[Federal Register: March 12, 2003 (Volume 68, Number 48)]
[Proposed Rules]
[Page 11756-11759]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr12mr03-13]
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DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Part 1218
[Doc. No. FV-03-701-PR]
Blueberry Promotion, Research, and Information Order; Amendment
No. 2 To Change the Name of the U.S.A. Cultivated Blueberry Council and
Increase Membership
AGENCY: Agricultural Marketing Service, USDA.
ACTION: Proposed rule with request for comments.
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SUMMARY: The purpose of this rule is to seek comments on changing the
title of the U.S.A. Cultivated Blueberry Council to the ``U.S. Highbush
Blueberry Council'' (Council) to help avoid any further confusion in
the industry regarding the specific type of blueberry and industry
segment represented by the Council, and to make the name of the Council
consistent with industry nomenclature and to add one member and
alternate to the Council to represent the state of Washington-the sixth
largest highbush blueberry producing state.
DATES: Comments must be received by May 12, 2003.
ADDRESSES: Interested persons are invited to submit written comments
concerning this proposed rule to: Docket Clerk, Research and Promotion
Branch, Fruit and Vegetable Programs (FV), Agricultural Marketing
Service (AMS), USDA, Stop 0244, Room 2535-S, 1400 Independence Avenue,
SW., Washington, DC 20250-0244. Comments should be submitted in
triplicate and will be made available for public inspection at the
above address during regular business hours. Comments may also be
submitted
[[Page 11757]]
electronically to: malinda.farmer@usda.gov. All comments should
reference the docket number and the date and page number of this issue
of the Federal Register. A copy of this rule may be found at:
http://www.ams.usda.gov/fv/rpdocketlist.htm
FOR FURTHER INFORMATION CONTACT: Daniel Rafael Manzoni, Research and
Promotion Branch, FV, AMS, USDA, Stop 0244, 1400 Independence Avenue,
SW., Room 2535-S, Washington, DC 20250-0244; telephone (202) 720-5951,
fax (202) 205-2800, or e-mail daniel.manzoni@usda.gov.
SUPPLEMENTARY INFORMATION: Legal authority. The Blueberry Promotion,
Research, and Consumer Information Order (Order) (7 CFR part 1218)
became effective on August 16, 2000 (65 FR 43961, July 17, 2000). It
was issued under the Commodity Promotion, Research, and Information Act
of 1996 (Act) (7 U.S.C. 7401-7425).
Executive Orders 12866 and 12988
The Office of Management and Budget has waived the review process
required by Executive Order 12866 for this action.
In addition, this rule has been reviewed under E.O. 12988, Civil
Justice Reform. The rule is not intended to have retroactive effect.
Section 524 of the Act provides that the Act shall not affect or
preempt any other Federal or state law authorizing promotion or
research relating to an agricultural commodity.
Under section 519 of the Act, a person subject to the Order may
file a petition with the Secretary of Agriculture (Secretary) stating
that the Order, any provision of the Order, or any obligation imposed
in connection with the Order, is not established in accordance with the
law, and requesting a modification of the Order or an exemption from
the Order. Any petition filed challenging the Order, any provision of
the Order, or any obligation imposed in connection with the Order,
shall be filed within two years after the effective date of the Order,
provision, or obligation subject to challenge in the petition. The
petitioner will have the opportunity for a hearing on the petition.
Thereafter, the Secretary will issue a ruling on a petition. The Act
provides that the district court of the United States for any district
in which the petitioner resides or conducts business shall have the
jurisdiction to review a final ruling on the petition, if the
petitioner files a complaint for that purpose not later than 20 days
after the date of the entry of the Secretary's final ruling.
Regulatory Flexibility Act
In accordance with the Regulatory Flexibility Act (RFA) (5 U.S.C.
601 et seq.), AMS has examined the economic impact of this rule on
small entities. The purpose of the RFA is to fit regulatory actions to
the scale of businesses subject to such actions so that small
businesses will not be disproportionately burdened.
There are approximately 2,000 producers, 200 first handlers, 50
importers, and 4 exporters of blueberries subject to the program. Most
of the producers would be classified as small businesses under the
criteria established by the Small Business Administration (SBA) (13 CFR
121.201). Most importers and first handlers would not be classified as
small businesses, and, while most exporters are large, we assume that
some are small. The SBA defines small agricultural handlers as those
whose annual receipts are less than $5 million, and small agricultural
producers are defined as those having annual receipts of not more than
$500,000 annually.
This proposed rule would amend the Order to change the title of the
U.S.A. Cultivated Blueberry Council to the ``U.S. Highbush Blueberry
Council'' (Council) and to add one member and alternate to the Council
to represent the state of Washington.
