This section of the FEDERAL REGISTER

contains regulatory documents having general

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are keyed to and codified in the Code of

Federal Regulations, which is published under

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Rules and Regulations Federal Register

26911 

Vol. 77, No. 89 

Tuesday, May 8, 2012 

DEPARTMENT OF AGRICULTURE 

Agricultural Marketing Service 

7 CFR Part 1208 

[Doc. No. AMS–FV–07–0077; FV–07–705– 

FR] 

RIN 0581–AC79 

Processed Raspberry Promotion, 

Research, and Information Order 

AGENCY: Agricultural Marketing Service, 

USDA. 

ACTION: Final rule. 

SUMMARY: This rule establishes the 

Processed Raspberry Promotion, 

Research, and Information Order 

(Order). The program will be 

implemented under the Commodity 

Promotion, Research, and Information 

Act of 1996 (1996 Act). Under the 

Order, producers of raspberries for 

processing and importers of processed 

raspberries will pay an assessment of up 

to one cent per pound, with the initial 

assessment rate being one cent per 

pound, which shall be paid to the 

National Processed Raspberry Council 

(Council). Producers and importers of 

less than 20,000 pounds annually of 

raspberries for processing and processed 

raspberries, respectively, will be exempt 

from the assessment. The U.S. 

Department of Agriculture (Department) 

conducted a referendum between June 8 

and June 24, 2011 to ascertain whether 

the persons to be covered by and 

assessed under the Order favored the 

implementation of the program. In the 

referendum, 88 percent of those who 

voted favored implementation of the 

Order. Producers and importers of 

20,000 or more pounds of raspberries for 

processing or processed raspberries 

respectively, during the calendar year 

January 1 through December 31, 2010, 

were eligible to vote in the referendum. 

The program was proposed by the 

Washington Red Raspberry Commission 

(WRRC). 

DATES: Effective May 9, 2012 Collection 

of assessments (§§ 1208.50 through 

1208.53) and applicable reporting and 

recordkeeping (§§ 1208.60 through 

1208.62) will begin September 5, 2012. 

FOR FURTHER INFORMATION CONTACT: 

Kimberly Coy, Marketing Specialist, 

Research and Promotion Division, Fruit 

and Vegetable Programs, AMS, USDA, 

1400 Independence Avenue SW., Room 

1406, Stop 0244, Washington, DC 

20250–0244; telephone: (202) 720–9915 

or (888) 720–9917 (toll free); or 

facsimile: (202) 205–2800; or email: 

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. A second 

proposed rule was published in the 

Federal Register on February 8, 2010 

[75 FR 6131] addressing the comments. 

In addition, a separate final rule on 

referendum procedures was published 

in the Federal Register on February 8, 

2010 [75 FR 6089]. A notice delaying 

the referendum at the request of the 

industry was published in the Federal 

Register on March 19, 2010 [75 FR 

13238]. A third proposed rule 

announcing the referendum was 

published in the Federal Register on 

May 5, 2011 [76 FR 25618]. 

The Department conducted a 

referendum from June 8 through June 

24, 2011 to ascertain whether the 

persons to be covered by and assessed 

under the Order favored the 

implementation of the program prior to 

it going into effect. In the referendum, 

88 percent of those who voted favored 

implementation of the Order. Producers 

and importers of 20,000 or more pounds 

of raspberries for processing or 

processed raspberries respectively, 

during the calendar year January 1 

through December 31, 2010, were 

eligible to vote in the referendum. The 

referendum was conducted by mail 

ballot. 

Since publication of the proposed 

rule, published February 8, 2010, the 

industry worked with the 484(f) 

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 red raspberry 

juice and juice concentrate from all 

other juice and juice concentrate, red 

raspberry paste and purees from all 

other pastes and purees, and red 

raspberry preserves from all other fruit 

preserves. According to the Committee, 

this separation was feasible. 

Accordingly, the Committee approved 

the petition for processed red raspberry 

statistical breakout in the Harmonized 

Tariff Schedule. The new number 

assigned to red raspberry juice and juice 

concentrate is 2009.80.60.55, the new 

number assigned to processed red 

raspberry pastes and purees is 

2007.99.65.10, and the new number 

assigned to red raspberry preserves is 

2008.99.20.20, effective July 1, 2010. 

The aforementioned changes are 

reflected in this final rule. Assessment 

collected for imported red raspberry 

preserves will not begin until a 

conversion factor is developed. 

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 

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26912 Federal Register / Vol. 77, No. 89 / Tuesday, May 8, 2012 / Rules and Regulations 

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 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 

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. 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 

rule will not preempt any Statelegislated programs. Further, section 

1208.52(h) of the 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 program is not intended to 

duplicate any State program. 

Considerable attention has been made to 

involve producers in discussions 

regarding future program development 

and administration and what the State 

commissions will look like subsequent 

to the implementation of a national 

program. It is expected that farm related 

activities, such as production research, 

will continue to be funded by the State 

organizations and market development 

functions, such as nutritional research 

and marketing programs, will shift to 

the 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 

Order during these meetings and with 

direct communication with the 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 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 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 

shall be exempt under this Order. Five 

organic producers and importers are 

also expected to be exempt from 

assessments. The number of entities 

assessed under the program would be 

approximately 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 2010, 

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 2010, 

there were approximately 50 importers 

of processed raspberries. Based on the 

U.S. Department of Commerce, U.S. 

Census Bureau, Foreign Trade Statistics, 

in 2010 two countries accounted for 95 

percent of the processed raspberries 

imported into the United States. These 

countries and their share of the imports 

are: Chile (78 percent) and Canada (17 

percent). 

The 1996 Act authorizes generic 

programs of promotion, research, and 

information for agricultural 

commodities. Congress found that it is 

in the national public interest and vital 

to the welfare of the agricultural 

economy of the United States to 

maintain and expand existing markets 

and develop new markets and uses for 

agricultural commodities through 

industry-funded, governmentsupervised, generic commodity 

promotion programs. 

The WRRC submitted this 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 Order imposes certain 

recordkeeping requirements on first 

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handlers, this information may be 

compiled from records currently 

maintained. First handlers will collect 

and remit the assessments on domestic 

raspberries for processing to the 

Council. First handler responsibilities 

will 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 date’s 

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 will be minimal. 

There is also a minimal paperwork 

burden on producers. The Order 

requires producers to keep records and 

to provide information to the Council or 

the Department when requested. 

However, it is not anticipated that 

producers will 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 

will 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 

will be collected by U.S. Customs and 

Border Protection (Customs) at time of 

entry into the United States. Importers 

will 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 will 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 will be required to 

complete a background form which will 

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 will 

also be required to complete a 

background form which shall be 

submitted to the Secretary. 

The estimated annual cost of 

providing the information to the 

Council by an estimated 297 

respondents (195 producers, 50 

importers, 34 first handlers/processors, 

2 foreign producers, 5 organic producers 

and importers, 10 certified organizations 

(for nomination purposes), and 1 atlarge member) would be $9,141. 

Section 518 of the 1996 Act provides 

for referenda to ascertain approval of the 

Order to be conducted either prior to its 

going into effect or within three years 

after assessments first begin under the 

Order. An initial referendum was 

conducted prior to putting this Order in 

effect. Eighty-eight percent of producers 

and importers who voted favored 

implementation of the Order. 

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 Order. In addition, 

the Department may 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 

(FAS), in 2010, 148,010 million pounds 

of raspberries (fresh) with a combined 

value approaching $258 million (value 

of utilized production) were produced 

in California, Oregon, and Washington, 

the three most productive States for 

growing raspberries in the United 

States. In 2009, 173,700 million pounds 

were produced and utilized, at a value 

of almost $361 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 65 

million pounds in 2010 with most 

recent years averaging approximately 64 

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 37 percent between 2001 

and 2010. In comparison, imported 

processed raspberries surged from 7.5 to 

53.8 million pounds from 1991 to 2005 

and then decreased to 50.3 million 

pounds in 2010. Chile, which is the 

predominate importer of processed 

raspberries to the United States, 

supplied just over 24 percent of the total 

U.S. market in 2010. 

Domestic uses of processed 

raspberries include further processing 

into juices, jellies, baked goods, and 

consumer retailer packs. After averaging 

approximately 184 million pounds for 

the period 2008 to 2010, approximately 

194 million pounds of processed 

raspberries were imported into the 

United States and fresh raspberries 

within the United States were utilized 

for processing in 2010. These totals 

were calculated by using imports of 

frozen raspberries from FAS and NASS 

reports of production utilized for 

processing in Oregon, Washington, and 

California. 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 Serbia. Canada and Chile 

represented 95 percent share of total 

import tonnage in the domestic United 

States market for 2010, with 17 and 78 

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 Order authorizes a fixed 

assessment to be 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. Imported processed raspberries 

covered under the program will have a 

quantity associated with it in either 

kilograms or liters. One pound is equal 

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26914 Federal Register / Vol. 77, No. 89 / Tuesday, May 8, 2012 / Rules and Regulations 

to .45359237 kilograms. In addition, one 

pound is equal to .45359237 liters of 

water weight. For processed red 

raspberry juice and juice concentrate, 

the Department has decided to use this 

conversion factor for calculating the 

assessment because calculating the 

weight of one liter of raspberry juice and 

juice concentrate would be costly and 

impractical. Therefore, the assessment 

rate for imported processed raspberries 

will be $.022 per kilogram/liter. 

