Crops Program, AMS, USDA, 
1400 Independence Avenue SW, STOP 0237, Washington, DC 20250-0237; Fax: 
(202) 720-8938; or internet: https://www.regulations.gov. Comments 
should reference the document number and the date and page number of 
this issue of the Federal Register and can be viewed at: https://www.regulations.gov. All comments submitted in response to this 
proposal will be included in the record and will be made available to 
the public. Please be advised that the identity of the individuals or 
entities submitting the comments will be made public on the internet at 
the address provided above.

FOR FURTHER INFORMATION CONTACT: Jennie M. Varela, Marketing 
Specialist, or Christian D. Nissen, Chief, Southeast Region Branch, 
Market Development Division, Specialty Crops Program, AMS, USDA; 
Telephone: (863) 324-3375 or Email: [email protected] or 
[email protected].
    Small businesses may request information on complying with this 
regulation by contacting Richard Lower, Market Development Division, 
Specialty Crops Program, AMS, USDA, 1400 Independence Avenue SW, STOP 
0237, Washington, DC 20250-0237; Telephone: (202) 720-8085 or Email: 
[email protected].

SUPPLEMENTARY INFORMATION: This action, pursuant to 5 U.S.C. 553, 
proposes the termination of regulations issued to carry out a marketing 
order as defined in 7 CFR 900.2(j). This proposed rule is issued under 
Marketing Order No. 929, as amended (7 CFR part 929), regulating the 
handling of cranberries grown in the States of Massachusetts, Rhode 
Island, Connecticut, New Jersey, Wisconsin, Michigan, Minnesota, 
Oregon, Washington, and Long Island in the State of New York. Part 929 
referred to as the ``Order'' is effective under the Agricultural 
Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), 
hereinafter referred to as the ``Act.'' The Cranberry Marketing 
Committee (Committee) locally administers the Order and is comprised of 
producers operating within the production area and a public member.
    This proposed rule is also issued under section 8d of the Act (7 
U.S.C. 608d(3)), which authorizes the collection of cranberry and 
cranberry product information from producer-handlers, second handlers, 
processors, brokers, and importers including those not subject to 
regulation under the Order.
    The United States Department of Agriculture (USDA) is issuing this 
proposed rule in conformance with Executive Orders 12866, 13563, and 
14094. Executive Orders 12866, and 13563 direct agencies to assess all 
costs and benefits of available regulatory alternatives and, if 
regulation is necessary, to select regulatory approaches that maximize 
net benefits (including potential economic, environmental, public 
health and safety effects, distributive impacts, and equity). Executive 
Order 13563 emphasizes the importance of quantifying both costs and 
benefits, reducing costs, harmonizing rules, and promoting flexibility. 
Executive Order 14094 reaffirms, supplements, and updates Executive 
Order 12866 and further directs agencies to solicit and consider input 
from a wide range of affected and interested parties through a variety 
of means. This action falls within a category of regulatory actions 
that the Office of Management and Budget (OMB) exempted from Executive 
Order 12866 review.
    In addition, this proposed rule has been reviewed under Executive 
Order 13175--Consultation and Coordination with Indian Tribal 
governments, which requires agencies to consider whether their 
rulemaking actions would have Tribal implications. Agricultural 
Marketing Service (AMS) has determined this proposed rule is unlikely 
to have substantial direct effects on one or more Indian Tribes, on the 
relationship between the Federal Government and Indian Tribes, or on 
the distribution of power and responsibilities between the Federal 
Government and Indian Tribes.
    This proposed rule has been reviewed under Executive Order 12988, 
Civil Justice Reform. This proposed rule is not intended to have 
retroactive effect.
    The Act provides that administrative proceedings must be exhausted 
before parties may file suit in court. Under section 608c(15)(A) of the 
Act, any handler subject to a marketing order may file with the USDA a 
petition stating that the marketing order, any provision of the 
marketing order, or any obligation imposed in connection with the 
marketing order is not in accordance with law and request a 
modification of the marketing order or to be exempted therefrom. A 
handler is afforded the opportunity for a hearing on the petition. 
After the hearing, USDA would rule on the petition. The Act provides 
that the district court of the United States in any district in which 
the handler is an inhabitant, or has his or her principal place of 
business, has jurisdiction to review USDA's ruling on the petition, 
provided an action is filed not later than 20 days after the date of 
the entry of the ruling.
    The Order has been in effect since 1962 and regulates the handling 
of

