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[Federal Register: March 17, 2010 (Volume 75, Number 51)]
[Proposed Rules]               
[Page 12707-12710]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr17mr10-27]                         

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DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 1218

[Document Number AMS-FV-09-0022; FV-09-705]

 
Blueberry Promotion, Research, and Information Order; Increase 
Membership

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Proposed rule.

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SUMMARY: This rule proposes to add two importer members and their 
alternates to the U.S. Highbush Blueberry Council (Council) to reflect 
changes in the quantity of highbush blueberry imports in the past three 
years. The change was proposed by the Council in accordance with the 
provisions of the Blueberry Promotion, Research, and Information Order 
(Order) which is authorized by the Commodity Promotion, Research, and 
Information Act of 1996 (Act). The Order requires that the Council 
review the geographical distribution of the United States production 
and the quantity of imports of highbush blueberries at least every five 
years. As a result of these changes, the total Council membership would 
increase from 14 to 16 members and their alternates. In addition, this 
rule proposes to increase the quorum minimum from seven to nine 
members.

DATES: Comments must be received by April 6, 2010.

ADDRESSES: Interested persons are invited to submit written comments on 
the Internet at: http://www.regulations.gov or to the Research and 
Promotion Branch, Fruit and Vegetable Programs, Agricultural Marketing 
Service (AMS), U.S. Department of Agriculture, (Department) Room 0632-
S, Stop 0244, 1400 Independence Avenue, SW., Washington, DC 20250-0244; 
facsimile: (202) 205-2800. All comments should reference the docket 
number and the date and page number of this issue of the Federal 
Register and will be made available for public inspection in the above 
office during regular business hours or it can be viewed at http://www.regulations.gov. All comments received will be posted without 
change, including any personal information provided.

FOR FURTHER INFORMATION CONTACT: Jeanette Palmer, Marketing Specialist, 
Research and Promotion Branch, Fruit and Vegetable Programs, AMS, U.S. 
Department of Agriculture, Stop 0244, 1400 Independence Avenue, SW., 
Room 0632-S, Washington, DC 20250-0244; telephone: (888) 720-9917; 
facsimile: (202) 205-2800; or electronic mail: 
Jeanette.Palmer@ams.usda.gov.

SUPPLEMENTARY INFORMATION: This rule is issued under the Blueberry 
Promotion, Research, and Information Order [7 CFR part 1218]. The Order 
is authorized under the Commodity Promotion, Research, and Information 
Act of 1996 (Act) [7 U.S.C. 7411-7425].

Executive Order 12866

    The Office of Management and Budget (OMB) has waived the review 
process required by Executive Order 12866 for this action.

Executive Order 12988

    This rule has been reviewed under Executive Order 12988, Civil 
Justice Reform. The rule is not intended to have retroactive effect. 
Section 524 of the Act provides that the Act shall not affect or 
preempt any other State or Federal law authorizing promotion or 
research relating to an agricultural commodity.
    The Act provides that any person subject to an order may file a 
written petition with the Department if they believe that the order, 
any provision of the order, or any obligation imposed in connection 
with the order, is not established in accordance with law. In any 
petition, the person may request a modification of the order or an 
exemption from the order. The petitioner is afforded the opportunity 
for a hearing on the petition. After a hearing, the Department would 
rule on the petition. The Act provides that the district court of the 
United States in any district in which the petitioner resides or 
conducts business shall have the jurisdiction to review the 
Department's ruling on the petition, provided a complaint is filed not 
later than 20 days after the date of the entry of the ruling.

