Processed Raspberry Promotion, Research, and Information Order

As Enacted ( Federal Register)

Cited authorities 5

Cited in

Federal Register, Volume 77 Issue 89 (Tuesday, May 8, 2012)

Federal Register Volume 77, Number 89 (Tuesday, May 8, 2012)

Rules and Regulations

Pages 26911-26929

From the Federal Register Online via the Government Printing Office www.gpo.gov

FR Doc No: 2012-11060

Page 26911

DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 1208

Doc. No. AMS-FV-07-0077; FV-07-705-FR

RIN 0581-AC79

Processed Raspberry Promotion, Research, and Information Order

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Final rule.

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SUMMARY: This rule establishes the Processed Raspberry Promotion, Research, and Information Order (Order). The program will be implemented under the Commodity Promotion, Research, and Information Act of 1996 (1996 Act). Under the Order, producers of raspberries for processing and importers of processed raspberries will pay an assessment of up to one cent per pound, with the initial assessment rate being one cent per pound, which shall be paid to the National Processed Raspberry Council (Council). Producers and importers of less than 20,000 pounds annually of raspberries for processing and processed raspberries, respectively, will be exempt from the assessment. The U.S. Department of Agriculture (Department) conducted a referendum between June 8 and June 24, 2011 to ascertain whether the persons to be covered by and assessed under the Order favored the implementation of the program. In the referendum, 88 percent of those who voted favored implementation of the Order. Producers and importers of 20,000 or more pounds of raspberries for processing or processed raspberries respectively, during the calendar year January 1 through December 31, 2010, were eligible to vote in the referendum. The program was proposed by the Washington Red Raspberry Commission (WRRC).

DATES: Effective May 9, 2012 Collection of assessments (Sec. Sec. 1208.50 through 1208.53) and applicable reporting and recordkeeping (Sec. Sec. 1208.60 through 1208.62) will begin September 5, 2012.

FOR FURTHER INFORMATION CONTACT: Kimberly Coy, Marketing Specialist, Research and Promotion Division, Fruit and Vegetable Programs, AMS, USDA, 1400 Independence Avenue SW., Room 1406, Stop 0244, Washington, DC 20250-0244; telephone: (202) 720-9915 or (888) 720-9917 (toll free); or facsimile: (202) 205-2800; or email: Kimberly.Coy@ams.usda.gov.

SUPPLEMENTARY INFORMATION: This rule is issued pursuant to the Commodity Promotion, Research, and Information Act of 1996 (1996 Act) (7 U.S.C. 7411-7425).

As part of this rulemaking, a proposed rule was published in the Federal Register on April 9, 2009 74 FR 16289, with a 60-day comment period which closed on June 8, 2009. Twenty-one comments were received. A second proposed rule was published in the Federal Register on February 8, 2010 75 FR 6131 addressing the comments. In addition, a separate final rule on referendum procedures was published in the Federal Register on February 8, 2010 75 FR 6089. A notice delaying the referendum at the request of the industry was published in the Federal Register on March 19, 2010 75 FR 13238. A third proposed rule announcing the referendum was published in the Federal Register on May 5, 2011 76 FR 25618.

The Department conducted a referendum from June 8 through June 24, 2011 to ascertain whether the persons to be covered by and assessed under the Order favored the implementation of the program prior to it going into effect. In the referendum, 88 percent of those who voted favored implementation of the Order. Producers and importers of 20,000 or more pounds of raspberries for processing or processed raspberries respectively, during the calendar year January 1 through December 31, 2010, were eligible to vote in the referendum. The referendum was conducted by mail ballot.

Since publication of the proposed rule, published February 8, 2010, the industry worked with the 484(f) Committee (Committee) of the United States International Trade Commission (USITC) which is the committee that reviews requests for changes to the statistical reporting requirements of the HTS for imports, to determine the feasibility of separating red raspberry juice and juice concentrate from all other juice and juice concentrate, red raspberry paste and purees from all other pastes and purees, and red raspberry preserves from all other fruit preserves. According to the Committee, this separation was feasible. Accordingly, the Committee approved the petition for processed red raspberry statistical breakout in the Harmonized Tariff Schedule. The new number assigned to red raspberry juice and juice concentrate is 2009.80.60.55, the new number assigned to processed red raspberry pastes and purees is 2007.99.65.10, and the new number assigned to red raspberry preserves is 2008.99.20.20, effective July 1, 2010. The aforementioned changes are reflected in this final rule. Assessment collected for imported red raspberry preserves will not begin until a conversion factor is developed.

Executive Order 12866

This rule has been determined to be not significant for purposes of Executive Order 12866 and therefore has not been reviewed by the Office of Management and Budget (OMB).

Executive Order 12988

This rule has been reviewed under Executive Order 12988, Civil Justice Reform. It is not intended to have retroactive effect. Section 524 of the 1996 Act provides that the 1996 Act shall not affect or preempt any other Federal or state law authorizing promotion or research relating to an agricultural commodity.

