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[Federal Register: February 8, 2010 (Volume 75, Number 25)]
[Proposed Rules]               
[Page 6131-6150]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr08fe10-17]                         

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Proposed Rules
                                                Federal Register
________________________________________________________________________

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.

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[[Page 6131]]



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.

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SUMMARY: This rule proposes the establishment of an industry-funded 
promotion, research, and information program for processed raspberries. 
The proposed program, Processed Raspberry Promotion, Research, and 
Information Order (Proposed Order), was submitted to the Department of 
Agriculture (Department) by the Washington Red Raspberry Commission 
(WRRC). Under the Proposed Order, producers of raspberries for 
processing and importers of processed raspberries would pay an 
assessment of up to one cent per pound, with the initial assessment 
rate being one cent per pound, which would be paid to the proposed 
National Processed Raspberry Council (Council). Producers and importers 
of less than 20,000 pounds annually of raspberries for processing and 
processed raspberries, respectively, would be exempt from the 
assessment. The proposed program would be implemented under the 
Commodity Promotion, Research, and Information Act of 1996 (1996 Act). 
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

[[Page 6132]]

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, government-supervised, generic 
commodity promotion programs.
    The WRRC submitted this Proposed Order to: (1) Develop and finance 
an effective and coordinated program of research, promotion, industry 
information, and consumer education regarding processed raspberries; 
(2) strengthen the position of the processed raspberry industry; and 
(3) maintain, develop, and expand existing markets for processed 
raspberries.
    While the Proposed Order would impose certain recordkeeping 
requirements on first handlers, this information could be compiled from 
records currently maintained. First handlers would collect and remit 
the assessments on domestic 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

[[Page 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 at-large member) would be $9,141.
    Section 518 of the 1996 Act provides for referenda to ascertain 
approval of the Proposed Order to be conducted either prior to its 
going into effect or within three years after assessments first begin 
under the Proposed Order. An initial referendum 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 Sec.  1208.71(a). Such an increase or decrease may occur not 
more than once annually. Any change in the assessment rate shall be 
subject to rulemaking by the Department, and will be reviewed, and 
increased or decreased by the Secretary through rulemaking as 
recommended by the Council. Any change in the assessment rate shall be 
announced by the Council at least 30 days prior to going into effect. 
The maximum assessment rate authorized is one cent per pound.
    At the proposed rate of assessment of up to one cent per pound, 
with the initial assessment rate being one cent per pound, the Council 
would collect approximately $1.2 million annually based on an estimated 
120 million pound supply from domestic raspberries for processing and 
imports of processed raspberries. The domestic supply represents 
approximately 57 percent of the total and imports represent 43 percent.

[[Page 6134]]

    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 three-year average; 
and one at-large member recommended by the Council. The distribution of 
producer member of raspberries for processing positions among the 
States producing a minimum of three million pounds of raspberries would 
be proportional to the average of the total pounds delivered to the 
processor for processing over the previous three years. The States that 
provide less than three million pounds will be combined into one region 
and will have one producer representative.
    Under the Proposed Order, the Council members and alternates will 
serve for a term of three years and be able to serve a maximum of two 
consecutive terms. When the Council is first established, four producer 
members, two importers, one of the two foreign producers, and the at-
large member and their respective alternates will be assigned initial 
terms of three years; and, three producer members, one importer member, 
and the second foreign producer and their respective alternates will 
serve an initial term of two years. Thereafter, each of these positions 
will carry a full three-year term. Members serving an initial term of 
two years will be eligible to serve a second three-year term to 
complete their eligibility. Council nominations and appointments will 
take place in two out of every three years. Each term of office will 
end on December 31, and a new term will begin on January 1.
    Producers and importers would represent those entities in the 
United States. The United States would be defined to include 
collectively the 50 States, the District of Columbia, the Commonwealth 
of Puerto Rico and the territories and possessions of the United 
States.
    The nominations for the six producer and alternate members from 
States producing a minimum three year average of three million pounds 
of raspberries delivered for processing will be submitted to the 
Council in the following manner: (1) For those States that have a State 
raspberry commission or State marketing order, the State commission or 
committee will nominate producers and their alternates to serve; or (2) 
for those States that do not have a State commission or State marketing 
order, the Council will seek nominations from the State Departments of 
Agriculture for members and alternates from the specific States.
    For those States producing a minimum three year average of three 
million pounds of raspberries delivered for processing that have a 
State raspberry commission or State marketing order, the State 
commission or committee nominations will be 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

[[Page 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 three-year 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

[[Page 6136]]

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.

