[Federal Register: April 9, 2009 (Volume 74, Number 67)]
[Proposed Rules]
[Page 16265-16289]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr09ap09-23]
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Part II
Department of Agriculture
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Agricultural Marketing Service
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7 CFR Part 1208
Proposed Processed Raspberry Promotion, Research, and Information
Order; Referendum Procedures; Proposed Rules
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DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Part 1208
[Doc. No. AMS-FV-07-0077; FV-07-705-PR-1A]
RIN 0581-AC37
Proposed Processed Raspberry Promotion, Research, and Information
Order
AGENCY: Agricultural Marketing Service, USDA.
ACTION: Proposed rule with request for comments.
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SUMMARY: This rule proposes the establishment of an industry-funded
promotion, research, and information program for processed raspberries.
The proposed program, Processed Raspberry Promotion, Research, and
Information Order (Proposed Order), was submitted to the Department of
Agriculture (Department) by the Washington Red Raspberry Commission
(WRRC). Under the Proposed Order, producers of raspberries for
processing and importers of processed raspberries would pay an
assessment of up to one cent per pound, with the initial assessment
rate being one cent per pound, which would be paid to the proposed
National Processed Raspberry Council (Council). Producers and importers
of less than 20,000 pounds annually of raspberries for processing and
processed raspberries respectively would be exempt from the assessment.
The proposed program would be implemented under the Commodity
Promotion, Research, and Information Act of 1996 (1996 Act). An initial
referendum would be conducted among eligible producers of raspberries
for processing and importers of processed raspberries to determine
whether they favor the implementation of the program prior to it going
into effect. This rule also announces the Agricultural Marketing
Service's (AMS) intention to request approval of new processed
raspberries information collection requirements by the Office of
Management and Budget (OMB) for the Proposed Order.
DATES: Comments must be received by June 8, 2009. Pursuant to the
Paperwork Reduction Act (PRA), comments on the information collection
burden that would result from this proposal must be received by June 8,
2009.
ADDRESSES: Interested persons are invited to submit written comments on
the Internet at http://www.regulations.gov or to the Research and
Promotion Branch, Fruit and Vegetable Programs, AMS, USDA, 1400
Independence Avenue, SW., Stop 0244, Room 0632-S, Washington, DC 20250-
0244; fax: (202) 205-2800. All comments should reference the docket
number and the date and page number of this issue of the Federal
Register and will be made available for public inspection in the above
office during regular business hours or can be viewed at http://
www.regulations.gov.
Pursuant to PRA, comments regarding the accuracy of the burden
estimate, ways to minimize the burden, including the use of automated
collection techniques or other forms of information technology, or any
other aspect of this collection of information, should be sent to the
above address. In addition, comments concerning the information
collection should also be sent to the Desk Office for Agriculture,
Office of Information and Regulatory Affairs, Office of Management and
Budget, New Executive Office Building, 725 17th Street, NW., Room 725,
Washington, DC 20503.
FOR FURTHER INFORMATION CONTACT: Kimberly Coy, Marketing Specialist,
Research and Promotion Branch, Fruit and Vegetable Programs, AMS, USDA,
1400 Independence Avenue, SW., Room 0632, Stop 0244, Washington, DC
20250-0244; telephone: (202) 720-9915 or (888) 720-9917 (toll free); or
facsimile: (202) 205-2800; or e-mail: Kimberly.Coy@usda.gov.
SUPPLEMENTARY INFORMATION: This rule is issued pursuant to the
Commodity Promotion, Research, and Information Act of 1996 (1996 Act)
(7 U.S.C. 7411-7425).
Executive Order 12866
This rule has been determined not significant for purposes of
Executive Order 12866 and therefore has not been reviewed by the Office
of Management and Budget (OMB).
Executive Order 12988
This rule has been reviewed under Executive Order 12988, Civil
Justice Reform. It is not intended to have retroactive effect. This
rule will not preempt any state or local laws, regulations, or
policies, unless they represent an irreconcilable conflict with this
rule. Section 524 of the 1996 Act provides that it 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 1996 Act, a person subject to an order may
file a written petition with the Department stating that an order, any
provision of an order, or any obligation imposed in connection with an
order, is not established in accordance with the law, and requesting a
modification of an order or an exemption from an order. Any petition
filed challenging an order, any provision of an order, or any
obligation imposed in connection with an order, shall be filed within
two years after the effective date of an order, provision, or
obligation subject to challenge in the petition. The petitioner will
have the opportunity for a hearing on the petition. Thereafter, the
Department will issue a ruling on the petition. The 1996 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 Department's final ruling.
Executive Order 13132
This proposed rule has been reviewed under Executive Order 13132,
Federalism. This Executive Order directs agencies to construe, in
regulations and otherwise, a Federal Statute to preempt State law only
when the statute contains an express preemption provision. Section 524
of the 1996 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.
The WRRC and the Oregon Raspberry and Blackberry Commission (ORBC),
the principal producers of processed raspberries, both administer State
marketing orders, which require all producers of raspberries to pay
assessments to support the health of their respective industries. Both
the WRRC and ORBC invest funds into research programs at their land-
grant universities and other research institutions to study disease,
pest control, and varietal development. In addition to developing and
funding production research, they also fund marketing and promotion
programs and seek to foster education and communication between
producers. However, according to the WRRC, WRRC, ORBC and international
raspberry organizations have not been able to generate the funds
necessary to support the marketing efforts needed to help expand
processed raspberry consumption and increase the demand for processed
raspberries. In order to manage increased production, increased
competition, and changing consumer habits, the WRRC believes that a
more extensive marketing program is needed. The WRRC and ORBC believe
that a
[[Page 16267]]
national research and promotion program would fund the promotional
aspect necessary to stay competitive and would place all domestic
producers and importers on an equal playing field with each investing a
fair share in promoting processed raspberries. If a national processed
raspberry program is established, the WRRC and ORBC will continue to
fund processed raspberry research in areas not likely to be the focus
of the national program.
In accordance with the 1996 Act, this proposed rule would not
preempt any of these State-legislated programs. Further, section
1208.52(h) of the Proposed Order provides for credit of assessments for
those individuals who contribute to local, regional, or State
organizations that engage in similar generic research, promotion, and
information programs as partial fulfillment of assessments due to the
Council subject to approval of the Secretary, for expenditure on
generic research, promotion and information programs conducted within
the United States.
The proposed program is not intended to duplicate any State
program. Considerable attention is being made to involve producers in
discussions regarding future program development and administration and
what the State commissions would look like prior to the initial
referendum. It is expected that farm related activities, such as
production research, would continue to be funded by the State
organizations and market development functions, such as nutritional
research and marketing programs, would shift to the Proposed Order.
Not only were the States informed throughout the development of the
national program, they were instrumental in the processed raspberry
industry's decision to institute a national program.
In 2007, representatives from the WRRC were among other raspberry
industry representatives who met with AMS representatives to discuss
the possibility of implementing a national processed raspberry
promotion, research, and information program. WRRC representatives
participated in the development of the provisions of the Proposed Order
during these meetings and with direct communication with the Oregon
Raspberry and Blackberry Commission (ORBC).
Initial Regulatory Flexibility Act Analysis
In accordance with the Regulatory Flexibility Act (RFA) [5 U.S.C.
601-612], AMS is required to examine the impact of the proposed 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.
The Small Business Administration defines, in 13 CFR Part 121,
small agricultural producers as those having annual receipts of no more
than $750,000 and small agricultural service firms (handlers and
importers) as those having annual receipts of no more than $7.0
million. Under these criteria, the majority of the producers and
handlers that would be affected by this Proposed Order would be
considered small entities, while most importers would not. Future,
qualified organizations certified by the Secretary for nomination
purposes, would be expected to generally consist of entities reflecting
such sizes also. Producers and importers of less than 20,000 pounds per
year of raspberries for processing and processed raspberries
respectively would be exempt under this Proposed Order. Five organic
producers and importers are also expected to be exempt from
assessments. The number of entities assessed under the program would be
around 245. Estimated revenue is expected at $1.2 million of which 43
percent is expected from imported product and 57 percent from domestic
product.
According to the WRRC, in 2006, there were approximately 195
producers of raspberries for processing and 34 processors (first
handlers) of processed raspberries in Oregon and Washington States,
which are the principal growing areas in the United States for
raspberries destined for processing. Approximately 95 percent of the
producers and 100 percent of the raspberry processors qualified under
the definition for small business owners. Although California is a
significant producer of raspberries, virtually all harvested product is
destined for the fresh market. In 2006, there were approximately 50
importers. Based on the U.S. Department of Commerce, U.S. Census
Bureau, Foreign Trade Statistics, in 2006 two countries accounted for
96 percent of the processed raspberries imported into the United
States. These countries and their share of the imports are: Chile (78
percent) and Canada (18 percent).
The 1996 Act authorizes generic programs of promotion, research,
and information for agricultural commodities. Congress found that it is
in the national public interest and vital to the welfare of the
agricultural economy of the United States to maintain and expand
existing markets and develop new markets and uses for agricultural
commodities through industry-funded, government-supervised, generic
commodity promotion programs.
The WRRC submitted this Proposed Order to: (1) Develop and finance
an effective and coordinated program of research, promotion, industry
information, and consumer education regarding processed raspberries;
(2) strengthen the position of the processed raspberry industry; and
(3) maintain, develop, and expand existing markets for processed
raspberries.
While the Proposed Order would impose certain recordkeeping
requirements on first handlers, this information could be compiled from
records currently maintained. First handlers would collect and remit
the assessments on domestic processed raspberries to the Council. First
handler responsibilities would include accurate recordkeeping and
accounting on all raspberries purchased or contracted for processing
including the number of pounds handled, the names of their producers,
and the dates raspberries were purchased. The forms require the minimum
information necessary to effectively carry out the requirements of the
program, and their use is necessary to fulfill the intent of the 1996
Act. Such records must be retained for at least two years. This
information is already maintained as a normal business practice. In
addition, as these entities currently remit assessments under either
the Washington or Oregon State programs, the additional recordkeeping
and submission impact would be minimal.
There is also a minimal paperwork burden on producers. The Proposed
Order would require producers to keep records and to provide
information to the Council or the Department when requested. However,
it is not anticipated that producers would be required to submit forms
to the Council other than for nomination to the Council. If, for
example, the Council needs information from a producer as part of the
Council's compliance program, the information would need to be obtained
through an audit of the producer's records instead of having the
producer complete and submit paperwork.
In addition, there is a minimal burden on importers. The import
assessments would be collected by U.S. Customs and Border Protection
(Customs) at time of entry into the United States. Importers would be
required to keep records and to provide information to the Council or
the Secretary of Agriculture (Secretary) when requested. However, it is
not anticipated that importers would be required to submit forms to the
Council for assessment collection because Customs conducts
recordkeeping and
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assessment remittance at the time of product entry into the United
States. Importers who seek nomination to serve on the Council would be
required to complete a background form which would be submitted to the
Secretary.
Foreign producers from countries exporting a minimum of three
million pounds of raspberries for processing based on a three-year
average to the U.S. and at-large members seeking nomination to serve on
the Council would be required to complete a background form which would
be submitted to the Secretary.
The estimated annual cost of providing the information to the
Council by an estimated 297 respondents (195 producers, 50 importers,
34 first handlers/processors, 2 foreign producers, 5 organic producers
and importers, 10 certified organizations (for nomination purposes),
and 1 at-large member) would be $9,141.
Section 518 of the 1996 Act provides for referenda to ascertain
approval of the Proposed Order to be conducted either prior to its
going into effect or within three years after assessments first begin
under the Proposed Order. An initial referendum would be conducted
prior to putting this Proposed Order in effect. The Proposed Order also
provides for approval in a referendum to be based upon approval by a
majority of those persons voting in the referendum. Every seven years,
the Department shall conduct a referendum to determine whether
producers and importers of processed raspberries favor the
continuation, suspension, or termination of the Proposed Order. In
addition, the Department could conduct a referendum at any time; at the
request of 10 percent or more of all eligible producers of raspberries
for processing and processed raspberries importers required to pay
assessments; or if the Council requests that the Secretary hold a
referendum.
The United States is among the leading producers of raspberries.
Raspberries are grown in 46 states and are harvested late June to mid
August. The 2002 Census of Agriculture indicates that about 80 percent
of the U.S. raspberry acreage was in California, Oregon, and
Washington.
According to the United States Department of Agriculture's National
Agricultural Statistics Service (NASS) and the Foreign Agricultural
Service, in 2005, 178,300 million pounds of raspberries (fresh) with a
combined value approaching $246 million (value at point of first sale)
were produced in California, Oregon, and Washington, the three most
productive States for growing raspberries in the United States. In
2006, 179,850 million pounds were produced and utilized, at a value of
almost $275 million. California's crop is predominately delivered to
the fresh market, while Oregon and Washington are the principal
producers of processed raspberries.
Domestic production varies from year to year due to climatic
conditions and field health. Over the last fifteen years, total
domestic production of raspberries delivered to processors in the
United States (i.e., production utilized for processing) has increased
from 47.5 million pounds in 1991 to almost 75 million pounds in 2005
with most recent years averaging approximately 65 million pounds.
Washington continues to be the major supplier of processed raspberries
to the domestic market, although its market share declined from 72
percent to 51 percent between 2001 and 2006. In comparison, imported
raspberries have surged from 7.5 to 53.8 million pounds from 1991 to
2005 and decreased to 48.9 million pounds in 2006. Chile, which is the
predominate importer of processed raspberries to the United States,
supplied just over 30 percent of the market in 2005 and 2006.
Domestic uses of processed raspberries include further processing
into juices, jellies, baked goods, and consumer retailer packs. After
averaging approximately 100 million pounds for the period 1999 to 2004,
approximately 128 million pounds of processed raspberries were produced
and/or imported into the United States in 2005 and 111 million pounds
in 2006. These totals were calculated by using imports of frozen
raspberries (from USDA's Foreign Agricultural Service) and NASS reports
of production utilized for processing in Oregon and Washington. Because
of the way imports are currently reported, and because of the way NASS
reports raspberry data, the totals represent the best information
currently available.
The following countries are major exporters of raspberries to the
United States: Canada, Chile, China, France, and Poland. Canada and
Chile represented 91.5 percent share of total import tonnage in the
domestic United States market from 2002 to 2006, with 26 and 65.5
percent respectively.
The same growing conditions and harvesting period apply to the
Pacific Northwest and British Columbia, the major raspberry growing
region in Canada. Exports of processed frozen raspberries from British
Colombia to the United States ranged from 2.9 million metric tons to
5.7 million metric tons over the past five years.
Contra-season raspberry production in the southern hemisphere is
primarily located in Chile, with a harvest season beginning in December
and continuing into February. However, processed raspberries are
imported into the United States throughout the year.
The Proposed Order would authorize a fixed assessment paid by
producers of raspberries for processing and importers of processed
raspberries at a rate of up to one cent per pound, with the initial
assessment rate being one cent per pound. The assessment rate will be
reviewed, and increased or decreased as recommended by the Council and
approved by the Secretary after the first referendum is conducted as
stated in Sec. 1208.71 (a). Such an increase or decrease may occur not
more than once annually. Any change in the assessment rate shall be
subject to rulemaking by the Department, and will be reviewed, and
increased or decreased by the Secretary through rulemaking as
recommended by the Council. Any change in the assessment rate shall be
announced by the Council at least 30 days prior to going into effect.
