16266 Federal Register / Vol. 74, No. 67 / Thursday, April 9, 2009 / Proposed Rules 

DEPARTMENT OF AGRICULTURE 

Agricultural Marketing Service 

7 CFR Part 1208 

[Doc. No. AMS–FV–07–0077; FV–07–705– 

PR–1A] 

RIN 0581–AC37 

Proposed Processed Raspberry 

Promotion, Research, and Information 

Order 

AGENCY: Agricultural Marketing Service, 

USDA. 

ACTION: Proposed rule with request for 

comments. 

SUMMARY: This rule proposes the 

establishment of an industry-funded 

promotion, research, and information 

program for processed raspberries. The 

proposed program, Processed Raspberry 

Promotion, Research, and Information 

Order (Proposed Order), was submitted 

to the Department of Agriculture 

(Department) by the Washington Red 

Raspberry Commission (WRRC). Under 

the Proposed Order, producers of 

raspberries for processing and importers 

of processed raspberries would pay an 

assessment of up to one cent per pound, 

with the initial assessment rate being 

one cent per pound, which would be 

paid to the proposed National Processed 

Raspberry Council (Council). Producers 

and importers of less than 20,000 

pounds annually of raspberries for 

processing and processed raspberries 

respectively would be exempt from the 

assessment. The proposed program 

would be implemented under the 

Commodity Promotion, Research, and 

Information Act of 1996 (1996 Act). An 

initial referendum would be conducted 

among eligible producers of raspberries 

for processing and importers of 

processed raspberries to determine 

whether they favor the implementation 

of the program prior to it going into 

effect. This rule also announces the 

Agricultural Marketing Service’s (AMS) 

intention to request approval of new 

processed raspberries information 

collection requirements by the Office of 

Management and Budget (OMB) for the 

Proposed Order. 

DATES: Comments must be received by 

June 8, 2009. Pursuant to the Paperwork 

Reduction Act (PRA), comments on the 

information collection burden that 

would result from this proposal must be 

received by June 8, 2009. 

ADDRESSES: Interested persons are 

invited to submit written comments on 

the Internet at http:// 

www.regulations.gov or to the Research 

and Promotion Branch, Fruit and 

Vegetable Programs, AMS, USDA, 1400 

Independence Avenue, SW., Stop 0244, 

Room 0632–S, Washington, DC 20250– 

0244; fax: (202) 205–2800. All 

comments should reference the docket 

number and the date and page number 

of this issue of the Federal Register and 

will be made available for public 

inspection in the above office during 

regular business hours or can be viewed 

at http://www.regulations.gov. 

Pursuant to PRA, comments regarding 

the accuracy of the burden estimate, 

ways to minimize the burden, including 

the use of automated collection 

techniques or other forms of information 

technology, or any other aspect of this 

collection of information, should be sent 

to the above address. In addition, 

comments concerning the information 

collection should also be sent to the 

Desk Office for Agriculture, Office of 

Information and Regulatory Affairs, 

Office of Management and Budget, New 

Executive Office Building, 725 17th 

Street, NW., Room 725, Washington, DC 

20503. 

FOR FURTHER INFORMATION CONTACT: 

Kimberly Coy, Marketing Specialist, 

Research and Promotion Branch, Fruit 

and Vegetable Programs, AMS, USDA, 

1400 Independence Avenue, SW., Room 

0632, Stop 0244, Washington, DC 

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

or (888) 720–9917 (toll free); or 

facsimile: (202) 205–2800; or e-mail: 

Kimberly.Coy@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). 

Executive Order 12866 

This rule has been determined 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. This rule will not 

preempt any state or local laws, 

regulations, or policies, unless they 

represent an irreconcilable conflict with 

this rule. Section 524 of the 1996 Act 

provides that it shall not affect or 

preempt any other Federal or state law 

authorizing promotion or research 

relating to an agricultural commodity. 

Under section 519 of the 1996 Act, a 

person subject to an order may file a 

written petition with the Department 

stating that an order, any provision of an 

order, or any obligation imposed in 

connection with an order, is not 

established in accordance with the law, 

and requesting a modification of an 

order or an exemption from an order. 

Any petition filed challenging an order, 

any provision of an order, or any 

obligation imposed in connection with 

an order, shall be filed within two years 

after the effective date of an order, 

provision, or obligation subject to 

challenge in the petition. The petitioner 

will have the opportunity for a hearing 

on the petition. Thereafter, the 

Department will issue a ruling on the 

petition. The 1996 Act provides that the 

district court of the United States for 

any district in which the petitioner 

resides or conducts business shall have 

the jurisdiction to review a final ruling 

on the petition, if the petitioner files a 

complaint for that purpose not later 

than 20 days after the date of the entry 

of the Department’s final ruling. 

Executive Order 13132 

This proposed rule has been reviewed 

under Executive Order 13132, 

Federalism. This Executive Order 

directs agencies to construe, in 

regulations and otherwise, a Federal 

Statute to preempt State law only when 

the statute contains an express 

preemption provision. Section 524 of 

the 1996 Act provides that the Act shall 

not affect or preempt any other Federal 

or State law authorizing promotion or 

research relating to an agricultural 

commodity. 

The WRRC and the Oregon Raspberry 

and Blackberry Commission (ORBC), the 

principal producers of processed 

raspberries, both administer State 

marketing orders, which require all 

producers of raspberries to pay 

assessments to support the health of 

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, according to the WRRC, 

WRRC, ORBC and international 

raspberry organizations have not been 

able to generate the funds necessary 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 


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Federal Register / Vol. 74, No. 67 / Thursday, April 9, 2009 / Proposed Rules 16267 

national research and promotion 

program would fund the promotional 

aspect necessary to stay competitive and 

would place all domestic producers and 

importers on an equal playing field with 

each investing a fair share in promoting 

processed raspberries. If a national 

processed raspberry program is 

established, the WRRC and ORBC will 

continue to fund processed raspberry 

research in areas not likely to be the 

focus of the national program. 

In accordance with the 1996 Act, this 

proposed rule would not preempt any of 

these State-legislated programs. Further, 

section 1208.52(h) of the Proposed 

Order provides for credit of assessments 

for those individuals who contribute to 

local, regional, or State organizations 

that engage in similar generic research, 

promotion, and information programs as 

partial fulfillment of assessments due to 

the Council subject to approval of the 

Secretary, for expenditure on generic 

research, promotion and information 

programs conducted within the United 

States. 

The proposed program is not intended 

to duplicate any State program. 

Considerable attention is being made to 

involve producers in discussions 

regarding future program development 

and administration and what the State 

commissions would look like prior to 

the initial referendum. It is expected 

that farm related activities, such as 

production research, would continue to 

be funded by the State organizations 

and market development functions, 

such as nutritional research and 

marketing programs, would shift to the 

Proposed Order. 

Not only were the States informed 

throughout the development of the 

national program, they were 

instrumental in the processed raspberry 

industry’s decision to institute a 

national program. 

In 2007, representatives from the 

WRRC were among other raspberry 

industry representatives who met with 

AMS representatives to discuss the 

possibility of implementing a national 

processed raspberry promotion, 

research, and information program. 

WRRC representatives participated in 

the development of the provisions of the 

Proposed Order during these meetings 

and with direct communication with the 

Oregon Raspberry and Blackberry 

Commission (ORBC). 

Initial Regulatory Flexibility Act 

Analysis 

In accordance with the Regulatory 

Flexibility Act (RFA) [5 U.S.C. 601– 

612], AMS is required to examine the 

impact of the proposed rule on small 

entities. The purpose of the RFA is to 

fit regulatory actions to the scale of 

businesses subject to such actions so 

that small businesses will not be 

disproportionately burdened. 

The Small Business Administration 

defines, in 13 CFR Part 121, small 

agricultural producers as those having 

annual receipts of no more than 

$750,000 and small agricultural service 

firms (handlers and importers) as those 

having annual receipts of no more than 

$7.0 million. Under these criteria, the 

majority of the producers and handlers 

that would be affected by this Proposed 

Order would be considered small 

entities, while most importers would 

not. Future, qualified organizations 

certified by the Secretary for nomination 

purposes, would be expected to 

generally consist of entities reflecting 

such sizes also. Producers and importers 

of less than 20,000 pounds per year of 

raspberries for processing and processed 

raspberries respectively would be 

exempt under this Proposed Order. Five 

organic producers and importers are 

also expected to be exempt from 

assessments. The number of entities 

assessed under the program would be 

around 245. Estimated revenue is 

expected at $1.2 million of which 43 

percent is expected from imported 

product and 57 percent from domestic 

product. 

According to the WRRC, in 2006, 

there were approximately 195 producers 

of raspberries for processing and 34 

processors (first handlers) of processed 

raspberries in Oregon and Washington 

States, which are the principal growing 

areas in the United States for raspberries 

destined for processing. Approximately 

95 percent of the producers and 100 

percent of the raspberry processors 

qualified under the definition for small 

business owners. Although California is 

a significant producer of raspberries, 

virtually all harvested product is 

destined for the fresh market. In 2006, 

there were approximately 50 importers. 

Based on the U.S. Department of 

Commerce, U.S. Census Bureau, Foreign 

Trade Statistics, in 2006 two countries 

accounted for 96 percent of the 

processed raspberries imported into the 

United States. These countries and their 

share of the imports are: Chile (78 

percent) and Canada (18 percent). 

The 1996 Act authorizes generic 

programs of promotion, research, and 

information for agricultural 

commodities. Congress found that it is 

in the national public interest and vital 

to the welfare of the agricultural 

economy of the United States to 

maintain and expand existing markets 

and develop new markets and uses for 

agricultural commodities through 

industry-funded, governmentsupervised, generic commodity 

promotion programs. 

The WRRC submitted this Proposed 

Order to: (1) Develop and finance an 

effective and coordinated program of 

research, promotion, industry 

information, and consumer education 

regarding processed raspberries; (2) 

strengthen the position of the processed 

raspberry industry; and (3) maintain, 

develop, and expand existing markets 

for processed raspberries. 

While the Proposed Order would 

impose certain recordkeeping 

requirements on first handlers, this 

information could be compiled from 

records currently maintained. First 

handlers would collect and remit the 

assessments on domestic processed 

raspberries to the Council. First handler 

responsibilities would include accurate 

recordkeeping and accounting on all 

raspberries purchased or contracted for 

processing including the number of 

pounds handled, the names of their 

producers, and the dates raspberries 

were purchased. The forms require the 

minimum information necessary to 

effectively carry out the requirements of 

the program, and their use is necessary 

to fulfill the intent of the 1996 Act. Such 

records must be retained for at least two 

years. This information is already 

maintained as a normal business 

practice. In addition, as these entities 

currently remit assessments under 

either the Washington or Oregon State 

programs, the additional recordkeeping 

and submission impact would be 

minimal. 

There is also a minimal paperwork 

burden on producers. The Proposed 

Order would require producers to keep 

records and to provide information to 

the Council or the Department when 

requested. However, it is not anticipated 

that producers would be required to 

submit forms to the Council other than 

for nomination to the Council. If, for 

example, the Council needs information 

from a producer as part of the Council’s 

compliance program, the information 

would need to be obtained through an 

audit of the producer’s records instead 

of having the producer complete and 

submit paperwork. 

In addition, there is a minimal burden 

on importers. The import assessments 

would be collected by U.S. Customs and 

Border Protection (Customs) at time of 

entry into the United States. Importers 

would be required to keep records and 

to provide information to the Council or 

the Secretary of Agriculture (Secretary) 

when requested. However, it is not 

anticipated that importers would be 

required to submit forms to the Council 

for assessment collection because 

Customs conducts recordkeeping and 


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assessment remittance at the time of 

product entry into the United States. 

Importers who seek nomination to serve 

on the Council would be required to 

complete a background form which 

would be submitted to the Secretary. 

Foreign producers from countries 

exporting a minimum of three million 

pounds of raspberries for processing 

based on a three-year average to the U.S. 

and at-large members seeking 

nomination to serve on the Council 

would be required to complete a 

background form which would be 

submitted to the Secretary. 

The estimated annual cost of 

providing the information to the 

Council by an estimated 297 

respondents (195 producers, 50 

importers, 34 first handlers/processors, 

2 foreign producers, 5 organic producers 

and importers, 10 certified organizations 

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

Section 518 of the 1996 Act provides 

for referenda to ascertain approval of the 

Proposed Order to be conducted either 

prior to its going into effect or within 

three years after assessments first begin 

under the Proposed Order. An initial 

referendum would be conducted prior 

to putting this Proposed Order in effect. 

