[Federal Register Volume 75, Number 106 (Thursday, June 3, 2010)]
[Rules and Regulations]
[Pages 31279-31282]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-13346]
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DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Part 1218
[Document Number AMS-FV-09-0022; FV-09-705]
Blueberry Promotion, Research, and Information Order; Increase
Membership
AGENCY: Agricultural Marketing Service, USDA.
ACTION: Final rule.
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SUMMARY: This rule adds two importer members and their alternates to
the U.S. Highbush Blueberry Council (Council) to reflect changes in the
quantity of highbush blueberry imports in the past three years. The
change was proposed by the Council in accordance with the provisions of
the Blueberry Promotion, Research, and Information Order (Order) which
is authorized by the Commodity Promotion, Research, and Information Act
of 1996 (Act). The Order requires that the Council review the
geographical distribution of the United States production and the
quantity of imports of highbush blueberries at least every five years.
As a result of these changes, the total Council membership will
increase from 14 to 16 members and their alternates. In addition, this
rule increases the quorum minimum from seven to nine members.
DATES: Effective Date: June 4, 2010.
FOR FURTHER INFORMATION CONTACT: Jeanette Palmer, Marketing Specialist,
Research and Promotion Branch, Fruit and Vegetable Programs, AMS, U.S.
Department of Agriculture, Stop 0244, 1400 Independence Avenue, SW.,
Room 0632-S, Washington, DC 20250-0244; telephone: (888) 720-9917;
facsimile: (202) 205-2800; or electronic mail:
[email protected].
SUPPLEMENTARY INFORMATION: This rule is issued under the Blueberry
Promotion, Research, and Information Order [7 CFR part 1218]. The Order
is authorized under the Commodity Promotion, Research, and Information
Act of 1996 (Act) [7 U.S.C. 7411-7425].
Executive Order 12866
The Office of Management and Budget (OMB) has waived the review
process required by Executive Order 12866 for this action.
Executive Order 12988
This rule has been reviewed under Executive Order 12988, Civil
Justice Reform. The rule is not intended to have retroactive effect.
Section 524 of the Act provides that the Act shall not affect or
preempt any other State or Federal law authorizing promotion or
research relating to an agricultural commodity.
The Act provides that any person subject to an order may file a
written petition with the Department if they believe that the order,
any provision of the order, or any obligation imposed in connection
with the order, is not established in accordance with law. In any
petition, the person may request a modification of the order or an
exemption from the order. The petitioner is afforded the opportunity
for a hearing on the petition. After a hearing, the Department would
rule on the petition. The Act provides that the district court of the
United States in any district in which the petitioner resides or
conducts business shall have the jurisdiction to review the
Department's ruling on the petition, provided a complaint is filed not
later than 20 days after the date of the entry of the ruling.
Regulatory Flexibility Analysis and Paperwork Reduction Act
In accordance with the Regulatory Flexibility Act (RFA) [5 U.S.C.
601-612], AMS has considered the economic impact of this action on the
small producers, first handlers, importers, and exporters that would be
affected by this rule. The purpose of the RFA is to fit regulatory
action to scale on businesses subject to such action 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 as those having
annual receipts of no more than $7 million. There are approximately
2,000 producers, 200 first handlers, 50 importers, and 4 exporters of
highbush blueberries subject to the program. Most of the producers will
be classified as small businesses under the criteria established by the
Small Business Administration. Most importers, first handlers, and
exporters will not be classified as small businesses. Producers who
produce less than 2,000 pounds of highbush blueberries annually are
exempt from this program. Importers who import less than 2,000 pounds
of fresh and frozen highbush blueberries annually are also exempt from
this program.
