[Federal Register Volume 83, Number 32 (Thursday, February 15, 2018)]
[Proposed Rules]
[Pages 6800-6806]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-02441]


 ========================================================================
 Proposed Rules
                                                 Federal Register
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 This section of the FEDERAL REGISTER contains notices to the public of 
 the proposed issuance of rules and regulations. The purpose of these 
 notices is to give interested persons an opportunity to participate in 
 the rule making prior to the adoption of the final rules.
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 

  Federal Register / Vol. 83, No. 32 / Thursday, February 15, 2018 / 
Proposed Rules  

[[Page 6800]]



DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 929

[Doc. No. AMS-SC-17-0066; SC17-929-3 PR]


Cranberries Grown in States of Massachusetts, et al.; 
Establishment of Handler Diversion and Reporting Requirements and New 
Information Collection

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Proposed rule.

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SUMMARY: This proposed rule invites comments on the establishment of 
handler diversion and reporting requirements as recommended by the 
Cranberry Marketing Committee (Committee). This proposal would 
establish the procedures handlers would use to divert fruit through 
disposal or into noncompetitive outlets. The reporting requirements 
would support the diversion procedures by providing the necessary 
documentation to help ensure compliance when a volume regulation is 
established. This proposal also announces the Agricultural Marketing 
Service's (AMS) intention to request approval from the Office of 
Management and Budget (OMB) of a new information collection.

DATES: Comments must be received by April 16, 2018. Pursuant to the 
Paperwork Reduction Act, comments on the information collection burden 
must be received by April 16, 2018.

ADDRESSES: Interested persons are invited to submit written comments 
concerning this proposal. Comments must be sent to the Docket Clerk, 
Marketing Order and Agreement Division, Specialty Crops Program, AMS, 
USDA, 1400 Independence Avenue SW, STOP 0237, Washington, DC 20250-
0237; Fax: (202) 720-8938; or internet: http://www.regulations.gov. All 
comments should reference the document 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, or can be viewed at: http://www.regulations.gov. All 
comments submitted in response to this proposal will be included in the 
record and will be made available to the public. Please be advised that 
the identity of the individuals or entities submitting the comments 
will be made public on the internet at the address provided above.

FOR FURTHER INFORMATION CONTACT: Doris Jamieson, Marketing Specialist, 
or Christian D. Nissen, Regional Director, Southeast Marketing Field 
Office, Marketing Order and Agreement Division, Specialty Crops 
Program, AMS, USDA; Telephone: (863) 324-3375, Fax: (863) 291-8614, or 
Email: [email protected] or [email protected].
    Small businesses may request information on complying with this 
regulation by contacting Richard Lower, Marketing Order and Agreement 
Division, Specialty Crops Program, AMS, USDA, 1400 Independence Avenue 
SW, STOP 0237, Washington, DC 20250-0237; Telephone: (202) 720-2491, 
Fax: (202) 720-8938, or Email: [email protected].

SUPPLEMENTARY INFORMATION: This proposed rule, pursuant to 5 U.S.C. 
553, proposes an amendment to regulations used to carry out a marketing 
order as defined in 7 CFR 900.2(j). This proposal is issued under 
Marketing Agreement and 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 Committee locally 
administers the Order and is comprised of growers and handlers of 
cranberries operating within the production area, and a public member.
    The Department of Agriculture (USDA) is issuing this proposed rule 
in conformance with Executive Orders 13563 and 13175. This proposed 
rule falls within a category of regulatory actions that OMB exempted 
from Executive Order 12866 review. Additionally, because this proposed 
rule does not meet the definition of a significant regulatory action, 
it does not trigger the requirements contained in Executive Order 
13771. See OMB's Memorandum titled ``Interim Guidance Implementing 
Section 2 of the Executive Order of January 30, 2017, titled `Reducing 
Regulation and Controlling Regulatory Costs'[thinsp]'' (February 2, 
2017).
    This proposal has been reviewed under Executive Order 12988, Civil 
Justice Reform. This proposed rule 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, any handler subject to an order may file with USDA 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, 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 proposal would establish handler diversion and reporting 
requirements under the Order. This proposal would establish procedures 
handlers would use to divert fruit through disposal or into 
noncompetitive outlets. The reporting requirements would support the 
diversion procedures by providing the necessary documentation to help 
ensure compliance when a volume regulation is established. This 
proposed rule was recommended by the Committee at its August 31, 2017, 
September 15, 2017, and October 13, 2017, meetings.
    The Order provides for the use of volume regulation to stabilize 
prices and improve grower returns during periods of oversupply. Section 
929.51(a)(2) specifies that a handler withholding program must be 
recommended by the Committee no later than August 31 and that such 
recommendation shall include the free and restricted percentages for 
the crop

