[Federal Register Volume 70, Number 8 (Wednesday, January 12, 2005)]
[Rules and Regulations]
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  Federal Register / Vol. 70, No. 8 / Wednesday, January 12, 2005 / 
Rules and Regulations  

[[Page 1995]]



DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 926

[Docket No. FV01-926-1 FR]


Proposed Data Collection, Reporting, and Recordkeeping 
Requirements Applicable to Cranberries Not Subject to the Cranberry 
Marketing Order

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: This final rule establishes a new Part 926 in the Code of 
Federal Regulations which requires persons engaged in the handling or 
importation of fresh cranberries or cranberry products (including 
handlers, producer-handlers, processors, brokers, and importers) not 
subject to the reporting requirements of the Federal cranberry 
marketing order (order) to report sales, acquisition, and inventory 
information to the Cranberry Marketing Committee (Committee), and to 
maintain adequate records on such activities. The establishment of the 
data collection, reporting, and recordkeeping requirements for entities 
not subject to the order is authorized under an amendment to section 
8(d) of the Agricultural Marketing Agreement Act of 1937. The 
additional information is needed by the Committee to make more informed 
recommendations to USDA for regulations authorized under the cranberry 
marketing order. This rule also finalizes the Agricultural Marketing 
Service's intention to request approval of the new data collection and 
reporting requirements by the Office of Management and Budget.

EFFECTIVE DATE: February 11, 2005.

FOR FURTHER INFORMATION CONTACT: Patricia A. Petrella or Kenneth G. 
Johnson, DC Marketing Field Office, Marketing Order Administration 
Branch, Fruit and Vegetable Programs, AMS, USDA, Suite 6C02, Unit 155, 
4700 River Road, Riverdale, Maryland 20737; telephone: (301) 734-5243, 
Fax: (301) 734-5275; or George Kelhart, Technical Advisor, Marketing 
Order Administration Branch, Fruit and Vegetable Programs, AMS, USDA, 
1400 Independence Avenue, SW., STOP 0237, Washington, DC 20250-0237; 
telephone: (202) 720-2491, Fax: (202) 720-8938.
    Small businesses may request information on complying with this 
regulation by contacting Jay Guerber, Marketing Order Administration 
Branch, Fruit and Vegetable Programs, AMS, USDA,1400 Independence 
Avenue, SW., STOP 0237, Washington, DC 20250-0237; telephone: (202) 
720-2491, Fax: (202) 720-8938, or e-mail: [email protected].

SUPPLEMENTARY INFORMATION:
    This rule is issued pursuant to the Agricultural Marketing 
Agreement Act of 1937, as amended [7 U.S.C. 601-674], and as further 
amended October 22, 1999, by Pub. L. 106-78, 113 Stat. 1171, 
hereinafter referred to as the ``Act''.
    The Department of Agriculture (USDA) 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. There are no administrative procedures which must be exhausted 
prior to any judicial challenge to the provisions of this rule.
    This action is necessary to implement authority on cranberry data 
collection consistent with a 1999 amendment to section 8(d) of the Act. 
If a cranberry order is in effect, the amendment authorizes the 
Secretary to require persons engaged in the handling or importation of 
fresh cranberries or cranberry products (including producer-handlers, 
second handlers, processors, brokers, and importers) to provide to the 
USDA certain information including information on sales, acquisitions, 
and inventories of fresh cranberries or cranberry products. Under the 
provisions of Part 926, such persons include handlers, producer-
handlers, processors, brokers, and importers. Under the rule, the 
Committee will collect such information.
    According to the Committee, the number of end users of cranberries 
and cranberry products has increased in recent years. This has 
increased the number of entities in the marketing chain acquiring, 
selling, and maintaining inventories of cranberries and cranberry 
products produced domestically and outside the United States. 
Significant quantities of cranberries and cranberry products are now 
being marketed by handlers, producer-handlers, processors, importers, 
brokers, and others not subject to the reporting requirements of the 
cranberry marketing order (7 CFR Part 929). The cranberry marketing 
order authorizes the Committee to obtain information on sales, 
acquisitions, and inventories of cranberries and cranberry products 
from handlers regulated under the order. Such handlers are those who 
can, freeze, or dehydrate cranberries produced within the production 
area, or who sell, consign, deliver, transport (except as a common or 
contract carrier of cranberries owned by another person) fresh 
cranberries or in any other way place fresh cranberries in the current 
of commerce within the production area or between the production area 
and any point outside thereof in the United States and Canada.
    Prior to the 1999 amendment of the Act, the Committee and USDA did 
not have the authority to obtain information from entities not subject 
to the reporting requirements of the order. The 1999 amendment provides 
authority for USDA to expand the Committee's information gathering 
capability. With more complete information, the Committee would be able 
to make better-informed regulation recommendations to USDA. The 
Committee would also publish periodic reports aggregating the data on 
cranberry and cranberry products for use by all members of the 
industry.
    Prior to the mid-1990's, the majority of cranberry inventories were 
held by handlers subject to the order, and the Committee was able to 
account for practically all of the cranberry and cranberry product 
inventory under the order. Under Sec.  929.9 of the order, the term 
handler is defined as any person who handles cranberries. Handle means 
to sell, consign, deliver or transport

