[Federal Register: January 12, 2005 (Volume 70, Number 8)]
[Rules and Regulations]
[Page 1995-2001]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr12ja05-1]
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Rules and Regulations
Federal Register
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[[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.
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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: Jay.Guerber@usda.gov.
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