Initial Regulatory Flexibility Analysis and Paperwork Reduction Act

    In accordance with the Regulatory Flexibility Act (RFA) [5 U.S.C. 
601-612], AMS has considered the economic impact of this action on the 
small producers, first handlers, importers, and exporters that would be 
affected by this rule. The purpose of the RFA is to fit regulatory 
action to scale on businesses subject to such action so that small 
businesses will not be disproportionately burdened.
    The Small Business Administration defines, in 13 CFR part 121, 
small agricultural producers as those having annual receipts of no more 
than $750,000 and small agricultural service firms as those having 
annual receipts of no more than $7 million. There are approximately 
2,000 producers, 200 first handlers, 50 importers, and 4 exporters of 
highbush blueberries subject to the program. Most of the producers 
would be classified as small businesses under the criteria established 
by the Small Business Administration. Most importers, first handlers, 
and exporters would not be classified as small businesses. Producers 
who produce less than 2,000 pounds of highbush blueberries annually are 
exempt from this program. Importers who import less than 2,000 pounds 
of fresh and frozen highbush blueberries annually are also exempt from 
this program.
    The Department's National Agricultural Statistics Service (NASS) 
data for the 2008 crop year shows that about 5,790 pounds of highbush 
blueberries were produced per acre. The 2008 average grower price for 
highbush blueberries published by NASS was $1.54 per pound. Thus, the 
value of highbush blueberry production per acre in 2008 averaged about 
$8,917 (5,790 pounds multiplied by $1.54). At that average value, a 
producer would have to farm over 84 acres to receive an annual income 
from highbush blueberries of $750,000 ($750,000 divided by $8,916 per 
acre equals 84). Accordingly, as previously noted, a majority of the 
producers of highbush blueberries would be classified as small 
businesses.
    According to the Council, assessments received in 2008 reached $2.4 
million. Of the total, the Council received $830,222 from import 
assessment collections which is approximately 35 percent of the 
Council's total budget. The Council has projected import assessment 
collections at $850,000 for the 2009 budget year.
    According to the Council's World Blueberry Acreage and Production 
Report, highbush blueberry acreage in North America increased from 
71,075 acres in 2005 to an estimated 95,607 acres in 2008, a 35 percent 
increase in just three years. The United States' share of this total 
increased from 56,665 acres in 2005 to 74,992 acres in 2008, a 32 
percent increase. Most of this

[[Page 12708]]

