[Federal Register Volume 67, Number 84 (Wednesday, May 1, 2002)]
[Proposed Rules]
[Pages 21854-21866]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-10526]



[[Page 21853]]

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Part III





Department of Agriculture





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Agricultural Marketing Service



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7 CFR Part 929



Cranberries Grown in the States of Massachusetts, Rhode Island, 
Connecticut, New Jersey, Wisconsin, Michigan, Minnesota, Oregon, 
Washington, and Long Island in the State of New York; Hearing on 
Proposed Amendment of Marketing Agreement and Order No. 929; Proposed 
Rule

  Federal Register / Vol. 67, No. 84 / Wednesday, May 1, 2002 / 
Proposed Rules  

[[Page 21854]]


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DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 929

[Docket No. AO-341-A6; FV02-929-1]


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; Hearing on 
Proposed Amendment of Marketing Agreement and Order No. 929

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Notice of hearing on proposed rulemaking.

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SUMMARY: Notice is hereby given of a public hearing to consider 
amending Marketing Agreement and Order No. 929, hereinafter referred to 
as the ``order.'' The order regulates the handling of cranberries grown 
in Massachusetts, Rhode Island, Connecticut, New Jersey, Wisconsin, 
Michigan, Minnesota, Oregon, Washington, and Long Island in the State 
of New York. The purpose of the hearing is to receive evidence on a 
number of amendments proposed by the Cranberry Marketing Committee 
(Committee), which is responsible for local administration of the 
order, and other interested parties. These proposals are intended to 
improve the administration, operation, and functioning of the order.

DATES: The hearing dates are:
    1. May 20, 2002, 9 a.m. to 5 p.m., and continuing on May 21, 2002, 
at 9 a.m., if necessary, Plymouth, Massachusetts.
    2. May 23, 2002, 9 a.m. to 5 p.m., Bangor, Maine.
    3. June 3, 2002, 9 a.m. to 5 p.m., and continuing on June 4, 2002, 
at 9 a.m., if necessary, Wisconsin Rapids, Wisconsin.
    4. June 6, 2002, 9 a.m. to 5 p.m. and continuing on June 7, 2002 at 
9 a.m., if necessary, Portland, Oregon.

ADDRESSES: The hearing locations are:
    1. Plymouth--Sheraton Inn, 180 Water Street, Plymouth, 
Massachusetts 02360.
    2. Bangor--Bangor Motor Inn, Banquet and Conference Center, Hogan 
Road, Bangor, Maine 04401.
    3. Wisconsin Rapids--Hotel Mead and Conference Center, 451 East 
Grand Avenue, Wisconsin Rapids, Wisconsin 54494.
    4. Portland--Edith Green-Wendell Wyatt Federal Building, 1220 SW 
3rd Avenue, Room 322, Portland, Oregon 97204.

FOR FURTHER INFORMATION CONTACT: Kathleen M. Finn, 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 this proceeding 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.

SUPPLEMENTARY INFORMATION: This administrative action is instituted 
pursuant to the Agricultural Marketing Agreement Act of 1937, as 
amended (7 U.S.C. 601-674), hereinafter referred to as the ``Act.'' 
This action is governed by the provisions of sections 556 and 557 of 
title 5 of the United States Code and, therefore, is excluded from the 
requirements of Executive Order 12866.
    The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) seeks to 
ensure that within the statutory authority of a program, the regulatory 
and informational requirements are tailored to the size and nature of 
small businesses. Interested persons are invited to present evidence at 
the hearing on the possible regulatory and informational impacts of the 
proposals on small businesses.
    The amendments proposed herein have been reviewed under Executive 
Order 12988, Civil Justice Reform. They are not intended to have 
retroactive effect. If adopted, the proposed amendments would not 
preempt any State or local laws, regulations, or policies, unless they 
present an irreconcilable conflict with the proposals.
    The Act provides that administrative proceedings must be exhausted 
before parties may file suit in court. Under section 608c(15)(A) of the 
Act, any handler subject to an order may file with the Secretary a 
petition stating that the order, any provision of the order, or any 
obligation imposed in connection with the order is not in accordance 
with law and request a modification of the order or to be exempted 
therefrom. A handler is afforded the opportunity for a hearing on the 
petition. The Act provides that the district court of the United States 
in any district in which the handler is an inhabitant, or has his or 
her principal place of business, has jurisdiction to review the 
Secretary's ruling on the petition, provided an action is filed not 
later than 20 days after the date of the entry of the ruling.
    At a Committee meeting in August 2001, the Committee recommended 
proposed amendments to the cranberry marketing order. The Committee's 
request for hearing was submitted to USDA on November 5, 2001. A 
request to consider amendments to the cranberry marketing order was 
also received on November 5, 2001, from an attorney representing two 
cranberry handlers, Clement Pappas & Company, Inc. and Cliffstar 
Corporation.
    In addition, USDA issued a press release on January 15, 2002, that 
invited cranberry growers, handlers and other interested persons to 
propose amendments to the marketing order. Two persons submitted 
additional proposals, the Wisconsin Cranberry Cooperative and Doanne 
Andresen.
    The hearing is called pursuant to the provisions of the Act and the 
applicable rules of practice and procedure governing the formulation of 
marketing agreements and orders (7 CFR part 900).

Proposals Submitted by the Cranberry Marketing Committee

    The Committee proposes to revise seven areas of program operations. 
In addition, the Committee recommended that the amendment proceeding be 
expedited whereby the recommended decision would be omitted in order to 
have any approved amendments in place as soon as possible. This can 
only be done if the Secretary finds, on the basis of the record, that 
due and timely execution of his or her functions imperatively and 
unavoidably requires such omission. Participants at the hearing are 
therefore invited to present testimony on this recommendation. The 
amendments proposed by the Committee are summarized below.

Administrative Body

    1. Increase Committee membership to 13 industry members, 1 public 
member, 9 industry alternate members and 1 public alternate member. The 
current Committee is composed of 7 industry members, each with an 
alternate and 1 public member and alternate. This proposal would also 
incorporate a ``swing'' position whereby the entity (either independent 
or cooperative) which sells more than 50 percent of the total volume 
sold is assigned an additional seat.
    Related proposed changes would modify Secs. 929.22 and 929.23 to 
incorporate nomination and selection procedures to reflect the change 
in Committee membership. The change to Sec. 929.22 would also allow the 
Committee to request tax identification numbers for voting purposes and 
authorize mail nominations for independent members.

[[Page 21855]]

    Another related change is proposed in quorum and voting 
requirements to reflect the increased number of Committee members. In 
addition, a related change is proposed to reset the clock for tenure 
limitations to correspond to the change in Committee members.
    2. Clarify how alternates may fill positions in any member's 
absence.
    3. Authorize the Committee to reestablish districts within the 
production area and reapportion grower membership among the various 
districts.

Volume Regulations

    4. Simplify criteria considered and set forth more appropriate 
dates in establishing the Committee's marketing policy.
    5. Revise the formula for calculating sales histories under the 
producer allotment program in Sec. 929.48. The revision includes 
providing additional sales history to compensate growers for expected 
production on younger acres. This proposed change to Sec. 929.48 would 
also allow for more flexibility in recommending changes to the formula; 
add authority for segregating fresh and processed sales; and allow 
compensation for catastrophic events that impact a grower's crop for 
more than 2 years.
    6. Remove specified dates relating to when information is required 
to be filed by growers/handlers in order to issue annual allotments.
    7. Allow growers to transfer allotment during a year of volume 
regulation. Currently, growers must lease their acreage in order to 
transfer allotment.
    8. If volume regulation is recommended by the Committee, require 
the Committee to recommend producer allotment program by March 1 each 
year and to recommend a withholding program as soon as practicable 
after August 1.
    9. Authorize the implementation of the producer allotment and 
withholding programs in the same year.
    10. Add specific authority to exempt fresh, organic or other forms 
of cranberries from order provisions.
    11. Allow for greater flexibility in establishing other outlets for 
excess cranberries.
    12. Update and streamline the withholding volume control 
provisions.

Production Area

    13. Add Maine, Delaware, and the entire State of New York to the 
production area.

Paid Advertising

    14. Add authority for paid advertising under the research and 
development provision of the order.

Definition of Cranberry

    15. Add the species Vaccinium oxycoccus to the definition of 
cranberry. Currently, only the species Vaccinium macrocarpon is 
included in the definition of cranberry.

Definition of Handle

    16. Modify the definition of handle to clarify that transporting 
fresh cranberries to foreign countries is considered handling and 
include the temporary cold storage or freezing of withheld cranberries 
as an exemption from handling.

Reporting Requirements

    17. Relocate some reporting provisions to a more suitable provision 
and streamline the language relating to verification of reports and 
records.

Deletion of Obsolete Provision

    18. Delete an obsolete provision from the order relating to 
preliminary regulation.

Proposals Submitted by Stephen L. Lacey on Behalf of Clement Pappas 
and Company, Inc., and Cliffstar Corporation

    Two handlers proposed amendments in two areas of program 
operations. These proposed amendments are summarized below.

Administrative Body

    19. Require Committee member disclosure of non-regulated cranberry 
production.
    20. Alter the way nominations of cooperative members on the 
Committee are conducted by requiring cooperative nominees to be 
selected through an election process administered by the Committee. 
Currently, the cooperative nominates its members without an election 
process.