The Proposed Order also provides for 

approval in a referendum to be based 

upon approval by a majority of those 

persons voting in the referendum. Every 

seven years, the Department shall 

conduct a referendum to determine 

whether producers and importers of 

processed raspberries favor the 

continuation, suspension, or 

termination of the Proposed Order. In 

addition, the Department could conduct 

a referendum at any time; at the request 

of 10 percent or more of all eligible 

producers of raspberries for processing 

and processed raspberries importers 

required to pay assessments; or if the 

Council requests that the Secretary hold 

a referendum. 

The United States is among the 

leading producers of raspberries. 

Raspberries are grown in 46 states and 

are harvested late June to mid August. 

The 2002 Census of Agriculture 

indicates that about 80 percent of the 

U.S. raspberry acreage was in California, 

Oregon, and Washington. 

According to the United States 

Department of Agriculture’s National 

Agricultural Statistics Service (NASS) 

and the Foreign Agricultural Service, in 

2005, 178,300 million pounds of 

raspberries (fresh) with a combined 

value approaching $246 million (value 

at point of first sale) were produced in 

California, Oregon, and Washington, the 

three most productive States for growing 

raspberries in the United States. In 

2006, 179,850 million pounds were 

produced and utilized, at a value of 

almost $275 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 75 

million pounds in 2005 with most 

recent years averaging approximately 65 

million pounds. Washington continues 

to be the major supplier of processed 

raspberries to the domestic market, 

although its market share declined from 

72 percent to 51 percent between 2001 

and 2006. In comparison, imported 

raspberries have surged from 7.5 to 53.8 

million pounds from 1991 to 2005 and 

decreased to 48.9 million pounds in 

2006. Chile, which is the predominate 

importer of processed raspberries to the 

United States, supplied just over 30 

percent of the market in 2005 and 2006. 

Domestic uses of processed 

raspberries include further processing 

into juices, jellies, baked goods, and 

consumer retailer packs. After averaging 

approximately 100 million pounds for 

the period 1999 to 2004, approximately 

128 million pounds of processed 

raspberries were produced and/or 

imported into the United States in 2005 

and 111 million pounds in 2006. These 

totals were calculated by using imports 

of frozen raspberries (from USDA’s 

Foreign Agricultural Service) and NASS 

reports of production utilized for 

processing in Oregon and Washington. 

Because of the way imports are 

currently reported, and because of the 

way NASS reports raspberry data, the 

totals represent the best information 

currently available. 

The following countries are major 

exporters of raspberries to the United 

States: Canada, Chile, China, France, 

and Poland. Canada and Chile 

represented 91.5 percent share of total 

import tonnage in the domestic United 

States market from 2002 to 2006, with 

26 and 65.5 percent respectively. 

The same growing conditions and 

harvesting period apply to the Pacific 

Northwest and British Columbia, the 

major raspberry growing region in 

Canada. Exports of processed frozen 

raspberries from British Colombia to the 

United States ranged from 2.9 million 

metric tons to 5.7 million metric tons 

over the past five years. 

Contra-season raspberry production in 

the southern hemisphere is primarily 

located in Chile, with a harvest season 

beginning in December and continuing 

into February. However, processed 

raspberries are imported into the United 

States throughout the year. 

The Proposed Order would authorize 

a fixed assessment paid by producers of 

raspberries for processing and importers 

of processed raspberries at a rate of up 

to one cent per pound, with the initial 

assessment rate being one cent per 

pound. The assessment rate will be 

reviewed, and increased or decreased as 

recommended by the Council and 

approved by the Secretary after the first 

referendum is conducted as stated in 

§ 1208.71 (a). Such an increase or 

decrease may occur not more than once 

annually. Any change in the assessment 

rate shall be subject to rulemaking by 

the Department, and will be reviewed, 

and increased or decreased by the 

Secretary through rulemaking as 

recommended by the Council. Any 

change in the assessment rate shall be 

announced by the Council at least 30 

days prior to going into effect. The 

maximum assessment rate authorized is 

one cent per pound. 

At the proposed rate of assessment of 

up to one cent per pound, with the 

initial assessment rate being one cent 

per pound, the Council would collect 

approximately $1.2 million annually 

based on an estimated 120 million 

pound supply from domestic raspberries 

for processing and imports of processed 

raspberries. The domestic supply 

represents approximately 57 percent of 

the total and imports represent 43 

percent. 

The Proposed Order would exempt 

producers and importers of less than 

20,000 pounds annually of raspberries 

for processing and processed raspberries 

respectively. A review of producer 

delivery statistics from Oregon and 

Washington States indicate that around 

15 percent of all producers would have 

been exempted from assessment in 2006 

from the proposed research and 

promotion program based on a 20,000 

pounds exemption threshold. Also, 

organic producers and importers would 

be exempt from assessment. Section 515 

of the 1996 Act provides for the 

establishment of a board or council 

consisting of producers, importers, and 

others in the marketing chain as 

appropriate. The Proposed Order would 

provide for the establishment of the 

National Processed Raspberry Council 

to administer the Proposed Order under 

AMS oversight. The Secretary would 

appoint members to the Council from 

nominees submitted in accordance with 

the Proposed Order. The WRRC 

proposed that the Council be composed 

of 13 members and their alternates. The 


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proposed Council membership is as 

follows: six producer members of 

raspberries for processing from States 

producing a minimum of three million 

pounds of raspberries delivered for 

processing; one producer member of 

raspberries for processing representing 

all other States that produce less than 

the minimum of three million pounds of 

raspberries delivered for processing; 

three processed raspberry importer 

members; two foreign producers from 

countries exporting a minimum of three 

million pounds of raspberries for 

processing to the U.S. based on a threeyear average; and one at-large member 

recommended by the Council. The 

distribution of producer member of 

raspberries for processing positions 

among the States producing a minimum 

of three million pounds of raspberries 

would be proportional to the average of 

the total pounds delivered to the 

processor for processing over the 

previous three years. The States that 

provide less than three million pounds 

will be combined into one region and 

will have one producer representative. 

Under the Proposed Order, the 

Council members and alternates will 

serve for a term of three years and be 

able to serve a maximum of two 

consecutive terms. When the Council is 

first established, four producer 

members, two importers, one of the two 

foreign producers, and the at-large 

member and their respective alternates 

will be assigned initial terms of three 

years; and, three producer members, one 

importer member, and the second 

foreign producer and their respective 

alternates will serve an initial term of 

two years. Thereafter, each of these 

positions will carry a full three-year 

term. Members serving an initial term of 

two years will be eligible to serve a 

second three-year term to complete their 

eligibility. Council nominations and 

appointments will take place in two out 

of every three years. Each term of office 

will end on December 31, and a new 

term will begin on January 1. 

Producers and importers would 

represent those entities in the United 

States. The United States would be 

defined to include collectively the 50 

States, the District of Columbia, the 

Commonwealth of Puerto Rico and the 

territories and possessions of the United 

States. 

The nominations for the six producer 

and alternate members from States 

producing a minimum three-year 

average of three million pounds of 

raspberries delivered for processing will 

be submitted to the Council in the 

following manner: (1) For those States 

that have a State raspberry commission 

or State marketing order, the State 

commission or committee will nominate 

producers and their alternates to serve; 

or (2) for those States that do not have 

a State commission or State marketing 

order, the Council will seek 

nominations from the State Departments 

of Agriculture for members and 

alternates from the specific States. 

For those States producing a 

minimum three-year average of three 

million pounds of raspberries delivered 

for processing that have a State 

raspberry commission or State 

marketing order, the State commission 

or committee nominations will be 

returned to the Council and placed on 

a ballot which will then be sent to 

producers in the State for a vote. The 

nominee for member will have received 

the highest number of votes cast. The 

person with the second highest number 

of votes cast will be the nominee for 

alternate. The persons with the third 

and fourth place highest number of 

votes cast will be designated as 

additional nominees for consideration 

by the Secretary. Once the Council has 

received all of the nominations from 

commissions or committees, the 

information will be submitted to the 

Secretary for appointment. Nominations 

for the initial Council will be handled 

by the Department. Subsequent 

nominations will be handled by the 

Council staff and shall be submitted to 

the Secretary not less than 90 days prior 

to the expiration of the term of office. 

If the Department determines that 

there are no State raspberry 

commissions or State marketing orders 

from States producing a minimum 

three-year average of three million 

pounds of raspberries delivered for 

processing, the Council will seek 

nominations from the State Departments 

of Agriculture for members and 

alternates from the specific States who 

may directly submit nominations to the 

Department for the initial Council. 

Subsequent nominations shall be 

submitted to the Council and will be 

handled by the Council staff who in 

turn shall submit those nominations to 

the Secretary not less than 90 days prior 

to the expiration of the term of office. 

The distribution of the six producer 

and alternate seats will be proportional 

to the percentage determined by the 

average of the total pounds produced 

and delivered to processors for 

processing over the previous three years 

divided by the average total pounds 

produced over the previous three years. 

For example, if Washington State and 

Oregon are the only two States 

producing a minimum of 3 million 

pounds each, and Washington’s 

previous three-year average is 62.4 

million pounds and Oregon’s previous 

three-year average is 6.7 million pounds 

with the average total pounds for the 

previous three years being 69.1 million 

pounds, Washington would have 90 

percent of the production and Oregon 

would have 10 percent of the 

production. Therefore, Washington 

would obtain five out of the six seats 

and Oregon would receive one seat. 

The nomination for the one raspberry 

producer of raspberries for processing 

and alternate member, who represents 

all other States producing less than a 

minimum three-year average of three 

million pounds of raspberries delivered 

for processing, will constitute a region 

and the nominations will be submitted 

to the Council in the following manner: 

(1) For those States that have a State 

raspberry commission or State 

marketing order, the State commission 

or committee will nominate producers 

and their alternates to serve; or (2) for 

those States that do not have a State 

commission or State marketing order, 

the Council will seek nominations from 

the State Departments of Agriculture for 

the member and alternate from the 

specific States. 

For those States producing less than 

a minimum three-year average of three 

million pounds of raspberries delivered 

for processing that have a State 

raspberry commission or State 

marketing order, the State commission 

or committee nominations will be 

returned 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 would 


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have the opportunity to participate in 

nomination caucuses and will directly 

submit as a group a single slate of 

nominations to the Department for the 

producer position and the producer 

alternate position on the Council for the 

initial Council. Subsequent nominations 

shall be submitted to the Council and 

will be handled by the Council staff 

who in turn shall submit those 

nominations to the Secretary not less 

than 90 days prior to the expiration of 

the term of office. 

Only producers from States that 

deliver raspberries for processing and 

pay assessments 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. 

Nominations for the three processed 

raspberry importer member positions 

and their alternates will be made by 

qualified national organizations 

representing importers. Two nominees 

for each member and each alternate 

position will be submitted to the 

Secretary for consideration. 

All qualified national organizations 

representing importers would have the 

opportunity to participate in 

nomination caucuses and will submit as 

a group a single slate of nominations to 

the Secretary for the importer positions 

and the importer alternate positions on 

the Council. 

Eligible organizations must submit 

nominations to the Department not less 

than 90 days prior to the expiration of 

the term of office. To become a qualified 

national organization representing 

importers under the Proposed Order, 

each such organization would be 

required to meet the following criteria: 

(1) Any organization representing 

importers must represent a substantial 

number of importers who market a 

substantial volume of raspberries for 

processing; (2) it must have a history of 

stability and permanency and have been 

in existence for more than one year; (3) 

it must promote processed raspberry 

importers’ welfare; and (4) it must 

derive a portion of its operating funds 

from importers. 

If the Department determines that 

there are no qualified national 

organizations representing importers, 

individuals who have paid their 

assessments to the Council in the most 

recent fiscal year or for the initial 

Council, those that imported processed 

raspberries into the U.S. in the most 

recent fiscal year, could directly submit 

nominations to the Department for the 

initial Council. Subsequent nominations 

shall be submitted to the Council and 

will be handled by the Council staff 

who in turn shall submit those 

nominations to the Secretary not less 

than 90 days prior to the expiration of 

the term of office. 

Nominations for the two foreign 

producer member positions and their 

alternates will be made by qualified 

organizations representing foreign 

producers. Two nominees for each 

member and each alternate position will 

be submitted to the Secretary for 

consideration. 

All qualified organizations 

representing foreign producers would 

have the opportunity to participate in 

nomination caucuses and will submit as 

a group a single slate of nominations per 

country to the Secretary for foreign 

producer positions and the foreign 

producer alternate positions on the 

Council. 