The Department's National Agricultural Statistics Service (NASS)
data for the 2008 crop year shows that about 5,790 pounds of highbush
blueberries were produced per acre. The 2008 average grower price for
highbush blueberries published by NASS was $1.54 per pound. Thus, the
value of highbush blueberry production per acre in 2008 averaged about
$8,917 (5,790 pounds multiplied by $1.54). At that average value, a
producer would have to farm over 84 acres to receive an annual income
from highbush blueberries of $750,000 ($750,000 divided by $8,916 per
acre equals 84). Accordingly, as previously noted, a majority of the
producers of highbush blueberries will be classified as small
businesses.
According to the Council, assessments received in 2008 reached $2.4
million. Of the total, the Council received $830,222 from import
assessment collections which is approximately 35 percent of the
Council's total budget. For 2009, the Council received $3.03 million
from assessment collections. Of the total, the Council received
approximately $1 million from import assessment collections which is
approximately 34 percent of the Council's total budget. The Council
projected import assessment collections at $1 million for the 2010
budget year.
According to the Council's World Blueberry Acreage and Production
Report, highbush blueberry acreage in North America increased from
71,075 acres in 2005 to an estimated 95,607
[[Page 31280]]
acres in 2008, a 35 percent increase in just three years. The United
States' share of this total increased from 56,665 acres in 2005 to
74,992 acres in 2008, a 32 percent increase. Most of this acreage
growth is coming from the higher yielding western and southern states.
Highbush blueberry production volume is expected to increase
significantly from these regions in the coming years.
In 2008, the United States exported 13,791 metric tons of fresh
highbush blueberries worth over $69 million. Canada is the principal
destination for United States exports--accounting for nearly 84 percent
of the total in 2008. Other key markets included the United Kingdom at
7 percent and Japan at 6 percent of the total. Most of the remaining 3
percent of the United States exports were to Asian countries.
The United States exports of frozen highbush blueberries totaled
5,785 metric tons in 2008 and were valued at over $17 million. The
largest United States export market for frozen highbush blueberries is
Canada which accounted for 47 percent of the total quantity exported in
2008. Japan was the second largest United States market accounting for
39 percent. Most of the remaining 14 percent of United States exports
were sent to other Asian, United Kingdom, and European countries.
In 2008, the United States imported 45,105 metric tons of fresh
highbush blueberries worth over $229 million. The largest imports of
highbush blueberries came from Chile which accounted for 61 percent of
the total in 2008. Other major suppliers of fresh highbush blueberries
were Canada at 19 percent and Argentina at 17 percent of the total. The
remaining 3 percent of imported highbush blueberries came from New
Zealand and Uruguay.
The United States imports of frozen highbush blueberries totaled
19,152 metric tons in 2008 and were valued at over $64 million. The
bulk of the United States frozen highbush blueberries imports came from
Canada, which accounted for 78 percent of the total in 2008. Other
major suppliers of frozen highbush blueberries were Chile with 16
percent of the total, Argentina with 5 percent and the Netherlands with
1 percent.
In the international market, highbush blueberry production has
increased in Canada, Mexico, South America, Europe, and Asia. The
highbush blueberry acreage worldwide has nearly doubled in the past
five years from an estimated 83,299 acres in 2003 to an estimated
163,065 acres in 2008. Based on the data in the Council's 2007-2008
World Acreage and Production Report, North America represented 77
percent of the total worldwide highbush blueberry acreage in 2003
(64,360 acres), but just 59 percent of the estimated total acreage in
2008 (95,607 acres).
Most of the worldwide growth over the past five years has taken
place in South America which has increased acreage from an estimated
6,939 acres in 2003 to an estimated 39,703 acres in 2008, a nearly
sixfold increase with the largest growth in Chile and Argentina. Most
of the growth in European production, which has increased from 8,978
acres in 2003 to 18,038 in 2008, has taken place in Spain, Germany, and
Poland. Asian highbush blueberry production has increased during this
five-year period from 2,372 acres to 7,870 acres with most of the
growth taking place in China and to a lesser extent Japan. Acreage in
Australia and New Zealand has not significantly increased during this
period.
