This section of the FEDERAL REGISTER

contains notices to the public of the proposed

issuance of rules and regulations. The

purpose of these notices is to give interested

persons an opportunity to participate in the

rule making prior to the adoption of the final

rules.

Proposed Rules Federal Register

6131 

Vol. 75, No. 25 

Monday, February 8, 2010 

DEPARTMENT OF AGRICULTURE 

Agricultural Marketing Service 

7 CFR Part 1208 

[Doc. No. AMS–FV–07–0077; FV–07–705– 

PR–2A] 

RIN 0581–AC79 

Proposed Processed Raspberry 

Promotion, Research, and Information 

Order 

AGENCY: Agricultural Marketing Service, 

USDA. 

ACTION: Proposed rule and referendum 

order. 

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). The 

Department is conducting an initial 

referendum to ascertain whether the 

persons to be covered by and assessed 

under the Proposed Order favor the 

implementation of the program prior to 

it going into effect. In addition, USDA 

is announcing that the referendum will 

be conducted among eligible producers 

of raspberries for processing and 

importers of processed raspberries to 

determine whether they favor the 

implementation of the Proposed Order. 

The Proposed Order would be 

implemented if it is approved by a 

majority of producers and importers 

voting in the referendum. A separate 

final rule on referendum procedures is 

being published in this issue of the 

Federal Register. 

DATES: The voting period is March 22, 

2010 through April 2, 2010. To be 

eligible to vote, producers must have 

produced 20,000 pounds of raspberries 

for processing and importers must have 

imported 20,000 pounds of processed 

raspberries during the representative 

period from January 1, 2008 through 

December 31, 2008. Ballots will be 

mailed to all known producers of 

raspberries for processing and importers 

of processed raspberries, on or before 

March 8, 2010. Ballots must be received 

by the referendum agents no later than 

the close of business 4:30 p.m. (Eastern 

Time) on April 2, 2010. 

ADDRESSES: Copies of the Proposed 

Order may be obtained from: 

Referendum Agent, Research and 

Promotion Branch, Fruit and Vegetable 

Programs, AMS, USDA, 1400 

Independence Avenue, SW., Stop 0244, 

Room 0632–S, Washington, DC 20250– 

0244; telephone: (202) 720–9915 or 

(888) 720–9917 (toll free); or facsimile: 

(202) 205–2800; or can be viewed at 

http://www.regulations.gov. 

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@ams.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). 

As part of this rulemaking, a proposed 

rule was published in the Federal 

Register on April 9, 2009 [74 FR 16289], 

with a 60-day comment period, which 

closed on June 8, 2009. Twenty-one 

comments were received. 

Executive Order 12866 

This 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 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 1996 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 

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 

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6132 Federal Register / Vol. 75, No. 25 / Monday, February 8, 2010 / Proposed Rules 

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, WRRC stated that it has not 

been able to generate the funds 

necessary, nor has the ORBC or 

international raspberry organizations, 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. 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 

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 

subsequent to the implementation of a 

national program. 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). 

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. Further, an estimated ten 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 

of processed raspberries. 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, governmentsupervised, 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 raspberries for 

processing 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, most of 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 

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Federal Register / Vol. 75, No. 25 / Monday, February 8, 2010 / Proposed Rules 6133 

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 

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 also 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 atlarge 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 will be conducted prior to 

putting this Proposed Order in effect. A 

referendum order is published herein. 

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 of raspberries for 

processing 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 49 states and 

are harvested late June to mid August. 

The 2007 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 

2008, 119,270 million pounds of 

raspberries (fresh) with a combined 

value approaching $286 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 

2007, 142,500 million pounds were 

produced and utilized, at a value of 

almost $267 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 62 

million pounds in 2007 with most 

recent years averaging approximately 69 

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 2008. In comparison, imported 

processed raspberries surged from 7.5 to 

53.8 million pounds from 1991 to 2005 

and then decreased to 45.8 million 

pounds in 2008. Chile, which is the 

predominate importer of processed 

raspberries to the United States, 

supplied just over 18 percent of the total 

U.S. market in 2008. 