Eligible organizations must submit 

nominations to the Department not less 

than 90 days prior to the expiration of 

the term of office. To become a qualified 

organization representing foreign 

producers under the Proposed Order, 

each such organization would be 

required to meet the following criteria: 

(1) Any organization representing 

foreign producers must represent a 

substantial number of foreign producers 

who market or produce a substantial 

volume of raspberries for processing; (2) 

it must have a history of stability and 

permanency and have been in existence 

for more than one year; (3) it must 

promote processed raspberry foreign 

producers’ welfare; (4) it must derive a 

portion of its operating funds from 

foreign producers; and (5) must be from 

a country exporting a minimum of three 

million pounds of raspberries for 

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

If the Department determines that 

there are no qualified organizations 

representing foreign producer interest, 

individual foreign producers may 

directly submit nominations to the 

Department for the initial Council. 

Subsequent nominations shall be 

submitted to the Council and will be 

handled by the Council staff who in 

turn shall submit those nominations to 

the Secretary not less than 90 days prior 

to the expiration of the term of office. 

In recommending the at-large member 

and alternate, the Council can give 

consideration to nutrition health 

professionals and others interested in 

the raspberry industry. Nominations for 

the at-large member and alternate will 

be conducted at a Council meeting by 

the Council staff and shall be submitted 

by the Council to the Secretary for 

approval not less than 90 days prior to 

the expiration of the term of office. 

Nominations for the initial Council will 

be handled by the Department. 

The 1996 Act provides that to ensure 

fair and equitable representation, the 

composition of a board or council shall 

reflect the geographic distribution of the 

production of the agriculture 

commodity in the United States and the 

quantity or value of the agriculture 

commodity imported into the United 

States. The Proposed Order states that at 

least once every five years, but not more 

frequently than once every three years, 

the Council will review the geographic 

distribution of United States production 

of processed raspberries and the 

quantity and source of processed 

raspberry imports. If warranted, the 

Council will recommend to the 

Secretary that membership on the 

Council be altered to reflect any changes 

in geographic distribution of domestic 

raspberry production and the quantity 

of imports. Also, if the level of imports 

increases or decreases, importer 

members and alternates may be added 

or reduced on the Council. However, the 

foreign producer seats will remain the 

same regardless of the volume of 

imports from importing countries. 

The Proposed Order provides that all 

officers, employees, and agents of the 

Department and of the Council are 

required to keep confidential all 

information obtained from persons 

subject to the Proposed Order. This 

information would be disclosed only if 

the Department considers the 

information relevant, and the 

information is revealed in a judicial 

proceeding or administrative hearing 

brought at the direction or on the 

request of the Department or to which 

the Department or any officer of the 

Department is a party. However, the 

issuance of general statements based on 

reports or on information relating to a 

number of persons subject to the 

Proposed Order would be permitted, if 

the statements do not identify the 

information furnished by any person. 

Finally, the publication, by direction of 

the Department, of the name of any 

person violating the Proposed Order and 

a statement of the particular provisions 

of the Proposed Order violated by the 

person would be allowed. 

Proposed recordkeeping and reporting 

requirements for the raspberry 

promotion, research, and information 

program would be designed to minimize 

the burden on the raspberry industry. 

The estimated total cost of providing 

information to the Council by all 

respondents would be $9,141. This total 

has been estimated by multiplying 277 

total hours required for reporting and 

recordkeeping by $33, the average mean 


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hourly earnings of various occupations 

involved in keeping this information. 

Data for computation of this hourly rate 

was obtained from the U.S. Department 

of Labor Statistics. 

With regard to alternatives to this 

proposed rule, the 1996 Act itself does 

provide for authority to tailor a program 

according to the individual needs of an 

industry. Provision is made for 

permissive terms in an order in section 

516 of the 1996 Act, and other sections 

provide for alternatives. Section 514 of 

the 1996 Act provides for orders 

applicable to (1) producers, (2) first 

handlers and other persons in the 

marketing chain as appropriate, and (3) 

importers (if imports are subject to 

assessment). Section 516 states that an 

order may include an exemption of de 

minimis quantities of an agricultural 

commodity; different payment and 

reporting schedules; coverage of 

research, promotion, and information 

activities to expand, improve, or make 

more efficient the marketing or use of an 

agricultural commodity in both 

domestic and foreign markets; provision 

for reserve funds; provision for credits 

for generic activities for those 

individuals who contribute to other 

similar generic research, promotion, and 

information programs at State, regional 

or local level; and assessment of 

imports. In addition, section 518 of the 

1996 Act provides for referenda to 

ascertain approval of an order to be 

conducted either prior to its going into 

effect or within three years after 

assessments first begin under the order. 

An order also may provide for its 

approval in a referendum to be based 

upon (1) a majority of those persons 

voting; (2) persons voting for approval 

who represent a majority of the volume 

of the agricultural commodity; or (3) a 

majority of those persons voting for 

approval who also represent a majority 

of the volume of the agricultural 

commodity. Section 515 of the 1996 Act 

provides for establishment of a council 

from among producers, first handlers, 

and others in the marketing chain as 

appropriate and importers, if importers 

are subject to assessment. 

This proposal includes provisions for 

both domestic and foreign market 

expansion and improvement; reserve 

funds; credits for generic activities; 

assessments on imports; and an initial 

referendum to be conducted prior to the 

Proposed Order going into effect. 

Approval would be determined by a 

majority of producers and importers 

voting for approval. 

Similar to WRRC, Oregon also has a 

state raspberry commission, the Oregon 

Raspberry and Blackberry Commission 

(ORBC). The WRRC and ORBC both 

administer State marketing orders, 

which require all producers of 

raspberries to pay assessments to 

support the health of their respective 

industries. According to WRRC, the two 

commissions have developed a good 

working relationship with each other 

over the years. Both the WRRC and 

ORBC invest funds into research 

programs at their land-grant universities 

and other research institutions to study 

disease, pest control, and varietal 

development. In addition to developing 

and funding production research, they 

also fund marketing and promotion 

programs and seek to foster education 

and communication between producers. 

However, according to the WRRC, 

WRRC, ORBC and international 

raspberry organizations have not been 

able to generate the funds necessary to 

support the marketing efforts needed to 

help expand processed raspberry 

consumption and increase the demand 

for processed raspberries. In order to 

manage increased production, increased 

competition, and changing consumer 

habits, the WRRC believes that a more 

extensive marketing program is needed. 

The WRRC and ORBC believe that a 

national research and promotion 

program would fund the promotional 

aspect necessary to stay competitive and 

would place all domestic producers and 

importers on an equal playing field with 

each investing a fair share in promoting 

processed raspberries. The Council may 

provide credits of assessments for those 

individuals who contribute to local, 

regional, or State organizations engaged 

in similar generic research, promotion, 

and information programs as applied to 

assessment due to the Council subject to 

approval of the Secretary, for 

expenditure on generic research, 

promotion and information programs 

conducted within the United States. If a 

national processed raspberry program is 

established, the WRRC and ORBC will 

continue to fund processed raspberry 

research in areas not likely to be the 

focus of the national program. 

The WRRC and ORBC programs are 

not able to engage raspberry production 

in other States or countries in a 

meaningful way. The proposed program 

is not intended to duplicate any State 

program. Considerable attention is being 

made to involve producers in 

discussions regarding future program 

development and administration and 

what the State commissions would look 

like prior to the initial referendum. It is 

expected that farm related activities, 

such as production research, would 

continue to be funded by the State 

organizations and market development 

functions, such as nutritional research 

and marketing programs, would shift to 

the Proposed Order. 

The WRRC proposed that producers 

and importers of less than 20,000 

pounds annually of raspberries for 

processing and processed raspberries 

respectively, be exempt from 

assessments. In addition, WRRC 

proposed that a producer who operates 

under an approved National Organic 

Program (NOP) system plan, produces 

only products eligible to be labeled as 

100 percent organic under the NOP, and 

is not a split operation, be exempt from 

paying assessments under the Proposed 

Order. An importer who imports only 

products eligible to be labeled as 100 

percent organic under the NOP, and is 

not a split operation, would also be 

exempt from paying assessments. 

While the Department has performed 

this Initial Regulatory Flexibility 

Analysis regarding the impact of the 

proposed rule on small entities, in order 

to have as much data as possible for a 

more comprehensive analysis of the 

effects of this rule on small entities, we 

are inviting comments concerning 

potential effects. The Department is also 

requesting comments regarding the 

number and size of entities covered 

under the Proposed Order. 

Paperwork Reduction Act 

In accordance with the Paperwork 

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

Chapter 35], AMS announces its 

intention to request an approval of a 

new information collection and 

recordkeeping requirements for the 

proposed Processed Raspberry Program. 

Title: Advisory Committee or 

Research and Promotion Background 

Information. 

OMB Number for background form 

AD–755: (Approved under OMB No. 

0505–0001). 

Expiration Date of Approval: March 

31, 2009. 

Title: National Research, Promotion, 

and Consumer Information Programs. 

OMB Number: 0581–NEW. 

Expiration Date of Approval: 3 years 

from approval date. 

Type of Request: New information 

collection for research and promotion 

programs. 

Abstract: The information collection 

requirements in the request are essential 

to carry out the intent of the 1996 Act. 

There will also be the additional 

burden on producers and importers 

voting in referenda. The referendum 

ballot, which represents the information 

collection requirement relating to 

referenda, is addressed in a proposed 

rule on referendum procedures which is 

published separately in this issue of the 

Federal Register. 


dwashington3 on PROD1PC60 with PROPOSALS2
16272 Federal Register / Vol. 74, No. 67 / Thursday, April 9, 2009 / Proposed Rules 

Under the proposed program, first 

handlers would be required to collect 

assessments from producers and file 

reports with and submit assessments to 

the Council. While the Proposed Order 

would impose certain recordkeeping 

requirements on first handlers, 

information required under the 

Proposed Order could be compiled from 

records currently maintained. Such 

records shall be retained for at least two 

years beyond the marketing year of their 

applicability. 

Under the Proposed Order, importers 

are responsible to pay assessments. 

Importers must report the total quantity 

of produce imported during the 

reporting period and a record of each 

importation of such product during 

such period, giving quantity, date, and 

port of entry. Under the Proposed Order, 

Customs would collect assessments on 

imported processed raspberries and 

remit the funds to the Council. 

An estimated 297 respondents would 

provide information to the Council. 

They would be 195 producers, 50 

importers, 34 first handlers/processors, 

5 organic producers and importers (for 

exemption purposes), 2 foreign 

producers, 10 certified organizations 

(for nomination purposes), and 1 atlarge member. The estimated cost of 

providing the information to the 

Council by respondents would be 

$9,141. This total has been estimated by 

multiplying 277 total hours required for 

reporting and recordkeeping by $33, the 

average mean hourly earnings of various 

occupations involved in keeping this 

information. Data for computation of 

this hourly rate was obtained from the 

U.S. Department of Labor Statistics. 

The Proposed Order’s provisions have 

been carefully reviewed, and every 

effort has been made to minimize any 

unnecessary recordkeeping costs or 

requirements, including efforts to utilize 

information already submitted under 

other raspberry programs administered 

by the Department and other state 

programs. 

The proposed forms would require 

the minimum information necessary to 

effectively carry out the requirements of 

the program, and their use is necessary 

to fulfill the intent of the 1996 Act. Such 

information can be supplied without 

data processing equipment or outside 

technical expertise. In addition, there 

are no additional training requirements 

for individuals filling out reports and 

remitting assessments to the Council. 

The forms would be simple, easy to 

understand, and place as small a burden 

as possible on the person required to file 

the information. 

Collecting information yearly would 

coincide with normal industry business 

practices. The timing and frequency of 

collecting information are intended to 

meet the needs of the industry while 

minimizing the amount of work 

necessary to fill out the required reports. 

The requirement to keep records for two 

years is consistent with normal industry 

practices. In addition, the information to 

be included on these forms is not 

available from other sources because 

such information relates specifically to 

individual producers, first handlers, 

processors, foreign producers, and 

importers who are subject to the 

provisions of the 1996 Act. 

Therefore, there is no practical 

method for collecting the required 

information without the use of these 

forms. 

Information collection requirements 

that are included in this proposal 

include: 

(1) A Background Information Form 

AD–755 (OMB Form No. 0505–0001). 

Estimate of Burden: Public reporting 

for this collection of information is 

estimated to average 0.5 hours per 

response for each Council nominee. 

Respondents: Producers, importers, 

foreign producers, and at-large nominee. 

Estimated Number of Respondents: 26 

(52 for initial nominations to the 

Council, 26 in subsequent years). 

Estimated Number of Responses per 

Respondent: 1 every 3 years. (0.3) 

Estimated Total Annual Burden on 

Respondents: 26 hours for the initial 

nominations to the Council and 3.9 

hours annually thereafter. 

(2) An Annual Report by Each First 

Handler of Processed Raspberries. 

