[Federal Register Volume 74, Number 67 (Thursday, April 9, 2009)]
[Proposed Rules]
[Pages 16266-16289]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-7981]



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Part II





Department of Agriculture





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Agricultural Marketing Service



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7 CFR Part 1208



Proposed Processed Raspberry Promotion, Research, and Information 
Order; Referendum Procedures; Proposed Rules

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

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DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 1208

[Doc. No. AMS-FV-07-0077; FV-07-705-PR-1A]
RIN 0581-AC37


Proposed Processed Raspberry Promotion, Research, and Information 
Order

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Proposed rule with request for comments.

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SUMMARY: This rule proposes the establishment of an industry-funded 
promotion, research, and information program for processed raspberries. 
The proposed program, Processed Raspberry Promotion, Research, and 
Information Order (Proposed Order), was submitted to the Department of 
Agriculture (Department) by the Washington Red Raspberry Commission 
(WRRC). Under the Proposed Order, producers of raspberries for 
processing and importers of processed raspberries would pay an 
assessment of up to one cent per pound, with the initial assessment 
rate being one cent per pound, which would be paid to the proposed 
National Processed Raspberry Council (Council). Producers and importers 
of less than 20,000 pounds annually of raspberries for processing and 
processed raspberries respectively would be exempt from the assessment. 
The proposed program would be implemented under the Commodity 
Promotion, Research, and Information Act of 1996 (1996 Act). An initial 
referendum would be conducted among eligible producers of raspberries 
for processing and importers of processed raspberries to determine 
whether they favor the implementation of the program prior to it going 
into effect. This rule also announces the Agricultural Marketing 
Service's (AMS) intention to request approval of new processed 
raspberries information collection requirements by the Office of 
Management and Budget (OMB) for the Proposed Order.

DATES: Comments must be received by June 8, 2009. Pursuant to the 
Paperwork Reduction Act (PRA), comments on the information collection 
burden that would result from this proposal must be received by June 8, 
2009.

ADDRESSES: Interested persons are invited to submit written comments on 
the Internet at http://www.regulations.gov or to the Research and 
Promotion Branch, Fruit and Vegetable Programs, AMS, USDA, 1400 
Independence Avenue, SW., Stop 0244, Room 0632-S, Washington, DC 20250-
0244; fax: (202) 205-2800. All comments should reference the docket 
number and the date and page number of this issue of the Federal 
Register and will be made available for public inspection in the above 
office during regular business hours or can be viewed at http://www.regulations.gov.
    Pursuant to PRA, comments regarding the accuracy of the burden 
estimate, ways to minimize the burden, including the use of automated 
collection techniques or other forms of information technology, or any 
other aspect of this collection of information, should be sent to the 
above address. In addition, comments concerning the information 
collection should also be sent to the Desk Office for Agriculture, 
Office of Information and Regulatory Affairs, Office of Management and 
Budget, New Executive Office Building, 725 17th Street, NW., Room 725, 
Washington, DC 20503.

FOR FURTHER INFORMATION CONTACT: Kimberly Coy, Marketing Specialist, 
Research and Promotion Branch, Fruit and Vegetable Programs, AMS, USDA, 
1400 Independence Avenue, SW., Room 0632, Stop 0244, Washington, DC 
20250-0244; telephone: (202) 720-9915 or (888) 720-9917 (toll free); or 
facsimile: (202) 205-2800; or e-mail: [email protected].

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

Executive Order 12866

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

Executive Order 12988

    This rule has been reviewed under Executive Order 12988, Civil 
Justice Reform. It is not intended to have retroactive effect. This 
rule will not preempt any state or local laws, regulations, or 
policies, unless they represent an irreconcilable conflict with this 
rule. Section 524 of the 1996 Act provides that it shall not affect or 
preempt any other Federal or state law authorizing promotion or 
research relating to an agricultural commodity.
    Under section 519 of the 1996 Act, a person subject to an order may 
file a written petition with the Department stating that an order, any 
provision of an order, or any obligation imposed in connection with an 
order, is not established in accordance with the law, and requesting a 
modification of an order or an exemption from an order. Any petition 
filed challenging an order, any provision of an order, or any 
obligation imposed in connection with an order, shall be filed within 
two years after the effective date of an order, provision, or 
obligation subject to challenge in the petition. The petitioner will 
have the opportunity for a hearing on the petition. Thereafter, the 
Department will issue a ruling on the petition. The 1996 Act provides 
that the district court of the United States for any district in which 
the petitioner resides or conducts business shall have the jurisdiction 
to review a final ruling on the petition, if the petitioner files a 
complaint for that purpose not later than 20 days after the date of the 
entry of the Department's final ruling.

Executive Order 13132

    This proposed rule has been reviewed under Executive Order 13132, 
Federalism. This Executive Order directs agencies to construe, in 
regulations and otherwise, a Federal Statute to preempt State law only 
when the statute contains an express preemption provision. Section 524 
of the 1996 Act provides that the Act shall not affect or preempt any 
other Federal or State law authorizing promotion or research relating 
to an agricultural commodity.
    The WRRC and the Oregon Raspberry and Blackberry Commission (ORBC), 
the principal producers of processed raspberries, both administer State 
marketing orders, which require all producers of raspberries to pay 
assessments to support the health of their respective industries. Both 
the WRRC and ORBC invest funds into research programs at their land-
grant universities and other research institutions to study disease, 
pest control, and varietal development. In addition to developing and 
funding production research, they also fund marketing and promotion 
programs and seek to foster education and communication between 
producers. However, according to the WRRC, WRRC, ORBC and international 
raspberry organizations have not been able to generate the funds 
necessary to support the marketing efforts needed to help expand 
processed raspberry consumption and increase the demand for processed 
raspberries. In order to manage increased production, increased 
competition, and changing consumer habits, the WRRC believes that a 
more extensive marketing program is needed. The WRRC and ORBC believe 
that a

[[Page 16267]]

national research and promotion program would fund the promotional 
aspect necessary to stay competitive and would place all domestic 
producers and importers on an equal playing field with each investing a 
fair share in promoting processed raspberries. If a national processed 
raspberry program is established, the WRRC and ORBC will continue to 
fund processed raspberry research in areas not likely to be the focus 
of the national program.
    In accordance with the 1996 Act, this proposed rule would not 
preempt any of these State-legislated programs. Further, section 
1208.52(h) of the Proposed Order provides for credit of assessments for 
those individuals who contribute to local, regional, or State 
organizations that engage in similar generic research, promotion, and 
information programs as partial fulfillment of assessments due to the 
Council subject to approval of the Secretary, for expenditure on 
generic research, promotion and information programs conducted within 
the United States.
    The proposed program is not intended to duplicate any State 
program. Considerable attention is being made to involve producers in 
discussions regarding future program development and administration and 
what the State commissions would look like prior to the initial 
referendum. It is expected that farm related activities, such as 
production research, would continue to be funded by the State 
organizations and market development functions, such as nutritional 
research and marketing programs, would shift to the Proposed Order.
    Not only were the States informed throughout the development of the 
national program, they were instrumental in the processed raspberry 
industry's decision to institute a national program.
    In 2007, representatives from the WRRC were among other raspberry 
industry representatives who met with AMS representatives to discuss 
the possibility of implementing a national processed raspberry 
promotion, research, and information program. WRRC representatives 
participated in the development of the provisions of the Proposed Order 
during these meetings and with direct communication with the Oregon 
Raspberry and Blackberry Commission (ORBC).

Initial Regulatory Flexibility Act Analysis

    In accordance with the Regulatory Flexibility Act (RFA) [5 U.S.C. 
601-612], AMS is required to examine the impact of the proposed rule on 
small entities. The purpose of the RFA is to fit regulatory actions to 
the scale of businesses subject to such actions so that small 
businesses will not be disproportionately burdened.
    The Small Business Administration defines, in 13 CFR Part 121, 
small agricultural producers as those having annual receipts of no more 
than $750,000 and small agricultural service firms (handlers and 
importers) as those having annual receipts of no more than $7.0 
million. Under these criteria, the majority of the producers and 
handlers that would be affected by this Proposed Order would be 
considered small entities, while most importers would not. Future, 
qualified organizations certified by the Secretary for nomination 
purposes, would be expected to generally consist of entities reflecting 
such sizes also. Producers and importers of less than 20,000 pounds per 
year of raspberries for processing and processed raspberries 
respectively would be exempt under this Proposed Order. Five organic 
producers and importers are also expected to be exempt from 
assessments. The number of entities assessed under the program would be 
around 245. Estimated revenue is expected at $1.2 million of which 43 
percent is expected from imported product and 57 percent from domestic 
product.
    According to the WRRC, in 2006, there were approximately 195 
producers of raspberries for processing and 34 processors (first 
handlers) of processed raspberries in Oregon and Washington States, 
which are the principal growing areas in the United States for 
raspberries destined for processing. Approximately 95 percent of the 
producers and 100 percent of the raspberry processors qualified under 
the definition for small business owners. Although California is a 
significant producer of raspberries, virtually all harvested product is 
destined for the fresh market. In 2006, there were approximately 50 
importers. Based on the U.S. Department of Commerce, U.S. Census 
Bureau, Foreign Trade Statistics, in 2006 two countries accounted for 
96 percent of the processed raspberries imported into the United 
States. These countries and their share of the imports are: Chile (78 
percent) and Canada (18 percent).
    The 1996 Act authorizes generic programs of promotion, research, 
and information for agricultural commodities. Congress found that it is 
in the national public interest and vital to the welfare of the 
agricultural economy of the United States to maintain and expand 
existing markets and develop new markets and uses for agricultural 
commodities through industry-funded, government-supervised, generic 
commodity promotion programs.
    The WRRC submitted this Proposed Order to: (1) Develop and finance 
an effective and coordinated program of research, promotion, industry 
information, and consumer education regarding processed raspberries; 
(2) strengthen the position of the processed raspberry industry; and 
(3) maintain, develop, and expand existing markets for processed 
raspberries.
    While the Proposed Order would impose certain recordkeeping 
requirements on first handlers, this information could be compiled from 
records currently maintained. First handlers would collect and remit 
the assessments on domestic processed raspberries to the Council. First 
handler responsibilities would include accurate recordkeeping and 
accounting on all raspberries purchased or contracted for processing 
including the number of pounds handled, the names of their producers, 
and the dates raspberries were purchased. The forms require the minimum 
information necessary to effectively carry out the requirements of the 
program, and their use is necessary to fulfill the intent of the 1996 
Act. Such records must be retained for at least two years. This 
information is already maintained as a normal business practice. In 
addition, as these entities currently remit assessments under either 
the Washington or Oregon State programs, the additional recordkeeping 
and submission impact would be minimal.
    There is also a minimal paperwork burden on producers. The Proposed 
Order would require producers to keep records and to provide 
information to the Council or the Department when requested. However, 
it is not anticipated that producers would be required to submit forms 
to the Council other than for nomination to the Council. If, for 
example, the Council needs information from a producer as part of the 
Council's compliance program, the information would need to be obtained 
through an audit of the producer's records instead of having the 
producer complete and submit paperwork.
    In addition, there is a minimal burden on importers. The import 
assessments would be collected by U.S. Customs and Border Protection 
(Customs) at time of entry into the United States. Importers would be 
required to keep records and to provide information to the Council or 
the Secretary of Agriculture (Secretary) when requested. However, it is 
not anticipated that importers would be required to submit forms to the 
Council for assessment collection because Customs conducts 
recordkeeping and

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assessment remittance at the time of product entry into the United 
States. Importers who seek nomination to serve on the Council would be 
required to complete a background form which would be submitted to the 
Secretary.
    Foreign producers from countries exporting a minimum of three 
million pounds of raspberries for processing based on a three-year 
average to the U.S. and at-large members seeking nomination to serve on 
the Council would be required to complete a background form which would 
be submitted to the Secretary.
    The estimated annual cost of providing the information to the 
Council by an estimated 297 respondents (195 producers, 50 importers, 
34 first handlers/processors, 2 foreign producers, 5 organic producers 
and importers, 10 certified organizations (for nomination purposes), 
and 1 at-large member) would be $9,141.
    Section 518 of the 1996 Act provides for referenda to ascertain 
approval of the Proposed Order to be conducted either prior to its 
going into effect or within three years after assessments first begin 
under the Proposed Order. An initial referendum would be conducted 
prior to putting this Proposed Order in effect. The Proposed Order also 
provides for approval in a referendum to be based upon approval by a 
majority of those persons voting in the referendum. Every seven years, 
the Department shall conduct a referendum to determine whether 
producers and importers of processed raspberries favor the 
continuation, suspension, or termination of the Proposed Order. In 
addition, the Department could conduct a referendum at any time; at the 
request of 10 percent or more of all eligible producers of raspberries 
for processing and processed raspberries importers required to pay 
assessments; or if the Council requests that the Secretary hold a 
referendum.
    The United States is among the leading producers of raspberries. 
Raspberries are grown in 46 states and are harvested late June to mid 
August. The 2002 Census of Agriculture indicates that about 80 percent 
of the U.S. raspberry acreage was in California, Oregon, and 
Washington.
    According to the United States Department of Agriculture's National 
Agricultural Statistics Service (NASS) and the Foreign Agricultural 
Service, in 2005, 178,300 million pounds of raspberries (fresh) with a 
combined value approaching $246 million (value at point of first sale) 
were produced in California, Oregon, and Washington, the three most 
productive States for growing raspberries in the United States. In 
2006, 179,850 million pounds were produced and utilized, at a value of 
almost $275 million. California's crop is predominately delivered to 
the fresh market, while Oregon and Washington are the principal 
producers of processed raspberries.
    Domestic production varies from year to year due to climatic 
conditions and field health. Over the last fifteen years, total 
domestic production of raspberries delivered to processors in the 
United States (i.e., production utilized for processing) has increased 
from 47.5 million pounds in 1991 to almost 75 million pounds in 2005 
with most recent years averaging approximately 65 million pounds. 
Washington continues to be the major supplier of processed raspberries 
to the domestic market, although its market share declined from 72 
percent to 51 percent between 2001 and 2006. In comparison, imported 
raspberries have surged from 7.5 to 53.8 million pounds from 1991 to 
2005 and decreased to 48.9 million pounds in 2006. Chile, which is the 
predominate importer of processed raspberries to the United States, 
supplied just over 30 percent of the market in 2005 and 2006.
    Domestic uses of processed raspberries include further processing 
into juices, jellies, baked goods, and consumer retailer packs. After 
averaging approximately 100 million pounds for the period 1999 to 2004, 
approximately 128 million pounds of processed raspberries were produced 
and/or imported into the United States in 2005 and 111 million pounds 
in 2006. These totals were calculated by using imports of frozen 
raspberries (from USDA's Foreign Agricultural Service) and NASS reports 
of production utilized for processing in Oregon and Washington. Because 
of the way imports are currently reported, and because of the way NASS 
reports raspberry data, the totals represent the best information 
currently available.
    The following countries are major exporters of raspberries to the 
United States: Canada, Chile, China, France, and Poland. Canada and 
Chile represented 91.5 percent share of total import tonnage in the 
domestic United States market from 2002 to 2006, with 26 and 65.5 
percent respectively.
    The same growing conditions and harvesting period apply to the 
Pacific Northwest and British Columbia, the major raspberry growing 
region in Canada. Exports of processed frozen raspberries from British 
Colombia to the United States ranged from 2.9 million metric tons to 
5.7 million metric tons over the past five years.
    Contra-season raspberry production in the southern hemisphere is 
primarily located in Chile, with a harvest season beginning in December 
and continuing into February. However, processed raspberries are 
imported into the United States throughout the year.
    The Proposed Order would authorize a fixed assessment paid by 
producers of raspberries for processing and importers of processed 
raspberries at a rate of up to one cent per pound, with the initial 
assessment rate being one cent per pound. The assessment rate will be 
reviewed, and increased or decreased as recommended by the Council and 
approved by the Secretary after the first referendum is conducted as 
stated in 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 proposed rate of assessment of up to one cent per pound, 
with the initial assessment rate being one cent per pound, the Council 
would collect approximately $1.2 million annually based on an estimated 
120 million pound supply from domestic raspberries for processing and 
imports of processed raspberries. The domestic supply represents 
approximately 57 percent of the total and imports represent 43 percent.
    The Proposed Order would exempt producers and importers of less 
than 20,000 pounds annually of raspberries for processing and processed 
raspberries respectively. A review of producer delivery statistics from 
Oregon and Washington States indicate that around 15 percent of all 
producers would have been exempted from assessment in 2006 from the 
proposed research and promotion program based on a 20,000 pounds 
exemption threshold. Also, organic producers and importers would be 
exempt from assessment. Section 515 of the 1996 Act provides for the 
establishment of a board or council consisting of producers, importers, 
and others in the marketing chain as appropriate. The Proposed Order 
would provide for the establishment of the National Processed Raspberry 
Council to administer the Proposed Order under AMS oversight. The 
Secretary would appoint members to the Council from nominees submitted 
in accordance with the Proposed Order. The WRRC proposed that the 
Council be composed of 13 members and their alternates. The

