[Federal Register: April 9, 2009 (Volume 74, Number 67)]
[Proposed Rules]
[Page 16289-16293]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr09ap09-24]
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DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Part 1208
[Docket No. AMS-FV-07-0077; FV-07-705-PR]
RIN 0581-AC37
Proposed Processed Raspberry Promotion, Research, and Information
Order; Referendum Procedures
AGENCY: Agricultural Marketing Service, Agriculture, USDA.
ACTION: Proposed rule with request for comments.
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SUMMARY: The purpose of this rule is to establish procedures which the
Department of Agriculture (USDA or the Department) will use in
conducting a referendum to determine whether the issuance of the
proposed Processed Raspberry Promotion, Research, and Information Order
(Proposed Order) is favored by producers of raspberries for processing
and importers of processed raspberries. The Order will be implemented
if it is approved by a simple majority of the eligible producers and
importers voting in the referendum. These procedures would also be used
for any subsequent referendum under the Proposed Order, if it is
approved in the initial referendum. The Proposed Order is being
published separately in this issue of the Federal Register. This
proposed program would be implemented under the Commodity Promotion,
Research, and Information Act of 1996 (1996 Act).
DATES: Comments must be received by June 8, 2009. Pursuant to the
Paperwork Reduction Act, 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
concerning this rule. Comments can be made on the Internet at http://
www.regulations.gov or to the Research and Promotion Branch, Fruit and
Vegetable Programs, Agricultural Marketing Service, USDA, Stop 0244,
Room 0634-S, 1400 Independence Avenue, SW., Washington, DC 20250-0244;
Fax (202) 205-2800; Toll Free (888) 720-9917. Comments should reference
the docket number, title of action, date, and page number of this issue
of the Federal Register and will be made available for public
inspection at the above address during regular business hours or at
http://www.regulations.gov.
Pursuant to the Paperwork Reduction Act (PRA), send 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, to the above address and 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, FV, AMS, USDA, Stop 0244, Room 0634-S,
1400 Independence Avenue, SW., Washington, DC 20250-0244; telephone
202-720-9915 or (888) 720-9917 (toll free) or e-mail
kimberly.coy@usda.gov.
SUPPLEMENTARY INFORMATION: A referendum will be conducted among
eligible producers of raspberries for processing and importers of
processed raspberries to determine whether they favor issuance of the
proposed Processed Raspberry Promotion, Research, and Information Order
(Proposed Order), 7 CFR part 1208. The program will be implemented if
it is approved by a simple majority of the producers and importers
voting in the referendum. The Proposed Order is authorized under the
Commodity Promotion, Research, and Information Act of 1996 (1996 Act),
7 U.S.C. 7411-7425. It would cover domestic producers of raspberries
for processing and importers of processed raspberries of 20,000 pounds
or more. The Proposed Order is being published separately in this issue
of the Federal Register.
Executive Order 12866
This proposed rule has been determined to be 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 proposed rule has been reviewed under Executive Order 12988,
Civil Justice Reform. It is not intended to have retroactive effect.
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.
Under Section 519 of the 1996 Act, a person subject to an order may
file a 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. In the petition,
the person may request 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
entry of the Department's final ruling.
Initial Regulatory Flexibility Act Analysis and Paperwork Reduction Act
In accordance with the Regulatory Flexibility Act (RFA) 5 U.S.C.
601-612, the Department 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 action so
that small businesses will not be disproportionately burdened.
The 1996 Act, which authorizes the Department to consider industry
proposals for generic programs of promotion, research, and information
for agricultural commodities, became effective on April 4, 1996. The
1996 Act provides for alternatives within the terms of a variety of
provisions.
Paragraph (e) of Section 518 of the 1996 Act provides three options
for determining industry approval of a new research and promotion
program: (1) By a majority of those persons voting; (2) by persons
voting for approval who represent a majority of the volume of the
agricultural commodity; or (3) by a majority of those persons voting
for approval who also represent a majority
[[Page 16290]]
of the volume of the agricultural commodity. 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 an order. The
Washington Red Raspberry Commission (WRRC) has recommended that the
Department conduct a referendum in which approval of the Proposed Order
would be based on a simple majority of the producers and importers
voting in the referendum. The Department proposes that a referendum be
conducted prior to the Proposed Order going into effect.
This proposed rule would establish the procedures under which
producers of raspberries for processing and importers of processed
raspberries may vote on whether they want a processed raspberry
promotion, research, and information program to be implemented. This
proposal would add a new subpart which establishes procedures to
conduct initial and future referenda. The proposed subpart covers
definitions, voting instructions, use of subagents, ballots, the
referendum report, and confidentiality of information.
