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[Federal Register Volume 80, Number 77 (Wednesday, April 22, 2015)]
[Proposed Rules]
[Pages 22431-22433]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-09291]

========================================================================
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.

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Federal Register / Vol. 80, No. 77 / Wednesday, April 22, 2015 / 
Proposed Rules

[[Page 22431]]

DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 929

[Doc. No. AMS-FV-14-0091; FV15-929-1 PR]

Cranberries Grown in States of Massachusetts, et al.; Revising 
Determination of Sales History

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Proposed rule.

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

SUMMARY: This proposed rule would implement a recommendation from the 
Cranberry Marketing Committee (Committee) to revise the determination 
of sales history provisions currently prescribed under the cranberry 
marketing order (order). The Committee, which consists of 13 growers 
and 1 public member, locally administers the order regulating the 
handling of cranberries grown in Massachusetts, Rhode Island, 
Connecticut, New Jersey, Wisconsin, Michigan, Minnesota, Oregon, 
Washington, and Long Island in the State of New York. Under the order, 
there are two different sales history calculations that have been 
established for this program. This action would clarify when the 
different methods for calculating sales history would be used. This 
action would also remove the fresh fruit exemption from one of the 
calculations.

DATES: Comments must be received by May 7, 2015.

ADDRESSES: Interested persons are invited to submit written comments 
concerning this proposal. Comments must be sent to the Docket Clerk, 
Marketing Order and Agreement Division, Fruit and Vegetable Program, 
AMS, USDA, 1400 Independence Avenue SW., STOP 0237, Washington, DC 
20250-0237; Fax: (202) 720-8938; or Internet: http://www.regulations.gov. All comments should reference the document number 
and the date and page number of this issue of the Federal Register and 
will be made available for public inspection in the Office of the 
Docket Clerk during regular business hours, or can be viewed at: http://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: Doris Jamieson, Marketing Specialist, 
or Christian D. Nissen, Regional Director, Southeast Marketing Field 
Office, Marketing Order and Agreement Division, Fruit and Vegetable 
Program, AMS, USDA; Telephone: (863) 324-3375, Fax: (863) 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 Jeffrey Smutny, Marketing Order and Agreement 
Division, Fruit and Vegetable Program, AMS, USDA, 1400 Independence 
Avenue SW., STOP 0237, Washington, DC 20250-0237; Telephone: (202) 720-
2491, Fax: (202) 720-8938, or Email: Jeffrey.Smutny@ams.usda.gov.

SUPPLEMENTARY INFORMATION: This proposal 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, 
hereinafter referred to as the ``order.'' The order is effective under 
the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 
601-674), hereinafter referred to as the ``Act.''
    The Department of Agriculture (USDA) is issuing this proposed rule 
in conformance with Executive Orders 12866, 13563, and 13175.
    This proposal 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 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.
    There are two sales history calculations in effect under two 
separate sections of the order. This action would clarify when the 
different methods for calculating sales history would be used. This 
proposed rule also invites comments on the removal of the exemption for 
fresh fruit from the sales history calculation found in Sec.  929.149. 
The Committee unanimously recommended these changes at meetings held on 
February 10, and August 20, 2014.
    The order provides authority for volume control in the form of a 
producer allotment program. When in effect, this program limits the 
quantity of cranberries that handlers may purchase or handle on behalf 
of growers in years of oversupply. Each year, prior to determining if 
volume regulation is needed, grower sales histories are calculated. The 
sales history averages recent years' sales data using information 
submitted by each grower on a production and eligibility report filed 
with the Committee. If the Committee determines that volume regulation 
is needed, a producer allotment percentage is calculated. Each grower's 
allotment of cranberries eligible for handling is then calculated by 
multiplying the allotment percentage by the grower's sales history.
    Section 929.48 of the order contains provisions for computing an 
annual grower sales history. Section 929.48 also provides that the 
Committee, with the approval of the Secretary, may establish 
alternative grower's sales history calculations as warranted. One such 
alternative calculation is established in Sec.  929.149. This 
alternative calculation supplements the calculation found in Sec.  
929.48 by including an additional sales history for growers with new 
and renovated acreage. It also provides that

[[Page 22432]]

the sales history be computed for processed fruit only, with fresh 
fruit sales deducted from the calculation. The alternative calculation 
method established in Sec.  929.149 was developed for the 2001-02 
marketing year, the last time volume regulation was implemented, and 
was recently revised so that it could be used for any season.
    The Committee believes the provisions in the alternative sales 
history calculation are beneficial and provide equity to growers who 
have recently planted or renovated acreage. However, the alternative 
method for calculating sales history requires physical verification of 
the renovated or new acreage, thus resulting in additional costs to the 
Committee. When considering the costs and the benefits of both sales 
history calculation methods, the Committee concluded that the method in 
Sec.  929.48 was adequate for annual calculations when volume 
regulation was not anticipated. However, due to the importance of a 
grower's sales history in the determination of that grower's allotment 
during years of volume regulation, the inclusion of new and renovated 
acreage is paramount. Accordingly, the Committee concluded that the 
sales history calculation in Sec.  929.149 should be used in all years 
when volume regulation is anticipated.
    Consequently, at its February 10 and August 20, 2014, meetings, the 
Committee recommended that the alternative calculation method found in 
Sec.  929.149 only apply during times when a producer allotment volume 
regulation is being implemented. When a producer allotment volume 
regulation is not being implemented, the Committee would calculate 
grower's sales history according to the provisions provided in Sec.  
929.48 of the order.
    The Committee also recommended revising the alternative calculation 
method in Sec.  929.149 by removing the exemption for fresh fruit 
sales. Committee members stated that automatically exempting fresh 
fruit from the sales history calculation provides the grower with an 
inaccurate representation of their total sales. Further, the exclusion 
of fresh fruit affects the industry's total sales history, which is 
used to determine the allotment percentage under a producer allotment 
program. The Committee believes if any exemptions to future producer 
allotment calculations are warranted, such exemptions should be 
considered and recommended to USDA as part of a proposed volume 
regulation. Removing the fresh exemption provision from the alternative 
calculation would allow the Committee to determine, on an as-needed 
basis, whether or not volume regulation should apply to the fresh 
cranberry supply.