The maximum assessment rate authorized is one cent per pound.
At the proposed rate of assessment of up to one cent per pound,
with the initial assessment rate being one cent per pound, the Council
would collect approximately $1.2 million annually based on an estimated
120 million pound supply from domestic raspberries for processing and
imports of processed raspberries. The domestic supply represents
approximately 57 percent of the total and imports represent 43 percent.
The Proposed Order would exempt producers and importers of less
than 20,000 pounds annually of raspberries for processing and processed
raspberries respectively. A review of producer delivery statistics from
Oregon and Washington States indicate that around 15 percent of all
producers would have been exempted from assessment in 2006 from the
proposed research and promotion program based on a 20,000 pounds
exemption threshold. Also, organic producers and importers would be
exempt from assessment. Section 515 of the 1996 Act provides for the
establishment of a board or council consisting of producers, importers,
and others in the marketing chain as appropriate. The Proposed Order
would provide for the establishment of the National Processed Raspberry
Council to administer the Proposed Order under AMS oversight. The
Secretary would appoint members to the Council from nominees submitted
in accordance with the Proposed Order. The WRRC proposed that the
Council be composed of 13 members and their alternates. The
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proposed Council membership is as follows: six producer members of
raspberries for processing from States producing a minimum of three
million pounds of raspberries delivered for processing; one producer
member of raspberries for processing representing all other States that
produce less than the minimum of three million pounds of raspberries
delivered for processing; three processed raspberry importer members;
two foreign producers from countries exporting a minimum of three
million pounds of raspberries for processing to the U.S. based on a
three-year average; and one at-large member recommended by the Council.
The distribution of producer member of raspberries for processing
positions among the States producing a minimum of three million pounds
of raspberries would be proportional to the average of the total pounds
delivered to the processor for processing over the previous three
years. The States that provide less than three million pounds will be
combined into one region and will have one producer representative.
Under the Proposed Order, the Council members and alternates will
serve for a term of three years and be able to serve a maximum of two
consecutive terms. When the Council is first established, four producer
members, two importers, one of the two foreign producers, and the at-
large member and their respective alternates will be assigned initial
terms of three years; and, three producer members, one importer member,
and the second foreign producer and their respective alternates will
serve an initial term of two years. Thereafter, each of these positions
will carry a full three-year term. Members serving an initial term of
two years will be eligible to serve a second three-year term to
complete their eligibility. Council nominations and appointments will
take place in two out of every three years. Each term of office will
end on December 31, and a new term will begin on January 1.
Producers and importers would represent those entities in the
United States. The United States would be defined to include
collectively the 50 States, the District of Columbia, the Commonwealth
of Puerto Rico and the territories and possessions of the United
States.
The nominations for the six producer and alternate members from
States producing a minimum three-year average of three million pounds
of raspberries delivered for processing will be submitted to the
Council in the following manner: (1) For those States that have a State
raspberry commission or State marketing order, the State commission or
committee will nominate producers and their alternates to serve; or (2)
for those States that do not have a State commission or State marketing
order, the Council will seek nominations from the State Departments of
Agriculture for members and alternates from the specific States.
For those States producing a minimum three-year average of three
million pounds of raspberries delivered for processing that have a
State raspberry commission or State marketing order, the State
commission or committee nominations will be returned to the Council and
placed on a ballot which will then be sent to producers in the State
for a vote. The 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 nominee for alternate. The persons with the
third and fourth place highest number of votes cast will be designated
as additional nominees for consideration by the Secretary. Once the
Council has received all of the nominations from commissions or
committees, the information will be submitted to the Secretary for
appointment. Nominations for the initial Council will be handled by the
Department. Subsequent nominations will be handled by the Council staff
and shall be submitted to the Secretary not less than 90 days prior to
the expiration of the term of office.
If the Department determines that there are no State raspberry
commissions or State marketing orders from States producing a minimum
three-year average of three million pounds of raspberries delivered for
processing, the Council will seek nominations from the State
Departments of Agriculture for members and alternates from the specific
States who may directly submit nominations to the Department for the
initial Council. Subsequent nominations shall be submitted to the
Council and will be handled by the Council staff who in turn shall
submit those nominations to the Secretary not less than 90 days prior
to the expiration of the term of office.
The distribution of the six producer and alternate seats will be
proportional to the percentage determined by the average of the total
pounds produced and delivered to processors for processing over the
previous three years divided by the average total pounds produced over
the previous three years. For example, if Washington State and Oregon
are the only two States producing a minimum of 3 million pounds each,
and Washington's previous three-year average is 62.4 million pounds and
Oregon's previous three-year average is 6.7 million pounds with the
average total pounds for the previous three years being 69.1 million
pounds, Washington would have 90 percent of the production and Oregon
would have 10 percent of the production. Therefore, Washington would
obtain five out of the six seats and Oregon would receive one seat.
The nomination for the one raspberry producer of raspberries for
processing and alternate member, who represents all other States
producing less than a minimum three-year average of three million
pounds of raspberries delivered for processing, will constitute a
region and the nominations will be submitted to the Council in the
following manner: (1) For those States that have a State raspberry
commission or State marketing order, the State commission or committee
will nominate producers and their alternates to serve; or (2) for those
States that do not have a State commission or State marketing order,
the Council will seek nominations from the State Departments of
Agriculture for the member and alternate from the specific States.
For those States producing less than a minimum three-year average
of three million pounds of raspberries delivered for processing that
have a State raspberry commission or State marketing order, the State
commission or committee nominations will be returned to the Council and
placed on a ballot which will then be sent to producers in the Region
for a vote. The 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 nominee for alternate. The persons with the
third and fourth place highest number of votes cast will be designated
as additional nominees for consideration by the Secretary. Once the
Council has received all of the nominations from commissions or
committees, the information will be submitted to the Secretary for
appointment. Nominations for the initial Council will be handled by the
Department. Subsequent nominations will be handled by the Council staff
and shall be submitted to the Secretary not less than 90 days prior to
the expiration of the term of office.
If the Department determines that there are no State raspberry
commissions or State marketing orders from States producing less than a
minimum three-year average of three million pounds of raspberries
delivered for processing, the Council will seek nominations from the
State Departments of Agriculture for members and alternates from the
specific States. The State Departments of Agriculture would
[[Page 16270]]
have the opportunity to participate in nomination caucuses and will
directly submit as a group a single slate of nominations to the
Department for the producer position and the producer alternate
position on the Council for the initial Council. Subsequent nominations
shall be submitted to the Council and will be handled by the Council
staff who in turn shall submit those nominations to the Secretary not
less than 90 days prior to the expiration of the term of office.
Only producers from States that deliver raspberries for processing
and pay assessments under the program are eligible for nomination and
election to the Council. Average production will be based upon
Department production data for the initial nomination and production
figures generated by either the Council or the Department thereafter.
Nominations for the three processed raspberry importer member
positions and their alternates will be made by qualified national
organizations representing importers. Two nominees for each member and
each alternate position will be submitted to the Secretary for
consideration.
All qualified national organizations representing importers would
have the opportunity to participate in nomination caucuses and will
submit as a group a single slate of nominations to the Secretary for
the importer positions and the importer alternate positions on the
Council.
Eligible organizations must submit nominations to the Department
not less than 90 days prior to the expiration of the term of office. To
become a qualified national organization representing importers under
the Proposed Order, each such organization would be required to meet
the following criteria: (1) Any organization representing importers
must represent a substantial number of importers who market a
substantial volume of raspberries for processing; (2) it must have a
history of stability and permanency and have been in existence for more
than one year; (3) it must promote processed raspberry importers'
welfare; and (4) it must derive a portion of its operating funds from
importers.
If the Department determines that there are no qualified national
organizations representing importers, individuals who have paid their
assessments to the Council in the most recent fiscal year or for the
initial Council, those that imported processed raspberries into the
U.S. in the most recent fiscal year, could directly submit nominations
to the Department for the initial Council. Subsequent nominations shall
be submitted to the Council and will be handled by the Council staff
who in turn shall submit those nominations to the Secretary not less
than 90 days prior to the expiration of the term of office.
Nominations for the two foreign producer member positions and their
alternates will be made by qualified organizations representing foreign
producers. Two nominees for each member and each alternate position
will be submitted to the Secretary for consideration.
All qualified organizations representing foreign producers would
have the opportunity to participate in nomination caucuses and will
submit as a group a single slate of nominations per country to the
Secretary for foreign producer positions and the foreign producer
alternate positions on the Council.
Eligible organizations must submit nominations to the Department
not less than 90 days prior to the expiration of the term of office. To
become a qualified organization representing foreign producers under
the Proposed Order, each such organization would be required to meet
the following criteria: (1) Any organization representing foreign
producers must represent a substantial number of foreign producers who
market or produce a substantial volume of raspberries for processing;
(2) it must have a history of stability and permanency and have been in
existence for more than one year; (3) it must promote processed
raspberry foreign producers' welfare; (4) it must derive a portion of
its operating funds from foreign producers; and (5) must be from a
country exporting a minimum of three million pounds of raspberries for
processing to the U.S. based on a three-year average.
If the Department determines that there are no qualified
organizations representing foreign producer interest, individual
foreign producers may directly submit nominations to the Department for
the initial Council. Subsequent nominations shall be submitted to the
Council and will be handled by the Council staff who in turn shall
submit those nominations to the Secretary not less than 90 days prior
to the expiration of the term of office.
In recommending the at-large member and alternate, the Council can
give consideration to nutrition health professionals and others
interested in the raspberry industry. Nominations for the at-large
member and alternate will be conducted at a Council meeting by the
Council staff and shall be submitted by the Council to the Secretary
for approval not less than 90 days prior to the expiration of the term
of office. Nominations for the initial Council will be handled by the
Department.
The 1996 Act provides that to ensure fair and equitable
representation, the composition of a board or council shall reflect the
geographic distribution of the production of the agriculture commodity
in the United States and the quantity or value of the agriculture
commodity imported into the United States. The Proposed Order states
that at least once every five years, but not more frequently than once
every three years, the Council will review the geographic distribution
of United States production of processed raspberries and the quantity
and source of processed raspberry imports. If warranted, the Council
will recommend to the Secretary that membership on the Council be
altered to reflect any changes in geographic distribution of domestic
raspberry production and the quantity of imports. Also, if the level of
imports increases or decreases, importer members and alternates may be
added or reduced on the Council. However, the foreign producer seats
will remain the same regardless of the volume of imports from importing
countries.
The Proposed Order provides that all officers, employees, and
agents of the Department and of the Council are required to keep
confidential all information obtained from persons subject to the
Proposed Order. This information would be disclosed only if the
Department considers the information relevant, and the information is
revealed in a judicial proceeding or administrative hearing brought at
the direction or on the request of the Department or to which the
Department or any officer of the Department is a party. However, the
issuance of general statements based on reports or on information
relating to a number of persons subject to the Proposed Order would be
permitted, if the statements do not identify the information furnished
by any person. Finally, the publication, by direction of the
Department, of the name of any person violating the Proposed Order and
a statement of the particular provisions of the Proposed Order violated
by the person would be allowed.
Proposed recordkeeping and reporting requirements for the raspberry
promotion, research, and information program would be designed to
minimize the burden on the raspberry industry.
The estimated total cost of providing information to the Council by
all respondents would be $9,141. This total has been estimated by
multiplying 277 total hours required for reporting and recordkeeping by
$33, the average mean
[[Page 16271]]
hourly earnings of various occupations involved in keeping this
information. Data for computation of this hourly rate was obtained from
the U.S. Department of Labor Statistics.
With regard to alternatives to this proposed rule, the 1996 Act
itself does provide for authority to tailor a program according to the
individual needs of an industry. Provision is made for permissive terms
in an order in section 516 of the 1996 Act, and other sections provide
for alternatives. Section 514 of the 1996 Act provides for orders
applicable to (1) producers, (2) first handlers and other persons in
the marketing chain as appropriate, and (3) importers (if imports are
subject to assessment). Section 516 states that an order may include an
exemption of de minimis quantities of an agricultural commodity;
different payment and reporting schedules; coverage of research,
promotion, and information activities to expand, improve, or make more
efficient the marketing or use of an agricultural commodity in both
domestic and foreign markets; provision for reserve funds; provision
for credits for generic activities for those individuals who contribute
to other similar generic research, promotion, and information programs
at State, regional or local level; and assessment of imports. In
addition, section 518 of the 1996 Act provides for referenda to
ascertain approval of an order to be conducted either prior to its
going into effect or within three years after assessments first begin
under the order. An order also may provide for its approval in a
referendum to be based upon (1) a majority of those persons voting; (2)
persons voting for approval who represent a majority of the volume of
the agricultural commodity; or (3) a majority of those persons voting
for approval who also represent a majority of the volume of the
agricultural commodity. Section 515 of the 1996 Act provides for
establishment of a council from among producers, first handlers, and
others in the marketing chain as appropriate and importers, if
importers are subject to assessment.
This proposal includes provisions for both domestic and foreign
market expansion and improvement; reserve funds; credits for generic
activities; assessments on imports; and an initial referendum to be
conducted prior to the Proposed Order going into effect. Approval would
be determined by a majority of producers and importers voting for
approval.
Similar to WRRC, Oregon also has a state raspberry commission, the
Oregon Raspberry and Blackberry Commission (ORBC). The WRRC and ORBC
both administer State marketing orders, which require all producers of
raspberries to pay assessments to support the health of their
respective industries. According to WRRC, the two commissions have
developed a good working relationship with each other over the years.
Both the WRRC and ORBC invest funds into research programs at their
land-grant universities and other research institutions to study
disease, pest control, and varietal development. In addition to
developing and funding production research, they also fund marketing
and promotion programs and seek to foster education and communication
between producers. However, according to the WRRC, WRRC, ORBC and
international raspberry organizations have not been able to generate
the funds necessary to support the marketing efforts needed to help
expand processed raspberry consumption and increase the demand for
processed raspberries. In order to manage increased production,
increased competition, and changing consumer habits, the WRRC believes
that a more extensive marketing program is needed. The WRRC and ORBC
believe that a national research and promotion program would fund the
promotional aspect necessary to stay competitive and would place all
domestic producers and importers on an equal playing field with each
investing a fair share in promoting processed raspberries. The Council
may provide credits of assessments for those individuals who contribute
to local, regional, or State organizations engaged in similar generic
research, promotion, and information programs as applied to assessment
due to the Council subject to approval of the Secretary, for
expenditure on generic research, promotion and information programs
conducted within the United States. If a national processed raspberry
program is established, the WRRC and ORBC will continue to fund
processed raspberry research in areas not likely to be the focus of the
national program.
The WRRC and ORBC programs are not able to engage raspberry
production in other States or countries in a meaningful way. The
proposed program is not intended to duplicate any State program.
Considerable attention is being made to involve producers in
discussions regarding future program development and administration and
what the State commissions would look like prior to the initial
referendum. It is expected that farm related activities, such as
production research, would continue to be funded by the State
organizations and market development functions, such as nutritional
research and marketing programs, would shift to the Proposed Order.
The WRRC proposed that producers and importers of less than 20,000
pounds annually of raspberries for processing and processed raspberries
respectively, be exempt from assessments. In addition, WRRC proposed
that a producer who operates under an approved National Organic Program
(NOP) system plan, produces only products eligible to be labeled as 100
percent organic under the NOP, and is not a split operation, be exempt
from paying assessments under the Proposed Order. An importer who
imports only products eligible to be labeled as 100 percent organic
under the NOP, and is not a split operation, would also be exempt from
paying assessments.