The factors for calculating the 

assessment on imported processed 

raspberries include the (1) HTS 

classification number, (2) conversion 

factor from pound to kilogram/liter, (3) 

assessment rate as established under the 

Order, and (4) the ratio requested by the 

WRRC for HTS classification numbers 

2009.80.60.55 and 2007.99.65.10 to HTS 

code 0811.20.20.25. 

Imported processed raspberries 

covered under the program will have a 

quantity associated with it in either 

kilograms or liters. Therefore, the 

Department converted the assessment 

rate from dollars per pound to dollars 

per kilogram. One cent per pound is 

equivalent to $.0045 per kilogram/liter. 

The Department then calculated the 

dollar per kilogram/liter assessment rate 

based on the ratios requested by the 

WRRC. For example $.022 per kilogram/ 

liter based on a 1:1 ratio will still be 

$.022 per kilogram/liter. However, $.022 

per kilogram/liter based on a 6.8:1 ratio, 

would be $.1496 per kilogram/liter. 

Examples of calculating the 

assessment on processed red raspberry 

juice and juice concentrate, processed 

red raspberries, and red raspberries 

paste and purees are as follows: 

Example I: Processed Red Raspberries in 

Kilograms With a 1:1 Ratio 

To calculate the assessment for 

processed raspberries products in HTS 

codes 2007.99.65.10, the following 

example illustrates a typical calculation. 

Weight (kilograms) .............. 10,000 kg 

Ratio (1:1) ............................. × 1 

Weight to Ratio Equivalent 10,000 

Assessment Rate (dollars 

per kilograms).

× $.0022 

Assessment .......................... = $220 

Example II: Processed Red Raspberries 

in Liters With a 6.8:1 Ratio 

To calculate the assessment for 

processed raspberries products in HTS 

code 2009.80.60.55, the following 

example illustrates a typical calculation. 

Weight (liters) ...................... 10,000 kg 

Ratio (6.8:1) .......................... × 6.8 

Weight to Ratio Equivalent 68,000 

.

Assessment Rate (dollars 

per liters).

× $.022 

Assessment .......................... = $1496 

The assessment rate will be reviewed, 

and increased or decreased as 

recommended by the Council and 

approved by the Secretary after the first 

referendum is conducted as stated in 

§ 1208.71(a). Such an increase or 

decrease may occur not more than once 

annually. Any change in the assessment 

rate shall be subject to rulemaking by 

the Department, and will be reviewed, 

and increased or decreased by the 

Secretary through rulemaking as 

recommended by the Council. Any 

change in the assessment rate shall be 

announced by the Council at least 30 

days prior to going into effect. The 

maximum assessment rate authorized is 

one cent per pound. 

At the assessment rate of up to one 

cent per pound, with the initial 

assessment rate being one cent per 

pound, the Council shall 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. 

The Order exempts 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 2010 from the 

research and promotion program based 

on a 20,000 pounds exemption 

threshold. Also, 100 percent organic 

producers and importers shall 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 Order provides for the 

establishment of the National Processed 

Raspberry Council (Council) to 

administer the Order under AMS 

oversight. The Secretary will appoint 

members to the Council from nominees 

submitted in accordance with the Order. 

The WRRC proposed that the Council be 

composed of 13 members and their 

alternates. The Council membership 

will be 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 shall 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 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 threeyear 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 will 

represent those entities in the United 

States. The United States is 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 

raspberry commission or committee will 

nominate producers and their alternates 

to serve; or (2) for those States that do 

not have a State raspberry commission 

or State marketing order, the Council 

will seek nominations from the State 

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Federal Register / Vol. 77, No. 89 / Tuesday, May 8, 2012 / Rules and Regulations 26915 

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 raspberry 

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. The State Departments 

of Agriculture will have the opportunity 

to participate in nomination caucuses 

and may directly submit as a group, a 

single slate of nominations to the 

Department for the six producer 

positions and producer alternate 

positions 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 raspberry commission or 

committee will nominate producers and 

their alternates to serve; or (2) for those 

States that do not have a State raspberry 

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 raspberry 

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. 

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 will 

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 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 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 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 Order, each such 

organization shall 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, 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. 

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 

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26916 Federal Register / Vol. 77, No. 89 / Tuesday, May 8, 2012 / Rules and Regulations 

be submitted to the Secretary for 

consideration. 

All qualified organizations 

representing foreign producers will 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 Order, each such 

organization shall be required to meet 

the following criteria: (1) Any 

organization representing foreign 

producers must represent a substantial 

number of foreign producers who 

market or produce a substantial volume 

of raspberries for processing; (2) it must 

have a history of stability and 

permanency and have been in existence 

for more than one year; (3) it must 

promote processed raspberry foreign 

producers’ welfare; (4) it must derive a 

portion of its operating funds from 

foreign producers; and (5) must be from 

a country exporting a minimum of three 

million pounds of raspberries for 

processing to the U.S. based on a threeyear average. 

If the Department determines that 

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. 

In recommending the at-large member 

and alternate, the Council may 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 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 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 Order. This information 

shall 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 Order shall be 

permitted, if the statements do not 

identify the information furnished by 

any person. Finally, the publication, by 

direction of the Department, of the name 

of any person violating the Order and a 

statement of the particular provisions of 

the Order violated by the person shall 

be allowed. 

Recordkeeping and reporting 

requirements for the raspberry 

promotion, research, and information 

program shall 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 

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. 

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 

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Federal Register / Vol. 77, No. 89 / Tuesday, May 8, 2012 / Rules and Regulations 26917 

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 will fund the promotional 

aspect necessary to stay competitive and 

shall 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. 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 program is not 

intended to duplicate any State 

program. Considerable attention has 

been 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, shall 

continue to be funded by the State 

organizations and market development 

functions, such as nutritional research 

and marketing programs, will shift to 

the 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 Order. An 

importer who imports only products 

eligible to be labeled as 100 percent 

organic under the NOP, and is not a 

split operation, shall 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 Order 

on small entities and the accuracy 

regarding the number and size of 

entities covered under the 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], the reporting and 

recordkeeping provisions generated by 

this rule have been preapproved by 

OMB, under OMB control number: 

0581–0258 

Title: National Processed Raspberry 

Promotion, Research, and Information 

Program. 

OMB Number: 0581–0258. 

Expiration Date of Approval: 

November 30, 2012. 

Type of Request: Approval of a 

preapproved collection. 

Abstract: The information collection 

requirements 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, was addressed in a separate 

final rule on referendum procedures 

which was published in the Federal 

Register on February 8, 2010 [75 FR 

6089]. 

Under the program, first handlers are 

required to collect assessments from 

producers and file reports with and 

submit assessments to the Council. 

While the Order imposes certain 

recordkeeping requirements on first 

handlers, information required under 

the Order may 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 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 Order, 

Customs will collect assessments on 

imported processed raspberries and 

remit the funds to the Council. 

An estimated 297 respondents will 

provide information to the Council. 

There will be approximately 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 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 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 

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 will be simple, easy to 

understand, and place as small a burden 

as possible on the person required to file 

the information. 

Collecting information yearly will 

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. 

The request for OMB approval of 

OMB No. 0581–0258 is as follows: 

(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 

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26918 Federal Register / Vol. 77, No. 89 / Tuesday, May 8, 2012 / Rules and Regulations 

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. 

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. 

As discussed previously, the new 

number assigned to red raspberry juice 

and juice concentrate is 2009.80.60.55, 

the new number assigned to processed 

red raspberry pastes and purees is 

2007.99.65.10, and the new number 

assigned to red raspberry preserves is 

2008.99.20.20, effective July 1, 2010. 

The aforementioned changes are 

reflected in this final rule. Assessment 

collected for imported red raspberry 

preserves will not begin until a 

conversion factor is developed. 

As a result of the aforementioned 

changes, the Department has made 

additional changes to the Order. Section 

1205.52 has been modified as follows: 

(1) Newly approved HTS codes have 

been added; (2) the factor for converting 

pounds to liters and pounds to 

kilograms has been added; (3) Table I. 

Processed Raspberry Products 

Assessment Table has been added to 

clearly identify the assessment rates for 

importers based on the conversion ratios 

requested by the WRRC; and (4) 

language has been added to ensure that 

assessments continue to be collected in 

the event that any HTS number 

identified in the Order is changed, 

replaced by another number, or added, 

and still falls within the definition of 

processed raspberries. 

The Order is summarized as follows: 

1208.1 through 1208.29 of the Order 

define certain terms, such as processed 

raspberries, first handler, and importer, 

which are used in the 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 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. 

