[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.
[[Page 21856]]
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
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Cooperative Cooperative Independent Independent
Districts members alternates members alternates
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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
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(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
[[Page 21857]]
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