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; Changes to the Rules and Regulations

DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 929

[FV94-929-1IFR]

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; Changes to the

Rules and Regulations

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Interim final rule with request for comments.

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SUMMARY: This interim final rule changes the rules and regulations

under the cranberry marketing order. The marketing order regulates the

handling of cranberries grown in 10 States and is administered locally

by the Cranberry Marketing Committee (Committee). This rule revises or

deletes language in the order's rules and regulations to reflect

amendatory changes to the marketing order completed in 1992. This rule

will make the order's rules and regulations consistent with the current

marketing order language.

DATES: Effective July 15, 1994; comments received by August 15, 1994,

will be considered prior to issuance of a final rule.

ADDRESSES: Interested persons are invited to submit written comments

concerning this rule. Comments must be sent in triplicate to the Docket

Clerk, Fruit and Vegetable Division, AMS, USDA, Room 2525-S, P.O. Box

96456, Washington, DC 20090-6456. All comments should reference the

docket 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.

FOR FURTHER INFORMATION CONTACT: Patricia A. Petrella or Mark Hessel,

Marketing Specialists, Marketing Order Administration Branch, F&V, AMS,

USDA, Room 2522-S, P.O. Box 96456, Washington, DC 20090-6456;

telephone: (202) 720-3923.

SUPPLEMENTARY INFORMATION: This rule is issued under Marketing

Agreement and Order No. 929 [7 CFR Part 929], as amended, regulating

the handling of cranberries grown in 10 States, 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 (Department) is issuing this rule in

conformance with Executive Order 12866.

This rule has been reviewed under Executive Order 12778, Civil

Justice Reform. This rule is not intended to have retroactive effect.

This rule will not preempt any state or local laws, regulations, or

policies, 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 the Secretary 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 the Secretary 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 in equity to review the

Secretary's ruling on the petition, provided a bill in equity is filed

not later than 20 days after date of the entry of the ruling.

Pursuant to requirements set forth in the Regulatory Flexibility

Act (RFA), the Administrator of the Agricultural Marketing Service

(AMS) has considered the economic impact of this action on small

entities.

The purpose of the RFA is to fit regulatory actions to the scale of

business 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. Thus, both statutes have small

entity orientation and compatibility.

There are approximately 30 handlers of cranberries who are subject

to regulation under the order and approximately 1,050 producers of

cranberries in the regulated area. Small agricultural service firms

have been defined by the Small Business Administration [13 CFR 121.601]

as those having annual receipts of less than $3,500,000, and small

agricultural producers are defined as those whose annual receipts are

less than $500,000. The majority of handlers and producers of

cranberries may be classified as small entities.

This rule revises or deletes language in the order's rules and

regulations to reflect amendatory changes to the order completed in

1992. This rule makes the order's rules and regulations consistent with

current order language. These changes were unanimously recommended by

the Cranberry Marketing Committee (Committee) at its March 1, 1994,

meeting.

In 1992, the cranberry marketing order was amended [57 FR 38748,

August 27, 1992] to change, among other provisions, the volume control

features of the order. Prior to the amendment, the order authorized a

base quantity program in which each producer received a base quantity

calculated by the Committee from a representative period in the order.

Base quantity was annually distributed to existing producers and new

producers based on a formula in the order. The 1992 order amendments

authorized a volume control program to be based on the sales history of

each producer. The Committee now calculates a sales history for each

producer based on the average of sales for a specified period for each

producer or, in the case of a new producer, sales history is based on a

State's average yield per acre. Other order amendments were made to

reflect current industry practices.

The first change revises section 929.107 which currently provides

the basis for determining established cranberry acreage. The section is

revised by deleting various terms, dates, and section references. The

term ``established'' cranberry acreage and the reference to section

929.16 are no longer applicable since they were removed by the 1992

amendment. The reference to growing cranberries during a specified

period of time (i.e., 1965-66 through 1967-68) and other similar date

references are removed since producers are no longer required to

produce during this period to have a commercial crop of cranberries.

Other modifications are made in the section for clarity.

The second change deletes section 929.108 which provides for

procedures to substantiate a firm and substantial commitment for use in

determining base quantities. This section is no longer applicable since

the order amendments authorize a sales history to be computed for every

producer. New or existing producers no longer have to show a firm and

substantial commitment to receive base quantity.

The third change revises section 929.110 which provides for

transfers or sales of cranberry acreage during the representative

period. This section is revised by deleting the term ``representative

period.'' This term is no longer applicable since all reference to a

representative period for computing base quantities was removed by the

1992 amendment. Producers must inform the Committee at any time when

transfers or sales of acreage are made. Also, the term ``base

quantity'' is deleted and replaced with the term ``sales history.''

Other minor changes are made to the section to make it consistent with

the order amendment.

The fourth change deletes section 929.148 which provides factors to

be considered when assigning or adjusting base quantities for

producers. This section is no longer applicable since the order

amendment authorizes the computation of a sales history for each

producer. These factors are not used when calculating sales history.

The fifth change revises section 929.150(a) which provides for the

transfer or assignment of base quantities. This section is revised by

deleting the term ``base quantity'' and replacing it with the term

``sales history.'' The term base quantity is no longer applicable since

the order amendment authorizes a sales history to be calculated for

each producer.

The last change deletes section 929.153 which provides for the

establishment and distribution of a base quantity reserve. This section

is no longer applicable since the 1992 order amendment provides for a

volume control program to be based on sales histories of producers. A

producer's sales history is updated annually based on the highest four

out of six years' sales. Therefore, a base quantity reserve is not

necessary for updating producers' sales histories or for allowing entry

of new growers.

