[Federal Register Volume 69, Number 69 (Friday, April 9, 2004)]
[Rules and Regulations]
[Pages 18803-18808]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-8072]


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DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 929

[Docket Nos. AO-341-A6; FV02-929-1]


Cranberries Grown in the States of Massachusetts, et al.; Order 
Amending Marketing Agreement and Order No. 929

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Final rule.

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SUMMARY: This final rule amends the marketing agreement and order for 
cranberries grown in Massachusetts, Rhode Island, Connecticut, New 
Jersey, Wisconsin, Michigan, Minnesota, Oregon, Washington, and Long 
Island in the State of New York. The amendments are based on those 
proposed by the Cranberry Marketing Committee (Committee), which is 
responsible for local administration of the order and other interested 
parties representing cranberry growers and handlers. The amendments 
include increasing Committee membership and related amendments. The 
amendments are intended to improve the operation and functioning of the 
cranberry marketing order program.

EFFECTIVE DATE: April 12, 2004.

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, or Fax: (202) 720-8938. Small businesses may 
request information on compliance 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.

SUPPLEMENTARY INFORMATION: Prior documents in this proceeding: Notice 
of Hearing issued on April 23, 2002, and published in the May 1, 2002, 
issue of the Federal Register (67 FR 21854); Secretary's Decision and 
Referendum Order issued on December 4, 2003, and published in the 
Federal Register on December 12, 2003 (68 FR 69343).
    This administrative 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.

Preliminary Statement

    This final rule was formulated based on the record of a public 
hearing held in Plymouth, Massachusetts on May 20 and 21, 2002; in 
Bangor, Maine on May 23, 2002; in Wisconsin Rapids, Wisconsin on June 3 
and 4, 2002; and in Portland, Oregon on June 6, 2002. The hearing was 
held to consider the proposed amendment of Marketing Agreement and 
Order No. 929, regulating the handling of cranberries grown in the 
States of Massachusetts, Rhode Island, Connecticut, New Jersey, 
Wisconsin, Michigan, Minnesota, Oregon, Washington, and Long Island in 
the State of New York, hereinafter referred to collectively as the 
``order.'' The hearing was held pursuant to the provisions of the 
Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601 
et seq.), hereinafter referred to as the ``Act,'' and the applicable 
rules of practice and procedure governing the formulation of marketing 
agreements and marketing orders (7 CFR part 900). The notice of hearing 
contained numerous proposals submitted by the Committee, other 
interested parties and one proposed by the Agricultural Marketing 
Service (AMS). This action adopts a portion of the proposed amendments 
listed in the Notice of Hearing that were determined necessary to be 
expedited. Other proposed amendments listed in the Notice of Hearing 
will be addressed in a separate decision.
    The amendments included in this decision will: Increase Committee 
membership to 13 grower members, 1 public member, 9 grower alternate 
members and 1 public alternate member; Incorporate a ``swing'' position 
whereby the group (either the major cooperative or growers representing 
other than the major cooperative) which handles more than 50 percent of 
the total volume produced is assigned an additional seat; Revise 
nomination and selection provisions of the order, as well as quorum and 
voting requirements, to reflect the change in Committee membership; 
Authorize tenure limitations to be restarted with the seating of the 
expanded Committee; Re-establish districts and allocate the revised 
membership among those districts; Allow the Committee to request tax 
identification numbers for voting purposes; Authorize mail nominations 
for independent members; Revise the alternate member provisions to 
reflect the change in Committee membership and for clarity purposes; 
and Require Committee member nominee disclosure of non-regulated 
cranberry production.
    The Fruit and Vegetable Programs of AMS proposed to allow such 
changes as may be necessary to the order, if any of the proposed 
amendments are adopted, so that all of the order's provisions conform 
to the effectuated amendments.
    Upon the basis of evidence introduced at the hearing, a Secretary's 
decision was issued on December 4, 2003, directing that a referendum be 
conducted during the period January 19 to January 30, 2004, among 
growers and processors of cranberries to determine whether they favored 
the proposed amendments to the order. In the referendum, all amendments 
were favored by more than two-thirds of the growers voting in the 
referendum by

[[Page 18804]]

number and volume. Processors representing more than 50 percent of the 
crop also approved the amendments.
    The amended marketing agreement was mailed to all cranberry 
handlers in the production area for their approval. The marketing 
agreement was approved by handlers representing more than 50 percent of 
the volume of cranberries handled by all handlers during the 
representative period of September 1, 2002, through August 31, 2003.