Under section 519 of the 1996 Act, a person subject to an order may file a written petition with the Department stating that an order, any provision of an order, or any obligation imposed in connection with an order, is not established in accordance with the law, and requesting a modification of an order or an exemption from an order. Any petition filed challenging an order, any provision of an order, or any obligation imposed in connection with an order, shall be filed within two years after the effective date of an order, provision, or obligation subject to

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challenge in the petition. The petitioner will have the opportunity for a hearing on the petition. Thereafter, the Department will issue a ruling on the petition. The 1996 Act provides that the district court of the United States for any district in which the petitioner resides or conducts business shall have the jurisdiction to review a final ruling on the petition, if the petitioner files a complaint for that purpose not later than 20 days after the date of the entry of the Department's final ruling.

Executive Order 13132

This rule has been reviewed under Executive Order 13132, Federalism. This Executive Order directs agencies to construe, in regulations and otherwise, a Federal Statute to preempt State law only when the statute contains an express preemption provision. Section 524 of the 1996 Act provides that the Act shall not affect or preempt any other Federal or State law authorizing promotion or research relating to an agricultural commodity.

The WRRC and the Oregon Raspberry and Blackberry Commission (ORBC), the principal producers of processed raspberries, both administer State marketing orders, which require all producers of raspberries to pay assessments to support the health of their respective industries. Both the WRRC and ORBC invest funds into research programs at their land-

grant universities and other research institutions to study disease, pest control, and varietal development. In addition to developing and funding production research, they also fund marketing and promotion programs and seek to foster education and communication between producers. However, WRRC stated that it has not been able to generate the funds necessary, nor has the ORBC or international raspberry organizations, to support the marketing efforts needed to help expand processed raspberry consumption and increase the demand for processed raspberries. In order to manage increased production, increased competition, and changing consumer habits, the WRRC believes that a more extensive marketing program is needed. The WRRC and ORBC believe that a national research and promotion program would fund the promotional aspect necessary to stay competitive and would place all domestic producers and importers on an equal playing field with each investing a fair share in promoting processed raspberries. The WRRC and ORBC will continue to fund processed raspberry research in areas not likely to be the focus of the national program.

In accordance with the 1996 Act, this rule will not preempt any State-legislated programs. Further, section 1208.52(h) of the Order provides for credit of assessments for those individuals who contribute to local, regional, or State organizations that engage in similar generic research, promotion, and information programs as partial fulfillment of assessments due to the Council subject to approval of the Secretary, for expenditure on generic research, promotion and information programs conducted within the United States.

The program is not intended to duplicate any State program. Considerable attention has been made to involve producers in discussions regarding future program development and administration and what the State commissions will look like subsequent to the implementation of a national program. It is expected that farm related activities, such as production research, will continue to be funded by the State organizations and market development functions, such as nutritional research and marketing programs, will shift to the Order.

Not only were the States informed throughout the development of the national program, they were instrumental in the processed raspberry industry's decision to institute a national program.

In 2007, representatives from the WRRC were among other raspberry industry representatives who met with AMS representatives to discuss the possibility of implementing a national processed raspberry promotion, research, and information program. WRRC representatives participated in the development of the provisions of the Order during these meetings and with direct communication with the ORBC.

Regulatory Flexibility Act Analysis

In accordance with the Regulatory Flexibility Act (RFA) 5 U.S.C. 601-612, AMS is required to examine the impact of the rule on small entities. The purpose of the RFA is to fit regulatory actions to the scale of businesses subject to such actions so that small businesses will not be disproportionately burdened.

The Small Business Administration defines, in 13 CFR part 121, small agricultural producers as those having annual receipts of no more than $750,000 and small agricultural service firms (handlers and importers) as those having annual receipts of no more than $7.0 million. Under these criteria, the majority of the producers and handlers that would be affected by this Order would be considered small entities, while most importers would not. Further, an estimated ten qualified organizations certified by the Secretary for nomination purposes, would be expected to generally consist of entities reflecting such sizes also. Producers and importers of less than 20,000 pounds per year of raspberries for processing and processed raspberries respectively shall be exempt under this Order. Five organic producers and importers are also expected to be exempt from assessments. The number of entities assessed under the program would be approximately 245. Estimated revenue is expected at $1.2 million of which 43 percent is expected from imported product and 57 percent from domestic product.

According to the WRRC, in 2010, there were approximately 195 producers of raspberries for processing and 34 processors (first handlers) of processed raspberries in Oregon and Washington States, which are the principal growing areas in the United States for raspberries destined for processing. Approximately 95 percent of the producers and 100 percent of the raspberry processors qualified under the definition for small business owners. Although California is a significant producer of raspberries, virtually all harvested product is destined for the fresh market. In 2010, there were approximately 50 importers of processed raspberries. Based on the U.S. Department of Commerce, U.S. Census Bureau, Foreign Trade Statistics, in 2010 two countries accounted for 95 percent of the processed raspberries imported into the United States. These countries and their share of the imports are: Chile (78 percent) and Canada (17 percent).