[[Page 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 at-large member. The estimated cost of providing the 
information to the Council by respondents would be $9,141. This total 
has been estimated by multiplying 277 total hours required for 
reporting and recordkeeping by $33, the average mean hourly earnings of 
various occupations involved in keeping this information. Data for 
computation of this hourly rate was obtained from the U.S. Department 
of Labor Statistics.
    The Proposed Order's provisions have been carefully reviewed, and 
every effort has been made to minimize any unnecessary recordkeeping 
costs or requirements, including efforts to utilize information already 
submitted under other raspberry programs administered by the Department 
and other state programs.
    The proposed forms would require the minimum information necessary 
to effectively carry out the requirements of the program, and their use 
is necessary to fulfill the intent of the 1996 Act. Such information 
can be supplied without data processing equipment or outside technical 
expertise. In addition, there are no additional training requirements 
for individuals filling out reports and remitting assessments to the 
Council. The forms would be simple, easy to understand, and place as 
small a burden as possible on the person required to file the 
information.
    Collecting information yearly would coincide with normal industry 
business practices. The timing and frequency of collecting information 
are intended to meet the needs of the industry while minimizing the 
amount of work necessary to fill out the required reports. The 
requirement to keep records for two years is consistent with normal 
industry practices. In addition, the information to be included on 
these forms is not available from other sources because such 
information relates specifically to individual producers, first 
handlers, processors, foreign producers, and importers who are subject 
to the provisions of the 1996 Act.
    Therefore, there is no practical method for collecting the required 
information without the use of these forms.
    Information collection requirements that are included in this 
proposal include:

(1) A Background Information Form AD-755 (OMB Form No. 0505-0001)

    Estimate of Burden: Public reporting for this collection of 
information is estimated to average 0.5 hours per response for each 
Council nominee.
    Respondents: Producers, importers, foreign producers, and at-large 
nominee.
    Estimated number of Respondents: 26 (52 for initial nominations to 
the Council, 26 in subsequent years).
    Estimated number of Responses per Respondent: 1 every 3 years. 
(0.3)
    Estimated Total Annual Burden on Respondents: 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.

[[Page 6138]]

    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

[[Page 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)

[[Page 6140]]

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 Sec.  1208.71 (a). Such an 
increase or decrease may occur not more than once annually and may not 
exceed the initial assessment rate of one cent per pound. Any change in 
the assessment rate shall be subject to rulemaking by the Department, 
and will be reviewed, and increased or decreased by the Secretary 
through rulemaking as recommended by the Council. Any change in the 
assessment rate shall be announced by the Council at least 30 days 
prior to going into effect. The maximum assessment rate authorized is 
one cent per pound.
    The assessment rate may be raised or lowered at a rate 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

[[Page 6141]]

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 Sec. Sec.  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


Sec.  1208.1  Act.

    Act means the Commodity Promotion, Research, and Information Act of 
1996 (7 U.S.C. 7411-7425), and any amendments thereto.


Sec.  1208.2  Conflict of interest.

    Conflict of interest means a situation in which a member or 
employee of the

[[Page 6142]]

Council has a direct or indirect financial interest in a person who 
performs a service for, or enters into a contract with, the Council for 
anything of economic value.


Sec.  1208.3  Crop year.

    Crop year means the 12-month period from April 1 to March 31 or 
such other period approved by the Secretary.


Sec.  1208.4  Customs.

    Customs means the United States Customs and Border Protection or 
U.S. Customs Service, an agency of the United States Department of 
Homeland Security.


Sec.  1208.5  Department.

    Department means the United States Department of Agriculture or any 
officer or employee of the Department to whom authority has heretofore 
been delegated, or to whom authority may hereafter be delegated, to act 
in the Secretary's stead.


Sec.  1208.6  First handler.

    First handler means any person (excluding a common or contract 
carrier) receiving raspberries for processing from producers in a 
calendar year and who as owner or agent, ships or causes processed 
raspberries 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.


Sec.  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.


Sec.  1208.8  Foreign producer.

    Foreign producer means any person:
    (a) Who is engaged in the production and sale of raspberries for 
processing outside of the United States and who owns, or shares the 
ownership and risk of loss of raspberries for processing for sale in 
the U.S. market; or
    (b) Who is engaged, outside of the United States, in the business 
of producing, or causing to be produced, processed raspberries beyond 
the person's own family use and having value at first point of sale.


Sec.  1208.9  Handle.

    Handle means to pack, process, sell, transport, purchase, or in any 
other way to place or cause processed raspberries 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.


Sec.  1208.10  Importer.

    Importer means any person importing 20,000 pounds or more of 
processed raspberries into the United States in a calendar year as a 
principal or as an agent, broker, or consignee of any person who 
produces or handles processed raspberries outside of the United States 
for sale in the United States, and who is listed in the import records 
as the importer of record for such processed raspberries.


Sec.  1208.11  Information.

    Information means information and programs that are designed to 
increase efficiency in processing and to develop new markets, marketing 
strategies, increase market efficiency, and activities that are 
designed to enhance the image of 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.