acreage growth is coming from the higher yielding western and southern 
States. Highbush blueberry production volume is expected to increase 
significantly from these regions in the coming years.
    In 2008, the United States exported 13,791 metric tons of fresh 
highbush blueberries worth over $69 million. Canada is the principal 
destination for United States exports--accounting for nearly 84 percent 
of the total in 2008. Other key markets included the United Kingdom at 
7 percent and Japan at 6 percent of the total. Most of the remaining 3 
percent of the United States exports were to Asian countries.
    The United States exports of frozen highbush blueberries totaled 
5,785 metric tons in 2008 and were valued at over $17 million. The 
largest United States export market for frozen highbush blueberries is 
Canada which accounted for 47 percent of the total quantity exported in 
2008. Japan was the second largest United States market accounting for 
39 percent. Most of the remaining 14 percent of United States exports 
were sent to other Asian, United Kingdom, and European countries.
    In 2008, the United States imported 45,105 metric tons of fresh 
highbush blueberries worth over $229 million. The largest imports of 
highbush blueberries came from Chile which accounted for 61 percent of 
the total in 2008. Other major suppliers of fresh highbush blueberries 
were Canada at 19 percent and Argentina at 17 percent of the total. The 
remaining 3 percent of imported highbush blueberries came from New 
Zealand and Uruguay.
    The United States imports of frozen highbush blueberries totaled 
19,152 metric tons in 2008 and were valued at over $64 million. The 
bulk of the United States frozen highbush blueberries imports came from 
Canada, which accounted for 78 percent of total in 2008. Other major 
suppliers of frozen highbush blueberries were Chile with 16 percent of 
the total, Argentina with 5 percent and the Netherlands with 1 percent.
    In the international market, highbush blueberry production has 
increased in Canada, Mexico, South America, Europe, and Asia. The 
highbush blueberry acreage worldwide has nearly doubled in the past 
five years from an estimated 83,299 acres in 2003 to an estimated 
163,065 acres in 2008. Based on the data in the Council's 2007-2008 
World Acreage and Production Report, North America represented 77 
percent of the total worldwide highbush blueberry acreage in 2003 
(64,360 acres), but just 59 percent of the estimated total acreage in 
2008 (95,607 acres).
    Most of the worldwide growth over the past five years has taken 
place in South America which has increased acreage from an estimated 
6,939 acres in 2003 to an estimated 39,703 acres in 2008, a nearly 
sixfold increase with the largest growth in Chile and Argentina. Most 
of the growth in European production, which has increased from 8,978 
acres in 2003 to 18,038 in 2008, has taken place in Spain, Germany, and 
Poland. Asian highbush blueberry production has increased during this 
five-year period from 2,372 acres to 7,870 acres with most of the 
growth taking place in China and to a lesser extent Japan. Acreage in 
Australia and New Zealand has not significantly increased during this 
period.
    Given worldwide acreage estimates, projections show that given 
optimal conditions with no crop losses or disruptions, total worldwide 
highbush blueberry production has the potential to increase from an 
estimated 606 million pounds in 2008 to an estimated 1.5 billion pounds 
by the year 2015, more than two times the current level of production 
in the next seven years. This total does not include lowbush (wild) 
blueberry production, which at the current time averages around 200 
million pounds per year. These projections are considered optimal 
forecasts and are based on the potential of what has been planted to 
date as well as upon assumptions of favorable crop years in all 
international highbush blueberry growing regions. During this period, 
North American highbush blueberry production is estimated to increase 
from 407 million pounds in 2008 to 890 million pounds by the year 2015, 
more than two times the current level of production.
    Section 1218.40(b) of the Order requires that the Council review 
the geographical distribution of United States production of highbush 
blueberries and the quantity of imports at least once every five years. 
Based on this review, the Council makes a recommendation to the 
Secretary of Agriculture (Secretary) to continue without change or make 
changes to the representation on the Council to reflect changes in the 
geographical distribution of the production of highbush blueberries and 
the quantity of imports. On August 13, 2009, the Council voted by 
electronic mail (e-mail) to add two importer members and their 
alternates to the Council. The vote to recommend two additional 
importers and their alternates was based on a three-year average 
production and imports data. Nine out of the ten Council members who 
voted were in support of adding these additional members.
    The Council consists of a total of 14 members which includes 10 
producers, 1 importer, 1 exporter from a foreign production area, 1 
handler, and 1 public member. Each member has an alternate. The 10 
producer members are allocated as follows: One producer member from 
each of the four regions and one producer member from each of the six 
top producing States. The regions are Western, Midwest, Northeast, and 
Southern. The top-producing States are Georgia, Michigan, New Jersey, 
North Carolina, Oregon, and Washington.
    In 2006, the Council collected assessments on 360,467 million 
pounds of highbush blueberries. The domestic production of highbush 
blueberries in the United States was 268,800 million pounds which was 
75 percent of the total assessments collected by the Council. Imports 
of highbush blueberries came in at 91,667 million pounds which 
represented 25 percent of the total assessments collected by the 
Council.
    The Council records show that for the years 2003, 2004, and 2005 
the United States produced 189,900 million pounds, 209,200 million 
pounds, and 246,000 million pounds of highbush blueberries 
respectively. Using this data, the three-year average annual highbush 
blueberries production for the United States totaled 215,033 million 
pounds per year (645,100 divided by 3). For this period, domestic 
production represented approximately 78 percent of the total 
assessments collected by the Council. For imports for the years 2003, 
2004, and 2005, imports were at 63,334 million pounds, 55,000 million 
pounds, and 66,667 million pounds of highbush blueberries, 
respectively. Based on this data, the three-year average annual imports 
for highbush blueberries totaled 61,667 million pounds per year 
(185,001 divided by 3). Imports represented 22 percent of the total 
assessments paid to the Council during the period of 2003 through 2005.
    The Council reviewed the domestic production of highbush 
blueberries in the United States. The Council records show that for the 
years 2006, 2007, and 2008 the United States produced 268,800 million 
pounds, 281,500 million pounds, and 335,900 million pounds of highbush 
blueberries respectively. Using this data, the three-year average 
annual highbush blueberries production for the United States totals 
295,400 million pounds per year (886,200 divided by 3). Based on this 
data, the domestic production represents 72 percent of the total 
assessments collected by the Council.
    Currently 72 percent of the Council's members represent the 
domestic