The proposed amendments are not considered to be substantial and
will not significantly impact the blueberry industry. The name change
will have a positive impact on the industry. Adding a producer member
and alternate representing the state of Washington means that four
additional producers will be required to submit background forms to
USDA in order to be considered for appointment to the Council. Four
producers will be affected because two names must be submitted to the
Secretary for consideration for each position on the Council. However,
serving on the Council is optional, and the burden of submitting the
background form would be offset by the benefits of serving on the
Council. The estimated annual cost of providing the information by four
producers would be $6.00 for all four producers or $1.50 per producer.
There are no relevant Federal rules that duplicate, overlap, or
conflict with the proposed rule.
We have performed this Initial Regulatory Flexibility Analysis
regarding the impact of this proposed amendment to the Order on small
entities, and we invite comments concerning potential effects of the
proposed amendment.
Paperwork Reduction Act
In accordance with the OMB regulation (5 CFR 1320) which implements
the Paperwork Reduction Act of 1995 (44 U.S.C. chapter 35), the
background form, which represents the information collection and
recordkeeping requirements that may be imposed by this rule, was
previously submitted to and approved by OMB under OMB Number 0505-0001.
Title: National Research, Promotion, and Consumer Information
Programs.
OMB Number: 0505-0001.
Expiration Date of Approval: October 31, 2003.
Type of Request: Increase in the information collection burden for
research and promotion programs.
Abstract: The information collection requirements in this request
are essential to carry out the intent of the Act. The burden associated
with this action is as follows:
Estimate of Burden: Public reporting burden for this collection of
information is estimated to average 0.5 hours per response for each
producer.
Respondents: Producers.
Estimated Number of Respondents: 4.
Estimated Number of Responses per Respondent: 1 every 3 years
(0.3).
Estimated Total Annual Burden on Respondents: 0.6 hours.
The estimated annual cost of providing the information by the four
producers would be $6.00 or $1.50 per producer.
This additional burden will be included in the existing information
collections approved for use under OMB Number 0505-0001.
Background
During the rulemaking process to implement the Order in 2000,
members of the wild blueberry industry in Maine raised objections to
the original name of the U.S.A. Blueberry Council. However, USDA did
not change the name at that time, and the wild blueberry industry
continued to have concerns to the generic name of the Council.
Therefore, USDA issued a proposed rule to change the name of the
Council to the U.S.A. Cultivated Blueberry Council on September 21,
2000 (65 FR 57104). The new name became effective on August 16, 2001,
with the publication of a final rule published in the Federal Register
on July 17, 2001 (66 FR 37117).
Subsequently, the Council was appointed and decided that the term
``cultivated'' in its name should be changed to ``highbush'' because
cultivated blueberries are commonly called highbush blueberries, and
wild blueberries are commonly called
[[Page 11758]]
lowbush blueberries. In addition, horticultural publications use the
nomenclature of highbush and lowbush for blueberries. Using the terms
highbush and lowbush provides a simple means for the consumer to
differentiate between these two types of blueberries and for industry
members to determine whether or not they owe assessments to the
Council. Accordingly, the Council recommends that the term highbush
should be used to distinguish their blueberries from lowbush (wild).
Therefore, the Council voted unanimously on October 5, 2002, to
change the Council's name to the U.S. Highbush Blueberry Council.
At the same meeting, the Council voted unanimously to add one
member and alternate to the Council to represent the state of
Washington.
The Council currently consists of nine producers, one importer, one
exporter from a foreign production area, one handler, and one public
member. Each member has an alternate. The nine producer members are
allocated as follows: one producer member for each of the top five
producing states and one producer member from each of the four regions.
The states that currently have representation on the Council are
Georgia, Michigan, New Jersey, North Carolina, and Oregon. In recent
years, highbush blueberry production in the state of Washington has
increased. In 2001, Washington represented 8 percent of U.S.
production, and the estimated production for that state in 2002 is 12.5
million pounds of highbush blueberries. In addition, the five
additional states producing highbush blueberries (Alabama, Arkansas,
Florida, Indiana, and New York) together represent only 7 percent of
U.S. production, and the seventh highest producing state-Indiana-is
expected to produce a total of 3 million pounds. Therefore, the Council
determined that it was appropriate for Washington producers to have a
state member and alternate on the Council.
Therefore, this proposed rule would change all references in the
Order from the U.S.A. Cultivated Blueberry Council to the U.S. Highbush
Blueberry Council and change all references to the USACBC to the
Council. In addition, this rule would revise Sec. 1216.40(a)(2) to
specify that there will be one producer member and alternate from each
of the top six (rather than five) blueberry producing states. If this
rule is adopted, the Council would have 14 members and alternates.