Volume Regulations

    21. Incorporate a handler marketing pool under the producer 
allotment program to allow handlers without surplus access to 
cranberries to meet customer needs. This proposal would allow purchases 
from the pool by non-surplus handlers at the same price the handlers 
pay their growers.
    22. Modify the withholding volume regulations by allowing growers 
to be compensated under the buy-back provisions if any funds are 
returned to the handler by the Committee.

Proposals Submitted by Wisconsin Cranberry Cooperative

    The Wisconsin Cranberry Cooperative, a cranberry cooperative 
marketing association, proposed revisions in two areas of program 
operations. These proposed amendments are summarized below.

Administrative Body

    23. Recognize that there are more than one cooperative marketing 
associations in the industry and allow all cooperatives the right to be 
represented on the Committee.
    24. Establish a nomination process for cooperative marketing 
associations.

Outlets for Excess Cranberries

    25. Expand the noncompetitive outlets for excess cranberries by 
clearly defining what countries are authorized for foreign development 
with excess cranberries.
    26. Establish a limit on foreign markets eligible for shipments of 
excess berries as foreign markets with a total annual consumption of 
less than the equivalent of 20,000 barrels of cranberries and/or 
cranberry products.

Proposal Submitted by Doanne Andresen

    Doanne Andresen, a cranberry grower from Duxbury, Massachusetts, 
proposed the following amendment.
    27. Authorize an exemption from order provisions for the first 1000 
barrels of cranberries produced by each grower.
    28. The Fruit and Vegetable Programs of the Agricultural Marketing 
Service (AMS) proposes to allow such conforming changes to the order 
which may be necessary as a result of the hearing.
    None of these proposals have received the approval of USDA. The 
Committee and the other interested parties believe that the proposed 
changes would improve the administration, operation, and functioning of 
the order.
    The public hearing is held for the purpose of: (i) Receiving 
evidence about the economic and marketing conditions which relate to 
the proposed amendments of the order and any appropriate modifications 
thereof; (ii) determining whether there is a need for the proposed 
amendments to the order; (iii) determining the economic impact of 
proposed amendments on the industry in the production area and on the 
public affected by the amendments; and (iv) determining whether the 
proposed amendments or any appropriate modifications thereof will tend 
to effectuate the declared policy of the Act.

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    Testimony is invited at the hearing on all the proposals and 
recommendations contained in this notice, as well as any appropriate 
modifications or alternatives.
    All persons wishing to submit written material as evidence at the 
hearing should be prepared to submit four copies of such material at 
the hearing and should have prepared testimony available for 
presentation at the hearing.
    From the time the notice of hearing is issued and until the 
issuance of a final decision in this proceeding, USDA employees 
involved in the decisional process are prohibited from discussing the 
merits of the hearing issues on an ex parte basis with any person 
having an interest in the proceeding. The prohibition applies to 
employees in the following organizational units: Office of the 
Secretary of Agriculture; Office of the Administrator, AMS; Office of 
the General Counsel, except any designated employees of the General 
Counsel assigned to represent the Committee in this rulemaking 
proceeding; and the Fruit and Vegetable Programs, AMS.
    Procedural matters are not subject to the above prohibition and may 
be discussed at any time.

List of Subjects in 7 CFR Part 929

    Cranberries, Marketing agreements, Reporting and recordkeeping 
requirements.

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

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

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

    2. Testimony is invited on the following proposals or appropriate 
alternatives or modifications to such proposals.
    Proposals submitted by the Cranberry Marketing Committee:

Administrative Body

Proposal No. 1

    Revise Sec. 929.20 to read as follows:


Sec. 929.20  Establishment and membership.

    (a) There is hereby established a Cranberry Marketing Committee 
consisting of 13 industry members, and 9 industry alternate members. 
Except as hereafter provided, members and alternate members shall be 
growers or employees, agents, or duly authorized representatives of 
growers.
    (b) The committee shall include one public member and one public 
alternate member nominated by the committee and selected by the 
Secretary. The public member and public alternate member shall not be a 
cranberry grower, processor, handler, or have a financial interest in 
the production, sales, marketing or distribution of cranberries or 
cranberry products. The committee, with the approval of the Secretary, 
shall prescribe qualifications and procedures for nominating the public 
member and public alternate member.
    (c) Members shall represent each of the following subdivisions of 
the production areas in the number specified in Table 1. Members shall 
reside in the designated district of the production area from which 
they are nominated and selected. Provided, that there shall also be one 
cooperative or independent member-at-large who may be nominated from 
any of the marketing order districts.
    District 1: The States of Massachusetts, Maine, Rhode Island, 
Connecticut; and New York.
    District 2: The States of New Jersey and Delaware.
    District 3: The States of Wisconsin, Michigan, and Minnesota.
    District 4: The States of Oregon and Washington.

                                                     Table 1
----------------------------------------------------------------------------------------------------------------
                                         Cooperative        Cooperative        Independent        Independent
              Districts                    members           alternates          members           alternates
----------------------------------------------------------------------------------------------------------------
1...................................                  2                  1                  2                  1
2...................................                  1                  1                  1                  1
3...................................                  2                  1                  2                  1
4...................................                  1                  1                  1                  1
Any.................................   1 cooperative or
                                            independent
                                        member-at-large
----------------------------------------------------------------------------------------------------------------

    (d) The committee may establish, with the approval of the 
Secretary, rules and regulations for the implementation and operation 
of this section.
    Revise Sec. 929.21 to read as follows:


Sec. 929.21  Term of office.

    (a) The term of office for each member and alternate member of the 
committee shall be for two years, beginning on August 1 of each even-
numbered year and ending on the second succeeding July 31. Members and 
alternate members shall serve the term of office for which they are 
selected and have been qualified or until their respective successors 
are selected and have been qualified.
    (b) Beginning on August 1 of the even-numbered year following the 
adoption of this amendment, committee members shall be limited to three 
consecutive terms. This limitation on tenure shall not include service 
on the committee prior to the adoption of this amendment and shall not 
apply to alternate members.
    (c) Members who have served three consecutive terms must leave the 
committee for at least one full term before becoming eligible to serve 
again. The consecutive terms of office for alternate members shall not 
be so limited.
    Revise Sec. 929.22 to read as follows:


Sec. 929.22  Nomination.

    (a) Beginning on June 1 of the even-numbered year following the 
adoption of this amendment, the committee shall hold nominations in 
accordance with this section.
    (b) Whenever any cooperative marketing organization sells more than 
fifty percent of the total volume of cranberries sold during the fiscal 
period in which nominations for membership on the committee are made, 
the cooperative or growers affiliated therewith shall nominate:
    (1) Six qualified persons for cooperative members and four 
qualified persons for cooperative alternate members of the committee. 
Nominee(s) for cooperative member and cooperative

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alternate member shall represent growers from each of the marketing 
order districts designated in Sec. 929.20.
    (2) The seventh cooperative member shall be referred to as member-
at-large. The member-at-large may be nominated from any of the 
marketing order districts.
    (3) Six qualified persons for independent members and four 
qualified persons for independent alternate members of the committee 
shall be nominated by those growers who market their cranberries 
through other than cooperative marketing organizations. Nominees for 
independent member and independent alternate member shall represent 
growers from each of the marketing order districts as designated in 
Sec. 929.20(c).
    (c) Whenever any cooperative marketing organization sells less than 
fifty percent of the total volume of cranberries sold during the fiscal 
period in which nominations for membership on the committee are made, 
the cooperative or growers affiliated therewith, shall nominate:
    (1) Six qualified persons for cooperative members and four 
qualified persons for cooperative alternate members of the committee. 
Nominees for member and alternate member shall represent growers from 
each of the marketing order districts as designated in Sec. 929.20(c).
    (2) Six qualified persons for independent members and four 
qualified persons for independent alternate members of the committee 
shall be nominated by those growers who market their cranberries 
through other than cooperative marketing organizations. Nominees for 
independent member and independent alternate member shall represent 
growers from each of the marketing order districts as designated in 
Sec. 929.20(c).
    (3) The seventh member nominee shall be referred to as the 
independent member-at-large. The member-at-large may be nominated from 
any of the marketing order districts.
    (d) Nominations of qualified independent member nominees shall be 
made through a call for nominations sent to all eligible growers 
residing within each of the marketing order districts. The call for 
such nominations shall be by such means as are recommended by the 
committee and approved by the Secretary.
    (1) The names of all eligible nominees from each district received 
by the committee, by such date and in such form as recommended by the 
committee and approved by the Secretary, will appear on the nomination 
ballot for that district.
    (2) Election of the independent member nominees and independent 
alternate member nominees shall be conducted by mail ballot.
    (3) Eligible independent growers shall participate in the election 
of nominees from the district in which they reside.
    (4) When voting for independent member nominees, each eligible 
grower shall be entitled to cast one vote on behalf of him/herself.
    (5) The nominee receiving the highest plurality of votes cast in 
districts two and four shall be the independent member nominee from 
that district. The nominee receiving the second highest plurality of 
votes cast in districts two and four shall be the independent alternate 
member from that district.
    (6) The nominees receiving the highest and second highest plurality 
of votes cast in districts one and three shall be the independent 
member nominees from that district. The nominee receiving the third 
highest plurality of votes cast in districts one and three shall be the 
independent alternate member from that district.
    (e) Nominations for the independent member-at-large shall be made 
through a call for nominations sent to all eligible growers residing 
within the marketing order districts. The call for such nominations 
shall be by such means as recommended by the committee and approved by 
the Secretary.
    (1) Election of the member-at-large shall be held by mail ballot 
sent to all eligible independent growers in the marketing order 
districts by such date and in such form as recommended by the committee 
and approved by the Secretary.
    (2) Eligible growers casting ballots may vote for a member-at-large 
nominee from marketing order districts other than where they produce 
cranberries.
    (3) When voting for the member-at-large nominee, each eligible 
grower shall be entitled to cast one vote on behalf of him/herself.
    (4) The nominee receiving the highest plurality of votes cast shall 
be designated the independent member-at-large nominee. The nominee 
receiving the second highest plurality of votes cast shall be declared 
the independent alternate member-at-large nominee.
    (f) The committee may request that growers provide their federal 
tax identification number(s) in order to determine voting eligibility.
    (g) The names and addresses of all nominees shall be submitted to 
the Secretary for selection no later than July 1 of each even-numbered 
year.
    (h) The committee, with the approval of the Secretary, may issue 
rules and regulations to carry out the provisions or to change the 
procedures of this section.
    Revise Sec. 929.23 to read as follows:


Sec. 929.23  Selection.

    (a) From nominations made pursuant to Sec. 929.22(a), the Secretary 
shall select members and alternate members to the committee on the 
basis of the representation provided for in Sec. 929.20 and in 
paragraph (b) or (c) of this section.
    (b) Whenever any cooperative marketing organization sells more than 
50 percent of the total volume of cranberries sold during the fiscal 
year in which nominations for membership on the committee are made, the 
Secretary shall select:
    (1) Six cooperative members and four cooperative alternate members 
from nominations made pursuant to Sec. 929.22(b)(1).
    (2) One cooperative member-at-large from nominations made pursuant 
to Sec. 929.22(b)(2), and
    (3) Six independent members and four independent alternate members 
from growers who market their cranberries through other than 
cooperative marketing organizations made pursuant to Sec. 929.22(b)(3).
    (c) Whenever any cooperative marketing organization sells less than 
50 percent of the total volume of cranberries sold during the fiscal 
year in which nominations for membership on the committee are made, the 
Secretary shall select:
    (1) Six cooperative members and four cooperative alternate members 
from nominations made pursuant to Sec. 929.22(c)(1).
    (2) Six independent members and four independent alternate members 
from nominations made pursuant to Sec. 929.22(c)(2).
    (3) One independent member-at-large from nominations made pursuant 
to Sec. 929.22(c)(3).
    Revise Sec. 929.32 to read as follows:


Sec. 929.32  Procedure.

    (a) Ten members of the committee, or alternates acting for members, 
shall constitute a quorum. All actions of the committee shall require 
at least ten concurring votes: Provided, if the public member or the 
public alternate member acting in the place and stead of the public 
member, is present at a meeting, then eleven members shall constitute a 
quorum. Any action of the committee on which the public member votes 
shall require eleven concurring votes. If the public member abstains 
from voting on

[[Page 21858]]

any particular matter, ten concurring votes shall be required for an 
action of the committee.
    (b) The committee may vote by mail, telephone, fax, telegraph, or 
other electronic means; Provided that any votes cast by telephone shall 
be confirmed promptly in writing. Voting by proxy, mail, telephone, 
fax, telegraph, or other electronic means shall not be permitted at any 
assembled meeting of the committee.
    (c) All assembled meetings of the committee shall be open to 
growers and handlers. The committee shall publish notice of all 
meetings in such manner as it deems appropriate.

Proposal No. 2

    Revise Sec. 929.27 to read as follows:


Sec. 929.27  Alternate members.

    An alternate member of the committee, shall act in the place and 
stead of a member during the absence of such member, and may perform 
such other duties as assigned. In the event of the death, removal, 
resignation, or disqualification of a member, an alternate shall act 
for him/her until a successor for such member is selected and has 
qualified. In the event both a member and alternate member from the 
same marketing order district are unable to attend a committee meeting, 
the committee may designate any other alternate member to serve in such 
member's place and stead at that meeting provided that:
    (1) A cooperative alternate member shall not serve in place of an 
independent member or the public member.
    (2) An independent alternate member shall not serve in place of a 
cooperative member or the public member.
    (3) A public alternate member shall not serve in place of a 
cooperative member or independent member.

Proposal No. 3

    Add a new Sec. 929.28 to read as follows:


Sec. 929.28  Redistricting.

    (a) The committee, with the approval of the Secretary, may 
reestablish districts within the production area and reapportion 
membership among the districts. In recommending such changes, the 
committee shall give consideration to:
    (1) The relative volume of cranberries produced within each 
district.
    (2) The relative number of cranberry producers within each 
district.
    (3) Cranberry acreage within each district.
    (4) Other relevant factors.
    (b) The committee may establish, with the approval of the 
Secretary, rules and regulations for the implementation and operation 
of this section.

Volume Regulations

Proposal No. 4

    Revise Sec. 929.46 to read as follows:


Sec. 929.46  Marketing policy.

    (a) As soon as practicable before March 1 the committee shall 
estimate the marketable quantity for the following crop year.
    (b) Prior to August 31 of each crop-year, the committee shall 
submit to the Secretary a report setting forth its marketing policy for 
the crop-year. Such marketing policy shall contain the following 
information for the current crop year:
    (1) The estimated total production of cranberries;
    (2) The expected general quality of such cranberry production;
    (3) The estimated carryover, as of September 1, of frozen 
cranberries and other cranberry products;
    (4) The expected demand conditions for cranberries in different 
market outlets;
    (5) The recommended desirable total marketable quantity of 
cranberries including a recommended adequate carryover into the 
following crop year of frozen cranberries and other cranberry products;
    (6) Other factors having a bearing on the marketing of cranberries.

Proposal No. 5

    Revise Sec. 929.48 to read as follows:


Sec. 929.48  Sales history.

    (a) A sales history for each grower shall be computed by the 
committee in the following manner:
    (1) For growers with acreage with 6 or more years of sales history, 
the sales history shall be computed using an average of the highest 
four of the most recent six years of sales.
    (2) For growers with 5 years of sales history from acreage planted 
or replanted 2 years prior to the first harvest on that acreage, the 
sales history is computed by averaging the highest 4 of the 5 years.
    (3) For growers with 5 years of sales history from acreage planted 
or replanted 1 year prior to the first harvest on that acreage, the 
sales history is computed by averaging the highest 4 of the 5 years and 
shall be adjusted as provided in paragraph (6).
    (4) For a grower with 4 years or less of sales history, the sales 
history shall be computed by dividing the total sales from that acreage 
by 4 and shall be adjusted as provided in paragraph (6).
    (5) For growers with acreage having no sales history, or for the 
first harvest of replanted acres, the sales history will be the average 
first year yields (depending on whether first harvested 1 or 2 years 
after planting or replanting) as established by the committee and 
multiplied by the number of acres.
    (6) In addition to the sales history computed in accordance with 
paragraphs (3) and (4) of this section, additional sales history shall 
be assigned to growers using the formula x=(a-b)c. The letter ``x'' 
constitutes the additional number of barrels to be added to the 
grower's sales history. The value ``a'' is the expected yield for the 
forthcoming year harvested acreage as established by the committee. The 
value ``b'' is the total sales from that acreage as established by the 
committee divided by four. The value ``c'' is the number of acres 
planted or replanted in the specified year. For acreage with five years 
of sales history: a = the expected yield for the forthcoming sixth year 
harvested acreage (as established by the committee); b = an average of 
the most recent 4 years of expected yields (as established by the 
committee); and c = the number of acres with 5 years of sales history.
    (b) A new sales history shall be calculated for each grower after 
each crop year, using the formulas established in paragraph (a) of this 
section, or such other formula(s) as determined by the committee, with 
the approval of the Secretary.
    (c) The committee, with the approval of the Secretary, may adopt 
regulations to alter the number and identity of years to be used in 
computing sales histories, including the number of years to be used in 
computing the average. The committee may establish, with the approval 
of the Secretary, rules and regulations necessary for the 
implementation and operation of this section.
    (d) Sales histories, starting with the crop year following adoption 
of this part, shall be calculated separately for fresh and processed 
cranberries. The amount of fresh fruit sales history may be calculated 
based on either the delivered weight of the barrels paid for by the 
handler (excluding trash and unusable fruit) or on the weight of the 
fruit paid for by the handler after cleaning and sorting for the retail 
market. Handlers using the former calculation shall allocate delivered 
fresh fruit subsequently used for processing to growers' processing 
sales. Fresh fruit sales history, in whole or in part, may be added to 
process fruit sales history with the approval of the committee in the 
event that the grower's fruit does not qualify as fresh fruit at 
delivery.

[[Page 21859]]

    (e) The committee may recommend rules and regulations to adjust a 
grower's sales history to compensate for catastrophic events that 
impact the grower's crop for more than 2 years.