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proposed Council membership is as follows: six producer members of 
raspberries for processing from States producing a minimum of three 
million pounds of raspberries delivered for processing; one producer 
member of raspberries for processing representing all other States that 
produce less than the minimum of three million pounds of raspberries 
delivered for processing; three processed raspberry importer members; 
two foreign producers from countries exporting a minimum of three 
million pounds of raspberries for processing to the U.S. based on a 
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 would be proportional to the average of the total pounds 
delivered to the processor for processing over the previous three 
years. The States that provide less than three million pounds will be 
combined into one region and will have one producer representative.
    Under the Proposed Order, the Council members and alternates will 
serve for a term of three years and be able to serve a maximum of two 
consecutive terms. When the Council is first established, four producer 
members, two importers, one of the two foreign producers, and the at-
large member and their respective alternates will be assigned initial 
terms of three years; and, three producer members, one importer member, 
and the second foreign producer and their respective alternates will 
serve an initial term of two years. Thereafter, each of these positions 
will carry a full three-year term. Members serving an initial term of 
two years will be eligible to serve a second three-year term to 
complete their eligibility. Council nominations and appointments will 
take place in two out of every three years. Each term of office will 
end on December 31, and a new term will begin on January 1.
    Producers and importers would represent those entities in the 
United States. The United States would be defined to include 
collectively the 50 States, the District of Columbia, the Commonwealth 
of Puerto Rico and the territories and possessions of the United 
States.
    The nominations for the six producer and alternate members from 
States producing a minimum three-year average of three million pounds 
of raspberries delivered for processing will be submitted to the 
Council in the following manner: (1) For those States that have a State 
raspberry commission or State marketing order, the State commission or 
committee will nominate producers and their alternates to serve; or (2) 
for those States that do not have a State commission or State marketing 
order, the Council will seek nominations from the State Departments of 
Agriculture for members and alternates from the specific States.
    For those States producing a minimum three-year average of three 
million pounds of raspberries delivered for processing that have a 
State raspberry commission or State marketing order, the State 
commission or committee nominations will be returned to the Council and 
placed on a ballot which will then be sent to producers in the State 
for a vote. The nominee for member will have received the highest 
number of votes cast. The person with the second highest number of 
votes cast will be the nominee for alternate. The persons with the 
third and fourth place highest number of votes cast will be designated 
as additional nominees for consideration by the Secretary. Once the 
Council has received all of the nominations from commissions or 
committees, the information will be submitted to the Secretary for 
appointment. Nominations for the initial Council will be handled by the 
Department. Subsequent nominations will be handled by the Council staff 
and shall be submitted to the Secretary not less than 90 days prior to 
the expiration of the term of office.
    If the Department determines that there are no State raspberry 
commissions or State marketing orders from States producing a minimum 
three-year average of three million pounds of raspberries delivered for 
processing, the Council will seek nominations from the State 
Departments of Agriculture for members and alternates from the specific 
States who may directly submit nominations to the Department for the 
initial Council. Subsequent nominations shall be submitted to the 
Council and will be handled by the Council staff who in turn shall 
submit those nominations to the Secretary not less than 90 days prior 
to the expiration of the term of office.
    The distribution of the six producer and alternate seats will be 
proportional to the percentage determined by the average of the total 
pounds produced and delivered to processors for processing over the 
previous three years divided by the average total pounds produced over 
the previous three years. For example, if Washington State and Oregon 
are the only two States producing a minimum of 3 million pounds each, 
and Washington's previous three-year average is 62.4 million pounds and 
Oregon's previous three-year average is 6.7 million pounds with the 
average total pounds for the previous three years being 69.1 million 
pounds, Washington would have 90 percent of the production and Oregon 
would have 10 percent of the production. Therefore, Washington would 
obtain five out of the six seats and Oregon would receive one seat.
    The nomination for the one raspberry producer of raspberries for 
processing and alternate member, who represents all other States 
producing less than a minimum three-year average of three million 
pounds of raspberries delivered for processing, will constitute a 
region and the nominations will be submitted to the Council in the 
following manner: (1) For those States that have a State raspberry 
commission or State marketing order, the State commission or committee 
will nominate producers and their alternates to serve; or (2) for those 
States that do not have a State commission or State marketing order, 
the Council will seek nominations from the State Departments of 
Agriculture for the member and alternate from the specific States.
    For those States producing less than a minimum three-year average 
of three million pounds of raspberries delivered for processing that 
have a State raspberry commission or State marketing order, the State 
commission or committee nominations will be returned to the Council and 
placed on a ballot which will then be sent to producers in the Region 
for a vote. The nominee for member will have received the highest 
number of votes cast. The person with the second highest number of 
votes cast will be the nominee for alternate. The persons with the 
third and fourth place highest number of votes cast will be designated 
as additional nominees for consideration by the Secretary. Once the 
Council has received all of the nominations from commissions or 
committees, the information will be submitted to the Secretary for 
appointment. Nominations for the initial Council will be handled by the 
Department. Subsequent nominations will be handled by the Council staff 
and shall be submitted to the Secretary not less than 90 days prior to 
the expiration of the term of office.
    If the Department determines that there are no State raspberry 
commissions or State marketing orders from States producing less than a 
minimum three-year average of three million pounds of raspberries 
delivered for processing, the Council will seek nominations from the 
State Departments of Agriculture for members and alternates from the 
specific States. The State Departments of Agriculture would

[[Page 16270]]

have the opportunity to participate in nomination caucuses and will 
directly submit as a group a single slate of nominations to the 
Department for the producer position and the producer alternate 
position on the Council for the initial Council. Subsequent nominations 
shall be submitted to the Council and will be handled by the Council 
staff who in turn shall submit those nominations to the Secretary not 
less than 90 days prior to the expiration of the term of office.
    Only producers from States that deliver raspberries for processing 
and pay assessments under the program are eligible for nomination and 
election to the Council. Average production will be based upon 
Department production data for the initial nomination and production 
figures generated by either the Council or the Department thereafter.
    Nominations for the three processed raspberry importer member 
positions and their alternates will be made by qualified national 
organizations representing importers. Two nominees for each member and 
each alternate position will be submitted to the Secretary for 
consideration.
    All qualified national organizations representing importers would 
have the opportunity to participate in nomination caucuses and will 
submit as a group a single slate of nominations to the Secretary for 
the importer positions and the importer alternate positions on the 
Council.
    Eligible organizations must submit nominations to the Department 
not less than 90 days prior to the expiration of the term of office. To 
become a qualified national organization representing importers under 
the Proposed Order, each such organization would be required to meet 
the following criteria: (1) Any organization representing importers 
must represent a substantial number of importers who market a 
substantial volume of raspberries for processing; (2) it must have a 
history of stability and permanency and have been in existence for more 
than one year; (3) it must promote processed raspberry importers' 
welfare; and (4) it must derive a portion of its operating funds from 
importers.
    If the Department determines that there are no qualified national 
organizations representing importers, individuals who have paid their 
assessments to the Council in the most recent fiscal year or for the 
initial Council, those that imported processed raspberries into the 
U.S. in the most recent fiscal year, could directly submit nominations 
to the Department for the initial Council. Subsequent nominations shall 
be submitted to the Council and will be handled by the Council staff 
who in turn shall submit those nominations to the Secretary not less 
than 90 days prior to the expiration of the term of office.
    Nominations for the two foreign producer member positions and their 
alternates will be made by qualified organizations representing foreign 
producers. Two nominees for each member and each alternate position 
will be submitted to the Secretary for consideration.
    All qualified organizations representing foreign producers would 
have the opportunity to participate in nomination caucuses and will 
submit as a group a single slate of nominations per country to the 
Secretary for foreign producer positions and the foreign producer 
alternate positions on the Council.
    Eligible organizations must submit nominations to the Department 
not less than 90 days prior to the expiration of the term of office. To 
become a qualified organization representing foreign producers under 
the Proposed Order, each such organization would be required to meet 
the following criteria: (1) Any organization representing foreign 
producers must represent a substantial number of foreign producers who 
market or produce a substantial volume of raspberries for processing; 
(2) it must have a history of stability and permanency and have been in 
existence for more than one year; (3) it must promote processed 
raspberry foreign producers' welfare; (4) it must derive a portion of 
its operating funds from foreign producers; and (5) must be from a 
country exporting a minimum of three million pounds of raspberries for 
processing to the U.S. based on a three-year average.
    If the Department determines that there are no qualified 
organizations representing foreign producer interest, individual 
foreign producers may directly submit nominations to the Department for 
the initial Council. Subsequent nominations shall be submitted to the 
Council and will be handled by the Council staff who in turn shall 
submit those nominations to the Secretary not less than 90 days prior 
to the expiration of the term of office.
    In recommending the at-large member and alternate, the Council can 
give consideration to nutrition health professionals and others 
interested in the raspberry industry. Nominations for the at-large 
member and alternate will be conducted at a Council meeting by the 
Council staff and shall be submitted by the Council to the Secretary 
for approval not less than 90 days prior to the expiration of the term 
of office. Nominations for the initial Council will be handled by the 
Department.
    The 1996 Act provides that to ensure fair and equitable 
representation, the composition of a board or council shall reflect the 
geographic distribution of the production of the agriculture commodity 
in the United States and the quantity or value of the agriculture 
commodity imported into the United States. The Proposed Order states 
that at least once every five years, but not more frequently than once 
every three years, the Council will review the geographic distribution 
of United States production of processed raspberries and the quantity 
and source of processed raspberry imports. If warranted, the Council 
will recommend to the Secretary that membership on the Council be 
altered to reflect any changes in geographic distribution of domestic 
raspberry production and the quantity of imports. Also, if the level of 
imports increases or decreases, importer members and alternates may be 
added or reduced on the Council. However, the foreign producer seats 
will remain the same regardless of the volume of imports from importing 
countries.
    The Proposed Order provides that all officers, employees, and 
agents of the Department and of the Council are required to keep 
confidential all information obtained from persons subject to the 
Proposed Order. This information would be disclosed only if the 
Department considers the information relevant, and the information is 
revealed in a judicial proceeding or administrative hearing brought at 
the direction or on the request of the Department or to which the 
Department or any officer of the Department is a party. However, the 
issuance of general statements based on reports or on information 
relating to a number of persons subject to the Proposed Order would be 
permitted, if the statements do not identify the information furnished 
by any person. Finally, the publication, by direction of the 
Department, of the name of any person violating the Proposed Order and 
a statement of the particular provisions of the Proposed Order violated 
by the person would be allowed.
    Proposed recordkeeping and reporting requirements for the raspberry 
promotion, research, and information program would be designed to 
minimize the burden on the raspberry industry.
    The estimated total cost of providing information to the Council by 
all respondents would be $9,141. This total has been estimated by 
multiplying 277 total hours required for reporting and recordkeeping by 
$33, the average mean

[[Page 16271]]

hourly earnings of various occupations involved in keeping this 
information. Data for computation of this hourly rate was obtained from 
the U.S. Department of Labor Statistics.
    With regard to alternatives to this proposed rule, the 1996 Act 
itself does provide for authority to tailor a program according to the 
individual needs of an industry. Provision is made for permissive terms 
in an order in section 516 of the 1996 Act, and other sections provide 
for alternatives. Section 514 of the 1996 Act provides for orders 
applicable to (1) producers, (2) first handlers and other persons in 
the marketing chain as appropriate, and (3) importers (if imports are 
subject to assessment). Section 516 states that an order may include an 
exemption of de minimis quantities of an agricultural commodity; 
different payment and reporting schedules; coverage of research, 
promotion, and information activities to expand, improve, or make more 
efficient the marketing or use of an agricultural commodity in both 
domestic and foreign markets; provision for reserve funds; provision 
for credits for generic activities for those individuals who contribute 
to other similar generic research, promotion, and information programs 
at State, regional or local level; and assessment of imports. In 
addition, section 518 of the 1996 Act provides for referenda to 
ascertain approval of an order to be conducted either prior to its 
going into effect or within three years after assessments first begin 
under the order. An order also may provide for its approval in a 
referendum to be based upon (1) a majority of those persons voting; (2) 
persons voting for approval who represent a majority of the volume of 
the agricultural commodity; or (3) a majority of those persons voting 
for approval who also represent a majority of the volume of the 
agricultural commodity. Section 515 of the 1996 Act provides for 
establishment of a council from among producers, first handlers, and 
others in the marketing chain as appropriate and importers, if 
importers are subject to assessment.
    This proposal includes provisions for both domestic and foreign 
market expansion and improvement; reserve funds; credits for generic 
activities; assessments on imports; and an initial referendum to be 
conducted prior to the Proposed Order going into effect. Approval would 
be determined by a majority of producers and importers voting for 
approval.
    Similar to WRRC, Oregon also has a state raspberry commission, the 
Oregon Raspberry and Blackberry Commission (ORBC). The WRRC and ORBC 
both administer State marketing orders, which require all producers of 
raspberries to pay assessments to support the health of their 
respective industries. According to WRRC, the two commissions have 
developed a good working relationship with each other over the years. 
Both the WRRC and ORBC invest funds into research programs at their 
land-grant universities and other research institutions to study 
disease, pest control, and varietal development. In addition to 
developing and funding production research, they also fund marketing 
and promotion programs and seek to foster education and communication 
between producers. However, according to the WRRC, WRRC, ORBC and 
international raspberry organizations have not been able to generate 
the funds necessary to support the marketing efforts needed to help 
expand processed raspberry consumption and increase the demand for 
processed raspberries. In order to manage increased production, 
increased competition, and changing consumer habits, the WRRC believes 
that a more extensive marketing program is needed. The WRRC and ORBC 
believe that a national research and promotion program would fund the 
promotional aspect necessary to stay competitive and would place all 
domestic producers and importers on an equal playing field with each 
investing a fair share in promoting processed raspberries. The Council 
may provide credits of assessments for those individuals who contribute 
to local, regional, or State organizations engaged in similar generic 
research, promotion, and information programs as applied to assessment 
due to the Council subject to approval of the Secretary, for 
expenditure on generic research, promotion and information programs 
conducted within the United States. If a national processed raspberry 
program is established, the WRRC and ORBC will continue to fund 
processed raspberry research in areas not likely to be the focus of the 
national program.
    The WRRC and ORBC programs are not able to engage raspberry 
production in other States or countries in a meaningful way. The 
proposed program is not intended to duplicate any State program. 
Considerable attention is being made to involve producers in 
discussions regarding future program development and administration and 
what the State commissions would look like prior to the initial 
referendum. It is expected that farm related activities, such as 
production research, would continue to be funded by the State 
organizations and market development functions, such as nutritional 
research and marketing programs, would shift to the Proposed Order.
    The WRRC proposed that producers and importers of less than 20,000 
pounds annually of raspberries for processing and processed raspberries 
respectively, be exempt from assessments. In addition, WRRC proposed 
that a producer who operates under an approved National Organic Program 
(NOP) system plan, produces only products eligible to be labeled as 100 
percent organic under the NOP, and is not a split operation, be exempt 
from paying assessments under the Proposed Order. An importer who 
imports only products eligible to be labeled as 100 percent organic 
under the NOP, and is not a split operation, would also be exempt from 
paying assessments.
    While the Department has performed this Initial Regulatory 
Flexibility Analysis regarding the impact of the proposed rule on small 
entities, in order to have as much data as possible for a more 
comprehensive analysis of the effects of this rule on small entities, 
we are inviting comments concerning potential effects. The Department 
is also requesting comments regarding the number and size of entities 
covered under the Proposed Order.