[[Page 12709]]

production. Therefore, the Council determined that there were no 
changes required at this time for the domestic member positions.
    The Council's assessment records show that for the years 2006, 
2007, and 2008 imports came in at 91,667 million pounds, 108,333 
million pounds, and 141,667 million pounds of highbush blueberries 
respectively. Based on this data, the three-year average annual imports 
for highbush blueberries totals 113,889 million pounds per year 
(341,667 divided by 3). This represents approximately 28 percent of the 
total assessments paid to the Council. In contrast in 1997, imports 
came at 23.7 million pounds or 12 percent of the total of domestic and 
imports. Accordingly, two importer and alternate seats should be added 
to the Council. The new Council membership distribution would be 10 
producers, 3 importers, 1 exporter, 1 handler, and 1 public member 
which would bring the percentage of seats for importers and exporters 
to 28 percent of the total seats on the Council.
    Given the adjustment in membership for the Council in 2006 and the 
proposed changes herein, it is proposed that the minimum quorum at a 
Council meeting increase from seven to nine members. This would reflect 
that a majority of the 16 Council members (or their alternates, when 
appropriate) are present for a quorum.
    Nominations and appointments to the Council are conducted pursuant 
to sections 1218.40, 1218.41, and 1218.42 of the Order. Appointments to 
the Council are made by the Secretary from a slate of nominated 
candidates. Pursuant to section 1218.41(d) of the Order, nominations 
for the importer, exporter, handler, and public member positions will 
be made by the Council. The nominees for the two importer and alternate 
positions will be submitted to the Secretary for appointment to the 
Council.
    In accordance with the Office of Management and Budget (OMB) 
regulation [5 CFR part 1320] which implements the Paperwork Reduction 
Act of 1995 [44 U.S.C. Chapter 35], the background form, which 
represents the information collection and recordkeeping requirements 
that are imposed by the Order have been approved previously under OMB 
number 0505-0001.
    The Order requires that two nominees be submitted for each vacant 
position. With regard to information collection requirements, adding 
two importers and their alternates to the Council means that eight 
additional importers will be required to submit background forms to the 
Department in order to be considered for appointment to the Council. 
However, serving on the Council is optional, and the burden of 
submitting the background form would be offset by the benefits of 
serving on the Council. The estimated annual cost of providing the 
information by eight importers would be $33 or $4.12 per importer. The 
additional burden will be included in the existing information 
collection package under OMB number 0505-0001.
    The Department has not identified any relevant Federal rules that 
duplicate, overlap, or conflict with this rule.
    We have performed this Initial Regulatory Flexibility Analysis 
regarding the impact of this proposed amendment to the Order on small 
entities, and we invite comments concerning potential effects of this 
amendment on small businesses.

Background

    The Order became effective on August 16, 2000, and it is authorized 
under the Act. The Council is composed of 10 producers, 1 importer, 1 
exporter from a foreign production area, 1 handler, and 1 public 
member. Each member has an alternate. The 10 producer members are 
allocated as follows: One producer member from each of the four regions 
and one producer member for each of the six top producing States. The 
regions are Western, Midwest, Northeast, and Southern. The top-
producing States that currently have representation on the Council are 
Georgia, Michigan, New Jersey, North Carolina, Oregon, and Washington. 
The producer members are nominated by producers or producer groups. The 
importer, exporter, handler, and public member positions are nominated 
by the Council.
    Under the Order, the Council administers a nationally coordinated 
program of research, development, advertising, and promotion designed 
to strengthen the position of highbush blueberries in the marketplace, 
and to establish, maintain, and expand markets for highbush 
blueberries. This program is financed by assessments on producers 
growing 2,000 pounds or more of highbush blueberries and importers who 
import 2,000 or more pounds of highbush blueberries per year. The 
current assessment rate is $12 per ton levied on highbush blueberries 
produced within the 50 States, the District of Columbia, the 
Commonwealth of Puerto Rico, and the territories and possessions of the 
United States and on imports of more than 2,000 pounds into the United 
States. The Order specifies that handlers are responsible for 
collecting and submitting the producer assessments to the Council and 
maintaining records necessary to verify their reporting(s). Importers 
are responsible for payment of assessments to the Council on highbush 
blueberries imported into the United States through the U.S. Customs 
Service and Border Protection. Producers who produce less than 2,000 
pounds and importers of less than 2,000 pounds of highbush blueberries 
annually are exempt from this program.
    Pursuant to section 515(b)(3)of the Act and section 1218.40(b) of 
the Order, at least once in each five-year period, the Council shall 
review the geographical distribution of United States production of 
highbush blueberries and the quantity of imports and make a 
recommendation to the Secretary to continue without change or make 
changes to the representation on the Council to reflect changes in the 
geographical distribution of the production of highbush blueberries and 
the quantity of imports.
    On August 13, 2009, the Council voted nine to one to increase the 
membership of the Council by adding two importer and alternate seats. 
Based on the Council's assessment records for the years 2006, 2007, and 
2008, imports came in at 91,667 million pounds, 108,333 million pounds, 
and 141,667 million pounds of highbush blueberries respectively. Based 
on this data, the three-year average annual imports for highbush 
blueberries totals 113,889 million pounds per year (341,667 divided by 
3). This represents approximately 28 percent of the total assessments 
paid to the Council. In contrast in 1997, imports came at 23.7 million 
pounds or 12 percent of the total of domestic and imports. Accordingly, 
two importer and alternate seats should be added to the Council. The 
new Council membership distribution would be 10 producers, 3 importers, 
1 exporter, 1 handler, and 1 public member which would bring the 
percentage of seats for importers and exporters to 28 percent of the 
total seats on the Council.
    This action will add to the Council two importers and two 
alternates. The Council would be composed of 10 producers, three 
importers, one exporter from a foreign production area, one handler, 
and one public member. Each member has an alternate. The addition of 
two importers and two alternates would allow for more importers 
representation on the Council's decision making and also potentially 
provide an opportunity to increase diversity on the Council.
    Furthermore, this rule would make amendments to section 1218.40(a) 
of the