Proposal No. 6

    Revise Sec. 929.49 to read as follows:


Sec. 929.49  Marketable quantity, allotment percentage, and annual 
allotment.

    (a) Marketable quantity and allotment percentage. If the Secretary 
finds, from the recommendation of the committee or from other available 
information, that limiting the quantity of cranberries purchased from 
or handled on behalf of growers during a crop year would tend to 
effectuate the declared policy of the Act, the Secretary shall 
determine and establish a marketable quantity for that crop year.
    (b) The marketable quantity shall be apportioned among growers by 
applying the allotment percentage to each grower's sales history, 
established pursuant to Sec. 929.48. Such allotment percentage shall be 
established by the Secretary and shall equal the marketable quantity 
divided by the total of all growers' sales histories including the 
estimated total sales history for new growers. Except as provided in 
paragraph (g) of this section, no handler shall purchase or handle on 
behalf of any grower cranberries not within such grower's annual 
allotment.
    (c) In any crop year in which the production of cranberries is 
estimated by the committee to be equal to or less than its recommended 
marketable quantity, the committee may recommend that the Secretary 
increase or suspend the allotment percentage applicable to that year. 
In the event it is found that market demand is greater than the 
marketable quantity previously set, the committee may recommend that 
the Secretary increase such quantity.
    (d) Issuance of annual allotments. The committee shall require all 
growers to qualify for such allotment by filing with the committee a 
form wherein growers include the following information:
    (1) The amount of acreage which will be harvested;
    (2) a copy of any lease agreement covering cranberry acreage;
    (3) The name of the handler(s) to whom their annual allotment will 
be delivered;
    (4) Such other information as may be necessary for the 
implementation and operation of this section.
    (e) On or before such date as determined by the committee, with the 
approval of the Secretary, the committee shall issue to each grower an 
annual allotment determined by applying the allotment percentage 
established pursuant to paragraph (b) of this section to the grower's 
sales history.
    (f) On or before such date as determined by the committee, with the 
approval of the Secretary, in which an allotment percentage is 
established by the Secretary, the committee shall notify each handler 
of the annual allotment that can be handled for each grower whose total 
crop will be delivered to that handler. In cases where a grower 
delivers a crop to more than one handler, the grower must specify how 
the annual allotment will be apportioned among the handlers.
    (g) Growers who do not produce cranberries equal to their computed 
annual allotment shall transfer their unused allotment to such growers' 
handlers. The handler shall equitably allocate the unused annual 
allotment to growers with excess cranberries who deliver to such 
handler. Unused annual allotment remaining after all such transfers 
have occurred shall be reported and transferred to the committee by 
such date as established by the committee with the approval of the 
Secretary.
    (h) Handlers who receive cranberries more than the sum of their 
growers' annual allotments have ``excess cranberries,'' pursuant to 
Sec. 929.59, and shall so notify the committee. Handlers who have 
remaining unused allotment pursuant to paragraph (g) of this section 
are ``deficient'' and shall so notify the committee. The committee 
shall allocate unused allotment to all handlers having excess 
cranberries, proportional to each handler's total allotment.
    (i) Growers who decide not to grow a crop, during any crop year in 
which a volume regulation is in effect, may choose not to assign their 
allotment to a handler.
    (j) The committee may establish, with the approval of the 
Secretary, rules and regulations necessary for the implementation and 
operation of this section.

Proposal No. 7

    Revise Sec. 929.50 to read as follows:


Sec. 929.50  Transfers.

    (a) Leases and sales of cranberry acreage.
    (1) When total or partial lease of cranberry acreage occurs, sales 
history attributable to the acreage being leased shall remain with the 
lessor.
    (2) Total sale of cranberry acreage. When there is a sale of a 
grower's total cranberry producing acreage, the committee shall 
transfer all owned acreage and all associated sales history to such 
acreage to the buyer. The seller and buyer shall file a sales transfer 
form providing the committee with such information as may be requested 
so that the buyer will have immediate access to the sales history 
computation process.
    (3) Partial sale of cranberry acreage. When less than the total 
cranberry producing acreage is sold, sales history associated with that 
portion of the acreage being sold shall be transferred with the 
acreage. The seller shall provide the committee with a sales transfer 
form containing, but not limited to the distribution of acreage and the 
percentage of sales history, as defined in Sec. 929.48(a)(1), 
attributable to the acreage being sold.
    (4) No sale of cranberry acreage shall be recognized unless the 
committee is notified in writing.
    (b) Allotment Transfers. During a year of volume regulation, a 
grower may transfer all or part of his/her allotment to another grower. 
If a lease is in effect the lessee shall receive allotment from lessor 
attributable to the acreage leased. Provided, That the transferred 
allotment shall remain assigned to the same handler and that the 
transfer shall take place and the committee shall be notified prior to 
August 1 of the year of volume regulation, or such other date as 
recommended by the Committee and approved by the Secretary. Transfers 
of allotment between growers having different handlers may occur with 
the consent of both handlers.
    (c) The committee may establish, with the approval of the 
Secretary, rules and regulations, as needed, for the implementation and 
operation of this section.

Proposal No. 8

    Revise Sec. 929.51 to read as follows:


Sec. 929.51  Recommendations for regulation.

    (a) If the committee deems it advisable to regulate the handling of 
cranberries in the manner provided in Sec. 929.52, it shall so 
recommend to the Secretary by the following appropriate dates:
    (i) Allotment percentage program by no later than March 1;
    (ii) Withholding program as soon as practicable after August 1. 
Such recommendation shall include the free and restricted percentages 
for the crop year.
    (b) In arriving at its recommendations for regulation pursuant to 
paragraph (a) of this section, the committee shall give consideration 
to current information with respect to the factors affecting the supply 
of and demand for cranberries during the period when it is proposed 
that such regulation should be imposed.

[[Page 21860]]

With each such recommendation for regulation, the committee shall 
submit to the Secretary the data and information on which such 
recommendation is based and any other information the Secretary may 
request.

Proposal No. 9

    Revise Sec. 929.52 to read as follows:


Sec. 929.52  Issuance of regulations.

    (a) The Secretary shall regulate, in the manner specified in this 
section, the handling of cranberries whenever the Secretary finds, from 
the recommendations and information submitted by the committee, or from 
other available information, that such regulation will tend to 
effectuate the declared policy of the Act. Such regulation shall limit 
the total quantity of cranberries which may be handled during any 
fiscal period by fixing the free and restricted percentages, applied to 
cranberries acquired by handlers in accordance with Sec. 929.54, and/or 
by establishing an allotment percentage in accordance with Sec. 929.49.
    (b) The committee shall be informed immediately of any such 
regulation issued by the Secretary, and the committee shall promptly 
give notice thereof to handlers.

Proposal No. 10

    Revise Sec. 929.58 to read as follows:


Sec. 929.58  Minimum exemption.

    (a) Upon the basis of the recommendation and information submitted 
by the committee, or from other available information, the Secretary 
may relieve from any or all requirements pursuant to this part the 
handling of cranberries in such minimum quantities as the committee, 
with the approval of the Secretary, may prescribe.
    (b) Upon the basis of the recommendation and information submitted 
by the committee, or from other available information, the Secretary 
may relieve from any or all requirements pursuant to this part the 
handling of such forms or types of cranberries as the committee, with 
the approval of the Secretary, may prescribe. Forms of cranberries 
could include cranberries intended for fresh sales or organically grown 
cranberries.
    (c) The committee, with the approval of the Secretary, shall 
prescribe such rules, regulations, and safeguards as it may deem 
necessary to ensure that cranberries handled under the provisions of 
this section are handled only as authorized.

Proposal No. 11

    Revise Sec. 929.61 to read as follows:


Sec. 929.61  Outlets for excess cranberries.

    (a) Noncommercial outlets. Excess cranberries may be disposed of in 
noncommercial outlets that the committee finds, with the approval of 
the Secretary, meet the requirements outlined in paragraph (c) of this 
section. Noncommercial outlets include, but are not limited to:
    (1) Charitable institutions; and
    (2) Research and development projects.
    (b) Noncompetitive outlets. Excess cranberries may be sold in 
outlets that the committee finds, with the approval of the Secretary, 
are noncompetitive with established markets for regulated cranberries 
and meet the requirements outlined in paragraph (c) of this section. 
Noncompetitive outlets include but are not limited to:
    (1) Any nonhuman food use; and
    (2) Other outlets established by the committee with the approval of 
the Secretary.
    (c) Requirements. The handler disposing of or selling excess 
cranberries into noncompetitive or noncommercial outlets shall meet the 
following requirements, as applicable:
    (1) Charitable institutions. A statement from the charitable 
institution shall be submitted to the committee showing the quantity of 
cranberries received and certifying that the institution will consume 
the cranberries;
    (2) Research and development projects. A report shall be given to 
the committee describing the project, quantity of cranberries 
contributed, and date of disposition;
    (3) Nonhuman food use. Notification shall be given to the committee 
at least 48 hours prior to such disposition;
    (4) Other outlets established by the committee with the approval of 
the Secretary. A report shall be given to the committee describing the 
project, quantity of cranberries contributed, and date of disposition.
    (d) The storage and disposition of all excess cranberries withheld 
from handling shall be subject to the supervision and accounting 
control of the committee.
    (e) The committee, with the approval of the Secretary, may 
establish rules and regulations for the implementation and operation of 
this section.