The 1996 Act authorizes generic programs of promotion, research, and information for agricultural commodities. Congress found that it is in the national public interest and vital to the welfare of the agricultural economy of the United States to maintain and expand existing markets and develop new markets and uses for agricultural commodities through industry-funded, government-supervised, generic commodity promotion programs.

The WRRC submitted this Order to: (1) Develop and finance an effective and coordinated program of research, promotion, industry information, and consumer education regarding processed raspberries; (2) strengthen the position of the processed raspberry industry; and (3) maintain, develop, and expand existing markets for processed raspberries.

While the Order imposes certain recordkeeping requirements on first

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handlers, this information may be compiled from records currently maintained. First handlers will collect and remit the assessments on domestic raspberries for processing to the Council. First handler responsibilities will include accurate recordkeeping and accounting on all raspberries purchased or contracted for processing including the number of pounds handled, the names of their producers, and the date's raspberries were purchased. The forms require the minimum information necessary to effectively carry out the requirements of the program, and their use is necessary to fulfill the intent of the 1996 Act. Such records must be retained for at least two years. This information is already maintained as a normal business practice. In addition, most of these entities currently remit assessments under either the Washington or Oregon State programs, the additional recordkeeping and submission impact will be minimal.

There is also a minimal paperwork burden on producers. The Order requires producers to keep records and to provide information to the Council or the Department when requested. However, it is not anticipated that producers will be required to submit forms to the Council other than for nomination to the Council. If, for example, the Council needs information from a producer as part of the Council's compliance program, the information will need to be obtained through an audit of the producer's records instead of having the producer complete and submit paperwork.

In addition, there is a minimal burden on importers. The import assessments will be collected by U.S. Customs and Border Protection (Customs) at time of entry into the United States. Importers will be required to keep records and to provide information to the Council or the Secretary of Agriculture (Secretary) when requested. However, it is not anticipated that importers will be required to submit forms to the Council for assessment collection because Customs conducts recordkeeping and assessment remittance at the time of product entry into the United States. Importers who seek nomination to serve on the Council will be required to complete a background form which will be submitted to the Secretary.

Foreign producers from countries exporting a minimum of three million pounds of raspberries for processing based on a three-year average to the U.S. and at-large members seeking nomination to serve on the Council will also be required to complete a background form which shall be submitted to the Secretary.

The estimated annual cost of providing the information to the Council by an estimated 297 respondents (195 producers, 50 importers, 34 first handlers/processors, 2 foreign producers, 5 organic producers and importers, 10 certified organizations (for nomination purposes), and 1 at-large member) would be $9,141.

Section 518 of the 1996 Act provides for referenda to ascertain approval of the Order to be conducted either prior to its going into effect or within three years after assessments first begin under the Order. An initial referendum was conducted prior to putting this Order in effect. Eighty-eight percent of producers and importers who voted favored implementation of the Order.

Every seven years, the Department shall conduct a referendum to determine whether producers of raspberries for processing and importers of processed raspberries favor the continuation, suspension, or termination of the Order. In addition, the Department may conduct a referendum at any time; at the request of 10 percent or more of all eligible producers of raspberries for processing and processed raspberries importers required to pay assessments; or if the Council requests that the Secretary hold a referendum.

The United States is among the leading producers of raspberries. Raspberries are grown in 49 states and are harvested late June to mid August. The 2007 Census of Agriculture indicates that about 80 percent of the U.S. raspberry acreage was in California, Oregon, and Washington.

According to the United States Department of Agriculture's National Agricultural Statistics Service (NASS) and the Foreign Agricultural Service (FAS), in 2010, 148,010 million pounds of raspberries (fresh) with a combined value approaching $258 million (value of utilized production) were produced in California, Oregon, and Washington, the three most productive States for growing raspberries in the United States. In 2009, 173,700 million pounds were produced and utilized, at a value of almost $361 million. California's crop is predominately delivered to the fresh market, while Oregon and Washington are the principal producers of processed raspberries.

Domestic production varies from year to year due to climatic conditions and field health. Over the last fifteen years, total domestic production of raspberries delivered to processors in the United States (i.e., production utilized for processing) has increased from 47.5 million pounds in 1991 to almost 65 million pounds in 2010 with most recent years averaging approximately 64 million pounds. Washington continues to be the major supplier of processed raspberries to the domestic market, although its market share declined from 72 percent to 37 percent between 2001 and 2010. In comparison, imported processed raspberries surged from 7.5 to 53.8 million pounds from 1991 to 2005 and then decreased to 50.3 million pounds in 2010. Chile, which is the predominate importer of processed raspberries to the United States, supplied just over 24 percent of the total U.S. market in 2010.