Small Business Considerations

    Pursuant to the requirements set forth in the Regulatory 
Flexibility Act (RFA), AMS has considered the economic impact of this 
action 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 so that small businesses will not be 
unduly or disproportionately burdened. Marketing orders and amendments 
thereto are unique in that they are normally brought about through 
group action of essentially small entities for their own benefit. Thus, 
both the RFA and the Act are compatible with respect to small entities.
    Small agricultural producers have been defined by the Small 
Business Administration (SBA) (13 CFR 121.201) as those having annual 
receipts of less than $750,000. Small agricultural service firms, which 
include handlers regulated under the order, are defined as those with 
annual receipts of less than $5,000,000.
    Interested persons were invited to present evidence at the hearing 
on the probable regulatory and informational impact of the proposed 
amendments on small businesses. The record indicates that these 
amendments will not result in additional regulatory requirements being 
imposed on some cranberry growers and handlers.
    There are about 20 handlers currently regulated under Marketing 
Order No. 929. In addition, the record indicates that there are about 
1,250 producers of cranberries in the current 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 2001, a total of 34,300 
acres were harvested with an average U.S. yield per acre of 156.2 
barrels. Grower prices in 2001 averaged $22.90 per barrel. Average 
total annual grower receipts for 2001 are estimated at $153,375 per 
grower. However, there are some growers whose estimated sales would 
exceed the $750,000 threshold. Thus, these amendments will apply almost 
exclusively to small entities.
    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 is marketed by about a dozen grower-handlers who 
handle their own crops. Dividing the remaining 3 percent of the crop by 
these grower-handlers, all would be considered small businesses.
    This action amends the order to: Increase Committee membership to 
13 grower members, 1 public member, 9 grower alternate members, 1 
public alternate member; Incorporate a ``swing'' position whereby the 
entity (either the major cooperative or the group representing other 
than the major cooperative) which handles more that 50 percent of the 
total volume of cranberries produced is assigned an additional seat; 
Revise nomination and selection provisions of the order, as well as 
quorum and voting requirements, to reflect the change in Committee 
membership; Authorize tenure limitations to be restarted with the 
seating of the expanded Committee; Re-establish districts and allocate 
the revised membership among those districts; Allow the Committee to 
request tax identification numbers for voting purposes; Authorize mail 
nominations for non-cooperative members; Revise the alternate member 
provisions to reflect the change in Committee membership and for 
clarity purposes; and Require Committee member disclosure of non-
regulated cranberry production.
    The amendment to increase Committee membership to 13 grower 
members, 1 public member, 9 grower alternate members, 1 public 
alternate member will increase the Committee's size by 6 members and 1 
alternate member. This will likely increase costs to the Committee with 
the additional members attending meetings. If alternate members are not 
required to attend all meetings, costs could be reduced. However, the 
record evidence supports increasing the Committee. The benefits of 
broadening the membership of the Committee and equitably allocating 
seats will outweigh increased costs. Since the implementation of volume 
regulations, more growers are expressing interest in being a part of 
the Committee's processes. Expansion of the Committee will allow more 
growers the opportunity to be involved in the process. The Committee's 
recommendation to not have one alternate for each member will provide 
appropriate district coverage for members that cannot attend meetings 
while taking costs into account. By increasing the membership to 14 and 
establishing 4 districts, regional representation will be maintained 
and additional representation to the largest growing regions will be 
provided.
    The amendment to include a member-at-large position on the 
Committee to the entity (either the major cooperative or the group 
representing other than the major cooperative) that handles more than 
50 percent of the total volume of cranberries produced will provide an 
additional member and alternate to the dominant group. This allows for 
recognition that the scale of the impact increases with the volume of 
cranberries produced and regulated.
    The amendment to reset term limitations for the current members 
will help maintain the experience and expertise needed so that the 
Committee can continue its operations with a minimum of disruptions.
    The amendment to allow nominations to be conducted by mail will 
allow more growers greater opportunity to participate on the Committee 
and provide for greater participation in the voting process. 
Administrative Committee costs associated with holding nomination 
meetings would decrease.
    The amendment to use growers' tax identification numbers in the 
voting process for the group representing other than the major 
cooperative will help ensure that only eligible growers qualify for 
nomination and the voting process.
    The amendment to revise and clarify which alternates can be seated 
in place of absent members is necessary to conform to the change in 
Committee structure. In addition, it will be beneficial as it more 
specifically designates which member seats each alternate can replace 
in the member's absence.
    The amendment to require Committee member disclosure of non-
regulated cranberry production will ensure that growers are informed of 
this information prior to casting their vote to nominate a 
representative on the Committee.
    All of these changes are designed to enhance the administration and 
functioning of the marketing agreement and order to the benefit of the 
industry. Accordingly, it is determined that the benefits of 
implementing these amendments will outweigh any associated costs. Costs 
are not anticipated to be significant.