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Federal Register / Vol. 77, No. 89 / Tuesday, May 8, 2012 / Rules and Regulations 26919 

The assessment rate is up to one cent 

per pound for domestic raspberries for 

processing and imported processed 

raspberries, with the initial assessment 

rate being one cent per pound. The 

assessment rate will be reviewed, and 

increased or decreased as recommended 

by the Council and approved by the 

Secretary after the first referendum is 

conducted as stated in § 1208.71(a). 

Such an increase or decrease may occur 

not more than once annually and may 

not exceed the initial assessment rate of 

one cent per pound. Any change in the 

assessment rate shall be subject to 

rulemaking by the Department, and will 

be reviewed, and increased or decreased 

by the Secretary through rulemaking as 

recommended by the Council. Any 

change in the assessment rate shall be 

announced by the Council at least 30 

days prior to going into effect. The 

maximum assessment rate authorized is 

one cent per pound. 

The assessment rate may be raised or 

lowered at a rate not to exceed one cent 

per pound, after the initial continuance 

referendum which would be conducted 

after the program has been in operation 

five years. A referendum to approve the 

new assessment rate or for any other 

change is not required. 

Sections 1208.60 through 1208.62 

concerns reporting and recordkeeping 

requirements for persons subject to the 

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 

Order when deemed appropriate; 

prescribe proceedings after termination; 

address personal liability, separability, 

and amendments; and provide OMB 

control numbers. 

As previously mentioned the 

Department conducted a referendum 

among domestic producers of 

raspberries for processing and processed 

raspberry importers from June 8 through 

June 24, 2011. The representative period 

for establishing voter eligibility was 

from January 1 through December 31, 

2010. Producers and importers of 20,000 

or more pounds of raspberries for 

processing or processed raspberries 

respectively during the representative 

period were eligible to vote in the 

referendum. Eighty-eight percent of 

those who voted in the referendum 

favored implementation of the Order. 

After consideration of all relevant 

material presented, including the initial 

proposal, comments received, and the 

referendum results, it is found that the 

Processed Raspberry Research, 

Promotion, and Information Order, 

authorized under the Commodity 

Promotion, Research, and Information 

Act of 1996, is consistent with and 

effectuates the declared policy and 

purpose of the 1996 Act. 

It is also found that good cause exists 

for not postponing the effective date of 

this action until 30 days after 

publication in the Federal Register (5 

U.S.C. 553) because implementation of 

the Order is needed as soon as possible 

to begin assessments under the program 

and to initiate the process of 

establishing the Council. 

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, Title 7, Chapter XI of the 

Code of Federal Regulations is 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 is added to part 1217 to 

read as follows: 

Subpart A—Processed Raspberry 

Promotion, Research, and Information 

Order 

Definitions 

Sec. 

1208.1 Act. 

1208.2 Conflict of interest. 

1208.3 Crop year. 

1208.4 Customs. 

1208.5 Department. 

1208.6 First handler. 

1208.7 Fiscal period. 

1208.8 Foreign producer. 

1208.9 Handle. 

1208.10 Importer. 

1208.11 Information. 

1208.12 Market or marketing. 

1208.13 National Processed Raspberry 

Council. 

1208.14 Order. 

1208.15 Part and subpart. 

1208.16 Person. 

1208.17 Processed raspberries. 

1208.18 Processor. 

1208.19 Producer. 

1208.20 Promotion. 

1208.21 Qualified national organization 

representing importer interests. 

1208.22 Qualified organization representing 

foreign producer interests. 

1208.23 Raspberries. 

1208.24 Research. 

1208.25 Secretary. 

1208.26 State. 

1208.27 Suspend. 

1208.28 Terminate. 

1208.29 United States. 

National Processed Raspberry Council 

1208.40 Establishment and membership. 

1208.41 Nominations and appointments. 

1208.42 Term of office. 

1208.43 Vacancies. 

1208.44 Alternate members. 

1208.45 Procedure. 

1208.46 Compensation and reimbursement. 

1208.47 Powers and duties. 

1208.48 Prohibited activities. 

Expenses and Assessments 

1208.50 Budget and expenses. 

1208.51 Financial statements. 

1208.52 Assessments. 

1208.53 Exemption and reimbursement 

procedures. 

1208.54 Programs, plans, and projects. 

1208.55 Independent evaluation. 

1208.56 Patents, copyrights, trademarks, 

information, publications, and product 

formulations. 

Reports, Books, and Records 

1208.60 Reports. 

1208.61 Books and records. 

1208.62 Confidential treatment. 

Miscellaneous 

1208.70 Right of the Secretary. 

1208.71 Referenda. 

1208.72 Suspension and termination. 

1208.73 Proceedings after termination. 

1208.74 Effect of termination or 

amendment. 

1208.75 Personal liability. 

1208.76 Separability. 

1208.77 Amendments. 

1208.78 OMB control numbers. 

Subpart A—Processed Raspberry 

Promotion, Research, and Information 

Order 

Definitions 

§ 1208.1 Act. 

Act means the Commodity Promotion, 

Research, and Information Act of 1996 

(7 U.S.C. 7411–7425), and any 

amendments thereto. 

§ 1208.2 Conflict of interest. 

Conflict of interest means a situation 

in which a member or employee of the 

Council has a direct or indirect financial 

interest in a person who performs a 

service for, or enters into a contract 

with, the Council for anything of 

economic value. 

§ 1208.3 Crop year. 

Crop year means the 12-month period 

from April 1 to March 31 or such other 

period approved by the Secretary. 

§ 1208.4 Customs. 

Customs means the United States 

Customs and Border Protection or U.S. 

Customs Service, an agency of the 

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United States Department of Homeland 

Security. 

§ 1208.5 Department. 

Department means the United States 

Department of Agriculture or any officer 

or employee of the Department to whom 

authority has heretofore been delegated, 

or to whom authority may hereafter be 

delegated, to act in the Secretary’s stead. 

§ 1208.6 First handler. 

First handler means any person 

(excluding a common or contract 

carrier) receiving raspberries for 

processing from producers in a calendar 

year and who as owner or agent, ships 

or causes processed raspberries or 

raspberries for processing to be shipped 

as specified in the Order. This 

definition includes those engaged in the 

business of buying, selling and/or 

offering for sale, receiving, packing, 

grading, marketing, or distributing 

processed raspberries or raspberries for 

processing in commercial quantities. 

This definition excludes a retailer, 

except a retailer who purchases or 

acquires from, or handles on behalf of, 

any producer of raspberries for 

processing. The term first handler 

includes a producer who handles or 

markets processed raspberries of the 

producer’s own production. 

§ 1208.7 Fiscal period. 

Fiscal period means a calendar year 

from April 1 through March 31, or such 

other period as approved by the 

Secretary. 

§ 1208.8 Foreign producer. 

Foreign producer means any person: 

(a) Who is engaged in the production 

and sale of raspberries for processing 

outside of the United States and who 

owns, or shares the ownership and risk 

of loss of raspberries for processing for 

sale in the U.S. market; or 

(b) Who is engaged, outside of the 

United States, in the business of 

producing, or causing to be produced, 

processed raspberries beyond the 

person’s own family use and having 

value at first point of sale. 

§ 1208.9 Handle. 

Handle means to pack, process, sell, 

transport, purchase, or in any other way 

to place or cause processed raspberries 

or raspberries for processing to which 

one has title or possession to be placed 

in the current of commerce. Such term 

shall not include the transportation or 

delivery of raspberries for processing by 

the producer thereof to a handler. 

§ 1208.10 Importer. 

Importer means any person importing 

20,000 pounds or more of processed 

raspberries into the United States in a 

calendar year as a principal or as an 

agent, broker, or consignee of any 

person who produces or handles 

processed raspberries outside of the 

United States for sale in the United 

States, and who is listed in the import 

records as the importer of record for 

such processed raspberries. 

§ 1208.11 Information. 

Information means information and 

programs that are designed to increase 

efficiency in processing and to develop 

new markets, marketing strategies, 

increase market efficiency, and 

activities that are designed to enhance 

the image of processed raspberries or 

raspberries for processing on a national 

basis. These include: 

(a) Consumer information, which 

means any action taken to provide 

information to, and broaden the 

understanding of, the general public 

regarding the consumption, use, 

nutritional attributes, and care of 

processed raspberries and raspberries 

for processing. 

(b) Food industry information, which 

means any action taken to provide 

information to, and broaden the 

understanding of, the food industry 

regarding the consumption, use, 

nutritional attributes, and care of 

processed raspberries and raspberries 

for processing. 

(c) Industry information, which 

means any action taken to provide 

information to or collect information 

from, and broaden the underestimating 

of, the raspberry industry regarding the 

production, consumption, use, 

nutritional attributes, and care of 

processed raspberries and raspberries 

for processing. 

§ 1208.12 Market or marketing. 

(a) Marketing means the sale or other 

disposition of processed raspberries in 

interstate, foreign or intrastate 

commerce. 

(b) To market means to sell or 

otherwise dispose of processed 

raspberries in any channel of commerce. 

§ 1208.13 National Processed Raspberry 

Council. 

National Processed Raspberry Council 

or such other name as recommended by 

the Council and approved by the 

Department means the administrative 

body established pursuant to § 1208.40. 