Paperwork Reduction Act

    In accordance with the Paperwork Reduction Act of 1995 [44 U.S.C. 
Chapter 35], AMS announces its intention to request an approval of a 
new information collection and recordkeeping requirements for the 
proposed Processed Raspberry Program.
    Title: Advisory Committee or Research and Promotion Background 
Information.
    OMB Number for background form AD-755: (Approved under OMB No. 
0505-0001).
    Expiration Date of Approval: March 31, 2009.
    Title: National Research, Promotion, and Consumer Information 
Programs.
    OMB Number: 0581-NEW.
    Expiration Date of Approval: 3 years from approval date.
    Type of Request: New information collection for research and 
promotion programs.
    Abstract: The information collection requirements in the request 
are essential to carry out the intent of the 1996 Act.
    There will also be the additional burden on producers and importers 
voting in referenda. The referendum ballot, which represents the 
information collection requirement relating to referenda, is addressed 
in a proposed rule on referendum procedures which is published 
separately in this issue of the Federal Register.

[[Page 16272]]

    Under the proposed program, first handlers would be required to 
collect assessments from producers and file reports with and submit 
assessments to the Council. While the Proposed Order would impose 
certain recordkeeping requirements on first handlers, information 
required under the Proposed Order could be compiled from records 
currently maintained. Such records shall be retained for at least two 
years beyond the marketing year of their applicability.
    Under the Proposed Order, importers are responsible to pay 
assessments. Importers must report the total quantity of produce 
imported during the reporting period and a record of each importation 
of such product during such period, giving quantity, date, and port of 
entry. Under the Proposed Order, Customs would collect assessments on 
imported processed raspberries and remit the funds to the Council.
    An estimated 297 respondents would provide information to the 
Council. They would be 195 producers, 50 importers, 34 first handlers/
processors, 5 organic producers and importers (for exemption purposes), 
2 foreign producers, 10 certified organizations (for nomination 
purposes), and 1 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 Proposed Order's provisions have been carefully reviewed, and 
every effort has been made to minimize any unnecessary recordkeeping 
costs or requirements, including efforts to utilize information already 
submitted under other raspberry programs administered by the Department 
and other state programs.
    The proposed forms would require the minimum information necessary 
to effectively carry out the requirements of the program, and their use 
is necessary to fulfill the intent of the 1996 Act. Such information 
can be supplied without data processing equipment or outside technical 
expertise. In addition, there are no additional training requirements 
for individuals filling out reports and remitting assessments to the 
Council. The forms would be simple, easy to understand, and place as 
small a burden as possible on the person required to file the 
information.
    Collecting information yearly would coincide with normal industry 
business practices. The timing and frequency of collecting information 
are intended to meet the needs of the industry while minimizing the 
amount of work necessary to fill out the required reports. The 
requirement to keep records for two years is consistent with normal 
industry practices. In addition, the information to be included on 
these forms is not available from other sources because such 
information relates specifically to individual producers, first 
handlers, processors, foreign producers, and importers who are subject 
to the provisions of the 1996 Act.
    Therefore, there is no practical method for collecting the required 
information without the use of these forms.
    Information collection requirements that are included in this 
proposal include:
    (1) A Background Information Form AD-755 (OMB Form No. 0505-0001).
    Estimate of Burden: Public reporting for this collection of 
information is estimated to average 0.5 hours per response for each 
Council nominee.
    Respondents: Producers, importers, foreign producers, and at-large 
nominee.
    Estimated Number of Respondents: 26 (52 for initial nominations to 
the Council, 26 in subsequent years).
    Estimated Number of Responses per Respondent: 1 every 3 years. 
(0.3)
    Estimated Total Annual Burden on Respondents: 26 hours for the 
initial nominations to the Council and 3.9 hours annually thereafter.
    (2) An Annual Report by Each First Handler of Processed 
Raspberries.
    Estimate of Burden: Public reporting burden for this collection of 
information is estimated to average 0.5 hours per first handler 
reporting on processed raspberries handled.
    Respondents: First handlers.
    Estimated Number of Respondents: 34.
    Estimated Number of Responses per Respondent: 1.
    Estimated Total Annual Burden on Respondents: 17 hours.
    (3) An Exemption Application for Producers and Importers Who Would 
Be Exempt from Assessments.
    Estimate of Burden: Public reporting burden for this collection of 
information is estimated to average 0.25 hours per producers, or 
importer reporting on processed raspberries produced or imported. Upon 
approval of an application, producers and importers will receive 
exemption certification.
    Respondents: Exempt producers and importers.
    Estimated Number of Respondents: 40.
    Estimated Number of Responses per Respondent: 1.
    Estimated Total Annual Burden on Respondents: 10 hours.
    (4) Application for Reimbursement of Assessment.
    Estimate of Burden: Public reporting burden for this collection of 
information is estimated to average 0.25 hours per request for 
reimbursement.
    Respondents: Importers.
    Estimated Number of Respondents: 10.
    Estimated Number of Responses per Respondent: 1.
    Estimated Total Annual Burden on Respondents: 2.5 hours.
    (5) A Requirement To Maintain Records Sufficient To Verify Reports 
Submitted Under the Order.
    Estimate of Burden: Public recordkeeping burden for keeping this 
information is estimated to average 0.5 hours per record keeper 
maintaining such records.
    Recordkeepers: Producers, first handlers, and importers.
    Estimated Number of Recordkeepers: 297.
    Estimated Total Recordkeeping Hours: 148.5 hours.
    (6) Application for Certification of Organizations.
    Estimate of Burden: Public recordkeeping burden for this collection 
of information is estimated to average 0.5 hours per application.
    Respondents: Importers and foreign producer organizations.
    Estimated Number of Respondents: 10.
    Estimated Number of Responses per Respondent: 1.
    Estimated Total Annual Burden on Respondents: 5 hours.
    (7) Nomination Appointment Form.
    Estimate of Burden: Public recordkeeping burden for this collection 
of information is estimated to average 0.25 hours per application.
    Respondents: Producers, importers, and foreign producers.
    Estimated Number of Respondents: 150.
    Estimated Number of Responses per Respondent: 1.
    Estimated Total Annual Burden on Respondents: 37.5 hours.
    (8) Nomination Appointment Ballot.
    Estimate of Burden: Public recordkeeping burden for this collection 
of information is estimated to average 0.25 hours per application.
    Respondents: Producers and importers.
    Estimated Number of Respondents: 150.
    Estimated Number of Responses per Respondent: 1.
    Estimated Total Annual Burden on Respondents: 37.5 hours.

[[Page 16273]]

    (9) Application for Assessments Credit.
    Estimate of Burden: Public recordkeeping burden for this collection 
of information is estimated to average 0.25 hours per application.
    Respondents: Producers.
    Estimated Number of Respondents: 50.
    Estimated Number of Responses per Respondent: 1.
    Estimated Total Annual Burden on Respondents: 12.5 hours.
    (10) Organic Exemption Form.
    Estimate of Burden: Public recordkeeping burden for this collection 
of information is estimated to average 0.5 hours per exemption form.
    Respondents: Producers and importers.
    Estimated Number of Respondents: 5.
    Estimated Number of Responses per Respondent: 1.
    Estimated Total Annual Burden on Respondents: 2.5 hours.

Request for Public Comment Under the Paperwork Reduction Act

    Comments are invited on: (a) Whether the proposed collection of 
information is necessary for the proper performance of functions of the 
Proposed Order and the Department's oversight of the Proposed Order, 
including whether the information would have practical utility; (b) the 
accuracy of the Department's estimate of the burden of the proposed 
collection of information, including the validity of the methodology 
and assumptions used; (c) the accuracy of the Department's estimate of 
the principal growing areas in the United States for raspberries 
destined for processing; (d) the accuracy of the Department's estimate 
of the number of producers and first handlers of processed raspberries 
that would be covered under the program; (e) ways to enhance the 
quality, utility, and clarity of the information to be collected; and 
(f) ways to minimize the burden of the collection of information on 
those who are to respond, including the use of appropriate automated, 
electronic, mechanical, or other technological collection techniques or 
other forms of information technology.
    Comments concerning the information collection requirements 
contained in this action should reference OMB No. 0581-NEW. In 
addition, the docket number, date, and page number of this issue of the 
Federal Register also should be referenced. Comments should be sent to 
the USDA Docket Clerk, Research and Promotion Branch, Fruit and 
Vegetable Programs, AMS, USDA, 1400 Independence Avenue, SW., Stop 
0244, Room 0632-S, Washington, DC 20250-0244. Comments may also be sent 
by facsimile to (202) 205-2800 or electronically to http://www.regulations.gov. All comments received will be available for public 
inspection during regular business hours at the same address. Comments 
regarding information collection should also be sent to the Office of 
Management and Budget at: Desk Office for Agriculture, Office of 
Information and Regulatory Affairs, Office of Management and Budget, 
New Executive Office Building, 725 17th Street, NW., Room 725, 
Washington, DC 20503.
    OMB is required to make a decision concerning the collection of 
information contained in this rule between 30 and 60 days after 
publication. Therefore, a comment to OMB is best assured of having its 
full effect if OMB receives it within 30 days of publication.

Background

    This rule proposes the implementation of a Processed Raspberry 
Promotion, Research, and Information Order (Proposed Order). The 
Department received the proposal for a new Order from the Washington 
Red Raspberry Commission (WRRC).
    The Proposed Order is authorized under the 1996 Act which 
authorizes the Department to establish agricultural commodity research 
and promotion orders which may include a combination of promotion, 
research, industry information, and consumer information activities 
funded by mandatory assessments. These programs are designed to 
maintain and expand market and uses for agricultural commodities. The 
Proposed Order would provide for the continued development and 
financing of a coordinated program of research, promotion, and 
information for processed raspberries.
    The 1996 Act provides for a number of optional provisions that 
allow the tailoring of orders for different commodities. Section 516 of 
the 1996 Act provides permissive terms for orders, and other sections 
provide for alternatives. For example, section 514 of the 1996 Act 
provides for orders applicable to (1) producers (if producers are 
subject to assessment), (2) first handlers and others in the marketing 
chain as appropriate, and (3) importers. Section 516 states that an 
order may include an exemption of de minimis quantities of an 
agricultural commodity; different payment and reporting schedules; 
coverage of research, promotion, and information activities to expand, 
improve, or make more efficient the marketing or use of an agricultural 
commodity in both domestic and foreign markets; provision for reserve 
funds; provision for credits for generic and branded activities; and 
assessment of imports.
    In addition, section 518 of the 1996 Act provides for referenda to 
ascertain approval of an order to be conducted either prior to its 
going into effect or within three years after assessments first begin 
under the order. An order also may provide for its approval in a 
referendum based upon different voting patterns. Section 515 provides 
for establishment of a board or council from among producers, first 
handlers and others in the marketing chain as appropriate, and 
importers, if imports are subject to assessment.
    This Proposed Order includes provisions for both domestic and 
foreign market expansion and improvement, reserve funds, credit for 
generic activities, and an initial referendum to be conducted prior to 
the Proposed Order going into effect. Approval would be determined by a 
majority of producers and importers voting for approval. Specific 
procedures to be followed in the referendum will be published in a 
separate Federal Register publication.
    In accordance with the 1996 Act, the Department would oversee the 
program's operations. In addition, the 1996 Act requires the Secretary 
to conduct subsequent referenda: (1) Not later than seven years after 
assessments first begin under the Proposed Order; or (2) at the request 
of the Council established under the Proposed Order; or (3) at the 
request of 10 percent or more of the number of persons eligible to 
vote. In addition to these criteria, the 1996 Act provides that the 
Secretary may conduct a referendum at any time to determine whether the 
continuation, suspension, or termination of an order or a provision of 
that order is favored by persons eligible to vote.
    The WRRC has requested that a referendum be conducted every five 
years to determine if producers and importers want the program to 
continue. However, the Department has increased the time period to 
seven years to make the Proposed Order consistent with other programs. 
In addition, the Proposed Order allows for the Secretary to conduct a 
subsequent referendum if 10 percent or more of all eligible producers 
of raspberries for processing and importers of processed raspberries 
request it; or if the Council requests a referendum to be held; or the 
Secretary may hold one at any time.
    A national research and promotion program for processed raspberries 
would help the industry to address the