There are approximately 195 producers of raspberries for processing
and 50 importers of processed raspberries who would be subject to the
program and eligible to vote in the first referendum. The Small
Business Administration, 13 CFR 121.201, defines small agricultural
producers as those having annual receipts of $750,000 or less and small
agricultural service firms as those having annual receipts of $7.0
million or less. Under these criteria, the majority of producers and
importers that would be affected by the referendum procedures would be
considered small entities. Producers of raspberries for processing and
importers of processed raspberries of less than 20,000 pounds per year
would be exempt under this proposed Order.
According to the proponent group, in 2006, there were 195 producers
of raspberries for processing and 34 processors 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
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%) and Canada (18%). It is unknown
what percent of importers would qualify as small business. However, the
recordkeeping and assessment remittance requirements would be minimal
to importers since they are conducted by U.S. Customs and Border
Protection Service (Customs) at the time of product entry into the
United States.
This proposed rule provides the procedures under which producers of
raspberries for processing and importers of processed raspberries may
vote on whether they want the Proposed Order to be implemented. In
accordance with the provisions of the 1996 Act, subsequent referenda
may be conducted, and it is anticipated that the proposed procedures
would apply. There are approximately 195 producers of raspberries for
processing and 50 importers of processed raspberries who would be
eligible to vote in the first referendum. Producers of raspberries for
processing and importers of processed raspberries of less than 20,000
pounds per year would be exempt from assessments and not eligible to
vote in the referendum.
The Department will keep these individuals informed throughout the
program implementation and referendum process to ensure that they are
aware of and are able to participate in the program implementation
process. USDA will also publicize information regarding the referendum
process so that trade associations and related industry media can be
kept informed.
Voting in the referendum is optional. However, if producers and
importers choose to vote, the burden of voting would be offset by the
benefits of having the opportunity to vote on whether or not they want
to be covered by the program.
The information collection requirements contained in this proposed
rule are designed to minimize the burden on producers and importers.
This rule provides for a ballot to be used by eligible producers and
importers to vote in the referendum. The estimated annual cost of
providing the information by an estimated 195 producers of raspberries
for processing and 50 importers of processed raspberries would be
$195.00 for all producers or $1.00 per producer and $50.00 for all
importers or $1.00 per importer.
The Department considered requiring eligible voters to vote in
person at various USDA offices across the country. The Department also
considered electronic voting, but the use of computers is not
universal. Conducting the referendum from one central location by mail
ballot would be more cost effective and reliable. USDA will provide
easy access to information for potential voters through a toll free
telephone line.
There are no federal rules that duplicate, overlap, or conflict
with this rule.
We have performed this Initial Regulatory Flexibility Analysis
regarding the impact of this proposed rule on small businesses.
Paperwork Reduction Act
In accordance with the OMB regulation, 5 CFR part 1320, which
implements the Paperwork Reduction Act of 1995, 44 U.S.C. Chapter 35,
the referendum ballot, which represents the information collection and
recordkeeping requirements that may be imposed by this rule, has been
submitted to OMB for approval.
Title: Processed Raspberry Promotion, Research, and Information
Order.
OMB Number: 0581-NEW.
Expiration Date of Approval: 3 years from OMB date of approval.
Type of Request: New information collection for research and
promotion programs.
Abstract: The information collection requirements in this request
are essential to carry out the intent of the 1996 Act, to provide the
respondents the type of service they request, and to administer the
Proposed Order. The ballot is needed for the referendum that will be
held to determine whether producers and importers are in favor of the
program. The information collected is used by USDA to determine whether
a majority of the eligible producers and importers voting in a
referendum approve of this program. Producers and importers of 20,000
or more pounds of raspberries for processing or processed raspberries
respectively, are eligible to vote in the referendum and shall be
entitled to cast only one ballot in the referendum.
Referendum Ballot
Estimate of Burden: Public reporting burden for this collection of
information is estimated to average 0.25 hours per response for each
producer and importer.
Respondents: Producers and importers.
Estimated Number of Respondents: 245.
Estimated Number of Responses per Respondent: 1 every 7 years
(0.14).
Estimated Total Annual Burden on Respondents: 8.58 hours.
[[Page 16291]]
The ballot will be added to the other information collections
approved for use under OMB Number 0581-NEW.
Comments: Comments are invited on: (a) Whether the proposed
collection of information is necessary for the proper performance of
the functions of the agency, including whether the information will
have practical utility; (b) the accuracy of USDA's estimate of the
burden of the proposed collection of information, including the
validity of the methodology and assumptions used; (c) ways to enhance
the quality, utility, and clarity of the information to be collected;
and (d) 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 should reference OMB No. 0581-NEW and the Processed
Raspberry Promotion, Research, and Information Order. Comments should
be sent in care of Kimberly Coy 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 and 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.
