Rule2024-15246
Cranberries Grown in Massachusetts, et al.; Termination of Marketing Order and Data Collection Requirements for Cranberries Not Subject to the Marketing Order
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
July 12, 2024
Effective
July 31, 2024
Issuing agencies
Agriculture DepartmentAgricultural Marketing Service
Abstract
This rulemaking terminates Federal Marketing Order No. 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, and the rules and regulations issued thereunder. The data collection, reporting and recordkeeping requirements applicable to cranberries not subject to the marketing order are also terminated (7 CFR part 926). This rulemaking also removes the marketing order from the Code of Federal Regulations.
Full Text
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<title>Federal Register, Volume 89 Issue 134 (Friday, July 12, 2024)</title>
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[Federal Register Volume 89, Number 134 (Friday, July 12, 2024)]
[Rules and Regulations]
[Pages 57059-57061]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-15246]
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Rules and Regulations
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains regulatory documents
having general applicability and legal effect, most of which are keyed
to and codified in the Code of Federal Regulations, which is published
under 50 titles pursuant to 44 U.S.C. 1510.
The Code of Federal Regulations is sold by the Superintendent of Documents.
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Federal Register / Vol. 89, No. 134 / Friday, July 12, 2024 / Rules
and Regulations
[[Page 57059]]
DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Parts 926 and 929
[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: Final rule; termination of order.
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SUMMARY: This rulemaking terminates Federal Marketing Order No. 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, and the rules and regulations issued thereunder. The data
collection, reporting and recordkeeping requirements applicable to
cranberries not subject to the marketing order are also terminated (7
CFR part 926). This rulemaking also removes the marketing order from
the Code of Federal Regulations.
DATES: Effective Date: July 31, 2024.
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: <a href="/cdn-cgi/l/email-protection#88c2ede6e6e1eda6dee9faede4e9c8fdfbece9a6efe7fe"><span class="__cf_email__" data-cfemail="0b416e6565626e255d6a796e676a4b7e786f6a256c647d">[email protected]</span></a> or
<a href="/cdn-cgi/l/email-protection#7b38130912080f121a1555351208081e153b0e081f1a551c140d"><span class="__cf_email__" data-cfemail="91d2f9e3f8e2e5f8f0ffbfdff8e2e2f4ffd1e4e2f5f0bff6fee7">[email protected]</span></a>.
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:
<a href="/cdn-cgi/l/email-protection#ce9ca7ada6afbcaae082a1b9abbc8ebbbdaaafe0a9a1b8"><span class="__cf_email__" data-cfemail="cb99a2a8a3aab9afe587a4bcaeb98bbeb8afaae5aca4bd">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION: This action, pursuant to 5 U.S.C. 553,
terminates regulations issued to carry out a marketing order as defined
in 7 CFR part 900.2(j). This rulemaking 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 rulemaking 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 Agricultural Marketing Service (AMS) is issuing this rulemaking
in conformance with Executive Orders 12866, 13563, and 14094. Executive
Orders 12866, 13563, and 14094 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 rulemaking 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. AMS has determined
this rulemaking 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 rulemaking has been reviewed under Executive Order 12988,
Civil Justice Reform. This rulemaking 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 (7 U.S.C. 608c(15)(A)), any handler subject to a marketing order
may file with 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.
This rulemaking terminates 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, and removes the
Order from the Code of Federal Regulations. Section 929.69 of the Order
states AMS 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, the Secretary 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, AMS held a continuance referendum among
cranberry producers from June 9 through June 30, 2023, to determine if
[[Page 57060]]
they favored continuation of the program. AMS 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 favor of
terminating 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 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 rulemaking also terminates 7
CFR part 926 which has been suspended since December 29, 2006.
In addition, section 608c(16)(A) of the Act provides that the
Secretary 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 Sec. 608c(16)(A) of the Act and Sec. 929.69 of the
Order, the Secretary is terminating the Order.
The Order has been in effect since 1962 and provided the cranberry
industry with authority for production research, marketing promotion
and development, paid advertising, authority for volume regulation
through producer allotments or handler withholding, and reporting and
recordkeeping functions needed to operate the program. The Committee,
which locally administered the Order, was funded by assessments imposed
on handlers. Although marketing order requirements are applied to
handlers, the costs of such requirements are often passed on to
producers.
