81 FR 93642 - 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; Proposed Amendment to Marketing Order 929 and Referendum Order

DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service

Federal Register Volume 81, Issue 245 (December 21, 2016)

This rule proposes an amendment to Marketing Order No. 929 (order), 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 is based on a proposal made by the Cranberry Marketing Committee (Committee), which is responsible for the local administration of the order. The amendment would authorize the Committee to receive and expend voluntary contributions from domestic sources. Contributed funds would be used solely for research and development activities authorized under the order and would be free from any encumbrances as to their usage by the donor.

[Federal Register Volume 81, Number 245 (Wednesday, December 21, 2016)]
[Proposed Rules]
[Pages 93642-93644]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2016-30571]


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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. 81, No. 245 / Wednesday, December 21, 2016 / 
Proposed Rules

[[Page 93642]]



DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 929

[Doc. No. AMS-SC-16-0041; SC16-929-1]


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; Proposed 
Amendment to Marketing Order 929 and Referendum Order

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Proposed rule and Referendum Order.

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SUMMARY: This rule proposes an amendment to Marketing Order No. 929 
(order), 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 is based on a proposal made by the 
Cranberry Marketing Committee (Committee), which is responsible for the 
local administration of the order. The amendment would authorize the 
Committee to receive and expend voluntary contributions from domestic 
sources. Contributed funds would be used solely for research and 
development activities authorized under the order and would be free 
from any encumbrances as to their usage by the donor.

DATES: The referendum will be conducted from January 23, 2017 through 
February 13, 2017. The representative period for the purpose of the 
referendum is September 1, 2015 through August 31, 2016.

FOR FURTHER INFORMATION CONTACT: Abdullah Orozco, Marketing Specialist, 
or Michelle P. Sharrow, Rulemaking Branch Chief, 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] 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 proposal is issued under Marketing 
Order and Agreement 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. 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.'' 
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) authorizes amendment of the order through this 
informal rulemaking action.
    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 rule is not intended to have retroactive effect. 
This rule shall not be deemed to preclude, preempt, or supersede any 
State programs covering cranberries grown in the production area unless 
they present an irreconcilable conflict with this rule.
    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 18c(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 18c(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.
    AMS has considered these factors and has determined that the 
amendment proposed is not unduly complex and the nature of the proposed 
amendment is appropriate for utilizing the informal rulemaking process 
to amend the order.
    The proposed amendment was unanimously recommended by the Committee 
following deliberations at a public meeting held August 17-18, 2015.
    A proposed rule soliciting comments on the proposed amendment was 
issued on July 27, 2016, and published in the Federal Register on 
August 4, 2016 (81 FR 51383). No comments were received. AMS will 
conduct a producer referendum to determine support for the proposed 
amendment. If appropriate, a final rule will then be issued to 
effectuate the amendment favored by producers in the referendum.
    The Committee's proposed amendment would amend the marketing order 
by authorizing the Committee to receive and expend voluntary 
contributions from domestic sources for research and development 
activities.

Proposal--Voluntary Contributions

    This proposal would add a new section, Sec.  929.43, Contributions, 
to the order. If implemented, this section

[[Page 93643]]

would authorize the Committee to accept voluntary financial 
contributions. Such contributions could only be accepted from domestic 
sources and would be free from any restrictions on their use by the 
donor. When received, the Committee would retain complete control of 
their use. The use of contributed funds would be limited to funding 
program activities authorized under Sec.  929.45, Research and 
development.
    Currently, program operations are solely financed through 
assessments collected from handlers regulated under the order. Sources 
not subject to the order have expressed an interest in supporting many 
of the research and development projects currently funded by the order. 
However, without the ability to accept financial contributions, the 
Committee has had to decline these offers. This proposal would provide 
authority to accept financial contributions. With the potential for 
additional funding, more research and development projects could be 
undertaken.
    For the reasons stated above, it is proposed that Sec.  929.43, 
Contributions, be added to provide authority to accept voluntary 
financial contributions.