Domestic uses of processed raspberries include further processing into juices, jellies, baked goods, and consumer retailer packs. After averaging approximately 184 million pounds for the period 2008 to 2010, approximately 194 million pounds of processed raspberries were imported into the United States and fresh raspberries within the United States were utilized for processing in 2010. These totals were calculated by using imports of frozen raspberries from FAS and NASS reports of production utilized for processing in Oregon, Washington, and California. Because of the way imports are currently reported, and because of the way NASS reports raspberry data, the totals represent the best information currently available.

The following countries are major exporters of raspberries to the United States: Canada, Chile, China, France, and Serbia. Canada and Chile represented 95 percent share of total import tonnage in the domestic United States market for 2010, with 17 and 78 percent respectively.

The same growing conditions and harvesting period apply to the Pacific Northwest and British Columbia, the major raspberry growing region in Canada. Exports of processed frozen raspberries from British Colombia to the United States ranged from 2.9 million metric tons to 5.7 million metric tons over the past five years.

Contra-season raspberry production in the southern hemisphere is primarily located in Chile, with a harvest season beginning in December and continuing into February. However, processed raspberries are imported into the United States throughout the year.

The Order authorizes a fixed assessment to be paid by producers of raspberries for processing and importers of processed raspberries at a rate of up to one cent per pound, with the initial assessment rate being one cent per pound. Imported processed raspberries covered under the program will have a quantity associated with it in either kilograms or liters. One pound is equal

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to .45359237 kilograms. In addition, one pound is equal to .45359237 liters of water weight. For processed red raspberry juice and juice concentrate, the Department has decided to use this conversion factor for calculating the assessment because calculating the weight of one liter of raspberry juice and juice concentrate would be costly and impractical. Therefore, the assessment rate for imported processed raspberries will be $.022 per kilogram/liter.

The factors for calculating the assessment on imported processed raspberries include the (1) HTS classification number, (2) conversion factor from pound to kilogram/liter, (3) assessment rate as established under the Order, and (4) the ratio requested by the WRRC for HTS classification numbers 2009.80.60.55 and 2007.99.65.10 to HTS code 0811.20.20.25.

Imported processed raspberries covered under the program will have a quantity associated with it in either kilograms or liters. Therefore, the Department converted the assessment rate from dollars per pound to dollars per kilogram. One cent per pound is equivalent to $.0045 per kilogram/liter. The Department then calculated the dollar per kilogram/

liter assessment rate based on the ratios requested by the WRRC. For example $.022 per kilogram/liter based on a 1:1 ratio will still be $.022 per kilogram/liter. However, $.022 per kilogram/liter based on a 6.8:1 ratio, would be $.1496 per kilogram/liter.

Examples of calculating the assessment on processed red raspberry juice and juice concentrate, processed red raspberries, and red raspberries paste and purees are as follows:

Example I: Processed Red Raspberries in Kilograms With a 1:1 Ratio

To calculate the assessment for processed raspberries products in HTS codes 2007.99.65.10, the following example illustrates a typical calculation.

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

Ratio (1:1).............................. x 1

------------------------------

Weight to Ratio Equivalent............... ... 10,000

Assessment Rate (dollars per kilograms).. x $.0022

------------------------------

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

Example II: Processed Red Raspberries in Liters With a 6.8:1 Ratio

To calculate the assessment for processed raspberries products in HTS code 2009.80.60.55, the following example illustrates a typical calculation.

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

Ratio (6.8:1)............................ x 6.8

------------------------------

Weight to Ratio Equivalent............... ... 68,000

Assessment Rate (dollars per liters)..... x $.022

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

The assessment rate will be reviewed, and increased or decreased as recommended by the Council and approved by the Secretary after the first referendum is conducted as stated in Sec. 1208.71(a). Such an increase or decrease may occur not more than once annually. Any change in the assessment rate shall be subject to rulemaking by the Department, and will be reviewed, and increased or decreased by the Secretary through rulemaking as recommended by the Council. Any change in the assessment rate shall be announced by the Council at least 30 days prior to going into effect. The maximum assessment rate authorized is one cent per pound.

At the assessment rate of up to one cent per pound, with the initial assessment rate being one cent per pound, the Council shall collect approximately $1.2 million annually based on an estimated 120 million pound supply from domestic raspberries for processing and imports of processed raspberries. The domestic supply represents approximately 57 percent of the total and imports represent 43 percent.

The Order exempts producers and importers of less than 20,000 pounds annually of raspberries for processing and processed raspberries respectively. A review of producer delivery statistics from Oregon and Washington States indicate that around 15 percent of all producers would have been exempted from assessment in 2010 from the research and promotion program based on a 20,000 pounds exemption threshold. Also, 100 percent organic producers and importers shall be exempt from assessment. Section 515 of the 1996 Act provides for the establishment of a board or council consisting of producers, importers, and others in the marketing chain as appropriate.