[[Page 6801]]

year. On August 31, 2017, the Committee met and recommended free and 
restricted percentages of 85 percent free and 15 percent restricted. 
Handler diversion is one method that handlers can utilize to meet 
restricted percentage requirements.
    Section 929.54 provides, in part, that whenever the Secretary of 
Agriculture (Secretary) has fixed the free and restricted percentages 
for any fiscal period, each handler shall withhold from handling a 
portion of the cranberries acquired during such period. This section 
also provides the authority for the Committee to establish, with the 
approval of the Secretary, rules and regulations necessary to 
administer this section. Section 929.56 provides special provisions 
relating to withheld (restricted) cranberries, and Sec.  929.57 
provides authority for the Committee to establish, with the approval of 
the Secretary, outlets for withheld cranberries which are 
noncompetitive with outlets for unrestricted (free percentage) 
cranberries.
    Section 929.62 provides, in part, authority to require handlers to 
submit reports of cranberries acquired, held in inventory, quantity 
handled, total cranberries withheld from handling, the portion of such 
withheld cranberries on hand, and the quantity and manner of 
disposition of any such withheld cranberries diverted. Section 
929.62(f) further provides authority for the Committee, with the 
approval of the Secretary, to collect other reports and information 
from handlers needed to perform its duties.
    This proposal would use these authorities to establish new 
Sec. Sec.  929.157 and 929.162. Section 929.157 would establish the 
procedures to be used for handler diversion when free and restricted 
percentages are instituted. Section 929.162 would require handlers of 
cranberries, during years when free and restricted percentages are 
applied, to report to the Committee diversion plans and year-end 
reports, information on cranberries diverted and cranberries shipped to 
noncompetitive outlets, and other information to verify compliance with 
the program, using six specific Committee forms. Detailed information 
on the reporting burden that would be created by these new forms is 
discussed later in this document.
    The Committee recommended establishing free and restricted 
percentages under a handler withholding volume regulation for the 2017-
18 season in response to historically high inventory levels for 
cranberries. As this is the first time the Committee has used this 
volume regulation provision under the Order, it recognized the need to 
establish procedures outlining the diversion requirements for 
restricted fruit.
    Free percentage cranberries can be used to supply any available 
market, including juice, sweetened dried cranberries, sauce, and frozen 
cranberries. Restricted percentage cranberries can be diverted through 
disposal or utilized in markets that are noncompetitive with free 
cranberries. Possible outlets for restricted cranberries include, in 
part, for fresh export, except to Canada; charity; research and 
development projects; and any nonhuman food use. Handlers also have the 
option to divert processed products in lieu of fresh fruit to meet up 
to 50 percent of their restricted obligation.
    At the 2017 meetings in August, September, and October, the 
Committee discussed the handler diversion procedures and the associated 
reporting requirements that would be necessary to help ensure 
compliance with a free and restricted percentage volume regulation. As 
a result, the Committee developed and approved six specific forms and 
related procedures to be used during seasons when free and restricted 
percentages are established for volume regulation.
    Committee members discussed the need for Committee staff to know 