Given worldwide acreage estimates, projections show that given
optimal conditions with no crop losses or disruptions, total worldwide
highbush blueberry production has the potential to increase from an
estimated 606 million pounds in 2008 to an estimated 1.5 billion pounds
by the year 2015, more than two times the current level of production
in the next seven years. This total does not include lowbush (wild)
blueberry production, which at the current time averages around 200
million pounds per year. These projections are considered optimal
forecasts and are based on the potential of what has been planted to
date as well as upon assumptions of favorable crop years in all
international highbush blueberry growing regions. During this period,
North American highbush blueberry production is estimated to increase
from 407 million pounds in 2008 to 890 million pounds by the year 2015,
more than two times the current level of production.
Section 1218.40(b) of the Order requires that the Council review
the geographical distribution of United States production of highbush
blueberries and the quantity of imports at least once every five years.
Based on this review, on August 13, 2009, the Council voted by
electronic mail (e-mail) to add two importer members and their
alternates to the Council. The vote to recommend two additional
importers and their alternates was based on a three-year average
production and imports data. Nine out of the ten Council members who
voted were in support of adding these additional members.
The Council consists of a total of 14 members which includes 10
producers, 1 importer, 1 exporter from a foreign production area, 1
handler, and 1 public member. Each member has an alternate. The 10
producer members are allocated as follows: one producer member from
each of the four regions and one producer member from each of the six
top producing States. The regions are Western, Midwest, Northeast, and
Southern. The top-producing States are Georgia, Michigan, New Jersey,
North Carolina, Oregon, and Washington.
In 2006, the Council collected assessments on 360,467 million
pounds of highbush blueberries. The domestic production of highbush
blueberries in the United States was 268,800 million pounds which was
75 percent of the total assessments collected by the Council. Imports
of highbush blueberries came in at 91,667 million pounds which
represented 25 percent of the total assessments collected by the
Council.
The Council records show that for the years 2003, 2004, and 2005
the United States produced 189,900 million pounds, 209,200 million
pounds, and 246,000 million pounds of highbush blueberries
respectively. Using this data, the three-year average annual highbush
blueberries production for the United States totaled 215,033 million
pounds per year (645,100 divided by 3). For this period, domestic
production represented approximately 78 percent of the total
assessments collected by the Council. For imports for the years 2003,
2004, and 2005, imports were at 63,334 million pounds, 55,000 million
pounds, and 66,667 million pounds of highbush blueberries,
respectively. Based on this data, the three-year average annual imports
for highbush blueberries totaled 61,667 million pounds per year
(185,001 divided by 3). Imports represented 22 percent of the total
assessments paid to the Council during the period of 2003 through 2005.
The Council reviewed the domestic production of highbush
blueberries in the United States. The Council records show that for the
years 2006, 2007, and 2008 the United States produced 268,800 million
pounds, 281,500 million pounds, and 335,900 million pounds of highbush
blueberries respectively. Using this data, the three-year average
annual highbush blueberries production for the United States totals
295,400 million pounds per year (886,200 divided by 3). Based on this
data, the domestic production represents 72 percent of the total
assessments collected by the Council.
Currently 72 percent of the Council's members represent the
domestic production. Therefore, the Council determined that there were
no changes
[[Page 31281]]
required at this time for the domestic member positions.
The Council's assessment records show that for the years 2006,
2007, and 2008 imports came in at 91,667 million pounds, 108,333
million pounds, and 141,667 million pounds of highbush blueberries
respectively. Based on this data, the three-year average annual imports
for highbush blueberries totals 113,889 million pounds per year
(341,667 divided by 3). This represents approximately 28 percent of the
total assessments paid to the Council. In contrast in 1997, imports
came at 23.7 million pounds or 12 percent of the total of domestic and
imports. Accordingly, two importer and alternate seats should be added
to the Council. The new Council membership distribution would be 10
producers, 3 importers, 1 exporter, 1 handler, and 1 public member
which would bring the percentage of seats for importers and exporters
to 28 percent of the total seats on the Council.