The Order provides for the establishment of the National Processed Raspberry Council (Council) to administer the Order under AMS oversight. The Secretary will appoint members to the Council from nominees submitted in accordance with the Order. The WRRC proposed that the Council be composed of 13 members and their alternates. The Council membership will be as follows: six producer members of raspberries for processing from States producing a minimum of three million pounds of raspberries delivered for processing; one producer member of raspberries for processing representing all other States that produce less than the minimum of three million pounds of raspberries delivered for processing; three processed raspberry importer members; two foreign producers from countries exporting a minimum of three million pounds of raspberries for processing to the U.S. based on a three-year average; and one at-large member recommended by the Council. The distribution of producer member of raspberries for processing positions among the States producing a minimum of three million pounds of raspberries shall be proportional to the average of the total pounds delivered to the processor for processing over the previous three years. The States that provide less than three million pounds will be combined into one region and will have one producer representative.

Under the Order, the Council members and alternates will serve for a term of three years and be able to serve a maximum of two consecutive terms. When the Council is first established, four producer members, two importers, one of the two foreign producers, and the at-large member and their respective alternates will be assigned initial terms of three years; and, three producer members, one importer member, and the second foreign producer and their respective alternates will serve an initial term of two years. Thereafter, each of these positions will carry a full 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 will represent those entities in the United States. The United States is defined to include collectively the 50 States, the District of Columbia, the Commonwealth of Puerto Rico and the territories and possessions of the United States.

The nominations for the six producer and alternate members from States producing a minimum three year average of three million pounds of raspberries delivered for processing will be submitted to the Council in the following manner: (1) For those States that have a State raspberry commission or State marketing order, the State raspberry commission or committee will nominate producers and their alternates to serve; or (2) for those States that do not have a State raspberry commission or State marketing order, the Council will seek nominations from the State

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Departments of Agriculture for members and alternates from the specific States.

For those States producing a minimum three year average of three million pounds of raspberries delivered for processing that have a State raspberry commission or State marketing order, the State raspberry commission or committee nominations will be sent to the Council and placed on a ballot which will then be sent to producers in the State for a vote. The nominee for member will have received the highest number of votes cast. The person with the second highest number of votes cast will be the nominee for alternate. The persons with the third and fourth place highest number of votes cast will be designated as additional nominees for consideration by the Secretary. Once the Council has received all of the nominations from commissions or committees, the information will be submitted to the Secretary for appointment. Nominations for the initial Council will be handled by the Department. Subsequent nominations will be handled by the Council staff and shall be submitted to the Secretary not less than 90 days prior to the expiration of the term of office.

If the Department determines that there are no State raspberry commissions or State marketing orders from States producing a minimum three year average of three million pounds of raspberries delivered for processing, the Council will seek nominations from the State Departments of Agriculture for members and alternates from the specific States. The State Departments of Agriculture will have the opportunity to participate in nomination caucuses and may directly submit as a group, a single slate of nominations to the Department for the six producer positions and producer alternate positions for the initial Council. Subsequent nominations shall be submitted to the Council and will be handled by the Council staff who in turn shall submit those nominations to the Secretary not less than 90 days prior to the expiration of the term of office.

The distribution of the six producer and alternate seats will be proportional to the percentage determined by the average of the total pounds produced and delivered to processors for processing over the previous three years divided by the average total pounds produced over the previous three years. For example, if Washington State and Oregon are the only two States producing a minimum of 3 million pounds each, and Washington's previous three year average is 62.4 million pounds and Oregon's previous three year average is 6.7 million pounds with the average total pounds for the previous three years being 69.1 million pounds, Washington would have 90 percent of the production and Oregon would have 10 percent of the production. Therefore, Washington would obtain five out of the six seats and Oregon would receive one seat.

The nominations for the one raspberry producer of raspberries for processing and alternate member, who represents all other States producing less than a minimum three year average of three million pounds of raspberries delivered for processing, which constitutes a region will be submitted to the Council in the following manner: (1) For those States that have a State raspberry commission or State marketing order, the State raspberry commission or committee will nominate producers and their alternates to serve; or (2) for those States that do not have a State raspberry commission or State marketing order, the Council will seek nominations from the State Departments of Agriculture for the member and alternate from the specific States.

For those States producing less than a minimum three year average of three million pounds of raspberries delivered for processing that have a State raspberry commission or State marketing order, the State raspberry commission or committee nominations will be sent to the Council and placed on a ballot which will then be sent to producers in the region for a vote. The nominee for member will have received the highest number of votes cast. The person with the second highest number of votes cast will be the nominee for alternate. The persons with the third and fourth place highest number of votes cast will be designated as additional nominees for consideration by the Secretary. Once the Council has received all of the nominations from commissions or committees, the information will be submitted to the Secretary for appointment. Nominations for the initial Council will be handled by the Department. Subsequent nominations will be handled by the Council staff and shall be submitted to the Secretary not less than 90 days prior to the expiration of the term of office.

