[Federal Register Volume 74, Number 67 (Thursday, April 9, 2009)]
[Proposed Rules]
[Pages 16289-16293]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-8016]


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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.

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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 
<a href="/cdn-cgi/l/email-protection#294240444b4c5b4550074a4650695c5a4d48074e465f"><span class="__cf_email__" data-cfemail="d5bebcb8b7b0a7b9acfbb6baac95a0a6b1b4fbb2baa3">[email protected]</span></a>.

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

[[Page 16290]]

of the volume of the agricultural commodity. 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 an order. The 
Washington Red Raspberry Commission (WRRC) has recommended that the 
Department conduct a referendum in which approval of the Proposed Order 
would be based on a simple majority of the producers and importers 
voting in the referendum. The Department proposes that a referendum be 
conducted prior to the Proposed Order going into effect.
    This proposed rule would establish the procedures under which 
producers of raspberries for processing and importers of processed 
raspberries may vote on whether they want a processed raspberry 
promotion, research, and information program to be implemented. This 
proposal would add a new subpart which establishes procedures to 
conduct initial and future referenda. The proposed subpart covers 
definitions, voting instructions, use of subagents, ballots, the 
referendum report, and confidentiality of information.
    There are approximately 195 producers of raspberries for processing 
and 50 importers of processed raspberries who would be subject to the 
program and eligible to vote in the first referendum. The Small 
Business Administration, 13 CFR 121.201, defines small agricultural 
producers as those having annual receipts of $750,000 or less and small 
agricultural service firms as those having annual receipts of $7.0 
million or less. Under these criteria, the majority of producers and 
importers that would be affected by the referendum procedures would be 
considered small entities. Producers of raspberries for processing and 
importers of processed raspberries of less than 20,000 pounds per year 
would be exempt under this proposed Order.
    According to the proponent group, in 2006, there were 195 producers 
of raspberries for processing and 34 processors 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 
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%) and Canada (18%). It is unknown 
what percent of importers would qualify as small business. However, the 
recordkeeping and assessment remittance requirements would be minimal 
to importers since they are conducted by U.S. Customs and Border 
Protection Service (Customs) at the time of product entry into the 
United States.
    This proposed rule provides the procedures under which producers of 
raspberries for processing and importers of processed raspberries may 
vote on whether they want the Proposed Order to be implemented. In 
accordance with the provisions of the 1996 Act, subsequent referenda 
may be conducted, and it is anticipated that the proposed procedures 
would apply. There are approximately 195 producers of raspberries for 
processing and 50 importers of processed raspberries who would be 
eligible to vote in the first referendum. Producers of raspberries for 
processing and importers of processed raspberries of less than 20,000 
pounds per year would be exempt from assessments and not eligible to 
vote in the referendum.
    The Department will keep these individuals informed throughout the 
program implementation and referendum process to ensure that they are 
aware of and are able to participate in the program implementation 
process. USDA will also publicize information regarding the referendum 
process so that trade associations and related industry media can be 
kept informed.
    Voting in the referendum is optional. However, if producers and 
importers choose to vote, the burden of voting would be offset by the 
benefits of having the opportunity to vote on whether or not they want 
to be covered by the program.
    The information collection requirements contained in this proposed 
rule are designed to minimize the burden on producers and importers. 
This rule provides for a ballot to be used by eligible producers and 
importers to vote in the referendum. The estimated annual cost of 
providing the information by an estimated 195 producers of raspberries 
for processing and 50 importers of processed raspberries would be 
$195.00 for all producers or $1.00 per producer and $50.00 for all 
importers or $1.00 per importer.
    The Department considered requiring eligible voters to vote in 
person at various USDA offices across the country. The Department also 
considered electronic voting, but the use of computers is not 
universal. Conducting the referendum from one central location by mail 
ballot would be more cost effective and reliable. USDA will provide 
easy access to information for potential voters through a toll free 
telephone line.
    There are no federal rules that duplicate, overlap, or conflict 
with this rule.
    We have performed this Initial Regulatory Flexibility Analysis 
regarding the impact of this proposed rule on small businesses.