Sec.  1208.12  Market or marketing.

    (a) Marketing means the sale or other disposition of processed 
raspberries in interstate, foreign or intrastate commerce.
    (b) To market means to sell or otherwise dispose of processed 
raspberries in any channel of commerce.


Sec.  1208.13  National Processed Raspberry Council.

    National Processed Raspberry Council or such other name as 
recommended by the Council and approved by the Department means the 
administrative body established pursuant to Sec.  1208.40.


Sec.  1208.14  Order.

    Order means the Processed Raspberry Promotion, Research, and 
Information Order.


Sec.  1208.15  Part and subpart.

    Part means the Processed Raspberry Promotion, Research, and 
Information Order and all rules, regulations, and supplemental orders 
issued pursuant to the Act and the Order. The Order shall be a subpart 
of such part.


Sec.  1208.16  Person.

    Person means any individual, group of individuals, partnership, 
corporation, association, cooperative, or any other legal entity.


Sec.  1208.17  Processed raspberries.

    Processed raspberries means raspberries which have been frozen, 
dried, pureed, made into juice, or delivered in any other form altered 
by mechanical processes other than fresh.


Sec.  1208.18  Processor.

    Processor means a person engaged in the preparation of raspberries 
for processing for market who owns or who shares the ownership and risk 
of loss of such raspberries.


Sec.  1208.19  Producer.

    Producer means any person who grows 20,000 pounds or more of 
raspberries for processing in the United States for sale in commerce, 
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.


Sec.  1208.20  Promotion.

    Promotion means any action taken to present a favorable image of 
processed raspberries to the general public and the food industry for 
the purpose of improving the competitive position of processed 
raspberries both in the United States and abroad and stimulating the 
sale of processed raspberries including paid advertising and public 
relations.


Sec.  1208.21  Qualified national organization representing importer 
interests.

    Qualified national organization representing importer interests 
means an organization that the Secretary certifies as being eligible to 
nominate

[[Page 6143]]

importer and alternate importer members to the Council.


Sec.  1208.22  Qualified organization representing foreign producer 
interests.

    Qualified organization representing foreign producer interests 
means an organization that the Secretary certifies as being eligible to 
nominate foreign producer and alternate foreign producer members to the 
Council.


Sec.  1208.23  Raspberries.

    Raspberries mean and include all kinds, varieties, and hybrids of 
cultivated raspberries of the genus ``rubus idaeus L.'' grown in or 
imported into the United States.


Sec.  1208.24  Research.

    Research means any type of test, study, or analysis designed to 
advance the image, desirability, use, marketability, production, 
product development, or quality of 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.


Sec.  1208.25  Secretary.

    Secretary means the Secretary of Agriculture of the United States, 
or any officer or employee of the Department to whom authority has been 
delegated, or to whom authority may be delegated, to act in the 
Secretary's stead.


Sec.  1208.26  State.

    State means any of the several 50 States of the United States, the 
District of Columbia, the Commonwealth of Puerto Rico, and the 
territories and possessions of the United States.


Sec.  1208.27  Suspend.

    Suspend means to issue a rule under section 553 of title 5 U.S.C., 
to temporarily prevent the operation of an order or part thereof during 
a particular period of time specified in the rule.


Sec.  1208.28  Terminate.

    Terminate means to issue a rule under section 553 of title 5 
U.S.C., to cancel permanently the operation of an order or part thereof 
beginning on a certain date specified in the rule.


Sec.  1208.29  United States.

    United States means collectively the 50 States, the District of 
Columbia, the Commonwealth of Puerto Rico, and the territories and 
possessions of the United States.

National Processed Raspberry Council


Sec.  1208.40  Establishment and membership.

    (a) Establishment of the National Processed Raspberry Council. 
There is hereby established a National Processed Raspberry Council, or 
such other name as recommended by the Council and approved by the 
Department, hereinafter called Council, composed of thirteen (13) 
members and thirteen (13) alternate members, appointed by the Secretary 
from nominations as follows:
    (1) Six (6) processed raspberry producer members and alternate 
members from States producing a minimum of three (3) million pounds of 
raspberries delivered for processing. Distribution of the seats among 
the eligible States shall be proportional to the percent determined by 
the average of the total pounds produced and delivered to processors 
for processing over the previous three years divided by the average 
total pounds by all of the eligible States for the previous three 
years. Only States whose producers deliver raspberries for processing 
and pay assessments are eligible for nomination and election to the 
Council. Average production will be based upon either State production 
figures or the Department data for the initial election, and production 
figures generated by either the Council or the Department thereafter;
    (2) One (1) processed raspberry producer member and alternate 
member representing all other States producing less than 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.


Sec.  1208.41  Nominations and appointments.