[[Page 16274]]

many market problems it currently faces. According to the WRRC, three 
main factors currently affecting processed raspberry sales, both here 
in the domestic market and abroad, are increasing production, increased 
competition, and changing consumer habits.
    U.S. per capita consumption of processed raspberries has inched 
upward during the period 1991 to 2004, reaching a high of 0.3 pounds 
per person in 2003 and 2005. Over this period, consumption has ranged 
from 0.1 to 0.3 pounds per capita. This fluctuation is due to the 
effects of population growth, demographics of consumers, and the 
availability of substitute or competitive products. Profitability for 
producers of raspberries for processing depends on maintaining and 
increasing processed raspberry consumption. With crop value flat over 
this period, an organized market development program that grew market 
demand and increased per capita consumption could improve the farm gate 
value for all suppliers of processed raspberries. The WRRC believes a 
generic research and promotion program would provide an equitable 
manner for producers to share in the costs of product development, 
nutrition and marketing research, and processed raspberry promotion.
    According to the Department's Foreign Agricultural Service 
statistics, from 2002-2006, imports of processed raspberries have 
increased market share in the U.S. The statistics also suggests that 
the total market demand in the U.S. is continuing to grow, albeit at a 
rate slower than supply. The industry believes that the proposed 
processed raspberry program would increase demand, grow the market in 
the aggregate for all suppliers, and increase the value of processed 
raspberries at the grower level.
    The processed raspberry industry is facing strong competition in 
the marketplace from both indirect and direct competitors. Like all 
food products, processed raspberries must compete for a share of the 
consumer dollar. As competition in the supermarket increases, the 
processed raspberry industry must work harder to gain its share of 
consumer attention at a time when the industry's competitors expand 
their promotional activities.
    The WRRC was established in 1976 as a State-government entity 
authorized by a State marketing order which requires producers of all 
varieties of raspberries pay assessments to promote raspberry 
awareness, consumption, and to conduct research programs to study pest 
control and varietals development. There are over 40 different 
suppliers of raspberry products who make up the WRRC. These members pay 
the mandatory one-half cent per pound to fund promotion efforts 
directed to both consumer and industrial users.
    Similar to WRRC, Oregon also has a state raspberry commission, the 
Oregon Raspberry and Blackberry Commission (ORBC). The WRRC and ORBC 
both administer State marketing orders, which require all producers of 
raspberries to pay assessments to support the health of their 
respective industries. According to WRRC, the two commissions have 
developed a good working relationship with each other over the years. 
Both the WRRC and ORBC invest funds into research programs at their 
land grant universities and other research institutions to study 
disease, pest control, and varietal development. In addition to 
developing and funding production research, they also fund marketing 
and promotion programs and seek to foster education and communication 
between producers. However, according to the WRRC, WRRC, ORBC and 
international raspberry organizations have not been able to generate 
the funds necessary to support the marketing efforts needed to help 
expand processed raspberry consumption and increase the demand for 
processed raspberries. In order to manage increased production, 
increased competition, and changing consumer habits, the WRRC believes 
that a more extensive marketing program is needed. The WRRC and ORBC 
believe that a national research and promotion program would fund the 
promotional aspect necessary to stay competitive and would place all 
domestic producers and importers on an equal playing field with each 
investing a fair share in promoting processed raspberries. The Council 
may provide credits of assessments for those individuals who contribute 
to local, regional, or State organizations engaged in similar generic 
research, promotion, and information programs as applied to assessment 
due to the Council subject to approval of the Secretary, for 
expenditure on generic research, promotion and information programs 
conducted within the United States. If a national processed raspberry 
program is established, the WRRC and ORBC will continue to fund 
processed raspberry research in areas not likely to be the focus of the 
national program.
    In 2006, an informal strategic review was conducted by the WRRC and 
the Raspberry Industry Development Council, who represents raspberry 
growers in British Columbia, Canada. During the strategic review, 
public and private sector industry representatives and food processors 
were interviewed seeking answers to the challenging dynamics facing the 
raspberry industry. The participants in the raspberry industry 
concluded that demand and market growth could best be accomplished by: 
(1) Analyzing existing nutritional research and conducting new research 
on the positive nutritional qualities of raspberries; (2) communicating 
raspberries nutritional advantages to consumers, food processors, and 
food industry in simple terms; and (3) increasing the number of new 
raspberry products and the use of raspberries in existing products.
    The raspberry industry recognizes that there currently exists a 
strong scientific basis to support the health benefits of raspberries, 
including processed raspberries, but the current data has not been 
effectively communicated to food processors or consumers.
    According to the WRRC, market growth for processed raspberries has 
been impeded by disorganized and fractured marketing with no clear and 
consistent message, and by a dearth of merchandising and new product 
development. Additionally, scientifically validated health-based 
research could have important marketing ramifications, but unless the 
findings are accompanied by a clear consistent marketing message to 
communicate significant results, there will be little or no impact on 
increasing processed raspberry consumption.
    In addition, the raspberry industry understands that consumers need 
to know about foods that are good for their health. According to the 
WRRC, it is widely accepted that North Americans are increasingly 
concerned with improving their quality of life, and raspberries are 
positioned to respond to this trend. Consumers will not sacrifice 
flavor or enjoyment, and they are increasingly making food choices 
based on how they affect their future health. Aging demographics are 
creating demand for nutraceutical, health maintenance, and disease 
prevention attributes in food products. Consumers want to maintain 
health and vitality as they age. Foods such as raspberries can be 
positively linked to achieving this desire.
    WRRC stated that given processed raspberries low profile and 
stagnant market, the raspberry industry must increase awareness of the 
possible health attributes of raspberries, explore new product 
applications, become established in new domestic market niches, and 
develop new products if it is to realize its potential for market 
development. WRRC believes that these

[[Page 16275]]

challenges facing the processed raspberry industry to grow the market 
are not insurmountable. Through a generic research and promotion 
program, the raspberry industry would be able to: Capitalize more 
effectively on the possible health benefits of raspberries; improve 
demand and strengthen their position in the marketplace; maintain and 
expand existing domestic and foreign markets; and develop new markets 
and uses for processed raspberries.
    Additional funds generated through a national program would allow 
the processed raspberry industry to take advantage of a wide range of 
promotional opportunities. At a minimum, increased funding would allow 
the industry to expand its current consumer, food service, and food 
manufacturer promotion efforts.
    Section 516(f) of the 1996 Act allows an order to authorize the 
levying of assessments on imports of the commodity covered by the 
program or on products containing that commodity, at a rate comparable 
to the rate determined for the domestic agricultural commodity covered 
by the order. WRRC has proposed to assess imports as well as domestic 
product.
    The assessment levied on domestically-produced and imported 
processed raspberries would be used to pay for promotion, research, and 
consumer and industry information as well as administration, 
maintenance, and functioning of the Council. Expenses incurred by the 
Secretary in implementing and administering the Proposed Order, 
including referenda costs, also would be paid from assessments. 
Assessments would be paid by producers and importers of 20,000 or more 
pounds of raspberries for processing or processed raspberries 
respectively. The number of entities assessed under the program would 
be around 245. Estimated revenue is expected at $1.2 million of which 
43 percent is expected from imported product and 57 percent from 
domestic product.
    Section 516(e)(1) and (2) of the 1996 Act allows the Secretary to 
provide credits of assessments for generic and branded activities. The 
WRRC has elected to propose credits for generic activities. The 
Proposed Order gives the Council authority to provide credits of 
assessments for those individuals who contribute to other similar 
generic research, promotion, and information programs at the State, 
regional, or local level subject to the approval of the Secretary. The 
activities must be generic in nature and may not promote a particular 
State or region's product. No credit will be given for funds expended 
for administrative purposes.
    Under the Proposed Order ``first handler'' would be defined as any 
person (excluding a common or contract carrier) receiving raspberries 
for processing from producers in a calendar year and who, as owner or 
agent, ships or causes processed raspberries to be shipped as specified 
in the Proposed Order. This definition includes those engaged in the 
business of buying, selling and/or offering for sale, receiving, 
packing, grading, marketing, or distributing raspberries in commercial 
quantities. This definition excludes a retailer, except a retailer who 
purchases or acquires from, or handles on behalf of, any producer of 
raspberries for processing. The term first handler includes a producer 
who handles or markets raspberries of the producer's own production. In 
addition, ``handle'' would be defined to mean to process, package, 
sell, transport, purchase or in any other way place processed 
raspberries, or cause them to be placed, in the current of commerce. 
This term includes selling processed raspberries imported into the 
United States. This term does not include the transportation of fresh 
raspberries by the producer to a handler or transportation by a 
commercial carrier of fresh raspberries and organic raspberries, 
whether processed or unprocessed for the account of the first handler 
or producer.
    First handlers would be responsible for the collection of 
assessments from producers of raspberries for processing. In the case 
of the producer acting as its own first handler, the producer would be 
required to collect and remit its individual assessments. Such 
assessments would be levied at a rate of up to one cent per pound, with 
the initial assessment rate being one cent per pound, from the producer 
and payment would be remitted by the collecting first handler to the 
Council. First handlers would be required to maintain records for each 
producer for whom raspberries for processing are handled, including 
raspberries produced by the first handler. In addition, first handlers 
would be required to file reports regarding the collection, payment, or 
remittance of the assessments to the Council.
    The Proposed Order would define importer as any person importing 
20,000 or more pounds of processed raspberries into the United States 
in a calendar year as a principal or as an agent, broker, or consignee 
of any person who produces or handles processed raspberries outside of 
the United States for sale in the United States, and who is listed in 
the import records as the importer of record for such processed 
raspberries.
    Assessments on imported processed raspberries would be collected by 
Customs at the time of entry into the United States and remitted to the 
Council. If Customs does not collect an assessment from an importer, 
the importer would be responsible for paying the assessment directly to 
the Council. Section 516 (f) of the 1996 Act allows assessments on 
imported product comparable to the assessment on domestic product. 
Accordingly, the assessment rate for imported processed raspberries 
would be up to one cent per pound, with the initial rate being one cent 
per pound.
    Persons failing to remit assessments due in a timely manner may 
also be subject to actions under the Federal debt collection procedures 
as set forth in 7 CFR 3.1 through 3.36 for all research and promotion 
programs administered by the Department [60 FR 12533]. Interest and 
late payment are also provided for in this Proposed Order.
    The Proposed Order allows the Council to recommend to the Secretary 
an increase or decrease to the assessment rate, if it deems appropriate 
and if approved by at least one vote more than 50 percent of the total 
votes of members present at a meeting of the Council. The initial 
assessment will be levied at a rate of one cent per pound on all 
processed raspberries. Thereafter, the assessment rate will be levied 
at a rate of up to one cent per pound on all processed raspberries. The 
assessment rate will be reviewed, and increased or decreased as 
recommended by the Council and approved by the Secretary after the 
first referendum is conducted as stated in Sec.  1208.71 (b). Such an 
increase or decrease may occur not more than once annually. Any change 
in the assessment rate shall be subject to rulemaking by the 
Department, and will be reviewed, and increased or decreased by the 
Secretary through rulemaking as recommended by the Council. Any change 
in the assessment rate shall be announced by the Council at least 30 
days prior to going into effect. The maximum assessment rate authorized 
is one cent per pound.
    All information obtained from persons subject to this Proposed 
Order as a result of recordkeeping and reporting requirements would be 
kept confidential by all officers, employees, and agents of the 
Department and of the Council. This information may be disclosed only 
if the Secretary considers the information relevant, and the 
information is revealed in a judicial proceeding or administrative 
hearing brought at the direction or on the

[[Page 16276]]

request of the Secretary or to which the Secretary or any officer of 
the Department is a party. Other exceptions for disclosure of 
confidential information would include the issuance of general 
statements based on reports or on information relating to a number of 
persons subject to an order, if the statements do not identify the 
information furnished by any person or the publication; and by 
direction of the Secretary of the name of any person violating the 
Proposed Order and a statement of the particular provisions of the 
Proposed Order violated by the person.
    Under the Proposed Order producers and importers of less than 
20,000 pounds a year of raspberries for processing and processed 
raspberries respectively, are exempt from paying assessments. In 
addition, a producer who operates under an approved National Organic 
Program (NOP) system plan, produces only products eligible to be 
labeled as 100 percent organic under the NOP, and is not a split 
operation, is exempt from the paying assessments under the Proposed 
Order. An importer who imports only products eligible to be labeled as 
100 percent organic under the NOP, and is not a split operation, also 
is exempt from paying assessments.
    As the Proposed Order provides, producers and importers will be 
responsible for paying assessments, however, the collection of 
assessments will be the responsibility of the first handler receiving 
the raspberries for processing or Customs for imported product. The 
Proposed Order states that producers, handlers, and importers will also 
be responsible for filing reports and maintaining records regarding the 
amount of raspberries that were delivered for processing and the 
assessments collected.
    First handlers would be required to file reports and maintain 
records on the total raspberries that were delivered for processing 
from producers or the handling for their own product, on the total 
number of pounds handled; number of pounds on which an assessment was 
collected; name and address of the persons from whom the first handler 
collected assessments on each pound handled; and the date the 
collection of assessments was made on each pound handled. In addition, 
producers would be required to provide the Council periodically such 
information as may be required by the Council. The Council would 
recommend to the Department specific reporting periods and dates when 
such reports are due to the Council.
    Unless otherwise provided by Customs, importers would be required 
to report the total amount of processed raspberries imported during 
such period, including the quantity, date, country of origin, and port 
of entry. Under the Proposed Order, Customs would collect assessments 
on imported processed raspberries and remit the funds to the Council.
    Each first handler, producer, and importer of processed 
raspberries, including those who would be exempt from paying 
assessments under the Proposed Order, would be required to maintain any 
books and records necessary to carry out the provisions of the Proposed 
Order for two years beyond the fiscal period to which they apply. This 
would include the books and records necessary to verify any required 
reports. These books and records would be made available to the 
Council's or Department's employees or agents during normal business 
hours for inspection if necessary.
    Section 515 of the 1996 Act provides for the establishment of a 
board or council consisting of producers, first handlers, and others in 
the marketing chain, as appropriate. The Department would appoint 
members to the Council from nominees submitted in accordance with a 
Proposed Order. The Proposed Order would provide for the establishment 
of the Processed Raspberry Promotion, Research, and Information Order, 
under AMS oversight. The WRRC proposed that the Council be composed of 
thirteen members and their alternates. The Department made a slight 
revision to the distribution of members originally proposed by the WRRC 
to comply with geographical distribution of the production as required 
under the 1996 Act. The proposed Council membership is as follows: Six 
processed raspberry producer members from States producing a minimum of 
three million pounds of raspberries delivered for processing; one 
processed raspberry producer member representing all other States that 
produce less than the minimum of three million pounds of raspberries 
delivered for processing; three processed raspberry importer members; 
two foreign producers from countries exporting a minimum of three 
million pounds of raspberries for processing to the U.S. based on a 
three-year average; and one at-large member recommended by the Council.
    Under the Proposed Order, the Council members and alternates will 
serve for a term of three years and be able to serve a maximum of two 
consecutive terms. When the Council is first established, four producer 
members, two importers, one at-large member, and one foreign producer 
and their respective alternates will be assigned initial terms of three 
years; and, three producer members, one importer members, and one 
foreign producer member and their respective alternates will serve an 
initial term of two years. Thereafter, each of these positions will 
carry a full three-year term. Members serving an initial term of two 
years will be eligible to serve a second three year term to complete 
their eligibility. Council nominations and appointments will take place 
in two out of every three years. Each term of office will end on 
December 31, with new terms of office beginning on January 1.
    Producers and importers would represent those entities in the 
United States. The United States would be defined to include 
collectively the 50 States, the District of Columbia, the Commonwealth 
of Puerto Rico and the territories and possessions of the United 
States.
    The nominations for the six producer and alternate members from 
States producing a minimum three-year average of three million pounds 
of raspberries delivered for processing will be submitted to the 
Council in the following manner: (1) For those States that have a State 
raspberry commission or State marketing order, the State commission or 
committee will nominate producers and their alternates to serve; or (2) 
for those States that do not have a State commission or State marketing 
order, the Council will seek nominations from the State Departments of 
Agriculture for members and alternates from the specific States.
    For those States producing a minimum three-year average of three 
million pounds of raspberries delivered for processing that have a 
State raspberry commission or State marketing order, the State 
commission or committee nominations will be returned to the Council and 
placed on a ballot which will then be sent to producers in the State 
for a vote. The nominee for member will have received the highest 
number of votes cast. The person with the second highest number of 
votes cast will be the nominee for alternate. The persons with the 
third and fourth place highest number of votes cast will be designated 
as additional nominees for consideration by the Secretary. Once the 
Council has received all of the nominations from commissions or 
committees, the information will be submitted to the Secretary for 
appointment. Nominations for the initial Council will be handled by the 
Department. Subsequent nominations will be handled by the Council staff 
and shall be submitted to

