[Federal Register Volume 68, Number 48 (Wednesday, March 12, 2003)]
[Proposed Rules]
[Pages 11756-11759]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-5844]


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DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 1218

[Doc. No. FV-03-701-PR]


Blueberry Promotion, Research, and Information Order; Amendment 
No. 2 To Change the Name of the U.S.A. Cultivated Blueberry Council and 
Increase Membership

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Proposed rule with request for comments.

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SUMMARY: The purpose of this rule is to seek comments on changing the 
title of the U.S.A. Cultivated Blueberry Council to the ``U.S. Highbush 
Blueberry Council'' (Council) to help avoid any further confusion in 
the industry regarding the specific type of blueberry and industry 
segment represented by the Council, and to make the name of the Council 
consistent with industry nomenclature and to add one member and 
alternate to the Council to represent the state of Washington-the sixth 
largest highbush blueberry producing state.

DATES: Comments must be received by May 12, 2003.

ADDRESSES: Interested persons are invited to submit written comments 
concerning this proposed rule to: Docket Clerk, Research and Promotion 
Branch, Fruit and Vegetable Programs (FV), Agricultural Marketing 
Service (AMS), USDA, Stop 0244, Room 2535-S, 1400 Independence Avenue, 
SW., Washington, DC 20250-0244. Comments should be submitted in 
triplicate and will be made available for public inspection at the 
above address during regular business hours. Comments may also be 
submitted

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electronically to: [email protected]. All comments should 
reference the docket number and the date and page number of this issue 
of the Federal Register. A copy of this rule may be found at: http://www.ams.usda.gov/fv/rpdocketlist.htm.

FOR FURTHER INFORMATION CONTACT: Daniel Rafael Manzoni, Research and 
Promotion Branch, FV, AMS, USDA, Stop 0244, 1400 Independence Avenue, 
SW., Room 2535-S, Washington, DC 20250-0244; telephone (202) 720-5951, 
fax (202) 205-2800, or e-mail [email protected].

SUPPLEMENTARY INFORMATION: Legal authority. The Blueberry Promotion, 
Research, and Consumer Information Order (Order) (7 CFR part 1218) 
became effective on August 16, 2000 (65 FR 43961, July 17, 2000). It 
was issued under the Commodity Promotion, Research, and Information Act 
of 1996 (Act) (7 U.S.C. 7401-7425).

Executive Orders 12866 and 12988

    The Office of Management and Budget has waived the review process 
required by Executive Order 12866 for this action.
    In addition, this rule has been reviewed under E.O. 12988, Civil 
Justice Reform. The rule is not intended to have retroactive effect. 
Section 524 of the 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 Act, a person subject to the Order may 
file a petition with the Secretary of Agriculture (Secretary) stating 
that the Order, any provision of the Order, or any obligation imposed 
in connection with the Order, is not established in accordance with the 
law, and requesting a modification of the Order or an exemption from 
the Order. Any petition filed challenging the Order, any provision of 
the Order, or any obligation imposed in connection with the Order, 
shall be filed within two years after the effective date of the Order, 
provision, or obligation subject to challenge in the petition. The 
petitioner will have the opportunity for a hearing on the petition. 
Thereafter, the Secretary will issue a ruling on a petition. The 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 Secretary's final ruling.

Regulatory Flexibility Act

    In accordance with the Regulatory Flexibility Act (RFA) (5 U.S.C. 
601 et seq.), AMS has examined the economic impact of this 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.
    There are approximately 2,000 producers, 200 first handlers, 50 
importers, and 4 exporters of blueberries subject to the program. Most 
of the producers would be classified as small businesses under the 
criteria established by the Small Business Administration (SBA) (13 CFR 
121.201). Most importers and first handlers would not be classified as 
small businesses, and, while most exporters are large, we assume that 
some are small. The SBA defines small agricultural handlers as those 
whose annual receipts are less than $5 million, and small agricultural 
producers are defined as those having annual receipts of not more than 
$500,000 annually.
    This proposed rule would amend the Order to change the title of the 
U.S.A. Cultivated Blueberry Council to the ``U.S. Highbush Blueberry 
Council'' (Council) and to add one member and alternate to the Council 
to represent the state of Washington.
    The proposed amendments are not considered to be substantial and 
will not significantly impact the blueberry industry. The name change 
will have a positive impact on the industry. Adding a producer member 
and alternate representing the state of Washington means that four 
additional producers will be required to submit background forms to 
USDA in order to be considered for appointment to the Council. Four 
producers will be affected because two names must be submitted to the 
Secretary for consideration for each position on the Council. However, 
serving on the Council is optional, and the burden of submitting the 
background form would be offset by the benefits of serving on the 
Council. The estimated annual cost of providing the information by four 
producers would be $6.00 for all four producers or $1.50 per producer.
    There are no relevant Federal rules that duplicate, overlap, or 
conflict with the proposed rule.
    We have performed this Initial Regulatory Flexibility Analysis 
regarding the impact of this proposed amendment to the Order on small 
entities, and we invite comments concerning potential effects of the 
proposed amendment.