Estimate of Burden: Public reporting 

burden for this collection of information 

is estimated to average 0.5 hours per 

first handler reporting on processed 

raspberries handled. 

Respondents: First handlers. 

Estimated Number of Respondents: 

34. 

Estimated Number of Responses per 

Respondent: 1. 

Estimated Total Annual Burden on 

Respondents: 17 hours. 

(3) An Exemption Application for 

Producers and Importers Who Would Be 

Exempt from Assessments. 

Estimate of Burden: Public reporting 

burden for this collection of information 

is estimated to average 0.25 hours per 

producers, or importer reporting on 

processed raspberries produced or 

imported. Upon approval of an 

application, producers and importers 

will receive exemption certification. 

Respondents: Exempt producers and 

importers. 

Estimated Number of Respondents: 

40. 

Estimated Number of Responses per 

Respondent: 1. 

Estimated Total Annual Burden on 

Respondents: 10 hours. 

(4) Application for Reimbursement of 

Assessment. 

Estimate of Burden: Public reporting 

burden for this collection of information 

is estimated to average 0.25 hours per 

request for reimbursement. 

Respondents: 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. 


dwashington3 on PROD1PC60 with PROPOSALS2
Federal Register / Vol. 74, No. 67 / Thursday, April 9, 2009 / Proposed Rules 16273 

(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. 

Request for Public Comment Under the 

Paperwork Reduction Act 

Comments are invited on: (a) Whether 

the proposed collection of information 

is necessary for the proper performance 

of functions of the Proposed Order and 

the Department’s oversight of the 

Proposed Order, including whether the 

information would have practical 

utility; (b) the accuracy of the 

Department’s estimate of the burden of 

the proposed collection of information, 

including the validity of the 

methodology and assumptions used; (c) 

the accuracy of the Department’s 

estimate of the principal growing areas 

in the United States for raspberries 

destined for processing; (d) the accuracy 

of the Department’s estimate of the 

number of producers and first handlers 

of processed raspberries that would be 

covered under the program; (e) ways to 

enhance the quality, utility, and clarity 

of the information to be collected; and 

(f) ways to minimize the burden of the 

collection of information on those who 

are to respond, including the use of 

appropriate automated, electronic, 

mechanical, or other technological 

collection techniques or other forms of 

information technology. 

Comments concerning the 

information collection requirements 

contained in this action should 

reference OMB No. 0581–NEW. In 

addition, the docket number, date, and 

page number of this issue of the Federal 

Register also should be referenced. 

Comments should be sent to the USDA 

Docket Clerk, Research and Promotion 

Branch, Fruit and Vegetable Programs, 

AMS, USDA, 1400 Independence 

Avenue, SW., Stop 0244, Room 0632–S, 

Washington, DC 20250–0244. 

Comments may also be sent by facsimile 

to (202) 205–2800 or electronically to 

http://www.regulations.gov. All 

comments received will be available for 

public inspection during regular 

business hours at the same address. 

Comments regarding information 

collection should also be sent to the 

Office of Management and Budget at: 

Desk Office for Agriculture, Office of 

Information and Regulatory Affairs, 

Office of Management and Budget, New 

Executive Office Building, 725 17th 

Street, NW., Room 725, Washington, DC 

20503. 

OMB is required to make a decision 

concerning the collection of information 

contained in this rule between 30 and 

60 days after publication. Therefore, a 

comment to OMB is best assured of 

having its full effect if OMB receives it 

within 30 days of publication. 

Background 

This rule proposes the 

implementation of a Processed 

Raspberry Promotion, Research, and 

Information Order (Proposed Order). 

The Department received the proposal 

for a new Order from the Washington 

Red Raspberry Commission (WRRC). 

The Proposed Order is authorized 

under the 1996 Act which authorizes 

the Department to establish agricultural 

commodity research and promotion 

orders which may include a 

combination of promotion, research, 

industry information, and consumer 

information activities funded by 

mandatory assessments. These programs 

are designed to maintain and expand 

market and uses for agricultural 

commodities. The Proposed Order 

would provide for the continued 

development and financing of a 

coordinated program of research, 

promotion, and information for 

processed raspberries. 

The 1996 Act provides for a number 

of optional provisions that allow the 

tailoring of orders for different 

commodities. Section 516 of the 1996 

Act provides permissive terms for 

orders, and other sections provide for 

alternatives. For example, section 514 of 

the 1996 Act provides for orders 

applicable to (1) producers (if producers 

are subject to assessment), (2) first 

handlers and others in the marketing 

chain as appropriate, and (3) importers. 

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 

and branded activities; 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 based upon different voting 

patterns. Section 515 provides for 

establishment of a board or council from 

among producers, first handlers and 

others in the marketing chain as 

appropriate, and importers, if imports 

are subject to assessment. 

This Proposed Order includes 

provisions for both domestic and foreign 

market expansion and improvement, 

reserve funds, credit for generic 

activities, and an initial referendum to 

be conducted prior to the Proposed 

Order going into effect. Approval would 

be determined by a majority of 

producers and importers voting for 

approval. Specific procedures to be 

followed in the referendum will be 

published in a separate Federal Register 

publication. 

In accordance with the 1996 Act, the 

Department would oversee the 

program’s operations. In addition, the 

1996 Act requires the Secretary to 

conduct subsequent referenda: (1) Not 

later than seven years after assessments 

first begin under the Proposed Order; or 

(2) at the request of the Council 

established under the Proposed Order; 

or (3) at the request of 10 percent or 

more of the number of persons eligible 

to vote. In addition to these criteria, the 

1996 Act provides that the Secretary 

may conduct a referendum at any time 

to determine whether the continuation, 

suspension, or termination of an order 

or a provision of that order is favored by 

persons eligible to vote. 

The WRRC has requested that a 

referendum be conducted every five 

years to determine if producers and 

importers want the program to continue. 

However, the Department has increased 

the time period to seven years to make 

the Proposed Order consistent with 

other programs. In addition, the 

Proposed Order allows for the Secretary 

to conduct a subsequent referendum if 

10 percent or more of all eligible 

producers of raspberries for processing 

and importers of processed raspberries 

request it; or if the Council requests a 

referendum to be held; or the Secretary 

may hold one at any time. 

A national research and promotion 

program for processed raspberries 

would help the industry to address the 


dwashington3 on PROD1PC60 with PROPOSALS2
16274 Federal Register / Vol. 74, No. 67 / Thursday, April 9, 2009 / Proposed Rules 

many market problems it currently 

faces. According to the WRRC, three 

main factors currently affecting 

processed raspberry sales, both here in 

the domestic market and abroad, are 

increasing production, increased 

competition, and changing consumer 

habits. 

U.S. per capita consumption of 

processed raspberries has inched 

upward during the period 1991 to 2004, 

reaching a high of 0.3 pounds per 

person in 2003 and 2005. Over this 

period, consumption has ranged from 

0.1 to 0.3 pounds per capita. This 

fluctuation is due to the effects of 

population growth, demographics of 

consumers, and the availability of 

substitute or competitive products. 

Profitability for producers of raspberries 

for processing depends on maintaining 

and increasing processed raspberry 

consumption. With crop value flat over 

this period, an organized market 

development program that grew market 

demand and increased per capita 

consumption could improve the farm 

gate value for all suppliers of processed 

raspberries. The WRRC believes a 

generic research and promotion program 

would provide an equitable manner for 

producers to share in the costs of 

product development, nutrition and 

marketing research, and processed 

raspberry promotion. 

According to the Department’s 

Foreign Agricultural Service statistics, 

from 2002–2006, imports of processed 

raspberries have increased market share 

in the U.S. The statistics also suggests 

that the total market demand in the U.S. 

is continuing to grow, albeit at a rate 

slower than supply. The industry 

believes that the proposed processed 

raspberry program would increase 

demand, grow the market in the 

aggregate for all suppliers, and increase 

the value of processed raspberries at the 

grower level. 

The processed raspberry industry is 

facing strong competition in the 

marketplace from both indirect and 

direct competitors. Like all food 

products, processed raspberries must 

compete for a share of the consumer 

dollar. As competition in the 

supermarket increases, the processed 

raspberry industry must work harder to 

gain its share of consumer attention at 

a time when the industry’s competitors 

expand their promotional activities. 

The WRRC was established in 1976 as 

a State-government entity authorized by 

a State marketing order which requires 

producers of all varieties of raspberries 

pay assessments to promote raspberry 

awareness, consumption, and to 

conduct research programs to study pest 

control and varietals development. 

There are over 40 different suppliers of 

raspberry products who make up the 

WRRC. These members pay the 

mandatory one-half cent per pound to 

fund promotion efforts directed to both 

consumer and industrial users. 

Similar to WRRC, Oregon also has a 

state raspberry commission, the Oregon 

Raspberry and Blackberry Commission 

(ORBC). The WRRC and ORBC both 

administer State marketing orders, 

which require all producers of 

raspberries to pay assessments to 

support the health of their respective 

industries. According to WRRC, the two 

commissions have developed a good 

working relationship with each other 

over the years. Both the WRRC and 

ORBC invest funds into research 

programs at their land grant universities 

and other research institutions to study 

disease, pest control, and varietal 

development. In addition to developing 

and funding production research, they 

also fund marketing and promotion 

programs and seek to foster education 

and communication between producers. 

However, according to the WRRC, 

WRRC, ORBC and international 

raspberry organizations have not been 

able to generate the funds necessary to 

support the marketing efforts needed to 

help expand processed raspberry 

consumption and increase the demand 

for processed raspberries. In order to 

manage increased production, increased 

competition, and changing consumer 

habits, the WRRC believes that a more 

extensive marketing program is needed. 

The WRRC and ORBC believe that a 

national research and promotion 

program would fund the promotional 

aspect necessary to stay competitive and 

would place all domestic producers and 

importers on an equal playing field with 

each investing a fair share in promoting 

processed raspberries. The Council may 

provide credits of assessments for those 

individuals who contribute to local, 

regional, or State organizations engaged 

in similar generic research, promotion, 

and information programs as applied to 

assessment due to the Council subject to 

approval of the Secretary, for 

expenditure on generic research, 

promotion and information programs 

conducted within the United States. If a 

national processed raspberry program is 

established, the WRRC and ORBC will 

continue to fund processed raspberry 

research in areas not likely to be the 

focus of the national program. 

In 2006, an informal strategic review 

was conducted by the WRRC and the 

Raspberry Industry Development 

Council, who represents raspberry 

growers in British Columbia, Canada. 

During the strategic review, public and 

private sector industry representatives 

and food processors were interviewed 

seeking answers to the challenging 

dynamics facing the raspberry industry. 

The participants in the raspberry 

industry concluded that demand and 

market growth could best be 

accomplished by: (1) Analyzing existing 

nutritional research and conducting 

new research on the positive nutritional 

qualities of raspberries; (2) 

communicating raspberries nutritional 

advantages to consumers, food 

processors, and food industry in simple 

terms; and (3) increasing the number of 

new raspberry products and the use of 

raspberries in existing products. 

The raspberry industry recognizes 

that there currently exists a strong 

scientific basis to support the health 

benefits of raspberries, including 

processed raspberries, but the current 

data has not been effectively 

communicated to food processors or 

consumers. 

According to the WRRC, market 

growth for processed raspberries has 

been impeded by disorganized and 

fractured marketing with no clear and 

consistent message, and by a dearth of 

merchandising and new product 

development. Additionally, 

scientifically validated health-based 

research could have important 

marketing ramifications, but unless the 

findings are accompanied by a clear 

consistent marketing message to 

communicate significant results, there 

will be little or no impact on increasing 

processed raspberry consumption. 

In addition, the raspberry industry 

understands that consumers need to 

know about foods that are good for their 

health. According to the WRRC, it is 

widely accepted that North Americans 

are increasingly concerned with 

improving their quality of life, and 

raspberries are positioned to respond to 

this trend. Consumers will not sacrifice 

flavor or enjoyment, and they are 

increasingly making food choices based 

on how they affect their future health. 

Aging demographics are creating 

demand for nutraceutical, health 

maintenance, and disease prevention 

attributes in food products. Consumers 

want to maintain health and vitality as 

they age. Foods such as raspberries can 

be positively linked to achieving this 

desire. 

WRRC stated that given processed 

raspberries low profile and stagnant 

market, the raspberry industry must 

increase awareness of the possible 

health attributes of raspberries, explore 

new product applications, become 

established in new domestic market 

niches, and develop new products if it 

is to realize its potential for market 

development. WRRC believes that these 


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challenges facing the processed 

raspberry industry to grow the market 

are not insurmountable. Through a 

generic research and promotion 

program, the raspberry industry would 

be able to: Capitalize more effectively on 

the possible health benefits of 

raspberries; improve demand and 

strengthen their position in the 

marketplace; maintain and expand 

existing domestic and foreign markets; 

and develop new markets and uses for 

processed raspberries. 