Paperwork Reduction Act

    In accordance with the OMB regulation, 5 CFR part 1320, which 
implements the Paperwork Reduction Act of 1995, 44 U.S.C. Chapter 35, 
the referendum ballot, which represents the information collection and 
recordkeeping requirements that may be imposed by this rule, has been 
submitted to OMB for approval.
    Title: Processed Raspberry Promotion, Research, and Information 
Order.
    OMB Number: 0581-NEW.
    Expiration Date of Approval: 3 years from OMB date of approval.
    Type of Request: New information collection for research and 
promotion programs.
    Abstract: The information collection requirements in this request 
are essential to carry out the intent of the 1996 Act, to provide the 
respondents the type of service they request, and to administer the 
Proposed Order. The ballot is needed for the referendum that will be 
held to determine whether producers and importers are in favor of the 
program. The information collected is used by USDA to determine whether 
a majority of the eligible producers and importers voting in a 
referendum approve of this program. Producers and importers of 20,000 
or more pounds of raspberries for processing or processed raspberries 
respectively, are eligible to vote in the referendum and shall be 
entitled to cast only one ballot in the referendum.

Referendum Ballot

    Estimate of Burden: Public reporting burden for this collection of 
information is estimated to average 0.25 hours per response for each 
producer and importer.
    Respondents: Producers and importers.
    Estimated Number of Respondents: 245.
    Estimated Number of Responses per Respondent: 1 every 7 years 
(0.14).
    Estimated Total Annual Burden on Respondents: 8.58 hours.

[[Page 16291]]

    The ballot will be added to the other information collections 
approved for use under OMB Number 0581-NEW.
    Comments: Comments are invited on: (a) Whether the proposed 
collection of information is necessary for the proper performance of 
the functions of the agency, including whether the information will 
have practical utility; (b) the accuracy of USDA's estimate of the 
burden of the proposed collection of information, including the 
validity of the methodology and assumptions used; (c) ways to enhance 
the quality, utility, and clarity of the information to be collected; 
and (d) 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 should reference OMB No. 0581-NEW and the Processed 
Raspberry Promotion, Research, and Information Order. Comments should 
be sent in care of Kimberly Coy 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 and 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. 
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 and at http://www.regulations.gov. All responses to this proposed rule will be 
summarized and included in the request for OMB approval. All comments 
will also become a matter of the public record.
    The Agricultural Marketing Service (AMS) is committed to complying 
with the E-Government Act, to promote the use of the Internet and other 
information technologies to provide increased opportunities for citizen 
access to Government information and services, and for other purposes.
    The estimated annual cost of providing the information by an 
estimated 195 producers of raspberries for processing and 50 importers 
of processed raspberries would be $195.00 for all producers or $1.00 
per producer and $50.00 for all importers or $1.00 per importer.
    A 60-day comment period is provided to allow interested persons to 
comment on this proposed information collection.

Background

    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 
Department received the proposal for a new order from the Washington 
Red Raspberry Commission (WRRC).
    The Proposed Order would provide for the development and financing 
of an effective and coordinated program of promotion, research, and 
consumer and industry information for processed raspberries in the 
United States. The program would be funded by an assessment levied on 
producers and importers (to be collected by Customs at time of entry 
into the United States) at an initial rate of one cent per pound. 
Producers of raspberries for processing and importers of processed 
raspberries of less than 20,000 pounds per year would be exempt from 
paying assessments. The assessments would be used to pay for promotion, 
research, and consumer and industry information; administration, 
maintenance, and functioning of the proposed National Raspberry 
Council; and expenses incurred by the Department in implementing and 
administering the Proposed Order, including referendum costs.
    Section 518 of the 1996 Act requires that a referendum be conducted 
among eligible producers of raspberries for processing and importers of 
processed raspberries to determine whether they favor implementation of 
the Order. That section also requires the Proposed Order to be approved 
by a simple majority of the producers and importers voting in the 
referendum.
    This proposed rule establishes the procedures under which producers 
of raspberries for processing and importers of processed raspberries 
may vote on whether they want the processed raspberry promotion, 
research, and information program to be implemented. There are 
approximately 245 eligible voters.
    This proposed rule would add a new subpart which would establish 
procedures to be used in this and future referenda. This subpart covers 
definitions, voting, instructions, use of subagents, ballots, the 
referendum report, and confidentiality of information.
    All written comments received in response to this rule by the date 
specified will be considered prior to finalizing this action. We 
encourage the industry to pay particular attention to the definitions 
to be sure that they are appropriate for the raspberry industry.