how handlers plan to meet their restricted percentage obligation and 
if, at the end of the season, they met their diversion requirement. As 
a result, the Committee developed two specific forms to be added to the 
reporting requirements under the Order.
    With the first form, the Handler Withholding Report (CMC-JUN), 
handlers would provide information on how they plan to meet their 
restricted percentage obligation. The form would be submitted to the 
Committee by June 1 during years with established free and restricted 
percentages and would require the following information: The name and 
address of the handler, the amount of cranberries to be acquired, the 
amount of cranberries to be diverted by disposal, the amount of 
cranberries to be diverted to noncompetitive outlets, and the types of 
cranberry products to be withheld. The Committee would use this 
information to estimate the amount of fruit that would be taken off the 
market, the proposed disposition of the fruit, and as a starting point 
for tracking handler compliance.
    The second form, the Final Handler Withholding Report (CMC-AUG), 
would be submitted by the end of the crop year. The report would 
require the same information as the Handler Withholding Report but 
would provide the Committee with the actual year-end seasonal totals. 
This form would be due by August 31. The final report would be used to 
verify that handlers met their restricted percentage obligation.
    Handlers would have several diversion options available to meet 
their restricted percentage obligation. One method of diversion 
available to handlers would be the disposal of fresh cranberries or 
cranberry products. In its discussions, Committee members expressed 
concern regarding verifying the accuracy of the amount of fruit or 
processed product diverted using this method. The Committee recommended 
that all disposals should take place under the supervision of a non-
industry-related third party who would review the handler's disposal 
documentation, witness the disposal whenever possible, and certify as 
to the completion of the disposal process. The Committee initially 
agreed to hire two inspectors to supervise and verify handler 
compliance. However, due to the size of the production area, the 
Committee hired four inspectors, one from each of the primary growing 
regions, who would perform these tasks. The inspection and verification 
costs would be paid by the handler.
    To facilitate this process, the Committee recommended establishing 
another form. This form, the Handler Disposal Certification (CMC-DISP), 
would be the primary form used to initiate, track, and certify this 
method of diversion during years in which a free and restricted 
percentage volume regulation has been established. The form would be 
used to notify the Committee of the handler's intent to dispose of 
cranberries or cranberry products. Information required on the form 
would include the handler's name and address; the amount of fruit to be 
diverted; the type of cranberry product to be diverted; the amount of 
processed fruit diverted, if any; and the lot identification 
information.
    Upon receipt of the form, the Committee office would notify the 
inspector in the handler's growing region. The inspector would contact 
the handler to schedule a date for the disposal to take place, usually 
within a week of receipt of the notification. The inspector would meet 
with the handler on that date to verify the documentation provided and, 
when possible, witness the disposal.
    The Committee recognized that, due to scheduling conflicts, the 
inspector may not be available to visually witness each disposal of 
restricted cranberries. Therefore, the Committee agreed that, should 
the inspector not be available to witness the diversion within seven