[[Page 1996]]

(except as a common or contract carrier of cranberries owned by another 
person) fresh cranberries or in any other way to place fresh 
cranberries in the current of commerce within the production area and 
any point outside thereof in the United States or Canada (7 CFR 
929.10). However, with increased domestic production and imports of 
cranberries, the number of entities not regulated under the Federal 
cranberry marketing order has expanded to include handlers, producer-
handlers, processors, brokers, and importers who are not subject to the 
mandatory reporting requirements of the cranberry marketing order. 
Therefore, the Committee does not have complete information on sales, 
acquisitions and inventories of cranberries. Allowing the Committee to 
collect this information will help it make better informed regulation 
recommendations to USDA.
    Section 929.46 of the cranberry marketing order requires the 
Committee to develop a marketing policy each year prior to May 1. 
Currently, in its marketing policy discussions, the Committee projects 
expected supply and market conditions for an upcoming season, based on 
information provided by growers and, particularly, handlers who are 
regulated under the order. These projections include an estimate of the 
marketable quantity (defined as the number of pounds of cranberries 
needed to meet total market demand and to provide for an adequate 
carryover into the next season). The Committee believes that its 
marketing policy is limited in some respects because it does not have 
the ability to include sales, acquisitions, and inventory reports from 
all segments of the cranberry industry.
    Increased production, stagnant demand, and high inventory levels 
have compounded the problem of unreported inventories. With increased 
production and stagnant markets, the industry is producing far more 
cranberries than needed for current market needs. This situation has 
led to higher inventory levels. However, the Committee's inability to 
obtain needed information on cranberry sales, acquisitions, and 
inventories from entities not regulated under the marketing order has 
prevented it from obtaining complete information from all segments of 
the industry. With understated sales, acquisition, and inventory 
information, the Committee has been limited somewhat in making 
recommendations under the marketing order.
    The ability to closely monitor levels of sales, acquisitions, and 
inventory is critical to the Committee in making more thorough 
recommendations. The 1999 amendment to the Act provides a means for 
collecting this information.
    Section 8(d)(3) of the amended Act specifies that if an order is in 
effect with respect to cranberries, USDA may require persons engaged in 
the handling or importation of cranberries or cranberry products 
(including handlers, producer-handlers, processors, brokers, and 
importers) to provide such information as USDA considers necessary to 
effectuate the declared policy of the Act (which is to promote orderly 
marketing conditions and improve returns to producers), including 
information on acquisitions, inventories, and dispositions of 
cranberries and cranberry products. The amendment allows USDA to 
delegate to the Committee the authority to collect sales, acquisition, 
and inventory data from persons, other than regulated handlers under 
the marketing order, engaged in the handling or importation of 
cranberries. Under this proposal, the Committee would collect such 
information. Typically, marketing order committees collect information 
and require record keeping to ensure that USDA can verify handler 
reports. Additionally, the Committee also compiles collected 
information in its aggregate form to use when discussing cranberry 
supplies, inventories, and market strategies during its marketing 
policy discussions. This rule will assist the Committee in making more 
informed marketing recommendations.
    A new Part 926 will be added to the regulations to authorize the 
Committee to collect data from such entities. New Part 926 will define 
terms and establish rules and regulations relative to the reporting and 
recordkeeping requirements necessary to effectuate the declared policy 
of the Act.
    Several examples are listed below as to how data collection 
currently is conducted under the marketing order and how it will 
operate under the new data collection process. For instance, a grower 
harvests and delivers cranberries to a handler regulated under the 
cranberry marketing order. The regulated handler sells the cranberries 
to a processor. The regulated handler reports to the Committee the 
name, address, and amount of cranberries sold to the processor on a 
Handler Inventory Report--Supplement Form (HIR-SUP), and that completes 
the current marketing order data collection process. Under the new data 
collection process, the Committee, noting information used from 
marketing order reports to identify newly regulated entities, will send 
a report form (Handler/Processor Cranberry Inventory Report Form; HPCIR 
A-D) to the processor. The processor will complete the form by 
indicating names, sources, and amounts of domestic/foreign barrels of 
cranberries acquired, domestic/foreign sales, and beginning and ending 
inventories of cranberries (in freezers and in processed form, 
including concentrate) and submit the report form to the Committee.
    In another example, a regulated handler sells cranberries to a 
broker. The broker sells the cranberries to three processors. The 
Committee receives the initial information (barrels acquired, sold, and 
in inventory) from the regulated handler and that ends the current 
marketing order data collection process. Under the data collection 
process, the Committee will also contact and send a report form 
(Importer Cranberry Inventory Report; Form ICIR A-D) to the broker to 
track the cranberries to the three processors. This form filed by the 
broker will provide the Committee with names, sources, and amounts of 
cranberry barrels acquired, amount sold to and received by the broker, 
processor and handler, and the beginning and ending inventories of 
cranberries (in freezers and in processed form, including concentrate) 
held by the broker. After receiving the broker's report, the Committee 
will send a Handler/Processor Cranberry Inventory Report Form to each 
of the three processors to complete and return to the Committee.
    In a third example, a non-regulated handler acquires cranberries 
(imports or domestically produced cranberries from a non-marketing 
order production area). The non-regulated handler is outside the scope 
of the marketing order and thus, not required to report to the 
Committee under the current marketing order reporting process. However, 
through the information supplied from other producer-handlers, 
importers, processors and brokers, the Committee might be able to 
identify the non-regulated handler and send him/her a Handler/Processor 
Cranberry Inventory Report Form. The non-regulated handler will 
complete the form by indicating names, sources, and amounts of 
domestic/foreign barrels of cranberries acquired, foreign/domestic 
sales, and beginning and ending inventories of cranberries (in freezers 
and in processed form, including concentrate) and submit the report 
form to the Committee.
    In the last example, a broker imports cranberries into the United 
States. The broker is outside the scope of the marketing order and not 
a regulated handler. Thus, there is no mandatory reporting or 
recordkeeping requirements that he/she has to meet. Under the new data 
collection requirements, the importer will be required to submit 
quarterly reports (on an Importer