[[Page 16277]]

the Secretary not less than 90 days prior to the expiration of the term 
of office.
    If the Department determines that there are no State raspberry 
commissions or State marketing orders from States producing a minimum 
three-year average of three million pounds of raspberries delivered for 
processing, the Council will seek nominations from the State 
Departments of Agriculture for members and alternates from the specific 
States who may directly submit nominations to the Department for the 
initial Council. Subsequent nominations shall be submitted to the 
Council and will be handled by the Council staff who in turn shall 
submit those nominations to the Secretary not less than 90 days prior 
to the expiration of the term of office.
    The distribution of the six producer and alternate seats will be 
proportional to the percentage determined by the average of the total 
pounds produced and delivered to processors for processing over the 
previous three years divided by the average total pounds produced over 
the previous three years. For example, if Washington State and Oregon 
are the only two States producing a minimum of 3 million pounds each, 
and Washington's previous three year average is 62.4 million pounds and 
Oregon's previous three year average is 6.7 million pounds with the 
average total pounds for the previous three years being 69.1 million 
pounds, Washington would have 90 percent of the production and Oregon 
would have 10 percent of the production. Therefore, Washington would 
obtain five out of the six seats and Oregon would receive one seat.
    The nomination for the one raspberry producer of raspberries for 
processing and alternate member, who represents all other States 
producing less than a minimum three year average of three million 
pounds of raspberries delivered for processing, will constitute a 
region and the nominations will be submitted to the Council in the 
following manner: (1) For those States that have a State raspberry 
commission or State marketing order, the State commission or committee 
will nominate producers and their alternates to serve; or (2) for those 
States that do not have a State commission or State marketing order, 
the Council will seek nominations from the State Departments of 
Agriculture for the member and alternate from the specific States.
    For those States producing less than a minimum three year average 
of three million pounds of raspberries delivered for processing that 
have a State raspberry commission or State marketing order, the State 
commission or committee nominations will be returned to the Council and 
placed on a ballot which will then be sent to producers in the Region 
for a vote. The nominee for member will have received the highest 
number of votes cast. The person with the second highest number of 
votes cast will be the nominee for alternate. The persons with the 
third and fourth place highest number of votes cast will be designated 
as additional nominees for consideration by the Secretary. Once the 
Council has received all of the nominations from commissions or 
committees, the information will be submitted to the Secretary for 
appointment. Nominations for the initial Council will be handled by the 
Department. Subsequent nominations will be handled by the Council staff 
and shall be submitted to the Secretary not less than 90 days prior to 
the expiration of the term of office.
    If the Department determines that there are no State raspberry 
commissions or State marketing orders from States producing less than a 
minimum three year average of three million pounds of raspberries 
delivered for processing, the Council will seek nominations from the 
State Departments of Agriculture for members and alternates from the 
specific States. The State Departments of Agriculture would have the 
opportunity to participate in nomination caucuses and will directly 
submit as a group a single slate of nominations to the Department for 
the producer position and the producer alternate position on the 
Council for the initial Council. Subsequent nominations shall be 
submitted to the Council and will be handled by the Council staff who 
in turn shall submit those nominations to the Secretary not less than 
90 days prior to the expiration of the term of office.
    Only producers from States that deliver raspberries for processing 
and pay assessments under the program are eligible for nomination and 
election to the Council. Average production will be based upon 
Department production data for the initial nomination and production 
figures generated by either the Council or the Department thereafter.
    Nominations for the three processed raspberry importer member 
positions and their alternates will be made by qualified national 
organizations representing importers. Two nominees for each member and 
each alternate position will be submitted to the Secretary for 
consideration.
    All qualified national organizations representing importers would 
have the opportunity to participate in nomination caucuses and will 
submit as a group a single slate of nominations to the Secretary for 
the importer positions and the importer alternate positions on the 
Council.
    Eligible organizations must submit nominations to the Department 
not less than 90 days prior to the expiration of the term of office. To 
become a qualified national organization representing importers under 
the Proposed Order, each such organization would be required to meet 
the following criteria: (1) Any organization representing importers 
must represent a substantial number of importers who market a 
substantial volume of raspberries for processing; (2) it must have a 
history of stability and permanency and have been in existence for more 
than one year; (3) it must promote processed raspberry importers' 
welfare; and (4) it must derive a portion of its operating funds from 
importers.
    If the Department determines that there are no qualified national 
organizations representing importers, individuals who have paid their 
assessments to the Council in the most recent fiscal year or for the 
initial Council those that importers processed raspberries into the 
U.S. could directly submit nominations to the Department for the 
initial Council. Subsequent nominations shall be submitted to the 
Council and will be handled by the Council staff who in turn shall 
submit those nominations to the Secretary not less than 90 days prior 
to the expiration of the term of office.
    Nominations for the two foreign producer member positions and their 
alternates will be made by qualified organizations representing foreign 
producers. Two nominees for each member and each alternate position 
will be submitted to the Secretary for consideration.
    All qualified organizations representing foreign producers would 
have the opportunity to participate in nomination caucuses and will 
submit as a group a single slate of nominations per country to the 
Secretary for foreign producer positions and the foreign producer 
alternate positions on the Council.
    Eligible organizations must submit nominations to the Department 
not less than 90 days prior to the expiration of the term of office. To 
become a qualified organization representing foreign producers under 
the Proposed Order, each such organization would be required to meet 
the following criteria: (1) Any organization representing foreign 
producers must represent a substantial number of foreign producers who 
market or produce a substantial volume of raspberries for processing; 
(2)

[[Page 16278]]

it must have a history of stability and permanency and have been in 
existence for more than one year; (3) it must promote processed 
raspberry foreign producers' welfare; (4) it must derive a portion of 
its operating funds from foreign producers; and (5) it must be from a 
country exporting a minimum of three million pounds of raspberries for 
processing to the U.S. based on a three-year average.
    If the Department determines that they are no qualified 
organizations representing foreign producer interest, individual 
foreign producers may directly submit nominations to the Department for 
the initial Council. Subsequent nominations shall be submitted to the 
Council and will be handled by the Council staff who in turn shall 
submit those nominations to the Secretary not less than 90 days prior 
to the expiration of the term of office.
    In recommending the at-large member and alternate, the Council can 
give consideration to nutrition health professionals and others 
interested in the raspberry industry. Nominations for the at-large 
member and alternate will be conducted at a Council meeting by the 
Council staff and shall be submitted by the Council to the Secretary 
for approval. Nominations for the initial Council will be handled by 
the Department. Subsequent nominations will be handled by the Council 
staff and shall be submitted to the Secretary not less than 90 days 
prior to the expiration of the term of office.
    The 1996 Act provides that to ensure fair and equitable 
representation, the composition of a board or council shall reflect the 
geographic distribution of the production of the agriculture commodity 
in the United States and the quantity or value of the agriculture 
commodity imported into the United States. The Order states that at 
least once every five years, but not more frequently than once every 
three years, the Council will review the geographic distribution of 
United States production of raspberries for processing and the quantity 
and source of processed raspberry imports. If warranted, the Council 
will recommend to the Secretary that membership on the Council be 
altered to reflect any changes in geographic distribution of domestic 
raspberry production and the quantity of imports. Also, if the level of 
imports increases, importer members and alternates may be added to the 
Council. However, the foreign producer seats will remain the same 
regardless of the volume of imports from importing countries.
    Upon implementation of the Proposed Order and pursuant to the 1996 
Act, the Council would at least once in each five-year period, but not 
more frequently than once in each three-year period review the 
geographical distribution of processed raspberries in the United States 
and the quantity of processed raspberries imported into the United 
States and make a recommendation to the Secretary after considering the 
results of its review and other information it deems relevant regarding 
the reapportionment of the Council.
    The Proposed Order indicates the Council may recommend to the 
Department that a member be removed from office if the member 
consistently refuses to perform his or her duties or engages in 
dishonest acts or willful misconduct. The Department may remove the 
member if the Department finds that the Council's recommendation 
demonstrates cause.
    In the event any member or alternate of the Council ceases to be a 
member of the category from which the member was appointed to the 
Council, such position will automatically become vacant. Should any 
member position become vacant the alternate of that member shall 
automatically assume the position of member.
    Under the Proposed Order, a quorum is met when a majority (one more 
than half) of the Council members is present. An alternate will be 
counted for the purpose of determining a quorum only if the members for 
whom the person is the alternate is absent or disqualified from 
participating. Also, under the Proposed Order, a change for any matter 
put to the Council will carry if supported by one vote more than 50 
percent of the total votes represented by the Council members present.
    Under the Proposed Order, the chairperson of the Council must 
reside in the United States and the Council will be located in the 
United States.
    The Proposed Order states that the Council may not expend for 
administration, maintenance, and functioning of the Council in any 
fiscal year an amount that exceeds 15 percent of the assessments and 
other income received by the Council for that fiscal year.
    The Department modified the WRRC's proposal to make it consistent 
with the 1996 Act and to provide clarity, consistency, and correctness 
with respect to word usage and terminology. The Department also changed 
the proposal to make it consistent with other similar national research 
and promotion programs. Changes made by the Department to the WRRC's 
proposal include: (1) To add the term processor which is presented in 
WRRC's proposal; (2) to specify the initial terms of office for the 
Council and to stagger the terms for future years; (3) to modify the 
criteria under nominations if a member or alternate is no longer 
affiliated with the organization he or she was nominated to represent; 
(4) to modify the four harmonized tariff codes that were presented and 
reduce it to one harmonized tariff code; (5) to clarify the nomination 
process for obtaining nominees for both States with State commissions 
or committees and those that do not have State commissions; (6) to 
clarify the nomination process for obtaining nominees from the minor 
States and/or region in which the Council will handle instead of the 
WRRC; (7) to add reports that may be required by producers and 
importers; (8) to add the provision under subsequent referenda that the 
Council may request a referendum be held as stated in the 1996 Act; (9) 
to clarify the staggered terms of office and that members serving a two 
year term will only be eligible to serve a second term; (10) to clarify 
under the procedures that a quorum at a Council meeting will be a 
majority of the Council members and alternates participating in the 
meeting; (11) to clarify that any funds borrowed by the Council shall 
be expended for startup costs and capital outlays and they are limited 
to the first year of operation of the Council as stated in the 1996 
Act; (12) to add language concerning the exemption procedures for 
organic processed raspberries; (13) to add language concerning the 
reports that the Council may require of producers and importers; (14) 
to eliminate the word red from raspberries to conform with the 
harmonized tariff code; (15) to eliminate voting by proxy; (16) to add 
language under the procedures requiring that the chairperson and the 
treasurer reside in the United States; (17) to add language under the 
procedures requiring all Council meetings to be held in the United 
States; (18) to add language under the procedures requiring the Council 
office to be located in the United States; (19) to change the Council's 
name from United States Raspberry Council to the National Processed 
Raspberry Council; (20) to add language under the subsequent referendum 
that complies with the 1996 Act concerning the Council requesting the 
Secretary to conduct a referendum; (21) to add that importer 
nominations will be handled by qualified national organizations; (22) 
to add that foreign producer nominations will be handled by qualified 
organizations; (23) to add nomination procedures for States producing a 
minimum of three million

[[Page 16279]]

pounds of raspberries delivered for processing, and whose State does 
not have a State commission or State marketing order; (24) to add 
nomination procedures for States producing less than a minimum three 
year average of three million pounds of raspberries delivered for 
processing, and whose State does not have a State commission or State 
marketing order; (25) to add the qualification process to become a 
qualified organization representing importer or foreign producer 
interests; and (26) to make a slight revision to the distribution of 
members originally proposed by the WRRC to comply with geographical 
distribution of the production as required under the 1996 Act.
    The Proposed Order is summarized as follows: 1208.1 through 1208.29 
of the Proposed Order define certain terms, such as processed 
raspberries, first handler, and importer, which are used in the 
Proposed Order.
    Sections 1208.40 through 1208.48 include provisions relating to the 
Council. These provisions cover establishment and membership, 
nominations and appointments, term of office, vacancies, alternate 
members, and procedures for conducting Council business, compensation 
and reimbursement, and powers and duties of the Council, and prohibited 
activities. The Council is the governing body authorized to administer 
the Proposed Order through the implementation of programs, plans, 
projects, budgets, and contracts to promote and disseminate information 
about processed raspberries, subject to oversight of the Secretary.
    Sections 1208.50 through 1208.56 cover budget review and approval; 
financial statements; authorize the collection of assessments; specify 
how assessments would be used, including reimbursement of necessary 
expenses incurred by the Council for the performance of its duties and 
expenses incurred for the Department's oversight responsibilities; 
specify who pays the assessment and how; authorize the imposition of a 
late-payment charge on past-due assessments; outline exemption 
procedures; address programs, plans, and projects; require the Council 
to periodically conduct an independent review of its overall program; 
and address patents, copyrights, trademarks, information, publications, 
and product formulations developed through the use of assessment funds.
    The proposed assessment rate is up to one cent per pound for 
domestic processed raspberries and imported processed raspberries, with 
the initial assessment rate being one cent per pound. The assessment 
rate will be reviewed, and increased or decreased as recommended by the 
Council and approved by the Secretary after the first referendum is 
conducted as stated in Sec.  1208.71 (a). Such an increase or decrease 
may occur not more than once annually and may not exceed the initial 
assessment rate of one cent per pound. Any change in the assessment 
rate shall be subject to rulemaking by the Department, and will be 
reviewed, and increased or decreased by the Secretary through 
rulemaking as recommended by the Council. Any change in the assessment 
rate shall be announced by the Council at least 30 days prior to going 
into effect. The maximum assessment rate authorized is one cent per 
pound.
    The assessment rate may be raised or lowered at a rate greater than 
one cent after the initial continuance referendum which would be 
conducted after the program has been in operation five years. A 
referendum to approve the new assessment rate or for any other change 
is not required.
    Sections 1208.60 through 1208.62 concerns reporting and 
recordkeeping requirements for persons subject to the Proposed Order 
and protect the confidentiality of information from such books, 
records, or reports.
    Sections 1208.70 through 1208.78 describe the rights of the 
Secretary; address referenda; authorize the Secretary to suspend or 
terminate the Proposed Order when deemed appropriate; prescribe 
proceedings after termination; address personal liability, 
separability, and amendments; and provide OMB control numbers.
    While the proposal set forth below has not received the approval of 
the Department, it is determined that this Proposed Order is consistent 
with and will effectuate the purposes of the 1996 Act.
    For the Proposed Order to become effective, it must be approved by 
a majority of producers and importers voting for approval in the 
referendum. Referendum procedures will be published separately in this 
issue of the Federal Register.
    A 60-day comment period is provided to allow interested persons to 
respond to this proposal. All written comments received in response to 
this rule by the date specified would be considered prior to finalizing 
this action.