Proposal No. 12

    Revise Sec. 929.54 to read as follows:


Sec. 929.54  Withholding.

    (a) Whenever the Secretary has fixed the free and restricted 
percentages for any fiscal period, as provided for in Sec. 929.52(a), 
each handler shall withhold from handling a portion of the cranberries 
he acquires during such period.
    (b) Withheld cranberries may meet such standards of grade, size, 
quality, or condition as the committee, with the approval of the 
Secretary, may prescribe. The committee or representatives of the 
committee shall inspect all such cranberries. A certificate of such 
inspection shall be issued which shall include the name and address of 
the handler, the number and type of containers in the lot, the location 
where the lot is stored, identification marks (including lot stamp, if 
used), and the quantity of cranberries in such lot that meet the 
prescribed standards. Promptly after inspection and certification, each 
such handler shall submit to the committee a copy of the certificate of 
inspection issued with respect to such cranberries.
    (c) Any handler who withholds from handling a quantity of 
cranberries in excess of that required pursuant to paragraph (a) of 
this section shall have such excess quantity credited toward the next 
fiscal year's withholding obligation, if any B provided that such 
credit shall be applicable only if the restricted percentage 
established pursuant to Sec. 929.52 was modified pursuant to 
Sec. 929.53; to the extent such excess was disposed of prior to such 
modification; and after such handler furnishes the committee with such 
information as it prescribes regarding such withholding and 
disposition.
    Revise Sec. 929.56 to read as follows:


Sec. 929.56  Special provisions relating to withheld (restricted) 
cranberries

    (a) A handler shall make a written request to the committee for the 
release of all or part of the cranberries that the handler is 
withholding from handling pursuant to Sec. 929.54(a). Each request 
shall state the quantity of cranberries for which release is requested 
and shall provide such additional as the committee may require. 
Handlers may replace the quantity of withheld cranberries requested for 
release as provided under either paragraph (b) or (c) of this section.
    (b) The handler may contract with another handler for an amount of 
free cranberries to be converted to restricted cranberries that is 
equal to the volume of cranberries that the handler wishes to have 
converted from his own restricted cranberries to free cranberries.
    (1) The handlers involved in such an agreement shall provide the 
committee with such information as may be requested prior to the 
release of any restricted cranberries.

[[Page 21861]]

    (2) The committee shall establish guidelines to ensure that all 
necessary documentation is provided to the committee, including but not 
limited to, the amount of cranberries being converted and the 
identities of the handlers assuming the responsibility for withholding 
and disposing of the free cranberries being converted to restricted 
cranberries.
    (3) Cranberries converted to replace released cranberries shall be 
inspected and meet such standards as are prescribed for withheld 
cranberries prior to disposal.
    (4) Transactions and agreements negotiated between handlers shall 
include all costs associated with such transactions including the 
purchase of the free cranberries to be converted to restricted 
cranberries and all costs associated with inspection and disposal of 
such restricted cranberries. No costs shall be incurred by the 
committee other than for the normal activities associated with the 
implementation and operation of a volume regulation program.
    (5) Free cranberries belonging to one handler and converted to 
restricted cranberries on the behalf of another handler shall be 
reported to the committee in such manner as prescribed by the 
committee.
    (6) The committee may establish, with the approval of the 
Secretary, rules and regulations for the implementation of this 
section.
    (c) Except as otherwise directed by the Secretary, as near as 
practicable to the beginning of the marketing season of each fiscal 
period with respect to which the marketing policy proposes regulation 
pursuant to Sec. 929.52(a), the committee shall determine the amount 
per barrel each handler shall deposit with the committee for it to 
release to him, in accordance with this section, all or part of the 
cranberries he is withholding; and the committee shall give notice of 
such amount of deposit to handlers. Such notice shall state the period 
during which such amount of deposit shall be in effect. Whenever the 
committee determines that, by reason of changed conditions or other 
factors, a different amount should therefore be deposited for the 
release of withheld cranberries, it shall give notice to handlers of 
the new amount and the effective period thereof. Each determination as 
to the amount of deposit shall be on the basis of the committee's 
evaluation of the following factors:
    (1) The prices at which growers are selling cranberries to 
handlers,
    (2) The prices at which handlers are selling fresh market 
cranberries to dealers,
    (3) The prices at which cranberries are being sold for processing 
in products,
    (4) The prices at which handlers are selling cranberry concentrate, 
and
    (5) The prices the committee has paid to purchase cranberries to 
replace released cranberries in accordance with this section.
    (6) Each request for release of withheld cranberries shall include, 
in addition to all other information as may be prescribed by the 
committee, the quantity of cranberries the release is requested and 
shall be accompanied by a deposit (a cashier's or certified check made 
payable to the Cranberry Marketing Committee) in an amount equal to the 
twenty percent of the amount determined by multiplying the number of 
barrels stated in the request by the then effective amount per barrel 
as determined in paragraph (c).
    (7) Subsequent deposits equal to, but not less than, the ten 
percent of the remaining outstanding balance shall be payable to the 
committee on a monthly basis commencing on January 1, and concluding by 
no later than August 31 of the fiscal period.
    (8) If the committee determines such a release request is properly 
filled out, is accompanied by the required deposit, contains a 
certification that the handler is withholding such cranberries, and the 
committee is able to determine it can purchase unrestricted (free 
percentage) from other handlers to replace the withheld cranberries it 
shall release to such handler the quantity of cranberries specified in 
his request.
    (d) Funds deposited for the release of withheld cranberries, 
pursuant to paragraph (c) of this section, shall be used by the 
committee to purchase from handlers unrestricted (free percentage) 
cranberries in an aggregate amount as nearly equal to, but not in 
excess of, the total quantity of the released cranberries as it is 
possible to purchase to replace the released cranberries.
    (e) All handlers shall be given an equal opportunity to participate 
in such purchase of unrestricted (free percentage) cranberries. If a 
larger quantity is offered than can be purchased, the purchases shall 
be made at the lowest price possible. If two or more handlers offer 
unrestricted (free percentage) cranberries at the same price, purchases 
from such handlers shall be in proportion to the quantity of their 
respective offerings insofar as such division is practicable. The 
committee shall dispose of cranberries purchased as restricted 
cranberries in accordance with Sec. 929.57. Any funds received by the 
committee for cranberries so disposed of, which are in excess of the 
costs incurred by the committee in making such disposition, will accrue 
to the committee's general fund.
    (f) In the event any portion of the funds deposited with the 
committee pursuant to paragraph (c) of this section cannot, for reasons 
beyond the committee's control, be expended to purchase unrestricted 
(free percentage) cranberries to replace those withheld cranberries 
requested to be released, such requested amount of withheld cranberries 
shall be reduced accordingly and such unexpended funds shall, after 
deducting expenses incurred by the committee, will be refunded to the 
handler who deposited the funds. The handler shall equitably distribute 
such refund account among the growers delivering to such handler.
    (g) Inspection for restricted (withheld) cranberries released to a 
handler is not required.

Production Area

Proposal No. 13

    Revise Sec. 929.4 to read as follows:


Sec. 929.4  Production area.

    Production area means the States of Massachusetts, Maine, Rhode 
Island, Connecticut, New York, New Jersey, Delaware, Wisconsin, 
Michigan, Minnesota, Oregon, and Washington.

Paid Advertising

Proposal No. 14

    Amend Sec. 929.45 by revising paragraph (a) to read as follows:


Sec. 929.45  Research and development.

    (a) The committee, with the approval of the Secretary, may 
establish or provide for the establishment of production research, 
marketing research, and market development projects, including paid 
advertising, designed to assist, improve, or promote the marketing, 
distribution, consumption, or efficient production of cranberries. The 
expense of such projects shall be paid from funds collected pursuant to 
Sec. 929.41, or from such other funds as approved by the Secretary.
    (b) The committee may, with the approval of the Secretary, 
establish rules and regulations as necessary for the implementation and 
operation of this section.

Definition of Cranberries

Proposal No. 15

    Revise Sec. 929.5 to read as follows:


Sec. 929.5  Cranberries.

    (a) Cranberries means all varieties of the fruit Vaccinium 
Macrocarpon and Vaccinium oxycoccus, known as

[[Page 21862]]

cranberries, grown in the production area.
    (b) The Committee, with the approval of the Secretary, may modify 
this definition.

Definition of Handle

Proposal No. 16

    Amend Sec. 929.10 by revising paragraphs (a)(2) and (b)(4) to read 
as follows:


Sec. 929.10  Handle.

    (a) * * *
    (2) To sell, consign, deliver, or transport (except as a common or 
contract carrier of cranberries owned by another person) fresh 
cranberries or any other way to place fresh cranberries in the current 
of commerce within the production area or between the production area 
and any point outside thereof.
    (b) * * *
    (4) the cold storage or freezing of excess or restricted 
cranberries for the purpose of temporary storage during periods when an 
annual allotment percentage and/or a handler withholding program is in 
effect prior to their disposal, pursuant to Secs. 929.54 or 929.59.

Reports

Proposal No. 17

    Revise Sec. 929.62 to read as follows:


Sec. 929.62  Reports.