While the Department has performed this Initial Regulatory
Flexibility Analysis regarding the impact of the proposed rule on small
entities, in order to have as much data as possible for a more
comprehensive analysis of the effects of this rule on small entities,
we are inviting comments concerning potential effects. The Department
is also requesting comments regarding the number and size of entities
covered under the Proposed Order.
Paperwork Reduction Act
In accordance with the Paperwork Reduction Act of 1995 [44 U.S.C.
Chapter 35], AMS announces its intention to request an approval of a
new information collection and recordkeeping requirements for the
proposed Processed Raspberry Program.
Title: Advisory Committee or Research and Promotion Background
Information.
OMB Number for background form AD-755: (Approved under OMB No.
0505-0001).
Expiration Date of Approval: March 31, 2009.
Title: National Research, Promotion, and Consumer Information
Programs.
OMB Number: 0581-NEW.
Expiration Date of Approval: 3 years from approval date.
Type of Request: New information collection for research and
promotion programs.
Abstract: The information collection requirements in the request
are essential to carry out the intent of the 1996 Act.
There will also be the additional burden on producers and importers
voting in referenda. The referendum ballot, which represents the
information collection requirement relating to referenda, is addressed
in a proposed rule on referendum procedures which is published
separately in this issue of the Federal Register.
[[Page 16272]]
Under the proposed program, first handlers would be required to
collect assessments from producers and file reports with and submit
assessments to the Council. While the Proposed Order would impose
certain recordkeeping requirements on first handlers, information
required under the Proposed Order could be compiled from records
currently maintained. Such records shall be retained for at least two
years beyond the marketing year of their applicability.
Under the Proposed Order, importers are responsible to pay
assessments. Importers must report the total quantity of produce
imported during the reporting period and a record of each importation
of such product during such period, giving quantity, date, and port of
entry. Under the Proposed Order, Customs would collect assessments on
imported processed raspberries and remit the funds to the Council.
An estimated 297 respondents would provide information to the
Council. They would be 195 producers, 50 importers, 34 first handlers/
processors, 5 organic producers and importers (for exemption purposes),
2 foreign producers, 10 certified organizations (for nomination
purposes), and 1 at-large member. The estimated cost of providing the
information to the Council by respondents would be $9,141. This total
has been estimated by multiplying 277 total hours required for
reporting and recordkeeping by $33, the average mean hourly earnings of
various occupations involved in keeping this information. Data for
computation of this hourly rate was obtained from the U.S. Department
of Labor Statistics.
The Proposed Order's provisions have been carefully reviewed, and
every effort has been made to minimize any unnecessary recordkeeping
costs or requirements, including efforts to utilize information already
submitted under other raspberry programs administered by the Department
and other state programs.
The proposed forms would require the minimum information necessary
to effectively carry out the requirements of the program, and their use
is necessary to fulfill the intent of the 1996 Act. Such information
can be supplied without data processing equipment or outside technical
expertise. In addition, there are no additional training requirements
for individuals filling out reports and remitting assessments to the
Council. The forms would be simple, easy to understand, and place as
small a burden as possible on the person required to file the
information.
Collecting information yearly would coincide with normal industry
business practices. The timing and frequency of collecting information
are intended to meet the needs of the industry while minimizing the
amount of work necessary to fill out the required reports. The
requirement to keep records for two years is consistent with normal
industry practices. In addition, the information to be included on
these forms is not available from other sources because such
information relates specifically to individual producers, first
handlers, processors, foreign producers, and importers who are subject
to the provisions of the 1996 Act.
Therefore, there is no practical method for collecting the required
information without the use of these forms.
Information collection requirements that are included in this
proposal include:
(1) A Background Information Form AD-755 (OMB Form No. 0505-0001).
Estimate of Burden: Public reporting for this collection of
information is estimated to average 0.5 hours per response for each
Council nominee.
Respondents: Producers, importers, foreign producers, and at-large
nominee.
Estimated Number of Respondents: 26 (52 for initial nominations to
the Council, 26 in subsequent years).
Estimated Number of Responses per Respondent: 1 every 3 years.
(0.3)
Estimated Total Annual Burden on Respondents: 26 hours for the
initial nominations to the Council and 3.9 hours annually thereafter.
(2) An Annual Report by Each First Handler of Processed
Raspberries.
Estimate of Burden: Public reporting burden for this collection of
information is estimated to average 0.5 hours per first handler
reporting on processed raspberries handled.
Respondents: First handlers.
Estimated Number of Respondents: 34.
Estimated Number of Responses per Respondent: 1.
Estimated Total Annual Burden on Respondents: 17 hours.
(3) An Exemption Application for Producers and Importers Who Would
Be Exempt from Assessments.
Estimate of Burden: Public reporting burden for this collection of
information is estimated to average 0.25 hours per producers, or
importer reporting on processed raspberries produced or imported. Upon
approval of an application, producers and importers will receive
exemption certification.
Respondents: Exempt producers and importers.
Estimated Number of Respondents: 40.
Estimated Number of Responses per Respondent: 1.
Estimated Total Annual Burden on Respondents: 10 hours.
(4) Application for Reimbursement of Assessment.
Estimate of Burden: Public reporting burden for this collection of
information is estimated to average 0.25 hours per request for
reimbursement.
Respondents: Importers.
Estimated Number of Respondents: 10.
Estimated Number of Responses per Respondent: 1.
Estimated Total Annual Burden on Respondents: 2.5 hours.
(5) A Requirement To Maintain Records Sufficient To Verify Reports
Submitted Under the Order.
Estimate of Burden: Public recordkeeping burden for keeping this
information is estimated to average 0.5 hours per record keeper
maintaining such records.
Recordkeepers: Producers, first handlers, and importers.
Estimated Number of Recordkeepers: 297.
Estimated Total Recordkeeping Hours: 148.5 hours.
(6) Application for Certification of Organizations.
Estimate of Burden: Public recordkeeping burden for this collection
of information is estimated to average 0.5 hours per application.
Respondents: Importers and foreign producer organizations.
Estimated Number of Respondents: 10.
Estimated Number of Responses per Respondent: 1.
Estimated Total Annual Burden on Respondents: 5 hours.
(7) Nomination Appointment Form.
Estimate of Burden: Public recordkeeping burden for this collection
of information is estimated to average 0.25 hours per application.
Respondents: Producers, importers, and foreign producers.
Estimated Number of Respondents: 150.
Estimated Number of Responses per Respondent: 1.
Estimated Total Annual Burden on Respondents: 37.5 hours.
(8) Nomination Appointment Ballot.
Estimate of Burden: Public recordkeeping burden for this collection
of information is estimated to average 0.25 hours per application.
Respondents: Producers and importers.
Estimated Number of Respondents: 150.
Estimated Number of Responses per Respondent: 1.
Estimated Total Annual Burden on Respondents: 37.5 hours.
[[Page 16273]]
(9) Application for Assessments Credit.
Estimate of Burden: Public recordkeeping burden for this collection
of information is estimated to average 0.25 hours per application.
Respondents: Producers.
Estimated Number of Respondents: 50.
Estimated Number of Responses per Respondent: 1.
Estimated Total Annual Burden on Respondents: 12.5 hours.
(10) Organic Exemption Form.
Estimate of Burden: Public recordkeeping burden for this collection
of information is estimated to average 0.5 hours per exemption form.
Respondents: Producers and importers.
Estimated Number of Respondents: 5.
Estimated Number of Responses per Respondent: 1.
Estimated Total Annual Burden on Respondents: 2.5 hours.
Request for Public Comment Under the Paperwork Reduction Act
Comments are invited on: (a) Whether the proposed collection of
information is necessary for the proper performance of functions of the
Proposed Order and the Department's oversight of the Proposed Order,
including whether the information would have practical utility; (b) the
accuracy of the Department's estimate of the burden of the proposed
collection of information, including the validity of the methodology
and assumptions used; (c) the accuracy of the Department's estimate of
the principal growing areas in the United States for raspberries
destined for processing; (d) the accuracy of the Department's estimate
of the number of producers and first handlers of processed raspberries
that would be covered under the program; (e) ways to enhance the
quality, utility, and clarity of the information to be collected; and
(f) ways to minimize the burden of the collection of information on
those who are to respond, including the use of appropriate automated,
electronic, mechanical, or other technological collection techniques or
other forms of information technology.
Comments concerning the information collection requirements
contained in this action should reference OMB No. 0581-NEW. In
addition, the docket number, date, and page number of this issue of the
Federal Register also should be referenced. Comments should be sent to
the USDA Docket Clerk, Research and Promotion Branch, Fruit and
Vegetable Programs, AMS, USDA, 1400 Independence Avenue, SW., Stop
0244, Room 0632-S, Washington, DC 20250-0244. Comments may also be sent
by facsimile to (202) 205-2800 or electronically to http://
www.regulations.gov. All comments received will be available for public
inspection during regular business hours at the same address. Comments
regarding information collection should also be sent to the Office of
Management and Budget at: Desk Office for Agriculture, Office of
Information and Regulatory Affairs, Office of Management and Budget,
New Executive Office Building, 725 17th Street, NW., Room 725,
Washington, DC 20503.
OMB is required to make a decision concerning the collection of
information contained in this rule between 30 and 60 days after
publication. Therefore, a comment to OMB is best assured of having its
full effect if OMB receives it within 30 days of publication.
Background
This rule proposes the implementation of a Processed Raspberry
Promotion, Research, and Information Order (Proposed Order). The
Department received the proposal for a new Order from the Washington
Red Raspberry Commission (WRRC).
The Proposed Order is authorized under the 1996 Act which
authorizes the Department to establish agricultural commodity research
and promotion orders which may include a combination of promotion,
research, industry information, and consumer information activities
funded by mandatory assessments. These programs are designed to
maintain and expand market and uses for agricultural commodities. The
Proposed Order would provide for the continued development and
financing of a coordinated program of research, promotion, and
information for processed raspberries.
The 1996 Act provides for a number of optional provisions that
allow the tailoring of orders for different commodities. Section 516 of
the 1996 Act provides permissive terms for orders, and other sections
provide for alternatives. For example, section 514 of the 1996 Act
provides for orders applicable to (1) producers (if producers are
subject to assessment), (2) first handlers and others in the marketing
chain as appropriate, and (3) importers. Section 516 states that an
order may include an exemption of de minimis quantities of an
agricultural commodity; different payment and reporting schedules;
coverage of research, promotion, and information activities to expand,
improve, or make more efficient the marketing or use of an agricultural
commodity in both domestic and foreign markets; provision for reserve
funds; provision for credits for generic and branded activities; and
assessment of imports.
In addition, section 518 of the 1996 Act provides for referenda to
ascertain approval of an order to be conducted either prior to its
going into effect or within three years after assessments first begin
under the order. An order also may provide for its approval in a
referendum based upon different voting patterns. Section 515 provides
for establishment of a board or council from among producers, first
handlers and others in the marketing chain as appropriate, and
importers, if imports are subject to assessment.
This Proposed Order includes provisions for both domestic and
foreign market expansion and improvement, reserve funds, credit for
generic activities, and an initial referendum to be conducted prior to
the Proposed Order going into effect. Approval would be determined by a
majority of producers and importers voting for approval. Specific
procedures to be followed in the referendum will be published in a
separate Federal Register publication.
In accordance with the 1996 Act, the Department would oversee the
program's operations. In addition, the 1996 Act requires the Secretary
to conduct subsequent referenda: (1) Not later than seven years after
assessments first begin under the Proposed Order; or (2) at the request
of the Council established under the Proposed Order; or (3) at the
request of 10 percent or more of the number of persons eligible to
vote. In addition to these criteria, the 1996 Act provides that the
Secretary may conduct a referendum at any time to determine whether the
continuation, suspension, or termination of an order or a provision of
that order is favored by persons eligible to vote.
The WRRC has requested that a referendum be conducted every five
years to determine if producers and importers want the program to
continue. However, the Department has increased the time period to
seven years to make the Proposed Order consistent with other programs.
In addition, the Proposed Order allows for the Secretary to conduct a
subsequent referendum if 10 percent or more of all eligible producers
of raspberries for processing and importers of processed raspberries
request it; or if the Council requests a referendum to be held; or the
Secretary may hold one at any time.
A national research and promotion program for processed raspberries
would help the industry to address the
[[Page 16274]]
many market problems it currently faces. According to the WRRC, three
main factors currently affecting processed raspberry sales, both here
in the domestic market and abroad, are increasing production, increased
competition, and changing consumer habits.
U.S. per capita consumption of processed raspberries has inched
upward during the period 1991 to 2004, reaching a high of 0.3 pounds
per person in 2003 and 2005. Over this period, consumption has ranged
from 0.1 to 0.3 pounds per capita. This fluctuation is due to the
effects of population growth, demographics of consumers, and the
availability of substitute or competitive products. Profitability for
producers of raspberries for processing depends on maintaining and
increasing processed raspberry consumption. With crop value flat over
this period, an organized market development program that grew market
demand and increased per capita consumption could improve the farm gate
value for all suppliers of processed raspberries. The WRRC believes a
generic research and promotion program would provide an equitable
manner for producers to share in the costs of product development,
nutrition and marketing research, and processed raspberry promotion.
According to the Department's Foreign Agricultural Service
statistics, from 2002-2006, imports of processed raspberries have
increased market share in the U.S. The statistics also suggests that
the total market demand in the U.S. is continuing to grow, albeit at a
rate slower than supply. The industry believes that the proposed
processed raspberry program would increase demand, grow the market in
the aggregate for all suppliers, and increase the value of processed
raspberries at the grower level.
The processed raspberry industry is facing strong competition in
the marketplace from both indirect and direct competitors. Like all
food products, processed raspberries must compete for a share of the
consumer dollar. As competition in the supermarket increases, the
processed raspberry industry must work harder to gain its share of
consumer attention at a time when the industry's competitors expand
their promotional activities.
The WRRC was established in 1976 as a State-government entity
authorized by a State marketing order which requires producers of all
varieties of raspberries pay assessments to promote raspberry
awareness, consumption, and to conduct research programs to study pest
control and varietals development. There are over 40 different
suppliers of raspberry products who make up the WRRC. These members pay
the mandatory one-half cent per pound to fund promotion efforts
directed to both consumer and industrial users.
Similar to WRRC, Oregon also has a state raspberry commission, the
Oregon Raspberry and Blackberry Commission (ORBC). The WRRC and ORBC
both administer State marketing orders, which require all producers of
raspberries to pay assessments to support the health of their
respective industries. According to WRRC, the two commissions have
developed a good working relationship with each other over the years.
Both the WRRC and ORBC invest funds into research programs at their
land grant universities and other research institutions to study
disease, pest control, and varietal development. In addition to
developing and funding production research, they also fund marketing
and promotion programs and seek to foster education and communication
between producers. However, according to the WRRC, WRRC, ORBC and
international raspberry organizations have not been able to generate
the funds necessary to support the marketing efforts needed to help
expand processed raspberry consumption and increase the demand for
processed raspberries. In order to manage increased production,
increased competition, and changing consumer habits, the WRRC believes
that a more extensive marketing program is needed. The WRRC and ORBC
believe that a national research and promotion program would fund the
promotional aspect necessary to stay competitive and would place all
domestic producers and importers on an equal playing field with each
investing a fair share in promoting processed raspberries. The Council
may provide credits of assessments for those individuals who contribute
to local, regional, or State organizations engaged in similar generic
research, promotion, and information programs as applied to assessment
due to the Council subject to approval of the Secretary, for
expenditure on generic research, promotion and information programs
conducted within the United States. If a national processed raspberry
program is established, the WRRC and ORBC will continue to fund
processed raspberry research in areas not likely to be the focus of the
national program.