List of Subjects in 7 CFR Part 1208

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

    For the reasons set forth in the preamble, it is proposed that 
Title 7, Chapter XI of the Code of Federal Regulations be amended by 
adding part 1208 to read as follows:

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

Subpart A--Processed Raspberry Promotion, Research, and Information 
Order

Definitions

Sec.
1208.1 Act.
1208.2 Conflict of interest.
1208.3 Crop year.
1208.4 Customs.
1208.5 Department.
1208.6 First handler.
1208.7 Fiscal period.
1208.8 Foreign producer.
1208.9 Handle.
1208.10 Importer.
1208.11 Information.
1208.12 Market or marketing.
1208.13 National Processed Raspberry Council.
1208.14 Order.
1208.15 Part and subpart.
1208.16 Person.
1208.17 Processed raspberries.
1208.18 Processor.
1208.19 Producer.
1208.20 Promotion.
1208.21 Qualified national organization representing importer 
interests.
1208.22 Qualified organization representing foreign producer 
interests.
1208.23 Raspberries.
1208.24 Research.
1208.25 Secretary.
1208.26 State.
1208.27 Suspend.
1208.28 Terminate.
1208.29 United States.

National Processed Raspberry Council

1208.40 Establishment and membership.
1208.41 Nominations and appointments.
1208.42 Term of office.
1208.43 Vacancies.
1208.44 Alternate members.
1208.45 Procedure.
1208.46 Compensation and reimbursement.
1208.47 Powers and duties.
1208.48 Prohibited activities.

Expenses and Assessments

1208.50 Budget and expenses.
1208.51 Financial statements.
1208.52 Assessments.
1208.53 Exemption and reimbursement procedures.
1208.54 Programs, plans, and projects.
1208.55 Independent evaluation.
1208.56 Patents, copyrights, trademarks, information, publications, 
and product formulations.

[[Page 16280]]

Reports, Books, and Records

1208.60 Reports.
1208.61 Books and records.
1208.62 Confidential treatment.

Miscellaneous

1208.70 Right of the Secretary.
1208.71 Referenda.
1208.72 Suspension and termination.
1208.73 Proceedings after termination.
1208.74 Effect of termination or amendment.
1208.75 Personal liability.
1208.76 Separability.
1208.77 Amendments.
1208.78 OMB control numbers.
Subpart B--[Reserved]

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

Subpart A--Processed Raspberry Promotion, Research, and Information 
Order

Definitions


Sec.  1208.1  Act.

    Act means the Commodity Promotion, Research, and Information Act of 
1996 (7 U.S.C. 7411-7425), and any amendments thereto.


Sec.  1208.2  Conflict of interest.

    Conflict of interest means a situation in which a member or 
employee of the Council has a direct or indirect financial interest in 
a person who performs a service for, or enters into a contract with, 
the Council for anything of economic value.


Sec.  1208.3  Crop year.

    Crop year means the 12-month period from April 1 to March 31 of the 
following year or such other period approved by the Secretary.


Sec.  1208.4  Customs.

    Customs means the United States Customs and Border Protection or 
U.S. Customs Service, an agency of the United States Department of 
Homeland Security.


Sec.  1208.5  Department.

    Department means the United States Department of Agriculture or any 
officer or employee of the Department to whom authority has heretofore 
been delegated, or to whom authority may hereafter be delegated, to act 
in the Secretary's stead.


Sec.  1208.6  First handler.

    First handler means any person (excluding a common or contract 
carrier) receiving raspberries for processing from producers in a 
calendar year and who as owner or agent, ships or causes processed 
raspberries to be shipped as specified in the Order. This definition 
includes those engaged in the business of buying, selling and/or 
offering for sale, receiving, packing, grading, marketing, or 
distributing processed raspberries in commercial quantities. This 
definition excludes a retailer, except a retailer who purchases or 
acquires from, or handles on behalf of, any producer of raspberries for 
processing. The term first handler includes a producer who handles or 
markets raspberries for processing of the producer's own production.


Sec.  1208.7  Fiscal period.

    Fiscal period means a calendar year from April 1 through March 31 
both dates inclusive, or such other period as approved by the 
Secretary.


Sec.  1208.8  Foreign producer.

    Foreign producer means any person:
    (a) Who is engaged in the production and sale of raspberries for 
processing outside of the United States and who owns, or shares the 
ownership and risk of loss of raspberries for processing for sale in 
the U.S. market; or
    (b) Who is engaged, outside of the United States, in the business 
of producing, or causing to be produced, processed raspberries beyond 
the person's own family use and having value at first point of sale.


Sec.  1208.9  Handle.

    Handle means to pack, process, sell, transport, purchase, or in any 
other way to place or cause processed raspberries to which one has 
title or possession to be placed in the current of commerce. Such term 
shall not include the transportation or delivery of raspberries for 
processing by the producer thereof to a handler.


Sec.  1208.10  Importer.

    Importer means any person importing 20,000 pounds or more of 
processed raspberries into the United States in a calendar year as a 
principal or as an agent, broker, or consignee of any person who 
produces or handles processed raspberries outside of the United States 
for sale in the United States, and who is listed in the import records 
as the importer of record for such processed raspberries.


Sec.  1208.11  Information.

    Information means information and programs that are designed to 
increase efficiency in processing and to develop new markets, marketing 
strategies, increase market efficiency, and activities that are 
designed to enhance the image of raspberries on a national basis. These 
include:
    (a) Consumer information, which means any action taken to provide 
information to, and broaden the understanding of, the general public 
regarding the consumption, use, nutritional attributes, and care of 
processed raspberries.
    (b) Food industry information, which means any action taken to 
provide information to, and broaden the understanding of, the food 
industry regarding the consumption, use, nutritional attributes, and 
care of processed raspberries.
    (c) Industry information, which means any action taken to provide 
information to or collect information from, and broaden the 
underestimating of, the raspberry industry regarding the production, 
consumption, use, nutritional attributes, and care of processed 
raspberries.


Sec.  1208.12  Market or marketing.

    (a) Marketing means the sale or other disposition of processed 
raspberries in interstate, foreign or intrastate commerce.
    (b) To market means to sell or otherwise dispose of processed 
raspberries in any channel of commerce.


Sec.  1208.13  National Processed Raspberry Council.

    National Processed Raspberry Council or such other name as 
recommended by the Council and approved by the Department means the 
administrative body established pursuant to Sec.  1208.40.


Sec.  1208.14  Order.

    Order means an order issued by the Secretary under section 514 of 
the Act that provides for a program of generic promotion, research, and 
information regarding agricultural commodities authorized under the 
Act.


Sec.  1208.15  Part and subpart.

    Part means the Processed Raspberry Promotion, Research, and 
Information Order and all rules, regulations, and supplemental orders 
issued pursuant to the Act and the Order. The Order shall be a subpart 
of such part.


Sec.  1208.16  Person.

    Person means any individual, group of individuals, partnership, 
corporation, association, cooperative, or any other legal entity.


Sec.  1208.17  Processed raspberries.

    Processed raspberries means raspberries which have been frozen, 
dried, pureed, made into juice, or delivered in any other form altered 
by mechanical processes other than fresh.


Sec.  1208.18  Processor.

    Processor means a person engaged in the preparation of raspberries 
for processing for market who owns or who

[[Page 16281]]

shares the ownership and risk of loss of such raspberries.


Sec.  1208.19  Producer.

    Producer means any person who grows 20,000 pounds or more of 
raspberries for processing in the United States for sale in commerce, 
or a person who is engaged in the business of producing, or causing to 
be produced for any market, raspberries for processing beyond the 
person's own family use and having value at first point of sale.


Sec.  1208.20  Promotion.

    Promotion means any action taken to present a favorable image of 
processed raspberries to the general public and the food industry for 
the purpose of improving the competitive position of processed 
raspberries both in the United States and abroad and stimulating the 
sale of processed raspberries including paid advertising and public 
relations.


Sec.  1208.21  Qualified national organization representing importer 
interests.

    Qualified national organization representing importer interests 
means an organization that the Secretary certifies as being eligible to 
nominate importer and alternate importer members to the Council.


Sec.  1208.22  Qualified organization representing foreign producer 
interests.

    Qualified organization representing foreign producer interests 
means an organization that the Secretary certifies as being eligible to 
nominate foreign producer and alternate foreign producer members to the 
Council.


Sec.  1208.23  Raspberries.

    Raspberries mean and include all kinds, varieties, and hybrids of 
cultivated raspberries of the genus ``Rubus'' grown in or imported into 
the United States.


Sec.  1208.24  Research.

    Research means any type of test, study, or analysis designed to 
advance the image, desirability, use, marketability, production, 
product development, or quality of raspberries, including but not 
limited to research relating to nutritional value, cost of production, 
new product development, health research, and marketing of processed 
raspberries.


Sec.  1208.25  Secretary.

    Secretary means the Secretary of Agriculture of the United States, 
or any officer or employee of the Department to whom authority has been 
delegated, or to whom authority may be delegated, to act in the 
Secretary's stead.


Sec.  1208.26  State.

    State means any of the several 50 States of the United States, the 
District of Columbia, the Commonwealth of Puerto Rico, and the 
territories and possessions of the United States.


Sec.  1208.27  Suspend.

    Suspend means to issue a rule under section 553 of title 5 U.S.C., 
to temporarily prevent the operation of an order or part thereof during 
a particular period of time specified in the rule.


Sec.  1208.28  Terminate.

    Terminate means to issue a rule under section 553 of title 5 
U.S.C., to cancel permanently the operation of an order or part thereof 
beginning on a certain date specified in the rule.


Sec.  1208.29  United States.

    United States means collectively the 50 states, the District of 
Columbia, the Commonwealth of Puerto Rico, and the territories and 
possessions of the United States.

National Processed Raspberry Council


Sec.  1208.40  Establishment and membership.

    (a) Establishment of the National Processed Raspberry Council. 
There is hereby established a National Processed Raspberry Council, or 
such other name as recommended by the Council and approved by the 
Department, hereinafter called Council, composed of thirteen (13) 
members and thirteen (13) alternate members, appointed by the Secretary 
from nominations as follows:
    (1) Six (6) processed raspberry producer members and alternate 
members from States producing a minimum of three (3) million pounds of 
raspberries delivered for processing. Distribution of the seats among 
the eligible States shall be proportional to the percent determined by 
the average of the total pounds produced and delivered to processors 
for processing over the previous three years divided by the average 
total pounds by all of the eligible States for the previous three 
years. Only States whose producers deliver raspberries for processing 
and pay assessments are eligible for nomination and election to the 
Council. Average production will be based upon either State production 
figures or the Department data for the initial election, and production 
figures generated by either the Council or the Department thereafter;
    (2) One (1) processed raspberry producer member and alternate 
member representing all other States producing less than a three (3) 
million pounds of raspberries delivered for processing. All States 
producing less than three million pounds of raspberries delivered for 
processing will constitute a region from which one producer member and 
alternate will be nominated to the Council. Only States whose producers 
deliver raspberries for processing and pay assessments are eligible for 
nomination and election to the Council. Average production will be 
based upon either State production figures or the Department data for 
the initial election, and production figures generated by either the 
Council or the Department thereafter;
    (3) Three (3) processed raspberry importer members and alternate 
members;
    (4) Two (2) foreign producers and their alternate members from 
countries exporting a minimum of three million pounds of raspberries 
for processing to the U.S., based on a three-year average; and
    (5) One (1) at-large member and an alternate recommended by the 
Council and shall be submitted by the Council to the Secretary for 
approval. In recommending the at-large member and alternate, the 
Council shall give consideration to nutrition health professionals and 
others interested in raspberry industry. Nominations for the initial 
Council will be handled by the Department.
    (b) Adjustment of membership. At least once every five years, but 
not more frequently than once every three years, the Council will 
review the geographic distribution of United States production of 
processed raspberries and the quantity and source of processed 
raspberry imports. The review will be conducted through an audit of 
State crop production figures and Council assessment receipts. If 
warranted, the Council will recommend to the Secretary that membership 
on the Council be altered to reflect any changes in geographic 
distribution of domestic raspberry production for processing and the 
quantity of imports. If the level of imports increases or decreases, 
importer members and alternates may be added or reduced on the Council, 
subject to recommendation by the Council and approval of the Secretary. 
However, the foreign producer seats will remain the same regardless of 
the volume of imports from importing countries.


Sec.  1208.41  Nominations and appointments.

    (a) Voting for regional and State producer representatives will be 
made by mail ballot.
    (b) Nominations for the initial Council will be handled by the 
Department. Subsequent nominations will be handled by the Council.