Paperwork Reduction Act

    In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 
chapter 35), AMS obtained approval

[[Page 18805]]

from the Office of Management and Budget (OMB) for a new information 
collection request for Cranberries grown in 10 States, Marketing Order 
No. 929. The additional burden was merged into the information 
collection currently approved under OMB No. 0581-0189, Generic OMB 
Fruit Crops.
    Specifically, the amendment increasing membership on the Committee 
increases the overall burden of completion of Committee generated forms 
and reports relative to Committee membership. There will be no increase 
in the non-regulated disclosure amendment since that will only entail 
an acknowledgement as to whether the member has a financial interest in 
non-regulated production.
    The amendment authorizing mail nominations requires a nomination 
form and ballot to conduct mail nominations. It is estimated that there 
are approximately 500 growers who will be entitled to vote by mail 
ballot once every two years.
    The amendment to require growers to submit a tax identification 
number requires this information to be added to the grower sales and 
acreage report form (Form No. CMC-GSAR-1) currently approved under OMB. 
With minimal amount of time needed to add this number on the form, 
there will be no increase in burden for growers to complete this form.
    The information collection will be used only by authorized 
representatives of USDA, including AMS, Fruit and Vegetable Programs' 
regional and headquarters staff, and authorized Committee employees. 
Authorized Committee employees will be the primary users of the 
information and AMS is the secondary user.
    There were no responsive comments to the request for comments 
concerning the information collection burden.
    As with all Federal marketing order programs, reports and forms are 
periodically reviewed to reduce information requirements and 
duplication by industry and public sector agencies.
    The Department has not identified any relevant Federal rules that 
duplicate, overlap or conflict with this rule. These amendments are 
designed to enhance the administration and functioning of the marketing 
order to the benefit of the industry.
    Committee meetings to consider order amendments as well as the 
hearing dates were widely publicized throughout the cranberry industry, 
and all interested persons were invited to attend the meetings and the 
hearing and participate in Committee deliberations on all issues. All 
Committee meetings and the hearing were public forums and all entities, 
both large and small, were able to express views on these issues.

Civil Justice Reform

    The amendments herein have been reviewed under Executive Order 
12988, Civil Justice Reform. They are not intended to have retroactive 
effect. The amendments will not preempt any State or local laws, 
regulations, or policies, unless they present an irreconcilable 
conflict with the amendments.
    The Act provides that administrative proceedings must be exhausted 
before parties may file suit in court. Under section 608c(15)(A) of the 
Act, any handler subject to an order may file with USDA a petition 
stating that the order, any provision of the order, or any obligation 
imposed in connection with the order is not in accordance with law and 
request a modification of the order or to be exempted therefrom. A 
handler is afforded the opportunity for a hearing on the petition. 
After the hearing USDA would rule on the petition. The Act provides 
that the district court of the United States in any district in which 
the handler is an inhabitant, or has his or her principal place of 
business, has jurisdiction to review USDA's ruling on the petition, 
provided an action is filed not later than 20 days after date of the 
entry of the ruling.