    (a) Voting for regional and State producer representatives will be 
made by mail ballot.
    (b) Nominations for the initial Council will be handled by the 
Department. Subsequent nominations will be handled by the Council.
    (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

[[Page 6144]]

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

[[Page 6145]]

interests, an organization must meet the following criteria, as 
evidenced by a report submitted by the organization to the Secretary:
    (1) The organization must represent a substantial number of 
importers who market or produce a substantial volume of raspberries for 
processing;
    (2) The organization has a history of stability and permanency and 
has been in existence for more than one year;
    (3) The organization must promote processed raspberries importers' 
welfare; and
    (4) The organization must derive a portion of its operating funds 
from importers.
    (l) Qualified organization representing foreign producer interests. 
To be certified by the Secretary as a qualified organization 
representing foreign producer interests, an organization must meet the 
following criteria, as evidenced by a report submitted by the 
organization to the Secretary:
    (1) The organization must represent a substantial number of foreign 
producers who produce a substantial volume of raspberries for 
processing;
    (2) The organization has a history of stability and permanency and 
has been in existence for more than one year;
    (3) The organization must promote processed raspberry foreign 
producers' welfare;
    (4) The organization must derive a portion of its operating funds 
from foreign producers; and
    (5) The organization must be from a country exporting a minimum of 
three million pounds of raspberries for processing to the U.S. based on 
a three-year average.
    (m) Eligible organizations, foreign producers, or importers must 
submit nominations to the Secretary not less than 90 days prior to the 
expiration of the term of office. At least two nominees for each 
position to be filled must be submitted.


Sec.  1208.42  Term of office.

    Council members and alternates will serve for a term of three years 
and be able to serve a maximum of two consecutive terms. A Council 
member may serve as an alternate during the years the member is 
ineligible for a member position. When the Council is first 
established, four producer members, two importers, one of the two 
foreign producers, and the at-large member and their respective 
alternates will be assigned initial terms of three years. The remaining 
three producer members, one importer member, and the second foreign 
producer and their alternates will serve an initial term of two years. 
Members serving an initial term of two years will be eligible to serve 
a second term of three years. Thereafter, each of these positions will 
carry a full three-year term. Council nominations and appointments will 
take place in two out of every three years. Council members shall serve 
during the term of office for which they are appointed and have 
qualified, and until their successors are appointed and have qualified. 
Each term of office will end on December 31, with new terms of office 
beginning on January 1.


Sec.  1208.43  Vacancies.

    (a) In the event that any member of the Council ceases to be a 
member of the category of membership from which the member was 
appointed to the Council, such position shall automatically become 
vacant.
    (b) If a member of the Council consistently refuses to perform the 
duties of a member of the Council, or if a member of the Council 
engages in acts of dishonesty or willful misconduct, the Council may 
recommend to the Secretary that the member be removed from office. If 
the Secretary finds the recommendation of the Council shows adequate 
cause, the Secretary may remove such member from office.
    (c) Should any member position become vacant, the alternate of that 
member shall automatically assume the position of said member. Should 
the positions of both a member and such member's alternate become 
vacant, successors for the unexpired terms of such member and alternate 
shall be appointed in the manner specified in Sec. Sec.  1208.40 and 
1208.41, except that said nomination and replacement shall not be 
required if said unexpired terms are less than six months.


Sec.  1208.44  Alternate members.

    An alternate member of the Council, during the absence of the 
member for whom the person is the alternate, shall act in the place and 
stead of such member and perform such duties as assigned. In the event 
of death, removal, resignation, or disqualification of any member, the 
alternate for that member shall automatically assume the position of 
said member. In the event that a producer, importer, foreign producer, 
or at-large member of the Council and their alternate are unable to 
attend a meeting, the Council may not designate any other alternate to 
serve in such member's or alternate's place and stead for such a 
meeting.


Sec.  1208.45  Procedure.

    (a) At a Council meeting, it will be considered a quorum when a 
majority (one more than half) of the Council members is present. An 
alternate will be counted for the purpose of determining a quorum only 
if the member for whom the person is the alternate is absent or 
disqualified from participating.
    (b) At the start of each fiscal period, the Council will select a 
chairperson, vice chairperson, and other officers as appropriate, who 
will conduct meetings throughout that period.
    (c) The chairperson and the treasurer shall reside in the United 
States, and the Council office shall also be located in the United 
States.
    (d) All Council meetings shall be held in the United States.
    (e) All Council members and alternates will receive a minimum of 20 
days' advance notice of all Council and committee meetings.
    (f) Each member of the Council will be entitled to one vote on any 
matter put to the Council, and the motion will carry if supported by 
one (1) vote more than 50 percent of the total votes represented by the 
Council members present.
    (g) It will be considered a quorum at a Council committee meeting 
when at least one more than half of those assigned to the Council 
committee are present. Alternates may also be assigned to Council 
committees as necessary. Council committees may consist of persons 
other than Council members and such persons may vote in Council 
committee meetings.
    (h) In lieu of voting at a properly convened meeting and, when in 
the opinion of the chairperson of the Council such action is considered 
necessary, the Council may take action if supported by one vote more 
than 50 percent of the members present, by mail, telephone, electronic 
mail, facsimile, or any other means of communication, and all telephone 
votes shall be confirmed promptly in writing. In that event, all 
members must be notified and provided the opportunity to vote. Any 
action so taken shall have 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.