Additional funds generated through a 

national program would allow the 

processed raspberry industry to take 

advantage of a wide range of 

promotional opportunities. At a 

minimum, increased funding would 

allow the industry to expand its current 

consumer, food service, and food 

manufacturer promotion efforts. 

Section 516(f) of the 1996 Act allows 

an order to authorize the levying of 

assessments on imports of the 

commodity covered by the program or 

on products containing that commodity, 

at a rate comparable to the rate 

determined for the domestic agricultural 

commodity covered by the order. WRRC 

has proposed to assess imports as well 

as domestic product. 

The assessment levied on 

domestically-produced and imported 

processed raspberries would be used to 

pay for promotion, research, and 

consumer and industry information as 

well as administration, maintenance, 

and functioning of the Council. 

Expenses incurred by the Secretary in 

implementing and administering the 

Proposed Order, including referenda 

costs, also would be paid from 

assessments. Assessments would be 

paid by producers and importers of 

20,000 or more pounds of raspberries for 

processing or processed raspberries 

respectively. The number of entities 

assessed under the program would be 

around 245. Estimated revenue is 

expected at $1.2 million of which 43 

percent is expected from imported 

product and 57 percent from domestic 

product. 

Section 516(e)(1) and (2) of the 1996 

Act allows the Secretary to provide 

credits of assessments for generic and 

branded activities. The WRRC has 

elected to propose credits for generic 

activities. The Proposed Order gives the 

Council authority to provide credits of 

assessments for those individuals who 

contribute to other similar generic 

research, promotion, and information 

programs at the State, regional, or local 

level subject to the approval of the 

Secretary. The activities must be generic 

in nature and may not promote a 

particular State or region’s product. No 

credit will be given for funds expended 

for administrative purposes. 

Under the Proposed Order ‘‘first 

handler’’ would be defined as 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 to be 

shipped as specified in the Proposed 

Order. This definition includes those 

engaged in the business of buying, 

selling and/or offering for sale, 

receiving, packing, grading, marketing, 

or distributing raspberries 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 raspberries of the producer’s 

own production. In addition, ‘‘handle’’ 

would be defined to mean to process, 

package, sell, transport, purchase or in 

any other way place processed 

raspberries, or cause them to be placed, 

in the current of commerce. This term 

includes selling processed raspberries 

imported into the United States. This 

term does not include the transportation 

of fresh raspberries by the producer to 

a handler or transportation by a 

commercial carrier of fresh raspberries 

and organic raspberries, whether 

processed or unprocessed for the 

account of the first handler or producer. 

First handlers would be responsible 

for the collection of assessments from 

producers of raspberries for processing. 

In the case of the producer acting as its 

own first handler, the producer would 

be required to collect and remit its 

individual assessments. Such 

assessments would be levied at a rate of 

up to one cent per pound, with the 

initial assessment rate being one cent 

per pound, from the producer and 

payment would be remitted by the 

collecting first handler to the Council. 

First handlers would be required to 

maintain records for each producer for 

whom raspberries for processing are 

handled, including raspberries 

produced by the first handler. In 

addition, first handlers would be 

required to file reports regarding the 

collection, payment, or remittance of the 

assessments to the Council. 

The Proposed Order would define 

importer as any person importing 

20,000 or more pounds 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. 

Assessments on imported processed 

raspberries would be collected by 

Customs at the time of entry into the 

United States and remitted to the 

Council. If Customs does not collect an 

assessment from an importer, the 

importer would be responsible for 

paying the assessment directly to the 

Council. Section 516 (f) of the 1996 Act 

allows assessments on imported product 

comparable to the assessment on 

domestic product. Accordingly, the 

assessment rate for imported processed 

raspberries would be up to one cent per 

pound, with the initial rate being one 

cent per pound. 

Persons failing to remit assessments 

due in a timely manner may also be 

subject to actions under the Federal debt 

collection procedures as set forth in 7 

CFR 3.1 through 3.36 for all research 

and promotion programs administered 

by the Department [60 FR 12533]. 

Interest and late payment are also 

provided for in this Proposed Order. 

The Proposed Order allows the 

Council to recommend to the Secretary 

an increase or decrease to the 

assessment rate, if it deems appropriate 

and if approved by at least one vote 

more than 50 percent of the total votes 

of members present at a meeting of the 

Council. The initial assessment will be 

levied at a rate of one cent per pound 

on all processed raspberries. Thereafter, 

the assessment rate will be levied at a 

rate of up to one cent per pound on all 

processed raspberries. 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 (b). 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. 

All information obtained from 

persons subject to this Proposed Order 

as a result of recordkeeping and 

reporting requirements would be kept 

confidential by all officers, employees, 

and agents of the Department and of the 

Council. This information may be 

disclosed only if the Secretary considers 

the information relevant, and the 

information is revealed in a judicial 

proceeding or administrative hearing 

brought at the direction or on the 


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request of the Secretary or to which the 

Secretary or any officer of the 

Department is a party. Other exceptions 

for disclosure of confidential 

information would include the issuance 

of general statements based on reports 

or on information relating to a number 

of persons subject to an order, if the 

statements do not identify the 

information furnished by any person or 

the publication; and by direction of the 

Secretary of the name of any person 

violating the Proposed Order and a 

statement of the particular provisions of 

the Proposed Order violated by the 

person. 

Under the Proposed Order producers 

and importers of less than 20,000 

pounds a year of raspberries for 

processing and processed raspberries 

respectively, are exempt from paying 

assessments. In addition, 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, is 

exempt from the paying assessments 

under the Proposed Order. An importer 

who imports only products eligible to be 

labeled as 100 percent organic under the 

NOP, and is not a split operation, also 

is exempt from paying assessments. 

As the Proposed Order provides, 

producers and importers will be 

responsible for paying assessments, 

however, the collection of assessments 

will be the responsibility of the first 

handler receiving the raspberries for 

processing or Customs for imported 

product. The Proposed Order states that 

producers, handlers, and importers will 

also be responsible for filing reports and 

maintaining records regarding the 

amount of raspberries that were 

delivered for processing and the 

assessments collected. 

First handlers would be required to 

file reports and maintain records on the 

total raspberries that were delivered for 

processing from producers or the 

handling for their own product, on the 

total number of pounds handled; 

number of pounds on which an 

assessment was collected; name and 

address of the persons from whom the 

first handler collected assessments on 

each pound handled; and the date the 

collection of assessments was made on 

each pound handled. In addition, 

producers would be required to provide 

the Council periodically such 

information as may be required by the 

Council. The Council would 

recommend to the Department specific 

reporting periods and dates when such 

reports are due to the Council. 

Unless otherwise provided by 

Customs, importers would be required 

to report the total amount of processed 

raspberries imported during such 

period, including the quantity, date, 

country of origin, and port of entry. 

Under the Proposed Order, Customs 

would collect assessments on imported 

processed raspberries and remit the 

funds to the Council. 

Each first handler, producer, and 

importer of processed raspberries, 

including those who would be exempt 

from paying assessments under the 

Proposed Order, would be required to 

maintain any books and records 

necessary to carry out the provisions of 

the Proposed Order for two years 

beyond the fiscal period to which they 

apply. This would include the books 

and records necessary to verify any 

required reports. These books and 

records would be made available to the 

Council’s or Department’s employees or 

agents during normal business hours for 

inspection if necessary. 

Section 515 of the 1996 Act provides 

for the establishment of a board or 

council consisting of producers, first 

handlers, and others in the marketing 

chain, as appropriate. The Department 

would appoint members to the Council 

from nominees submitted in accordance 

with a Proposed Order. The Proposed 

Order would provide for the 

establishment of the Processed 

Raspberry Promotion, Research, and 

Information Order, under AMS 

oversight. The WRRC proposed that the 

Council be composed of thirteen 

members and their alternates. The 

Department made a slight revision to the 

distribution of members originally 

proposed by the WRRC to comply with 

geographical distribution of the 

production as required under the 1996 

Act. The proposed Council membership 

is as follows: Six processed raspberry 

producer members from States 

producing a minimum of three million 

pounds of raspberries delivered for 

processing; one processed raspberry 

producer member representing all other 

States that produce less than the 

minimum of three million pounds of 

raspberries delivered for processing; 

three processed raspberry importer 

members; two foreign producers from 

countries exporting a minimum of three 

million pounds of raspberries for 

processing to the U.S. based on a threeyear average; and one at-large member 

recommended by the Council. 

Under the Proposed Order, the 

Council members and alternates will 

serve for a term of three years and be 

able to serve a maximum of two 

consecutive terms. When the Council is 

first established, four producer 

members, two importers, one at-large 

member, and one foreign producer and 

their respective alternates will be 

assigned initial terms of three years; 

and, three producer members, one 

importer members, and one foreign 

producer member and their respective 

alternates will serve an initial term of 

two years. Thereafter, each of these 

positions will carry a full three-year 

term. Members serving an initial term of 

two years will be eligible to serve a 

second three year term to complete their 

eligibility. Council nominations and 

appointments will take place in two out 

of every three years. Each term of office 

will end on December 31, with new 

terms of office beginning on January 1. 

Producers and importers would 

represent those entities in the United 

States. The United States would be 

defined to include collectively the 50 

States, the District of Columbia, the 

Commonwealth of Puerto Rico and the 

territories and possessions of the United 

States. 

The nominations for the six producer 

and alternate members from States 

producing a minimum three-year 

average of three million pounds of 

raspberries delivered for processing will 

be submitted to the Council in the 

following manner: (1) For those States 

that have a State raspberry commission 

or State marketing order, the State 

commission or committee will nominate 

producers and their alternates to serve; 

or (2) for those States that do not have 

a State commission or State marketing 

order, the Council will seek 

nominations from the State Departments 

of Agriculture for members and 

alternates from the specific States. 

For those States producing a 

minimum three-year average of three 

million pounds of raspberries delivered 

for processing that have a State 

raspberry commission or State 

marketing order, the State commission 

or committee nominations will be 

returned 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 


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the Secretary not less than 90 days prior 

to the expiration of the term of office. 

If the Department determines that 

there are no State raspberry 

commissions or State marketing orders 

from States producing a minimum 

three-year average of three million 

pounds of raspberries delivered for 

processing, the Council will seek 

nominations from the State Departments 

of Agriculture for members and 

alternates from the specific States who 

may directly submit nominations to the 

Department for the initial Council. 

Subsequent nominations shall be 

submitted to the Council and will be 

handled by the Council staff who in 

turn shall submit those nominations to 

the Secretary not less than 90 days prior 

to the expiration of the term of office. 

The distribution of the six producer 

and alternate seats will be proportional 

to the percentage determined by the 

average of the total pounds produced 

and delivered to processors for 

processing over the previous three years 

divided by the average total pounds 

produced over the previous three years. 

For example, if Washington State and 

Oregon are the only two States 

producing a minimum of 3 million 

pounds each, and Washington’s 

previous three year average is 62.4 

million pounds and Oregon’s previous 

three year average is 6.7 million pounds 

with the average total pounds for the 

previous three years being 69.1 million 

pounds, Washington would have 90 

percent of the production and Oregon 

would have 10 percent of the 

production. Therefore, Washington 

would obtain five out of the six seats 

and Oregon would receive one seat. 

The nomination for the one raspberry 

producer of raspberries for processing 

and alternate member, who represents 

all other States producing less than a 

minimum three year average of three 

million pounds of raspberries delivered 

for processing, will constitute a region 

and the nominations will be submitted 

to the Council in the following manner: 

(1) For those States that have a State 

raspberry commission or State 

marketing order, the State commission 

or committee will nominate producers 

and their alternates to serve; or (2) for 

those States that do not have a State 

commission or State marketing order, 

the Council will seek nominations from 

the State Departments of Agriculture for 

the member and alternate from the 

specific States. 

For those States producing less than 

a minimum three year average of three 

million pounds of raspberries delivered 

for processing that have a State 

raspberry commission or State 

marketing order, the State commission 

or committee nominations will be 

returned 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 would 

have the opportunity to participate in 

nomination caucuses and will directly 

submit as a group a single slate of 

nominations to the Department for the 

producer position and the producer 

alternate position on the Council for the 

initial Council. Subsequent nominations 

shall be submitted to the Council and 

will be handled by the Council staff 

who in turn shall submit those 

nominations to the Secretary not less 

than 90 days prior to the expiration of 

the term of office. 

Only producers from States that 

deliver raspberries for processing and 

pay assessments 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. 