If the Department determines that there are no State raspberry commissions or State marketing orders from States producing less than a minimum three year average of three million pounds of raspberries delivered for processing, the Council will seek nominations from the State Departments of Agriculture for members and alternates from the specific States. The State Departments of Agriculture will have the opportunity to participate in nomination caucuses and will directly submit as a group a single slate of nominations to the Department for the producer position and the producer alternate position for the initial Council. Subsequent nominations shall be submitted to the Council and will be handled by the Council staff who in turn shall submit those nominations to the Secretary not less than 90 days prior to the expiration of the term of office.

Nominations for the three processed raspberry importer member positions and their alternates will be made by qualified national organizations representing importers. Two nominees for each member and each alternate position will be submitted to the Secretary for consideration.

All qualified national organizations representing importers will have the opportunity to participate in nomination caucuses and will submit as a group a single slate of nominations to the Secretary for the importer positions and the importer alternate positions on the Council.

Eligible organizations must submit nominations to the Department not less than 90 days prior to the expiration of the term of office. To become a qualified national organization representing importers under the Order, each such organization shall be required to meet the following criteria: (1) Any organization representing importers must represent a substantial number of importers who market a substantial volume of raspberries for processing; (2) it must have a history of stability and permanency and have been in existence for more than one year; (3) it must promote processed raspberry importers' welfare; and (4) it must derive a portion of its operating funds from importers.

If the Department determines that there are no qualified national organizations representing importers, individuals who have paid their assessments to the Council in the most recent fiscal year, or for the initial Council, those that imported processed raspberries into the U.S. in the most recent fiscal year, may directly submit nominations to the Department for the initial Council. Subsequent nominations shall be submitted to the Council and will be handled by the Council staff who in turn shall submit those nominations to the Secretary not less than 90 days prior to the expiration of the term of office.

Nominations for the two foreign producer member positions and their alternates will be made by qualified organizations representing foreign producers. Two nominees for each member and each alternate position will

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be submitted to the Secretary for consideration.

All qualified organizations representing foreign producers will have the opportunity to participate in nomination caucuses and will submit as a group a single slate of nominations per country to the Secretary for foreign producer positions and the foreign producer alternate positions on the Council.

Eligible organizations must submit nominations to the Department not less than 90 days prior to the expiration of the term of office. To become a qualified organization representing foreign producers under the Order, each such organization shall be required to meet the following criteria: (1) Any organization representing foreign producers must represent a substantial number of foreign producers who market or produce a substantial volume of raspberries for processing; (2) it must have a history of stability and permanency and have been in existence for more than one year; (3) it must promote processed raspberry foreign producers' welfare; (4) it must derive a portion of its operating funds from foreign producers; and (5) must be from a country exporting a minimum of three million pounds of raspberries for processing to the U.S. based on a three-year average.

If the Department determines that there are no qualified organizations representing foreign producer interests, individual foreign producers may directly submit nominations to the Department for the initial Council. Subsequent nominations shall be submitted to the Council and will be handled by the Council staff who in turn shall submit those nominations to the Secretary not less than 90 days prior to the expiration of the term of office.

In recommending the at-large member and alternate, the Council may give consideration to nutrition health professionals and others interested in the raspberry industry. Nominations for the at-large member and alternate will be conducted at a Council meeting by the Council staff and shall be submitted by the Council to the Secretary for approval not less than 90 days prior to the expiration of the term of office. Nominations for the initial Council will be handled by the Department.

The 1996 Act provides that to ensure fair and equitable representation, the composition of a board or council shall reflect the geographic distribution of the production of the agriculture commodity in the United States and the quantity or value of the agriculture commodity imported into the United States. The Order states that at least once every five years, but not more frequently than once every three years, the Council will review the geographic distribution of United States production of processed raspberries and the quantity and source of processed raspberry imports. If warranted, the Council will recommend to the Secretary that membership on the Council be altered to reflect any changes in geographic distribution of domestic raspberry production and the quantity of imports. Also, if the level of imports increases or decreases importer members and alternates may be added or reduced on the Council. However, the foreign producer seats will remain the same regardless of the volume of imports from importing countries.

The Order provides that all officers, employees, and agents of the Department and of the Council are required to keep confidential all information obtained from persons subject to the Order. This information shall be disclosed only if the Department considers the information relevant, and the information is revealed in a judicial proceeding or administrative hearing brought at the direction or on the request of the Department or to which the Department or any officer of the Department is a party. However, the issuance of general statements based on reports or on information relating to a number of persons subject to the Order shall be permitted, if the statements do not identify the information furnished by any person. Finally, the publication, by direction of the Department, of the name of any person violating the Order and a statement of the particular provisions of the Order violated by the person shall be allowed.

