[Federal Register Volume 71, Number 151 (Monday, August 7, 2006)]
[Rules and Regulations]
[Pages 44553-44555]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-12760]



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  Federal Register / Vol. 71, No. 151 / Monday, August 7, 2006 / Rules 
and Regulations  

[[Page 44553]]



DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 1218

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


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: Final rule.

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

SUMMARY: This final rule changes the title of the U.S.A. Cultivated 
Blueberry Council to the ``U.S. Highbush Blueberry Council'' (Council). 
The purpose of this change is to avoid any confusion in the industry 
regarding the specific type of blueberry and industry segment 
represented by the Council. Additionally, this change makes the name of 
the Council consistent with industry nomenclature, and adds one member 
and alternate to the Council to represent the state of Washington--the 
sixth largest highbush blueberry producing state.

DATES: Effective Date: September 6, 2006.

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 Order 12866

    The Office of Management and Budget has waived the review process 
required by Executive Order 12866 for this action.

Executive Order 12988

    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 may request 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 and Paperwork Reduction 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, the U.S. 
Department of Agriculture (USDA) assumes that some are small. The SBA 
defines small agricultural handlers as those whose annual receipts are 
less than $6.5 million, and small agricultural producers are defined as 
those having annual receipts of not more than $750,000 annually.
    This rule amends 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 amendments are not considered to be substantial and do not 
significantly impact the blueberry industry. The title change will help 
avoid confusion regarding the specific type of blueberry and industry 
segment represented by the Council. Adding a producer and alternate 
member representing the state of Washington means that four additional 
producers are required to submit background forms to USDA in order to 
be considered for appointment to the Council. This is because two names 
must be submitted to the Secretary for consideration for each position 
on the Council. However, serving on the Council is optional. Taking 
into account alternatives, these changes accomplish the purpose of 
these amendments.
    There are no relevant federal rules that duplicate, overlap, or 
conflict with the final rule.
    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 imposed by this rule, has been approved by 
OMB under OMB Number 0505-0001.
    The public reporting burden for this collection of information is 
estimated to average 0.5 hours per response for each producer of the 4 
respondents.
    The estimated annual cost of providing the information by the four 
producers is $6.00 or $1.50 per producer.

[[Page 44554]]

    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. While USDA did not 
change the name at that time, the wild blueberry industry continued to 
have concerns regarding 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. 
Additionally, 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.
    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 of Georgia, Michigan, New Jersey, North Carolina, and Oregon 
currently have representation on the Council.
    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 
member and alternate on the Council.
    As requested by the Council, USDA issued a proposed rule to change 
the name of the U.S.A. Cultivated Blueberry Council and to increase 
membership on March 12, 2003 [68 FR 11756]. The deadline for comments 
was May 12, 2003.
    In response to the proposed rule, USDA received five comments. A 
summary of the comments and USDA's responses follow.
    One commenter from the wild blueberry industry supported the 
proposals to change the name of the U.S.A. Cultivated Blueberry Council 
to the U.S. Highbush Blueberry Council and to increase membership. 
However, the commenter objected to the term ``lowbush'' to identify 
wild blueberries. The commenter indicated that the term ``wild 
blueberries'' is universally recognized by the trade and consumer 
markets. As this rule does not affect the wild blueberry industry, the 
wild blueberry industry can continue use the term wild to identify 
their products. Accordingly, no changes to the rule are made as a 
result of this comment.
    Four comments were received that strongly supported the name change 
to the U.S. Highbush Blueberry Council. These comments were from the 
Executive Director of the U.S.A. Cultivated Blueberry Council, an 
officer of the Washington Blueberry Commission, the President of the 
North American Blueberry Council, and a blueberry grower. Two of these 
commenters also supported adding one producer and alternate members 
from the state of Washington to the Council.
    Accordingly, this final rule changes all references in the 
Blueberry Promotion, Research, and Consumer Information Order from the 
U.S.A. Cultivated Blueberry Council to the U.S. Highbush Blueberry 
Council, and changes all references to the ``USACBC'' with the 
``Council.'' In addition, this rule revises Sec.  1218.40(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. The 
Council will have 14 members and alternates as a result of this final 
rule. Therefore, a change is made in Sec.  1218.40(a) to remove the 
Council member limit of 13. USDA has also removed obsolete language 
from Sec. Sec.  1218.40 and 1218.41.
    After consideration of all relevant material presented, including 
comments, the Council's recommendation, and other information, it is 
determined that this final rule is consistent with and will effectuate 
the purpose of the Act.

List of Subjects in 7 CFR Part 1218

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


0
For the reasons set forth in the preamble, 7 CFR part 1218 is amended 
as follows:
0
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

0
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 their place, and ``USACBC'' is removed, and the word ``Council'' is 
added in its place.

0
3. Revise Sec.  1218.23 to read as follows:


Sec.  1218.23  U.S. Highbush Blueberry Council.

    U.S. Highbush Blueberry Council or the Council means the 
administrative body established pursuant to Sec.  1218.40.

0
4. The undesignated center heading preceding Sec.  1218.40 is revised 
to read as follows:

U.S. Highbush Blueberry Council

0
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, composed of no more than 14 members and alternates, 
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

[[Page 44555]]

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.

0
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   
[Nomenclature Change]

0
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 the word ``Council'' is added in its place.

    Dated: August 1, 2006.
Lloyd C. Day,
Administrator, Agricultural Marketing Service.
 [FR Doc. E6-12760 Filed 8-4-06; 8:45 am]
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