[[Page 6802]]

days, the handler may proceed with the disposal. The inspector would 
then verify and complete the certification upon the inspector's next 
visit to the handler's facility. If the cranberries or cranberry 
product were disposed of at a landfill, through composting, 
incineration, at a wastewater treatment facility, or any other site, 
the inspector may request receipts, visual proof, or any other 
additional information needed to support the disposal as reported on 
the form. Once the verification process is completed, the inspector 
would sign the certification section of the form, and return it to the 
Committee.
    Another method of diversion available would be to divert 
cranberries or cranberry products to noncompetitive outlets. Section 
929.57 specifies that cranberries withheld from handling may be 
disposed of only through diversion to such outlets as the Committee, 
with the approval of the Secretary, finds are noncompetitive to outlets 
for unrestricted (free percentage) cranberries. The Committee discussed 
various outlets and recommended the following: Foreign countries, 
except Canada; charitable institutions; any nonhuman food use; and 
research and development projects approved by the Committee dealing 
with the development of foreign and domestic markets, including but not 
limited to dehydration, radiation, freeze drying, or freezing of 
cranberries. The Committee further recommended that cranberries may not 
be converted into canned, frozen, or dehydrated cranberries or other 
cranberry products by any commercial process when being diverted to 
foreign countries. The specific outlets are being considered under a 
separate rulemaking action.
    AMS submitted and received OMB's approval on the five initial 
forms. Handlers would complete the forms and submit them to the 
Committee for purposes of tracking compliance with the proposed handler 
withholding requirement. OMB approved the forms on October 16, 2017, 
and assigned them OMB No. 0581-0304. Upon full completion of the forms-
approval process, AMS will seek to merge the five forms into the OMB-
approved 0581-0189 Fruit Crops containing other forms related to the 
Federal marketing order for cranberries.
    Two specific reporting requirements relating to the diversion of 
fruit to noncompetitive outlets would be added to part 929: A Handler 
Application for Outlets for Withheld Fruit (CMC-OUT) and a Third-Party 
Confirmation of Receipt of Withheld Fruit (CMC-CONF). Should a handler 
elect to divert cranberries or cranberry products to noncompetitive 
outlets, the handler must first request Committee approval of the 
outlet or research project using the Handler Application for Outlets 
for Withheld Fruit prior to each disposal activity of this type. 
Information requested on the form would include, among other things, 
the handler's name and address, information identifying the 
noncompetitive outlet, the amount and type of cranberry products to be 
diverted, and how the cranberries would be utilized. The Committee 
would review the information and approve or disapprove the diversion 
request.
    If the request is approved and the product is delivered, the 
receiving outlet would need to acknowledge receipt of the product by 
completing the Third-Party Confirmation of Receipt of Withheld Fruit 
form, and the handler would then return the completed form to the 
Committee.
    The two above-described reporting requirements would help track the 
disposition of withheld cranberries in noncompetitive outlets and would 
facilitate the compliance process under the recommended handler 
withholding.
    The last form approved by the Committee would provide handlers a 
method for appealing any decision made by the Committee relating to the 
diversion process. Should a handler disagree with a Committee decision, 
such as denying the request for approval of a noncompetitive outlet, or 
a determination that diversion could not be verified, the handler could 
appeal the decision by submitting a Handler Withholding Appeal form 
(CMC-APPL). The handler making the appeal would be required to submit 
the form within 30 days of receiving the determination from the 
Committee. This form would include information about why the handler is 
making the appeal and would provide additional information to support 
the appeal. The appeal request would be reviewed by an Appeals 
Subcommittee (Subcommittee) for re-consideration. The Subcommittee 
would consist of two independent growers, two members from the major 
cooperative, and one public member. The handler would be notified of 
the Subcommittee's determination within 30 days. If the appeal is 
denied by the Subcommittee, the handler would have the option of 
appealing the decision to the Secretary within 15 days after the 
notification of the Subcommittee's findings.
    In order to enable the Committee to inform the industry of the 
information needed for handlers to manage their inventories in a way 
that complies with the industry-supported handler withholding program, 
the five initial forms were previously submitted to OMB for approval. 
These five forms (CMC-JUN, CMC-DISP, CMC-OUT, CMC-CONF and CMC-APPL) 
were approved by OMB on October 16, 2017, for use for a six-month 
period, beginning the date of approval. This proposed rule is necessary 
for the industry to use the forms beyond the six-month period.
    Establishing these handler diversion and reporting requirements 
would facilitate the implementation of, and ensure compliance with, 
free and restricted percentages when recommended by the Committee.
    The Committee also recommended establishing free and restricted 
percentages under handler withholding for the 2017-18 crop year, as 
well as specifying the noncompetitive outlets available for diversion. 
These recommendations are being considered under a separate action.