[[Page 1997]]

Cranberry Inventory Report Form CIR A-D) to the Committee. This form is 
to be filed by an importer to provide the Committee with names, sources 
and amounts of cranberry barrels imported, amounts sold to and received 
by the broker, processor and handler, and the beginning and ending 
inventories of cranberries (in freezers and in processed form, 
including concentrate) held by the importer. Once that information is 
obtained, the Committee can contact the individuals/firms receiving the 
imported cranberries and have them report on the distribution.
    All of these reports will be on the same reporting cycle (4 times a 
year or quarterly) as regulated handlers under the marketing order. 
Handlers, producer-handlers, processors, brokers, and importers will 
report any/all cranberry transactions that occurred during each of the 
reporting cycles. The purpose of this action is to provide the 
Committee with the ability to account for cranberries in the marketing 
pipeline after they have been sold by the regulated handler or if 
imported, brought into the United States.
    All cranberries and cranberry products will be covered. This 
includes fresh cranberries, frozen cranberries, and cranberry 
concentrate. Currently, if a handler regulated under the order has 
juice, sauce or other finished cranberry products in inventory, the 
handler is required to determine the barrel equivalency of cranberries 
contained in those products and report this as inventory. Handlers, 
producer-handlers, processors, brokers, and importers will be required 
to do the same.
    Data collection requirements will not apply once fresh cranberries 
or cranberry products reached retail markets. For example, a regulated 
handler (handler A), sells concentrate to processor B. Processor B uses 
the concentrate to bottle private label juice. The product is shipped 
to a wholesale/retail distribution center. The Committee will receive 
an initial report from handler A and subsequently from processor B. 
Processor B will continue to file reports for each cycle that the 
concentrate and cranberry products remained in his/her possession. The 
reporting requirement extends up to, but does not include, the retailer 
level.
    Failure on the part of handlers, producer-handlers, processors, 
brokers, and importers to comply with the new data collection and 
recordkeeping requirements could lead to enforcement action, including 
the levying of penalties provided under 8c(14) of Act against the 
violating person or entity. False representation to an agency of the 
United States in any matter, knowing it to be false, is a violation of 
18 U.S.C. 1001 which provides for a fine or imprisonment or both.