Therefore, a conforming change would be made in Sec. 1216.40(a) to
remove the Council member limit of 13. USDA has also removed obsolete
language from Sec. Sec. 1218.40 and 1218.41.
List of Subjects in 7 CFR Part 1218
Administrative practice and procedure, Advertising, Blueberries,
Consumer information, Marketing agreements, Blueberry promotion,
Reporting and recordkeeping requirements.
For the reasons set forth in the preamble, 7 CFR part 1218 is
proposed to be amended as follows:
1. The authority citation for part 1218 continues to read as
follows:
Authority: 7 U.S.C. 7401-7425.
PART 1218--BLUEBERRY PROMOTION, RESEARCH, AND INFORMATION
Subpart A--Blueberry Promotion, Research, and Information Order
2. In Sec. 1218.3, the words ``U.S.A. Cultivated Blueberry
Council'' are removed and the words ``U.S. Highbush Blueberry Council''
are added in its place, and ``USACBC'' is removed, and ``Council'' is
added in its place.
3. Revise Sec. 1216.23 to read as follows:
Sec. 1216.23 U.S. Highbush Blueberry Council.
U.S. Highbush Blueberry Council or the Council means the
administrative body established pursuant to Sec. 1218.40.
4. The undesignated center heading preceding Sec. 1218.40 is
revised to read as follows:
U.S. Highbush Blueberry Council
5. In Sec. 1218.40, the introductory text of paragraph (a) and
paragraphs (a)(2) and (b) are revised to read as follows:
Sec. 1218.40 Establishment and membership.
(a) Establishment of the U.S. Highbush Blueberry Council. There is
hereby established a U.S. Highbush Blueberry Council, hereinafter
called the Council, appointed by the Secretary from nominations as
follows:
* * * * *
(2) One producer member and alternate from each of the top six
blueberry producing states, based upon the average of the total tons
produced over the previous three years. Average tonnage will be based
upon production and assessment figures generated by the Council.
* * * * *
(b) Adjustment of membership. At least once every five years, the
Council will review the geographical distribution of United States
production of blueberries and the quantity of imports. The review will
be conducted through an audit of state crop production figures and
Council assessment records. If warranted, the Council will recommend to
the Secretary that the membership on the Council be altered to reflect
any changes in the geographical distribution of domestic blueberry
production and the quantity of imports. If the level of imports
increases, importer members and alternates may be added to the Council.
6. Section 1218.41 is revised to read as follows:
Sec. 1218.41 Nominations and appointments.
(a) Voting for regional and state representatives will be made by
mail ballot.
(b) When a state has a state blueberry commission or marketing
order in place, the state commission or committee will nominate members
to serve on the Council. At least two nominees shall be submitted to
the Secretary for each member and each alternate.
(c) Nomination and election of regional and state representatives
where no commission or order is in place will be handled by the Council
staff. The Council staff will seek nominations for members and
alternates from the specific states and/or regions. Nominations will be
returned to the Council office and placed on a ballot which will then
be sent to producers in the state and/or region for a vote. The final
nominee for member will have received the highest number of votes cast.
The person with the second highest number of votes cast will be the
final nominee for alternate. The persons with the third and fourth
highest number of votes cast will be designated as additional nominees
for consideration by the Secretary.
(d) Nominations for the importer, exporter, first handler, and
public member positions will be made by the Council. Two nominees for
each member and each alternate position will be submitted to the
Secretary for consideration.
(e) From the nominations, the Secretary shall select the members
and alternate members of the Council.
Sec. Sec. 1218.42, 1218.43, 1218.44, 1218.45, 1218.46, 1218.47,
1218.48, 1218.50, 1218.51, 1218.52, 1218.53, 1218.54, 1218.55, 1218.56,
1218.60, 1218.62, 1218.70, 1218.73, 1218.75, and 1218.77 [Amended]
7. In Sec. Sec. 1218.42, 1218.43, 1218.44, 1218.45, 1218.46,
1218.47, 1218.48, 1218.50, 1218.51, 1218.52, 1218.53, 1218.54, 1218.55,
1218.56, 1218.60, 1218.62, 1218.70, 1218.73, 1218.75, and 1218.77,
``USCABC'' is removed and ``Council'' is added in its place.
[[Page 11759]]
Dated: March 6, 2003.
Kenneth C. Clayton,
Acting Administrator.
[FR Doc. 03-5844 Filed 3-11-03; 8:45 am]
BILLING CODE 3410-02-P