Based on these considerations, the Administrator of the AMS has

determined that this action will not have a significant economic impact

on a substantial number of small entities.

The information collection requirements contained in the referenced

sections have been previously approved by the Office of Management and

Budget (OMB) under the provisions of 44 U.S.C. Chapter 35 and have been

assigned OMB number 0581-0103.

After consideration of all relevant material presented, including

the Committee's recommendation, and other available information, it is

found that this interim final rule, as hereinafter set forth, will tend

to effectuate the declared policy of the Act.

Pursuant to 5 U.S.C. 553, it is also found and determined upon good

cause that it is impracticable, unnecessary, and contrary to the public

interest to give preliminary notice prior to putting this rule into

effect and that good cause exists for not postponing the effective date

of this rule until 30 days after publication in the Federal Register

because: (1) The rules and regulations need to be consistent with the

marketing order to allow the order to operate efficiently; (2) the

Committee unanimously recommended this rule at a public meeting and all

interested persons had an opportunity to provide input; (3) this rule

is administrative in nature and provides no new restriction on

handlers; (4) cranberry handlers are aware of this rule and need no

additional time to comply with its requirements; and (5) this rule

provides a 30-day comment period and any comments timely received will

be considered prior to finalization of this rule.

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:

1. The authority citation for 7 CFR Part 929 continues to read as

follows:

Authority: 7 U.S.C. 601-674.

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

2. Section 929.107 is revised to read as follows:

Sec. 929.107 Basis for determining cranberry acreage.

(a) To be classified as cranberry acreage pursuant to section

929.48, all such acreage must be producing cranberries on a commercial

basis or planted, in accordance with order provisions, so as to produce

cranberries on a commercial basis. Commercial crop is synonymous with

commercial basis and shall mean acreage that has a sufficient density

of growing vines to show that such acreage can produce a commercial

crop of at least 15 barrels per acre without replanting or renovation

of any kind.

(b) So that the committee may properly identify cranberry acreage,

the grower shall furnish, upon request, on forms furnished by the

committee, information sufficient for the committee to establish that

such grower is the grower for the acreage involved. It shall be the

responsibility of the committee to determine by physical inspection or

other means whether there is sufficient vine density as to qualify as

``cranberry acreage'' in accordance with paragraph (a) of this section.

In making such determination, the committee shall be guided by

standards of comparison between the potential bog and existing bogs in

the same area.

(c) If the determination were that all or part of the acreage

eligible under paragraph (a) of this section does not have sufficient

vine coverage to produce 15 barrels per acre, that portion without

sufficient vine coverage will not qualify as cranberry acreage under

this section. In the event only a portion of an acreage has sufficient

vine population and density to produce 15 barrels of cranberries per

acre, such portion will qualify as cranberry acreage pursuant to this

section. Since such qualified portion of the acreage would be eligible

for a sales history, it must be definitely and permanently delineated.

(d) It shall be the responsibility of the grower to maintain

adequate sales records to show actual sales from their cranberry

acreage and submit such records to the committee separately from sales

records pertaining to any other acreage. The report of sales must be

filed by the grower no later than January 15 of the calendar year

succeeding the crop year to which such sales pertain.

3. Section 929.108 is removed.

4. Section 929.110 is revised to read as follows:

Sec. 929.110 Transfers or sales of cranberry acreage.

(a) Sales or transfers of cranberry acreage shall be reported by

the transferor and transferee to the committee, in writing, on forms

provided by the committee. Completed forms shall be sent to the

committee office not later than 30 days after the transaction has

occurred.

(b) Upon transfer of all or a portion of a growers' acreage, the

committee shall be provided with certain information on the forms it

will provide to the parties. The transferor and transferee must provide

the following information:

(1) Crop records for the acreage involved;

(2) Annual production and sales for each crop year on the acreage

involved, either in total, or for each individual parcel; and

(3) Such other information as the committee deems necessary.

(c) Cranberry acreage sold or transferred shall be recognized in

connection with the issuance of sales history as follows:

(1) If a grower sells all of the acreage comprising the entity, all

prior sales history shall accrue to the purchaser;

(2) If a grower sells only a portion of the acreage comprising the

entity from which prior sales have been made, the purchaser and the

seller must agree as to the amount of sales history attributed to each

portion and shall provide, on a form provided by the committee,

sufficient information so that sales are shown separately by crop year.

However, the sales history attributed to each portion shall not exceed

the total sales history, as determined by the committee, for such

acreage at the time of transfer.

5. Section 929.148 is removed.

6. In Sec. 929.150, the section heading and paragraph (a) are

revised to read as follows:

Sec. 929.150 Transfer or assignment of sales history.

(a) If indebtedness is incurred with regard to the acreage to which

the cranberries are attributed, and on which a sales history is

established, the sales history holder may transfer or assign the sales

history solely as security for the loan. During the existence of such

indebtedness no further transfer or assignment of sales history by the

sales history holder shall be recognized by the committee unless the

lender agrees thereto: Provided, That a copy of such loan agreement or

assignment shall be filed with the committee before any right expressed

therein, with regard to the sales history, shall be recognized by the

committee under this paragraph (a).

* * * * *

7. Section 929.153 is removed.

Dated: July 11, 1994.

Robert C. Keeney,

Deputy Director, Fruit and Vegetable Division.

[FR Doc. 94-17240 Filed 7-14-94; 8:45 am]

BILLING CODE 3410-02-P