[[Page 16282]]

    (c) The nominations for the six producer and alternate members from 
States producing a minimum three year average of three million pounds 
of raspberries delivered for processing will be submitted to the 
Council in the following manner:
    (1) For those States that have a State raspberry commission or 
State marketing order, the State commission or committee will nominate 
producers and their alternates to serve. Nominations will be returned 
to the Council and placed on a ballot which will then be sent to 
producers in the State for a vote. The nominee for member will have 
received the highest number of votes cast. The person with the second 
highest number of votes cast will be the nominee for alternate. The 
persons with the third and fourth place highest number of votes cast 
will be designated as additional nominees for consideration by the 
Secretary. Once the Council has received all of the nominations from 
commissions or committees, the information will be submitted to the 
Secretary for appointment. Nominations for the initial Council will be 
handled by the Department. Subsequent nominations will be handled by 
the Council staff and shall be submitted to the Secretary not less than 
90 days prior to the expiration of the term of office; or
    (2) For those States that do not have a State commission or State 
marketing order, the Council will seek nominations from the State 
Departments of Agriculture for members and alternates from the specific 
States who may directly submit nominations to the Department for the 
initial Council. Subsequent nominations shall be submitted to the 
Council and will be handled by the Council staff who in turn shall 
submit those nominations to the Secretary not less than 90 days prior 
to the expiration of the term of office.
    (3) The distribution of the six producer and alternate seats will 
be proportional to the percentage determined by the average of the 
total pounds produced and delivered to processors for processing over 
the previous three years divided by the average total pounds produced 
over the previous three years.
    (d) The nomination for the one raspberry producer of raspberries 
for processing and alternate member, who represents all other States 
producing less than a minimum three year average of three million 
pounds of raspberries delivered for processing, will constitute a 
region and the nominations will be submitted to the Council in the 
following manner:
    (1) For those States that have a State raspberry commission or 
State marketing order, the State commission or committee will nominate 
producers and their alternates to serve. The State commission or 
committee nominations will be returned to the Council and placed on a 
ballot which will then be sent to producers in the Region for a vote. 
The nominee for member will have received the highest number of votes 
cast. The person with the second highest number of votes cast will be 
the nominee for alternate. The persons with the third and fourth place 
highest number of votes cast will be designated as additional nominees 
for consideration by the Secretary. Once the Council has received all 
of the nominations from commissions or committees, the information will 
be submitted to the Secretary for appointment. Nominations for the 
initial Council will be handled by the Department. Subsequent 
nominations will be handled by the Council staff and shall be submitted 
to the Secretary not less than 90 days prior to the expiration of the 
term of office; or
    (2) For those States that do not have a State commission or State 
marketing order, the Council will seek nominations from the State 
Departments of Agriculture for the member and alternate from the 
specific States. The State Departments of Agriculture would have the 
opportunity to participate in nomination caucuses and will directly 
submit as a group a single slate of nominations to the Department for 
the producer position and the producer alternate position on the 
Council for the initial Council. Subsequent nominations shall be 
submitted to the Council and will be handled by the Council staff who 
in turn shall submit those nominations to the Secretary not less than 
90 days prior to the expiration of the term of office.
    (e) Only producers from States that deliver raspberries for 
processing and are covered under the program are eligible for 
nomination and election to the Council. Average production will be 
based upon Department production data for the initial nomination and 
production figures generated by either the Council or the Department 
thereafter.
    (f) Nominations for the importer positions and their alternates 
will be made by qualified national organizations representing importers 
as follows:
    (1) All qualified national organizations representing importers 
would have the opportunity to participate in nomination caucuses and 
will submit as a group a single slate of nominations to the Secretary 
for the importer positions and the importer alternate positions on the 
Council. Eligible organizations must submit nominations to the 
Department not less than 90 days prior to the expiration of the term of 
office. Two nominees for each member and each alternate position will 
be submitted to the Secretary for consideration.
    (2) If the Department determines that there are no qualified 
national organizations representing importers, individuals who have 
paid their assessments to the Council in the most recent fiscal year or 
for the initial Council, those that imported processed raspberries into 
the U.S., could directly submit nominations to the Department for the 
initial Council. Subsequent nominations shall be submitted to the 
Council and will be handled by the Council staff who in turn shall 
submit those nominations to the Secretary not less than 90 days prior 
to the expiration of the term of office.
    (g) Nominations for the foreign producer positions and their 
alternates will be made by qualified organizations representing foreign 
producers as follows:
    (1) All qualified organizations representing foreign producer 
interests will have the opportunity to participate in nomination 
caucuses and will submit as a group a single slate of nominations to 
the Secretary for the foreign producer positions and the foreign 
producer alternate positions on the Council.
    (2) If the Department determines that there are no qualified 
organizations representing foreign producer interests, individual 
foreign producers may directly submit nominations to the Department for 
the initial Council. Subsequent nominations shall be submitted to the 
Council and will be handled by the Council staff who in turn shall 
submit those nominations to the Secretary not less than 90 days prior 
to the expiration of the term of office. For the initial Council, 
persons that meet the definition of foreign producer as defined in this 
subpart will certify such qualification and upon certification, if 
qualified, may submit nominations. Two nominees for each member and 
each alternate position will be submitted to the Secretary for 
consideration.
    (h) Nominations for the at-large member and alternate will be 
conducted at a Council meeting by the Council and shall be submitted by 
the Council to the Secretary for approval. Nominations for the initial 
Council will be handled by the Department. Subsequent nominations will 
be handled by the Council and shall be submitted to the

[[Page 16283]]

Secretary not less than 90 days prior to the expiration of the term of 
office.
    (i) From the nominations, the Secretary shall select the members of 
the Council and alternates for each position on the Council. Members 
will serve until their replacements have been appointed by the 
Secretary.
    (j) If there is an insufficient number of nominees from whom to 
appoint members to the Council, the Secretary may appoint members in 
such a manner as the Secretary determines appropriate.
    (k) Qualified national organization representing importer 
interests. To be certified as a qualified national organization 
representing importer interests, an organization must meet the 
following criteria, as evidenced by a report submitted by the 
organization to the Secretary:
    (1) The organization must represent a substantial number of 
importers who market or produce a substantial volume of raspberries for 
processing;
    (2) The organization has a history of stability and permanency and 
has been in existence for more than one year;
    (3) The organization must promote processed raspberries importers' 
welfare; and
    (4) The organization must derive a portion of its operating funds 
from importers.
    (l) Qualified organization representing foreign producer interests. 
To be certified by the Secretary as a qualified organization 
representing foreign producer interests, an organization must meet the 
following criteria, as evidenced by a report submitted by the 
organization to the Secretary:
    (1) The organization must represent a substantial number of foreign 
producers who produce a substantial volume of raspberries for 
processing;
    (2) The organization has a history of stability and permanency and 
has been in existence for more than one year;
    (3) The organization must promote processed raspberry foreign 
producers' welfare;
    (4) The organization must derive a portion of its operating funds 
from foreign producers; and
    (5) The organization must be from a country exporting a minimum of 
three million pounds of raspberries for processing to the U.S. based on 
a three-year average.
    (m) Eligible organizations, foreign producers, or importers must 
submit nominations to the Secretary not less than 90 days prior to the 
expiration of the term of office. At least two nominees for each 
position to be filled must be submitted.


Sec.  1208.42  Term of office.

    Council members and alternates will serve for a term of three years 
and be able to serve a maximum of two consecutive terms. A Council 
member may serve as an alternate during the years the member is 
ineligible for a member position. When the Council is first 
established, four producer members, two importers, one of the two 
foreign producers, and the at-large member and their respective 
alternates will be assigned initial terms of three years. The remaining 
three producer members, one importer member, and the second foreign 
producer and their alternates will serve an initial term of two years. 
Members serving an initial term of two years will be eligible to serve 
a second term of three years. Thereafter, each of these positions will 
carry a full three-year term. Council nominations and appointments will 
take place in two out of every three years. Council members shall serve 
during the term of office for which they are appointed and have 
qualified, and until their successors are appointed and have qualified. 
Each term of office will end on December 31, with new terms of office 
beginning on January 1.


Sec.  1208.43  Vacancies.

    (a) In the event that any member of the Council ceases to be a 
member of the category of membership from which the member was 
appointed to the Council, such position shall automatically become 
vacant.
    (b) If a member of the Council consistently refuses to perform the 
duties of a member of the Council, or if a member of the Council 
engages in acts of dishonesty or willful misconduct, the Council may 
recommend to the Secretary that the member be removed from office. If 
the Secretary finds the recommendation of the Council shows adequate 
cause, the Secretary may remove such member from office.
    (c) Should any member position become vacant, the alternate of that 
member shall automatically assume the position of said member. Should 
the positions of both a member and such member's alternate become 
vacant, successors for the unexpired terms of such member and alternate 
shall be appointed in the manner specified in Sec.  1208.40 and Sec.  
1208.41, except that said nomination and replacement shall not be 
required if said unexpired terms are less than six months.


Sec.  1208.44   Alternate members.

    An alternate member of the Council, during the absence of the 
member for whom the person is the alternate, shall act in the place and 
stead of such member and perform such duties as assigned. In the event 
of death, removal, resignation, or disqualification of any member, the 
alternate for that member shall automatically assume the position of 
said member. In the event that a producer, importer, foreign producer, 
or at-large member of the Council and their alternate are unable to 
attend a meeting, the Council may not designate any other alternate to 
serve in such member's or alternate's place and stead for such a 
meeting.


Sec.  1208.45   Procedure.

    (a) At a Council meeting, it will be considered a quorum when a 
majority (one more than half) of the Council members is present. An 
alternate will be counted for the purpose of determining a quorum only 
if the member for whom the person is the alternate is absent or 
disqualified from participating.
    (b) At the start of each fiscal period, the Council will select a 
chairperson, vice chairperson, and other officers as appropriate, who 
will conduct meetings throughout that period.
    (c) The chairperson and the treasurer shall reside in the United 
States, and the Council office shall also be located in the United 
States.
    (d) All Council meetings shall be held in the United States.
    (e) All Council members and alternates will receive a minimum of 20 
days advance notice of all Council and committee meetings.
    (f) Each member of the Council will be entitled to one vote on any 
matter put to the Council, and the motion will carry if supported by 
one (1) vote more than 50 percent of the total votes represented by the 
Council members present.
    (g) It will be considered a quorum at a Council committee meeting 
when at least one more than half of those assigned to the Council 
committee are present. Alternates may also be assigned to Council 
committees as necessary. Council committees may consist of persons 
other than Council members and such persons may vote in Council 
committee meetings.
    (h) In lieu of voting at a properly convened meeting and, when in 
the opinion of the chairperson of the Council such action is considered 
necessary, the Council may take action if supported by one vote more 
than 50 percent of the members present, by mail, telephone, electronic 
mail, facsimile, or any other means of communication, and all telephone 
votes shall be confirmed promptly in writing. In that event, all 
members must be notified and provided the opportunity to vote. Any 
action so taken shall have

[[Page 16284]]

the same force and effect as though such action had been taken at a 
properly convened meeting of the Council. All votes shall be recorded 
in Council minutes.
    (i) There shall be no voting by proxy.
    (j) The chairperson shall be a voting member.
    (k) The organization of the Council and the procedures for the 
conducting of meetings of the Council shall be in accordance with its 
bylaws, which shall be established by the Council and approved by the 
Secretary.


Sec.  1208.46   Compensation and reimbursement.

    The members of the Council, and alternates when acting as members, 
shall serve without compensation but shall be reimbursed for reasonable 
travel expenses, as approved by the Council, incurred by them in the 
performance of their duties as Council members.


Sec.  1208.47   Powers and duties.

    The Council shall have the following powers and duties:
    (a) To administer the Order in accordance with its terms and 
conditions and to collect assessments;
    (b) To develop and recommend to the Secretary for approval such 
bylaws as may be necessary for the functioning of the Council, and such 
rules as may be necessary to administer the Order, including activities 
authorized to be carried out under the Order;
    (c) To meet, organize, and select from among the members of the 
Council a chairperson, other officers, committees, and subcommittees, 
as the Council determines to be appropriate;
    (d) To employ persons, other than members, as the Council considers 
necessary to assist the Council in carrying out its duties and to 
determine the compensation and specify the duties of such persons;
    (e) To develop and carry our generic promotion, research, and 
information activities relating to processed raspberries;
    (f) To develop programs and projects, and enter into contracts or 
agreements, which must be approved by the Secretary before becoming 
effective, for the development and carrying out of programs or projects 
of research, information, or promotion, and the payment of costs 
thereof with funds collected pursuant to this subpart. Each contract or 
agreement shall provide that any person who enters into a contract or 
agreement with the Council shall develop and submit to the Council a 
proposed activity; keep accurate records of all of its transactions 
relating to the contract or agreement; account for funds received and 
expended in connection with the contract or agreement; make periodic 
reports to the Council of activities conducted under the contract or 
agreement; and make such other reports available as the Council or the 
Secretary considers necessary. Any contract or agreement shall provide 
that:
    (1) The contractor or agreeing party shall develop and submit to 
the Council a program, plan, or project together with a budget or 
budgets that shall show the estimated cost to be incurred for such 
program, plan, or project;
    (2) The contractor or agreeing party shall keep accurate records of 
all its transactions and make periodic reports to the Council of 
activities conducted, submit accounting for funds received and 
expended, and make such other reports as the Secretary or the Council 
may require;
    (3) The Secretary may audit the records of the contracting or 
agreeing party periodically;
    (4) Any subcontractor who enters into a contract with a Council 
contractor and who receives or otherwise uses funds allocated by the 
Council shall be subject to the same provisions as the contractor;
    (g) To prepare and submit for approval of the Secretary, before the 
beginning of each fiscal year, rates of assessment and a fiscal year 
budget of the anticipated expenses to be incurred in the administration 
of the Order, including the probably cost of each promotion, research, 
and information activity proposed to be developed or carried out by the 
Council in accordance with Sec.  1208.50;
    (h) To borrow funds necessary for the startup expenses of the 
order;
    (i) To maintain such records and books and prepare and submit such 
reports and records from time to time to the Secretary as the Secretary 
may require and to make the records available to the Secretary for 
inspection and audit; to make appropriate accounting with respect to 
the receipt and disbursement of all funds entrusted to it; and to keep 
records that accurately reflect the actions and transactions of the 
Council;
    (j) To cause its books to be audited by a independent auditor at 
the end of each fiscal year and at such other times as the Secretary 
may request, and to submit a report of the audit directly to the 
Secretary;
    (k) To give the Secretary the same notice of meetings of the 
Council as is given to members in order that the Secretary's 
representative(s) may attend such meetings, and to keep and report 
minutes of each meeting of the Council to the Secretary;
    (l) To act as intermediary between the Secretary and any producer, 
first handler, processor, importer, or foreign producer;
    (m) To furnish to the Secretary any information or records that the 
Secretary may request;
    (n) To receive, investigate, and report to the Secretary complaints 
of violations of the Order;
    (o) To recommend to the Secretary such amendments to the Order as 
the Council considers appropriate;
    (p) To work to achieve an effective, continuous, and coordinated 
program of promotion, research, consumer information, evaluation, and 
industry information designed to strengthen the processed raspberry 
industry's position in the marketplace; maintain and expand existing 
markets and uses for processed raspberries; and to carry out programs, 
plans, and projects designed to provide maximum benefits to the 
processed raspberry industry; and
    (q) To pay the cost of the activities with assessments collected 
under Sec.  1208.52.


Sec.  1208.48   Prohibited activities.

    The Council may not engage in, and shall prohibit the employees and 
agents of the Council from engaging in:
    (a) Any action that would be a conflict of interest;
    (b) Using funds collected by the Council under the Order to 
undertake any action for the purpose of influencing legislation or 
governmental action or policy, by local, state, national, and foreign 
governments, other than recommending to the Secretary amendments to the 
Order; and
    (c) Any advertising, including promotion, research, and information 
activities authorized to be carried out under the Order that may be 
false or misleading or disparaging to another agricultural commodity.

Expenses and Assessments


Sec.  1208.50   Budget and expenses.