Order Amending the Order Regulating 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

Findings and Determinations

    The findings and determinations hereinafter set forth are 
supplementary and in addition to the findings and determinations 
previously made in connection with the issuance of the order; and all 
of said previous findings and determinations are hereby ratified and 
affirmed, except insofar as such findings and determinations may be in 
conflict with the findings and determinations set forth herein.
    (a) Findings and Determinations Upon the Basis of the Hearing 
Record.
    Pursuant to the provisions of the Agricultural Marketing Agreement 
Act of 1937, as amended (7 U.S.C. 601 et seq.), and the applicable 
rules of practice and procedure effective thereunder (7 CFR part 900), 
a public hearing was held upon the proposed amendments to the Marketing 
Agreement and Order No. 929 (7 CFR part 929), regulating 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.
    Upon the basis of the evidence introduced at such hearing and the 
record thereof, it is found that:
    (1) The marketing agreement and order, as amended, and as hereby 
further amended, and all of the terms and conditions thereof, will tend 
to effectuate the declared policy of the Act;
    (2) The marketing agreement and order, as amended, and as hereby 
further amended, regulate the handling of cranberries grown in the 
production area in the same manner as, and is applicable only to 
persons in the respective classes of commercial and industrial activity 
specified in the marketing order upon which hearings have been held;
    (3) The marketing agreement and order, as amended, and as hereby 
further amended, are limited in application to the smallest regional 
production area which is practicable, consistent with carrying out the 
declared policy of the Act, and the issuance of several orders 
applicable to subdivisions of the production area would not effectively 
carry out the declared policy of the Act;
    (4) The marketing agreement and order, as amended and as hereby 
further amended, prescribe, insofar as practicable, such different 
terms applicable to different parts of the production area as are 
necessary to give due recognition to the differences in the production 
and marketing of cranberries grown in the production area; and
    (5) All handling of cranberries grown in the production area is in 
the current of interstate or foreign commerce or directly burdens, 
obstructs, or affects such commerce.
    (b) Additional findings.
    It is necessary and in the public interest to make these amendments 
to the order effective not later than one day after publication in the 
Federal Register.
    A later effective date would unnecessarily delay implementation of 
the amendments modifying and increasing Committee membership. These 
amendments were deemed necessary to be expedited because the current 
committee structure is inadequate. Therefore, making the effective date 
one day after publication in the Federal Register will allow the 
amendments, which are expected to be beneficial to the industry, to be 
implemented as soon as possible.
    In view of the foregoing, it is hereby found and determined that 
good cause exists for making these amendments

[[Page 18806]]

effective one day after publication in the Federal Register, and that 
it would be contrary to the public interest to delay the effective date 
for 30 days after publication in the Federal Register (Sec. 553(d), 
Administrative Procedure Act; 5 U.S.C. 551-559).
    (c) Determinations. It is hereby determined that:
    (1) Handlers (excluding cooperative associations of producers who 
are not engaged in processing, distributing, or shipping cranberries 
covered by the order as hereby amended) who, during the period 
September 1, 2002, through August 31, 2003, handled 50 percent or more 
of the volume of such cranberries covered by said order, as hereby 
amended, have signed an amended marketing agreement; and
    (2) The issuance of this amendatory order is favored or approved by 
at least two-thirds of the producers who participated in a referendum 
on the question of approval and who, during the period September 1, 
2002, through August 31, 2003 (which has been deemed to be a 
representative period), have been engaged within the production area in 
the production of such cranberries, such producers having also produced 
for market at least two-thirds of the volume of such commodity 
represented in the referendum.
    (3) The issuance of this amendatory order is favored or approved by 
processors who, during the period September 1, 2002, through August 31, 
2003 (which has been deemed to be a representative period), have 
engaged in canning or freezing cranberries for market and have frozen 
or canned more than 50 percent of the total volume of cranberries 
regulated which were canned or frozen within the production area.