§ 1208.14 Order. 

Order means the Processed Raspberry 

Promotion, Research, and Information 

Order. 

§ 1208.15 Part and subpart. 

Part means the Processed Raspberry 

Promotion, Research, and Information 

Order and all rules, regulations, and 

supplemental orders issued pursuant to 

the Act and the Order. The Order shall 

be a subpart of such part. 

§ 1208.16 Person. 

Person means any individual, group 

of individuals, partnership, corporation, 

association, cooperative, or any other 

legal entity. 

§ 1208.17 Processed raspberries. 

Processed raspberries means 

raspberries which have been frozen, 

dried, pureed, made into juice, or 

delivered in any other form altered by 

mechanical processes other than fresh. 

§ 1208.18 Processor. 

Processor means a person engaged in 

the preparation of raspberries for 

processing for market who owns or who 

shares the ownership and risk of loss of 

such raspberries. 

§ 1208.19 Producer. 

Producer means any person who 

grows 20,000 pounds or more of 

raspberries for processing in the United 

States for sale in commerce, and a 

person who is engaged in the business 

of producing, or causing to be produced 

for any market, raspberries for 

processing beyond the person’s own 

family use and having value at first 

point of sale. 

§ 1208.20 Promotion. 

Promotion means any action taken to 

present a favorable image of processed 

raspberries to the general public and the 

food industry for the purpose of 

improving the competitive position of 

processed raspberries both in the United 

States and abroad and stimulating the 

sale of processed raspberries including 

paid advertising and public relations. 

§ 1208.21 Qualified national organization 

representing importer interests. 

Qualified national organization 

representing importer interests means 

an organization that the Secretary 

certifies as being eligible to nominate 

importer and alternate importer 

members to the Council. 

§ 1208.22 Qualified organization 

representing foreign producer interests. 

Qualified organization representing 

foreign producer interests means an 

organization that the Secretary certifies 

as being eligible to nominate foreign 

producer and alternate foreign producer 

members to the Council. 

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§ 1208.23 Raspberries. 

Raspberries mean and include all 

kinds, varieties, and hybrids of 

cultivated raspberries of the genus 

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

into the United States. 

§ 1208.24 Research. 

Research means any type of test, 

study, or analysis designed to advance 

the image, desirability, use, 

marketability, production, product 

development, or quality of processed 

raspberries or raspberries for processing, 

including but not limited to research 

relating to nutritional value, cost of 

production, new product development, 

health research, and marketing of 

processed raspberries or raspberries for 

processing. 

§ 1208.25 Secretary. 

Secretary means the Secretary of 

Agriculture of the United States, or any 

officer or employee of the Department to 

whom authority has been delegated, or 

to whom authority may be delegated, to 

act in the Secretary’s stead. 

§ 1208.26 State. 

State means any of the several 50 

States of the United States, the District 

of Columbia, the Commonwealth of 

Puerto Rico, and the territories and 

possessions of the United States. 

§ 1208.27 Suspend. 

Suspend means to issue a rule under 

section 553 of title 5 U.S.C., to 

temporarily prevent the operation of an 

order or part thereof during a particular 

period of time specified in the rule. 

§ 1208.28 Terminate. 

Terminate means to issue a rule under 

section 553 of title 5 U.S.C., to cancel 

permanently the operation of an order 

or part thereof beginning on a certain 

date specified in the rule. 

§ 1208.29 United States. 

United States means collectively the 

50 states, the District of Columbia, the 

Commonwealth of Puerto Rico, and the 

territories and possessions of the United 

States. 

National Processed Raspberry Council 

§ 1208.40 Establishment and membership. 

(a) Establishment of the National 

Processed Raspberry Council. There is 

hereby established a National Processed 

Raspberry Council, or such other name 

as recommended by the Council and 

approved by the Department, hereinafter 

called Council, composed of thirteen 

(13) members and thirteen (13) alternate 

members, appointed by the Secretary 

from nominations as follows: 

(1) Six (6) processed raspberry 

producer members and alternate 

members from States producing a 

minimum of three (3) million pounds of 

raspberries delivered for processing. 

Distribution of the seats among the 

eligible States shall be proportional to 

the percent determined by the average 

of the total pounds produced and 

delivered to processors for processing 

over the previous three years divided by 

the average total pounds by all of the 

eligible States for the previous three 

years. Only States whose producers 

deliver raspberries for processing and 

pay assessments are eligible for 

nomination and election to the Council. 

Average production will be based upon 

either State production figures or the 

Department data for the initial election, 

and production figures generated by 

either the Council or the Department 

thereafter; 

(2) One (1) processed raspberry 

producer member and alternate member 

representing all other States producing 

less than a 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 

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 interest of persons responsible 

for paying assessments, and others in 

the marketing chain, if appropriate. 

§ 1208.41 Nominations and appointments. 

(a) Voting for regional and State 

producer representatives will be made 

by mail ballot. 

(b) Nominations for the initial Council 

will be handled by the Department. 

Subsequent nominations will be 

handled by the Council. 

(c) The nominations for the six 

producer and alternate members from 

States producing a minimum three year 

average of three million pounds of 

raspberries delivered for processing will 

be submitted to the Council in the 

following manner: 

(1) For those States that have a State 

raspberry commission or State 

marketing order, the State raspberry 

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 

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 

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26922 Federal Register / Vol. 77, No. 89 / Tuesday, May 8, 2012 / Rules and Regulations 

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 raspberry commission or State 

marketing order, the Council will seek 

nominations from the State Departments 

of Agriculture for members and 

alternates from the specific States. The 

State Departments of Agriculture will 

have the opportunity to participate in 

nomination caucuses and may directly 

submit as a group, a single slate of 

nominations to the Department for the 

six producer positions and producer 

alternate positions 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 raspberry 

commission or committee will nominate 

producers and their alternates to serve. 

The State raspberry 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 raspberry 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 will 

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 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 

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 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 

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 

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market or produce a substantial volume 

of raspberries for processing; 

(2) The organization has a history of 

stability and permanency and has been 

in existence for more than one year; 

(3) The organization must promote 

processed raspberries importers’ 

welfare; and 

(4) The organization must derive a 

portion of its operating funds from 

importers. 

(l) Qualified organization representing 

foreign producer interests. To be 

certified by the Secretary as a qualified 

organization representing foreign 

producer interests, an organization must 

meet the following criteria, as evidenced 

by a report submitted by the 

organization to the Secretary: 

(1) The organization must represent a 

substantial number of foreign producers 

who produce a substantial volume of 

raspberries for processing; 

(2) The organization has a history of 

stability and permanency and has been 

in existence for more than one year; 

(3) The organization must promote 

processed raspberry foreign producers’ 

welfare; 

(4) The organization must derive a 

portion of its operating funds from 

foreign producers; and 

(5) The organization must be from a 

country exporting a minimum of three 

million pounds of raspberries for 

processing to the U.S. based on a threeyear average. 

(m) Eligible organizations, foreign 

producers, or importers must submit 

nominations to the Secretary not less 

than 90 days prior to the expiration of 

the term of office. At least two nominees 

for each position to be filled must be 

submitted. 

§ 1208.42 Term of office. 

Council members and alternates will 

serve for a term of three years and be 

able to serve a maximum of two 

consecutive terms. A Council member 

may serve as an alternate during the 

years the member is ineligible for a 

member position. When the Council is 

first established, four producer 

members, two importers, one of the two 

foreign producers, and the at-large 

member and their respective alternates 

will be assigned initial terms of three 

years. The remaining three producer 

members, one importer member, and the 

second foreign producer and their 

alternates will serve an initial term of 

two years. Members serving an initial 

term of two years will be eligible to 

serve a second term of three years. 

Thereafter, each of these positions will 

carry a full three-year term. Council 

nominations and appointments will take 

place in two out of every three years. 

Council members shall serve during the 

term of office for which they are 

appointed and have qualified, and until 

their successors are appointed and have 

qualified. Each term of office will end 

on December 31, with new terms of 

office beginning on January 1. 

§ 1208.43 Vacancies. 

(a) In the event that any member of 

the Council ceases to be a member of the 

category of membership from which the 

member was appointed to the Council, 

such position shall automatically 

become vacant. 

(b) If a member of the Council 

consistently refuses to perform the 

duties of a member of the Council, or if 

a member of the Council engages in acts 

of dishonesty or willful misconduct, the 

Council may recommend to the 

Secretary that the member be removed 

from office. If the Secretary finds the 

recommendation of the Council shows 

adequate cause, the Secretary may 

remove such member from office. 

(c) Should any member position 

become vacant, the alternate of that 

member shall automatically assume the 

position of said member. Should the 

positions of both a member and such 

member’s alternate become vacant, 

successors for the unexpired terms of 

such member and alternate shall be 

appointed in the manner specified in 

§ 1208.40 and § 1208.41, except that 

said nomination and replacement shall 

not be required if said unexpired terms 

are less than six months. 

§ 1208.44 Alternate members. 