Recordkeeping and reporting requirements for the raspberry promotion, research, and information program shall be designed to minimize the burden on the raspberry industry.

The estimated total cost of providing information to the Council by all respondents would be $9,141. This total has been estimated by multiplying 277 total hours required for reporting and recordkeeping by $33, the average mean hourly earnings of various occupations involved in keeping this information. Data for computation of this hourly rate was obtained from the U.S. Department of Labor Statistics.

With regard to alternatives to this rule, the 1996 Act itself does provide for authority to tailor a program according to the individual needs of an industry. Provision is made for permissive terms in an order in section 516 of the 1996 Act, and other sections provide for alternatives. Section 514 of the 1996 Act provides for orders applicable to (1) producers, (2) first handlers and other persons in the marketing chain as appropriate, and (3) importers (if imports are subject to assessment). Section 516 states that an order may include an exemption of de minimis quantities of an agricultural commodity; different payment and reporting schedules; coverage of research, promotion, and information activities to expand, improve, or make more efficient the marketing or use of an agricultural commodity in both domestic and foreign markets; provision for reserve funds; provision for credits for generic activities for those individuals who contribute to other similar generic research, promotion, and information programs at State, regional or local level; and assessment of imports. In addition, section 518 of the 1996 Act provides for referenda to ascertain approval of an order to be conducted either prior to its going into effect or within three years after assessments first begin under the order. An order also may provide for its approval in a referendum to be based upon (1) a majority of those persons voting; (2) persons voting for approval who represent a majority of the volume of the agricultural commodity; or (3) a majority of those persons voting for approval who also represent a majority of the volume of the agricultural commodity. Section 515 of the 1996 Act provides for establishment of a council from among producers, first handlers, and others in the marketing chain as appropriate and importers, if importers are subject to assessment.

The WRRC and ORBC both administer State marketing orders, which require all producers of raspberries to pay assessments to support the health of their respective industries. According to WRRC, the two commissions have developed a good working relationship with each other over the years. Both the WRRC and ORBC invest funds into research programs at their land-grant universities and other research institutions to study disease, pest control, and varietal development. In addition to developing and funding production research, they also fund marketing and promotion programs and seek to foster education and communication between producers. However, the WRRC, stated that it has not been able to generate the funds necessary, nor has the ORBC or international raspberry organizations, to support the marketing efforts needed to help expand processed raspberry consumption and increase the demand for processed raspberries. In order to

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manage increased production, increased competition, and changing consumer habits, the WRRC believes that a more extensive marketing program is needed. The WRRC and ORBC believe that a national research and promotion program will fund the promotional aspect necessary to stay competitive and shall place all domestic producers and importers on an equal playing field with each investing a fair share in promoting processed raspberries. The Council may provide credits of assessments for those individuals who contribute to local, regional, or State organizations engaged in similar generic research, promotion, and information programs as applied to assessment due to the Council subject to approval of the Secretary, for expenditure on generic research, promotion and information programs conducted within the United States. The WRRC and ORBC will continue to fund processed raspberry research in areas not likely to be the focus of the national program.

The WRRC and ORBC programs are not able to engage raspberry production in other States or countries in a meaningful way. The program is not intended to duplicate any State program. Considerable attention has been made to involve producers in discussions regarding future program development and administration and what the State commissions would look like prior to the initial referendum. It is expected that farm related activities, such as production research, shall continue to be funded by the State organizations and market development functions, such as nutritional research and marketing programs, will shift to the Order.

The WRRC proposed that producers and importers of less than 20,000 pounds annually of raspberries for processing and processed raspberries respectively, be exempt from assessments. The WRRC also proposed that a producer who operates under an approved National Organic Program (NOP) system plan, produces only products eligible to be labeled as 100 percent organic under the NOP, and is not a split operation, be exempt from paying assessments under the Order. An importer who imports only products eligible to be labeled as 100 percent organic under the NOP, and is not a split operation, shall also be exempt from paying assessments.

There are no federal rules that duplicate, overlap, or conflict with this rule.

The Department invited comments concerning potential effects of the Order on small entities and the accuracy regarding the number and size of entities covered under the Order. We did not receive any comments as a result of the publication of the Initial Regulatory Flexibility Analysis.

Paperwork Reduction Act

In accordance with the Paperwork Reduction Act of 1995 44 U.S.C. Chapter 35, the reporting and recordkeeping provisions generated by this rule have been preapproved by OMB, under OMB control number: 0581-

0258

Title: National Processed Raspberry Promotion, Research, and Information Program.

OMB Number: 0581-0258.

Expiration Date of Approval: November 30, 2012.

Type of Request: Approval of a preapproved collection.

Abstract: The information collection requirements are essential to carry out the intent of the 1996 Act.