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 and at http://
www.regulations.gov. All responses to this proposed rule will be
summarized and included in the request for OMB approval. All comments
will also become a matter of the public record.
The Agricultural Marketing Service (AMS) is committed to complying
with the E-Government Act, to promote the use of the Internet and other
information technologies to provide increased opportunities for citizen
access to Government information and services, and for other purposes.
The estimated annual cost of providing the information by an
estimated 195 producers of raspberries for processing and 50 importers
of processed raspberries would be $195.00 for all producers or $1.00
per producer and $50.00 for all importers or $1.00 per importer.
A 60-day comment period is provided to allow interested persons to
comment on this proposed information collection.
Background
The 1996 Act, which authorizes the Department to consider industry
proposals for generic programs of promotion, research, and information
for agricultural commodities, became effective on April 4, 1996. The
Department received the proposal for a new order from the Washington
Red Raspberry Commission (WRRC).
The Proposed Order would provide for the development and financing
of an effective and coordinated program of promotion, research, and
consumer and industry information for processed raspberries in the
United States. The program would be funded by an assessment levied on
producers and importers (to be collected by Customs at time of entry
into the United States) at an initial rate of one cent per pound.
Producers of raspberries for processing and importers of processed
raspberries of less than 20,000 pounds per year would be exempt from
paying assessments. The assessments would be used to pay for promotion,
research, and consumer and industry information; administration,
maintenance, and functioning of the proposed National Raspberry
Council; and expenses incurred by the Department in implementing and
administering the Proposed Order, including referendum costs.
Section 518 of the 1996 Act requires that a referendum be conducted
among eligible producers of raspberries for processing and importers of
processed raspberries to determine whether they favor implementation of
the Order. That section also requires the Proposed Order to be approved
by a simple majority of the producers and importers voting in the
referendum.
This proposed rule establishes the procedures under which producers
of raspberries for processing and importers of processed raspberries
may vote on whether they want the processed raspberry promotion,
research, and information program to be implemented. There are
approximately 245 eligible voters.
This proposed rule would add a new subpart which would establish
procedures to be used in this and future referenda. This subpart covers
definitions, voting, instructions, use of subagents, ballots, the
referendum report, and confidentiality of information.
All written comments received in response to this rule by the date
specified will be considered prior to finalizing this action. We
encourage the industry to pay particular attention to the definitions
to be sure that they are appropriate for the raspberry industry.
List of Subjects in 7 CFR Part 1208
Administrative practice and procedure, Advertising, Consumer
information, Marketing agreements, Processed raspberries, 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 as
follows:
1. Subpart B of 7 CFR part 1208 is proposed to be added to Title 7,
Chapter XI of the Code of Federal Regulations to read as follows:
PART 1208--PROCESSED RASPBERRY PROMOTION, RESEARCH, AND INFORMATION
ORDER
* * * * *
Subpart B--Referendum Procedures.
Sec.
1208.100 General.
1208.101 Definitions.
1208.102 Voting.
1208.103 Instructions.
1208.104 Subagents.
1208.105 Ballots.
1208.106 Referendum report.
1208.107 Confidential information.
1208.108 OMB control number.
Authority: 7 U.S.C. 7411-7425; 7 U.S.C. 7401.
Subpart B--Referendum Procedures
Sec. 1208.100 General.
Referenda to determine whether eligible producers of raspberries
for processing and importers of processed raspberries favor the
issuance, amendment, suspension, or termination of the Processed
Raspberry Promotion, Research, and Information Order shall be conducted
in accordance with this subpart.
Sec. 1208.101 Definitions.
(a) Administrator means the Administrator of the Agricultural
Marketing Service, with power to delegate, or any officer or employee
of the U.S. Department of Agriculture to whom authority has been
delegated or may hereafter be delegated to act in the Administrator's
stead.
(b) Department means the U.S. 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.
(c) Eligible producer means any person who grows 20,000 pounds or
[[Page 16292]]
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.
(d) Eligible importer means 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 as the importer
of record for such processed raspberries that are identified in the
Harmonized Tariff Schedule of the United States by the numbers
0811.20.20.20, during the representative period. Importation occurs
when processed raspberries originating outside of the United States are
released from custody by Customs and introduced into the stream of
commerce in the United States. Included are persons who hold title to
foreign-produced processed raspberries immediately upon release by
Customs, as well as any persons who act on behalf of others, as agents
or brokers, to secure the release of processed raspberries from Customs
when such processed raspberries are entered or withdrawn for
consumption in the United States.
(e) Raspberries mean and include all kinds, varieties, and hybrids
of cultivated raspberries of the genus ``Rubus'' grown in or imported
into the United States.
(f) 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.
(g) Order means the Processed Raspberry Promotion, Research, and
Information Order.