[[Page 85131]]

cranberries grown in the States of Massachusetts, Rhode Island, 
Connecticut, New Jersey, Wisconsin, Michigan, Minnesota, Oregon, 
Washington, and Long Island in the State of New York. The Order 
provides the cranberry industry with authority for production research, 
marketing promotion and development, to include paid advertising, as 
well as authority for volume regulation through producer allotments or 
handler withholding. The Order also authorizes reporting and 
recordkeeping functions required for operation of the program. The 
Committee, which locally administers the Order, is funded by 
assessments imposed on handlers.
    This rule proposes termination of the Order and the rules and 
regulations thereunder. This action is based on the results of a 
continuance referendum in which producers failed to support 
continuation of the Order. USDA believes termination of this program 
would be appropriate as the Order is no longer favored by industry 
producers.
    Section 929.69 of the Order states USDA shall conduct a referendum 
during the month of May 1975 and every fourth year thereafter to 
ascertain whether continuance is favored by producers. Under this 
section, USDA shall terminate the Order if termination is favored by a 
majority of the growers, and that this majority has, during the current 
fiscal year, produced more than 50 percent of the cranberries produced 
in the production area. As required by the Order, USDA held a 
continuance referendum among cranberry producers from June 9 through 
June 30, 2023, to determine if they favored continuation of the 
program.
    USDA mailed ballots to 944 producers in the production area. Those 
producers cast 366 valid ballots. The results indicate 73.5 percent of 
cranberry growers, who produced 79.9 percent of the production volume, 
voted in the referendum and favored termination of the program. 
Consequently, the vote met the Order's criteria for termination, 
demonstrating a lack of the producer support needed to carry out the 
objectives of the Act.
    Section 608c(16)(A) of the Act provides that USDA shall terminate 
or suspend the operation of any order whenever the order or any 
provision thereof obstructs or does not tend to effectuate the declared 
policy of the Act. Based on the foregoing, and pursuant to section 
608c(16)(A) of the Act and Sec.  929.69 of the Order, USDA is 
considering termination of the Order. If USDA decides to terminate the 
Order, trustees would be appointed to conclude and liquidate the 
affairs of the Committee and would continue in that capacity until 
discharged by USDA. In addition, USDA would notify Congress of USDA's 
intent to terminate the Order not later than 60 days before the Order 
is terminated pursuant to section 608c(16)(A) of the Act.
    A notice announcing the results of the referendum was issued on 
August 16, 2023. On October 25, 2023, USDA suspended collection of 
assessments and all reporting requirements under the Order while the 
proposed termination of the program is being processed. All other 
provisions, including promotion and research, would remain in effect 
until the Order is terminated.
    Section 608d(3) of the Act authorizes the collection of cranberry 
and cranberry product information from producer-handlers, second 
handlers, processors, brokers, and importers. This data collection is 
codified in 7 CFR part 926, Data Collection, Reporting and 
Recordkeeping Requirements Applicable to Cranberries Not Subject to the 
Cranberry Marketing Order, establishing reporting requirements for 
cranberry and cranberry products not subject to the Order and how they 
were to be reported to the Committee. Section 926.21 states this part 
shall be suspended or terminated whenever there is no longer a Federal 
cranberry marketing order in effect. This proposal would also terminate 
part 926 which has been suspended since December 28, 2006.