[[Page 6146]]

Sec.  1208.46  Compensation and reimbursement.

    The members of the Council, and alternates when acting as members, 
shall serve without compensation but shall be reimbursed for reasonable 
travel expenses, as approved by the Council, incurred by them in the 
performance of their duties as Council members.


Sec.  1208.47  Powers and duties.

    The Council shall have the following powers and duties:
    (a) To administer the Order in accordance with its terms and 
conditions and to collect assessments;
    (b) To develop and recommend to the Secretary for approval such 
bylaws as may be necessary for the functioning of the Council, and such 
rules as may be necessary to administer the Order, including activities 
authorized to be carried out under the Order;
    (c) To meet, organize, and select from among the members of the 
Council a chairperson, other officers, committees, and subcommittees, 
as the Council determines to be appropriate;
    (d) To employ persons, other than members, as the Council considers 
necessary to assist the Council in carrying out its duties and to 
determine the compensation and specify the duties of such persons;
    (e) To develop and carry our generic promotion, research, and 
information activities relating to processed raspberries;
    (f) To develop programs and projects, and enter into contracts or 
agreements, which must be approved by the Secretary before becoming 
effective, for the development and carrying out of programs or projects 
of research, information, or promotion, and the payment of costs 
thereof with funds collected pursuant to this subpart. Each contract or 
agreement shall provide that any person who enters into a contract or 
agreement with the Council shall develop and submit to the Council a 
proposed activity; keep accurate records of all of its transactions 
relating to the contract or agreement; account for funds received and 
expended in connection with the contract or agreement; make periodic 
reports to the Council of activities conducted under the contract or 
agreement; and make such other reports available as the Council or the 
Secretary considers necessary. Any contract or agreement shall provide 
that:
    (1) The contractor or agreeing party shall develop and submit to 
the Council a program, plan, or project together with a budget or 
budgets that shall show the estimated cost to be incurred for such 
program, plan, or project;
    (2) The contractor or agreeing party shall keep accurate records of 
all its transactions and make periodic reports to the Council of 
activities conducted, submit accounting for funds received and 
expended, and make such other reports as the Secretary or the Council 
may require;
    (3) The Secretary may audit the records of the contracting or 
agreeing party periodically;
    (4) Any subcontractor who enters into a contract with a Council 
contractor and who receives or otherwise uses funds allocated by the 
Council shall be subject to the same provisions as the contractor;
    (g) To prepare and submit for approval of the Secretary, before the 
beginning of each fiscal year, rates of assessment and a fiscal year 
budget of the anticipated expenses to be incurred in the administration 
of the Order, including the probable cost of each promotion, research, 
and information activity proposed to be developed or carried out by the 
Council in accordance with Sec.  1208.50;
    (h) To borrow funds necessary for the startup expenses of the 
order;
    (i) To maintain such records and books and prepare and submit such 
reports and records from time to time to the Secretary as the Secretary 
may require and to make the records available to the Secretary for 
inspection and audit; to make appropriate accounting with respect to 
the receipt and disbursement of all funds entrusted to it; and to keep 
records that accurately reflect the actions and transactions of the 
Council;
    (j) To cause its books to be audited by a independent auditor at 
the end of each fiscal year and at such other times as the Secretary 
may request, and to submit a report of the audit directly to the 
Secretary;
    (k) To give the Secretary the same notice of meetings of the 
Council as is given to members in order that the Secretary's 
representative(s) may attend such meetings, and to keep and report 
minutes of each meeting of the Council to the Secretary;
    (l) To act as intermediary between the Secretary and any producer, 
first handler, processor, importer, or foreign producer;
    (m) To furnish to the Secretary any information or records that the 
Secretary may request;
    (n) To receive, investigate, and report to the Secretary complaints 
of violations of the Order;
    (o) To recommend to the Secretary such amendments to the Order as 
the Council considers appropriate;
    (p) To work to achieve an effective, continuous, and coordinated 
program of promotion, research, consumer information, evaluation, and 
industry information designed to strengthen the processed raspberry 
industry's position in the marketplace; maintain and expand existing 
markets and uses for processed raspberries; and to carry out programs, 
plans, and projects designed to provide maximum benefits to the 
processed raspberry industry; and
    (q) To pay the cost of the activities with assessments collected 
under Sec.  1208.52.


Sec.  1208.48  Prohibited activities.