Domestic uses of processed 

raspberries include further processing 

into juices, jellies, baked goods, and 

consumer retailer packs. After averaging 

approximately 188 million pounds for 

the period 2006 to 2008, approximately 

165 million pounds of processed 

raspberries produced and imported into 

the United States in 2008, and 184 

million pounds in 2007 were utilized 

for processing. 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 2003 to 2008, with 

22 and 69.5 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 

§ 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. 

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6134 Federal Register / Vol. 75, No. 25 / Monday, February 8, 2010 / Proposed Rules 

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 

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 threeyear 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 sent 

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 nominations 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, which constitutes a 

region 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 sent 

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 

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Federal Register / Vol. 75, No. 25 / Monday, February 8, 2010 / Proposed Rules 6135 

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. 

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 threeyear average. 

If the Department determines that 

they 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. 

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 

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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 

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, the WRRC, stated that it has 

not been able to generate the funds 

necessary, nor has the ORBC or 

international raspberry organizations, 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. The WRRC also 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. 

There are no Federal rules that 

duplicate, overlap, or conflict with this 

rule. 

The Department invited comments 

concerning potential effects of the 

Proposed Order on small entities and 

the accuracy regarding the number and 

size of entities covered under the 

Proposed Order. We did not receive any 

comments as a result of the publication 

of the Initial Regulatory Flexibility 

Analysis. 

Paperwork Reduction Act 

In accordance with the Paperwork 

Reduction Act of 1995 [44 U.S.C. 

Chapter 35], AMS has requested 

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: 

Awaiting Renewal. 

Title: National Research, Promotion, 

and Consumer Information Programs. 

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Federal Register / Vol. 75, No. 25 / Monday, February 8, 2010 / Proposed Rules 6137 

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. 

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 processed raspberries 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 atlarge 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: 7.8 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: Producers and 

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. 

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6138 Federal Register / Vol. 75, No. 25 / Monday, February 8, 2010 / Proposed Rules 

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. 

(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. 

Comments were 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. We received 

one comment regarding the collection of 

information part of this rule. This 

comment is discussed in the comments 

section of this proposal. 

Comments 

A 60-day comment period was 

provided to allow interested persons an 

opportunity to respond to this proposal. 

Twenty-one comments were received on 

the Proposed Order by the June 08, 2009 

deadline. Comments were received from 

producers of raspberries for processing, 

importers of processed raspberries, 

industry associations, consumers, 

brokers, and other interested parties. 

Eighteen commenters supported the 

Proposed Order and three were 

opposed. 

Three commenters that supported the 

Proposed Order stated that with new 

challenges in the current global 

situation, a good marketing program 

funded by those in the industry would 

help sustain the industry and that 

producers and importers working 

together would provide funds sufficient 

to carry out nutrition and health based 

research and subsequent marketing 

efforts to grow the market for all 

participants. These commenters also 

stated that in order to sustain the 

processed raspberry industry and 

develop new markets domestically and 

internationally, it is necessary to have 

the Proposed Order implemented. 

Four commenters that supported the 

Proposed Order stated that it was 

necessary for those who benefit from 

market development activities to share 

in the cost burden. The commenters also 

stated that producers from countries 

that have turned from marketing fresh 

raspberries to processed raspberries 

because of the profitability year round 

should contribute to the cost of 

promotions and research needed to 

ensure strong markets. In addition, these 

commenters stated that importers who 

benefit from research and promotions 

generated domestically should pay their 

fair share into the program. The 

commenters also believe that growers 

should pay equitable share of cost to 

keep the industry healthy and are 

therefore in favor of the Proposed Order. 

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. 

Two commenters in favor of the 

Proposed Order stated that they 

appreciate the accessibility of 

raspberries during off season and the 

nutrition that they can provide to their 

family. The comments also stated that 

consumers need good factual nutrition 

information and a program to increase 

supply and build bigger markets is 

appreciated. 

Two commenters that supported the 

Proposed Order said they felt the initial 

assessment rate of one cent per pound 

should provide adequate funding for 

nutritional research and consumer 

education programs. 

One commenter that supported the 

Proposed Order believes the 20,000 

pound exemption from assessment for 

producers is appropriate. 