List of Subjects in 7 CFR Part 1208

    Administrative practice and procedure, Advertising, Consumer 
information, Marketing agreements, Processed raspberries, 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 as 
follows:
    1. Subpart B of 7 CFR part 1208 is proposed to be added to Title 7, 
Chapter XI of the Code of Federal Regulations to read as follows:

PART 1208--PROCESSED RASPBERRY PROMOTION, RESEARCH, AND INFORMATION 
ORDER

* * * * *
Subpart B--Referendum Procedures.
Sec.
1208.100 General.
1208.101 Definitions.
1208.102 Voting.
1208.103 Instructions.
1208.104 Subagents.
1208.105 Ballots.
1208.106 Referendum report.
1208.107 Confidential information.
1208.108 OMB control number.

    Authority:  7 U.S.C. 7411-7425; 7 U.S.C. 7401.

Subpart B--Referendum Procedures


Sec.  1208.100  General.

    Referenda to determine whether eligible producers of raspberries 
for processing and importers of processed raspberries favor the 
issuance, amendment, suspension, or termination of the Processed 
Raspberry Promotion, Research, and Information Order shall be conducted 
in accordance with this subpart.



Sec.  1208.101  Definitions.

    (a) Administrator means the Administrator of the Agricultural 
Marketing Service, with power to delegate, or any officer or employee 
of the U.S. Department of Agriculture to whom authority has been 
delegated or may hereafter be delegated to act in the Administrator's 
stead.
    (b) Department means the U.S. 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.
    (c) Eligible producer means any person who grows 20,000 pounds or

[[Page 16292]]

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.
    (d) Eligible importer means 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 as the importer 
of record for such processed raspberries that are identified in the 
Harmonized Tariff Schedule of the United States by the numbers 
0811.20.20.20, during the representative period. Importation occurs 
when processed raspberries originating outside of the United States are 
released from custody by Customs and introduced into the stream of 
commerce in the United States. Included are persons who hold title to 
foreign-produced processed raspberries immediately upon release by 
Customs, as well as any persons who act on behalf of others, as agents 
or brokers, to secure the release of processed raspberries from Customs 
when such processed raspberries are entered or withdrawn for 
consumption in the United States.
    (e) Raspberries mean and include all kinds, varieties, and hybrids 
of cultivated raspberries of the genus ``Rubus'' grown in or imported 
into the United States.
    (f) 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.
    (g) Order means the Processed Raspberry Promotion, Research, and 
Information Order.
    (h) Person means any individual, group of individuals, partnership, 
corporation, association, cooperative, or any other legal entity. For 
the purpose of this definition, the term ``partnership'' includes, but 
is not limited to:

    (1) A husband and a wife who have title to, or leasehold 
interest in, a raspberry farm as tenants in common, joint tenants, 
tenants by the entirety, or, under community property laws, as 
community property; and
    (2) So-called ``joint ventures'' wherein one or more parties to 
an agreement, informal or otherwise, contributed land and others 
contributed capital, labor, management, or other services, or any 
variation of such contributions by two or more parties.

    (i) Referendum agent or agent means the individual or individuals 
designated by the Secretary to conduct the referendum.
    (j) Representative period means the period designated by the 
Department.
    (k) United States or U.S. means collectively the 50 states, the 
District of Columbia, the Commonwealth of Puerto Rico, and the 
territories and possessions of the United States.



Sec.  1208.102  Voting.

