00-32715. Cranberries Grown in the States of Massachusetts, et al.; Temporary Suspension of Provisions in the Rules and Regulations

AGENCY:

Agricultural Marketing Service, USDA.

ACTION:

Final rule.

SUMMARY:

The Department of Agriculture (Department) is adopting, as a final rule, without change, the provisions of an interim final rule that suspended certain sections in the rules and regulations to shorten the appeals procedure for growers who disagree with their sales history determination made by the Cranberry Marketing Committee (Committee) for the 2000/2001 marketing season. Due to the lateness of the season, and the numerous appeals received, the Committee recommended that review of the subcommittee's determination by the full Committee be suspended to shorten the appeal process during the current season. This time savings allowed the Committee to inform growers more timely how many cranberries handlers could purchase under this season=s volume regulation and facilitated grower harvesting decisions.

EFFECTIVE DATE:

January 22, 2001.

FOR FURTHER INFORMATION CONTACT:

Patricia A. Petrella or Kenneth G. Johnson, DC Marketing Field Office, Fruit and Vegetable Programs, AMS, USDA, Suite 2A04, Unit 155, 4700 River Road, Riverdale, Maryland 20737, telephone: [phone], Fax: [phone]; or George Kelhart, Technical Advisor, Marketing Order Administration Branch, Fruit and Vegetable Programs, AMS, USDA, room 2525-S, PO Box 96456, Washington, DC 20090-6456; telephone: [phone], Fax: [phone]. Small businesses may request information on complying with this regulation by contacting Jay Guerber, Marketing Order Administration Branch, Fruit and Vegetable Programs, AMS, USDA, P.O. Box 96456, room 2525-S, Washington, DC 20090-6456; telephone: [phone], Fax: [phone], or E-mail: [e-mail].

SUPPLEMENTARY INFORMATION:

This rule is issued under Marketing Order No. 929, as amended (7 CFR part 929), 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, hereinafter referred to as the order. The marketing 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 12988, 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. Such 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 to review the Secretary'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 rule finalizes an interim final rule that temporarily suspended, through November 15, 2000, provisions in § 929.125 of the rules and regulations (65 FR 42598, July 11, 2000) to shorten the sales history appeal process for the 2000/2001 marketing season. The Committee is responsible for calculating each grower's sales history on an annual basis. The appeals process includes three levels of review, a review by the appeals subcommittee of the Committee, the full Committee, and finally the Secretary of Agriculture. Due to the lateness of the season, and the numerous appeals received from growers, the Committee unanimously recommended that the review by the Committee be suspended for the 2000/2001 season. This allowed growers to take their appeals directly to the Secretary for a final decision. The Committee unanimously recommended this action at its August 28, 2000, meeting.

Section 929.48 of the order and § 929.149 of the rules and regulations describe how the Committee computes a sales history for each grower. There are different computations used depending on the number of years a grower has been producing on such acreage. The Committee has been updating growers' sales histories each season. The Committee accomplishes this by using information submitted by the grower on a production and eligibility report filed with the Committee. The Committee established a review procedure in § 929.125 of the rules and regulations for growers who disagree with the Committee's computation.

Currently, § 929.125 (65 FR 42598; July 11, 2000) provides that a grower may appeal to an appeals subcommittee within 30 days of receipt of the Committee's determination of his/her sales history. If the grower is not satisfied with the subcommittee's decision, the grower may further appeal to the full Committee. Such grower must notify the full Committee of his or her appeal within 15 days after notification of the subcommittee's decision. The Committee has 15 days to review the appeal. The grower may further appeal to the Secretary, within 15 days after notification of the full Committee's findings, if the grower is not satisfied with the Committee's decision. All decisions by the Secretary are final.

A volume regulation has been implemented for the 2000-2001 cranberry crop to address an oversupply situation currently being experienced by the industry. The Committee determined the best method of volume control to be the producer allotment program which provides for an annual marketable quantity and allotment percentage. Marketable quantity is defined as the number of pounds of cranberries needed to meet total demand and to provide for an adequate carryover into the next season. The allotment percentage equals the marketable quantity divided by the total of all growers' sales histories. The Committee is responsible for calculating each grower's sales history on an annual basis.