There will also be the additional burden on producers and importers voting in referenda. The referendum ballot, which represents the information collection requirement relating to referenda, was addressed in a separate final rule on referendum procedures which was published in the Federal Register on February 8, 2010 75 FR 6089.

Under the program, first handlers are required to collect assessments from producers and file reports with and submit assessments to the Council. While the Order imposes certain recordkeeping requirements on first handlers, information required under the Order may be compiled from records currently maintained. Such records shall be retained for at least two years beyond the marketing year of their applicability.

Under the Order, importers are responsible to pay assessments. Importers must report the total quantity of processed raspberries imported during the reporting period and a record of each importation of such product during such period, giving quantity, date, and port of entry. Under the Order, Customs will collect assessments on imported processed raspberries and remit the funds to the Council.

An estimated 297 respondents will provide information to the Council. There will be approximately 195 producers, 50 importers, 34 first handlers/processors, 5 organic producers and importers (for exemption purposes), 2 foreign producers, 10 certified organizations (for nomination purposes), and 1 at-large member. The estimated cost of providing the information to the Council by respondents would be $9,141. This total has been estimated by multiplying 277 total hours required for reporting and recordkeeping by $33, the average mean hourly earnings of various occupations involved in keeping this information. Data for computation of this hourly rate was obtained from the U.S. Department of Labor Statistics.

The Order's provisions have been carefully reviewed, and every effort has been made to minimize any unnecessary recordkeeping costs or requirements, including efforts to utilize information already submitted under other raspberry programs administered by the Department and other state programs.

The forms require the minimum information necessary to effectively carry out the requirements of the program, and their use is necessary to fulfill the intent of the 1996 Act. Such information can be supplied without data processing equipment or outside technical expertise. In addition, there are no additional training requirements for individuals filling out reports and remitting assessments to the Council. The forms will be simple, easy to understand, and place as small a burden as possible on the person required to file the information.

Collecting information yearly will coincide with normal industry business practices. The timing and frequency of collecting information are intended to meet the needs of the industry while minimizing the amount of work necessary to fill out the required reports. The requirement to keep records for two years is consistent with normal industry practices. In addition, the information to be included on these forms is not available from other sources because such information relates specifically to individual producers, first handlers, processors, foreign producers, and importers who are subject to the provisions of the 1996 Act.

Therefore, there is no practical method for collecting the required information without the use of these forms.

The request for OMB approval of OMB No. 0581-0258 is as follows:

(1) A Background Information Form AD-755 (OMB Form No. 0505-0001).

Estimate of Burden: Public reporting for this collection of information is estimated to average 0.5 hours per response for each Council nominee.

Respondents: Producers, importers, foreign producers, and at-large nominee.

Estimated number of Respondents: 26 (52 for initial nominations to the Council, 26 in subsequent years).

Estimated number of Responses per Respondent: 1 every 3 years. (0.3).

Estimated Total Annual Burden on Respondents: 7.8 hours for the initial

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nominations to the Council and 3.9 hours annually thereafter.

(2) An Annual Report By Each First Handler of Processed Raspberries.

Estimate of Burden: Public reporting burden for this collection of information is estimated to average 0.5 hours per first handler reporting on processed raspberries handled.

Respondents: First handlers.

Estimated number of Respondents: 34.

Estimated number of Responses per Respondent: 1.

Estimated Total Annual Burden on Respondents: 17 hours.

(3) An Exemption Application for Producers And Importers Who Would Be Exempt From Assessments.

Estimate of Burden: Public reporting burden for this collection of information is estimated to average 0.25 hours per producers, or importer reporting on processed raspberries produced or imported. Upon approval of an application, producers and importers will receive exemption certification.

Respondents: Exempt producers and importers.

Estimated number of Respondents: 40.

Estimated number of Responses per Respondent: 1.

Estimated Total Annual Burden on Respondents: 10 hours.

(4) Application for Reimbursement of Assessment.

Estimate of Burden: Public reporting burden for this collection of information is estimated to average 0.25 hours per request for reimbursement.

Respondents: Producers and importers.

Estimated number of Respondents: 10.

Estimated number of Responses per Respondent: 1.

Estimated Total Annual Burden on Respondents: 2.5 hours.

(5) A Requirement to Maintain Records Sufficient to Verify Reports Submitted Under the Order.

Estimate of Burden: Public recordkeeping burden for keeping this information is estimated to average 0.5 hours per record keeper maintaining such records.

Recordkeepers: Producers, first handlers, and importers.

Estimated number of recordkeepers: 297.

Estimated total recordkeeping hours: 148.5 hours.

(6) Application for Certification of Organizations.

Estimate of Burden: Public recordkeeping burden for this collection of information is estimated to average 0.5 hours per application.

Respondents: Importers and foreign producer organizations.

Estimated Number of Respondents: 10.