Three commenters that supported the 

Proposed Order were of the view that 

the Proposed Order would not only 

benefit small growers, but provide a 

gross benefit to the fresh market as well 

and can enable the fresh and processed 

raspberry industries to work together to 

build markets and address common 

research needs. 

Two commenters that supported the 

Proposed Order would like to see fresh 

and organic raspberries added to the 

Proposed Order in the future. However, 

the proponent group did not include 

fresh raspberries believing that their 

inclusion was not timely. If the fresh 

raspberry industry is interested in 

including fresh raspberries in the 

proposed program in the future, the 

Proposed Order would need to be 

amended and a referendum would be 

conducted to determine if fresh 

raspberries should be added. With 

regard to organic raspberries, a producer 

who operates under an approved 

National Organic Program (NOP) (7 CFR 

part 205) system plan, who also 

produces only products that are eligible 

to be labeled as 100 percent organic 

under the NOP, and is not a split 

operation, is exempt from the payment 

of assessments. Furthermore, 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 also be exempt from the 

payment of assessments. 

One commenter that supported the 

Proposed Order is concerned that the 

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Federal Register / Vol. 75, No. 25 / Monday, February 8, 2010 / Proposed Rules 6139 

Order may disparage the fresh 

raspberries market. The Proposed Order 

states in section 1208.48(c) that the 

Council may not engage in, and shall 

prohibit, employees and agents of the 

Council from engaging in 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. Accordingly, this provision 

addresses the commenter’s concern. 

One commenter that supported the 

Proposed Order is concerned that the 

proposal does not clearly use ‘‘processed 

raspberries’’ in the definitions of 

information and research in the 

Proposed Order. This comment has 

merit. Accordingly, the Department has 

changed section 1208.11 and section 

1208.24 of the Proposed Order to add 

processed raspberries to those sections. 

One commenter that supported the 

Proposed Order states that passage of 

the referendum should be based on 

voting by a majority of those voting who 

also represent a majority of production 

of processed raspberries. Section 518(e) 

of the 1996 Act states that an order may 

provide for its approval in referendum 

by a majority of those persons voting, by 

persons voting for approval who 

represent a majority of the volume of the 

agricultural commodity, or by a majority 

of those persons voting for approval 

who also represent a majority of the 

volume of the agricultural commodity. 

Any one of these three voting criteria 

would be appropriate for a research and 

promotion program. However, the 

proponent group proposed that passage 

of the referendum be based on a 

majority of those persons voting in the 

referendum. Further, only one comment 

was received concerning this matter. 

Therefore, the Department will keep the 

current method of voting, which is by a 

majority of those persons voting in the 

referendum, as the industry has put 

forth in the Proposed Order. 

Three commenters that supported the 

Proposed Order believe that promotion 

activities should be restricted to the 

United States or consequently would 

request that the Council demonstrate 

how foreign expenditures will have the 

result of promotion consumption in the 

United States as well as abroad. Section 

512(b)(2) of the Act provides authority 

for the Council to conduct activities in 

foreign markets. Furthermore, it is the 

Department’s policy that the funds used 

for promotions for those research and 

promotion programs that promote 

outside the U.S. be proportionate to the 

funds collected domestically. In 

addition, the Council is composed of 

both importers and producers, and it is 

the Council’s responsibility to 

determine how best to properly allocate 

the funds collected consistent with the 

provisions of the Order and the 1996 

Act. 

One commenter that supported the 

Proposed Order would like a credit of 

assessments for contributions made to 

programs for generic activities initiated 

in foreign countries. According to 

section 516(e)(1) of the 1996 Act, 

authority is provided for credits of 

assessments for those individuals who 

contribute to other similar generic 

research, promotion, and information 

programs at the State, regional, or local 

level. Accordingly, no change to the 

proposal is made as a result of this 

comment. 

Four commenters that supported the 

Proposed Order proposed that the 

aggregate credits that any importer or 

U.S. producer may be entitled to receive 

for contributions to U.S.-based and non 

U.S.-based generic research, promotion, 

and information programs in any one 

year be limited to an amount equal to 

no more than twenty-five percent of the 

total assessments paid by such importer 

or producer in that year. Section 516 of 

the 1996 Act authorizes credits only for 

similar generic research, promotion and 

information programs at the State, 

regional, or local level. The Department 

believes that this comment as it relates 

to a credit limit on contributions to 

U.S.-based programs has merit. 