Nominations for the three processed 

raspberry importer member positions 

and their alternates will be made by 

qualified national organizations 

representing importers. Two nominees 

for each member and each alternate 

position will be submitted to the 

Secretary for consideration. 

All qualified national organizations 

representing importers would have the 

opportunity to participate in 

nomination caucuses and will submit as 

a group a single slate of nominations to 

the Secretary for the importer positions 

and the importer alternate positions on 

the Council. 

Eligible organizations must submit 

nominations to the Department not less 

than 90 days prior to the expiration of 

the term of office. To become a qualified 

national organization representing 

importers under the Proposed Order, 

each such organization would be 

required to meet the following criteria: 

(1) Any organization representing 

importers must represent a substantial 

number of importers who market a 

substantial volume of raspberries for 

processing; (2) it must have a history of 

stability and permanency and have been 

in existence for more than one year; (3) 

it must promote processed raspberry 

importers’ welfare; and (4) it must 

derive a portion of its operating funds 

from importers. 

If the Department determines that 

there are no qualified national 

organizations representing importers, 

individuals who have paid their 

assessments to the Council in the most 

recent fiscal year or for the initial 

Council those that importers processed 

raspberries into the U.S. could directly 

submit nominations to the Department 

for the initial Council. Subsequent 

nominations shall be submitted to the 

Council and will be handled by the 

Council staff who in turn shall submit 

those nominations to the Secretary not 

less than 90 days prior to the expiration 

of the term of office. 

Nominations for the two foreign 

producer member positions and their 

alternates will be made by qualified 

organizations representing foreign 

producers. Two nominees for each 

member and each alternate position will 

be submitted to the Secretary for 

consideration. 

All qualified organizations 

representing foreign producers would 

have the opportunity to participate in 

nomination caucuses and will submit as 

a group a single slate of nominations per 

country to the Secretary for foreign 

producer positions and the foreign 

producer alternate positions on the 

Council. 

Eligible organizations must submit 

nominations to the Department not less 

than 90 days prior to the expiration of 

the term of office. To become a qualified 

organization representing foreign 

producers under the Proposed Order, 

each such organization would be 

required to meet the following criteria: 

(1) Any organization representing 

foreign producers must represent a 

substantial number of foreign producers 

who market or produce a substantial 

volume of raspberries for processing; (2) 


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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) it must be 

from a country exporting a minimum of 

three million pounds of raspberries for 

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

If the Department determines that 

they are no qualified organizations 

representing foreign producer interest, 

individual foreign producers may 

directly submit nominations to the 

Department for the initial Council. 

Subsequent nominations shall be 

submitted to the Council and will be 

handled by the Council staff who in 

turn shall submit those nominations to 

the Secretary not less than 90 days prior 

to the expiration of the term of office. 

In recommending the at-large member 

and alternate, the Council can give 

consideration to nutrition health 

professionals and others interested in 

the raspberry industry. Nominations for 

the at-large member and alternate will 

be conducted at a Council meeting by 

the Council staff and shall be submitted 

by the Council to the Secretary for 

approval. 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. 

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 raspberries for processing 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, importer members and 

alternates may be added to the Council. 

However, the foreign producer seats will 

remain the same regardless of the 

volume of imports from importing 

countries. 

Upon implementation of the Proposed 

Order and pursuant to the 1996 Act, the 

Council would at least once in each 

five-year period, but not more 

frequently than once in each three-year 

period review the geographical 

distribution of processed raspberries in 

the United States and the quantity of 

processed raspberries imported into the 

United States and make a 

recommendation to the Secretary after 

considering the results of its review and 

other information it deems relevant 

regarding the reapportionment of the 

Council. 

The Proposed Order indicates the 

Council may recommend to the 

Department that a member be removed 

from office if the member consistently 

refuses to perform his or her duties or 

engages in dishonest acts or willful 

misconduct. The Department may 

remove the member if the Department 

finds that the Council’s 

recommendation demonstrates cause. 

In the event any member or alternate 

of the Council ceases to be a member of 

the category from which the member 

was appointed to the Council, such 

position will automatically become 

vacant. Should any member position 

become vacant the alternate of that 

member shall automatically assume the 

position of member. 

Under the Proposed Order, a quorum 

is met 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 members for whom the person is 

the alternate is absent or disqualified 

from participating. Also, under the 

Proposed Order, a change for any matter 

put to the Council will carry if 

supported by one vote more than 50 

percent of the total votes represented by 

the Council members present. 

Under the Proposed Order, the 

chairperson of the Council must reside 

in the United States and the Council 

will be located in the United States. 

The Proposed Order states that 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. 

The Department modified the WRRC’s 

proposal to make it consistent with the 

1996 Act and to provide clarity, 

consistency, and correctness with 

respect to word usage and terminology. 

The Department also changed the 

proposal to make it consistent with 

other similar national research and 

promotion programs. Changes made by 

the Department to the WRRC’s proposal 

include: (1) To add the term processor 

which is presented in WRRC’s proposal; 

(2) to specify the initial terms of office 

for the Council and to stagger the terms 

for future years; (3) to modify the 

criteria under nominations if a member 

or alternate is no longer affiliated with 

the organization he or she was 

nominated to represent; (4) to modify 

the four harmonized tariff codes that 

were presented and reduce it to one 

harmonized tariff code; (5) to clarify the 

nomination process for obtaining 

nominees for both States with State 

commissions or committees and those 

that do not have State commissions; (6) 

to clarify the nomination process for 

obtaining nominees from the minor 

States and/or region in which the 

Council will handle instead of the 

WRRC; (7) to add reports that may be 

required by producers and importers; (8) 

to add the provision under subsequent 

referenda that the Council may request 

a referendum be held as stated in the 

1996 Act; (9) to clarify the staggered 

terms of office and that members serving 

a two year term will only be eligible to 

serve a second term; (10) to clarify 

under the procedures that a quorum at 

a Council meeting will be a majority of 

the Council members and alternates 

participating in the meeting; (11) to 

clarify that any funds borrowed by the 

Council shall be expended for startup 

costs and capital outlays and they are 

limited to the first year of operation of 

the Council as stated in the 1996 Act; 

(12) to add language concerning the 

exemption procedures for organic 

processed raspberries; (13) to add 

language concerning the reports that the 

Council may require of producers and 

importers; (14) to eliminate the word 

red from raspberries to conform with the 

harmonized tariff code; (15) to eliminate 

voting by proxy; (16) to add language 

under the procedures requiring that the 

chairperson and the treasurer reside in 

the United States; (17) to add language 

under the procedures requiring all 

Council meetings to be held in the 

United States; (18) to add language 

under the procedures requiring the 

Council office to be located in the 

United States; (19) to change the 

Council’s name from United States 

Raspberry Council to the National 

Processed Raspberry Council; (20) to 

add language under the subsequent 

referendum that complies with the 1996 

Act concerning the Council requesting 

the Secretary to conduct a referendum; 

(21) to add that importer nominations 

will be handled by qualified national 

organizations; (22) to add that foreign 

producer nominations will be handled 

by qualified organizations; (23) to add 

nomination procedures for States 

producing a minimum of three million 


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Federal Register / Vol. 74, No. 67 / Thursday, April 9, 2009 / Proposed Rules 16279 

pounds of raspberries delivered for 

processing, and whose State does not 

have a State commission or State 

marketing order; (24) to add nomination 

procedures for States producing less 

than a minimum three year average of 

three million pounds of raspberries 

delivered for processing, and whose 

State does not have a State commission 

or State marketing order; (25) to add the 

qualification process to become a 

qualified organization representing 

importer or foreign producer interests; 

and (26) to make a slight revision to the 

distribution of members originally 

proposed by the WRRC to comply with 

geographical distribution of the 

production as required under the 1996 

Act. 

The Proposed Order is summarized as 

follows: 1208.1 through 1208.29 of the 

Proposed Order define certain terms, 

such as processed raspberries, first 

handler, and importer, which are used 

in the Proposed Order. 

Sections 1208.40 through 1208.48 

include provisions relating to the 

Council. These provisions cover 

establishment and membership, 

nominations and appointments, term of 

office, vacancies, alternate members, 

and procedures for conducting Council 

business, compensation and 

reimbursement, and powers and duties 

of the Council, and prohibited activities. 

The Council is the governing body 

authorized to administer the Proposed 

Order through the implementation of 

programs, plans, projects, budgets, and 

contracts to promote and disseminate 

information about processed 

raspberries, subject to oversight of the 

Secretary. 

Sections 1208.50 through 1208.56 

cover budget review and approval; 

financial statements; authorize the 

collection of assessments; specify how 

assessments would be used, including 

reimbursement of necessary expenses 

incurred by the Council for the 

performance of its duties and expenses 

incurred for the Department’s oversight 

responsibilities; specify who pays the 

assessment and how; authorize the 

imposition of a late-payment charge on 

past-due assessments; outline 

exemption procedures; address 

programs, plans, and projects; require 

the Council to periodically conduct an 

independent review of its overall 

program; and address patents, 

copyrights, trademarks, information, 

publications, and product formulations 

developed through the use of 

assessment funds. 

The proposed assessment rate is up to 

one cent per pound for domestic 

processed raspberries 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 greater than one cent 

after the initial continuance referendum 

which would be conducted after the 

program has been in operation five 

years. A referendum to approve the new 

assessment rate or for any other change 

is not required. 

Sections 1208.60 through 1208.62 

concerns reporting and recordkeeping 

requirements for persons subject to the 

Proposed Order and protect the 

confidentiality of information from such 

books, records, or reports. 

Sections 1208.70 through 1208.78 

describe the rights of the Secretary; 

address referenda; authorize the 

Secretary to suspend or terminate the 

Proposed Order when deemed 

appropriate; prescribe proceedings after 

termination; address personal liability, 

separability, and amendments; and 

provide OMB control numbers. 

While the proposal set forth below 

has not received the approval of the 

Department, it is determined that this 

Proposed Order is consistent with and 

will effectuate the purposes of the 1996 

Act. 

For the Proposed Order to become 

effective, it must be approved by a 

majority of producers and importers 

voting for approval in the referendum. 

Referendum procedures will be 

published separately in this issue of the 

Federal Register. 

A 60-day comment period is provided 

to allow interested persons to respond 

to this proposal. All written comments 

received in response to this rule by the 

date specified would be considered 

prior to finalizing this action. 

List of Subjects in 7 CFR Part 1208 

Administrative practice and 

procedure, Advertising, Consumer 

information, Marketing agreements, 

Raspberry promotion, Reporting and 

recordkeeping requirements. 

For the reasons set forth in the 

preamble, it is proposed that Title 7, 

Chapter XI of the Code of Federal 

Regulations be amended by adding part 

1208 to read as follows: 

PART 1208—PROCESSED 

RASPBERRY PROMOTION, 

RESEARCH, AND INFORMATION 

ORDER 

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. 


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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 B—[Reserved] 

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

7401. 

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 of the 

following year or such other period 

approved by the Secretary. 

§ 1208.4 Customs. 

Customs means the United States 

Customs and Border Protection or U.S. 

Customs Service, an agency of the 

United States Department of Homeland 

Security. 

§ 1208.5 Department. 

Department means the United States 

Department of Agriculture or any officer 

or employee of the Department to whom 

authority has heretofore been delegated, 

or to whom authority may hereafter be 

delegated, to act in the Secretary’s stead. 

§ 1208.6 First handler. 

First handler means any person 

(excluding a common or contract 

carrier) receiving raspberries for 

processing from producers in a calendar 

year and who as owner or agent, ships 

or causes processed raspberries 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 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 raspberries for processing of the 

producer’s own production. 

§ 1208.7 Fiscal period. 

Fiscal period means a calendar year 

from April 1 through March 31 both 

dates inclusive, 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 

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 raspberries 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. 

(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. 

(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. 

§ 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 an order issued by the 

Secretary under section 514 of the Act 

that provides for a program of generic 

promotion, research, and information 

regarding agricultural commodities 

authorized under the Act. 

§ 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 


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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, or 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. 

§ 1208.23 Raspberries. 

Raspberries mean and include all 

kinds, varieties, and hybrids of 

cultivated raspberries of the genus 

‘‘Rubus’’ 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 raspberries, 

including but not limited to research 

relating to nutritional value, cost of 

production, new product development, 

health research, and marketing of 

processed raspberries. 

§ 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. 

§ 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. 


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(c) The nominations for the six 

producer and alternate members from 

States producing a minimum three year 

average of three million pounds of 

raspberries delivered for processing will 

be submitted to the Council in the 

following manner: 

(1) For those States that have a State 

raspberry commission or State 

marketing order, the State commission 

or committee will nominate producers 

and their alternates to serve. 