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.
    Based on Committee data, there are approximately 1,200 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 $7,500,000 (13 CFR 121.201).
    According to the National Agricultural Statistics Service (NASS), 
grower prices were $30.90 per barrel for cranberries during the 2014-15 
marketing year. NASS also reported total bearing acres at 40,600 and 
average yield per acre at 10.3 tons for the 2014-15 marketing year.
    Based on the total bearing acres provided by NASS and the 
approximate number of cranberry growers (1,200 growers), the average 
acreage per grower is 33.8 acres. Multiplying the average acreage per 
grower (33.8 acres) by the average yield per acre (10.3 tons) results 
in an average production of 348.5 tons. To convert the average 
production from tons to barrels, 348.5 tons is multiplied by 2,000 
pounds (one ton equals 2,000 pounds) to equal 696,966.7 pounds and is 
then divided by 100 (100 pounds equals 1 barrel), resulting in an 
average production per growers of 6,969.7 barrels.
    Multiplying the average production (6,967.7 barrels) by the grower 
price ($30.90 per barrel), provided by NASS, equals an average grower 
revenue of $215,301.90. Based on this calculation, the average annual 
grower revenue for the 2014-15 marketing year was below $750,000.
    Using Committee information and shipment data, the majority of 
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 under SBA definitions.
    The amendment proposed by the Committee would add a new section, 
Sec.  929.43, Contributions, to the order. If implemented, this section 
would authorize the Committee to accept voluntary financial 
contributions. Such contributions could only be accepted from domestic 
sources and would be free from any encumbrances or restrictions on 
their use by the donor. When received, the Committee would retain 
complete control of their use. The use of contributed funds would be 
limited to funding program activities authorized under Sec.  929.45, 
Research and development.
    The Committee's proposed amendment was unanimously recommended at a 
public meeting on August 17-18, 2015.
    If the proposal is approved in referendum, there would be no direct 
financial effect on growers or handlers. This proposal would provide 
authority to accept financial contributions. With the potential for 
additional funding, more research and promotional projects could be 
undertaken. Therefore, it is anticipated that both small and large 
producer and handler businesses would benefit from its implementation.
    Alternatives to this proposal, including making no changes at this 
time, were considered. However, the Committee believes it would be 
beneficial to authorize contributions from domestic sources which would 
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 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 would be necessary. 
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 citizen access to 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. Like all Committee meetings, the August 
17-18, 2015, 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 August 4, 2016 (81 FR 51383). Copies of the proposed rule 
were mailed or sent via facsimile to all Committee members and 
cranberry handlers. Finally, the rule was made available through the 
Internet by USDA and the Office of the Federal Register. A 60-day 
comment period ending October 3, 2016, was provided to allow interested 
persons to respond to the proposal. No comments were received. 
Accordingly, no changes have been made to the proposed amendments.
    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 Richard Lower at his 
previously mentioned address in

[[Page 93644]]

the FOR FURTHER INFORMATION CONTACT section.

Findings and Conclusions

    The findings and conclusions and general findings and 
determinations included in the proposed rule set forth in the August 4, 
2016, issue of the Federal Register are hereby approved and adopted.

Marketing Order

    Annexed hereto and made a part hereof is the document entitled 
``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.'' This document has been decided upon as the 
detailed and appropriate means of effectuating the foregoing findings 
and conclusions. It is hereby ordered, that this entire rule be 
published in the Federal Register.

Referendum Order

    It is hereby directed that a referendum be conducted in accordance 
with the procedure for the conduct of referenda (7 CFR part 900.400-
407) to determine whether the annexed 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 is approved by growers, as defined under the terms of the 
order, who during the representative period were engaged in the 
production of cranberries in the production area. The representative 
period for the conduct of such referendum is hereby determined to be 
September 1, 2015 through August 31, 2016.
    The agents of the Secretary to conduct such referendum are 
designated to be Doris Jamieson and Christian D. Nissen, Southeast 
Marketing Field Office, Marketing Order and Agreement Division, 
Specialty Crops Program, AMS, USDA; Telephone: (863) 324-3375, Fax: 
(863) 325-8793, or Email: [email protected] or 
[email protected]. respectively.

List of Subjects in 7 CFR Part 929

    Cranberries, Marketing agreements, Reporting and recordkeeping 
requirements.

    Dated: December 14, 2016.
Elanor Starmer,
Administrator, Agricultural Marketing Service.

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

    The findings hereinafter set forth are supplementary to the 
findings and determinations which were previously made in connection 
with the issuance of the marketing 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 marketing 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 marketing 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 marketing order;
    3. The marketing 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 marketing order, as amended, and as hereby proposed to be 
further amended, prescribe, 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 marketing order is in the current of interstate or 
foreign commerce or directly burdens, obstructs, or affects such 
commerce.

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 July 27, 
2016, and published in the Federal Register (81 FR 51383) on August 4, 
2016, will be and are the terms and provisions of this order amending 
the order and are set forth in full herein.

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:


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. 2016-30571 Filed 12-20-16; 8:45 am]
BILLING CODE 3410-02-P