Given the adjustment in membership for the Council in 2006 and the
changes herein, the minimum quorum at a Council meeting increases from
seven to nine members. This would reflect that a majority of the 16
Council members (or their alternates, when appropriate) are present for
a quorum.
Nominations and appointments to the Council are conducted pursuant
to sections 1218.40, 1218.41, and 1218.42 of the Order. Appointments to
the Council are made by the Secretary from a slate of nominated
candidates. Pursuant to section 1218.41(d) of the Order, nominations
for the importer, exporter, handler, and public member positions will
be made by the Council. The nominees for the two additional importer
and alternate positions will be submitted to the Secretary for
appointment to the Council.
In accordance with the Office of Management and Budget (OMB)
regulation [5 CFR part 1320] which implements the Paperwork Reduction
Act of 1995 [44 U.S.C. Chapter 35], the background form, which
represents the information collection and recordkeeping requirements
that are imposed by the Order have been approved previously under OMB
number 0505-0001.
The Order requires that two nominees be submitted for each vacant
position. With regard to information collection requirements, adding
two importers and their alternates to the Council means that eight
additional importers will be required to submit background forms to the
Department in order to be considered for appointment to the Council.
However, serving on the Council is optional, and the burden of
submitting the background form would be offset by the benefits of
serving on the Council. The estimated annual cost of providing the
information by eight importers would be $33 or $4.12 per importer. The
additional burden will be included in the existing information
collection package under OMB number 0505-0001.
The Department has not identified any relevant Federal rules that
duplicate, overlap, or conflict with this rule.
Background
The Order became effective on August 16, 2000, and it is authorized
under the Act. The Council is composed of 10 producers, 1 importer, 1
exporter from a foreign production area, 1 handler, and 1 public
member. Each member has an alternate. The 10 producer members are
allocated as follows: one producer member from each of the four regions
and one producer member for each of the six top producing States. The
regions are Western, Midwest, Northeast, and Southern. The top-
producing States that currently have representation on the Council are
Georgia, Michigan, New Jersey, North Carolina, Oregon, and Washington.
The producer members are nominated by producers or producer groups. The
importer, exporter, handler, and public member positions are nominated
by the Council.
Under the Order, the Council administers a nationally coordinated
program of research, development, advertising, and promotion designed
to strengthen the position of highbush blueberries in the marketplace,
and to establish, maintain, and expand markets for highbush
blueberries. This program is financed by assessments on producers
growing 2,000 pounds or more of highbush blueberries and importers who
import 2,000 or more pounds of highbush blueberries per year. The
current assessment rate is $12 per ton levied on highbush blueberries
produced within the 50 States, the District of Columbia, the
Commonwealth of Puerto Rico, and the territories and possessions of the
United States and on imports of more than 2,000 pounds into the United
States. The Order specifies that handlers are responsible for
collecting and submitting the producer assessments to the Council and
maintaining records necessary to verify their reporting(s). Importers
are responsible for payment of assessments to the Council on highbush
blueberries imported into the United States through the U.S. Customs
Service and Border Protection. Producers who produce less than 2,000
pounds and importers of less than 2,000 pounds of highbush blueberries
annually are exempt from this program.
Pursuant to section 515(b)(3) of the Act and section 1218.40(b) of
the Order, at least once in each five-year period, the Council shall
review the geographical distribution of United States production of
highbush blueberries and the quantity of imports and make a
recommendation to the Secretary to continue without change or make
changes to the representation on the Council to reflect changes in the
geographical distribution of the production of highbush blueberries and
the quantity of imports.
On August 13, 2009, the Council voted nine to one to increase the
membership of the Council by adding two importer and alternate seats.
