[Federal Register Volume 59, Number 135 (Friday, July 15, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-17240]
[[Page Unknown]]
[Federal Register: July 15, 1994]
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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