Final Regulatory Flexibility Analysis

    Pursuant to requirements set forth in the Regulatory Flexibility 
Act (RFA), the Agricultural Marketing Service (AMS) has considered the 
economic impact of this proposed rule 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.
    Small agricultural service firms have been defined by the Small 
Business Administration [13 CFR 121.201] as those having annual 
receipts less than $5,000,000, and small agricultural producers are 
those with annual receipts of less than $750,000. There are about 20 
handlers currently regulated under Marketing Order No. 929. In 
addition, there are about 1,250 producers of cranberries in the 
production area. Based on recent years' price and sales levels, AMS 
finds that nearly all of the cranberry producers and some of the 
handlers are considered small under the SBA definition.
    In 2003, a total of 39,400 acres were harvested with an average 
U.S. yield per acre of 155.1 barrels. Grower prices in 2003 averaged 
$31.80 per barrel. Average total annual grower receipts for 2003 are 
estimated at $155,203 per grower. Of the 1,250 cranberry producers in 
the marketing order production area, between 86 and 95 percent are 
estimated to have sales equal to or less than $750,000. Few growers 
have sales that exceeded this threshold in recent years.
    Under the marketing order, five handlers handle over 97 percent of 
the cranberry crop. Using Committee data on volumes handled, AMS has 
determined that none of these handlers qualify as small businesses 
under SBA's definition.
    The remainder of the crop in the marketing order production area is 
marketed by about a dozen producer-handlers who handle their own crops. 
Dividing the remaining 3 percent of the crop by these producer-
handlers, all are considered small businesses.
    Cranberries are produced in 10 States under Marketing Order No. 
929, but the vast majority of farms and production is concentrated in 
Massachusetts, New Jersey, Oregon, Washington, and Wisconsin. Average 
farm size for cranberry production is very small. The average across 
all producing States is about 33 acres. Wisconsin's average is twice 
the U.S. average at 66.5 acres, and New Jersey averages 83 acres. 
Average farm size is below the U.S. average for Massachusetts (25 
acres), Oregon (17 acres) and Washington (14 acres).
    Small cranberry growers dominate in all States: 84 percent of 
growers in Massachusetts harvest 10,000 or fewer barrels of 
cranberries, while another 3.8 percent harvest fewer than 25,000 
barrels. In New Jersey, 62 percent of growers harvest less than 10,000 
barrels, and 10 percent harvest between 10,000 and 25,000 barrels. More 
than half of Wisconsin growers raise less than 10,000 barrels, while 
another 29 percent produce between 10,000 and 25,000 barrels. Similar 
production patterns exist in Washington and Oregon. Over 90 percent of 
the cranberry crop is processed, with the remainder sold as fresh 
fruit.
    According to the National Agricultural Statistics Service (NASS), 
the 2003 overall U.S. cranberry crop totaled 6.1 million barrels (1 
barrel equals 100 pounds of cranberries). Total barrels of cranberry 
imports acquired were 1.06 million pounds. The U.S. 2003 preliminary 
price for fresh and processed cranberries was $50.90 and $30.60 per 
barrel respectively.
    Under Part 926, the Committee estimates that there are 
approximately 130 handlers, producer-handlers, processors, brokers, and 
importers subject to the data collection requirements. Taking into 
account the profile of the size of the industry under the marketing 
order, we estimate that most of these entities are considered small 
under the SBA criteria.
    Public Law 106-78, enacted October 22, 1999, amended section 608(d) 
of the Act to authorize USDA to require persons engaged in the handling 
of cranberries or cranberry products (including handlers, producer-
handlers, processors, brokers, and importers) not subject to the order 
to maintain adequate records and report sales, acquisitions, and 
inventory information. The data collection and reporting requirements 
will help the Committee make more informed recommendations to USDA for 
regulations authorized under the cranberry marketing order.
    This rule implements the reporting and recordkeeping requirements 
authorized by the amendment to the Act. Under the regulations, 
handlers, producer-handlers, processors, brokers, and importers are 
required to submit reports four times annually regarding sales, 
acquisitions, movement for further processing and disposition of 
cranberries and cranberry products.
    The Committee discussed alternatives to this action, including 
continuing to