In 2006, an informal strategic review was conducted by the WRRC and
the Raspberry Industry Development Council, who represents raspberry
growers in British Columbia, Canada. During the strategic review,
public and private sector industry representatives and food processors
were interviewed seeking answers to the challenging dynamics facing the
raspberry industry. The participants in the raspberry industry
concluded that demand and market growth could best be accomplished by:
(1) Analyzing existing nutritional research and conducting new research
on the positive nutritional qualities of raspberries; (2) communicating
raspberries nutritional advantages to consumers, food processors, and
food industry in simple terms; and (3) increasing the number of new
raspberry products and the use of raspberries in existing products.
The raspberry industry recognizes that there currently exists a
strong scientific basis to support the health benefits of raspberries,
including processed raspberries, but the current data has not been
effectively communicated to food processors or consumers.
According to the WRRC, market growth for processed raspberries has
been impeded by disorganized and fractured marketing with no clear and
consistent message, and by a dearth of merchandising and new product
development. Additionally, scientifically validated health-based
research could have important marketing ramifications, but unless the
findings are accompanied by a clear consistent marketing message to
communicate significant results, there will be little or no impact on
increasing processed raspberry consumption.
In addition, the raspberry industry understands that consumers need
to know about foods that are good for their health. According to the
WRRC, it is widely accepted that North Americans are increasingly
concerned with improving their quality of life, and raspberries are
positioned to respond to this trend. Consumers will not sacrifice
flavor or enjoyment, and they are increasingly making food choices
based on how they affect their future health. Aging demographics are
creating demand for nutraceutical, health maintenance, and disease
prevention attributes in food products. Consumers want to maintain
health and vitality as they age. Foods such as raspberries can be
positively linked to achieving this desire.
WRRC stated that given processed raspberries low profile and
stagnant market, the raspberry industry must increase awareness of the
possible health attributes of raspberries, explore new product
applications, become established in new domestic market niches, and
develop new products if it is to realize its potential for market
development. WRRC believes that these
[[Page 16275]]
challenges facing the processed raspberry industry to grow the market
are not insurmountable. Through a generic research and promotion
program, the raspberry industry would be able to: Capitalize more
effectively on the possible health benefits of raspberries; improve
demand and strengthen their position in the marketplace; maintain and
expand existing domestic and foreign markets; and develop new markets
and uses for processed raspberries.
Additional funds generated through a national program would allow
the processed raspberry industry to take advantage of a wide range of
promotional opportunities. At a minimum, increased funding would allow
the industry to expand its current consumer, food service, and food
manufacturer promotion efforts.
Section 516(f) of the 1996 Act allows an order to authorize the
levying of assessments on imports of the commodity covered by the
program or on products containing that commodity, at a rate comparable
to the rate determined for the domestic agricultural commodity covered
by the order. WRRC has proposed to assess imports as well as domestic
product.
The assessment levied on domestically-produced and imported
processed raspberries would be used to pay for promotion, research, and
consumer and industry information as well as administration,
maintenance, and functioning of the Council. Expenses incurred by the
Secretary in implementing and administering the Proposed Order,
including referenda costs, also would be paid from assessments.
Assessments would be paid by producers and importers of 20,000 or more
pounds of raspberries for processing or processed raspberries
respectively. The number of entities assessed under the program would
be around 245. Estimated revenue is expected at $1.2 million of which
43 percent is expected from imported product and 57 percent from
domestic product.
Section 516(e)(1) and (2) of the 1996 Act allows the Secretary to
provide credits of assessments for generic and branded activities. The
WRRC has elected to propose credits for generic activities. The
Proposed Order gives the Council authority to provide credits of
assessments for those individuals who contribute to other similar
generic research, promotion, and information programs at the State,
regional, or local level subject to the approval of the Secretary. The
activities must be generic in nature and may not promote a particular
State or region's product. No credit will be given for funds expended
for administrative purposes.
Under the Proposed Order ``first handler'' would be defined as any
person (excluding a common or contract carrier) receiving raspberries
for processing from producers in a calendar year and who, as owner or
agent, ships or causes processed raspberries to be shipped as specified
in the Proposed Order. This definition includes those engaged in the
business of buying, selling and/or offering for sale, receiving,
packing, grading, marketing, or distributing raspberries in commercial
quantities. This definition excludes a retailer, except a retailer who
purchases or acquires from, or handles on behalf of, any producer of
raspberries for processing. The term first handler includes a producer
who handles or markets raspberries of the producer's own production. In
addition, ``handle'' would be defined to mean to process, package,
sell, transport, purchase or in any other way place processed
raspberries, or cause them to be placed, in the current of commerce.
This term includes selling processed raspberries imported into the
United States. This term does not include the transportation of fresh
raspberries by the producer to a handler or transportation by a
commercial carrier of fresh raspberries and organic raspberries,
whether processed or unprocessed for the account of the first handler
or producer.
First handlers would be responsible for the collection of
assessments from producers of raspberries for processing. In the case
of the producer acting as its own first handler, the producer would be
required to collect and remit its individual assessments. Such
assessments would be levied at a rate of up to one cent per pound, with
the initial assessment rate being one cent per pound, from the producer
and payment would be remitted by the collecting first handler to the
Council. First handlers would be required to maintain records for each
producer for whom raspberries for processing are handled, including
raspberries produced by the first handler. In addition, first handlers
would be required to file reports regarding the collection, payment, or
remittance of the assessments to the Council.
The Proposed Order would define importer as any person importing
20,000 or more pounds of processed raspberries into the United States
in a calendar year as a principal or as an agent, broker, or consignee
of any person who produces or handles processed raspberries outside of
the United States for sale in the United States, and who is listed in
the import records as the importer of record for such processed
raspberries.
Assessments on imported processed raspberries would be collected by
Customs at the time of entry into the United States and remitted to the
Council. If Customs does not collect an assessment from an importer,
the importer would be responsible for paying the assessment directly to
the Council. Section 516 (f) of the 1996 Act allows assessments on
imported product comparable to the assessment on domestic product.
Accordingly, the assessment rate for imported processed raspberries
would be up to one cent per pound, with the initial rate being one cent
per pound.
Persons failing to remit assessments due in a timely manner may
also be subject to actions under the Federal debt collection procedures
as set forth in 7 CFR 3.1 through 3.36 for all research and promotion
programs administered by the Department [60 FR 12533]. Interest and
late payment are also provided for in this Proposed Order.
The Proposed Order allows the Council to recommend to the Secretary
an increase or decrease to the assessment rate, if it deems appropriate
and if approved by at least one vote more than 50 percent of the total
votes of members present at a meeting of the Council. The initial
assessment will be levied at a rate of one cent per pound on all
processed raspberries. Thereafter, the assessment rate will be levied
at a rate of up to one cent per pound on all processed raspberries. The
assessment rate will be reviewed, and increased or decreased as
recommended by the Council and approved by the Secretary after the
first referendum is conducted as stated in Sec. 1208.71 (b). Such an
increase or decrease may occur not more than once annually. Any change
in the assessment rate shall be subject to rulemaking by the
Department, and will be reviewed, and increased or decreased by the
Secretary through rulemaking as recommended by the Council. Any change
in the assessment rate shall be announced by the Council at least 30
days prior to going into effect. The maximum assessment rate authorized
is one cent per pound.
All information obtained from persons subject to this Proposed
Order as a result of recordkeeping and reporting requirements would be
kept confidential by all officers, employees, and agents of the
Department and of the Council. This information may be disclosed only
if the Secretary considers the information relevant, and the
information is revealed in a judicial proceeding or administrative
hearing brought at the direction or on the
[[Page 16276]]
request of the Secretary or to which the Secretary or any officer of
the Department is a party. Other exceptions for disclosure of
confidential information would include the issuance of general
statements based on reports or on information relating to a number of
persons subject to an order, if the statements do not identify the
information furnished by any person or the publication; and by
direction of the Secretary of the name of any person violating the
Proposed Order and a statement of the particular provisions of the
Proposed Order violated by the person.
Under the Proposed Order producers and importers of less than
20,000 pounds a year of raspberries for processing and processed
raspberries respectively, are exempt from paying assessments. In
addition, a producer who operates under an approved National Organic
Program (NOP) system plan, produces only products eligible to be
labeled as 100 percent organic under the NOP, and is not a split
operation, is exempt from the paying assessments under the Proposed
Order. An importer who imports only products eligible to be labeled as
100 percent organic under the NOP, and is not a split operation, also
is exempt from paying assessments.
As the Proposed Order provides, producers and importers will be
responsible for paying assessments, however, the collection of
assessments will be the responsibility of the first handler receiving
the raspberries for processing or Customs for imported product. The
Proposed Order states that producers, handlers, and importers will also
be responsible for filing reports and maintaining records regarding the
amount of raspberries that were delivered for processing and the
assessments collected.
First handlers would be required to file reports and maintain
records on the total raspberries that were delivered for processing
from producers or the handling for their own product, on the total
number of pounds handled; number of pounds on which an assessment was
collected; name and address of the persons from whom the first handler
collected assessments on each pound handled; and the date the
collection of assessments was made on each pound handled. In addition,
producers would be required to provide the Council periodically such
information as may be required by the Council. The Council would
recommend to the Department specific reporting periods and dates when
such reports are due to the Council.
Unless otherwise provided by Customs, importers would be required
to report the total amount of processed raspberries imported during
such period, including the quantity, date, country of origin, and port
of entry. Under the Proposed Order, Customs would collect assessments
on imported processed raspberries and remit the funds to the Council.
Each first handler, producer, and importer of processed
raspberries, including those who would be exempt from paying
assessments under the Proposed Order, would be required to maintain any
books and records necessary to carry out the provisions of the Proposed
Order for two years beyond the fiscal period to which they apply. This
would include the books and records necessary to verify any required
reports. These books and records would be made available to the
Council's or Department's employees or agents during normal business
hours for inspection if necessary.
Section 515 of the 1996 Act provides for the establishment of a
board or council consisting of producers, first handlers, and others in
the marketing chain, as appropriate. The Department would appoint
members to the Council from nominees submitted in accordance with a
Proposed Order. The Proposed Order would provide for the establishment
of the Processed Raspberry Promotion, Research, and Information Order,
under AMS oversight. The WRRC proposed that the Council be composed of
thirteen members and their alternates. The Department made a slight
revision to the distribution of members originally proposed by the WRRC
to comply with geographical distribution of the production as required
under the 1996 Act. The proposed Council membership is as follows: Six
processed raspberry producer members from States producing a minimum of
three million pounds of raspberries delivered for processing; one
processed raspberry producer member representing all other States that
produce less than the minimum of three million pounds of raspberries
delivered for processing; three processed raspberry importer members;
two foreign producers from countries exporting a minimum of three
million pounds of raspberries for processing to the U.S. based on a
three-year average; and one at-large member recommended by the Council.
Under the Proposed Order, the Council members and alternates will
serve for a term of three years and be able to serve a maximum of two
consecutive terms. When the Council is first established, four producer
members, two importers, one at-large member, and one foreign producer
and their respective alternates will be assigned initial terms of three
years; and, three producer members, one importer members, and one
foreign producer member and their respective alternates will serve an
initial term of two years. Thereafter, each of these positions will
carry a full three-year term. Members serving an initial term of two
years will be eligible to serve a second three year term to complete
their eligibility. Council nominations and appointments will take place
in two out of every three years. Each term of office will end on
December 31, with new terms of office beginning on January 1.
Producers and importers would represent those entities in the
United States. The United States would be defined to include
collectively the 50 States, the District of Columbia, the Commonwealth
of Puerto Rico and the territories and possessions of the United
States.
The nominations for the six producer and alternate members from
States producing a minimum three-year average of three million pounds
of raspberries delivered for processing will be submitted to the
Council in the following manner: (1) For those States that have a State
raspberry commission or State marketing order, the State commission or
committee will nominate producers and their alternates to serve; or (2)
for those States that do not have a State commission or State marketing
order, the Council will seek nominations from the State Departments of
Agriculture for members and alternates from the specific States.
For those States producing a minimum three-year average of three
million pounds of raspberries delivered for processing that have a
State raspberry commission or State marketing order, the State
commission or committee nominations will be returned to the Council and
placed on a ballot which will then be sent to producers in the State
for a vote. The 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 nominee for alternate. The persons with the
third and fourth place highest number of votes cast will be designated
as additional nominees for consideration by the Secretary. Once the
Council has received all of the nominations from commissions or
committees, the information will be submitted to the Secretary for
appointment. Nominations for the initial Council will be handled by the
Department. Subsequent nominations will be handled by the Council staff
and shall be submitted to
[[Page 16277]]
the Secretary not less than 90 days prior to the expiration of the term
of office.
If the Department determines that there are no State raspberry
commissions or State marketing orders from States producing a minimum
three-year average of three million pounds of raspberries delivered for
processing, the Council will seek nominations from the State
Departments of Agriculture for members and alternates from the specific
States who may directly submit nominations to the Department for the
initial Council. Subsequent nominations shall be submitted to the
Council and will be handled by the Council staff who in turn shall
submit those nominations to the Secretary not less than 90 days prior
to the expiration of the term of office.
The distribution of the six producer and alternate seats will be
proportional to the percentage determined by the average of the total
pounds produced and delivered to processors for processing over the
previous three years divided by the average total pounds produced over
the previous three years. For example, if Washington State and Oregon
are the only two States producing a minimum of 3 million pounds each,
and Washington's previous three year average is 62.4 million pounds and
Oregon's previous three year average is 6.7 million pounds with the
average total pounds for the previous three years being 69.1 million
pounds, Washington would have 90 percent of the production and Oregon
would have 10 percent of the production. Therefore, Washington would
obtain five out of the six seats and Oregon would receive one seat.
The nomination for the one raspberry producer of raspberries for
processing and alternate member, who represents all other States
producing less than a minimum three year average of three million
pounds of raspberries delivered for processing, will constitute a
region and the nominations will be submitted to the Council in the
following manner: (1) For those States that have a State raspberry
commission or State marketing order, the State commission or committee
will nominate producers and their alternates to serve; or (2) for those
States that do not have a State commission or State marketing order,
the Council will seek nominations from the State Departments of
Agriculture for the member and alternate from the specific States.
For those States producing less than a minimum three year average
of three million pounds of raspberries delivered for processing that
have a State raspberry commission or State marketing order, the State
commission or committee nominations will be returned to the Council and
placed on a ballot which will then be sent to producers in the Region
for a vote. The 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 nominee for alternate. The persons with the
third and fourth place highest number of votes cast will be designated
as additional nominees for consideration by the Secretary. Once the
Council has received all of the nominations from commissions or
committees, the information will be submitted to the Secretary for
appointment. Nominations for the initial Council will be handled by the
Department. Subsequent nominations will be handled by the Council staff
and shall be submitted to the Secretary not less than 90 days prior to
the expiration of the term of office.