However, a specific amount should be 

determined by the Council with 

approval of the Secretary. Therefore, 

section 1208.52(h)(3) of the Proposed 

Order is changed to add language 

allowing the Council to determine an 

appropriate rate. However, as stated 

above, contributions to non-U.S.-based 

programs are not authorized to receive 

credits of assessments paid. 

One commenter that supported the 

Proposed Order approves of the 

provision for a public member and the 

membership distribution on the Council 

in the Proposed Order. 

Three commenters that supported the 

Proposed Order suggested that the 

number of board seats for importers be 

reduced from three to two, while the 

number of foreign producer seats 

increase from two to three. In addition, 

three commenters proposed an increase 

in foreign producer seats on the Council 

because they believe that foreign 

producers will ultimately bear the cost 

of assessments. The Proposed Order 

states that the Council be composed of 

thirteen members and thirteen alternate 

members, appointed by the Secretary 

from nominations as follows: Six 

processed raspberry producer members 

and alternate members from States 

producing a minimum of three million 

pounds of raspberries delivered for 

processing; one processed raspberry 

producer member and alternate member 

representing all other States producing 

less than a three million pounds of 

raspberries delivered for processing; 

three processed raspberry importer 

members and alternate members; two 

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 one 

at-large member and an alternate 

recommended by the Council. Using 

this distribution, the domestic producer 

members on the Council would account 

for 54 percent of Council membership, 

importer members would account for 23 

percent of Council membership, foreign 

producers would account for 15 percent 

of Council membership, and the at-large 

member would account for 8 percent of 

Council membership. In 2010, estimated 

revenue from assessments is expected at 

$1.2 million of which 57 percent is 

expected from domestic product and 43 

percent from imported product. The 

total number of importers and foreign 

producers on the Council will equal 38 

percent of the total seats on the Council. 

Taking into account the amount of 

domestic and imported product, the 

composition of the Council as proposed 

is reasonable. Accordingly, the 

Department is not making any changes 

to this section. 

In addition, 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. Although the commenters 

believe that foreign producers would 

ultimately bear the cost of the 

assessments levied on importers, only 

producers and importers will pay 

assessments under the program. 

However, both foreign producers and 

importers will have representation on 

the Council. Therefore, the Department 

has not changed the proposed 

distribution of seats on the Council. 

Two commenters that supported the 

Proposed Order were concerned that 

processed black raspberries would be 

included in the domestic and import 

assessment. The commenters proposed 

that growers of black raspberries for 

processing and importers of processed 

black raspberries be exempt from 

payment of assessments. The 

Department agrees with this comment as 

it relates to excluding black raspberries 

for processing and processed black 

raspberries from the Proposed Order. 

The Department worked with the 484(f) 

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Committee (Committee) of the United 

States International Trade Commission 

(USITC) which is the committee that 

reviews requests for changes to the 

statistical reporting requirements of the 

HTS for imports, to determine the 

feasibility of separating processed red 

raspberries from HTS code 

0811.20.20.20. According to the 

Committee, separating the HTS code for 

processed red raspberries from all other 

raspberries is feasible. Accordingly, the 

Committee approved the petition for 

processed red raspberry statistical 

breakout in the Harmonized Tariff 

Schedule. The new number assigned to 

processed red raspberries will be 

0811.20.2025 and the residual ‘‘other’’ 

for other processed raspberries, 

including black raspberries, will be 

0811.20.2035, effective January 1, 2010. 

Therefore, black raspberries for 

processing, also defined as the genus 

Rubus occidentalis L., are not covered 

by the Order. 

Two commenters that supported the 

Proposed Order were concerned that the 

assessments on imports collected did 

not include raspberry juice and 

raspberry juice concentrate. Raspberry 

juice and raspberry juice concentrate are 

currently under an HTS code that 

includes other juices in addition to 

raspberry juice. According to the 

Committee, separating the HTS code for 

raspberry juice and raspberry juice 

concentrate from all other juices is not 

feasible at this time. Therefore, no 

change to the Order provisions is made 

as a result of these comments. 