An alternate member of the Council, 

during the absence of the member for 

whom the person is the alternate, shall 

act in the place and stead of such 

member and perform such duties as 

assigned. In the event of death, removal, 

resignation, or disqualification of any 

member, the alternate for that member 

shall automatically assume the position 

of said member. In the event that a 

producer, importer, foreign producer, or 

at-large member of the Council and their 

alternate are unable to attend a meeting, 

the Council may not designate any other 

alternate to serve in such member’s or 

alternate’s place and stead for such a 

meeting. 

§ 1208.45 Procedure. 

(a) At a Council meeting, it will be 

considered a quorum when a majority 

(one more than half) of the Council 

members is present. An alternate will be 

counted for the purpose of determining 

a quorum only if the member for whom 

the person is the alternate is absent or 

disqualified from participating. 

(b) At the start of each fiscal period, 

the Council will select a chairperson, 

vice chairperson, and other officers as 

appropriate, who will conduct meetings 

throughout that period. 

(c) The chairperson and the treasurer 

shall reside in the United States, and the 

Council office shall also be located in 

the United States. 

(d) All Council meetings shall be held 

in the United States. 

(e) All Council members and 

alternates will receive a minimum of 20 

days advance notice of all Council and 

committee meetings. 

(f) Each member of the Council will 

be entitled to one vote on any matter put 

to the Council, and the motion will 

carry if supported by one (1) vote more 

than 50 percent of the total votes 

represented by the Council members 

present. 

(g) It will be considered a quorum at 

a Council committee meeting when at 

least one more than half of those 

assigned to the Council committee are 

present. Alternates may also be assigned 

to Council committees as necessary. 

Council committees may consist of 

persons other than Council members 

and such persons may vote in Council 

committee meetings. 

(h) In lieu of voting at a properly 

convened meeting and, when in the 

opinion of the chairperson of the 

Council such action is considered 

necessary, the Council may take action 

if supported by one vote more than 50 

percent of the members present, by 

mail, telephone, electronic mail, 

facsimile, or any other means of 

communication, and all telephone votes 

shall be confirmed promptly in writing. 

In that event, all members must be 

notified and provided the opportunity 

to vote. Any action so taken shall have 

the same force and effect as though such 

action had been taken at a properly 

convened meeting of the Council. All 

votes shall be recorded in Council 

minutes. 

(i) There shall be no voting by proxy. 

(j) The chairperson shall be a voting 

member. 

(k) The organization of the Council 

and the procedures for the conducting 

of meetings of the Council shall be in 

accordance with its bylaws, which shall 

be established by the Council and 

approved by the Secretary. 

§ 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, 

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26924 Federal Register / Vol. 77, No. 89 / Tuesday, May 8, 2012 / Rules and Regulations 

incurred by them in the performance of 

their duties as Council members. 

§ 1208.47 Powers and duties. 

The Council shall have the following 

powers and duties: 

(a) To administer the Order in 

accordance with its terms and 

conditions and to collect assessments; 

(b) To develop and recommend to the 

Secretary for approval such bylaws as 

may be necessary for the functioning of 

the Council, and such rules as may be 

necessary to administer the Order, 

including activities authorized to be 

carried out under the Order; 

(c) To meet, organize, and select from 

among the members of the Council a 

chairperson, other officers, committees, 

and subcommittees, as the Council 

determines to be appropriate; 

(d) To employ persons, other than 

members, as the Council considers 

necessary to assist the Council in 

carrying out its duties and to determine 

the compensation and specify the duties 

of such persons; 

(e) To develop and carry our generic 

promotion, research, and information 

activities relating to processed 

raspberries; 

(f) To develop programs and projects, 

and enter into contracts or agreements, 

which must be approved by the 

Secretary before becoming effective, for 

the development and carrying out of 

programs or projects of research, 

information, or promotion, and the 

payment of costs thereof with funds 

collected pursuant to this subpart. Each 

contract or agreement shall provide that 

any person who enters into a contract or 

agreement with the Council shall 

develop and submit to the Council a 

proposed activity; keep accurate records 

of all of its transactions relating to the 

contract or agreement; account for funds 

received and expended in connection 

with the contract or agreement; make 

periodic reports to the Council of 

activities conducted under the contract 

or agreement; and make such other 

reports available as the Council or the 

Secretary considers necessary. Any 

contract or agreement shall provide that: 

(1) The contractor or agreeing party 

shall develop and submit to the Council 

a program, plan, or project together with 

a budget or budgets that shall show the 

estimated cost to be incurred for such 

program, plan, or project; 

(2) The contractor or agreeing party 

shall keep accurate records of all its 

transactions and make periodic reports 

to the Council of activities conducted, 

submit accounting for funds received 

and expended, and make such other 

reports as the Secretary or the Council 

may require; 

(3) The Secretary may audit the 

records of the contracting or agreeing 

party periodically; 

(4) Any subcontractor who enters into 

a contract with a Council contractor and 

who receives or otherwise uses funds 

allocated by the Council shall be subject 

to the same provisions as the contractor; 

(g) To prepare and submit for 

approval of the Secretary, before the 

beginning of each fiscal year, rates of 

assessment and a fiscal year budget of 

the anticipated expenses to be incurred 

in the administration of the Order, 

including the probable cost of each 

promotion, research, and information 

activity proposed to be developed or 

carried out by the Council in accordance 

with § 1208.50; 

(h) To borrow funds necessary for the 

startup expenses of the order; 

(i) To maintain such records and 

books and prepare and submit such 

reports and records from time to time to 

the Secretary as the Secretary may 

require and to make the records 

available to the Secretary for inspection 

and audit; to make appropriate 

accounting with respect to the receipt 

and disbursement of all funds entrusted 

to it; and to keep records that accurately 

reflect the actions and transactions of 

the Council; 

(j) To cause its books to be audited by 

a independent auditor at the end of each 

fiscal year and at such other times as the 

Secretary may request, and to submit a 

report of the audit directly to the 

Secretary; 

(k) To give the Secretary the same 

notice of meetings of the Council as is 

given to members in order that the 

Secretary’s representative(s) may attend 

such meetings, and to keep and report 

minutes of each meeting of the Council 

to the Secretary; 

(l) To act as intermediary between the 

Secretary and any producer, first 

handler, processor, importer, or foreign 

producer; 

(m) To furnish to the Secretary any 

information or records that the Secretary 

may request; 

(n) To receive, investigate, and report 

to the Secretary complaints of violations 

of the Order; 

(o) To recommend to the Secretary 

such amendments to the Order as the 

Council considers appropriate; 

(p) To work to achieve an effective, 

continuous, and coordinated program of 

promotion, research, consumer 

information, evaluation, and industry 

information designed to strengthen the 

processed raspberry industry’s position 

in the marketplace; maintain and 

expand existing markets and uses for 

processed raspberries; and to carry out 

programs, plans, and projects designed 

to provide maximum benefits to the 

processed raspberry industry; and 

(q) To pay the cost of the activities 

with assessments collected under 

§ 1208.52. 

§ 1208.48 Prohibited activities. 

The Council may not engage in, and 

shall prohibit the employees and agents 

of the Council from engaging in: 

(a) Any action that would be a conflict 

of interest; 

(b) Using funds collected by the 

Council under the Order to undertake 

any action for the purpose of 

influencing legislation or governmental 

action or policy, by local, state, national, 

and foreign governments, other than 

recommending to the Secretary 

amendments to the Order; and 

(c) Any advertising, including 

promotion, research, and information 

activities authorized to be carried out 

under the Order that may be false or 

misleading or disparaging to another 

agricultural commodity. 

Expenses and Assessments 

§ 1208.50 Budget and expenses. 

(a) At least 60 days prior to the 

beginning of each fiscal year, and as 

may be necessary thereafter, the Council 

shall prepare and submit to the 

Secretary a budget for the fiscal year 

covering its anticipated expenses and 

disbursements in administering this 

subpart. The budget for research, 

promotion, or information may not be 

implemented prior to approval of the 

budget by the Secretary. No later than 

forty-five (45) days after the receipt of 

such budget, the Secretary shall notify 

the Council whether the Secretary 

approves or disapproves the budget. 

Each budget shall include: 

(1) A statement of objectives and 

strategy for each program, plan, or 

project; 

(2) A summary of anticipated revenue, 

with comparative data of 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 

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 

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Federal Register / Vol. 77, No. 89 / Tuesday, May 8, 2012 / Rules and Regulations 26925 

increase in the Council’s approved 

budget, and which are consistent with 

by laws, need not have prior approval 

by the Department. 

(d) The Council is authorized to incur 

such expenses, including provision for 

a reasonable reserve, as the Secretary 

finds are reasonable and likely to be 

incurred by the Council for its 

maintenance and functioning, and to 

enable it to exercise its powers and 

perform its duties in accordance with 

the provisions of this subpart. Such 

expenses shall be paid from funds 

received by the Council. 

(e) With approval of the Secretary, the 

Council may borrow money for the 

payment of administrative expenses, 

subject to the same fiscal, budget, and 

audit controls as other funds of the 

Council. Any funds borrowed by the 

Council shall be expended for startup 

costs and capital outlays and are limited 

to the first year of operation of the 

Council. 