    (a) Grower report. Each grower shall file a report with the 
committee by January 15 of each crop year, or such other date as 
determined by the committee, with the approval of the Secretary, 
indicating the following:
    (1) Total acreage harvested and whether owned or leased.
    (2) Total commercial cranberry sales in barrels from such acreage.
    (3) Amount of acreage either in production, but not harvested or 
taken out of production and the reason(s) why.
    (4) Amount of new or replanted acreage coming into production.
    (5) Name of the handler(s) to whom commercial cranberry sales were 
made.
    (6) Such other information as may be needed for implementation and 
operation of this section.
    (b) Inventory. Each person engaged in the handling of cranberries 
or cranberry products shall, upon request of the committee, file 
promptly with the committee a certified report, showing such 
information as the committee shall specify with respect to any 
cranberries and cranberry products which were held by them on such date 
as the committee may designate.
    (c) Receipts. Each handler shall, upon request of the committee, 
file promptly with the committee a certified report as to each quantity 
of cranberries acquired during such period as may be specified, and the 
place of production.
    (d) Handling reports. Each handler shall, upon request of the 
committee, file promptly with the committee a certified report as to 
the quantity of cranberries handled during any designated period or 
periods.
    (e) Other reports. Upon the request of the committee, with the 
approval of the Secretary, each handler shall furnish to the committee 
such other information with respect to the cranberries and cranberry 
products acquired and disposed of by such person as may be necessary to 
enable the committee to exercise its powers and perform its duties 
under this part.
    (f) The committee may establish, with the approval of the 
Secretary, rules and regulations for the implementation and operation 
of this section.
    Revise Sec. 929.64 to read as follows:


Sec. 929.64  Verification of reports and records.

    The committee, through its duly authorized agents, during 
reasonable business hours, shall have access to any handler's premises 
where applicable records are maintained for the purpose of assuring 
compliance and checking and verifying records and reports filed by such 
handler.

Deletion of Obsolete Provision

Proposal No. 18

    Remove Sec. 929.47.
    Proposals submitted by the Stephen L. Lacey on behalf of Clement 
Pappas and Company, Inc., and Cliffstar Corporation:

Administrative Body

Proposal No. 19

    In addition to the Committee's recommended changes as set forth in 
Proposal No. 1, amend Sec. 929.20 by redesignating paragraph (d) as 
paragraph (e) and adding a new paragraph (d) to read as follows:


Sec. 929.20  Establishment and membership

* * * * *
    (d) Disclosure of unregulated production. All grower members and 
alternate grower members of the committee shall disclose annually any 
financial interest in the production of cranberries or cranberry 
products that are not subject to regulation by this part.
* * * * *

Proposal No. 20

    Revise Sec. 929.22 to read as follows:


Sec. 929.22  Nomination

    (a) Beginning on June 1 of the even-numbered year following the 
adoption of this amendment, the Committee shall hold nominations in 
accordance with this section.
    (b) Whenever any cooperative marketing organization sells more than 
fifty percent of the total volume of cranberries sold during the fiscal 
period in which nominations for membership on the committee are made, 
the growers affiliated therewith shall nominate:
    (1) Six qualified persons for cooperative members and four 
qualified persons for cooperative alternate members of the committee. 
Nominee(s) for cooperative member and cooperative alternate member 
shall represent growers from each of the marketing order districts 
designated in Sec. 929.20.
    (2) The seventh cooperative member shall be referred to as member-
at-large. The member-at-large may be nominated from any of the 
marketing order districts.
    (3) Six qualified persons for independent members and four 
qualified persons for independent alternative members of the committee 
shall be nominated by those growers who market their cranberries 
through other than cooperative marketing organizations. Nominees for 
independent member and independent alternate member shall represent 
growers from each of the marketing order districts as designated in 
Sec. 929.20(c).
    (c) Whenever any cooperative marketing organization sells less than 
fifty percent of the total volume of cranberries sold during the fiscal 
period in which nominations for membership on the committee are made, 
the growers affiliated therewith, shall nominate:
    (1) Six qualified persons for cooperative members and four 
qualified persons for cooperative alternate members of the committee. 
Nominees for member and alternate member shall represent growers from 
each of the marketing order districts as designated in Sec. 929.20(c).
    (2) Six qualified persons for independent members and four 
qualified persons for independent alternate members of the committee 
shall be nominated by those growers who market their cranberries 
through other than cooperative marketing organizations. Nominees for 
independent member and independent alternate member shall represent 
growers from each of the marketing order districts as designated in 
Sec. 929.20(c).
    (3) The seventh member nominee shall be referred to as the 
independent

[[Page 21863]]

member-at-large. The member-at-large may be nominated from any of the 
marketing order districts.
    (d) Nominations of qualified cooperative and independent member 
nominees shall be made through a call for nominations sent to all 
eligible growers residing within each of the marketing order districts. 
The call for such nominations shall be by such means as are recommended 
by the committee and approved by the Secretary.
    (1) The names of all eligible nominees from each district received 
by the committee, by such date and in such form as recommended by the 
committee and approved by the Secretary, will appear on the nomination 
ballot for that district.
    (2) Election of the cooperative and independent member nominees and 
cooperative and independent alternate member nominees shall be 
conducted by mail ballot.
    (3) Eligible cooperative and independent growers shall participate 
in the election of nominees from the district in which they reside.
    (4) When voting for cooperative and independent member nominees, 
each eligible grower shall be entitled to cast one vote on behalf of 
him/herself.
    (5) The cooperative and independent nominees receiving the highest 
plurality of votes cast in districts two and four shall be the member 
nominees from that district. The cooperative and independent nominees 
receiving the second highest plurality of votes cast in districts two 
and four shall be the alternate members from that district.
    (6) The cooperative and independent nominees receiving the highest 
and second highest plurality of votes cast in district one and three 
shall be the member nominees from that district. The cooperative and 
independent nominees receiving the third highest plurality of votes 
cast in districts one and three shall be the alternates from that 
district.
    (e) Nominations for the cooperative and independent members-at-
large shall be made through a call for nominations sent to all eligible 
growers residing within the marketing order districts. The call for 
such nominations shall be by such means as recommended by the committee 
and approved by the Secretary.
    (1) Election of the cooperative and independent members-at-large 
shall be held by mail ballot sent to all eligible growers in the 
marketing order districts by such date and in such form as recommended 
by the committee and approved by the Secretary.
    (2) Eligible growers casting ballots may vote for a member-at-large 
nominee from marketing order districts other than where they produce 
cranberries.
    (3) When voting for the member-at-large nominee, each eligible 
grower shall be entitled to cast one vote on behalf of him/herself.
    (4) The cooperative and independent nominees receiving the highest 
plurality of votes cast shall be designated the member-at-large 
nominees. The cooperative and independent nominees receiving the second 
highest plurality of votes cast shall be declared the alternate member-
at-large nominees.
    (f) The committee may request that growers provide their federal 
tax identification number(s) in order to determine voting eligibility.
    (g) The names and addresses of all nominees shall be submitted to 
the Secretary for selection no later than July 1 of each even-numbered 
year.
    (h) The committee, with the approval of the Secretary, may issue 
rules and regulations to carry out the provisions or to change the 
procedures of this section.

Volume Regulations

Proposal No. 21

    Replace Sec. 929.47 to read as follows:


Sec. 929.47  Handler marketing pool

    (a) Handler marketing pool. In any crop year in which a producer 
allotment is recommended, the committee shall also recommend, subject 
to approval by the Secretary, the establishment of a Handler Marketing 
Pool as part of the Marketable Quantity.
    (b) The committee shall determine on or before March 1, the 
estimated number of barrels of cranberries necessary for a handler 
marketing pool, and this amount shall be included with the 
recommendation for the producer allotment regulation. The number of 
barrels of cranberries necessary for the pool may be adjusted on or 
before September 1 of the year in which volume regulation is 
established.
    (c) Calculating the size of the pool. At the time of the 
recommendation of a producer allotment along with a handler marketing 
pool, the committee shall determine, based on handler reports, which 
handlers will have surplus inventory and which handlers will be 
deficient under the recommended volume regulation.
    (d) From the most recent completed year of handler reports, the 
committee shall use the figures reported by each handler for total 
sales (including sales to other handlers), the carry-in inventory and 
the number of barrels handled to establish a handler marketing pool by 
calculating the following for each handler:
    (1) Current Year's Sales Potential--calculated as a specified 
percent of the prior year's sales plus an estimate for shrink. This 
sales potential estimate may be reviewed and adjusted by the committee 
based on actual sales reports or demonstrated projected sales from the 
handlers submitted prior to September 1 of the year of volume 
regulation.
    (2) Current Year's Ending Inventory--calculated as carry-in plus 
the current year's handle minus the current year's sales potential. 
This estimate may be reviewed and adjusted by the committee based on 
actual sales reports from the handlers submitted prior to September 1.
    (3) Regulated Year's Projected Allotment--calculated as the 
handler's sales history times the allotment percent recommended by the 
committee plus any adjustments for new acreage.
    (4) Regulated Year's Total Available Supply--calculated as the 
handler's projected allotment plus the handler's current year's ending 
inventory.
    (5) Regulated Year's Projected Sales--calculated as a specified 
percent of the prior year's sales plus an estimate for shrink.
    (6) Regulated Year's Desired Ending Inventory--calculated as a 
percent of each handler's regulated year's projected sales.
    (7) Handler's Total Needs--calculated as each handler's regulated 
year's projected sales plus the regulated year's desired ending 
inventory.
    (8) Deficit/Surplus--calculated as the difference between the 
handler's total needs and the regulated year's total available supply.
    (e) Supply and access to the pool. If a handler's total needs for 
cranberries are more than its total available supply in the regulated 
year, then the handler is considered to be in deficit and is entitled 
to purchase cranberries from the pool. If a handler's total available 
supply of cranberries exceeds its needs in the regulated year, then 
that handler is considered to be in surplus and shall be required to 
contribute cranberries to the pool.
    (f) If the total needs of those handlers with deficits is less than 
the total of surplus cranberries available, then the handlers with 
surplus shall contribute to the pool up to the total of the deficits in 
proportion to their percentage of the total surplus.
    (g) If the total deficit is greater than the total of surplus 
cranberries available, then the size of the pool is limited to the 
total of the calculated