One commenter that supported the 

Proposed Order stated that the preferred 

timing of a referendum would be after 

the peak harvest season of July or 

August. The referendum will be 

conducted outside of those months. 

One commenter stated that the 

reporting required by the Proposed 

Order and assessment remittance 

procedures would not be a problem 

because the commenter keeps similar 

records for a State program and remits 

assessments in a similar manner. 

Two commenters that opposed the 

Proposed Order were concerned about 

the effect of the cost of the program on 

the national taxpayer. Assessments 

would be paid by producers and 

importers of 20,000 or more pounds of 

raspberries for processing or processed 

raspberries respectively. Research and 

promotion programs under the 

Department are self-help programs, 

funded by their applicable industries, 

and do not receive taxpayer funds. 

Two commenters that opposed the 

Proposed Order stated that the price of 

raspberries is unaffordable and the 

addition of a research program for 

raspberries would subsequently increase 

the price further. The purpose of the 

Proposed Order is to maintain and 

expand markets for processed 

raspberries as well as to develop and 

carry out generic promotion, research, 

and information activities relating to 

processed raspberries. The Proposed 

Order does not regulate the price of 

raspberries. Further, these self-help 

programs usually make products more 

available to consumers by promoting 

year-round. Accordingly, no changes 

were made to the Proposed Order as a 

result of these comments. 

Upon review, the Department has 

made additional changes to the 

Proposed Order. The Department has 

changed the definitions of first handler 

in section 1208.6 and handle in section 

1208.9 to add for clarity, the term 

raspberries for processing, where 

appropriate. The reference to producers 

who handle their own production also 

is clarified. The Department added 

section 1208.40(c) to provide guidance 

to industry members when nominating 

members to the Council. The 

Department has changed section 

1208.53(c) to revise the period of time 

concerning a request for reimbursement 

from importers from ninety (90) days to 

sixty (60) days to conform with other 

similar exemption time frames. In 

addition, the Department has changed 

section 1208.53(d)(1), (d)(2), and (d)(3) 

to correctly state that the provisions of 

the exemption under the National 

Organic Program apply to producers of 

raspberries for processing, not handlers. 

The supplementary information section 

of the proposed rule incorrectly 

described the producer exemption. 

Finally, the references to individuals in 

section 1208.52(h) is changed for clarify 

to persons. 

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 

raspberries for processing 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 

§ 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 not to exceed one cent 

per pound, 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 

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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. 

Referendum Order 

Pursuant to the 1996 Act, a 

referendum will be conducted to 

determine whether eligible producers of 

raspberries for processing and importers 

of processed raspberries favor issuance 

of the Proposed Order. The Proposed 

Order is authorized under the 1996 Act. 

The representative period for 

establishing voter eligibility for the 

referendum shall be the period from 

January 1, 2008, through December 31, 

2008. Producers must have produced 

20,000 pounds of raspberries for 

processing and importers must have 

imported 20,000 pounds of processed 

raspberries during the representative 

period from January 1, 2008 through 

December 31, 2008, to be eligible to 

vote. The referendum shall be 

conducted by mail ballot from March 

22, 2010 through April 2, 2010. Ballots 

must be received by the referendum 

agents no later than the close of 

business 4:30 pm (Eastern Time) on 

April 2, 2010, to be counted. 

Section 518 of the 1996 Act 

authorizes the Department to conduct a 

referendum prior to the Order’s effective 

date. The Order shall become effective 

only if it is determined that the Order 

has been approved by a majority of 

those eligible persons voting for 

approval. 

Marlene Betts and Kimberly Coy, of 

the USDA, AMS, Research and 

Promotion Branch, are designated as the 

referendum agents to conduct this 

referendum. The referendum procedures 

[7 CFR 1208.100 through 1212.108], 

which were issued pursuant to the 1996 

Act, shall be used to conduct the 

referendum. 