    The Council may not engage in, and shall prohibit the employees and 
agents of the Council from engaging in:
    (a) Any action that would be a conflict of interest;
    (b) Using funds collected by the Council under the Order to 
undertake any action for the purpose of influencing legislation or 
governmental action or policy, by local, state, national, and foreign 
governments, other than recommending to the Secretary amendments to the 
Order; and
    (c) Any advertising, including promotion, research, and information 
activities authorized to be carried out under the Order that may be 
false or misleading or disparaging to another agricultural commodity.

Expenses and Assessments


Sec.  1208.50  Budget and expenses.

    (a) At least 60 days prior to the beginning of each fiscal year, 
and as may be necessary thereafter, the Council shall prepare and 
submit to the Secretary a budget for the fiscal year covering its 
anticipated expenses and disbursements in administering this subpart. 
The budget for research, promotion, or information may not be 
implemented prior to approval of the budget by the Secretary. No later 
than forty-five (45) days after the receipt of such budget, the 
Secretary shall notify the Council whether the Secretary approves or 
disapproves the budget. Each budget shall include:
    (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

[[Page 6147]]

expenditures and to provide for a reserve as set forth in this subpart.
    (c) Subject to this section, any amendment or addition to an 
approved budget must be approved by the Secretary, including shifting 
funds from one program, plan, or project to another. Shifts in funds 
which do not cause an increase in the Council's approved budget, and 
which are consistent with by laws, need not have prior approval by the 
Department.
    (d) The Council is authorized to incur such expenses, including 
provision for a reasonable reserve, as the Secretary finds are 
reasonable and likely to be incurred by the Council for its maintenance 
and functioning, and to enable it to exercise its powers and perform 
its duties in accordance with the provisions of this subpart. Such 
expenses shall be paid from funds received by the Council.
    (e) With approval of the Secretary, the Council may borrow money 
for the payment of administrative expenses, subject to the same fiscal, 
budget, and audit controls as other funds of the Council. Any funds 
borrowed by the Council shall be expended for startup costs and capital 
outlays and are limited to the first year of operation of the Council.
    (f) The Council is authorized to repay startup costs associated 
with establishing a program and an initial referendum. If approved, 
these costs would be amortized and repaid over a maximum three (3) year 
period.
    (g) The Council may accept voluntary contributions, but these shall 
only be used to pay expenses incurred in the conduct of programs, 
plans, and projects approved by the Secretary. Such contributions shall 
be free from any encumbrance by the donor and the Council shall retain 
complete control of their use.
    (h) The Council may also receive funds provided through the 
Department's Foreign Agricultural Service or from other sources, with 
the approval of the Secretary, for authorized activities.
    (i) The Council shall reimburse the Secretary for all expenses 
incurred by the Secretary in the implementation, administration, 
enforcement, and supervision of the Order, including all referendum 
costs in connection with the Order.
    (j) The Council may not expend for administration, maintenance, and 
functioning of the Council in any fiscal year an amount that exceeds 15 
percent of the assessments and other income received by the Council for 
that fiscal year. Reimbursements to the Secretary required under 
paragraph (i) of this section are excluded from this limitation on 
spending.
    (k) The Council may establish an operating monetary reserve and may 
carry over to subsequent fiscal periods excess funds in any reserve so 
established: Provided that the funds in the reserve do not exceed one 
fiscal period's budget. Subject to approval by the Secretary, such 
reserve funds may be used to defray any expenses authorized under this 
part.
    (l) Pending disbursement of assessments and all other revenue under 
a budget approved by the Secretary, the Council may invest assessments 
and all other revenues collected under this section in:
    (1) Obligations of the United States or any agency of the United 
States;
    (2) General obligations of any State or any political subdivision 
of a State;
    (3) Interest bearing accounts or certificates of deposit of 
financial institutions that are members of the Federal Reserve System; 
or
    (4) Obligations fully guaranteed as to principal interest by the 
United States.


Sec.  1208.51  Financial statements.

    (a) As requested by the Secretary, the Council shall prepare and 
submit financial statements to the Secretary on a periodic basis. Each 
such financial statement shall include, but not be limited to, a 
balance sheet, income statement, and expense budget. The expense budget 
shall show expenditures during the time period covered by the report, 
year-to-date expenditures, and the unexpended budget.
    (b) Each financial statement shall be submitted to the Secretary 
within 30 days after the end of the time period to which it applies.
    (c) The Council shall submit annually to the Secretary an annual 
financial statement within 90 days after the end of the fiscal year to 
which it applies.


Sec.  1208.52  Assessments.