[[Page 21864]]

surplus. In this case handlers with surplus cranberries shall 
contribute their entire volume of surplus cranberries to the pool. No 
handler is obligated to contribute more than the handler's surplus.
    (h) Once the pool contributions by the handlers with surplus have 
been assigned by the committee, the handlers with surplus shall 
maintain such volume in inventory to be available for purchases by 
handlers with deficits. The committee may request an accurate 
accounting of the pool fruit by the handler at any time.
    (i) Any pool cranberries not purchased by June 30 shall be released 
to the handler who contributed the cranberries.
    (j) Forms of cranberries, specifications and location. Pool fruit 
may be made available to handlers with deficits as process fruit 
directly from the field during harvest where agreeable to handlers with 
surplus. Pool fruit shall be made available as frozen fruit and as 50-
brix concentrate. The committee based on the generally accepted 
specifications of the industry or specifications used by USDA 
purchasing programs shall establish quality specifications for each 
form of fruit.
    (k) The minimum amount of surplus Pool fruit handlers shall make 
available in a particular growing area shall be in direct proportion to 
that handler's handle in that growing area. For example, if a handler 
with surplus receives 50% of its crop in Massachusetts, then that 
handler shall source at least 50% of its pool fruit from Massachusetts.
    (l) Handlers may make a request to the committee for pool 
cranberries. The committee shall endeavor to source the form of fruit 
and preferred location to meet the request of the handler based on 
availability of cranberries requested. If the specifications requested 
cannot be met, the committee shall negotiate with handlers who have 
surplus to meet the request to the extent possible.
    (m) Pool pricing.
    (1) A deficit handler may purchase cranberries from the pool at an 
acquisition price that is equal to the price that handler is paying its 
growers for the current crop.
    (2) The reimbursement price received for pool cranberries by 
handlers contributing to the pool shall be the same as the acquisition 
price determined under subparagraph (1).
    (n) Payment Terms. Handlers acquiring cranberries from the pool 
shall deposit an initial payment of $5.00 per barrel with the committee 
within 30 days of receipt of product. Subsequent payments shall be made 
every 60 days in the amount specified by the committee based on handler 
payments to growers to date. Full settlement shall be made no later 
than August 31. The committee shall immediately remit all partial 
payments received from acquiring handlers to handlers supply the pool 
cranberries. Final reimbursement shall be made no later than August 31.
    (o) Pool expenses and proceeds. Expenses incurred by the committee 
in administering the marketing pool shall be paid from assessment 
funds.
    (p) Reports. Each handler shall file with the committee grower 
price information necessary to establish pool prices in such a manner 
as the committee may prescribe. This information shall be treated as 
confidential and subject to the disclosure provisions of Sec. 929.65.
    (q) Regulations. The committee may establish, with the approval of 
the Secretary, rules and regulations, as needed, for the implementation 
and operation of this section.

Proposal No. 22

    Amend Sec. 929.56 by revising paragraphs (c) and (d) to read as 
follows:


Sec. 929.56  Special provisions relating to withheld (restricted) 
cranberries.

* * * * *
    (c) Funds deposited for the release of withheld cranberries, 
pursuant to paragraph (a) of this section, shall be used by the 
committee to purchase from handlers unrestricted (free percentage) 
cranberries in an aggregate amount as nearly equal to, but not in 
excess of, the total quantity of the released cranberries as it is 
possible to purchase to replace the release cranberries. All handlers 
shall be given an opportunity to participate in such purchase. If a 
larger quantity is offered than can be purchased, the purchases shall 
be made at the lowest prices possible. If two or more handlers offer at 
the same price, purchases from such handlers shall be in proportion to 
the quantity of their respective offerings insofar as such division is 
practicable. The cranberries so purchased shall be disposed of by the 
committee as restricted cranberries in accordance with Sec. 929.57. Any 
funds received by the committee for cranberries so disposed of, which 
are in excess of the costs incurred by the committee in making such 
disposition, shall be paid or credited to the handler which deposited 
the funds for equitable distribution to its growers.
    (d) In the event any portion of the funds deposited with the 
committee pursuant to paragraph (a) of this section cannot, for reasons 
beyond the committee's control, be expended to purchase unrestricted 
(free percentage) cranberries to replace those released, such 
unexpended funds shall, after deducting expenses incurred by the 
committee in connecting with the purchase and disposition of 
cranberries pursuant to paragraph (c) of this section, be offered and 
paid or credited to the handler which deposited the funds for equitable 
distribution to its growers. In the event that the offer is not 
accepted or directions given by a handler to credit the funds within 90 
days, the funds will accrue to the committee's general account.
    Proposals submitted by the Wisconsin Cranberry Cooperative:

Proposal No. 23

    Revise Sec. 929.22 to read as follows:


Sec. 928.22  Nomination.

    (a) Beginning on June 1 of the even-numbered year following the 
adoption of this amendment, the committee shall hold nominations in 
accordance with this section.
    (b) Whenever the combined sales of cranberries by all cooperative 
marketing organizations equals or exceeds fifty percent of the volume 
of cranberries sold during the fiscal period in which nominations for 
membership on the committee are made:
    (1) Six qualified persons for cooperative members and four 
qualified persons for cooperative alternative members of the committee 
shall be nominated by the cooperative growers in accordance with the 
nomination procedure in paragraph (d) of this section. Nominee(s) for 
cooperative member(s) and cooperative alternative member(s) shall 
represent growers from each of the marketing order districts designated 
in Sec. 929.20.
    (2) Six qualified persons for independent members and four 
qualified persons for independent alternate members of the committee 
shall be nominated by those growers who market their cranberries 
through other than cooperative marketing organizations, in accordance 
with the nomination procedure in paragraph (e) of this section. 
Nominee(s) for independent member(s) and independent alternate 
member(s) shall represent growers from each of the marketing order 
districts as designated in Sec. 929.20(c).
    (3) The seventh member shall be referred to as cooperative member-
at-large. The member-at-large may be nominated from any of the 
marketing order districts in accordance with paragraph (f) of this 
section.

[[Page 21865]]