(f) The Council is authorized to repay 

startup costs associated with 

establishing a program and an initial 

referendum. If approved, these costs 

would be amortized and repaid over a 

maximum three (3) year period. 

(g) The Council may accept voluntary 

contributions, but these shall only be 

used to pay expenses incurred in the 

conduct of programs, plans, and projects 

approved by the Secretary. Such 

contributions shall be free from any 

encumbrance by the donor and the 

Council shall retain complete control of 

their use. 

(h) The Council may also receive 

funds provided through the 

Department’s Foreign Agricultural 

Service or from other sources, with the 

approval of the Secretary, for authorized 

activities. 

(i) The Council shall reimburse the 

Secretary for all expenses incurred by 

the Secretary in the implementation, 

administration, enforcement, and 

supervision of the Order, including all 

referendum costs in connection with the 

Order. 

(j) The Council may not expend for 

administration, maintenance, and 

functioning of the Council in any fiscal 

year an amount that exceeds 15 percent 

of the assessments and other income 

received by the Council for that fiscal 

year. Reimbursements to the Secretary 

required under paragraph (i) of this 

section are excluded from this 

limitation on spending. 

(k) The Council may establish an 

operating monetary reserve and may 

carry over to subsequent fiscal periods 

excess funds in any reserve so 

established: Provided that the funds in 

the reserve do not exceed one fiscal 

period’s budget. Subject to approval by 

the Secretary, such reserve funds may 

be used to defray any expenses 

authorized under this part. 

(l) Pending disbursement of 

assessments and all other revenue under 

a budget approved by the Secretary, the 

Council may invest assessments and all 

other revenues collected under this 

section in: 

(1) Obligations of the United States or 

any agency of the United States; 

(2) General obligations of any State or 

any political subdivision of a State; 

(3) Interest bearing accounts or 

certificates of deposit of financial 

institutions that are members of the 

Federal Reserve System; or 

(4) Obligations fully guaranteed as to 

principal interest by the United States. 

§ 1208.51 Financial statements. 

(a) As requested by the Secretary, the 

Council shall prepare and submit 

financial statements to the Secretary on 

a periodic basis. Each such financial 

statement shall include, but not be 

limited to, a balance sheet, income 

statement, and expense budget. The 

expense budget shall show expenditures 

during the time period covered by the 

report, year-to-date expenditures, and 

the unexpended budget. 

(b) Each financial statement shall be 

submitted to the Secretary within 30 

days after the end of the time period to 

which it applies. 

(c) The Council shall submit annually 

to the Secretary an annual financial 

statement within 90 days after the end 

of the fiscal year to which it applies. 

§ 1208.52 Assessments. 

(a) The funds to cover the Council’s 

expenses shall be paid from assessments 

on producers and importers at a rate not 

to exceed one cent per pound; the initial 

rate is one cent per pound, donations 

from any person not subject to 

assessments under this Order, and other 

funds available to the Council including 

those collected pursuant to § 1208.56 

and subject to the limitations contained 

therein. 

(b) The collection of assessments on 

domestic processed raspberries will be 

the responsibility of the first handler 

receiving the raspberries for processing. 

In the case of the producer acting as its 

own first handler, the producer will be 

required to collect and remit its 

individual assessments. The rate of 

assessments shall be prescribed in 

regulations issued by the Secretary. 

(c) The Council may recommend to 

the Secretary an increase or decrease to 

the assessment rate. Such an increase or 

decrease may occur not more than once 

annually. Any change in the assessment 

rate shall be subject to rulemaking by 

the Department. 

(d) Each importer of processed 

raspberries shall pay an assessment to 

the Council on processed raspberries 

imported for marketing in the United 

States, through Customs. If Customs 

does not collect an assessment from an 

importer, the importer would be 

responsible for paying the assessment 

directly to the Council. The assessment 

rate for imported processed raspberries 

shall not exceed one cent per pound, 

with the initial rate being one cent per 

pound. 

(1) The assessment rate for imported 

processed raspberries shall be the same 

or equivalent to the rate for processed 

raspberries produced in the United 

States. 

(2) The import assessment shall be 

uniformly applied to imported 

processed red raspberries that are 

identified by the numbers 0811.20.2025, 

2007.99.65.10, and 2009.80.60.55 in the 

Harmonized Tariff Schedule of the 

United States or any other numbers 

used to identify processed raspberries. 

Processed raspberries entering the 

United States under HTS code 

2007.99.65.10 will be initially assessed 

using a 1:1 ratio to HTS code 

0811.20.2025. Processed raspberries 

entering the United States under HTS 

code 2009.80.60.55 will be assessed 

using a 6.8:1 ratio to HTS code 

0811.20.2025. Assessments and 

conversion ratios on other types of 

processed raspberries may be added at 

the recommendation of the Council 

subject to the approval of the Secretary. 

(3) Each importer of processed 

raspberries shall pay through Customs 

to the Council an assessment on 

processed raspberries imported into the 

United States as described in section 

804(a) of Title VIII of the Tariff Act of 

1930, as amended (19 U.S.C. 1202– 

1683g), provided that it can be 

categorized in the HTS numbers listed 

in paragraph (d)(2) of this section. 

(4) Imported processed raspberries 

covered under the program will have a 

quantity associated with it in either 

kilograms or liters. The factor used to 

convert one pound to kilograms is 

.45359237. The factor used to convert 

one pound to liters is .45359237 liters 

of water weight. Therefore, the 

assessment rate for imported processed 

raspberries will be $.022 per kilogram/ 

liter. 

(5) Table I, Processed Raspberry 

Products Assessment Table, contains 

the applicable HTS classification 

numbers of processed red raspberries, 

processed red raspberry paste and 

puree, and processed red raspberry juice 

and juice concentrate, and assessment 

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rates in dollars per kilograms and 

dollars per liter. Accordingly, the 

assessment rate per kilogram/liter is as 

follows. 

TABLE I—PROCESSED RASPBERRY PRODUCTS ASSESSMENT TABLE

Frozen red raspberries, IQF, bulk frozen, puree, preserves, or 

juice concentrate 

HTS No. 

Unit of measure 

Default rate 

per unit of 

product 

(in dollars) 

0811.20.20.25 ............................................................................. kilogram ...................................................................................... .022 

2007.99.65.10 ............................................................................. kilogram ...................................................................................... .022 

2009.80.60.55 ............................................................................. liter .............................................................................................. .1496 

(6) In the event that any HTS 

classification number is changed, 

replaced by another number, or added, 

and still falls within the definition of 

processed raspberries as defined in 

§ 1208.17, assessments will be collected 

based on the HTS classification number. 

(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 31 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 

organizations engaged in similar generic 

research, promotion, and information 

programs as partial fulfillment of 

assessment due to the Council subject to 

approval of the Secretary, for 

expenditure on generic research, 

promotion and information programs 

conducted within the United States. 

(1) No credit will be given for funds 

expended for administrative purposes. 

(2) No credit shall be given for 

research, promotion, and information 

program activity conducted outside of 

the United States. 

(3) The aggregate credit allowable in 

any one year shall be limited to an 

amount determined by the Council 

subject to the approval of the secretary, 

and shall be equal to not more than the 

determined percentage rate of the total 

assessments paid by any individual in a 

year to any State, regional, or local 

program. 

(4) Credit shall only be given for 

generic research, promotion, and 

information program activities. 

(5) Credit of assessment may be 

obtained only by following the 

procedures prescribed in this section 

and any regulations recommended by 

the Council and prescribed by the 

Secretary. An individual owing 

assessments shall make a written 

request to the Council and the request 

shall contain the assessment paying 

individual’s signature and shall show: 

(i) The name and address of the 

assessment paying individual; 

(ii) The name and address of the 

person who collected the assessment; 

(iii) The quantity of processed 

raspberries on which a credit is 

requested; 

(iv) The total amount of credit 

requested; 

(v) The date or dates on which the 

assessments were paid; 

(vi) A certification that the assessment 

was not collected from another producer 

or documentation of assessments 

collected from local, State, or regional 

organizations; and 

(vii) The individual’s signature or 

properly witnessed mark. 

(6) The evidence of payment as 

required under § 1208.61, or a copy 

thereof, or such other evidence deemed 

necessary to the Council shall 

accompany the individual’s credit of 

assessment request. 

§ 1208.53 Exemption and reimbursement 

procedures. 