Based on the Council's assessment records for the years 2006, 2007, and
2008, imports came in at 91,667 million pounds, 108,333 million pounds,
and 141,667 million pounds of highbush blueberries respectively. Based
on this data, the three-year average annual imports for highbush
blueberries totals 113,889 million pounds per year (341,667 divided by
3). This represents approximately 28 percent of the total assessments
paid to the Council. In contrast in 1997, imports came at 23.7 million
pounds or 12 percent of the total of domestic and imports. Accordingly,
two importer and alternate seats should be added to the Council. The
new Council membership distribution would be 10 producers, 3 importers,
1 exporter, 1 handler, and 1 public member which would bring the
percentage of seats for importers and exporters to 28 percent of the
total seats on the Council.
This action will add to the Council two importers and two
alternates. The Council will be composed of 10 producers, three
importers, one exporter from a foreign production area, one handler,
and one public member. Each member has an alternate. The addition of
two importers and two alternates allows for more importers
representation on the Council's decision making and also potentially
provide an opportunity to increase diversity on the Council.
Furthermore, this rule would make amendments to section 1218.40(a)
of the Order to specify that the Council will be composed of 16 members
and their alternates rather than 14. Also, this rule would revise
section 1218.40(a)(3) of the Order to specify three importers and
alternates instead of one importer and alternate. In addition, this
rule would revise section 1218.45 (a) of the Order to increase the
minimum quorum level
[[Page 31282]]
at Council meetings from seven to nine members.
Nominations and appointments to the Council are conducted pursuant
to sections 1218.40, 1218.41, and 1218.42 of the Order. Appointments to
the Council are made by the Secretary from a slate of nominated
candidates. Pursuant to section 1218.41(d) of the Order, nominations
for the importer, exporter, handler, and public member positions are
made by the Council. Nominations are submitted to the Secretary for
appointment to the Council.
A twenty-day comment period was provided to allow interested
persons to respond to the proposal which was published in the Federal
Register on March 17, 2010 [75 FR 12707]. Copies of the rule were made
available through the Internet by the Department and the Office of the
Federal Register. The comment period ended April 6, 2010. No comments
were received by the deadline.
After consideration of all relevant material presented, the
Council's recommendation, and other information, it is hereby found
that this rule is consistent with and will effectuate the purpose of
the Act.
Pursuant to 5 U.S.C. 553, it is also found that good cause exits
for not postponing the effective date of this action until one day
after publication in the Federal Register because the Council's term of
office begins January 1, 2011, and this rule will allow the upcoming
nominations and appointments to be conducted in a timely manner for the
new members to be appointed to the Council so they can begin serving
during the next term of office.
List of Subjects in 7 CFR Part 1218
Administrative practice and procedure, Advertising, Consumer
information, Marketing agreements, Blueberry promotion, Reporting and
recordkeeping requirements.
0
For the reasons set forth in the preamble, 7 CFR part 1218 is amended
as follows:
PART 1218--BLUEBERRY PROMOTION, RESEARCH, AND INFORMATION ORDER
0
1. The authority citation for 7 CFR part 1218 continues to read as
follows:
Authority: 7 U.S.C. 7411-7425; 7 U.S.C. 7401.
0
2. In Sec. 1218.40, paragraph (a) introductory text and paragraph
(a)(3) are revised to read as follows:
Sec. 1218.40 Establishment and membership.
(a) Establishment of the U.S. Highbush Blueberry Council. There is
hereby established a U.S. Highbush Blueberry Council, hereinafter
called the Council, composed of no more than 16 members and alternates,
appointed by the Secretary from nominations as follows:
* * * * *
(3) Three importers and alternates.
* * * * *
0
3. Section 1218.45 paragraph (a) is revised to read as follows:
Sec. 1218.45 Procedure.
(a) At a Council meeting, it will be considered a quorum when a
minimum of nine members, or their alternates serving in the absence,
are present.
* * * * *
Dated: May 27, 2010.
Rayne Pegg,
Administrator, Agricultural Marketing Service.
[FR Doc. 2010-13346 Filed 6-2-10; 8:45 am]
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