Initial 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 action on small entities. Accordingly, AMS has prepared this 
initial regulatory flexibility analysis.
    The purpose of the RFA is to fit regulatory actions to the scale of 
businesses 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.
    There are approximately 1,100 cranberry growers in the regulated 
area and approximately 65 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 $750,000, and small agricultural service firms are defined as 
those whose annual receipts are less than $7,500,000 (13 CFR 121.201).
    According to industry and Committee data, the average grower price 
for cranberries during the 2016-17 crop year was $23.50 per barrel, and 
total sales were around 9.5 million barrels. The value for cranberries 
that crop year totaled $223,250,000 ($23.50 per barrel multiplied by 
9.5 million barrels). Taking the total value of production for 
cranberries and dividing it by the total number of cranberry growers 
(1,100) provides an average return per grower of

[[Page 6803]]

$202,955. Based on USDA's Market News reports, the average free on 
board (f.o.b.) price for cranberries was around $30.00 per barrel. 
Multiplying the f.o.b. price by total utilization of 9.5 million 
barrels results in an estimated handler-level cranberry value of $285 
million. Dividing this figure by the number of handlers (65) yields an 
estimated average annual handler receipt of $4.3 million, which is 
below the SBA threshold for small agricultural service firms. 
Therefore, the majority of growers and handlers of cranberries may be 
classified as small entities.
    This proposed rule would establish handler diversion and reporting 
requirements under the Order. This proposed rule would establish 
procedures handlers would use to divert fruit through disposal or into 
noncompetitive outlets. The reporting requirements would support the 
diversion procedures by providing the necessary documentation to help 
ensure compliance when a volume regulation is established. This rule 
would establish new Sec. Sec.  929.157 and 929.162. The authority for 
this action is provided for in Sec. Sec.  929.54, 929.56, 929.57, and 
929.62.
    These actions could result in some additional costs to the 
industry. Specifically, handlers would incur some additional costs as a 
result of inspector verification and certification of the diversion 
process. In addition, requiring reports of cranberries acquired, 
handled, and withheld would impose an increase in the reporting burden 
on all cranberry handlers. However, the benefits are expected to 
outweigh the costs and increase in reporting burden. The provisions 
considered in this action would help facilitate the implementation of 
any recommended handler withholding volume regulation and help ensure 
compliance with the recommended regulation. Consequently, these changes 
would help provide important guidance during times when market 
conditions would support the need for establishing volume regulation.
    The impact of this rule would be beneficial to growers and 
handlers. Establishing diversion procedures would benefit the entire 
industry by ensuring handler diversion is conducted consistently and 
accurately by all handlers, which would also help ensure compliance 
with the handler withholding program. Authorizing various diversion 
outlets means handlers would not be required to divert cranberries only 
through destruction. Instead, fruit could be utilized in noncompetitive 
outlets, such as for charitable purposes. The benefits of this rule are 
expected to be equally available to all cranberry growers and handlers, 
regardless of their size, and are greater than any associated costs.
    The Committee discussed other alternatives to this proposal, 
including using different methods of ensuring accurate diversion of 
restricted fruit. One method considered was allowing handlers to self-
report their diversion of restricted fruit without a formal 
verification process. However, the Committee deemed this insufficient 
verification to ensure compliance with the program. Members were 
concerned that fruit could be re-routed to a different handling 
facility for processing, and without established verification 
procedures, the industry would not have confidence that restricted 
fruit was being properly diverted. The Committee also considered the 
value and importance of each of the forms and whether all were 
required. However, the Committee agreed each of the recommended forms 
would provide important information for the industry and for 
administering the Order. Therefore, these alternatives were rejected.
    This proposal would establish six new reporting requirements and 
six new Committee forms. Therefore, this proposed rule would impose an 
increase in the reporting burden for all handlers, which is discussed 
in the Paperwork Reduction Act section of this document.
    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. USDA has not 
identified any relevant Federal rules that duplicate, overlap, or 
conflict with this rule.
    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.
    Further, the Committee's meetings were widely publicized throughout 
the cranberry industry, and all interested persons were invited to 
attend the meetings and participate in Committee deliberations on all 
issues. Additionally, the Committee's meetings held August 31, 
September 15, and October 13, 2017, were public meetings, and all 
entities, both large and small, were able to express views on this 
issue. Finally, interested persons are invited to submit comments on 
this proposed rule, including the regulatory and information collection 
impacts of this action on small businesses.
    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/rules-regulations/moa/small-businesses. 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 60-day comment period is provided to allow interested persons to 
respond to this proposal. All written comments timely received will be 
considered before a final determination is made on this matter.

Paperwork Reduction Act

    In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 
chapter 35), this notice announces AMS's intent to request approval 
from OMB for a new information collection under OMB No. 0581--NEW. The 
five currently approved forms in 0581-0304 and one additional form will 
be merged with the forms currently approved under OMB No. 0581-0189, 
Fruit Crops.
    Title: 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; Marketing Order 
No. 929.
    OMB Number: 0581--NEW.
    Type of Request: New collection.
    Abstract: The information requirements in this request are 
essential to carry out the intent of the Act to provide the respondents 
the type of service they request, and to administer the Cranberry 
Marketing Order Program. USDA is responsible for overseeing 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. The Order is effective under the Act.
    On September 15, 2017, the Committee unanimously recommended that 
cranberry handlers subject to the Order provide the Committee with a 
report indicating the anticipated total quantity of cranberries 
acquired by the handler, the amount withheld from handling, and the 
disposition of such withheld cranberries during the crop year. This 
form, titled ``Handler Withholding Report (CMC-JUN),'' would be 
submitted directly to the Committee by handlers by June 1 in crop years 
when a handler withholding regulation has been established. This report 
would give the Committee background data on how each handler plans to 
meet the requirements of the handler withholding volume regulation.

[[Page 6804]]