(a) Any producer who produces less 

than 20,000 pounds of raspberries for 

processing annually who desires to 

claim an exemption from assessments 

during a fiscal year as provided in 

§ 1208.52 shall apply to the Council, on 

a form provided by the Council, for a 

certificate of exemption. Such producer 

shall certify that the producer’s 

production of raspberries for processing 

shall be less than 20,000 pounds for the 

fiscal year for which the exemption is 

claimed. Any importer who imports less 

than 20,000 pounds of processed 

raspberries annually who desires to 

claim an exemption from assessments 

during a fiscal year as provided in 

§ 1208.52 shall apply to the Council, on 

a form provided by the Council, for a 

certificate of exemption. Such importer 

shall certify that the importer’s 

importation of processed raspberries 

shall not exceed 20,000 pounds, for the 

fiscal year for which the exemption is 

claimed. If a producer or importer 

determines at the end of the year that 

they did not meet the 20,000 pounds 

minimum, the producer or importer can 

request a reimbursement on the 

assessments paid to the Council by 60 

days of the last day of the year. If, after 

a person has been exempt from paying 

assessments for any year pursuant to 

this section, and the person no longer 

meets the requirements of paragraph of 

this section for an exemption, the 

person shall file a report with the 

Council in the form and manner 

prescribed by the Council and pay an 

assessment on or before March 15 of the 

subsequent year on all raspberries for 

processing produced or processed 

raspberries imported by such persons 

during the year for which the person 

claimed the exemption. 

(b) On receipt of an application, the 

Council shall determine whether an 

exemption may be granted. The Council 

will then issue, if deemed appropriate, 

a certificate of exemption to the 

producer or importer which is eligible 

to receive one. Each producer who is 

exempt from assessment must provide 

an exemption number as supplied by 

the Council to the first handler in order 

to be exempt from the collection of an 

assessment on raspberries for 

processing. First handlers shall 

maintain records showing the 

exemptee’s name and address along 

with the exemption number assigned by 

the Council. 

(c) Importers who are eligible for 

reimbursement of assessments collected 

by Customs shall apply to the Council 

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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- 

digit alphanumeric Harmonized Tariff 

Schedule (HTS) classification valid for 1 

year from the date of issue. This HTS 

classification should be entered by the 

importer on the Customs entry 

documentation. Any line item entry of 

100 percent organic processed 

raspberries bearing this HTS 

classification assigned by the Council 

will not be subject to assessments. 

(e) Any person who desires an 

exemption from assessments for a 

subsequent fiscal year shall reapply to 

the Council, on a form provided by the 

Council, for a certificate of exemption. 

(f) The Council, with the Secretary’s 

approval, may request that persons 

claiming an exemption from 

assessments under § 1208.53 must 

provide it with any information it 

deems necessary about the exemption, 

including, without limitation, the 

disposition of the exempted commodity. 

(g) The exemption will apply 

immediately following the issuance of 

the certificate of exemption. 

§ 1208.54 Programs, plans, and projects. 

(a) The Council shall receive and 

evaluate, or on its own initiative, 

develop and submit to the Secretary for 

approval any program, plan, or project 

authorized under this subpart. Such a 

program, plan, or project shall provide 

for: 

(1) The establishment, issuance, 

effectuation, and administration of 

appropriate programs for promotion, 

research, and information, including 

producer and consumer industry 

information, with respect to processed 

raspberries; and 

(2) The establishment and conduct of 

research with respect to the use, 

nutritional value, production, health, 

sale, distribution, and marketing of 

processed raspberries, and the creation 

of new products or product 

development, thereof, to the end that 

the marketing and use of processed 

raspberries may be encouraged, 

expanded, improved, or made more 

acceptable and to advance the image, 

desirability, or quality of processed 

raspberries. 

(b) A program, plan, or project may 

not be implemented prior to approval of 

the program, plan, or project by the 

Secretary. No later than forty-five (45) 

days after the receipt of such program, 

plan, or project, the Secretary shall 

notify the Council whether the Secretary 

approves or disapproves the program, 

plan, or project. Once a program, plan, 

or project is so approved, the Council 

shall take appropriate steps to 

implement it. 

(c) Each program, plan, or project 

implemented under this subpart shall be 

reviewed or evaluated periodically by 

the Council to ensure that it contributes 

to an effective program of promotion, 

research, or information. If it is found by 

the Council that any such program, 

plan, or project does not contribute to 

an effective program of promotion, 

research, or information, then the 

Council shall terminate such program, 

plan, or project. 

(d) No program, plan, or project 

including advertising shall be false or 

misleading, or disparage another 

agricultural commodity. Processed 

raspberries of all origins shall be treated 

equally. 

§ 1208.55 Independent evaluation. 

The Council shall, not less often than 

once every five years, authorize and 

fund, from funds otherwise available to 

the Council, an independent evaluation 

of the effectiveness of the Order and 

programs conducted by the Council 

pursuant to the Act. The Council shall 

submit to the Secretary, and make 

available to the public, the results of 

each periodic independent evaluation 

conducted under this paragraph. 

§ 1208.56 Patents, copyrights, trademarks, 

information, publications, and product 

formulations. 

Patents, copyrights, trademarks, 

information, publications, and product 

formulations developed through the use 

of funds received by the Council under 

this subpart shall be the property of the 

U.S. Government as represented by the 

Council and shall, along with any rents, 

royalties, residual payments, or other 

income from the rental, sales, leasing, 

franchising, or other uses of such 

patents, copyrights, trademarks, 

information, publications, or product 

formulations, inure to the benefit of the 

Council, shall be considered income 

subject to the same fiscal, budget, and 

audit controls as other funds of the 

Council, and may be licensed subject to 

approval by the Secretary. Upon 

termination of this subpart, § 1208.73 

shall apply to determine disposition of 

all such property. 

Reports, Books, and Records 

§ 1208.60 Reports. 

(a) Each first handler subject to this 

subpart may be required to provide to 

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26928 Federal Register / Vol. 77, No. 89 / Tuesday, May 8, 2012 / Rules and Regulations 

the Council periodically such 

information as may be required by the 

Council, with the approval of the 

Secretary, which may include but not be 

limited to the following: 

(1) Number of pounds handled; 

(2) Number of pounds on which an 

assessment was collected; 

(3) Name and address of person from 

whom the first handler has collected the 

assessments on each pound handled; 

and 

(4) Date collection was made on each 

pound handled. All reports are due to 

the Council 30 days after the end of the 

crop year. 

(b) Each importer subject to this 

subpart may be required to provide to 

the Council periodically such 

information as may be required by the 

Council, with the approval of the 

Secretary, which may include but not be 

limited to the following: 

(1) Number of pounds processed 

raspberries imported; 

(2) Number of pounds which an 

assessment was paid; 

(3) Name and address of the importer; 

(4) Date collection was made on each 

pound processed raspberries imported. 

All reports are due to the Council 30 

days after the end of the crop year. 

§ 1208.61 Books and records. 

Each first handler, producer, and 

importer subject to this subpart shall 

maintain and make available for 

inspection by the Secretary such books 

and records as are necessary to carry out 

the provisions of this subpart and the 

regulations issued thereunder, including 

such records as are necessary to verify 

any reports required. Such records shall 

be retained for at least two (2) years 

beyond the fiscal period of their 

applicability. 

§ 1208.62 Confidential treatment. 

All information obtained from books, 

records, or reports under the Act, this 

subpart, and the regulations issued 

thereunder shall be kept confidential by 

all persons, including all employees and 

former employees of the Council, all 

officers and employees and former 

officers and employees of contracting 

and subcontracting agencies or agreeing 

parties having access to such 

information. Such information shall not 

be available to Council members, 

producers, importers, exporters, foreign 

producers, or first handlers. Only those 

persons having a specific need for such 

information to effectively administer the 

provisions of this subpart shall have 

access to such information. Only such 

information so obtained as the Secretary 

deems relevant shall be disclosed by 

them, and then only in a judicial 

proceeding or administrative hearing 

brought at the direction, or on the 

request, of the Secretary, or to which the 

Secretary or any officer of the United 

States is a party, and involving this 

subpart. Nothing in this section shall be 

deemed to prohibit: 

(a) The issuance of general statements 

based upon the reports of the number of 

persons subject to this subpart or 

statistical data collected therefrom, 

which statements do not identify the 

information furnished by any person; 

and 

(b) The publication, by direction of 

the Secretary, of the name of any person 

who has been adjudged to have violated 

this subpart, together with a statement 

of the particular provisions of this 

subpart violated by such person. 

Miscellaneous 

§ 1208.70 Right of the Secretary. 

All fiscal matters, programs, plans, or 

projects, rules or regulations, reports, or 

other substantive actions proposed or 

prepared by the Council shall be 

submitted to the Secretary for approval. 

§ 1208.71 Referenda. 

(a) Initial referendum. The Order shall 

not become effective unless the Order is 

approved by a majority of producers and 

importers voting for approval in the 

initial referendum who, during a 

representative period determined by the 

Secretary, have been engaged in the 

production of raspberries for processing 

or the importation of processed 

raspberries. 

(b) Subsequent referenda. Every seven 

years, the Secretary shall hold a 

referendum to determine whether 

producers of raspberry delivered for 

processing and importers of processed 

raspberries favor the continuation of the 

Order. The Order shall continue if it is 

favored by a majority of producers and 

importers voting for approval in the 

referendum who, during a 

representative period determined by the 

Secretary, have been engaged in the 

production or importation of processed 

raspberries. The Secretary will also 

conduct a subsequent referendum if 10 

percent or more of all eligible producers 

of raspberries for processing and 

importers of processed raspberries 

request the Secretary to hold a 

referendum or if the Council established 

under § 1208.40 requests that the 

Secretary hold a referendum. In 

addition, the Secretary may hold a 

referendum at any time. 