[[Page 1998]]

ask those entities not subject to the marketing order to voluntarily 
submit inventory data to the Committee. This has not been successful. 
To make well informed regulatory decisions, the Committee needs 
complete inventory, sales and acquisition information from handlers, 
producer-handlers, processors, brokers, and importers who handle 
cranberries and cranberry products produced in the United States and 
outside the United States. This rule establishes reporting and 
recordkeeping requirements.
    USDA has not identified any relevant Federal rules that duplicate, 
overlap or conflict with this rule. While the data collection and 
reporting requirements are similar to those reporting requirements 
regulated handlers must comply with under the cranberry marketing 
order, this action is necessary to assist the Committee in its volume 
regulation recommendations.
    A proposed rule concerning this action was published in the Federal 
Register on April 12, 2004 (69 FR 19118). Copies of the rule were 
mailed or sent via facsimile to all Committee members and handlers. 
Finally, the rule was made available through the Internet by the Office 
of the Federal Register. A comment period ending June 11, 2004, was 
provided to allow interested persons to respond to the proposal.
    Seven comments were received during the comment period in response 
to the proposal. Comments were submitted by the Committee, two 
cranberry grower associations, a cranberry handler and a juice products 
association. The growers' associations and the Committee believe it is 
imperative that the Committee have the ability to collect cranberry 
data from all cranberry handlers and importers. These commenters 
contend that the Committee cannot have a concise measurement of 
industry inventory supplies unless it also obtains this information 
from second-handlers, processors, importers, and brokers. These 
commenters also stated that in developing its annual marketing policy, 
the Committee must estimate the carryover (inventory) of frozen 
cranberries and other cranberry products. Presently, the Committee can 
only obtain this data from first handlers with processing facilities 
within the production area. This action will allow the Committee to 
have more accurate information in formulating its marketing policy that 
is used in the decision making process to regulate the cranberry crop, 
if necessary.
    The cranberry handler and the juice products association, in their 
respective comments, urged the Committee to adopt standard factors for 
converting processed products to raw fruit. According to the 
commenters, this would ensure consistent reporting and prevent the 
release of confidential yield data. Under the expanded data collection 
authority, all entities reporting to the Committee would use a similar 
form to report cranberry inventories as those used by handlers 
regulated under the Federal marketing order. For example, all entities, 
(under both the expanded data collection and the order), would report 
on the number of barrels of cranberries, both foreign and domestic, 
acquired, received, transferred or sold within or outside their 
respective districts or sold to the Government. No information on 
specific types of products is requested (i.e. number of gallons of 
juice or cases of cranberry sauce) that could identify any entities' 
business practices. As previously mentioned, the information collected 
by the Committee, will be complied in aggregate form and used when it 
discusses supplies, inventories, and market strategies during its 
marketing policy meeting.
    Both commenters suggested that conversion factors be incorporated 
into the reporting requirements. The Committee is aware of the 
generally accepted conversion factors within the industry. However, 
there is no table or chart of standard factors for converting processed 
products to raw fruit equivalents maintained or published by the 
Committee. The development of a table or chart of standard conversion 
factors would eliminate any guess work by the Committee when converting 
processed products to raw fruit equivalents. The development of this 
conversion table/chart has no relevance to the release of proprietary 
information. Further, the Committee is prohibited under the data 
collection provisions from disclosing any proprietary information to 
any person other than the Secretary or her designee(s). Civil and 
criminal charges can be levied for failing to comply with this 
provision. We have requested the Committee to meet following the 
adoption of this rule to discuss this matter and to recommend 
conversion factors to be implemented by USDA. The Committee could use 
the suggested conversion factors as a starting point for its 
discussions. Such factors would be implemented following notice and 
comment rulemaking procedures. USDA recognizes the importance of 
consistent reporting.
    Two comments opposed to the proposed data collection, reporting, 
and recordkeeping requirements were received from an individual, and an 
importer of cranberry products.
    One commenter does not want a cranberry committee to be established 
by the government since it would be a burden on the taxpayers. However, 
the Committee is already established and funded by assessments levied 
on handlers covered under the Federal cranberry marketing order. 
Taxpayer money is not used to pay Committee expenses.
    This commenter further stated that importers should not have to 
file forms quarterly, but every five years. The submission of reports 
every five years would not help the Committee obtain complete data. 
Cranberries are produced every year and the Committee needs this 
information annually to make sound recommendations to USDA. Other 
statements made by this commenter were not germane to the proposed rule 
and are not addressed in this final rule.
    The cranberry product importer opposes the proposal for five 
reasons: (1) It violates the spirit of free trade and the North 
American Free Trade Agreement (NAFTA); (2) it proposes the release of 
proprietary information; (3) it duplicates efforts and information 
already available; (4) there are no benefits for non-members of the 
Committee; and (5) the real issue is surplus versus new markets, not 
obtaining more information.
    The commenter believes that this action violates free trade and the 
NAFTA agreement. USDA believes that such action would promote free 
trade and the initiatives under NAFTA by providing access to more 
complete and accurate cranberry inventory for use in conducting 
business in the domestic and world markets.
    The commenter also asserts that this action will release 
proprietary information by divulging information about their product 
sources and acquisitions, inventory levels and sales, and open their 
premises to authorized agents of the Committee. The requested 
information will be collected by the Committee under the authority of 
the Agricultural Marketing Agreement Act of 1937 (Act). The Act does 
not allow proprietary and confidential business information to be 
released. Information distributed by the Committee would be released in 
aggregate numbers to protect the confidentiality of the firms reporting 
information to the Committee. The information will be used for the 
purpose of deciding whether volume regulation would be necessary for a 
particular cranberry crop.
    This commenter further believes that this action is duplicative in 
nature since the U.S. Bureau of Customs and Border Protection Service 
(Customs) and the U.S. Food and Drug Administration