    The Committee also recommended that cranberry handlers submit a 
final year-end report indicating the actual total quantity of 
cranberries acquired by the handler, the amount withheld from handling, 
and the disposition of such withheld cranberries during the crop year. 
This form, titled ``Final Handler Withholding Report (CMC-AUG),'' would 
be submitted directly to the Committee by handlers by August 31. This 
report would give the Committee actual data on how each handler met the 
requirements of the handler withholding volume regulation.
    The Committee also recommended that handlers subject to the Order 
submit a report certifying whenever a disposal of withheld cranberries 
is to be made. This report would contain information regarding the 
volume, the form of disposed cranberries, and information on the 
container type. This form, titled ``Handler Disposal Certification 
(CMC-DISP),'' would be submitted directly to the Committee by handlers 
preceding each disposal activity. This information collection would 
provide the Committee with data regarding the amount of cranberries 
diverted and the information needed to help track handler compliance 
with the recommended handler withholding requirements.
    The Committee also recommended that handlers provide the Committee 
with a record of withheld cranberries disposed of in non-commercial 
outlets. This form, titled ``Handler Application for Outlets for 
Withheld Fruit (CMC-OUT),'' would be submitted directly to the 
Committee by handlers to provide information regarding the type, form, 
and volume of cranberries disposed of in noncompetitive outlets. 
Handlers would submit this form prior to each disposal activity of this 
type to provide the Committee with the opportunity to review and 
approve the requested outlet. This information collection would provide 
the Committee with information on the noncompetitive outlets used to 
meet the requirements for withheld cranberries and would be necessary 
for the Committee to track compliance with an established handler 
withholding requirement.
    The Committee also recommended that handlers submit a report 
confirming the third-party receipt of withheld fruit. This form, titled 
``Third-Party Confirmation of Receipt of Withheld Fruit (CMC-CONF),'' 
would include certification by outlets receiving withheld cranberries 
for use in a noncompetitive outlet. This form would need to be 
submitted after each shipment of withheld fruit received by 
noncompetitive outlets, such as charities. This report contains 
information on the type, form, and volume of withheld fruit received. 
This reporting requirement would help track the disposition of withheld 
cranberries and facilitate compliance with the recommended handler 
withholding requirements.
    The Committee also recommended establishing a form for handlers to 
use to appeal any denial of a request made for disposing of cranberries 
in a noncompetitive outlet. This form, titled ``Handler Withholding 
Appeal (CMC-APPL),'' would need to be submitted by the handler making 
the appeal within 30 days of the denial. This form would include 
information about why the handler is making the appeal and would 
provide additional information to support the appeal.
    The Order authorizes the Committee to collect certain information 
as required. The information collected would only be used by authorized 
representatives of the USDA, including the AMS Specialty Crops Program 
regional and headquarters staff, and authorized employees of the 
Committee. All proprietary information would be kept confidential in 
accordance with the Act and the Order.
    The Committee developed these forms to effectively carry out a 
handler withholding volume regulation for the 2017-18 crop year and for 
future years when a handler withholding regulation has been 
established. The purpose of these forms would be to ensure compliance 
with the recommended handler withholding requirement.
    Upon OMB approval of the new forms and the information collection 
package, AMS will request OMB approval to merge the new forms and this 
information collection in the currently approved information collection 
OMB control number 0581-0189, Fruit Crops.
    The proposed request for new information collection under the Order 
is as follows:

Handler Withholding Report (CMC-JUN)

    Estimate of Burden: Public reporting burden for this collection of 
information is estimated to be an average of 0.08 hours per response.
    Respondents: Handlers 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.
    Estimated Number of Respondents: 10.
    Estimated Number of Responses per Respondent: 1.
    Estimated Total Annual Burden on Respondents: 0.8 hours.

Handler Disposal Certification (CMC-DISP)

    Estimate of Burden: Public reporting burden for this collection of 
information is estimated to be an average of 0.17 hours per response.
    Respondents: Handlers 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.
    Estimated Number of Respondents: 10.
    Estimated Number of Responses per Respondent: 12.
    Estimated Total Annual Burden on Respondents: 20.4 hours.

Handler Application for Outlets for Withheld Fruit (CMC-OUT)

    Estimate of Burden: Public reporting burden for this collection of 
information is estimated to be an average of 0.08 hours per response.
    Respondents: Handlers 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.
    Estimated Number of Respondents: 10.
    Estimated Number of Responses per Respondent: 12.
    Estimated Total Annual Burden on Respondents: 9.6 hours.

Third-Party Confirmation of Receipt of Withheld Fruit (CMC-CONF)

    Estimate of Burden: Public reporting burden for this collection of 
information is estimated to be an average of 0.05 hours per response.
    Respondents: Handlers 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.
    Estimated Number of Respondents: 10.
    Estimated Number of Responses per Respondent: 12.
    Estimated Total Annual Burden on Respondents: 6 hours.

Handler Withholding Appeal (CMC-APPL)

    Estimate of Burden: Public reporting burden for this collection of 
information is estimated to be an average of 0.08 hours per response.
    Respondents: Handlers of cranberries grown in the states of 
Massachusetts, Rhode Island, Connecticut, New Jersey,

[[Page 6805]]

Wisconsin, Michigan, Minnesota, Oregon, Washington, and Long Island in 
the State of New York.
    Estimated Number of Respondents: 5.
    Estimated Number of Responses per Respondent: 2.
    Estimated Total Annual Burden on Respondents: 0.8 hours.