Nominations will be returned 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; or 

(2) For those States that do not have 

a State commission or State marketing 

order, the Council will seek 

nominations from the State Departments 

of Agriculture for members and 

alternates from the specific States who 

may directly submit nominations to the 

Department for the initial Council. 

Subsequent nominations shall be 

submitted to the Council and will be 

handled by the Council staff who in 

turn shall submit those nominations to 

the Secretary not less than 90 days prior 

to the expiration of the term of office. 

(3) The distribution of the six 

producer and alternate seats will be 

proportional to the percentage 

determined by the average of the total 

pounds produced and delivered to 

processors for processing over the 

previous three years divided by the 

average total pounds produced over the 

previous three years. 

(d) The nomination for the one 

raspberry producer of raspberries for 

processing and alternate member, who 

represents all other States producing 

less than a minimum three year average 

of three million pounds of raspberries 

delivered for processing, will constitute 

a region and the nominations will be 

submitted to the Council in the 

following manner: 

(1) For those States that have a State 

raspberry commission or State 

marketing order, the State commission 

or committee will nominate producers 

and their alternates to serve. The State 

commission or committee nominations 

will be returned to the Council and 

placed on a ballot which will then be 

sent to producers in the Region for a 

vote. The nominee for member will have 

received the highest number of votes 

cast. The person with the second 

highest number of votes cast will be the 

nominee for alternate. The persons with 

the third and fourth place highest 

number of votes cast will be designated 

as additional nominees for 

consideration by the Secretary. Once the 

Council has received all of the 

nominations from commissions or 

committees, the information will be 

submitted to the Secretary for 

appointment. Nominations for the 

initial Council will be handled by the 

Department. Subsequent nominations 

will be handled by the Council staff and 

shall be submitted to the Secretary not 

less than 90 days prior to the expiration 

of the term of office; or 

(2) For those States that do not have 

a State commission or State marketing 

order, the Council will seek 

nominations from the State Departments 

of Agriculture for the member and 

alternate from the specific States. The 

State Departments of Agriculture would 

have the opportunity to participate in 

nomination caucuses and will directly 

submit as a group a single slate of 

nominations to the Department for the 

producer position and the producer 

alternate position on the Council for the 

initial Council. Subsequent nominations 

shall be submitted to the Council and 

will be handled by the Council staff 

who in turn shall submit those 

nominations to the Secretary not less 

than 90 days prior to the expiration of 

the term of office. 

(e) Only producers from States that 

deliver raspberries for processing and 

are covered under the program are 

eligible for nomination and election to 

the Council. Average production will be 

based upon Department production data 

for the initial nomination and 

production figures generated by either 

the Council or the Department 

thereafter. 

(f) Nominations for the importer 

positions and their alternates will be 

made by qualified national 

organizations representing importers as 

follows: 

(1) All qualified national 

organizations representing importers 

would have the opportunity to 

participate in nomination caucuses and 

will submit as a group a single slate of 

nominations to the Secretary for the 

importer positions and the importer 

alternate positions on the Council. 

Eligible organizations must submit 

nominations to the Department not less 

than 90 days prior to the expiration of 

the term of office. Two nominees for 

each member and each alternate 

position will be submitted to the 

Secretary for consideration. 

(2) If the Department determines that 

there are no qualified national 

organizations representing importers, 

individuals who have paid their 

assessments to the Council in the most 

recent fiscal year or for the initial 

Council, those that imported processed 

raspberries into the U.S., could directly 

submit nominations to the Department 

for the initial Council. Subsequent 

nominations shall be submitted to the 

Council and will be handled by the 

Council staff who in turn shall submit 

those nominations to the Secretary not 

less than 90 days prior to the expiration 

of the term of office. 

(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 


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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 

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 


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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, 

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 probably 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: 


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(1) A statement of objectives and 

strategy for each program, plan, or 

project; 

(2) A summary of anticipated revenue, 

with comparative data or at least one 

preceding year (except for the initial 

budget); and 

(3) A summary of proposed 

expenditures for each program, plan, or 

project; 

(4) Staff and administrative expense 

breakdowns, with comparative data for 

at least one preceding year (except for 

the initial budget). 

(b) Each budget shall provide 

adequate funds to defray its proposed 

expenditures and to provide for a 

reserve as set forth in this subpart. 

(c) Subject to this section, any 

amendment or addition to an approved 

budget must be approved by the 

Secretary, including shifting funds from 

one program, plan, or project to another. 

Shifts in funds which do not cause an 

increase in the Council’s approved 

budget, and which are consistent with 

by laws, need not have prior approval 

by the Department. 

(d) The Council is authorized to incur 

such expenses, including provision for 

a reasonable reserve, as the Secretary 

finds are reasonable and likely to be 

incurred by the Council for its 

maintenance and functioning, and to 

enable it to exercise its powers and 

perform its duties in accordance with 

the provisions of this subpart. Such 

expenses shall be paid from funds 

received by the Council. 

(e) With approval of the Secretary, the 

Council may borrow money for the 

payment of administrative expenses, 

subject to the same fiscal, budget, and 

audit controls as other funds of the 

Council. Any funds borrowed by the 

Council shall be expended for startup 

costs and capital outlays and are limited 

to the first year of operation of the 

Council. 

(f) The Council is authorized to repay 

startup costs associated with 

establishing a program and an initial 

referendum. If approved, these costs 

would be amortized and repaid over a 

maximum three (3) year period. 

(g) The Council may accept voluntary 

contributions, but these shall only be 

used to pay expenses incurred in the 

conduct of programs, plans, and projects 

approved by the Secretary. Such 

contributions shall be free from any 

encumbrance by the donor and the 

Council shall retain complete control of 

their use. 

(h) The Council may also receive 

funds provided through the 

Department’s Foreign Agricultural 

Service or from other sources, with the 

approval of the Secretary, for authorized 

activities. 

(i) The Council shall reimburse the 

Secretary for all expenses incurred by 

the Secretary in the implementation, 

administration, enforcement, and 

supervision of the Order, including all 

referendum costs in connection with the 

Order. 

(j) The Council may not expend for 

administration, maintenance, and 

functioning of the Council in any fiscal 

year an amount that exceeds 15 percent 

of the assessments and other income 

received by the Council for that fiscal 

year. Reimbursements to the Secretary 

required under paragraph (i) of this 

section are excluded from this 

limitation on spending. 

(k) The Council may establish an 

operating monetary reserve and may 

carry over to subsequent fiscal periods 

excess funds in any reserve so 

established: Provided that the funds in 

the reserve do not exceed one fiscal 

period’s budget. Subject to approval by 

the Secretary, such reserve funds may 

be used to defray any expenses 

authorized under this part. 

(l) Pending disbursement of 

assessments and all other revenue under 

a budget approved by the Secretary, the 

Council may invest assessments and all 

other revenues collected under this 

section in: 

(1) Obligations of the United States or 

any agency of the United States; 

(2) General obligations of any State or 

any political subdivision of a State; 

(3) Interest bearing accounts or 

certificates of deposit of financial 

institutions that are members of the 

Federal Reserve System; or 

(4) Obligations fully guaranteed as to 

principal interest by the United States. 

§ 1208.51 Financial statements. 

(a) As requested by the Secretary, the 

Council shall prepare and submit 

financial statements to the Secretary on 

a periodic basis. Each such financial 

statement shall include, but not be 

limited to, a balance sheet, income 

statement, and expense budget. The 

expense budget shall show expenditures 

during the time period covered by the 

report, year-to-date expenditures, and 

the unexpended budget. 

(b) Each financial statement shall be 

submitted to the Secretary within 30 

days after the end of the time period to 

which it applies. 

(c) The Council shall submit annually 

to the Secretary an annual financial 

statement within 90 days after the end 

of the fiscal year to which it applies. 

§ 1208.52 Assessments. 

(a) The funds to cover the Council’s 

expenses shall be paid from assessments 

on producers and importers at a rate not 

to exceed one cent per pound; the initial 

rate is one cent per pound, donations 

from any person not subject to 

assessments under this Order, and other 

funds available to the Council including 

those collected pursuant to § 1208.56 

and subject to the limitations contained 

therein. 

(b) The collection of assessments on 

domestic processed raspberries will be 

the responsibility of the first handler 

receiving the raspberries for processing. 

In the case of the producer acting as its 

own first handler, the producer will be 

required to collect and remit its 

individual assessments. The rate of 

assessments shall be prescribed in 

regulations issued by the Secretary. 

(c) The Council may recommend to 

the Secretary an increase or decrease to 

the assessment rate. Such an increase or 

decrease may occur not more than once 

annually. Any change in the assessment 

rate shall be subject to rulemaking by 

the Department. 

(d) Each importer of processed 

raspberries shall pay an assessment to 

the Council on processed raspberries 

imported for marketing in the United 

States, through Customs. If Customs 

does not collect an assessment from an 

importer, the importer would be 

responsible for paying the assessment 

directly to the Council. The assessment 

rate for imported processed raspberries 

would be up to 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 raspberries that are identified 

by the numbers 0811.20.20.20, in the 

Harmonized Tariff Schedule of the 

United States or any other numbers 

used to identify processed raspberries. 

(3) The assessments due on imported 

processed raspberries shall be paid 

when they enter into the United States 

or are withdrawn for consumption in 

the United States. 

(e) All assessment payments will be 

submitted to the office of the Council. 

All final payments for a crop year are to 

be received no later than October 30 of 

that year for producers of processed 

raspberries within the United States. A 

late payment charge shall be imposed 

on any handler or importer who fails to 

remit to the Council, the total amount 

for which any such first handler or 

importer is liable on or before the due 

date established by the Council. In 

addition to the late payment charge, an 


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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 individuals 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) Credit shall only be given for 

generic research, promotion, and 

information program activities. 

(4) 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. 

(5) 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 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 importers 

can request a reimbursement on the 

assessments paid to the Council by 60 

days of the end of the fiscal 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 importers 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 processed raspberries. 

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 exempt from 

assessment shall be eligible for 

reimbursement of assessments collected 

by Customs and shall apply to the 

Council for reimbursement of such 

assessments paid. No interest will be 

paid on assessments collected by 

Customs. Requests for reimbursement 

shall be submitted within 90 days of the 

last day of the year the processed 

raspberries were actually imported. Any 

claim for reimbursement submitted after 

ninety (90) days will be considered null 

and void. 

(d) 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. 

(e) 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. 

(f) A first handler who purchases 

raspberries for processing from a 

producer 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. 

(g) To obtain this exemption, an 

eligible first handler 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 first 

handler continues to be eligible for the 

exemption. 

(h) The request shall include the 

following: The first handler’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. 

(i) If the first handler complies with 

the requirements of paragraph (f) of this 

section, the Council will grant an 

assessment exemption and shall issue a 

Certificate of Exemption to the first 

handler. For exemption requests 

received on or before August 15 of the 

fiscal year, the Council will have 60 

days to approve the exemption request; 

after August 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. 


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(j) 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 first handlers in 

paragraph (c) 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. 

(k) 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 

programs, plans, or projects shall 

provide for: 

(1) The establishment, issuance, 

effectuation, and administration of 

appropriate programs for promotion, 

research, and information, including 

producer and consumer industry 

information, with respect to processed 

raspberries; and 

(2) The establishment and conduct of 

research with respect to the use, 

nutritional value, production, health, 

sale, distribution, and marketing of 

processed raspberries, and the creation 

of new products or product 

development, thereof, to the end that 

the marketing and use of processed 

raspberries may be encouraged, 

expanded, improved, or made more 

acceptable and to advance the image, 

desirability, or quality of processed 

raspberries. 

(b) A program, plan, or project may 

not be implemented prior to approval of 

the program, plan, or project by the 

Secretary. No later than forty-five (45) 

days after the receipt of such program, 

plan, or project, the Secretary shall 

notify the Council whether the Secretary 

approves or disapproves the program, 

plan, or project. Once a program, plan, 

or project is so approved, the Council 

shall take appropriate steps to 

implement it. 

(c) Each program, plan, or project 

implemented under this subpart shall be 

reviewed or evaluated periodically by 

the Council to ensure that it contributes 

to an effective program of promotion, 

research, or information. If it is found by 

the Council that any such program, 

plan, or project does not contribute to 

an effective program of promotion, 

research, or information, then the 

Council shall terminate such program, 

plan, or project. 

(d) No program, plan, or project 

including advertising shall be false or 

misleading, or disparage another 

agricultural commodity. Processed 

raspberries of all origins shall be treated 

equally. 

§ 1208.55 Independent evaluation. 

The Council shall, not less often than 

once every five years, authorize and 

fund, from funds otherwise available to 

the Council, an independent evaluation 

of the effectiveness of the Order and 

programs conducted by the Council 

pursuant to the Act. The Council shall 

submit to the Secretary, and make 

available to the public, the results of 

each periodic independent evaluation 

conducted under this paragraph. 