[[Page 1999]]

(FDA) already has this information. The Committee has had difficulty 
obtaining information on cranberries and cranberry products regulated 
under the order from Customs and FDA. The cranberry marketing order 
regulates the Vaccinium macrocarpon and Vaccinium oxycoccus cranberry 
species. However, there are over 15 different cranberry varieties 
within the two cranberry species. Customs Service and FDA do not 
separate the varietal types in their reports, they combine all of the 
varieties into one category. Therefore, this action requesting 
cranberry information and data from handlers, producer-handlers, 
processors, brokers, and importers is not duplicative in nature, and is 
needed by the Committee to further program objectives.
    This commenter further believes that since it does not have members 
on the Committee, it would receive no benefits from this action and 
that the Committee should be developing programs to market more 
cranberries to absorb the excess production. The Committee operates 
generic domestic and export promotional programs that are designed to 
increase the demand and sales of cranberries that benefit the cranberry 
industry overall. Cranberry exporters and importers benefit from such 
activities whether or not they are Committee members. Moreover, all 
meetings of the Committee are public meetings and all interested 
persons can attend to express the views. Information on meeting times 
and locations can be obtained from the Committee and USDA. The export 
promotion program has been in operation for several years and focuses 
on several export markets. The domestic program is in the early 
development stages. The Committee recognizes that the industry needs to 
develop new markets and to expand existing markets for its increasing 
production. Marketing promotion programs provide a means to accomplish 
these objectives.
    Accordingly, no changes will be made to the rule based on the 
comments 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.
    This action requires a collection of information. These information 
collection requirements are discussed in the following section.

Paperwork Reduction Act

    In compliance with Office of Management and Budget (OMB) 
regulations (5 CFR part 1320) which implement the Paperwork Reduction 
Act of 1995 (Pub. L. 104-13), the information collection and 
recordkeeping requirements under the data collection, reporting, and 
recordkeeping requirements applicable to cranberries not subject to the 
cranberry marketing order have been previously approved by OMB and 
assigned OMB number 0581-0222.
    Data collection, reporting and recordkeeping burdens are necessary 
for developing statistical data for maintenance of this program. The 
forms require information that is readily available from handlers, 
producer-handlers, processors, brokers and importers records which can 
be provided without data processing equipment or trained statistical 
staff.
    It is estimated that it will take each person or entity 
approximately 20 minutes to complete each form. One of these forms, 
(Importer Cranberry Inventory Report Form; Form ICIR A-D) directs 
importers and brokers to indicate the name, address, variety acquired, 
amount sold to and received by brokers, processors, and handlers, and 
the beginning and ending inventories of cranberries held by the 
importer. The second form, (Handler/Processor Cranberry Inventory 
Report Form; Form HPCIR A-D) directs handlers, producer-handlers, and 
processors to indicate the name, address, variety acquired, domestic/
foreign sales, acquisitions, and beginning and ending inventories. The 
forms will be required to be filed four times a year.
    These forms were designed to capture the type of information the 
Committee needs on inventory and sales data for the entire cranberry 
industry. If all of the entities complete each form, it is estimated 
that the total annual burden on the respondents would be 1 hour and 20 
minutes or a total of 174.66 hours. The regulations also require the 
retention of information for a total of three years.
    For the purposes of checking and verifying reports filed under the 
regulations hereinafter, provisions are included which allows USDA or 
the Committee, through duly authorized agents, to have access to any 
premises where cranberries and cranberry products may be held. 
Authorized agents, at any time during regular business hours, will be 
permitted to inspect any cranberries and cranberry products held and 
any and all records with respect to the acquisition, holding or 
disposition of any cranberries and cranberry products which may be held 
or which may have been disposed of by that entity. All reports and 
records furnished or submitted by handlers, producer-handlers, 
processors, brokers, and importers to the Committee which include data 
or information constituting a trade secret or disclosing the trade 
position or financial condition, or business operations from whom 
received, will be in the custody and control of the authorized agents 
of the Committee, who will disclose such information to no person other 
than USDA.
    Failure on the part of handlers, producer-handlers, processors, 
brokers, and importers to comply with the data collection and 
recordkeeping requirements could lead to enforcement action, including 
the levying of fines against the violating person or entity. Any 
violation of this regulation is subject to a penalty levied under 
8c(14) of the Act. False representation to an agency of the United 
States in any matter, knowing it to be false, is a violation of 18 
U.S.C. 1001 which provides for a fine or imprisonment or both.
    The reporting requirements are expected to help the entire 
cranberry industry. While this rule increases reporting and 
recordkeeping requirements on affected entities, the benefits of this 
rule, however, could be substantial. By implementing this rule, the 
Committee will have access to more complete acquisition, sales, and 
inventory data and be able to make recommendations based on more 
detailed information. This, in turn, could lead to more effective 
marketing decisions and higher returns for producers and non-regulated 
entities.
    After consideration of all relevant matter presented, including the 
comments received and other available information, it is hereby found 
that this rule as hereinafter set forth, will tend to effectuate the 
declared policy of the Act.