The referendum agents will mail 

registration instructions to all know 

eligible producers and importers in 

advance of the referendum. Any 

producer or importer who does not 

receive registration instructions should 

contact the referendum agent cited 

under the ‘‘For Further Information’’ 

section no later than one week before 

the end of the registration period. Prior 

to the first day of the voting period, the 

referendum agents will mail the ballots 

to be cast in the referendum and voting 

instructions to all eligible to voters. 

Persons who are producers and 

importers during the representative 

period are eligible to vote. Any producer 

or importer who does not receive a 

ballot should contact the referendum 

agent cited under the FOR FURTHER

INFORMATION section no later than one 

week before the end of the registration 

period. Ballots must be received by the 

referendum agents by the close of 

business on or before April 2, 2010, to 

be counted. 

In accordance with the OMB 

regulation [5 CFR 1320] which 

implements the Paperwork Reduction 

Act of 1995 [44 U.S.C. 35], the 

referendum ballot, which represents the 

information collection and 

recordkeeping requirements that may be 

imposed by this rule, was submitted to 

OMB for approval and approved under 

OMB Number 0581–NEW. 

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 part 1208, 

Title 7, Chapter XI of the Code of 

Federal Regulations, be amended as 

follows: 

PART 1208—PROCESSED 

RASPBERRY PROMOTION, 

RESEARCH, AND INFORMATION 

ORDER 

1. The authority citation for part 1208 

continues to read as follows: 

Authority: 7 U.S.C. 7411–7425; 7 U.S.C. 

7401. 

2. Subpart A, consisting of §§ 1208.1 

through 1208.78, is added to read as 

follows: 

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. 

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 A—Processed Raspberry 

Promotion, Research, and Information 

Order 

Definitions 

§ 1208.1 Act. 

Act means the Commodity Promotion, 

Research, and Information Act of 1996 

(7 U.S.C. 7411–7425), and any 

amendments thereto. 

§ 1208.2 Conflict of interest. 

Conflict of interest means a situation 

in which a member or employee of the 

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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. 

§ 1208.3 Crop year. 

Crop year means the 12-month period 

from April 1 to March 31 or such other 

period approved by the Secretary. 

§ 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. 

§ 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. 

§ 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 or 

raspberries for processing 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 or raspberries for 

processing 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 processed raspberries of the 

producer’s own production. 

§ 1208.7 Fiscal period. 

Fiscal period means a calendar year 

from April 1 through March 31, or such 

other period as approved by the 

Secretary. 

§ 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. 

§ 1208.9 Handle. 

Handle means to pack, process, sell, 

transport, purchase, or in any other way 

to place or cause processed raspberries 

or raspberries for processing 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. 

§ 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. 

§ 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 processed raspberries or 

raspberries for processing 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 and raspberries 

for processing. 

(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 and raspberries 

for processing. 

(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 and raspberries 

for processing. 

§ 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. 

§ 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 § 1208.40. 

§ 1208.14 Order. 

Order means the Processed Raspberry 

Promotion, Research, and Information 

Order. 

§ 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. 

§ 1208.16 Person. 

Person means any individual, group 

of individuals, partnership, corporation, 

association, cooperative, or any other 

legal entity. 

§ 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. 

§ 1208.18 Processor. 

Processor means a person engaged in 

the preparation of raspberries for 

processing for market who owns or who 

shares the ownership and risk of loss of 

such raspberries. 

§ 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, and 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. 

§ 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. 

§ 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 

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importer and alternate importer 

members to the Council. 

§ 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. 

§ 1208.23 Raspberries. 

Raspberries mean and include all 

kinds, varieties, and hybrids of 

cultivated raspberries of the genus 

‘‘rubus idaeus L.’’ grown in or imported 

into the United States. 

§ 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 processed 

raspberries or raspberries for processing, 

including but not limited to research 

relating to nutritional value, cost of 

production, new product development, 

health research, and marketing of 

processed raspberries or raspberries for 

processing. 

§ 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. 

§ 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. 

§ 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. 

§ 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. 

§ 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 

§ 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 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 

the 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. 