§ 1208.56 Patents, copyrights, trademarks, 

information, publications, and product 

formulations. 

Patents, copyrights, trademarks, 

information, publications, and product 

formulations developed through the use 

of funds received by the Council under 

this subpart shall be the property of the 

U.S. Government as represented by the 

Council and shall, along with any rents, 

royalties, residual payments, or other 

income from the rental, sales, leasing, 

franchising, or other uses of such 

patents, copyrights, trademarks, 

information, publications, or product 

formulations, inure to the benefit of the 

Council, shall be considered income 

subject to the same fiscal, budget, and 

audit controls as other funds of the 

Council, and may be licensed subject to 

approval by the Secretary. Upon 

termination of this subpart, § 1208.73 

shall apply to determine disposition of 

all such property. 

Reports, Books, and Records 

§ 1208.60 Reports. 

(a) Each first handler subject to this 

subpart may be required to provide to 

the Council periodically such 

information as may be required by the 

Council, with the approval of the 

Secretary, which may include but not be 

limited to the following: 

(1) Number of pounds handled; 

(2) Number of pounds on which an 

assessment was collected; 

(3) Name and address of person from 

whom the first handler has collected the 

assessments on each pound handled; 

and 

(4) Date collection was made on each 

pound handled. All reports are due to 

the Council 30 days after the end of the 

crop year. 

(b) Each importer subject to this 

subpart may be required to provide to 

the Council periodically such 

information as may be required by the 

Council, with the approval of the 

Secretary, which may include but not be 

limited to the following: 

(1) Number of pounds of 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 of 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 


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16288 Federal Register / Vol. 74, No. 67 / Thursday, April 9, 2009 / Proposed Rules 

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 or importation of processed 

raspberries. 

(b) Subsequent referenda. Every seven 

years, the Secretary shall hold a 

referendum to determine whether 

producers of raspberry delivered for 

processing and importers of processed 

raspberries favor the continuation of the 

Order. The Order shall continue if it is 

favored by a majority of producers and 

importers voting for approval in the 

referendum who, during a 

representative period determined by the 

Secretary, have been engaged in the 

production or importation of processed 

raspberries. The Secretary will also 

conduct a subsequent referendum if 10 

percent or more of all eligible producers 

of raspberries for processing and 

importers of processed raspberries 

request the Secretary to hold a 

referendum or if the Council established 

under § 1208.40 requests that the 

Secretary hold a referendum. In 

addition, the Secretary may hold a 

referendum at any time. 

§ 1208.72 Suspension and termination. 

(a) The Secretary shall suspend or 

terminate this part or subpart or a 

provision thereof if the Secretary finds 

that the subpart or a provision thereof 

obstructs or does not tend to effectuate 

the purposes of the Act, or if the 

Secretary determines that this subpart or 

a provision thereof is not favored by 

persons voting in a referendum 

conducted pursuant to the Act. 

(b) The Secretary shall suspend or 

terminate this subpart at the end of the 

marketing year whenever the Secretary 

determines that its suspension or 

termination is approved or favored by a 

majority of producers and importers 

voting for approval who, during a 

representative period determined by the 

Secretary, have been engaged in the 

production or importation of processed 

raspberries. 

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

Secretary determines that this subpart is 

not approved, the Secretary shall: 

(1) Not later than one hundred and 

eighty (180) days after making the 

determination, suspend or terminate, as 

the case may be, collection of 

assessments under this subpart. 

(2) As soon as practical, suspend or 

terminate, as the case may be, activities 

under this subpart in an orderly 

manner. 

§ 1208.73 Proceedings after termination. 

(a) Upon the termination of this 

subpart, the Council shall recommend 

not more than three of its members to 

the Secretary to serve as trustees for the 

purpose of liquidating the affairs of the 

Council. Such persons, upon 

designation by the Secretary, shall 

become trustees of all of the funds and 

property then in the possession or under 

control of the Council, including claims 

for any funds unpaid or property not 

delivered, or any other claim existing at 

the time of such termination. 

(b) The said trustees shall: 

(1) Continue in such capacity until 

discharged by the Secretary. 

(2) Carry out the obligations of the 

Council under any contracts or 

agreements entered into pursuant to the 

Order. 

(3) From time to time account for all 

receipts and disbursements and deliver 

all property on hand, together with all 

books and records of the Council and 

the trustees, to such person or persons 

as the Secretary may direct. 

(4) Upon request of the Secretary 

execute such assignments or other 

instruments necessary and appropriate 

to vest in such persons title and right to 

all funds, property and claims vested in 

the Council or the trustees pursuant to 

the Order. 

(c) Any person to whom funds, 

property or claims have been transferred 

or delivered pursuant to the Order shall 

be subject to the same obligations 

imposed upon the Council and upon the 

trustees. 

(d) Any residual funds not required to 

defray the necessary expenses of 

liquidation shall be turned over to the 

Secretary to be disposed of, to the extent 

practical, to one or more domestic 

raspberry industry organizations in the 

interest of continuing processed 

raspberry promotion, research, and 

information programs. 

§ 1208.74 Effect of termination or 

amendment. 

Unless otherwise expressly provided 

by the Secretary, the termination of this 

subpart or of any regulation issued 

pursuant thereto, or the issuance of any 

amendment to either thereof, shall not: 

(a) Affect or waive any right, duty, 

obligation or liability which shall have 

arisen or which may thereafter arise in 

connection with any provision of this 

subpart or any regulation issued 

thereunder. 

(b) Release or extinguish any violation 

of this subpart or any regulation issued 

thereunder. 

(c) Affect or impair any rights or 

remedies of the United States, or of the 

Secretary or of any other persons, with 

respect to any such violation. 

§ 1208.75 Personal liability. 

No member, alternate member, or 

employee of the Council shall be held 

personally responsible, either 

individually or jointly with others, in 

any way whatsoever, to any person for 

errors in judgment, mistakes, or other 

acts, either of commission or omission, 

as such member, alternate, or employee, 

except for acts of dishonesty or willful 

misconduct. 

§ 1208.76 Separability. 

If any provision of this subpart is 

declared invalid or the applicability 

thereof to any person or circumstances 

is held invalid, the validity of the 

remainder of this subpart or the 

applicability thereof to other persons or 

circumstances shall not be affected 

thereby. 

§ 1208.77 Amendments. 

Amendments to this subpart may be 

proposed from time to time by the 

Council or by any interested person 

affected by the provisions of the Act, 

including the Secretary. 

§ 1208.78 OMB control numbers. 

The control number assigned to the 

information collection requirements by 

the Office of Management and Budget 


dwashington3 on PROD1PC60 with PROPOSALS2
Federal Register / Vol. 74, No. 67 / Thursday, April 9, 2009 / Proposed Rules 16289 

pursuant to the Paperwork Reduction 

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

OMB control number 0505–0001, OMB 

control number 0581–0093, and OMB 

control number 0581–NEW. 

Subpart B—[Reserved] 

Dated: April 3, 2009. 

Robert C. Keeney, 

Acting Associate Administrator. 

[FR Doc. E9–7981 Filed 4–8–09; 8:45 am] 

BILLING CODE 3410–02–P 

DEPARTMENT OF AGRICULTURE 

Agricultural Marketing Service 

7 CFR Part 1208 

[Docket No. AMS–FV–07–0077; FV–07–705– 

PR] 

RIN 0581–AC37 

Proposed Processed Raspberry 

Promotion, Research, and Information 

Order; Referendum Procedures 

AGENCY: Agricultural Marketing Service, 

Agriculture, USDA. 

ACTION: Proposed rule with request for 

comments. 

SUMMARY: The purpose of this rule is to 

establish procedures which the 

Department of Agriculture (USDA or the 

Department) will use in conducting a 

referendum to determine whether the 

issuance of the proposed Processed 

Raspberry Promotion, Research, and 

Information Order (Proposed Order) is 

favored by producers of raspberries for 

processing and importers of processed 

raspberries. The Order will be 

implemented if it is approved by a 

simple majority of the eligible producers 

and importers voting in the referendum. 

These procedures would also be used 

for any subsequent referendum under 

the Proposed Order, if it is approved in 

the initial referendum. The Proposed 

Order is being published separately in 

this issue of the Federal Register. This 

proposed program would be 

implemented under the Commodity 

Promotion, Research, and Information 

Act of 1996 (1996 Act). 

DATES: Comments must be received by 

June 8, 2009. Pursuant to the Paperwork 

Reduction Act, comments on the 

information collection burden that 

would result from this proposal must be 

received by June 8, 2009. 

ADDRESSES: Interested persons are 

invited to submit written comments 

concerning this rule. Comments can be 

made on the Internet at http:// 

www.regulations.gov or to the Research 

and Promotion Branch, Fruit and 

Vegetable Programs, Agricultural 

Marketing Service, USDA, Stop 0244, 

Room 0634–S, 1400 Independence 

Avenue, SW., Washington, DC 20250– 

0244; Fax (202) 205–2800; Toll Free 

(888) 720–9917. Comments should 

reference the docket number, title of 

action, date, and page number of this 

issue of the Federal Register and will be 

made available for public inspection at 

the above address during regular 

business hours or at http:// 

www.regulations.gov. 

Pursuant to the Paperwork Reduction 

Act (PRA), send comments regarding the 

accuracy of the burden estimate, ways to 

minimize the burden, including the use 

of automated collection techniques or 

other forms of information technology, 

or any other aspect of this collection of 

information, to the above address and to 

the Desk Office for Agriculture, Office of 

Information and Regulatory Affairs, 

Office of Management and Budget, New 

Executive Office Building, 725 17th 

Street, NW., Room 725, Washington, DC 

20503. 

FOR FURTHER INFORMATION CONTACT: 

Kimberly Coy, Marketing Specialist, 

Research and Promotion Branch, FV, 

AMS, USDA, Stop 0244, Room 0634–S, 

1400 Independence Avenue, SW., 

Washington, DC 20250–0244; telephone 

202–720–9915 or (888) 720–9917 (toll 

free) or e-mail kimberly.coy@usda.gov. 

SUPPLEMENTARY INFORMATION: A 

referendum will be conducted among 

eligible producers of raspberries for 

processing and importers of processed 

raspberries to determine whether they 

favor issuance of the proposed 

Processed Raspberry Promotion, 

Research, and Information Order 

(Proposed Order), 7 CFR part 1208. The 

program will be implemented if it is 

approved by a simple majority of the 

producers and importers voting in the 

referendum. The Proposed Order is 

authorized under the Commodity 

Promotion, Research, and Information 

Act of 1996 (1996 Act), 7 U.S.C. 7411– 

7425. It would cover domestic 

producers of raspberries for processing 

and importers of processed raspberries 

of 20,000 pounds or more. The Proposed 

Order is being published separately in 

this issue of the Federal Register. 

Executive Order 12866 

This proposed 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 proposed 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 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 

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. In the petition, 

the person may request a modification 

of an order or an exemption from an 

order. Any petition filed challenging an 

order, any provision of an order, or any 

obligation imposed in connection with 

an order, shall be filed within two years 

after the effective date of an order, 

provision or obligation subject to 

challenge in the petition. The petitioner 

will have the opportunity for a hearing 

on the petition. Thereafter, the 

Department will issue a ruling on the 

petition. The 1996 Act provides that the 

district court of the United States for 

any district in which the petitioner 

resides or conducts business shall have 

the jurisdiction to review a final ruling 

on the petition, if the petitioner files a 

complaint for that purpose not later 

than 20 days after the date of entry of 

the Department’s final ruling. 

Initial Regulatory Flexibility Act 

Analysis and Paperwork Reduction Act 

In accordance with the Regulatory 

Flexibility Act (RFA) 5 U.S.C. 601–612, 

the Department is required to examine 

the impact of the proposed rule on small 

entities. The purpose of the RFA is to 

fit regulatory actions to the scale of 

businesses subject to such action so that 

small businesses will not be 

disproportionately burdened. 

The 1996 Act, which authorizes the 

Department to consider industry 

proposals for generic programs of 

promotion, research, and information 

for agricultural commodities, became 

effective on April 4, 1996. The 1996 Act 

provides for alternatives within the 

terms of a variety of provisions. 

Paragraph (e) of Section 518 of the 

1996 Act provides three options for 

determining industry approval of a new 

research and promotion program: (1) By 

a majority of those persons voting; (2) by 

persons voting for approval who 

represent a majority of the volume of the 

agricultural commodity; or (3) by a 

majority of those persons voting for 

approval who also represent a majority 


dwashington3 on PROD1PC60 with PROPOSALS2