Initial Regulatory Flexibility Analysis

    Pursuant to requirements set forth in the Regulatory Flexibility 
Act (RFA) (5 U.S.C. 601-612), USDA has considered the economic impact 
of this proposed rule on small entities. Accordingly, USDA has prepared 
this initial regulatory flexibility analysis.
    The purpose of the RFA is to fit regulatory actions to the scale of 
businesses subject to such actions so that small businesses will not be 
unduly or disproportionately burdened. Marketing orders issued pursuant 
to the Act are unique in that they are brought about through group 
action of essentially small entities acting on their own behalf.
    There are approximately 950 cranberry growers in the regulated area 
and approximately 45 cranberry handlers subject to regulation under the 
Order. Small agricultural producers are defined by the Small Business 
Administration (SBA) as those having annual receipts of less than 
$3,750,000, (North American Industry Classification System (NAICS) code 
111334) and small agricultural service firms are defined as those whose 
annual receipts are less than $34,000,000 (NAICS code 115114) (13 CFR 
121.201).
    According to the National Agricultural Statistics Service (NASS), 
the average grower price for U.S. cranberries during the 2022-23 season 
was $36.60 per barrel and utilized production was 8,010,070 barrels. 
The value for cranberries that year totaled $293,168,562, ($36.60 per 
barrel multiplied by 8,010,070 barrels). Taking the total value of 
production for cranberries and dividing it by the total number of 
cranberry growers provides an average return per grower of $308,598. 
Using the average price and utilization information, and assuming a 
normal distribution, the majority of cranberry growers receive less 
than $3,750,000 annually.
    According to USDA's Market News retail averages report, the price 
per pound of fresh cranberries on average was $1.64 in December of 
2022. On average, NASS reports that grower prices for fresh cranberries 
are almost double (199 percent) grower prices for processed 
cranberries. Dividing the average fresh retail price as reported by 
Market News ($1.64) by 1.99 calculates to an estimated average retail 
processed price of $0.82 per pound. There are 100 pounds of cranberries 
per barrel so the average retail price for a barrel of cranberries 
would be $82. Multiplying the average retail price by total utilization 
of 8 million barrels results in an estimated cranberry retail value of 
$656 million. Dividing this figure by the number of handlers (45) 
yields an estimated average annual handler receipts of $14.6 million, 
which is below the SBA threshold for small agricultural service firms. 
Therefore, the majority of producers and handlers of cranberries may be 
classified as small entities.
    This rule proposes to terminate the Order, and the rules and 
regulations issued thereunder. Termination would remove the Order from 
the Code of Federal Regulations. Section 929.69 of the Order provides 
that USDA shall conduct a referendum during the month of May 1975 and 
every fourth year thereafter to ascertain whether continuance is 
favored by producers. The section states USDA shall terminate the Order 
if termination is favored by a majority of the growers, and if that 
majority has, during the current fiscal year, produced more than 50 
percent of the cranberries produced in the production area. The results 
of a continuance referendum held from June 9 through June 30, 2023, 
indicate 73.5 percent of cranberry growers, who produced 79.9 percent 
of the production

[[Page 85132]]