Terminating the Order and all the rules and regulations issued
thereunder, means the perceived benefits correlated with the Order are
also lost. An alternative to this action would be to maintain the Order
and its current provisions. However, a review of the continuance
referendum results showed producers believe the benefits of the program
no longer outweigh the costs to handlers and producers. In addition,
termination of the Order and the resulting regulatory relaxation is
expected to reduce costs for both producers and handlers. Therefore,
this alternative was rejected.
This rulemaking terminates the Order and the rules and regulations
issued thereunder and removes the suspended data collection
requirements in 7 CFR part 926.
Final Regulatory Flexibility Analysis
Pursuant to requirements set forth in the Regulatory Flexibility
Act (RFA) (5 U.S.C. 601-612), AMS has considered the economic impact of
this rulemaking 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 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, Berry (except Strawberry) Farming) and small agricultural
service firms are defined as those whose annual receipts are less than
$34,000,000 (NAICS code 115114, Postharvest Crop Activities) (13 CFR
part 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 of 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 rulemaking terminates the Order, and the rules and regulations
issued thereunder and will remove the Order from the Code of Federal
Regulations. Section 929.69 states the Secretary 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. This
rulemaking also removes the requirements of 7 CFR part 926, which
required the data collection of cranberries not covered under the
Order. In addition, section 608c(16)(A) of the Act provides that the
Secretary 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. An additional provision requires that
Congress be notified no later than 60 days before the date the Order is
terminated.
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
[[Page 57061]]
committee that is made up of growers and/or handlers that work
collectively to solve industry problems. After considering the
alternative, the Committee concluded that regulating the handling of
cranberries under the Order is no longer necessary to ensure orderly
marketing of cranberries. The costs associated with the administration
of the Order outweigh the benefits, and that termination of the Order
would not have a negative impact on industry.
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.
After finalizing termination, AMS will extract the remaining cranberry
marketing order-related forms from the forms package during the next
three-year renewal process. OMB's three-year expiration date for the
package containing cranberry marketing order forms is January 31, 2027.
This rule effectuates 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, AMS has not identified any
relevant Federal rules that duplicate, overlap or conflict with this
rulemaking.
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 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.
A small business guide on complying with fruit, vegetable, and
specialty crop marketing agreements and orders may be viewed at:
<a href="https://www.ams.usda.gov/rules-regulations/moa/small-businesses">https://www.ams.usda.gov/rules-regulations/moa/small-businesses</a>. Any
questions about the compliance guide should be sent to Richard Lower at
the previously mentioned address in the FOR FURTHER INFORMATION CONTACT
section.
A proposed rule inviting comments on the termination of the Order
was published in the Federal Register on December 7, 2023 (88 FR
85130). A 60-day comment period was provided to allow interested
persons an opportunity to respond to the proposed termination of the
Order. In addition, AMS published on its website and distributed to
industry stakeholders a notice to trade announcing the proposed
termination of the Order. Five total comments were received. One
comment supported the termination, and one comment was not relevant to
the proposal. Three non-substantive comments opposed the termination of
the Order, expressing the program is a value to small businesses.
Producers of both large and small businesses were provided the
opportunity to show support for the Order during the continuance
referendum. Further, producers who voted in the referendum elected to
terminate the Order indicating the costs associated with the
administration of the Order outweigh the benefits and, therefore, the
Order is no longer meeting the needs of the industry. Those producers
also believe that terminating the Order will not have a negative impact
on the industry. Accordingly, after reviewing and considering all
comments received during the comment period, the Secretary determined
that termination of the Order was appropriate. All the comments may be
viewed at <a href="https://www.regulations.gov">https://www.regulations.gov</a>.
Based on the foregoing, and pursuant to section 608c(16)(A) of the
Act and Sec. 929.69 of the Order, it is hereby found that Federal
Marketing Order No. 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 does not tend to effectuate the declared policy
of the Act and is therefore terminated.
Following termination, trustees will be appointed to conclude and
liquidate the Committee affairs and will continue in that capacity
until discharged by the Secretary. In addition, pursuant to 608c(16)(A)
of the Act, USDA is required to notify Congress 60 days in advance of
termination. Congress was so notified on April 11, 2024.
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.
PARTS 926 AND 929--[REMOVED]
0
For the reasons set forth in the preamble, and under the authority of 7
U.S.C. 601-674, the Agricultural Marketing Service amends title 7,
chapter IX of the Code of Federal Regulations by removing parts 926 and
929.
Erin Morris,
Associate Administrator, Agricultural Marketing Service.
[FR Doc. 2024-15246 Filed 7-11-24; 8:45 am]
BILLING CODE P
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