(h) Person means any individual, group of individuals, partnership,
corporation, association, cooperative, or any other legal entity. For
the purpose of this definition, the term ``partnership'' includes, but
is not limited to:
(1) A husband and a wife who have title to, or leasehold
interest in, a raspberry farm as tenants in common, joint tenants,
tenants by the entirety, or, under community property laws, as
community property; and
(2) So-called ``joint ventures'' wherein one or more parties to
an agreement, informal or otherwise, contributed land and others
contributed capital, labor, management, or other services, or any
variation of such contributions by two or more parties.
(i) Referendum agent or agent means the individual or individuals
designated by the Secretary to conduct the referendum.
(j) Representative period means the period designated by the
Department.
(k) United States or U.S. means collectively the 50 states, the
District of Columbia, the Commonwealth of Puerto Rico, and the
territories and possessions of the United States.
Sec. 1208.102 Voting.
(a) Each eligible producer of raspberries for processing and
eligible importer of processed raspberries shall be entitled to cast
only one ballot in the referendum. However, each producer in a
landlord/tenant relationship or a divided ownership arrangement
involving totally independent entities cooperating only to process
raspberries, in which more than one of the parties is a producer or
importer, shall be entitled to cast one ballot in the referendum
covering only such producer or importer's share of the ownership.
(b) Proxy voting is not authorized, but an officer or employee of
an eligible corporate producer or importer, or an administrator,
executor, or trustee or an eligible entity may cast a ballot on behalf
of such entity. Any individual so voting in a referendum shall certify
that such individual is an officer or employee of the eligible entity,
or an administrator, executive, or trustee of an eligible entity and
that such individual has the authority to take such action. Upon
request of the referendum agent, the individual shall submit adequate
evidence of such authority.
(c) All ballots are to be cast by mail as instructed by the
Department.
Sec. 1208.103 Instructions.
The referendum agent shall conduct the referendum, in the manner
provided in this subpart, under the supervision of the Administrator.
The Administrator may prescribe additional instructions, not
inconsistent with the provisions of this subpart, to govern the
procedure to be followed by the referendum agent. Such agent shall:
(a) Determine the period during which ballots may be cast.
(b) Provide ballots and related material to be used in the
referendum. The ballot shall provide for recording essential
information, including that needed for ascertaining whether the person
voting, or on whose behalf the vote is cast, is an eligible voter.
(c) Give reasonable public notice of the referendum:
(1) By utilizing available media or public information sources,
without incurring advertising expense, to publicize the dates, places,
method of voting, eligibility requirements, and other pertinent
information. Such sources of publicity may include, but are not limited
to, print and radio; and
(2) By such other means as the agent may deem advisable.
(d) Mail to eligible producers and importers whose names and
addresses are known to the referendum agent, the instructions on
voting, a ballot, and a summary of the terms and conditions of the
proposed Order. No person who claims to be eligible to vote shall be
refused a ballot.
(e) At the end of the voting period, collect, open, number, and
review the ballots and tabulate the results in the presence of an agent
of a third party authorized to monitor the referendum process.
(f) Prepare a report on the referendum.
(g) Announce the results to the public.
Sec. 1208.104 Subagents.
The referendum agent may appoint any individual or individuals
necessary or desirable to assist the agent in performing such agent's
functions of this subpart. Each individual so appointed may be
authorized by the agent to perform any or all of the functions which,
in the absence of such appointment, shall be performed by the agent.
Sec. 1208.105 Ballots.
The referendum agent and subagents shall accept all ballots cast.
However, if an agent or subagent deems that a ballot should be
challenged for any reason, the agent or subagent shall endorse above
their signature, on the ballot, a statement to the effect that such
ballot was challenged, by whom challenged, the reasons therefore, the
results of any investigations made with respect thereto, and the
disposition thereof. Ballots invalid under this subpart shall not be
counted.
Sec. 1208.106 Referendum report.
Except as otherwise directed, the referendum agent shall prepare
and submit to the Administrator a report on the results of the
referendum, the manner in which it was conducted, the extent and kind
of public notice given, and other information pertinent to the analysis
of the referendum and its results.
[[Page 16293]]
Sec. 1208.107 Confidential information.
The ballots and other information or reports that reveal, or tend
to reveal, the vote of any person covered under the Order and the voter
list shall be strictly confidential and shall not be disclosed.
Sec. 1208.108 OMB control number.
The control number assigned to the information collection
requirement in this subpart by the Office of Management and Budget
pursuant to the Paperwork Reduction Act of 1995, 44 U.S.C. Chapter 35
is OMB control number 0581-NEW.
Dated: April 3, 2009.
Robert C. Keeney,
Acting Associate Administrator.
[FR Doc. E9-8016 Filed 4-8-09; 8:45 am]
BILLING CODE 3410-02-P