[[Page 12710]]

Order to specify that the Council will be composed of 16 members and 
their alternates rather than 14. Also, this rule would revise section 
1218.40(a)(3) of the Order to specify three importers and alternates 
instead of one importer and alternate. In addition, this rule would 
revise section 1218.45 (a) of the Order to increase the minimum quorum 
level at Council meetings from seven to nine members.
    Nominations and appointments to the Council are conducted pursuant 
to sections 1218.40, 1218.41, and 1218.42 of the Order. Appointments to 
the Council are made by the Secretary from a slate of nominated 
candidates. Pursuant to section 1218.41(d) of the Order, nominations 
for the importer, exporter, handler, and public member positions are 
made by the Council. Nominations are submitted to the Secretary for 
appointment to the Council.
    A 20-day comment period is provided to allow interested persons to 
respond to this proposal. Twenty days is deemed appropriate so that the 
proposed amendments, if adopted, may be implemented with the other 
importer seats up for appointment in spring 2010. All written comments 
received in response to this rule by the date specified would be 
considered prior to finalizing this action.

List of Subjects in 7 CFR Part 1218

    Administrative practice and procedure, Advertising, Consumer 
information, Marketing agreements, Blueberry promotion, Reporting and 
recordkeeping requirements.

    For the reasons set forth in the preamble, 7 CFR part 1218 is 
proposed to be amended as follows:

PART 1218--BLUEBERRY PROMOTION, RESEARCH, AND INFORMATION ORDER

    1. The authority citation for 7 CFR part 1218 continues to read as 
follows:

    Authority: 7 U.S.C. 7411-7425; 7 U.S.C. 7401.

    2. In Sec.  1218.40, paragraph (a) introductory text and paragraph 
(a)(3) are revised to read as follows:


Sec.  1218.40  Establishment and membership.

    (a) Establishment of the U.S. Highbush Blueberry Council. There is 
hereby established a U.S. Highbush Blueberry Council, hereinafter 
called the Council, composed of no more than 16 members and alternates, 
appointed by the Secretary from nominations as follows:
* * * * *
    (3) Three importers and alternates.
* * * * *
    3. Section 1218.45 paragraph (a) is revised to read as follows:


Sec.  1218.45  Procedure.

    (a) At a Council meeting, it will be considered a quorum when a 
minimum of nine members, or their alternates serving in the absence, 
are present.
* * * * *

    Dated: March 11, 2010.
David R. Shipman,
Acting Administrator, Agricultural Marketing Service.
[FR Doc. 2010-5773 Filed 3-16-10; 8:45 am]
BILLING CODE 3410-02-P
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