(c) Council’s Ability to Serve the 

Diversity of the Industry. When making 

recommendations for appointments, the 

industry should take into account the 

diversity of the population served and 

the knowledge, skills, and abilities of 

the members to serve a diverse 

population, size of the operations, 

methods of production and distribution, 

and other distinguishing factors to 

ensure that the Council represents the 

diverse interests of persons responsible 

for paying assessments, and others in 

the marketing chain, if appropriate. 

§ 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. 

(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 sent to the Council 

and placed on a ballot which will then 

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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 nominee 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 sent 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., 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. 

(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 

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 

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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 threeyear 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. 

§ 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. 

§ 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 

§§ 1208.40 and 1208.41, except that said 

nomination and replacement shall not 

be required if said unexpired terms are 

less than six months. 

§ 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. 

§ 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 

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. 

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§ 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. 

§ 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 probable cost of each 

promotion, research, and information 

activity proposed to be developed or 

carried out by the Council in accordance 

with § 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 

§ 1208.52. 

§ 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 

§ 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: 

(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 

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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. 

§ 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. 

§ 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 § 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 

shall not exceed 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 red raspberries that are 

identified by the numbers 0811.20.2025 

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 

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 persons who 

contribute to local, regional, or State 

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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) The aggregate credit allowable in 

any one year shall be limited to an 

amount determined by the Council 

subject to the approval of the secretary, 

and shall be equal to not more than the 

determined percentage rate of the total 

assessments paid by any individual in a 

year to any State, regional, or local 

program. 

(4) Credit shall only be given for 

generic research, promotion, and 

information program activities. 

(5) 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. 

(6) The evidence of payment as 

required under § 1208.61, or a copy 

thereof, or such other evidence deemed 

necessary to the Council shall 

accompany the individual’s credit of 

assessment request. 

§ 1208.53 Exemption and reimbursement 

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 

§ 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 

§ 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 importer can 

request a reimbursement on the 

assessments paid to the Council by 60 

days of the last day of the 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 imported 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 raspberries for 

processing. 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 eligible for 

reimbursement of assessments collected 

by Customs 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 60 days of the last day 

of the year the processed raspberries 

were actually imported. Any claim for 

reimbursement submitted after sixty 

(60) days will be considered null and 

void. 

(d) A producer who produces 

raspberries for processing 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. 

(1) To obtain this exemption, an 

eligible producer 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 producer continues to be 

eligible for the exemption. 

(2) The request shall include the 

following: The producer’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. 

(3) If the producer complies with the 

requirements of paragraph (d) of this 

section, the Council will grant an 

assessment exemption and shall issue a 

Certificate of Exemption to the 

producer. For exemption requests 

received on or before March 15 of the 

fiscal year, the Council will have 60 

days to approve the exemption request; 

after March 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. 

(4) 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 a producer in 

paragraph (d)(3) 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- 

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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. 

(e) 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. 

(f) The Council, with the Secretary’s 

approval, may request that persons 

claiming an exemption from 

assessments under § 1208.53 must 

provide it with any information it 

deems necessary about the exemption, 

including, without limitation, the 

disposition of the exempted commodity. 

(g) The exemption will apply 

immediately following the issuance of 

the certificate of exemption. 

§ 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 a 

program, plan, or project 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. 

§ 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. 

§ 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, § 1208.73 

shall apply to determine disposition of 

all such property. 

Reports, Books, and Records 

§ 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 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 processed raspberries imported. 

All reports are due to the Council 30 

days after the end of the crop year. 

§ 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. 

§ 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 

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 

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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 

§ 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. 

§ 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 of raspberries for processing 

or the 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 § 1208.40 requests that the 

Secretary hold a referendum. In 

addition, the Secretary may hold a 

referendum at any time. 

§ 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. 

§ 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. 

§ 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. 

§ 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. 

§ 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. 

§ 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. 

§ 1208.78 OMB control numbers. 

The control number assigned to the 

information collection requirements 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 0505–0001, OMB 

control number 0581–0093, and OMB 

control number 0581–NEW. 

Dated: January 27, 2010. 

David R. Shipman, 

Acting Administrator, Agricultural Marketing 

Service. 

[FR Doc. 2010–2065 Filed 2–5–10; 8:45 am] 

BILLING CODE 3410–02–P 

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