If the Department determines that there are no State raspberry
commissions or State marketing orders from States producing less than a
minimum three year average of three million pounds of raspberries
delivered for processing, the Council will seek nominations from the
State Departments of Agriculture for members and alternates from the
specific States. The State Departments of Agriculture would have the
opportunity to participate in nomination caucuses and will directly
submit as a group a single slate of nominations to the Department for
the producer position and the producer alternate position on the
Council for the initial Council. Subsequent nominations shall be
submitted to the Council and will be handled by the Council staff who
in turn shall submit those nominations to the Secretary not less than
90 days prior to the expiration of the term of office.
Only producers from States that deliver raspberries for processing
and pay assessments under the program are eligible for nomination and
election to the Council. Average production will be based upon
Department production data for the initial nomination and production
figures generated by either the Council or the Department thereafter.
Nominations for the three processed raspberry importer member
positions and their alternates will be made by qualified national
organizations representing importers. Two nominees for each member and
each alternate position will be submitted to the Secretary for
consideration.
All qualified national organizations representing importers would
have the opportunity to participate in nomination caucuses and will
submit as a group a single slate of nominations to the Secretary for
the importer positions and the importer alternate positions on the
Council.
Eligible organizations must submit nominations to the Department
not less than 90 days prior to the expiration of the term of office. To
become a qualified national organization representing importers under
the Proposed Order, each such organization would be required to meet
the following criteria: (1) Any organization representing importers
must represent a substantial number of importers who market a
substantial volume of raspberries for processing; (2) it must have a
history of stability and permanency and have been in existence for more
than one year; (3) it must promote processed raspberry importers'
welfare; and (4) it must derive a portion of its operating funds from
importers.
If the Department determines that there are no qualified national
organizations representing importers, individuals who have paid their
assessments to the Council in the most recent fiscal year or for the
initial Council those that importers processed raspberries into the
U.S. could directly submit nominations to the Department for the
initial Council. Subsequent nominations shall be submitted to the
Council and will be handled by the Council staff who in turn shall
submit those nominations to the Secretary not less than 90 days prior
to the expiration of the term of office.
Nominations for the two foreign producer member positions and their
alternates will be made by qualified organizations representing foreign
producers. Two nominees for each member and each alternate position
will be submitted to the Secretary for consideration.
All qualified organizations representing foreign producers would
have the opportunity to participate in nomination caucuses and will
submit as a group a single slate of nominations per country to the
Secretary for foreign producer positions and the foreign producer
alternate positions on the Council.
Eligible organizations must submit nominations to the Department
not less than 90 days prior to the expiration of the term of office. To
become a qualified organization representing foreign producers under
the Proposed Order, each such organization would be required to meet
the following criteria: (1) Any organization representing foreign
producers must represent a substantial number of foreign producers who
market or produce a substantial volume of raspberries for processing;
(2)
[[Page 16278]]
it must have a history of stability and permanency and have been in
existence for more than one year; (3) it must promote processed
raspberry foreign producers' welfare; (4) it must derive a portion of
its operating funds from foreign producers; and (5) it must be from a
country exporting a minimum of three million pounds of raspberries for
processing to the U.S. based on a three-year average.
If the Department determines that they are no qualified
organizations representing foreign producer interest, individual
foreign producers may directly submit nominations to the Department for
the initial Council. Subsequent nominations shall be submitted to the
Council and will be handled by the Council staff who in turn shall
submit those nominations to the Secretary not less than 90 days prior
to the expiration of the term of office.
In recommending the at-large member and alternate, the Council can
give consideration to nutrition health professionals and others
interested in the raspberry industry. Nominations for the at-large
member and alternate will be conducted at a Council meeting by the
Council staff and shall be submitted by the Council to the Secretary
for approval. Nominations for the initial Council will be handled by
the Department. Subsequent nominations will be handled by the Council
staff and shall be submitted to the Secretary not less than 90 days
prior to the expiration of the term of office.
The 1996 Act provides that to ensure fair and equitable
representation, the composition of a board or council shall reflect the
geographic distribution of the production of the agriculture commodity
in the United States and the quantity or value of the agriculture
commodity imported into the United States. The Order states that at
least once every five years, but not more frequently than once every
three years, the Council will review the geographic distribution of
United States production of raspberries for processing and the quantity
and source of processed raspberry imports. If warranted, the Council
will recommend to the Secretary that membership on the Council be
altered to reflect any changes in geographic distribution of domestic
raspberry production and the quantity of imports. Also, if the level of
imports increases, importer members and alternates may be added to the
Council. However, the foreign producer seats will remain the same
regardless of the volume of imports from importing countries.
Upon implementation of the Proposed Order and pursuant to the 1996
Act, the Council would at least once in each five-year period, but not
more frequently than once in each three-year period review the
geographical distribution of processed raspberries in the United States
and the quantity of processed raspberries imported into the United
States and make a recommendation to the Secretary after considering the
results of its review and other information it deems relevant regarding
the reapportionment of the Council.
The Proposed Order indicates the Council may recommend to the
Department that a member be removed from office if the member
consistently refuses to perform his or her duties or engages in
dishonest acts or willful misconduct. The Department may remove the
member if the Department finds that the Council's recommendation
demonstrates cause.
In the event any member or alternate of the Council ceases to be a
member of the category from which the member was appointed to the
Council, such position will automatically become vacant. Should any
member position become vacant the alternate of that member shall
automatically assume the position of member.
Under the Proposed Order, a quorum is met when a majority (one more
than half) of the Council members is present. An alternate will be
counted for the purpose of determining a quorum only if the members for
whom the person is the alternate is absent or disqualified from
participating. Also, under the Proposed Order, a change for any matter
put to the Council will carry if supported by one vote more than 50
percent of the total votes represented by the Council members present.
Under the Proposed Order, the chairperson of the Council must
reside in the United States and the Council will be located in the
United States.
The Proposed Order states that the Council may not expend for
administration, maintenance, and functioning of the Council in any
fiscal year an amount that exceeds 15 percent of the assessments and
other income received by the Council for that fiscal year.
The Department modified the WRRC's proposal to make it consistent
with the 1996 Act and to provide clarity, consistency, and correctness
with respect to word usage and terminology. The Department also changed
the proposal to make it consistent with other similar national research
and promotion programs. Changes made by the Department to the WRRC's
proposal include: (1) To add the term processor which is presented in
WRRC's proposal; (2) to specify the initial terms of office for the
Council and to stagger the terms for future years; (3) to modify the
criteria under nominations if a member or alternate is no longer
affiliated with the organization he or she was nominated to represent;
(4) to modify the four harmonized tariff codes that were presented and
reduce it to one harmonized tariff code; (5) to clarify the nomination
process for obtaining nominees for both States with State commissions
or committees and those that do not have State commissions; (6) to
clarify the nomination process for obtaining nominees from the minor
States and/or region in which the Council will handle instead of the
WRRC; (7) to add reports that may be required by producers and
importers; (8) to add the provision under subsequent referenda that the
Council may request a referendum be held as stated in the 1996 Act; (9)
to clarify the staggered terms of office and that members serving a two
year term will only be eligible to serve a second term; (10) to clarify
under the procedures that a quorum at a Council meeting will be a
majority of the Council members and alternates participating in the
meeting; (11) to clarify that any funds borrowed by the Council shall
be expended for startup costs and capital outlays and they are limited
to the first year of operation of the Council as stated in the 1996
Act; (12) to add language concerning the exemption procedures for
organic processed raspberries; (13) to add language concerning the
reports that the Council may require of producers and importers; (14)
to eliminate the word red from raspberries to conform with the
harmonized tariff code; (15) to eliminate voting by proxy; (16) to add
language under the procedures requiring that the chairperson and the
treasurer reside in the United States; (17) to add language under the
procedures requiring all Council meetings to be held in the United
States; (18) to add language under the procedures requiring the Council
office to be located in the United States; (19) to change the Council's
name from United States Raspberry Council to the National Processed
Raspberry Council; (20) to add language under the subsequent referendum
that complies with the 1996 Act concerning the Council requesting the
Secretary to conduct a referendum; (21) to add that importer
nominations will be handled by qualified national organizations; (22)
to add that foreign producer nominations will be handled by qualified
organizations; (23) to add nomination procedures for States producing a
minimum of three million
[[Page 16279]]
pounds of raspberries delivered for processing, and whose State does
not have a State commission or State marketing order; (24) to add
nomination procedures for States producing less than a minimum three
year average of three million pounds of raspberries delivered for
processing, and whose State does not have a State commission or State
marketing order; (25) to add the qualification process to become a
qualified organization representing importer or foreign producer
interests; and (26) to make a slight revision to the distribution of
members originally proposed by the WRRC to comply with geographical
distribution of the production as required under the 1996 Act.
The Proposed Order is summarized as follows: 1208.1 through 1208.29
of the Proposed Order define certain terms, such as processed
raspberries, first handler, and importer, which are used in the
Proposed Order.
Sections 1208.40 through 1208.48 include provisions relating to the
Council. These provisions cover establishment and membership,
nominations and appointments, term of office, vacancies, alternate
members, and procedures for conducting Council business, compensation
and reimbursement, and powers and duties of the Council, and prohibited
activities. The Council is the governing body authorized to administer
the Proposed Order through the implementation of programs, plans,
projects, budgets, and contracts to promote and disseminate information
about processed raspberries, subject to oversight of the Secretary.
Sections 1208.50 through 1208.56 cover budget review and approval;
financial statements; authorize the collection of assessments; specify
how assessments would be used, including reimbursement of necessary
expenses incurred by the Council for the performance of its duties and
expenses incurred for the Department's oversight responsibilities;
specify who pays the assessment and how; authorize the imposition of a
late-payment charge on past-due assessments; outline exemption
procedures; address programs, plans, and projects; require the Council
to periodically conduct an independent review of its overall program;
and address patents, copyrights, trademarks, information, publications,
and product formulations developed through the use of assessment funds.
The proposed assessment rate is up to one cent per pound for
domestic processed raspberries and imported processed raspberries, with
the initial assessment rate being one cent per pound. The assessment
rate will be reviewed, and increased or decreased as recommended by the
Council and approved by the Secretary after the first referendum is
conducted as stated in Sec. 1208.71 (a). Such an increase or decrease
may occur not more than once annually and may not exceed the initial
assessment rate of one cent per pound. Any change in the assessment
rate shall be subject to rulemaking by the Department, and will be
reviewed, and increased or decreased by the Secretary through
rulemaking as recommended by the Council. Any change in the assessment
rate shall be announced by the Council at least 30 days prior to going
into effect. The maximum assessment rate authorized is one cent per
pound.
The assessment rate may be raised or lowered at a rate greater than
one cent after the initial continuance referendum which would be
conducted after the program has been in operation five years. A
referendum to approve the new assessment rate or for any other change
is not required.
Sections 1208.60 through 1208.62 concerns reporting and
recordkeeping requirements for persons subject to the Proposed Order
and protect the confidentiality of information from such books,
records, or reports.
Sections 1208.70 through 1208.78 describe the rights of the
Secretary; address referenda; authorize the Secretary to suspend or
terminate the Proposed Order when deemed appropriate; prescribe
proceedings after termination; address personal liability,
separability, and amendments; and provide OMB control numbers.
While the proposal set forth below has not received the approval of
the Department, it is determined that this Proposed Order is consistent
with and will effectuate the purposes of the 1996 Act.
For the Proposed Order to become effective, it must be approved by
a majority of producers and importers voting for approval in the
referendum. Referendum procedures will be published separately in this
issue of the Federal Register.
A 60-day comment period is provided to allow interested persons to
respond to this proposal. All written comments received in response to
this rule by the date specified would be considered prior to finalizing
this action.
List of Subjects in 7 CFR Part 1208
Administrative practice and procedure, Advertising, Consumer
information, Marketing agreements, Raspberry promotion, Reporting and
recordkeeping requirements.
For the reasons set forth in the preamble, it is proposed that
Title 7, Chapter XI of the Code of Federal Regulations be amended by
adding part 1208 to read as follows:
PART 1208--PROCESSED RASPBERRY PROMOTION, RESEARCH, AND INFORMATION
ORDER
Subpart A--Processed Raspberry Promotion, Research, and Information
Order
Definitions
Sec.
1208.1 Act.
1208.2 Conflict of interest.
1208.3 Crop year.
1208.4 Customs.
1208.5 Department.
1208.6 First handler.
1208.7 Fiscal period.
1208.8 Foreign producer.
1208.9 Handle.
1208.10 Importer.
1208.11 Information.
1208.12 Market or marketing.
1208.13 National Processed Raspberry Council.
1208.14 Order.
1208.15 Part and subpart.
1208.16 Person.
1208.17 Processed raspberries.
1208.18 Processor.
1208.19 Producer.
1208.20 Promotion.
1208.21 Qualified national organization representing importer
interests.
1208.22 Qualified organization representing foreign producer
interests.
1208.23 Raspberries.
1208.24 Research.
1208.25 Secretary.
1208.26 State.
1208.27 Suspend.
1208.28 Terminate.
1208.29 United States.
National Processed Raspberry Council
1208.40 Establishment and membership.
1208.41 Nominations and appointments.
1208.42 Term of office.
1208.43 Vacancies.
1208.44 Alternate members.
1208.45 Procedure.
1208.46 Compensation and reimbursement.
1208.47 Powers and duties.
1208.48 Prohibited activities.
Expenses and Assessments
1208.50 Budget and expenses.
1208.51 Financial statements.
1208.52 Assessments.
1208.53 Exemption and reimbursement procedures.
1208.54 Programs, plans, and projects.
1208.55 Independent evaluation.
1208.56 Patents, copyrights, trademarks, information, publications,
and product formulations.
[[Page 16280]]
Reports, Books, and Records
1208.60 Reports.
1208.61 Books and records.
1208.62 Confidential treatment.
Miscellaneous
1208.70 Right of the Secretary.
1208.71 Referenda.
1208.72 Suspension and termination.
1208.73 Proceedings after termination.
1208.74 Effect of termination or amendment.
1208.75 Personal liability.
1208.76 Separability.
1208.77 Amendments.
1208.78 OMB control numbers.
Subpart B--[Reserved]
Authority: 7 U.S.C. 7411-7425; 7 U.S.C. 7401.
Subpart A--Processed Raspberry Promotion, Research, and Information
Order
Definitions
Sec. 1208.1 Act.
Act means the Commodity Promotion, Research, and Information Act of
1996 (7 U.S.C. 7411-7425), and any amendments thereto.
Sec. 1208.2 Conflict of interest.
Conflict of interest means a situation in which a member or
employee of the Council has a direct or indirect financial interest in
a person who performs a service for, or enters into a contract with,
the Council for anything of economic value.
Sec. 1208.3 Crop year.
Crop year means the 12-month period from April 1 to March 31 of the
following year or such other period approved by the Secretary.
Sec. 1208.4 Customs.
Customs means the United States Customs and Border Protection or
U.S. Customs Service, an agency of the United States Department of
Homeland Security.
Sec. 1208.5 Department.
Department means the United States Department of Agriculture or any
officer or employee of the Department to whom authority has heretofore
been delegated, or to whom authority may hereafter be delegated, to act
in the Secretary's stead.
Sec. 1208.6 First handler.
First handler means any person (excluding a common or contract
carrier) receiving raspberries for processing from producers in a
calendar year and who as owner or agent, ships or causes processed
raspberries to be shipped as specified in the Order. This definition
includes those engaged in the business of buying, selling and/or
offering for sale, receiving, packing, grading, marketing, or
distributing processed raspberries in commercial quantities. This
definition excludes a retailer, except a retailer who purchases or
acquires from, or handles on behalf of, any producer of raspberries for
processing. The term first handler includes a producer who handles or
markets raspberries for processing of the producer's own production.