Initial Regulatory Flexibility Analysis

    Pursuant to requirements set forth in the Regulatory Flexibility 
Act (RFA) (5 U.S.C. 601-612), the Agricultural Marketing Service (AMS) 
has considered the economic impact of this action on small entities. 
Accordingly, AMS has prepared this initial 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 1,300 cranberry growers in the regulated 
area and approximately 45 cranberry handlers who are subject to 
regulation under the marketing 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 having annual receipts of less than 
$7,000,000 (13 CFR 121.201).
    According to industry and Committee data, grower prices ranged 
between $15 and $47 per barrel for cranberries during the 2012-13 
marketing year, and total sales were around 7.8 million barrels. Based 
on production data and grower prices, the average annual grower revenue 
is below $750,000. Using Committee information and shipment data, 44 
out of the 45 cranberry handlers could also be considered small 
businesses under SBA's definition. Therefore, the majority of cranberry 
growers and handlers may be classified as small entities.
    This proposal would revise the rules and regulations pertaining to 
the determination of sales history currently prescribed in Sec.  
929.149 of the order. There are two sales history calculations under 
two separate sections of the order. This action would clarify when the 
different methods for calculating sales history would be used. It would 
also remove the exemption for fresh fruit from the calculation method 
found in Sec.  929.149. These changes were unanimously recommended by 
the Committee at meetings held on February 10, and August 20, 2014. 
Authority for these changes is provided in Sec.  929.48 of the order.
    It is not anticipated that this action would impose any additional 
costs on the industry. Each year, the Committee is required to 
calculate a sales history for each grower. This rule would clarify that 
the alternative sales history calculation method established under 
Sec.  929.149 would only apply when a producer allotment regulation is 
being implemented. The calculation method found in Sec.  929.48 would 
be used when volume regulation is not being implemented.
    Removing the fresh exemption provision from the calculation found 
in Sec.  929.149 would allow the Committee to determine, on an as-
needed basis, whether or not volume regulation should apply to the 
fresh cranberry supply. It also would provide growers, and the 
Committee, with a more accurate representation of their sales history. 
The benefits of this proposed rule are not expected to be 
disproportionately greater or lesser for small handlers or producers 
than for large entities.
    The Committee considered the alternative of making no changes to 
the rules and regulations pertaining to the determination of sales 
history. However, the Committee recognized that this change would help 
the industry avoid the additional costs of acreage verification in 
years when volume regulation is not being implemented. Also, the 
Committee agreed that the current grower sales history tabulation 
exempting fresh fruit was not representative of the actual sales. 
Therefore, this alternative was rejected.
    In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 
Chapter 35), the order's information collection requirements have been 
previously approved by the Office of Management and Budget (OMB) and 
assigned OMB No. 0581-0189, Generic Fruit Crops. No changes in those 
requirements as a result of this action are necessary. Should any 
changes become necessary, they would be submitted to OMB for approval.
    This action would not impose any additional reporting or 
recordkeeping requirements on either small or large cranberry handlers. 
As with all Federal marketing order programs, reports and forms are 
periodically reviewed to reduce information requirements and 
duplication by industry and public sector agencies.
    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.

[[Page 22433]]

    In addition, USDA has not identified any relevant Federal rules 
that duplicate, overlap or conflict with this proposed rule.
    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. Like all Committee meetings, the February 10, and August 20, 
2014, meetings were public meetings and all entities, both large and 
small, were able to express views on this issue. Finally, interested 
persons are invited to submit comments on this proposed rule, including 
the regulatory and informational impacts of this action on small 
businesses.
    A small business guide on complying with fruit, vegetable, and 
specialty crop marketing agreements and orders may be viewed at: http://www.ams.usda.gov/MarketingOrdersSmallBusinessGuide. Any questions 
about the compliance guide should be sent to Jeffrey Smutny at the 
previously mentioned address in the FOR FURTHER INFORMATION CONTACT 
section.
    A 15-day comment period is provided to allow interested persons to 
respond to this proposal. Fifteen days is deemed appropriate because 
this proposed rule would need to be in place as soon as possible as the 
Committee is beginning discussions regarding establishing a producer 
allotment volume regulation for the coming season. As such, it would be 
important to have these changes in place as the Committee moves forward 
with these discussions and potential implementation. All written 
comments timely received will be considered before a final 
determination is made on this matter.

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 
proposed to be 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.

Sec.  929.149  [Amended]

0
2. In Sec.  929.149, the words ``when a producer allotment volume 
regulation is in effect'' are added to the end of the introductory 
text, and paragraphs (e) and (f) are removed.

    Dated: April 16, 2015.
Rex A. Barnes,
Associate Administrator, Agricultural Marketing Service.
[FR Doc. 2015-09291 Filed 4-21-15; 8:45 am]
 BILLING CODE 3410-02-P
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