    (a) Each eligible producer of raspberries for processing and 
eligible importer of processed raspberries shall be entitled to cast 
only one ballot in the referendum. However, each producer in a 
landlord/tenant relationship or a divided ownership arrangement 
involving totally independent entities cooperating only to process 
raspberries, in which more than one of the parties is a producer or 
importer, shall be entitled to cast one ballot in the referendum 
covering only such producer or importer's share of the ownership.
    (b) Proxy voting is not authorized, but an officer or employee of 
an eligible corporate producer or importer, or an administrator, 
executor, or trustee or an eligible entity may cast a ballot on behalf 
of such entity. Any individual so voting in a referendum shall certify 
that such individual is an officer or employee of the eligible entity, 
or an administrator, executive, or trustee of an eligible entity and 
that such individual has the authority to take such action. Upon 
request of the referendum agent, the individual shall submit adequate 
evidence of such authority.
    (c) All ballots are to be cast by mail as instructed by the 
Department.



Sec.  1208.103  Instructions.

    The referendum agent shall conduct the referendum, in the manner 
provided in this subpart, under the supervision of the Administrator. 
The Administrator may prescribe additional instructions, not 
inconsistent with the provisions of this subpart, to govern the 
procedure to be followed by the referendum agent. Such agent shall:
    (a) Determine the period during which ballots may be cast.
    (b) Provide ballots and related material to be used in the 
referendum. The ballot shall provide for recording essential 
information, including that needed for ascertaining whether the person 
voting, or on whose behalf the vote is cast, is an eligible voter.
    (c) Give reasonable public notice of the referendum:
    (1) By utilizing available media or public information sources, 
without incurring advertising expense, to publicize the dates, places, 
method of voting, eligibility requirements, and other pertinent 
information. Such sources of publicity may include, but are not limited 
to, print and radio; and
    (2) By such other means as the agent may deem advisable.
    (d) Mail to eligible producers and importers whose names and 
addresses are known to the referendum agent, the instructions on 
voting, a ballot, and a summary of the terms and conditions of the 
proposed Order. No person who claims to be eligible to vote shall be 
refused a ballot.
    (e) At the end of the voting period, collect, open, number, and 
review the ballots and tabulate the results in the presence of an agent 
of a third party authorized to monitor the referendum process.
    (f) Prepare a report on the referendum.
    (g) Announce the results to the public.


Sec.  1208.104   Subagents.

    The referendum agent may appoint any individual or individuals 
necessary or desirable to assist the agent in performing such agent's 
functions of this subpart. Each individual so appointed may be 
authorized by the agent to perform any or all of the functions which, 
in the absence of such appointment, shall be performed by the agent.



Sec.  1208.105  Ballots.

    The referendum agent and subagents shall accept all ballots cast. 
However, if an agent or subagent deems that a ballot should be 
challenged for any reason, the agent or subagent shall endorse above 
their signature, on the ballot, a statement to the effect that such 
ballot was challenged, by whom challenged, the reasons therefore, the 
results of any investigations made with respect thereto, and the 
disposition thereof. Ballots invalid under this subpart shall not be 
counted.



Sec.  1208.106  Referendum report.

    Except as otherwise directed, the referendum agent shall prepare 
and submit to the Administrator a report on the results of the 
referendum, the manner in which it was conducted, the extent and kind 
of public notice given, and other information pertinent to the analysis 
of the referendum and its results.


[[Page 16293]]

Sec.  1208.107  Confidential information.

    The ballots and other information or reports that reveal, or tend 
to reveal, the vote of any person covered under the Order and the voter 
list shall be strictly confidential and shall not be disclosed.



Sec.  1208.108  OMB control number.

    The control number assigned to the information collection 
requirement in this subpart by the Office of Management and Budget 
pursuant to the Paperwork Reduction Act of 1995, 44 U.S.C. Chapter 35 
is OMB control number 0581-NEW.

    Dated: April 3, 2009.
Robert C. Keeney,
Acting Associate Administrator.
 [FR Doc. E9-8016 Filed 4-8-09; 8:45 am]
BILLING CODE 3410-02-P


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