    (a) The funds to cover the Council's expenses shall be paid from 
assessments on producers and importers at a rate not to exceed one cent 
per pound; the initial rate is one cent per pound, donations from any 
person not subject to assessments under this Order, and other funds 
available to the Council including those collected pursuant to Sec.  
1208.56 and subject to the limitations contained therein.
    (b) The collection of assessments on domestic processed raspberries 
will be the responsibility of the first handler receiving the 
raspberries for processing. In the case of the producer acting as its 
own first handler, the producer will be required to collect and remit 
its individual assessments. The rate of assessments shall be prescribed 
in regulations issued by the Secretary.
    (c) The Council may recommend to the Secretary an increase or 
decrease to the assessment rate. Such an increase or decrease may occur 
not more than once annually. Any change in the assessment rate shall be 
subject to rulemaking by the Department.
    (d) Each importer of processed raspberries shall pay an assessment 
to the Council on processed raspberries imported for marketing in the 
United States, through Customs. If Customs does not collect an 
assessment from an importer, the importer would be responsible for 
paying the assessment directly to the Council. The assessment rate for 
imported processed raspberries 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

[[Page 6148]]

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 Sec.  1208.61, or a 
copy thereof, or such other evidence deemed necessary to the Council 
shall accompany the individual's credit of assessment request.


Sec.  1208.53  Exemption 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 Sec.  1208.52 
shall apply to the Council, on a form provided by the Council, for a 
certificate of exemption. Such producer shall certify that the 
producer's production of raspberries for processing shall be less than 
20,000 pounds for the fiscal year for which the exemption is claimed. 
Any importer who imports less than 20,000 pounds of processed 
raspberries annually who desires to claim an exemption from assessments 
during a fiscal year as provided in Sec.  1208.52 shall apply to the 
Council, on a form provided by the Council, for a certificate of 
exemption. Such importer shall certify that the importer's importation 
of processed raspberries shall not exceed 20,000 pounds, for the fiscal 
year for which the exemption is claimed. If a producer or importer 
determines at the end of the year that they did not meet the 20,000 
pounds minimum, the producer or 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-

[[Page 6149]]

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 Sec.  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.


Sec.  1208.54  Programs, plans, and projects.

    (a) The Council shall receive and evaluate, or on its own 
initiative, develop and submit to the Secretary for approval any 
program, plan, or project authorized under this subpart. Such 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.


Sec.  1208.55  Independent evaluation.

    The Council shall, not less often than once every five years, 
authorize and fund, from funds otherwise available to the Council, an 
independent evaluation of the effectiveness of the Order and programs 
conducted by the Council pursuant to the Act. The Council shall submit 
to the Secretary, and make available to the public, the results of each 
periodic independent evaluation conducted under this paragraph.


Sec.  1208.56  Patents, copyrights, trademarks, information, 
publications, and product formulations.

    Patents, copyrights, trademarks, information, publications, and 
product formulations developed through the use of funds received by the 
Council under this subpart shall be the property of the U.S. Government 
as represented by the Council and shall, along with any rents, 
royalties, residual payments, or other income from the rental, sales, 
leasing, franchising, or other uses of such patents, copyrights, 
trademarks, information, publications, or product formulations, inure 
to the benefit of the Council, shall be considered income subject to 
the same fiscal, budget, and audit controls as other funds of the 
Council, and may be licensed subject to approval by the Secretary. Upon 
termination of this subpart, Sec.  1208.73 shall apply to determine 
disposition of all such property.

Reports, Books, and Records


Sec.  1208.60  Reports.

    (a) Each first handler subject to this subpart may be required to 
provide to the Council periodically such information as may be required 
by the Council, with the approval of the Secretary, which may include 
but not be limited to the following:
    (1) Number of pounds handled;
    (2) Number of pounds on which an assessment was collected;
    (3) Name and address of person from whom the first handler has 
collected the assessments on each pound handled; and
    (4) Date collection was made on each pound handled. All reports are 
due to the Council 30 days after the end of the crop year.
    (b) Each importer subject to this subpart may be required to 
provide to the Council periodically such information as may be required 
by the Council, with the approval of the Secretary, which may include 
but not be limited to the following:
    (1) Number of pounds 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.


Sec.  1208.61  Books and records.

    Each first handler, producer, and importer subject to this subpart 
shall maintain and make available for inspection by the Secretary such 
books and records as are necessary to carry out the provisions of this 
subpart and the regulations issued thereunder, including such records 
as are necessary to verify any reports required. Such records shall be 
retained for at least two (2) years beyond the fiscal period of their 
applicability.


Sec.  1208.62  Confidential treatment.

    All information obtained from books, records, or reports under the 
Act, this subpart, and the regulations issued thereunder shall be kept 
confidential by all persons, including all employees and former 
employees of the Council, all officers and employees and former 
officers and employees of contracting and subcontracting agencies or 
agreeing parties having access to such information. Such information 
shall not be available to Council members, producers, importers, 
exporters, foreign producers, or first handlers. Only those persons 
having a specific need for such 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

[[Page 6150]]

statistical data collected therefrom, which statements do not identify 
the information furnished by any person; and
    (b) The publication, by direction of the Secretary, of the name of 
any person who has been adjudged to have violated this subpart, 
together with a statement of the particular provisions of this subpart 
violated by such person.