§ 1208.72 Suspension and termination. 

(a) The Secretary shall suspend or 

terminate this part or subpart or a 

provision thereof if the Secretary finds 

that the subpart or a provision thereof 

obstructs or does not tend to effectuate 

the purposes of the Act, or if the 

Secretary determines that this subpart or 

a provision thereof is not favored by 

persons voting in a referendum 

conducted pursuant to the Act. 

(b) The Secretary shall suspend or 

terminate this subpart at the end of the 

marketing year whenever the Secretary 

determines that its suspension or 

termination is approved or favored by a 

majority of producers and importers 

voting for approval who, during a 

representative period determined by the 

Secretary, have been engaged in the 

production or importation of processed 

raspberries. 

(c) If, as a result of a referendum the 

Secretary determines that this subpart is 

not approved, the Secretary shall: 

(1) Not later than one hundred and 

eighty (180) days after making the 

determination, suspend or terminate, as 

the case may be, collection of 

assessments under this subpart. 

(2) As soon as practical, suspend or 

terminate, as the case may be, activities 

under this subpart in an orderly 

manner. 

§ 1208.73 Proceedings after termination. 

(a) Upon the termination of this 

subpart, the Council shall recommend 

not more than three of its members to 

the Secretary to serve as trustees for the 

purpose of liquidating the affairs of the 

Council. Such persons, upon 

designation by the Secretary, shall 

become trustees of all of the funds and 

property then in the possession or under 

control of the Council, including claims 

for any funds unpaid or property not 

delivered, or any other claim existing at 

the time of such termination. 

(b) The said trustees shall: 

(1) Continue in such capacity until 

discharged by the Secretary. 

(2) Carry out the obligations of the 

Council under any contracts or 

agreements entered into pursuant to the 

Order. 

(3) From time to time account for all 

receipts and disbursements and deliver 

all property on hand, together with all 

books and records of the Council and 

the trustees, to such person or persons 

as the Secretary may direct. 

(4) Upon request of the Secretary 

execute such assignments or other 

instruments necessary and appropriate 

to vest in such persons title and right to 

all funds, property and claims vested in 

the Council or the trustees pursuant to 

the Order. 

(c) Any person to whom funds, 

property or claims have been transferred 

or delivered pursuant to the Order shall 

be subject to the same obligations 

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Federal Register / Vol. 77, No. 89 / Tuesday, May 8, 2012 / Rules and Regulations 26929 

imposed upon the Council and upon the 

trustees. 

(d) Any residual funds not required to 

defray the necessary expenses of 

liquidation shall be turned over to the 

Secretary to be disposed of, to the extent 

practical, to one or more domestic 

raspberry industry organizations in the 

interest of continuing processed 

raspberry promotion, research, and 

information programs. 

§ 1208.74 Effect of termination or 

amendment. 

Unless otherwise expressly provided 

by the Secretary, the termination of this 

subpart or of any regulation issued 

pursuant thereto, or the issuance of any 

amendment to either thereof, shall not: 

(a) Affect or waive any right, duty, 

obligation or liability which shall have 

arisen or which may thereafter arise in 

connection with any provision of this 

subpart or any regulation issued 

thereunder. 

(b) Release or extinguish any violation 

of this subpart or any regulation issued 

thereunder. 

(c) Affect or impair any rights or 

remedies of the United States, or of the 

Secretary or of any other persons, with 

respect to any such violation. 

§ 1208.75 Personal liability. 

No member, alternate member, or 

employee of the Council shall be held 

personally responsible, either 

individually or jointly with others, in 

any way whatsoever, to any person for 

errors in judgment, mistakes, or other 

acts, either of commission or omission, 

as such member, alternate, or employee, 

except for acts of dishonesty or willful 

misconduct. 

§ 1208.76 Separability. 

If any provision of this subpart is 

declared invalid or the applicability 

thereof to any person or circumstances 

is held invalid, the validity of the 

remainder of this subpart or the 

applicability thereof to other persons or 

circumstances shall not be affected 

thereby. 

§ 1208.77 Amendments. 

Amendments to this subpart may be 

proposed from time to time by the 

Council or by any interested person 

affected by the provisions of the Act, 

including the Secretary. 

§ 1208.78 OMB control numbers. 

The control number assigned to the 

information collection requirements by 

the Office of Management and Budget 

pursuant to the Paperwork Reduction 

Act of 1995, 44 U.S.C. Chapter 35, is 

OMB control number 0505–0001, OMB 

control number 0581–0093, and OMB 

control number 0581–0257. 

Dated: May 3, 2012. 

David R. Shipman, 

Administrator. 

[FR Doc. 2012–11060 Filed 5–7–12; 8:45 am] 

BILLING CODE 3410–02–P 

DEPARTMENT OF AGRICULTURE 

Food Safety and Inspection Service 

9 CFR Parts 304, 381, 417 and 418 

[FDMS Docket No. FSIS–2008–0025] 

RIN 0583–AD34 

Requirements for Official 

Establishments To Notify FSIS of 

Adulterated or Misbranded Product, 

Prepare and Maintain Written Recall 

Procedures, and Document Certain 

Hazard Analysis and Critical Control 

Points System Plan Reassessments 

AGENCY: Food Safety and Inspection 

Service, USDA. 

ACTION: Final rule. 

SUMMARY: The Food Safety and 

Inspection Service (FSIS) is 

implementing provisions of the Food, 

Conservation, and Energy Act of 2008 

by amending the Federal meat and 

poultry products inspection regulations 

to require official establishments to 

promptly notify the appropriate District 

Office that an adulterated or misbranded 

meat or poultry product has entered 

commerce; require official 

establishments to prepare and maintain 

written procedures for the recall of all 

meat and poultry products produced 

and shipped by the establishment; and 

require official establishments to 

document each reassessment of the 

establishment’s Hazard Analysis and 

Critical Control Point (HACCP) plans. 

DATES: Effective Date: May 8, 2012. 

Applicability Dates: Amendments to 

§§ 304.3, 381.22, 417.4, 418.2, and 418.4 

are applicable beginning June 7, 2012. 

For more information on applicability 

dates, see the section titled ‘‘Section 

418.3 Effective Dates’’ in the 

SUPPLEMENTARY INFORMATION section. 

FOR FURTHER INFORMATION CONTACT: Dr. 

Daniel Engeljohn, Assistant 

Administrator, Office of Policy and 

Program Development, Food Safety and 

Inspection Service, Room 349–E, Jamie 

L. Whitten Building, 1400 

Independence Avenue SW., 

Washington, DC 20250; Telephone (202) 

205–0495, Fax (202) 720–2025. 

SUPPLEMENTARY INFORMATION: 

I. Section 418.3 Effective Dates 

The regulations in § 418.3 are 

applicable as follows: 

• In large establishments, defined as 

all establishments with 500 or more 

employees, November 5, 2012. 

• In small establishments, defined as 

all establishments with 10 or more 

employees but fewer than 500, May 8, 

2013. 

• In very small establishments, 

defined as all establishments with fewer 

than 10 employees or annual sales of 

less than $2.5 million, May 8, 2013. 

II. Background 

The Food Safety and Inspection 

Service (FSIS) administers a regulatory 

program under the Federal Meat 

Inspection Act (FMIA) (21 U.S.C. 601 et 

seq.) and the Poultry Products 

Inspection Act (PPIA) (21 U.S.C. 451 et 

seq.) to protect the health and welfare of 

consumers. The Agency is responsible 

for ensuring that the nation’s 

commercial supply of meat and poultry 

is safe, wholesome, and correctly 

labeled and packaged. 

On June 18, 2008, section 11017 of the 

Food, Conservation, and Energy Act of 

2008, Public Law 110–246, 122 Stat 

1651, 448–49, otherwise known as the 

2008 Farm Bill, amended the FMIA and 

the PPIA to require establishments 

subject to inspection under these Acts 

that believe or have reason to believe 

that an adulterated or misbranded meat 

or poultry product received by or 

originating from the establishment has 

entered into commerce to promptly 

notify the Secretary with regard to the 

type, amount, origin, and destination of 

the meat or poultry product. The 2008 

Farm Bill also requires that inspected 

establishments: (1) Prepare and 

maintain written procedures for the 

recall of all products produced and 

shipped by the establishment; (2) 

document each reassessment of the 

process control plans of the 

establishment (i.e., HACCP plans); and 

(3) upon request, make the procedures 

and reassessed control plans available 

for inspectors appointed by the 

Secretary to review and copy. 

In the Federal Register of March 25, 

2010 (75 FR 14361), FSIS proposed 

regulations to implement the new 

provisions of the 2008 Farm Bill. FSIS 

proposed to amend 9 CFR 417.4(a)(3) to 

require official establishments to make a 

written record of each reassessment of 

the adequacy of their HACCP plan, or to 

document the reasons for not making a 

change to their HACCP plan based on 

the reassessment. For annual 

reassessments, if an establishment 

determines that no changes to its 

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