Sec. 1208.7 Fiscal period.
Fiscal period means a calendar year from April 1 through March 31
both dates inclusive, or such other period as approved by the
Secretary.
Sec. 1208.8 Foreign producer.
Foreign producer means any person:
(a) Who is engaged in the production and sale of raspberries for
processing outside of the United States and who owns, or shares the
ownership and risk of loss of raspberries for processing for sale in
the U.S. market; or
(b) Who is engaged, outside of the United States, in the business
of producing, or causing to be produced, processed raspberries beyond
the person's own family use and having value at first point of sale.
Sec. 1208.9 Handle.
Handle means to pack, process, sell, transport, purchase, or in any
other way to place or cause processed raspberries to which one has
title or possession to be placed in the current of commerce. Such term
shall not include the transportation or delivery of raspberries for
processing by the producer thereof to a handler.
Sec. 1208.10 Importer.
Importer means any person importing 20,000 pounds or more of
processed raspberries into the United States in a calendar year as a
principal or as an agent, broker, or consignee of any person who
produces or handles processed raspberries outside of the United States
for sale in the United States, and who is listed in the import records
as the importer of record for such processed raspberries.
Sec. 1208.11 Information.
Information means information and programs that are designed to
increase efficiency in processing and to develop new markets, marketing
strategies, increase market efficiency, and activities that are
designed to enhance the image of raspberries on a national basis. These
include:
(a) Consumer information, which means any action taken to provide
information to, and broaden the understanding of, the general public
regarding the consumption, use, nutritional attributes, and care of
processed raspberries.
(b) Food industry information, which means any action taken to
provide information to, and broaden the understanding of, the food
industry regarding the consumption, use, nutritional attributes, and
care of processed raspberries.
(c) Industry information, which means any action taken to provide
information to or collect information from, and broaden the
underestimating of, the raspberry industry regarding the production,
consumption, use, nutritional attributes, and care of processed
raspberries.
Sec. 1208.12 Market or marketing.
(a) Marketing means the sale or other disposition of processed
raspberries in interstate, foreign or intrastate commerce.
(b) To market means to sell or otherwise dispose of processed
raspberries in any channel of commerce.
Sec. 1208.13 National Processed Raspberry Council.
National Processed Raspberry Council or such other name as
recommended by the Council and approved by the Department means the
administrative body established pursuant to Sec. 1208.40.
Sec. 1208.14 Order.
Order means an order issued by the Secretary under section 514 of
the Act that provides for a program of generic promotion, research, and
information regarding agricultural commodities authorized under the
Act.
Sec. 1208.15 Part and subpart.
Part means the Processed Raspberry Promotion, Research, and
Information Order and all rules, regulations, and supplemental orders
issued pursuant to the Act and the Order. The Order shall be a subpart
of such part.
Sec. 1208.16 Person.
Person means any individual, group of individuals, partnership,
corporation, association, cooperative, or any other legal entity.
Sec. 1208.17 Processed raspberries.
Processed raspberries means raspberries which have been frozen,
dried, pureed, made into juice, or delivered in any other form altered
by mechanical processes other than fresh.
Sec. 1208.18 Processor.
Processor means a person engaged in the preparation of raspberries
for processing for market who owns or who
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shares the ownership and risk of loss of such raspberries.
Sec. 1208.19 Producer.
Producer means any person who grows 20,000 pounds or more of
raspberries for processing in the United States for sale in commerce,
or a person who is engaged in the business of producing, or causing to
be produced for any market, raspberries for processing beyond the
person's own family use and having value at first point of sale.
Sec. 1208.20 Promotion.
Promotion means any action taken to present a favorable image of
processed raspberries to the general public and the food industry for
the purpose of improving the competitive position of processed
raspberries both in the United States and abroad and stimulating the
sale of processed raspberries including paid advertising and public
relations.
Sec. 1208.21 Qualified national organization representing importer
interests.
Qualified national organization representing importer interests
means an organization that the Secretary certifies as being eligible to
nominate importer and alternate importer members to the Council.
Sec. 1208.22 Qualified organization representing foreign producer
interests.
Qualified organization representing foreign producer interests
means an organization that the Secretary certifies as being eligible to
nominate foreign producer and alternate foreign producer members to the
Council.
Sec. 1208.23 Raspberries.
Raspberries mean and include all kinds, varieties, and hybrids of
cultivated raspberries of the genus ``Rubus'' grown in or imported into
the United States.
Sec. 1208.24 Research.
Research means any type of test, study, or analysis designed to
advance the image, desirability, use, marketability, production,
product development, or quality of raspberries, including but not
limited to research relating to nutritional value, cost of production,
new product development, health research, and marketing of processed
raspberries.
Sec. 1208.25 Secretary.
Secretary means the Secretary of Agriculture of the United States,
or any officer or employee of the Department to whom authority has been
delegated, or to whom authority may be delegated, to act in the
Secretary's stead.
Sec. 1208.26 State.
State means any of the several 50 States of the United States, the
District of Columbia, the Commonwealth of Puerto Rico, and the
territories and possessions of the United States.
Sec. 1208.27 Suspend.
Suspend means to issue a rule under section 553 of title 5 U.S.C.,
to temporarily prevent the operation of an order or part thereof during
a particular period of time specified in the rule.
Sec. 1208.28 Terminate.
Terminate means to issue a rule under section 553 of title 5
U.S.C., to cancel permanently the operation of an order or part thereof
beginning on a certain date specified in the rule.
Sec. 1208.29 United States.
United States means collectively the 50 states, the District of
Columbia, the Commonwealth of Puerto Rico, and the territories and
possessions of the United States.
National Processed Raspberry Council
Sec. 1208.40 Establishment and membership.
(a) Establishment of the National Processed Raspberry Council.
There is hereby established a National Processed Raspberry Council, or
such other name as recommended by the Council and approved by the
Department, hereinafter called Council, composed of thirteen (13)
members and thirteen (13) alternate members, appointed by the Secretary
from nominations as follows:
(1) Six (6) processed raspberry producer members and alternate
members from States producing a minimum of three (3) million pounds of
raspberries delivered for processing. Distribution of the seats among
the eligible States shall be proportional to the percent determined by
the average of the total pounds produced and delivered to processors
for processing over the previous three years divided by the average
total pounds by all of the eligible States for the previous three
years. Only States whose producers deliver raspberries for processing
and pay assessments are eligible for nomination and election to the
Council. Average production will be based upon either State production
figures or the Department data for the initial election, and production
figures generated by either the Council or the Department thereafter;
(2) One (1) processed raspberry producer member and alternate
member representing all other States producing less than a three (3)
million pounds of raspberries delivered for processing. All States
producing less than three million pounds of raspberries delivered for
processing will constitute a region from which one producer member and
alternate will be nominated to the Council. Only States whose producers
deliver raspberries for processing and pay assessments are eligible for
nomination and election to the Council. Average production will be
based upon either State production figures or the Department data for
the initial election, and production figures generated by either the
Council or the Department thereafter;
(3) Three (3) processed raspberry importer members and alternate
members;
(4) Two (2) foreign producers and their alternate members from
countries exporting a minimum of three million pounds of raspberries
for processing to the U.S., based on a three-year average; and
(5) One (1) at-large member and an alternate recommended by the
Council and shall be submitted by the Council to the Secretary for
approval. In recommending the at-large member and alternate, the
Council shall give consideration to nutrition health professionals and
others interested in raspberry industry. Nominations for the initial
Council will be handled by the Department.
(b) Adjustment of membership. At least once every five years, but
not more frequently than once every three years, the Council will
review the geographic distribution of United States production of
processed raspberries and the quantity and source of processed
raspberry imports. The review will be conducted through an audit of
State crop production figures and Council assessment receipts. If
warranted, the Council will recommend to the Secretary that membership
on the Council be altered to reflect any changes in geographic
distribution of domestic raspberry production for processing and the
quantity of imports. If the level of imports increases or decreases,
importer members and alternates may be added or reduced on the Council,
subject to recommendation by the Council and approval of the Secretary.
However, the foreign producer seats will remain the same regardless of
the volume of imports from importing countries.
Sec. 1208.41 Nominations and appointments.
(a) Voting for regional and State producer representatives will be
made by mail ballot.
(b) Nominations for the initial Council will be handled by the
Department. Subsequent nominations will be handled by the Council.
[[Page 16282]]
(c) The nominations for the six producer and alternate members from
States producing a minimum three year average of three million pounds
of raspberries delivered for processing will be submitted to the
Council in the following manner:
(1) For those States that have a State raspberry commission or
State marketing order, the State commission or committee will nominate
producers and their alternates to serve. Nominations will be returned
to the Council and placed on a ballot which will then be sent to
producers in the State for a vote. The 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 nominee for alternate. The
persons with the third and fourth place highest number of votes cast
will be designated as additional nominees for consideration by the
Secretary. Once the Council has received all of the nominations from
commissions or committees, the information will be submitted to the
Secretary for appointment. Nominations for the initial Council will be
handled by the Department. Subsequent nominations will be handled by
the Council staff and shall be submitted to the Secretary not less than
90 days prior to the expiration of the term of office; or
(2) For those States that do not have a State commission or State
marketing order, the Council will seek nominations from the State
Departments of Agriculture for members and alternates from the specific
States who may directly submit nominations to the Department for the
initial Council. Subsequent nominations shall be submitted to the
Council and will be handled by the Council staff who in turn shall
submit those nominations to the Secretary not less than 90 days prior
to the expiration of the term of office.
(3) The distribution of the six producer and alternate seats will
be proportional to the percentage determined by the average of the
total pounds produced and delivered to processors for processing over
the previous three years divided by the average total pounds produced
over the previous three years.
(d) The nomination for the one raspberry producer of raspberries
for processing and alternate member, who represents all other States
producing less than a minimum three year average of three million
pounds of raspberries delivered for processing, will constitute a
region and the nominations will be submitted to the Council in the
following manner:
(1) For those States that have a State raspberry commission or
State marketing order, the State commission or committee will nominate
producers and their alternates to serve. The State commission or
committee nominations will be returned to the Council and placed on a
ballot which will then be sent to producers in the Region for a vote.
The 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 nominee for alternate. The persons with the third and fourth place
highest number of votes cast will be designated as additional nominees
for consideration by the Secretary. Once the Council has received all
of the nominations from commissions or committees, the information will
be submitted to the Secretary for appointment. Nominations for the
initial Council will be handled by the Department. Subsequent
nominations will be handled by the Council staff and shall be submitted
to the Secretary not less than 90 days prior to the expiration of the
term of office; or
(2) For those States that do not have a State commission or State
marketing order, the Council will seek nominations from the State
Departments of Agriculture for the member and alternate from the
specific States. The State Departments of Agriculture would have the
opportunity to participate in nomination caucuses and will directly
submit as a group a single slate of nominations to the Department for
the producer position and the producer alternate position on the
Council for the initial Council. Subsequent nominations shall be
submitted to the Council and will be handled by the Council staff who
in turn shall submit those nominations to the Secretary not less than
90 days prior to the expiration of the term of office.
(e) Only producers from States that deliver raspberries for
processing and are covered under the program are eligible for
nomination and election to the Council. Average production will be
based upon Department production data for the initial nomination and
production figures generated by either the Council or the Department
thereafter.
(f) Nominations for the importer positions and their alternates
will be made by qualified national organizations representing importers
as follows:
(1) All qualified national organizations representing importers
would have the opportunity to participate in nomination caucuses and
will submit as a group a single slate of nominations to the Secretary
for the importer positions and the importer alternate positions on the
Council. Eligible organizations must submit nominations to the
Department not less than 90 days prior to the expiration of the term of
office. Two nominees for each member and each alternate position will
be submitted to the Secretary for consideration.
(2) If the Department determines that there are no qualified
national organizations representing importers, individuals who have
paid their assessments to the Council in the most recent fiscal year or
for the initial Council, those that imported processed raspberries into
the U.S., could directly submit nominations to the Department for the
initial Council. Subsequent nominations shall be submitted to the
Council and will be handled by the Council staff who in turn shall
submit those nominations to the Secretary not less than 90 days prior
to the expiration of the term of office.
(g) Nominations for the foreign producer positions and their
alternates will be made by qualified organizations representing foreign
producers as follows:
(1) All qualified organizations representing foreign producer
interests will have the opportunity to participate in nomination
caucuses and will submit as a group a single slate of nominations to
the Secretary for the foreign producer positions and the foreign
producer alternate positions on the Council.
(2) If the Department determines that there are no qualified
organizations representing foreign producer interests, individual
foreign producers may directly submit nominations to the Department for
the initial Council. Subsequent nominations shall be submitted to the
Council and will be handled by the Council staff who in turn shall
submit those nominations to the Secretary not less than 90 days prior
to the expiration of the term of office. For the initial Council,
persons that meet the definition of foreign producer as defined in this
subpart will certify such qualification and upon certification, if
qualified, may submit nominations. Two nominees for each member and
each alternate position will be submitted to the Secretary for
consideration.
(h) Nominations for the at-large member and alternate will be
conducted at a Council meeting by the Council and shall be submitted by
the Council to the Secretary for approval. Nominations for the initial
Council will be handled by the Department. Subsequent nominations will
be handled by the Council and shall be submitted to the
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Secretary not less than 90 days prior to the expiration of the term of
office.
(i) From the nominations, the Secretary shall select the members of
the Council and alternates for each position on the Council. Members
will serve until their replacements have been appointed by the
Secretary.
(j) If there is an insufficient number of nominees from whom to
appoint members to the Council, the Secretary may appoint members in
such a manner as the Secretary determines appropriate.
(k) Qualified national organization representing importer
interests. To be certified as a qualified national organization
representing importer interests, an organization must meet the
following criteria, as evidenced by a report submitted by the
organization to the Secretary:
(1) The organization must represent a substantial number of
importers who market or produce a substantial volume of raspberries for
processing;
(2) The organization has a history of stability and permanency and
has been in existence for more than one year;
(3) The organization must promote processed raspberries importers'
welfare; and
(4) The organization must derive a portion of its operating funds
from importers.
(l) Qualified organization representing foreign producer interests.
To be certified by the Secretary as a qualified organization
representing foreign producer interests, an organization must meet the
following criteria, as evidenced by a report submitted by the
organization to the Secretary:
(1) The organization must represent a substantial number of foreign
producers who produce a substantial volume of raspberries for
processing;
(2) The organization has a history of stability and permanency and
has been in existence for more than one year;
(3) The organization must promote processed raspberry foreign
producers' welfare;
(4) The organization must derive a portion of its operating funds
from foreign producers; and
(5) The organization must be from a country exporting a minimum of
three million pounds of raspberries for processing to the U.S. based on
a three-year average.
(m) Eligible organizations, foreign producers, or importers must
submit nominations to the Secretary not less than 90 days prior to the
expiration of the term of office. At least two nominees for each
position to be filled must be submitted.
Sec. 1208.42 Term of office.
Council members and alternates will serve for a term of three years
and be able to serve a maximum of two consecutive terms. A Council
member may serve as an alternate during the years the member is
ineligible for a member position. When the Council is first
established, four producer members, two importers, one of the two
foreign producers, and the at-large member and their respective
alternates will be assigned initial terms of three years. The remaining
three producer members, one importer member, and the second foreign
producer and their alternates will serve an initial term of two years.