Paperwork Reduction Act

    In accordance with the OMB regulation (5 CFR 1320) which implements 
the Paperwork Reduction Act of 1995 (44 U.S.C. chapter 35), the 
background form, which represents the information collection and 
recordkeeping requirements that may be imposed by this rule, was 
previously submitted to and approved by OMB under OMB Number 0505-0001.
    Title: National Research, Promotion, and Consumer Information 
Programs.
    OMB Number: 0505-0001.
    Expiration Date of Approval: October 31, 2003.
    Type of Request: Increase in the information collection burden for 
research and promotion programs.
    Abstract: The information collection requirements in this request 
are essential to carry out the intent of the Act. The burden associated 
with this action is as follows:
    Estimate of Burden: Public reporting burden for this collection of 
information is estimated to average 0.5 hours per response for each 
producer.
    Respondents: Producers.
    Estimated Number of Respondents: 4.
    Estimated Number of Responses per Respondent: 1 every 3 years 
(0.3).
    Estimated Total Annual Burden on Respondents: 0.6 hours.
    The estimated annual cost of providing the information by the four 
producers would be $6.00 or $1.50 per producer.
    This additional burden will be included in the existing information 
collections approved for use under OMB Number 0505-0001.

Background

    During the rulemaking process to implement the Order in 2000, 
members of the wild blueberry industry in Maine raised objections to 
the original name of the U.S.A. Blueberry Council. However, USDA did 
not change the name at that time, and the wild blueberry industry 
continued to have concerns to the generic name of the Council. 
Therefore, USDA issued a proposed rule to change the name of the 
Council to the U.S.A. Cultivated Blueberry Council on September 21, 
2000 (65 FR 57104). The new name became effective on August 16, 2001, 
with the publication of a final rule published in the Federal Register 
on July 17, 2001 (66 FR 37117).
    Subsequently, the Council was appointed and decided that the term 
``cultivated'' in its name should be changed to ``highbush'' because 
cultivated blueberries are commonly called highbush blueberries, and 
wild blueberries are commonly called

[[Page 11758]]

lowbush blueberries. In addition, horticultural publications use the 
nomenclature of highbush and lowbush for blueberries. Using the terms 
highbush and lowbush provides a simple means for the consumer to 
differentiate between these two types of blueberries and for industry 
members to determine whether or not they owe assessments to the 
Council. Accordingly, the Council recommends that the term highbush 
should be used to distinguish their blueberries from lowbush (wild).
    Therefore, the Council voted unanimously on October 5, 2002, to 
change the Council's name to the U.S. Highbush Blueberry Council.
    At the same meeting, the Council voted unanimously to add one 
member and alternate to the Council to represent the state of 
Washington.
    The Council currently consists of nine producers, one importer, one 
exporter from a foreign production area, one handler, and one public 
member. Each member has an alternate. The nine producer members are 
allocated as follows: one producer member for each of the top five 
producing states and one producer member from each of the four regions. 
The states that currently have representation on the Council are 
Georgia, Michigan, New Jersey, North Carolina, and Oregon. In recent 
years, highbush blueberry production in the state of Washington has 
increased. In 2001, Washington represented 8 percent of U.S. 
production, and the estimated production for that state in 2002 is 12.5 
million pounds of highbush blueberries. In addition, the five 
additional states producing highbush blueberries (Alabama, Arkansas, 
Florida, Indiana, and New York) together represent only 7 percent of 
U.S. production, and the seventh highest producing state-Indiana-is 
expected to produce a total of 3 million pounds. Therefore, the Council 
determined that it was appropriate for Washington producers to have a 
state member and alternate on the Council.
    Therefore, this proposed rule would change all references in the 
Order from the U.S.A. Cultivated Blueberry Council to the U.S. Highbush 
Blueberry Council and change all references to the USACBC to the 
Council. In addition, this rule would revise Sec.  1216.40(a)(2) to 
specify that there will be one producer member and alternate from each 
of the top six (rather than five) blueberry producing states. If this 
rule is adopted, the Council would have 14 members and alternates. 
Therefore, a conforming change would be made in Sec.  1216.40(a) to 
remove the Council member limit of 13. USDA has also removed obsolete 
language from Sec. Sec.  1218.40 and 1218.41.