Miscellaneous


Sec.  1208.70  Right of the Secretary.

    All fiscal matters, programs, plans, or projects, rules or 
regulations, reports, or other substantive actions proposed or prepared 
by the Council shall be submitted to the Secretary for approval.


Sec.  1208.71  Referenda.

    (a) Initial referendum. The Order shall not become effective unless 
the Order is approved by a majority of producers and importers voting 
for approval in the initial referendum who, during a representative 
period determined by the Secretary, have been engaged in the production 
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 Sec.  1208.40 requests that the Secretary hold a 
referendum. In addition, the Secretary may hold a referendum at any 
time.


Sec.  1208.72  Suspension and termination.

    (a) The Secretary shall suspend or terminate this part or subpart 
or a provision thereof if the Secretary finds that the subpart or a 
provision thereof obstructs or does not tend to effectuate the purposes 
of the Act, or if the Secretary determines that this subpart or a 
provision thereof is not favored by persons voting in a referendum 
conducted pursuant to the Act.
    (b) The Secretary shall suspend or terminate this subpart at the 
end of the marketing year whenever the Secretary determines that its 
suspension or termination is approved or favored by a majority of 
producers and importers voting for approval who, during a 
representative period determined by the Secretary, have been engaged in 
the production or importation of processed raspberries.
    (c) If, as a result of a referendum the Secretary determines that 
this subpart is not approved, the Secretary shall:
    (1) Not later than one hundred and eighty (180) days after making 
the determination, suspend or terminate, as the case may be, collection 
of assessments under this subpart.
    (2) As soon as practical, suspend or terminate, as the case may be, 
activities under this subpart in an orderly manner.


Sec.  1208.73  Proceedings after termination.

    (a) Upon the termination of this subpart, the Council shall 
recommend not more than three of its members to the Secretary to serve 
as trustees for the purpose of liquidating the affairs of the Council. 
Such persons, upon designation by the Secretary, shall become trustees 
of all of the funds and property then in the possession or under 
control of the Council, including claims for any funds unpaid or 
property not delivered, or any other claim existing at the time of such 
termination.
    (b) The said trustees shall:
    (1) Continue in such capacity until discharged by the Secretary.
    (2) Carry out the obligations of the Council under any contracts or 
agreements entered into pursuant to the Order.
    (3) From time to time account for all receipts and disbursements 
and deliver all property on hand, together with all books and records 
of the Council and the trustees, to such person or persons as the 
Secretary may direct.
    (4) Upon request of the Secretary execute such assignments or other 
instruments necessary and appropriate to vest in such persons title and 
right to all funds, property and claims vested in the Council or the 
trustees pursuant to the Order.
    (c) Any person to whom funds, property or claims have been 
transferred or delivered pursuant to the Order shall be subject to the 
same obligations imposed upon the Council and upon the trustees.
    (d) Any residual funds not required to defray the necessary 
expenses of liquidation shall be turned over to the Secretary to be 
disposed of, to the extent practical, to one or more domestic raspberry 
industry organizations in the interest of continuing processed 
raspberry promotion, research, and information programs.


Sec.  1208.74  Effect of termination or amendment.

    Unless otherwise expressly provided by the Secretary, the 
termination of this subpart or of any regulation issued pursuant 
thereto, or the issuance of any amendment to either thereof, shall not:
    (a) Affect or waive any right, duty, obligation or liability which 
shall have arisen or which may thereafter arise in connection with any 
provision of this subpart or any regulation issued thereunder.
    (b) Release or extinguish any violation of this subpart or any 
regulation issued thereunder.
    (c) Affect or impair any rights or remedies of the United States, 
or of the Secretary or of any other persons, with respect to any such 
violation.


Sec.  1208.75  Personal liability.

    No member, alternate member, or employee of the Council shall be 
held personally responsible, either individually or jointly with 
others, in any way whatsoever, to any person for errors in judgment, 
mistakes, or other acts, either of commission or omission, as such 
member, alternate, or employee, except for acts of dishonesty or 
willful misconduct.


Sec.  1208.76  Separability.

    If any provision of this subpart is declared invalid or the 
applicability thereof to any person or circumstances is held invalid, 
the validity of the remainder of this subpart or the applicability 
thereof to other persons or circumstances shall not be affected 
thereby.


Sec.  1208.77  Amendments.

    Amendments to this subpart may be proposed from time to time by the 
Council or by any interested person affected by the provisions of the 
Act, including the Secretary.


Sec.  1208.78  OMB control numbers.

    The control number assigned to the information collection 
requirements by the Office of Management and Budget 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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