Members serving an initial term of two years will be eligible to serve
a second term of three years. Thereafter, each of these positions will
carry a full three-year term. Council nominations and appointments will
take place in two out of every three years. Council members shall serve
during the term of office for which they are appointed and have
qualified, and until their successors are appointed and have qualified.
Each term of office will end on December 31, with new terms of office
beginning on January 1.
Sec. 1208.43 Vacancies.
(a) In the event that any member of the Council ceases to be a
member of the category of membership from which the member was
appointed to the Council, such position shall automatically become
vacant.
(b) If a member of the Council consistently refuses to perform the
duties of a member of the Council, or if a member of the Council
engages in acts of dishonesty or willful misconduct, the Council may
recommend to the Secretary that the member be removed from office. If
the Secretary finds the recommendation of the Council shows adequate
cause, the Secretary may remove such member from office.
(c) Should any member position become vacant, the alternate of that
member shall automatically assume the position of said member. Should
the positions of both a member and such member's alternate become
vacant, successors for the unexpired terms of such member and alternate
shall be appointed in the manner specified in Sec. 1208.40 and Sec.
1208.41, except that said nomination and replacement shall not be
required if said unexpired terms are less than six months.
Sec. 1208.44 Alternate members.
An alternate member of the Council, during the absence of the
member for whom the person is the alternate, shall act in the place and
stead of such member and perform such duties as assigned. In the event
of death, removal, resignation, or disqualification of any member, the
alternate for that member shall automatically assume the position of
said member. In the event that a producer, importer, foreign producer,
or at-large member of the Council and their alternate are unable to
attend a meeting, the Council may not designate any other alternate to
serve in such member's or alternate's place and stead for such a
meeting.
Sec. 1208.45 Procedure.
(a) At a Council meeting, it will be considered a quorum when a
majority (one more than half) of the Council members is present. An
alternate will be counted for the purpose of determining a quorum only
if the member for whom the person is the alternate is absent or
disqualified from participating.
(b) At the start of each fiscal period, the Council will select a
chairperson, vice chairperson, and other officers as appropriate, who
will conduct meetings throughout that period.
(c) The chairperson and the treasurer shall reside in the United
States, and the Council office shall also be located in the United
States.
(d) All Council meetings shall be held in the United States.
(e) All Council members and alternates will receive a minimum of 20
days advance notice of all Council and committee meetings.
(f) Each member of the Council will be entitled to one vote on any
matter put to the Council, and the motion will carry if supported by
one (1) vote more than 50 percent of the total votes represented by the
Council members present.
(g) It will be considered a quorum at a Council committee meeting
when at least one more than half of those assigned to the Council
committee are present. Alternates may also be assigned to Council
committees as necessary. Council committees may consist of persons
other than Council members and such persons may vote in Council
committee meetings.
(h) In lieu of voting at a properly convened meeting and, when in
the opinion of the chairperson of the Council such action is considered
necessary, the Council may take action if supported by one vote more
than 50 percent of the members present, by mail, telephone, electronic
mail, facsimile, or any other means of communication, and all telephone
votes shall be confirmed promptly in writing. In that event, all
members must be notified and provided the opportunity to vote. Any
action so taken shall have
[[Page 16284]]
the same force and effect as though such action had been taken at a
properly convened meeting of the Council. All votes shall be recorded
in Council minutes.
(i) There shall be no voting by proxy.
(j) The chairperson shall be a voting member.
(k) The organization of the Council and the procedures for the
conducting of meetings of the Council shall be in accordance with its
bylaws, which shall be established by the Council and approved by the
Secretary.
Sec. 1208.46 Compensation and reimbursement.
The members of the Council, and alternates when acting as members,
shall serve without compensation but shall be reimbursed for reasonable
travel expenses, as approved by the Council, incurred by them in the
performance of their duties as Council members.
Sec. 1208.47 Powers and duties.
The Council shall have the following powers and duties:
(a) To administer the Order in accordance with its terms and
conditions and to collect assessments;
(b) To develop and recommend to the Secretary for approval such
bylaws as may be necessary for the functioning of the Council, and such
rules as may be necessary to administer the Order, including activities
authorized to be carried out under the Order;
(c) To meet, organize, and select from among the members of the
Council a chairperson, other officers, committees, and subcommittees,
as the Council determines to be appropriate;
(d) To employ persons, other than members, as the Council considers
necessary to assist the Council in carrying out its duties and to
determine the compensation and specify the duties of such persons;
(e) To develop and carry our generic promotion, research, and
information activities relating to processed raspberries;
(f) To develop programs and projects, and enter into contracts or
agreements, which must be approved by the Secretary before becoming
effective, for the development and carrying out of programs or projects
of research, information, or promotion, and the payment of costs
thereof with funds collected pursuant to this subpart. Each contract or
agreement shall provide that any person who enters into a contract or
agreement with the Council shall develop and submit to the Council a
proposed activity; keep accurate records of all of its transactions
relating to the contract or agreement; account for funds received and
expended in connection with the contract or agreement; make periodic
reports to the Council of activities conducted under the contract or
agreement; and make such other reports available as the Council or the
Secretary considers necessary. Any contract or agreement shall provide
that:
(1) The contractor or agreeing party shall develop and submit to
the Council a program, plan, or project together with a budget or
budgets that shall show the estimated cost to be incurred for such
program, plan, or project;
(2) The contractor or agreeing party shall keep accurate records of
all its transactions and make periodic reports to the Council of
activities conducted, submit accounting for funds received and
expended, and make such other reports as the Secretary or the Council
may require;
(3) The Secretary may audit the records of the contracting or
agreeing party periodically;
(4) Any subcontractor who enters into a contract with a Council
contractor and who receives or otherwise uses funds allocated by the
Council shall be subject to the same provisions as the contractor;
(g) To prepare and submit for approval of the Secretary, before the
beginning of each fiscal year, rates of assessment and a fiscal year
budget of the anticipated expenses to be incurred in the administration
of the Order, including the probably cost of each promotion, research,
and information activity proposed to be developed or carried out by the
Council in accordance with Sec. 1208.50;
(h) To borrow funds necessary for the startup expenses of the
order;
(i) To maintain such records and books and prepare and submit such
reports and records from time to time to the Secretary as the Secretary
may require and to make the records available to the Secretary for
inspection and audit; to make appropriate accounting with respect to
the receipt and disbursement of all funds entrusted to it; and to keep
records that accurately reflect the actions and transactions of the
Council;
(j) To cause its books to be audited by a independent auditor at
the end of each fiscal year and at such other times as the Secretary
may request, and to submit a report of the audit directly to the
Secretary;
(k) To give the Secretary the same notice of meetings of the
Council as is given to members in order that the Secretary's
representative(s) may attend such meetings, and to keep and report
minutes of each meeting of the Council to the Secretary;
(l) To act as intermediary between the Secretary and any producer,
first handler, processor, importer, or foreign producer;
(m) To furnish to the Secretary any information or records that the
Secretary may request;
(n) To receive, investigate, and report to the Secretary complaints
of violations of the Order;
(o) To recommend to the Secretary such amendments to the Order as
the Council considers appropriate;
(p) To work to achieve an effective, continuous, and coordinated
program of promotion, research, consumer information, evaluation, and
industry information designed to strengthen the processed raspberry
industry's position in the marketplace; maintain and expand existing
markets and uses for processed raspberries; and to carry out programs,
plans, and projects designed to provide maximum benefits to the
processed raspberry industry; and
(q) To pay the cost of the activities with assessments collected
under Sec. 1208.52.
Sec. 1208.48 Prohibited activities.
The Council may not engage in, and shall prohibit the employees and
agents of the Council from engaging in:
(a) Any action that would be a conflict of interest;
(b) Using funds collected by the Council under the Order to
undertake any action for the purpose of influencing legislation or
governmental action or policy, by local, state, national, and foreign
governments, other than recommending to the Secretary amendments to the
Order; and
(c) Any advertising, including promotion, research, and information
activities authorized to be carried out under the Order that may be
false or misleading or disparaging to another agricultural commodity.
Expenses and Assessments
Sec. 1208.50 Budget and expenses.
(a) At least 60 days prior to the beginning of each fiscal year,
and as may be necessary thereafter, the Council shall prepare and
submit to the Secretary a budget for the fiscal year covering its
anticipated expenses and disbursements in administering this subpart.
The budget for research, promotion, or information may not be
implemented prior to approval of the budget by the Secretary. No later
than forty-five (45) days after the receipt of such budget, the
Secretary shall notify the Council whether the Secretary approves or
disapproves the budget. Each budget shall include:
[[Page 16285]]
(1) A statement of objectives and strategy for each program, plan,
or project;
(2) A summary of anticipated revenue, with comparative data or at
least one preceding year (except for the initial budget); and
(3) A summary of proposed expenditures for each program, plan, or
project;
(4) Staff and administrative expense breakdowns, with comparative
data for at least one preceding year (except for the initial budget).
(b) Each budget shall provide adequate funds to defray its proposed
expenditures and to provide for a reserve as set forth in this subpart.
(c) Subject to this section, any amendment or addition to an
approved budget must be approved by the Secretary, including shifting
funds from one program, plan, or project to another. Shifts in funds
which do not cause an increase in the Council's approved budget, and
which are consistent with by laws, need not have prior approval by the
Department.
(d) The Council is authorized to incur such expenses, including
provision for a reasonable reserve, as the Secretary finds are
reasonable and likely to be incurred by the Council for its maintenance
and functioning, and to enable it to exercise its powers and perform
its duties in accordance with the provisions of this subpart. Such
expenses shall be paid from funds received by the Council.
(e) With approval of the Secretary, the Council may borrow money
for the payment of administrative expenses, subject to the same fiscal,
budget, and audit controls as other funds of the Council. Any funds
borrowed by the Council shall be expended for startup costs and capital
outlays and are limited to the first year of operation of the Council.
(f) The Council is authorized to repay startup costs associated
with establishing a program and an initial referendum. If approved,
these costs would be amortized and repaid over a maximum three (3) year
period.
(g) The Council may accept voluntary contributions, but these shall
only be used to pay expenses incurred in the conduct of programs,
plans, and projects approved by the Secretary. Such contributions shall
be free from any encumbrance by the donor and the Council shall retain
complete control of their use.
(h) The Council may also receive funds provided through the
Department's Foreign Agricultural Service or from other sources, with
the approval of the Secretary, for authorized activities.
(i) The Council shall reimburse the Secretary for all expenses
incurred by the Secretary in the implementation, administration,
enforcement, and supervision of the Order, including all referendum
costs in connection with the Order.
(j) The Council may not expend for administration, maintenance, and
functioning of the Council in any fiscal year an amount that exceeds 15
percent of the assessments and other income received by the Council for
that fiscal year. Reimbursements to the Secretary required under
paragraph (i) of this section are excluded from this limitation on
spending.
(k) The Council may establish an operating monetary reserve and may
carry over to subsequent fiscal periods excess funds in any reserve so
established: Provided that the funds in the reserve do not exceed one
fiscal period's budget. Subject to approval by the Secretary, such
reserve funds may be used to defray any expenses authorized under this
part.
(l) Pending disbursement of assessments and all other revenue under
a budget approved by the Secretary, the Council may invest assessments
and all other revenues collected under this section in:
(1) Obligations of the United States or any agency of the United
States;
(2) General obligations of any State or any political subdivision
of a State;
(3) Interest bearing accounts or certificates of deposit of
financial institutions that are members of the Federal Reserve System;
or
(4) Obligations fully guaranteed as to principal interest by the
United States.
Sec. 1208.51 Financial statements.
(a) As requested by the Secretary, the Council shall prepare and
submit financial statements to the Secretary on a periodic basis. Each
such financial statement shall include, but not be limited to, a
balance sheet, income statement, and expense budget. The expense budget
shall show expenditures during the time period covered by the report,
year-to-date expenditures, and the unexpended budget.
(b) Each financial statement shall be submitted to the Secretary
within 30 days after the end of the time period to which it applies.
(c) The Council shall submit annually to the Secretary an annual
financial statement within 90 days after the end of the fiscal year to
which it applies.
Sec. 1208.52 Assessments.
(a) The funds to cover the Council's expenses shall be paid from
assessments on producers and importers at a rate not to exceed one cent
per pound; the initial rate is one cent per pound, donations from any
person not subject to assessments under this Order, and other funds
available to the Council including those collected pursuant to Sec.
1208.56 and subject to the limitations contained therein.
(b) The collection of assessments on domestic processed raspberries
will be the responsibility of the first handler receiving the
raspberries for processing. In the case of the producer acting as its
own first handler, the producer will be required to collect and remit
its individual assessments. The rate of assessments shall be prescribed
in regulations issued by the Secretary.
(c) The Council may recommend to the Secretary an increase or
decrease to the assessment rate. Such an increase or decrease may occur
not more than once annually. Any change in the assessment rate shall be
subject to rulemaking by the Department.
(d) Each importer of processed raspberries shall pay an assessment
to the Council on processed raspberries imported for marketing in the
United States, through Customs. If Customs does not collect an
assessment from an importer, the importer would be responsible for
paying the assessment directly to the Council. The assessment rate for
imported processed raspberries would be up to one cent per pound, with
the initial rate being one cent per pound.
(1) The assessment rate for imported processed raspberries shall be
the same or equivalent to the rate for processed raspberries produced
in the United States.
(2) The import assessment shall be uniformly applied to imported
processed raspberries that are identified by the numbers 0811.20.20.20,
in the Harmonized Tariff Schedule of the United States or any other
numbers used to identify processed raspberries.
(3) The assessments due on imported processed raspberries shall be
paid when they enter into the United States or are withdrawn for
consumption in the United States.
(e) All assessment payments will be submitted to the office of the
Council. All final payments for a crop year are to be received no later
than October 30 of that year for producers of processed raspberries
within the United States. A late payment charge shall be imposed on any
handler or importer who fails to remit to the Council, the total amount
for which any such first handler or importer is liable on or before the
due date established by the Council. In addition to the late payment
charge, an
[[Page 16286]]
interest charge shall be imposed on the outstanding amount for which
the first handler or importer is liable. The rate of interest shall be
prescribed in regulations issued by the Secretary.
(f) Persons failing to remit total assessments due in a timely
manner may also be subject to actions under federal debt collection
procedures.
(g) The Council may authorize other organizations to collect
assessments on its behalf with the approval of the Secretary.
(h) Council may provide credits of assessments for those
individuals who contribute to local, regional, or State organizations
engaged in similar generic research, promotion, and information
programs as partial fulfillment of assessment due to the Council
subject to approval of the Secretary, for expenditure on generic
research, promotion and information programs conducted within the
United States.
(1) No credit will be given for funds expended for administrative
purposes.
(2) No credit shall be given for research, promotion, and
information program activity conducted outside of the United States.
(3) Credit shall only be given for generic research, promotion, and
information program activities.
(4) Credit of assessment may be obtained only by following the
procedures prescribed in this section and any regulations recommended
by the Council and prescribed by the Secretary. An individual owing
assessments shall make a written request to the Council and the request
shall contain the assessment paying individual's signature and shall
show:
(i) The name and address of the assessment paying individual;
(ii) The name and address of the person who collected the
assessment;
(iii) The quantity of processed raspberries on which a credit is
requested;
(iv) The total amount of credit requested;
(v) The date or dates on which the assessments were paid;
(vi) A certification that the assessment was not collected from
another producer or documentation of assessments collected from local,
State, or regional organizations; and
(vii) The individual's signature or properly witnessed mark.