volume, voted in the referendum and favored termination of the program. 
Consequently, the vote met the Order's criteria for termination, 
indicating continuance of the program is no longer favored by industry 
producers. Consequently, USDA is considering termination of the Order. 
This proposed rule would also terminate part 926, the suspended data 
collection requirements for cranberries not covered under the Order.
    Marketing orders provide industries with tools to assist producers 
and handlers in addressing challenges facing the industry. These tools 
include establishing minimum grade, size, quality, and maturity 
requirements, setting size, capacity, weight, dimensions or pack of the 
containers, collecting and publishing market information useful to 
producers and handlers, conducting research and promotions, and 
establishing volume control requirements. Each marketing order is 
different, with the industries deciding the authorities needed and the 
scope of their marketing order. Marketing orders are approved by 
producers through referenda and regulate handlers to ensure compliance 
with all requirements. The authority of a marketing order allows each 
industry to create a local administrative committee that is made up of 
growers and/or handlers that work collectively to solve industry 
problems.
    The Order has been in effect since 1962 and provides the cranberry 
industry with authority for production research, marketing promotion 
and development, to include paid advertising, as well as authority for 
volume regulation through producer allotments or handler withholding. 
The Order also authorizes reporting and recordkeeping functions 
required for operation of the program. The Committee, which locally 
administers the Order, is funded by assessments imposed on handlers. As 
this change would terminate the Order and all the rules and regulations 
issued thereunder, the perceived benefits correlated with the Order 
would be lost. However, there would also be savings by eliminating 
costs associated with the Order, which include the payment of 
assessments and costs related to reporting and occasional volume 
regulation.
    A review of the referendum results shows that producers failed to 
reach the necessary threshold for the vote to pass by either vote or by 
volume as specified in the Order, indicating that voting producers 
believe the benefits of the program no longer outweigh the costs to 
handlers and producers. Although marketing order requirements are 
applied to handlers, the costs of such requirements are often passed on 
to producers. Termination of the Order, and the resulting regulatory 
relaxation, could therefore be expected to reduce costs for both 
producers and handlers.
    An alternative to this action would be to maintain the Order and 
its current provisions. However, the Order requires that a continuance 
referendum be conducted every fourth year to determine industry support 
for the program. The results of a recently held producer continuance 
referendum on the cranberry program indicated a lack of producer 
support, indicating that the Order no longer meets the needs of 
producers and handlers. Therefore, this alternative was rejected, and 
USDA is considering terminating the Order and removing the suspended 
data collection requirements in part 926.
    This proposed rule is intended to solicit input and other available 
information from interested parties on whether the Order should be 
terminated. USDA will evaluate all available information prior to 
making a final determination on this matter.
    In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 
chapter 35), the Order's information collection requirements have been 
previously approved by OMB and assigned OMB No. 0581-0189 Fruit Crops. 
Termination of the Order, and the reporting requirements prescribed 
therein, would reduce the reporting burden by 1,265 hours. Handlers 
would no longer be required to file forms with the Committee, which is 
expected to reduce industry expenses. This rulemaking would not impose 
any additional reporting or recordkeeping requirements on either large 
or small cranberry handlers.
    This rulemaking would effectuate the removal of reporting and 
recordkeeping requirements on cranberry handlers, both small and large. 
As with all Federal marketing order programs, reports and forms are 
periodically reviewed to reduce information requirements and 
duplication by industry and public sector agencies. In addition, USDA 
has not identified any relevant Federal rules that duplicate, overlap 
or conflict with this proposed rule.
    USDA is committed to complying with the E-Government Act, to 
promote the use of the internet and other information technologies to 
provide increased opportunities for citizen access to Government 
information and services, and for other purposes.
    The producer referendum was well publicized in the production area, 
and referendum ballots were provided to all known producers. As such, 
producers of U.S. cranberries had an opportunity to indicate their 
continued support for the Order. Further, interested persons are 
invited to submit comments on this proposed rule, including the 
regulatory and information collection impacts of this proposed action 
on small businesses.
    A small business guide on complying with fruit, vegetable, and 
specialty crop marketing agreements and orders may be viewed at: 
https://www.ams.usda.gov/rules-regulations/moa/small-businesses. Any 
questions about the compliance guide should be sent to Richard Lower at 
the previously mentioned address in the FOR FURTHER INFORMATION CONTACT 
section.
    This rule invites comments on the proposed termination of Marketing 
Order No. 929, which regulates the handling of cranberries grown in the 
States of Massachusetts, Rhode Island, Connecticut, New Jersey, 
Wisconsin, Michigan, Minnesota, Oregon, Washington, and Long Island in 
the State of New York. A 60-day comment period is provided to allow 
interested persons to respond to this proposal. All written comments 
timely received will be considered before a final determination is made 
on this matter.
    Based on the foregoing, and pursuant to section 608c(16)(A) of the 
Act and Sec.  929.69 of the Order, USDA is considering termination of 
the Order. If USDA decides to terminate the Order, trustees would be 
appointed to conclude and liquidate the Committee affairs and would 
continue in that capacity until discharged by USDA. In addition, USDA 
would notify Congress 60 days in advance of termination pursuant to 
section 608c(16)(A) of the Act.

List of Subjects

7 CFR Part 926

    Cranberries, Reporting and recordkeeping requirements.

7 CFR Part 929

    Acreage allotments, Cranberries, Marketing agreements, Reporting 
and recordkeeping requirements.

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

[[Page 85133]]

PART 926--[REMOVED]

PART 929--[REMOVED]

Erin Morris,
Associate Administrator, Agricultural Marketing Service.
[FR Doc. 2023-26887 Filed 12-6-23; 8:45 am]
BILLING CODE 3410-02-P