List of Subjects in 7 CFR Part 1218

    Administrative practice and procedure, Advertising, Blueberries, 
Consumer information, Marketing agreements, Blueberry promotion, 
Reporting and recordkeeping requirements.

    For the reasons set forth in the preamble, 7 CFR part 1218 is 
proposed to be amended as follows:
    1. The authority citation for part 1218 continues to read as 
follows:

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

PART 1218--BLUEBERRY PROMOTION, RESEARCH, AND INFORMATION

Subpart A--Blueberry Promotion, Research, and Information Order

    2. In Sec.  1218.3, the words ``U.S.A. Cultivated Blueberry 
Council'' are removed and the words ``U.S. Highbush Blueberry Council'' 
are added in its place, and ``USACBC'' is removed, and ``Council'' is 
added in its place.
    3. Revise Sec.  1216.23 to read as follows:


Sec.  1216.23  U.S. Highbush Blueberry Council.

    U.S. Highbush Blueberry Council or the Council means the 
administrative body established pursuant to Sec.  1218.40.
    4. The undesignated center heading preceding Sec.  1218.40 is 
revised to read as follows:

U.S. Highbush Blueberry Council

    5. In Sec.  1218.40, the introductory text of paragraph (a) and 
paragraphs (a)(2) and (b) are revised to read as follows:


Sec.  1218.40  Establishment and membership.

    (a) Establishment of the U.S. Highbush Blueberry Council. There is 
hereby established a U.S. Highbush Blueberry Council, hereinafter 
called the Council, appointed by the Secretary from nominations as 
follows:
* * * * *
    (2) One producer member and alternate from each of the top six 
blueberry producing states, based upon the average of the total tons 
produced over the previous three years. Average tonnage will be based 
upon production and assessment figures generated by the Council.
* * * * *
    (b) Adjustment of membership. At least once every five years, the 
Council will review the geographical distribution of United States 
production of blueberries and the quantity of imports. The review will 
be conducted through an audit of state crop production figures and 
Council assessment records. If warranted, the Council will recommend to 
the Secretary that the membership on the Council be altered to reflect 
any changes in the geographical distribution of domestic blueberry 
production and the quantity of imports. If the level of imports 
increases, importer members and alternates may be added to the Council.
    6. Section 1218.41 is revised to read as follows:


Sec.  1218.41  Nominations and appointments.

    (a) Voting for regional and state representatives will be made by 
mail ballot.
    (b) When a state has a state blueberry commission or marketing 
order in place, the state commission or committee will nominate members 
to serve on the Council. At least two nominees shall be submitted to 
the Secretary for each member and each alternate.
    (c) Nomination and election of regional and state representatives 
where no commission or order is in place will be handled by the Council 
staff. The Council staff will seek nominations for members and 
alternates from the specific states and/or regions. Nominations will be 
returned to the Council office and placed on a ballot which will then 
be sent to producers in the state and/or region for a vote. The final 
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 
final nominee for alternate. The persons with the third and fourth 
highest number of votes cast will be designated as additional nominees 
for consideration by the Secretary.
    (d) Nominations for the importer, exporter, first handler, and 
public member positions will be made by the Council. Two nominees for 
each member and each alternate position will be submitted to the 
Secretary for consideration.
    (e) From the nominations, the Secretary shall select the members 
and alternate members of the Council.


Sec. Sec.  1218.42, 1218.43, 1218.44, 1218.45, 1218.46, 1218.47, 
1218.48, 1218.50, 1218.51, 1218.52, 1218.53, 1218.54, 1218.55, 1218.56, 
1218.60, 1218.62, 1218.70, 1218.73, 1218.75, and 1218.77  [Amended]

    7. In Sec. Sec.  1218.42, 1218.43, 1218.44, 1218.45, 1218.46, 
1218.47, 1218.48, 1218.50, 1218.51, 1218.52, 1218.53, 1218.54, 1218.55, 
1218.56, 1218.60, 1218.62, 1218.70, 1218.73, 1218.75, and 1218.77, 
``USCABC'' is removed and ``Council'' is added in its place.


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    Dated: March 6, 2003.
Kenneth C. Clayton,
Acting Administrator.
[FR Doc. 03-5844 Filed 3-11-03; 8:45 am]
BILLING CODE 3410-02-P