(5) The evidence of payment as required under Sec. 1208.61, or a
copy thereof, or such other evidence deemed necessary to the Council
shall accompany the individual's credit of assessment request.
Sec. 1208.53 Exemption procedures.
(a) Any producer who produces less than 20,000 pounds of
raspberries for processing annually who desires to claim an exemption
from assessments during a fiscal year as provided in Sec. 1208.52
shall apply to the Council, on a form provided by the Council, for a
certificate of exemption. Such producer shall certify that the
producer's production of raspberries for processing shall be less than
20,000 pounds for the fiscal year for which the exemption is claimed.
Any importer who imports less than 20,000 pounds of processed
raspberries annually who desires to claim an exemption from assessments
during a fiscal year as provided in Sec. 1208.52 shall apply to the
Council, on a form provided by the Council, for a certificate of
exemption. Such importer shall certify that the importer's importation
of processed raspberries shall not exceed 20,000 pounds, for the fiscal
year for which the exemption is claimed. If a producer or importer
determines at the end of the year that they did not meet the 20,000
pounds minimum, the producer or importers can request a reimbursement
on the assessments paid to the Council by 60 days of the end of the
fiscal year. If, after a person has been exempt from paying assessments
for any year pursuant to this section, and the person no longer meets
the requirements of paragraph of this section for an exemption, the
person shall file a report with the Council in the form and manner
prescribed by the Council and pay an assessment on or before March 15
of the subsequent year on all raspberries for processing produced or
processed raspberries importers by such persons during the year for
which the person claimed the exemption.
(b) On receipt of an application, the Council shall determine
whether an exemption may be granted. The Council will then issue, if
deemed appropriate, a certificate of exemption to the producer or
importer which is eligible to receive one. Each producer who is exempt
from assessment must provide an exemption number as supplied by the
Council to the first handler in order to be exempt from the collection
of an assessment on processed raspberries. First handlers shall
maintain records showing the exemptee's name and address along with the
exemption number assigned by the Council.
(c) Importers who are exempt from assessment shall be eligible for
reimbursement of assessments collected by Customs and shall apply to
the Council for reimbursement of such assessments paid. No interest
will be paid on assessments collected by Customs. Requests for
reimbursement shall be submitted within 90 days of the last day of the
year the processed raspberries were actually imported. Any claim for
reimbursement submitted after ninety (90) days will be considered null
and void.
(d) Any person who desires an exemption from assessments for a
subsequent fiscal year shall reapply to the Council, on a form provided
by the Council, for a certificate of exemption.
(e) The Council, with the Secretary's approval, may request that
persons claiming an exemption from assessments under Sec. 1208.53 must
provide it with any information it deems necessary about the exemption,
including, without limitation, the disposition of the exempted
commodity.
(f) A first handler who purchases raspberries for processing from a
producer who operates under an approved National Organic Program (NOP)
(7 CFR part 205) system plan, produces only products that are eligible
to be labeled as 100 percent organic under the NOP, and is not a split
operation shall be exempt from the payment of assessments.
(g) To obtain this exemption, an eligible first handler shall
submit a request for exemption to the Council--on a form provided by
the Council--at any time initially and annually thereafter on or before
the beginning of the fiscal period as long as the first handler
continues to be eligible for the exemption.
(h) The request shall include the following: The first handler's
name and address, a copy of the organic farm or organic handling
operation certificate provided by a USDA-accredited certifying agent as
defined in the Organic Act, a signed certification that the applicant
meets all of the requirements specified for an assessment exemption,
and such other information as may be required by the Council and with
the approval of the Secretary.
(i) If the first handler complies with the requirements of
paragraph (f) of this section, the Council will grant an assessment
exemption and shall issue a Certificate of Exemption to the first
handler. For exemption requests received on or before August 15 of the
fiscal year, the Council will have 60 days to approve the exemption
request; after August 15 of the fiscal year, the Council will have 30
days to approve the exemption request. If the application is
disapproved, the Council will notify the applicant of the reason(s) for
disapproval within the same timeframe.
[[Page 16287]]
(j) An importer who imports only products that are eligible to be
labeled as 100 percent organic under the NOP (7 CFR part 205) and who
is not a split operation shall be exempt from the payment of
assessments. That importer may submit documentation to the Council and
request an exemption from assessment on 100 percent organic processed
raspberries--on a form provided by the Council--at any time initially
and annually thereafter on or before the beginning of the fiscal period
as long as the importer continues to be eligible for the exemption.
This documentation shall include the same information required of first
handlers in paragraph (c) of this section. If the importer complies
with the requirements of this section, the Council will grant the
exemption and issue a Certificate of Exemption to the importer within
the applicable timeframe. The Council will also issue the importer a 9-
digit alphanumeric Harmonized Tariff Schedule (HTS) classification
valid for 1 year from the date of issue. This HTS classification should
be entered by the importer on the Customs entry documentation. Any line
item entry of 100 percent organic processed raspberries bearing this
HTS classification assigned by the Council will not be subject to
assessments.
(k) The exemption will apply immediately following the issuance of
the certificate of exemption.
Sec. 1208.54 Programs, plans, and projects.
(a) The Council shall receive and evaluate, or on its own
initiative, develop and submit to the Secretary for approval any
program, plan, or project authorized under this subpart. Such programs,
plans, or projects shall provide for:
(1) The establishment, issuance, effectuation, and administration
of appropriate programs for promotion, research, and information,
including producer and consumer industry information, with respect to
processed raspberries; and
(2) The establishment and conduct of research with respect to the
use, nutritional value, production, health, sale, distribution, and
marketing of processed raspberries, and the creation of new products or
product development, thereof, to the end that the marketing and use of
processed raspberries may be encouraged, expanded, improved, or made
more acceptable and to advance the image, desirability, or quality of
processed raspberries.
(b) A program, plan, or project may not be implemented prior to
approval of the program, plan, or project by the Secretary. No later
than forty-five (45) days after the receipt of such program, plan, or
project, the Secretary shall notify the Council whether the Secretary
approves or disapproves the program, plan, or project. Once a program,
plan, or project is so approved, the Council shall take appropriate
steps to implement it.
(c) Each program, plan, or project implemented under this subpart
shall be reviewed or evaluated periodically by the Council to ensure
that it contributes to an effective program of promotion, research, or
information. If it is found by the Council that any such program, plan,
or project does not contribute to an effective program of promotion,
research, or information, then the Council shall terminate such
program, plan, or project.
(d) No program, plan, or project including advertising shall be
false or misleading, or disparage another agricultural commodity.
Processed raspberries of all origins shall be treated equally.
Sec. 1208.55 Independent evaluation.
The Council shall, not less often than once every five years,
authorize and fund, from funds otherwise available to the Council, an
independent evaluation of the effectiveness of the Order and programs
conducted by the Council pursuant to the Act. The Council shall submit
to the Secretary, and make available to the public, the results of each
periodic independent evaluation conducted under this paragraph.
Sec. 1208.56 Patents, copyrights, trademarks, information,
publications, and product formulations.
Patents, copyrights, trademarks, information, publications, and
product formulations developed through the use of funds received by the
Council under this subpart shall be the property of the U.S. Government
as represented by the Council and shall, along with any rents,
royalties, residual payments, or other income from the rental, sales,
leasing, franchising, or other uses of such patents, copyrights,
trademarks, information, publications, or product formulations, inure
to the benefit of the Council, shall be considered income subject to
the same fiscal, budget, and audit controls as other funds of the
Council, and may be licensed subject to approval by the Secretary. Upon
termination of this subpart, Sec. 1208.73 shall apply to determine
disposition of all such property.
Reports, Books, and Records
Sec. 1208.60 Reports.
(a) Each first handler subject to this subpart may be required to
provide to the Council periodically such information as may be required
by the Council, with the approval of the Secretary, which may include
but not be limited to the following:
(1) Number of pounds handled;
(2) Number of pounds on which an assessment was collected;
(3) Name and address of person from whom the first handler has
collected the assessments on each pound handled; and
(4) Date collection was made on each pound handled. All reports are
due to the Council 30 days after the end of the crop year.
(b) Each importer subject to this subpart may be required to
provide to the Council periodically such information as may be required
by the Council, with the approval of the Secretary, which may include
but not be limited to the following:
(1) Number of pounds of processed raspberries imported;
(2) Number of pounds which an assessment was paid;
(3) Name and address of the importer;
(4) Date collection was made on each pound of processed raspberries
imported. All reports are due to the Council 30 days after the end of
the crop year.
Sec. 1208.61 Books and records.
Each first handler, producer, and importer subject to this subpart
shall maintain and make available for inspection by the Secretary such
books and records as are necessary to carry out the provisions of this
subpart and the regulations issued thereunder, including such records
as are necessary to verify any reports required. Such records shall be
retained for at least two (2) years beyond the fiscal period of their
applicability.
Sec. 1208.62 Confidential treatment.
All information obtained from books, records, or reports under the
Act, this subpart, and the regulations issued thereunder shall be kept
confidential by all persons, including all employees and former
employees of the Council, all officers and employees and former
officers and employees of contracting and subcontracting agencies or
agreeing parties having access to such information. Such information
shall not be available to Council members, producers, importers,
exporters, foreign producers, or first handlers. Only those persons
having a specific need for such
[[Page 16288]]
information to effectively administer the provisions of this subpart
shall have access to such information. Only such information so
obtained as the Secretary deems relevant shall be disclosed by them,
and then only in a judicial proceeding or administrative hearing
brought at the direction, or on the request, of the Secretary, or to
which the Secretary or any officer of the United States is a party, and
involving this subpart. Nothing in this section shall be deemed to
prohibit:
(a) The issuance of general statements based upon the reports of
the number of persons subject to this subpart or statistical data
collected therefrom, which statements do not identify the information
furnished by any person; and
(b) The publication, by direction of the Secretary, of the name of
any person who has been adjudged to have violated this subpart,
together with a statement of the particular provisions of this subpart
violated by such person.
Miscellaneous
Sec. 1208.70 Right of the Secretary.
All fiscal matters, programs, plans, or projects, rules or
regulations, reports, or other substantive actions proposed or prepared
by the Council shall be submitted to the Secretary for approval.
Sec. 1208.71 Referenda.
(a) Initial referendum. The Order shall not become effective unless
the Order is approved by a majority of producers and importers voting
for approval in the initial referendum who, during a representative
period determined by the Secretary, have been engaged in the production
or importation of processed raspberries.
(b) Subsequent referenda. Every seven years, the Secretary shall
hold a referendum to determine whether producers of raspberry delivered
for processing and importers of processed raspberries favor the
continuation of the Order. The Order shall continue if it is favored by
a majority of producers and importers voting for approval in the
referendum who, during a representative period determined by the
Secretary, have been engaged in the production or importation of
processed raspberries. The Secretary will also conduct a subsequent
referendum if 10 percent or more of all eligible producers of
raspberries for processing and importers of processed raspberries
request the Secretary to hold a referendum or if the Council
established under Sec. 1208.40 requests that the Secretary hold a
referendum. In addition, the Secretary may hold a referendum at any
time.
Sec. 1208.72 Suspension and termination.
(a) The Secretary shall suspend or terminate this part or subpart
or a provision thereof if the Secretary finds that the subpart or a
provision thereof obstructs or does not tend to effectuate the purposes
of the Act, or if the Secretary determines that this subpart or a
provision thereof is not favored by persons voting in a referendum
conducted pursuant to the Act.
(b) The Secretary shall suspend or terminate this subpart at the
end of the marketing year whenever the Secretary determines that its
suspension or termination is approved or favored by a majority of
producers and importers voting for approval who, during a
representative period determined by the Secretary, have been engaged in
the production or importation of processed raspberries.
(c) If, as a result of a referendum the Secretary determines that
this subpart is not approved, the Secretary shall:
(1) Not later than one hundred and eighty (180) days after making
the determination, suspend or terminate, as the case may be, collection
of assessments under this subpart.
(2) As soon as practical, suspend or terminate, as the case may be,
activities under this subpart in an orderly manner.
Sec. 1208.73 Proceedings after termination.
(a) Upon the termination of this subpart, the Council shall
recommend not more than three of its members to the Secretary to serve
as trustees for the purpose of liquidating the affairs of the Council.
Such persons, upon designation by the Secretary, shall become trustees
of all of the funds and property then in the possession or under
control of the Council, including claims for any funds unpaid or
property not delivered, or any other claim existing at the time of such
termination.
(b) The said trustees shall:
(1) Continue in such capacity until discharged by the Secretary.
(2) Carry out the obligations of the Council under any contracts or
agreements entered into pursuant to the Order.
(3) From time to time account for all receipts and disbursements
and deliver all property on hand, together with all books and records
of the Council and the trustees, to such person or persons as the
Secretary may direct.
(4) Upon request of the Secretary execute such assignments or other
instruments necessary and appropriate to vest in such persons title and
right to all funds, property and claims vested in the Council or the
trustees pursuant to the Order.
(c) Any person to whom funds, property or claims have been
transferred or delivered pursuant to the Order shall be subject to the
same obligations imposed upon the Council and upon the trustees.
(d) Any residual funds not required to defray the necessary
expenses of liquidation shall be turned over to the Secretary to be
disposed of, to the extent practical, to one or more domestic raspberry
industry organizations in the interest of continuing processed
raspberry promotion, research, and information programs.
Sec. 1208.74 Effect of termination or amendment.
Unless otherwise expressly provided by the Secretary, the
termination of this subpart or of any regulation issued pursuant
thereto, or the issuance of any amendment to either thereof, shall not:
(a) Affect or waive any right, duty, obligation or liability which
shall have arisen or which may thereafter arise in connection with any
provision of this subpart or any regulation issued thereunder.
(b) Release or extinguish any violation of this subpart or any
regulation issued thereunder.
(c) Affect or impair any rights or remedies of the United States,
or of the Secretary or of any other persons, with respect to any such
violation.
Sec. 1208.75 Personal liability.
No member, alternate member, or employee of the Council shall be
held personally responsible, either individually or jointly with
others, in any way whatsoever, to any person for errors in judgment,
mistakes, or other acts, either of commission or omission, as such
member, alternate, or employee, except for acts of dishonesty or
willful misconduct.
Sec. 1208.76 Separability.
If any provision of this subpart is declared invalid or the
applicability thereof to any person or circumstances is held invalid,
the validity of the remainder of this subpart or the applicability
thereof to other persons or circumstances shall not be affected
thereby.
Sec. 1208.77 Amendments.
Amendments to this subpart may be proposed from time to time by the
Council or by any interested person affected by the provisions of the
Act, including the Secretary.
Sec. 1208.78 OMB control numbers.
The control number assigned to the information collection
requirements by the Office of Management and Budget
[[Page 16289]]
pursuant to the Paperwork Reduction Act of 1995, 44 U.S.C. Chapter 35,
is OMB control number 0505-0001, OMB control number 0581-0093, and OMB
control number 0581-NEW.
Subpart B--[Reserved]
Dated: April 3, 2009.
Robert C. Keeney,
Acting Associate Administrator.
[FR Doc. E9-7981 Filed 4-8-09; 8:45 am]
BILLING CODE 3410-02-P