List of Subjects in 7 CFR Part 926

    Cranberries and cranberry products, Reporting and recordkeeping 
requirements.

0
For the reasons set forth in the preamble, 7 CFR Part 926 is added to 
read as follows:

PART 926--DATA COLLECTION, REPORTING AND RECORDKEEPING REQUIREMENTS 
APPLICABLE TO CRANBERRIES NOT SUBJECT TO THE CRANBERRY MARKETING 
ORDER

Sec.
926.1 Secretary.

[[Page 2000]]

926.2 Act.
926.3 Person.
926.4 Cranberries.
926.5 Fiscal period.
926.6 Committee.
926.7 Producer.
926.8 Handler.
926.9 Handle.
926.10 Acquire.
926.11 Processed cranberries or cranberry products.
926.12 Producer-handler.
926.13 Processor.
926.14 Broker.
926.15 Importer.
926.16 Reports.
926.17 Reporting requirements.
926.18 Records.
926.19 Confidential information.
926.20 Verification of reports and records.
926.21 Suspension or termination.

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


Sec.  926.1  Secretary.

    Secretary means the Secretary of Agriculture of the United States 
or any officer or employee of the United States Department of 
Agriculture who is, or who may hereafter be authorized to act in her/
his stead.


Sec.  926.2  Act.

    Act means Public Act No. 10, 73d Congress [May 12, 1933], as 
amended, and as reenacted and amended by the Agricultural Marketing 
Agreement Act of 1937, as amended (Secs. 1-19, 48 Stat. 31, as amended; 
7 U.S.C. 601 et seq.).


Sec.  926.3  Person.

    Person means an individual, partnership, corporation, association, 
or any other business unit.


Sec.  926.4  Cranberries.

    Cranberries means all varieties of the fruit Vaccinium Macrocarpon 
and Vaccinium oxycoccus, known as cranberries.


Sec.  926.5  Fiscal period.

    Fiscal period is synonymous with fiscal year and crop year and 
means the 12-month period beginning September 1 and ending August 31 of 
the following year.


Sec.  926.6  Committee.

    Committee means the Cranberry Marketing Committee, which is hereby 
authorized by USDA to collect information on sales, acquisitions, and 
inventories of cranberries and cranberry products under this part. The 
Committee is established pursuant to the Federal cranberry marketing 
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 (7 CFR part 929).


Sec.  926.7  Producer.

    Producer is synonymous with grower and means any person who 
produces cranberries for market and has a proprietary interest therein.


Sec.  926.8  Handler.

    Handler means any person who handles cranberries and is not subject 
to the reporting requirements of Part 929.


Sec.  926.9  Handle.

    Handle means to can, freeze, dehydrate, acquire, sell, consign, 
deliver, or transport (except as a common or contract carrier of 
cranberries owned by another person) fresh or processed cranberries 
produced within or outside the United States or in any other way to 
place fresh or processed cranberries into the current of commerce 
within or outside the United States. This term includes all initial and 
subsequent handling of cranberries or processed cranberries up to, but 
not including, the retail level.


Sec.  926.10  Acquire.

    Acquire means to obtain cranberries by any means whatsoever for the 
purpose of handling cranberries.


Sec.  926.11  Processed cranberries or cranberry products.