Final Handler Withholding Report (CMC-AUG)

    Estimate of Burden: Public reporting burden for this collection of 
information is estimated to be an average of 0.08 hours per response.
    Respondents: Handlers 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.
    Estimated Number of Respondents: 10.
    Estimated Number of Responses per Respondent: 1.
    Estimated Total Annual Burden on Respondents: 0.8 hours.
    Comments are invited on: (1) Whether the proposed collection of 
information is necessary for the proper performance of the functions of 
the Agency, including whether the information will have practical 
utility; (2) the accuracy of the Agency's estimate of the burden of the 
proposed collection of information, including the validity of the 
methodology and assumptions used; (3) ways to enhance the quality, 
utility, and clarity of the information to be collected; and (4) ways 
to minimize the burden of the collection of information on those who 
are to respond, including the use of appropriate automated, electronic, 
mechanical, or other technological collection techniques or other forms 
of information technology.
    Comments should reference OMB No. 0581--NEW and the Marketing Order 
for 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, and should be 
sent to the USDA in care of the Docket Clerk at the previously 
mentioned address or at http://www.regulations.gov.
    All responses to this notice will be summarized and included in the 
request for OMB approval. All comments received will become a matter of 
public record and will be available for public inspection during 
regular business hours at the address of the Docket Clerk or at http://www.regulations.gov.
    If this proposed rule is finalized, this information collection 
will be merged with the forms currently approved under OMB No. 0581-
0189, Fruit Crops.

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 
proposed to be amended as follows:

PART 929--CRANBERRIES GROWN IN STATES OF MASSACHUSETTS, RHODE 
ISLAND, CONNECTICUT, NEW JERSEY, WISCONSIN, MICHIGAN, MINNESOTA, 
OREGON, WASHINGTON, AND LONG ISLAND IN THE STATE OF NEW YORK

0
1. The authority citation for 7 CFR part 929 continues to read as 
follows:

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

[Subpart Redesignated as Subpart A]

0
2. Redesignate ``Subpart--Order Regulating Handling'' as ``Subpart A--
Order Regulating Handling''.

[Subpart Redesignated as Subpart B and Amended]

0
3. Redesignate ``Subpart--Administrative Rules and Regulations'' as 
subpart B and revise the heading to read as follows:

Subpart B--Administrative Requirements

0
4. Add Sec.  929.157 to read as follows:


Sec.  929.157  Handler diversion.

    (a) Methods of diversion. Handlers may divert cranberries by 
disposing of cranberries or cranberry products. Diversion by disposal 
may take place prior to placing the cranberries into the processing 
line or after processing. Handlers may also divert cranberries or 
cranberry products to approved, noncompetitive outlets for withheld 
fruit. Whole berries or processed products diverted must come from the 
current crop year. Any information collected of a confidential and/or 
proprietary nature would be held in confidence pursuant to Sec.  
929.65.
    (1) Diversion through disposal. This type of diversion is to be 
carried out under the supervision of the Committee, and the cost of 
such supervision is to be paid by the handler. Handlers shall notify 
the Committee of their intent to dispose of cranberries or cranberry 
products using Form CMC-DISP as specified in Sec.  929.162(c). 
Following notification, a Committee inspector will meet with the 
handler to verify the documentation provided and, when possible, 
witness the destruction. The Committee inspector may request receipts, 
visual proof, or any other information needed to support the disposal 
as reported. Once the verification process has been completed, the 
Committee inspector will sign the certification section of Form CMC-
DISP and return it to the Committee.
    (2) Diversion through noncompetitive outlets. To divert cranberries 
or cranberry products to a noncompetitive outlet, handlers must apply 
to the Committee using Form CMC-OUT as specified in Sec.  929.162(d) 
prior to each disposal activity of this type. The Committee will review 
the information and approve or disapprove the diversion request. Once 
the cranberries or cranberry products are delivered to the approved 
noncompetitive outlets, the Committee must receive satisfactory 
documentation of the transaction using Form CMC-CONF as specified in 
Sec.  929.162(e).
    (b) Committee notification and handler plan. Any handler intending 
to divert cranberries or cranberry products pursuant to Sec.  929.54 
must notify the Committee of such intent and provide a plan by June 1 
that shows how the handler intends to meet the restricted percentage 
obligation. The handler shall submit this plan using Form CMC-JUNE as 
specified in the reporting requirements under Sec.  929.162(a). The 
handler will have until August 31 to fulfill the plan, by which time 
the handler shall submit a final report detailing how the restricted 
percentage obligation was met using Form CMC-AUG as specified in Sec.  
929.162(b).
    (c) Request for review. (1) If a handler is dissatisfied with a 
determination made by the Committee which affects such handler, the 
handler may submit to the Committee within 30 days after receipt of the 
Committee's determination, a request for a review by an appeals 
subcommittee composed of two independent growers and two cooperative 
representatives, as well as a public member. The appeals subcommittee 
shall be appointed by the Committee chairperson. The handler may 
forward with the request any pertinent materials for consideration of 
the appeal.
    (2) The subcommittee shall review the information submitted by the 
handler and render a decision within 30 days of receipt of such appeal. 
The subcommittee shall notify the handler of its decision, accompanied 
by the reasons for its conclusions and findings.
    (3) The handler may further appeal to the Secretary, within 15 days 
after notification of the subcommittee's findings, if such handler is 
not satisfied with the appeals subcommittee's decision. The Committee 
shall forward a file to the Secretary with all pertinent