The appeals procedure described above could take 60 or more days to complete, and the number of appeals received for the season was large. At the Committee meeting on August 28, 2000, the appeals committee reviewed about 150 grower appeals, and more needed to be reviewed at this level.

Due to the lateness of the season, and the numerous appeals received, the Committee recommended that the review by the full Committee be suspended from the procedures to shorten the process. This was intended to allow growers to take their appeals directly to the Secretary for a final decision if they were not satisfied with the appeals subcommittee's determinations. To date all such appeals have been reviewed by the appeals subcommittee and reviewed and acted upon by the Secretary, if warranted.

The Committee recommended that the full Committee review step be temporarily suspended through November 15, 2000, to expedite the process for the current harvest. The complete procedures will be available to growers next season, if needed.

The Regulatory Flexibility Act and Effects on Small Businesses

Pursuant to requirements set forth in the Regulatory Flexibility Act (RFA), 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 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 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 20 handlers of cranberries who are subject to regulation under the order and approximately 1,100 producers of cranberries in the regulated area. Small agricultural service firms, which include handlers, are defined by the Small Business Administration (13 CFR 121.201) as those having annual receipts of less than $5,000,000, and small agricultural producers are defined as those having annual receipts of less than $500,000. The majority of cranberry handlers and producers may be classified as small businesses.

This rule finalizes an interim final rule that temporarily suspended provisions in § 929.125 of the rules and regulations regarding the appeals procedure for growers who disagree with their sales history determination made by the Cranberry Marketing Committee. The Committee is responsible for calculating each grower's sales history on an annual basis. The appeals process includes a review by the appeals subcommittee, the full Committee, and finally the Secretary. Due to the lateness of the season, and the numerous appeals received, the Committee recommended that the review by the full Committee be suspended from the procedures to shorten the process.

This suspension action allowed growers, who filed appeals, to know their sales histories and annual allotments sooner. Handlers need this information to plan their acquisitions throughout this crop year under volume regulation. In addition, the Committee received over 200 appeals and needed to act on them quickly to render decisions as soon as possible. To date all such appeals have been reviewed by the appeals subcommittee and reviewed and acted upon by the Secretary, if warranted.

The Committee discussed the alternative of delegating the Committee's review to the appeals subcommittee, however, such action is not authorized under the rules and regulations. The Committee also discussed not revising the rules and regulations, however, this would not have allowed growers to know their sales histories and annual allotment as promptly as possible.

This action imposes no 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.

The Department has not identified any relevant Federal rules that duplicate, overlap, or conflict with this rule.

Further, the Committee's meeting was widely publicized throughout the cranberry industry and all interested persons were invited to attend the meeting and participate in Committee deliberations on all issues. Like all Committee meetings, the August 28, 2000, meeting was a public meeting and all entities, both large and small, were able to express views on this issue. Finally, interested persons were invited to submit information on the regulatory and informational impacts of this action on small businesses.

An interim final rule concerning this action was published in the Federal Register on September 14, 2000. Copies of the rule were mailed by the Committee's staff to all Committee members and handlers. In addition, the rule was made available through the Internet by the Office of the Federal Register. That rule provided for a 60-day comment period which ended November 13, 2000. No comments were received.

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/​fv/​moab.html. Any questions about the compliance guide should be sent to Jay Guerber at the previously mentioned address in the FOR FURTHER INFORMATION CONTACT section.

After consideration of all relevant material presented, including the information and recommendation submitted by the Committee and other available information, it is hereby found that finalizing the interim final rule, without change, as published in the Federal Register (65 FR 55436, September 14, 2000) 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

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

Accordingly, the interim final rule amending 7 CFR part 929 which was published at 65 FR 55436 on September 14, 2000, is adopted as a final rule without change.

Dated: December 19, 2000.

Robert C. Keeney,

Deputy Administrator, Fruit and Vegetable Programs.