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

7 CFR Part 929

[FV94-929-1FIR]

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: Final rule.

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SUMMARY: The Department of Agriculture (Department) is adopting as a

final rule, without change, the provisions of an interim final rule

changing 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 makes the order's rules and regulations

consistent with the current marketing order language.

EFFECTIVE DATE: October 13, 1994.

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) 720-5127.

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 $5,000,000, 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 finalizes revisions or deletions to the 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.

The interim final rule was issued on July 11, 1994, and published

in the Federal Register [59 FR 36021, July 15, 1994], with an effective

date of July 15, 1994. That rule amended Secs. 929.107, 929.108,

929.110, 929.148, 929.150, and 929.153 of the rules and regulations in

effect under the order. That rule provided a 30-day comment period

which ended August 15, 1994. No comments were received.

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.

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.

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.

After consideration of all relevant material presented, the

information and recommendations submitted by the committee, and other

information, it is found that finalizing the interim final rule,

without change, as published in the Federal Register [59 FR 36021, July

15, 1994] will tend to effectuate the declared policy of the Act.

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:

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

Accordingly, the interim final rule amending 7 CFR Part 929 which

was published at 59 FR 36021 on July 15, 1994, is adopted as a final

rule without change.

Dated: September 8, 1994.

Eric M. Forman,

Deputy Director, Fruit and Vegetable Division.

[FR Doc. 94-22617 Filed 9-12-94; 8:45 am]

BILLING CODE 3410-02-P