[[Page 6806]]

information related to the handler's appeal. The Secretary shall inform 
the handler and all interested parties of the Secretary's decision. All 
decisions by the Secretary are final.
0
5. Add Sec.  929.162 to read as follows:


Sec.  929.162  Handler diversion reports.

    (a) Handler withholding report. Handlers shall submit to the 
Committee, by June 1, a handler withholding report. The report shall be 
submitted using Form CMC-JUN and contain the following information:
    (1) The name and address of the handler;
    (2) The amount of cranberries acquired;
    (3) The amount of cranberries withheld by disposal;
    (4) The amount of cranberries diverted to noncompetitive outlets;
    (5) The form of cranberry products withheld; and
    (6) The total withholding obligation.
    (b) Handler Withholding Final Report. Handlers shall submit to the 
Committee, by August 31, a final handler withholding report. The final 
report shall be submitted using Form CMC-AUG and contain the following 
information:
    (1) The name and address of the handler;
    (2) The seasonal total of cranberries acquired;
    (3) The seasonal total of cranberries withheld by disposal;
    (4) The seasonal total of cranberries diverted to noncompetitive 
outlets;
    (5) The form of cranberry products withheld during the season; and
    (6) The total withholding obligation.
    (c) Handler disposal certification. Handlers shall submit to the 
Committee Form CMC-DISP for each lot of cranberries or cranberry 
products to be diverted through disposal. The form shall contain the 
following information:
    (1) Name and address of the handler;
    (2) Marketable cranberries in whole fruit or processed cranberries 
converted to whole fruit equivalent disposed of in this lot;
    (3) Form of cranberries;
    (4) Volume if in processed form;
    (5) Lot details;
    (6) Disposal site and method; and
    (7) Inspector certification of the completion of the disposal.
    (d) Handler application for outlets for withheld fruit. Handlers 
shall submit to the Committee Form CMC-OUT for approval for each lot of 
cranberries or cranberry products to be diverted to noncompetitive 
outlets in accordance with Sec.  929.57. The form shall contain the 
following information:
    (1) Name and address of the handler;
    (2) Project type;
    (3) Product form;
    (4) Quantity of cranberries in whole fruit or processed cranberries 
converted to whole fruit equivalent diverted;
    (5) A description of the project and how the cranberries will be 
used.
    (e) Third-party confirmation of receipt of withheld fruit. Handlers 
shall submit to the Committee Form CMC-CONF for each diversion to a 
noncompetitive outlet to verify the receipt of the cranberries or 
cranberry product by the approved outlet. The form shall contain the 
following information:
    (1) Name and address of the handler;
    (2) Project type;
    (3) Product form;
    (4) Quantity of cranberries in whole fruit or processed cranberries 
converted to whole fruit equivalent utilized; and
    (5) Confirmation or documentation of receipt from the receiving 
outlet.
    (f) Handler withholding appeal. Handlers may appeal a determination 
made by the Committee relating to a handler withholding regulation 
using the appeals process outlined in Sec.  929.157(c) and Form CMC-
APPL, which shall contain the following information:
    (1) Name and address of the handler;
    (2) Reason for appeal; and
    (3) Information in support of appeal.

[Subpart Redesignated as Subpart C]

0
6. Redesignate ``Subpart--Assessment Rate'' as ``Subpart C--Assessment 
Rate''.

    Dated: February 2, 2018.
Bruce Summers,
Acting Administrator, Agricultural Marketing Service.
[FR Doc. 2018-02441 Filed 2-14-18; 8:45 am]
BILLING CODE 3410-02-P