    Processed cranberries or cranberry products means cranberries which 
have been converted from fresh cranberries into canned, frozen, or 
dehydrated cranberries or other cranberry products by any commercial 
process.


Sec.  926.12  Producer-handler.

    Producer-handler means any person who is a producer of cranberries 
for market and handles such cranberries.


Sec.  926.13  Processor.

    Processor means any person who receives or acquires fresh or frozen 
cranberries or cranberries in the form of concentrate from handlers, 
producer-handlers, importers, brokers or other processors and uses such 
cranberries or concentrate, with or without other ingredients, in the 
production of a product for market.


Sec.  926.14  Broker.

    Broker means any person who acts as an agent of the buyer or seller 
and negotiates the sale or purchase of cranberries or cranberry 
products.


Sec.  926.15  Importer.

    Importer means any person who causes cranberries or cranberry 
products produced outside the United States to be brought into the 
United States with the intent of entering the cranberries or cranberry 
products into the current of commerce.


Sec.  926.16  Reports.

    (a) Each handler, producer-handler, processor, broker, and importer 
engaged in handling or importing cranberries or cranberry products who 
is not subject to the reporting requirements of the Federal cranberry 
marketing order, (7 CFR Part 926) shall, in accordance with Sec.  
926.17, file promptly with the Committee reports of sales, 
acquisitions, and inventory information on fresh cranberries and 
cranberry products using forms supplied by the Committee.
    (b) Upon the request of the Committee, with the approval of the 
Secretary, each handler, producer-handler, processor, broker, and 
importer engaged in handling or importing cranberries or cranberry 
products who is not subject to the Federal cranberry marketing order (7 
CFR Part 926) shall furnish to the Committee such other information 
with respect to fresh cranberries and cranberry products acquired and 
disposed of by such entity as may be necessary to meet the objectives 
of the Act.


Sec.  926.17  Reporting requirements.

    Handlers, producer-handlers, importers, processors, and brokers not 
subject to the Federal cranberry marketing order (7 CFR Part 926) shall 
be required to submit four times annually, for each fiscal period 
reports regarding sales, acquisitions, movement for further processing, 
and dispositions of fresh cranberries and cranberry products using 
forms supplied by the Committee. An Importer Cranberry Inventory Report 
Form shall be required to be completed by importers and brokers. This 
report shall indicate the name, address, variety acquired, the amount 
sold to and received by brokers, processors, and handlers, and the 
beginning and ending inventories of cranberries held by the importer 
for each applicable fiscal period. A Handler/Processor Cranberry 
Inventory Report Form shall be completed by handlers, producer-
handlers, and processors and shall indicate the name, address, variety 
acquired, domestic/foreign sales, acquisitions, and beginning and 
ending inventories.


Sec.  926.18  Records.

    Each handler, producer-handler, processor, broker, and importer 
shall maintain such records of all fresh cranberries and cranberry 
products acquired, imported, handled, withheld from handling, and 
otherwise disposed of during the fiscal period to

[[Page 2001]]

substantiate the required reports. All such records shall be maintained 
for not less than three years after the termination of the fiscal year 
in which the transactions occurred or for such lesser period as the 
Committee may direct.


Sec.  926.19  Confidential information.

    All reports and records furnished or submitted pursuant to this 
part which include data or information constituting a trade secret or 
disclosing the trade position or financial condition, or business 
operations from whom received, shall be in the custody and control of 
the authorized agents of the Committee, who shall disclose such 
information to no person other than the Secretary.


Sec.  926.20  Verification of reports and records.

    For the purpose of assuring compliance and checking and verifying 
records and reports required to be filed by handlers, producer-
handlers, processors, brokers, and importers, USDA or the Committee, 
through its duly authorized agents, shall have access to any premises 
where applicable records are maintained, where cranberries and 
cranberry products are received, acquired, stored, handled, and 
otherwise disposed of and, at any time during reasonable business 
hours, shall be permitted to inspect such handler, producer-handler, 
processor, broker, and importer premises, and any and all records of 
such handlers, producer-handlers, processors, brokers, and importers. 
The Committee's authorized agents shall be the manager of the Committee 
and other staff under the supervision of the Committee manager.


Sec.  926.21  Suspension or termination.

    The provisions of this part shall be suspended or terminated 
whenever there is no longer a Federal cranberry marketing order in 
effect.

    Dated: January 5, 2005.
Kenneth C. Clayton,
Associate Administrator, Agricultural Marketing Service.
[FR Doc. 05-582 Filed 1-11-05; 8:45 am]
BILLING CODE 3410-02-P