    (c) Whenever the combined sales of cranberries by all cooperative 
marketing organizations is less than fifty percent of the total volume 
of cranberries sold during the fiscal period in which nominations for 
membership on the committee are made:
    (1) Six qualified persons for cooperative members and four 
qualified persons for cooperative alternative members of the committee 
shall be nominated by the cooperative growers in accordance with the 
nomination procedure in paragraph (d) of this section. Nominee(s) for 
member(s) and alternate member(s) shall represent growers from each of 
the marketing order districts as designated in Sec. 929.20(c).
    (2) Six qualified persons for independent members and four 
qualified persons for independent alternate members of the committee 
shall be nominated by those growers who market their cranberries 
through other than cooperative marketing organizations, in accordance 
with the nomination procedure in paragraph (e) of this section. 
Nominee(s) for independent member(s) and independent alternate 
member(s) shall represent growers from each of the marketing order 
districts as designated in Sec. 929.20(c).
    (3) The seventh member nominee shall be referred to as the 
independent member-at-large. The member-at-large may be nominated from 
any of the marketing order districts in accordance with paragraph (g) 
of this section.
    (d) Nominations of qualified cooperative member nominees shall be 
made through a call for nominations sent to all eligible growers 
affiliated with a cooperative marketing organization residing within 
each of the marketing order districts. The call for such nominations 
shall be by such means as are recommended by the committee and approved 
by the Secretary.
    (1) The names of all eligible nominees from each district received 
by the committee, by such date and in such form as recommended by the 
committee and approved by the Secretary, will appear on the nomination 
ballot for that district.
    (2) Election of the cooperative member nominees and cooperative 
alternate member nominees shall be conducted by mail ballot.
    (3) Eligible cooperative growers shall participate in the election 
of nominees from the district in which they reside.
    (4) When voting for cooperative member nominees, each eligible 
grower shall be entitled to cast one vote on behalf of him/herself.
    (5) The nominee receiving the highest plurality of votes cast in 
Districts 2 and 4 shall be the cooperative member nominee from that 
district. The nominee receiving the second highest plurality of votes 
cast in Districts 2 and 4 shall be the cooperative alternate member 
from that district.
    (6) The nominees receiving the highest and second highest plurality 
of votes cast in Districts 1 and 3 shall be the cooperative member 
nominees from that district. The nominee receiving the third highest 
plurality of votes cast in Districts 1 and 3 shall be the cooperative 
alternate member from that district.
    (e) Nominations of qualified independent member nominees shall be 
made through a call for nominations sent to all eligible independent 
growers residing within each of the marketing order districts. The call 
for such nominations shall be by such means as are recommended by the 
committee and approved by the Secretary.
    (1) The names of all eligible nominees from each district received 
by the committee, by such date and in such form as recommended by the 
committee and approved by the Secretary, will appear on the nomination 
ballot for that district.
    (2) Election of the independent member nominees and independent 
alternate member nominees shall be conducted by mail ballot.
    (3) Eligible independent growers shall participate in the election 
of nominees from the district in which they reside.
    (4) When voting for independent member nominees, each eligible 
grower shall be entitled to cast one vote on behalf of him/herself.
    (5) The nominee receiving the highest plurality of votes cast in 
Districts 2 and 4 shall be the independent member nominee from that 
district. The nominee receiving the second highest plurality of votes 
cast in Districts 2 and 4 shall be the independent alternate member 
from that district.
    (6) The nominees receiving the highest and second highest plurality 
of votes cast in Districts 1 and 3 shall be the independent member 
nominees from that district. The nominee receiving the third highest 
plurality of votes cast in Districts 1 and 3 shall be the independent 
alternate member from that district.
    (f) Nominations for the cooperative member-at-large shall be made 
through a call for nominations sent to all eligible cooperative growers 
residing within the marketing order districts. The call for such 
nominations shall be by such means as recommended by the committee and 
approved by the Secretary.
    (1) Election of the member-at-large shall be held by mail ballot 
sent to all eligible cooperative growers in the marking order districts 
by such date and in such form as recommended by the committee and 
approved by the Secretary.
    (2) Eligible cooperative growers casting ballots may vote for a 
member-at-large nominee from marketing order districts other than where 
they produce cranberries.
    (3) When voting for the member-at-large nominee, each eligible 
cooperative grower shall be entitled to cast one vote on behalf of him/
herself.
    (4) The nominee receiving the highest plurality of votes cast shall 
be designated the cooperative member-at-large nominee. The nominee 
receiving the second highest plurality of votes cast shall be declared 
the cooperative alternate member-at-large nominee.
    (g) Nominations for the independent member-at-large shall be made 
through a call for nominations sent to all eligible independent growers 
residing within the marketing order districts. The call for such 
nominations shall be by such means as recommended by the committee and 
approved by the Secretary.
    (1) Election of the member-at-large shall be held by mail ballot 
sent to all eligible independent growers in the marketing order 
districts by such date and in such form as recommended by the committee 
and approved by the Secretary.
    (2) Eligible independent growers casting ballots may vote for a 
member-at-large nominee from marketing order districts other than where 
they produce cranberries.
    (3) When voting for the member-at-large nominee, each eligible 
independent grower shall be entitled to cast one vote on behalf of him/
herself.
    (4) The nominee receiving the highest plurality of votes cast shall 
be designated the independent member-at-large nominee. The nominee 
receiving the second highest plurality of votes cast shall be declared 
the independent alternate member-at-large nominee.
    (h) The committee may request that growers provide their federal 
tax identification number(s) in order to determine voting eligibility.
    (i) The names and addresses of all nominees shall be submitted to 
the Secretary for selection no later than July 1 of each even-numbered 
year.
    (j) The committee, with the approval of the Secretary, may issue 
rules and regulations to carry out the provisions or to change the 
procedures of this section.

[[Page 21866]]

Proposal No. 24

    Revise Sec. 929.23 to read as follows:


Sec. 929.23  Selection.

    (a) From nominations made pursuant to Sec. 929.22, the Secretary 
shall select members and alternate members to the committee on the 
basis of the representation provided for in Sec. 929.20(c) and in 
paragraphs (b) and (c) of this section.
    (b) Whenever the combined sales of cranberries by all cooperative 
marketing organizations equals or exceeds fifty percent of the volume 
of cranberries sold during the fiscal period in which nominations for 
membership on the committee are made, the Secretary shall select:
    (1) Six cooperative members and four cooperative alternate members 
from nominations made pursuant to Sec. 929.22(b)(1) and (d),
    (2) Six independent members and four independent alternate members 
from growers who market their cranberries other than through 
cooperative marketing organizations, pursuant to Sec. 929.22(b)(2) and 
(e), and
    (3) One cooperative member-at-large from nominations made pursuant 
to Sec. 929.22(b)(3) and (f).
    (c) Whenever the combined sale of cranberries by all cooperative 
marking organizations is less than fifty percent of the total volume of 
cranberries sold during the fiscal period in which nominations for 
membership on the committee are made, the Secretary shall select:
    (1) Six cooperative members and four cooperative alternate members 
from nominations made pursuant to Sec. 929.22 (c)(1) and (d).
    (2) Six independent members and four independent alternate members 
from nominations made pursuant to Sec. 929.22(c)(3) and (g).
    (3) One independent member-at-large from nominations made pursuant 
to Sec. 929.22(c)(2) and (e).

Proposal No. 25

    Revise Sec. 929.61 to read as follows:


Sec. 929.61  Outlets for excess cranberries.

    (a) Noncommercial outlets. Excess cranberries may be disposed of in 
noncommercial outlets that the committee finds, with the approval of 
the Secretary, meet the requirements outlined in paragraph (c) of this 
section. Noncommercial outlets include but are not limited to:
    (1) Charitable institutions; and
    (2) Research and development projects approved by the U.S. 
Department of Agriculture.
    (b) Non-Competitive Outlets. Excess cranberries may be sold in 
outlets that the committee finds, with the approval of the Secretary, 
are non-competitive with established markets for regulated cranberries 
and meet the requirements outlined in paragraph (c) of this section. 
Noncompetitive outlets include but are not limited to:
    (1) Any non-human food use; and
    (2) Foreign markets with a total annual consumption of less than 
the equivalent of 20,000 barrels of cranberries and/or cranberry 
products. The committee will annually publish a report which lists 
foreign markets which have a total consumption of more than the 
equivalent of 20,000 barrels of cranberries and/or cranberry products.
    (c) Requirements. The handler disposing of or selling excess 
cranberries into noncompetitive or noncommercial outlets shall meet the 
following requirements, as applicable:
    (1) Charitable institutions. A statement from the charitable 
institution shall be submitted to the committee showing the quantity of 
cranberries received and certifying that the institution will consume 
the cranberries;
    (2) Research and development projects. A report shall be given to 
the committee describing the project, quantity of cranberries 
contributed, and date of disposition;
    (3) Non-human food use. Notification shall be given to the 
committee at least 48 hours prior to such disposition;
    (4) Foreign markets with a total annual consumption of less than 
the equivalent of 20,000 barrels of cranberries and/or cranberry 
products. A copy of the onboard bill of lading shall be submitted to 
the committee showing the amount of cranberries loaded for export; and
    (5) Other outlets established by the committee with the approval of 
the Secretary. A report shall be given to the committee describing the 
project; quantity of cranberries contributed, and date of disposition.
    (d) The storage and disposition of all excess cranberries withheld 
from handling shall be subject to the supervision and accounting 
control of the committee.
    (e) The committee, with the approval of the Secretary, may 
establish rules and regulations for the implementation and operation of 
this section.

Proposal No. 26

    Revise Sec. 929.56 to read as follows:


Sec. 929.104  Outlets for excess cranberries.

    (a) In accordance with Sec. 929.61, excess cranberries may be 
disposed of only in the following noncommercial or noncompetitive 
outlets, but only if the requirements in paragraph (b) of this section 
are complied with:
    (1) Charitable institutions;
    (2) Research and development projects;
    (3) Any non-human food use;
    (4) Foreign markets with a total annual consumption of less than 
the equivalent of 20,000 barrels of cranberries or cranberry products; 
and
    (5) Other outlets established by the committee with the approval of 
the Secretary.
    (b) Excess cranberries may not be converted into canned, frozen, or 
dehydrated cranberries or other cranberry products by any commercial 
process. Handlers may divert excess cranberries in the outlets listed 
in paragraph (a) of this section only if they meet the requirements 
specified in Sec. 929.61(c).
    Proposal submitted by Doanne Andresen, a Massachusetts grower:

Proposal No. 27

    Amend Sec. 929.58 by revising paragraph (a) to read as follows:


Sec. 929.58  Minimum exemption.

    (a) Upon the basis of the recommendation and information submitted 
by the committee, or from other available information, the Secretary 
may relieve from any or all requirements pursuant to this part the 
handling of cranberries in such minimum quantities as the committee, 
with approval of the Secretary, may prescribe including the first one 
thousand barrels produced by each grower.
* * * * *
    The Fruit and Vegetable Programs, Agricultural Marketing Service, 
submitted the following proposal:

Proposal No. 28

    Make such changes as may be necessary to the order to conform with 
any amendment thereto that may result from the hearing.

    Dated: April 23, 2002.
A.J. Yates,
Administrator, Agricultural Marketing Service.
[FR Doc. 02-10526 Filed 4-25-02; 1:11 pm]
BILLING CODE 3410-02-P