Order Relative to Handling

    It is therefore ordered, That on and after the effective date 
hereof, all 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, shall be 
in conformity to, and in compliance with, the terms and conditions of 
the said order as hereby amended as follows:
    The provisions of the proposed marketing agreement and order 
further amending the order contained in the Secretary's Decision issued 
by the Administrator on December 4, 2003, and published in the Federal 
Register on December 12, 2003, shall be and are the terms and 
provisions of this order amending the order and are set forth in full 
herein.

List of Subjects in 7 CFR Part 929

    Cranberries, Marketing agreements, Reporting and recordkeeping 
requirements.

0
Accordingly, as stated in the preamble, AMS amends 7 CFR part 929 as 
follows:

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

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

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

0
2. 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 grower members, and 9 grower 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 
member-at-large who may be nominated from any of the marketing order 
districts.

    District 1: The States of Massachusetts, Rhode Island, and 
Connecticut;
    District 2: The State of New Jersey and Long Island in the State 
of New York.
    District 3: The States of Wisconsin, Michigan, and Minnesota.
    District 4: The States of Oregon and Washington.

                                                     Table 1
----------------------------------------------------------------------------------------------------------------
                                                                                 Other than        Other than
                                                Major             Major             major             major
                Districts                    cooperative       cooperative   -----------------------------------
                                                                                   Members         Alternates
----------------------------------------------------------------------------------------------------------------
1.......................................                 2                 1                 2                 1
2.......................................                 1                 1                 1                 1
3.......................................                 2                 1                 2                 1
4.......................................                 1                 1                 1                 1
                                         -------------------
Any.....................................                             1 member-at-large
----------------------------------------------------------------------------------------------------------------

    (d) Disclosure of unregulated production. All grower nominees and 
alternate grower nominees of the committee shall disclose any financial 
interest in the production of cranberries that are not subject to 
regulation by this part.
    (e) The committee may establish, with the approval of the 
Secretary, rules and regulations for the implementation and operation 
of this section.

0
3. 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. Provided, 
That following adoption of this amendment, the term of office for the 
initial members and alternates shall also include any time served prior 
to August 1 of the first even numbered year served. Members and 
alternate members shall serve the term of office for which they are 
selected and have been qualified or until their

[[Page 18807]]

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 or service on 
the committee by the initial members prior to August 1 of the first 
even-numbered year served 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 unless specifically exempted by the Secretary. The consecutive 
terms of office for alternate members shall not be so limited.
0
4. Revise Sec.  929.22 to read as follows:


Sec.  929.22  Nomination.

    (a) Initial members. As soon as practicable after adoption of this 
amendment, the committee shall hold nominations in accordance with this 
section. The names and addresses of all nominees shall be submitted to 
the Secretary for selection as soon as the nomination process is 
complete. Nominees selected for the initial Committee, following 
adoption of this amendment, shall serve a minimum of one two-year term 
beginning on August 1 of the first even-numbered year served.
    (b) Successor members. 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.
    (c) Whenever any cooperative marketing organization handles more 
than fifty percent of the total volume of cranberries produced during 
the fiscal period in which nominations for membership on the committee 
are made, such cooperative or growers affiliated therewith shall 
nominate:
    (1) Six qualified persons for members and four qualified persons 
for alternate members of the committee. These members and alternate 
members shall be referred to as the major cooperative members and 
alternate members. Nominee(s) for major cooperative member and major 
cooperative alternate member shall represent growers from each of the 
marketing order districts designated in Sec.  929.20.
    (2) A seventh major cooperative member shall be referred to as the 
major cooperative member-at-large. The major cooperative member-at-
large may be nominated from any of the marketing order districts.
    (3) Six qualified persons for members and four qualified persons 
for alternate members of the committee shall be nominated by those 
growers who market their cranberries through entities other than the 
major cooperative marketing organization. Nominees for member and 
alternate member representing entities other than the major cooperative 
marketing organization shall represent growers from each of the 
marketing order districts as designated in Sec.  929.20(c).
    (d) Whenever any major cooperative marketing organization handles 
50 percent or less of the total volume of cranberries produced during 
the fiscal period in which nominations for membership on the committee 
are made, the major cooperative or growers affiliated therewith, shall 
nominate:
    (1) Six qualified persons for major cooperative members and four 
qualified persons for major 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 members and four qualified persons 
for alternate members of the committee shall be nominated by those 
growers who market their cranberries through entities other than the 
major cooperative marketing organization. Nominees for member and 
alternate member shall represent growers from each of the marketing 
order districts as designated in Sec.  929.20(c).
    (3) A seventh member nominee shall be referred to as the member-at-
large representing entities other than the major cooperative marketing 
organization. The member-at-large may be nominated from any of the 
marketing order districts.
    (e) Nominations of qualified member nominees representing entities 
other than the major cooperative marketing organization 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 member nominees and alternate member nominees 
shall be conducted by mail ballot.
    (3) Eligible growers shall participate in the election of nominees 
from the district in which they reside.
    (4) When voting for member nominees, each eligible grower shall be 
entitled to cast one vote on behalf of him/herself.
    (5) The nominee receiving the highest number of votes cast in 
districts two and four shall be the member nominee representing 
entities other than the major cooperative marketing organization from 
that district. The nominee receiving the second highest number of votes 
cast in districts two and four shall be the alternate member 
representing entities other than the major cooperative marketing 
organization from that district.
    (6) The nominees receiving the highest and second highest number of 
votes cast in districts one and three shall be the member nominees 
representing entities other than the major cooperative marketing 
organization from that district. The nominee receiving the third 
highest number of votes cast in districts one and three shall be the 
alternate member representing entities other than the major cooperative 
marketing organization from that district.
    (f) Nominations for the member-at-large representing entities other 
than the major cooperative marketing organization 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 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 number of votes cast shall be 
designated the member-at-large nominee representing entities other than 
the major cooperative marketing organization. The nominee receiving the 
second highest number of votes cast shall be declared the alternate 
member-at-large nominee representing entities other than the major 
cooperative marketing organization.
    (g) The committee may request that growers provide their federal 
tax

[[Page 18808]]

identification number(s) in order to determine voting eligibility.
    (h) The names and addresses of all successor member nominees shall 
be submitted to the Secretary for selection no later than July 1 of 
each even-numbered year.
    (i) 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.

0
5. Revise Sec.  929.23 to read as follows:


Sec.  929.23  Selection.

    (a) From nominations made pursuant to Sec.  929.22(b), 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 handles more 
than 50 percent of the total volume of cranberries produced during the 
fiscal year in which nominations for membership on the committee are 
made, the Secretary shall select:
    (1) Six major cooperative members and four major cooperative 
alternate members from nominations made pursuant to Sec.  929.22(c)(1).
    (2) One major cooperative member-at-large from nominations made 
pursuant to Sec.  929.22(c)(2), and
    (3) Six members and four alternate members from growers who market 
their cranberries through other than the major cooperative marketing 
organization made pursuant to Sec.  929.22(c)(3).
    (c) Whenever any major cooperative marketing organization handles 
50 percent or less of the total volume of cranberries produced during 
the fiscal year in which nominations for membership on the committee 
are made, the Secretary shall select:
    (1) Six major cooperative members and four major cooperative 
alternate members from nominations made pursuant to Sec.  929.22(d)(1).
    (2) Six members and four alternate members from nominations made 
pursuant to Sec.  929.22(d)(2).
    (3) One member-at-large representing entities other than the major 
cooperative marketing organization from nominations made pursuant to 
Sec.  929.22(d)(3).

0
6. 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:
    (a) An alternate member representing the major cooperative shall 
not serve in place of a member representing other than the major 
cooperative or the public member.
    (b) An alternate member representing other than the major 
cooperative shall not serve in place of a major cooperative member or 
the public member.
    (c) A public alternate member shall not serve in place of any 
industry member.

0
7. 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 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.

    Dated: April 5, 2004.
A.J. Yates,
Administrator, Agricultural Marketing Service.
[FR Doc. 04-8072 Filed 4-8-04; 8:45 am]
BILLING CODE 3410-02-P