    (a) At least 60 days prior to the beginning of each fiscal year, 
and as may be necessary thereafter, the Council shall prepare and 
submit to the Secretary a budget for the fiscal year covering its 
anticipated expenses and disbursements in administering this subpart. 
The budget for research, promotion, or information may not be 
implemented prior to approval of the budget by the Secretary. No later 
than forty-five (45) days after the receipt of such budget, the 
Secretary shall notify the Council whether the Secretary approves or 
disapproves the budget. Each budget shall include:

[[Page 16285]]

    (1) A statement of objectives and strategy for each program, plan, 
or project;
    (2) A summary of anticipated revenue, with comparative data or at 
least one preceding year (except for the initial budget); and
    (3) A summary of proposed expenditures for each program, plan, or 
project;
    (4) Staff and administrative expense breakdowns, with comparative 
data for at least one preceding year (except for the initial budget).
    (b) Each budget shall provide adequate funds to defray its proposed 
expenditures and to provide for a reserve as set forth in this subpart.
    (c) Subject to this section, any amendment or addition to an 
approved budget must be approved by the Secretary, including shifting 
funds from one program, plan, or project to another. Shifts in funds 
which do not cause an increase in the Council's approved budget, and 
which are consistent with by laws, need not have prior approval by the 
Department.
    (d) The Council is authorized to incur such expenses, including 
provision for a reasonable reserve, as the Secretary finds are 
reasonable and likely to be incurred by the Council for its maintenance 
and functioning, and to enable it to exercise its powers and perform 
its duties in accordance with the provisions of this subpart. Such 
expenses shall be paid from funds received by the Council.
    (e) With approval of the Secretary, the Council may borrow money 
for the payment of administrative expenses, subject to the same fiscal, 
budget, and audit controls as other funds of the Council. Any funds 
borrowed by the Council shall be expended for startup costs and capital 
outlays and are limited to the first year of operation of the Council.
    (f) The Council is authorized to repay startup costs associated 
with establishing a program and an initial referendum. If approved, 
these costs would be amortized and repaid over a maximum three (3) year 
period.
    (g) The Council may accept voluntary contributions, but these shall 
only be used to pay expenses incurred in the conduct of programs, 
plans, and projects approved by the Secretary. Such contributions shall 
be free from any encumbrance by the donor and the Council shall retain 
complete control of their use.
    (h) The Council may also receive funds provided through the 
Department's Foreign Agricultural Service or from other sources, with 
the approval of the Secretary, for authorized activities.
    (i) The Council shall reimburse the Secretary for all expenses 
incurred by the Secretary in the implementation, administration, 
enforcement, and supervision of the Order, including all referendum 
costs in connection with the Order.
    (j) The Council may not expend for administration, maintenance, and 
functioning of the Council in any fiscal year an amount that exceeds 15 
percent of the assessments and other income received by the Council for 
that fiscal year. Reimbursements to the Secretary required under 
paragraph (i) of this section are excluded from this limitation on 
spending.
    (k) The Council may establish an operating monetary reserve and may 
carry over to subsequent fiscal periods excess funds in any reserve so 
established: Provided that the funds in the reserve do not exceed one 
fiscal period's budget. Subject to approval by the Secretary, such 
reserve funds may be used to defray any expenses authorized under this 
part.
    (l) Pending disbursement of assessments and all other revenue under 
a budget approved by the Secretary, the Council may invest assessments 
and all other revenues collected under this section in:
    (1) Obligations of the United States or any agency of the United 
States;
    (2) General obligations of any State or any political subdivision 
of a State;
    (3) Interest bearing accounts or certificates of deposit of 
financial institutions that are members of the Federal Reserve System; 
or
    (4) Obligations fully guaranteed as to principal interest by the 
United States.


Sec.  1208.51   Financial statements.

    (a) As requested by the Secretary, the Council shall prepare and 
submit financial statements to the Secretary on a periodic basis. Each 
such financial statement shall include, but not be limited to, a 
balance sheet, income statement, and expense budget. The expense budget 
shall show expenditures during the time period covered by the report, 
year-to-date expenditures, and the unexpended budget.
    (b) Each financial statement shall be submitted to the Secretary 
within 30 days after the end of the time period to which it applies.
    (c) The Council shall submit annually to the Secretary an annual 
financial statement within 90 days after the end of the fiscal year to 
which it applies.


Sec.  1208.52   Assessments.

    (a) The funds to cover the Council's expenses shall be paid from 
assessments on producers and importers at a rate not to exceed one cent 
per pound; the initial rate is one cent per pound, donations from any 
person not subject to assessments under this Order, and other funds 
available to the Council including those collected pursuant to Sec.  
1208.56 and subject to the limitations contained therein.
    (b) The collection of assessments on domestic processed raspberries 
will be the responsibility of the first handler receiving the 
raspberries for processing. In the case of the producer acting as its 
own first handler, the producer will be required to collect and remit 
its individual assessments. The rate of assessments shall be prescribed 
in regulations issued by the Secretary.
    (c) The Council may recommend to the Secretary an increase or 
decrease to the assessment rate. Such an increase or decrease may occur 
not more than once annually. Any change in the assessment rate shall be 
subject to rulemaking by the Department.
    (d) Each importer of processed raspberries shall pay an assessment 
to the Council on processed raspberries imported for marketing in the 
United States, through Customs. If Customs does not collect an 
assessment from an importer, the importer would be responsible for 
paying the assessment directly to the Council. The assessment rate for 
imported processed raspberries would be up to one cent per pound, with 
the initial rate being one cent per pound.
    (1) The assessment rate for imported processed raspberries shall be 
the same or equivalent to the rate for processed raspberries produced 
in the United States.
    (2) The import assessment shall be uniformly applied to imported 
processed raspberries that are identified by the numbers 0811.20.20.20, 
in the Harmonized Tariff Schedule of the United States or any other 
numbers used to identify processed raspberries.
    (3) The assessments due on imported processed raspberries shall be 
paid when they enter into the United States or are withdrawn for 
consumption in the United States.
    (e) All assessment payments will be submitted to the office of the 
Council. All final payments for a crop year are to be received no later 
than October 30 of that year for producers of processed raspberries 
within the United States. A late payment charge shall be imposed on any 
handler or importer who fails to remit to the Council, the total amount 
for which any such first handler or importer is liable on or before the 
due date established by the Council. In addition to the late payment 
charge, an

[[Page 16286]]

interest charge shall be imposed on the outstanding amount for which 
the first handler or importer is liable. The rate of interest shall be 
prescribed in regulations issued by the Secretary.
    (f) Persons failing to remit total assessments due in a timely 
manner may also be subject to actions under federal debt collection 
procedures.
    (g) The Council may authorize other organizations to collect 
assessments on its behalf with the approval of the Secretary.
    (h) Council may provide credits of assessments for those 
individuals who contribute to local, regional, or State organizations 
engaged in similar generic research, promotion, and information 
programs as partial fulfillment of assessment due to the Council 
subject to approval of the Secretary, for expenditure on generic 
research, promotion and information programs conducted within the 
United States.
    (1) No credit will be given for funds expended for administrative 
purposes.
    (2) No credit shall be given for research, promotion, and 
information program activity conducted outside of the United States.
    (3) Credit shall only be given for generic research, promotion, and 
information program activities.
    (4) Credit of assessment may be obtained only by following the 
procedures prescribed in this section and any regulations recommended 
by the Council and prescribed by the Secretary. An individual owing 
assessments shall make a written request to the Council and the request 
shall contain the assessment paying individual's signature and shall 
show:
    (i) The name and address of the assessment paying individual;
    (ii) The name and address of the person who collected the 
assessment;
    (iii) The quantity of processed raspberries on which a credit is 
requested;
    (iv) The total amount of credit requested;
    (v) The date or dates on which the assessments were paid;
    (vi) A certification that the assessment was not collected from 
another producer or documentation of assessments collected from local, 
State, or regional organizations; and
    (vii) The individual's signature or properly witnessed mark.
    (5) The evidence of payment as required under Sec.  1208.61, or a 
copy thereof, or such other evidence deemed necessary to the Council 
shall accompany the individual's credit of assessment request.


Sec.  1208.53  Exemption procedures.

    (a) Any producer who produces less than 20,000 pounds of 
raspberries for processing annually who desires to claim an exemption 
from assessments during a fiscal year as provided in Sec.  1208.52 
shall apply to the Council, on a form provided by the Council, for a 
certificate of exemption. Such producer shall certify that the 
producer's production of raspberries for processing shall be less than 
20,000 pounds for the fiscal year for which the exemption is claimed. 
Any importer who imports less than 20,000 pounds of processed 
raspberries annually who desires to claim an exemption from assessments 
during a fiscal year as provided in Sec.  1208.52 shall apply to the 
Council, on a form provided by the Council, for a certificate of 
exemption. Such importer shall certify that the importer's importation 
of processed raspberries shall not exceed 20,000 pounds, for the fiscal 
year for which the exemption is claimed. If a producer or importer 
determines at the end of the year that they did not meet the 20,000 
pounds minimum, the producer or importers can request a reimbursement 
on the assessments paid to the Council by 60 days of the end of the 
fiscal year. If, after a person has been exempt from paying assessments 
for any year pursuant to this section, and the person no longer meets 
the requirements of paragraph of this section for an exemption, the 
person shall file a report with the Council in the form and manner 
prescribed by the Council and pay an assessment on or before March 15 
of the subsequent year on all raspberries for processing produced or 
processed raspberries importers by such persons during the year for 
which the person claimed the exemption.
    (b) On receipt of an application, the Council shall determine 
whether an exemption may be granted. The Council will then issue, if 
deemed appropriate, a certificate of exemption to the producer or 
importer which is eligible to receive one. Each producer who is exempt 
from assessment must provide an exemption number as supplied by the 
Council to the first handler in order to be exempt from the collection 
of an assessment on processed raspberries. First handlers shall 
maintain records showing the exemptee's name and address along with the 
exemption number assigned by the Council.
    (c) Importers who are exempt from assessment shall be eligible for 
reimbursement of assessments collected by Customs and shall apply to 
the Council for reimbursement of such assessments paid. No interest 
will be paid on assessments collected by Customs. Requests for 
reimbursement shall be submitted within 90 days of the last day of the 
year the processed raspberries were actually imported. Any claim for 
reimbursement submitted after ninety (90) days will be considered null 
and void.
    (d) Any person who desires an exemption from assessments for a 
subsequent fiscal year shall reapply to the Council, on a form provided 
by the Council, for a certificate of exemption.
    (e) The Council, with the Secretary's approval, may request that 
persons claiming an exemption from assessments under Sec.  1208.53 must 
provide it with any information it deems necessary about the exemption, 
including, without limitation, the disposition of the exempted 
commodity.
    (f) A first handler who purchases raspberries for processing from a 
producer who operates under an approved National Organic Program (NOP) 
(7 CFR part 205) system plan, produces only products that are eligible 
to be labeled as 100 percent organic under the NOP, and is not a split 
operation shall be exempt from the payment of assessments.
    (g) To obtain this exemption, an eligible first handler shall 
submit a request for exemption to the Council--on a form provided by 
the Council--at any time initially and annually thereafter on or before 
the beginning of the fiscal period as long as the first handler 
continues to be eligible for the exemption.
    (h) The request shall include the following: The first handler's 
name and address, a copy of the organic farm or organic handling 
operation certificate provided by a USDA-accredited certifying agent as 
defined in the Organic Act, a signed certification that the applicant 
meets all of the requirements specified for an assessment exemption, 
and such other information as may be required by the Council and with 
the approval of the Secretary.
    (i) If the first handler complies with the requirements of 
paragraph (f) of this section, the Council will grant an assessment 
exemption and shall issue a Certificate of Exemption to the first 
handler. For exemption requests received on or before August 15 of the 
fiscal year, the Council will have 60 days to approve the exemption 
request; after August 15 of the fiscal year, the Council will have 30 
days to approve the exemption request. If the application is 
disapproved, the Council will notify the applicant of the reason(s) for 
disapproval within the same timeframe.

[[Page 16287]]

    (j) An importer who imports only products that are eligible to be 
labeled as 100 percent organic under the NOP (7 CFR part 205) and who 
is not a split operation shall be exempt from the payment of 
assessments. That importer may submit documentation to the Council and 
request an exemption from assessment on 100 percent organic processed 
raspberries--on a form provided by the Council--at any time initially 
and annually thereafter on or before the beginning of the fiscal period 
as long as the importer continues to be eligible for the exemption. 
This documentation shall include the same information required of first 
handlers in paragraph (c) of this section. If the importer complies 
with the requirements of this section, the Council will grant the 
exemption and issue a Certificate of Exemption to the importer within 
the applicable timeframe. The Council will also issue the importer a 9-
digit alphanumeric Harmonized Tariff Schedule (HTS) classification 
valid for 1 year from the date of issue. This HTS classification should 
be entered by the importer on the Customs entry documentation. Any line 
item entry of 100 percent organic processed raspberries bearing this 
HTS classification assigned by the Council will not be subject to 
assessments.
    (k) The exemption will apply immediately following the issuance of 
the certificate of exemption.


Sec.  1208.54  Programs, plans, and projects.

    (a) The Council shall receive and evaluate, or on its own 
initiative, develop and submit to the Secretary for approval any 
program, plan, or project authorized under this subpart. Such programs, 
plans, or projects shall provide for:
    (1) The establishment, issuance, effectuation, and administration 
of appropriate programs for promotion, research, and information, 
including producer and consumer industry information, with respect to 
processed raspberries; and
    (2) The establishment and conduct of research with respect to the 
use, nutritional value, production, health, sale, distribution, and 
marketing of processed raspberries, and the creation of new products or 
product development, thereof, to the end that the marketing and use of 
processed raspberries may be encouraged, expanded, improved, or made 
more acceptable and to advance the image, desirability, or quality of 
processed raspberries.
    (b) A program, plan, or project may not be implemented prior to 
approval of the program, plan, or project by the Secretary. No later 
than forty-five (45) days after the receipt of such program, plan, or 
project, the Secretary shall notify the Council whether the Secretary 
approves or disapproves the program, plan, or project. Once a program, 
plan, or project is so approved, the Council shall take appropriate 
steps to implement it.
    (c) Each program, plan, or project implemented under this subpart 
shall be reviewed or evaluated periodically by the Council to ensure 
that it contributes to an effective program of promotion, research, or 
information. If it is found by the Council that any such program, plan, 
or project does not contribute to an effective program of promotion, 
research, or information, then the Council shall terminate such 
program, plan, or project.
    (d) No program, plan, or project including advertising shall be 
false or misleading, or disparage another agricultural commodity. 
Processed raspberries of all origins shall be treated equally.


Sec.  1208.55  Independent evaluation.

    The Council shall, not less often than once every five years, 
authorize and fund, from funds otherwise available to the Council, an 
independent evaluation of the effectiveness of the Order and programs 
conducted by the Council pursuant to the Act. The Council shall submit 
to the Secretary, and make available to the public, the results of each 
periodic independent evaluation conducted under this paragraph.


Sec.  1208.56  Patents, copyrights, trademarks, information, 
publications, and product formulations.

    Patents, copyrights, trademarks, information, publications, and 
product formulations developed through the use of funds received by the 
Council under this subpart shall be the property of the U.S. Government 
as represented by the Council and shall, along with any rents, 
royalties, residual payments, or other income from the rental, sales, 
leasing, franchising, or other uses of such patents, copyrights, 
trademarks, information, publications, or product formulations, inure 
to the benefit of the Council, shall be considered income subject to 
the same fiscal, budget, and audit controls as other funds of the 
Council, and may be licensed subject to approval by the Secretary. Upon 
termination of this subpart, Sec.  1208.73 shall apply to determine 
disposition of all such property.

Reports, Books, and Records


Sec.  1208.60  Reports.

    (a) Each first handler subject to this subpart may be required to 
provide to the Council periodically such information as may be required 
by the Council, with the approval of the Secretary, which may include 
but not be limited to the following:
    (1) Number of pounds handled;
    (2) Number of pounds on which an assessment was collected;
    (3) Name and address of person from whom the first handler has 
collected the assessments on each pound handled; and
    (4) Date collection was made on each pound handled. All reports are 
due to the Council 30 days after the end of the crop year.
    (b) Each importer subject to this subpart may be required to 
provide to the Council periodically such information as may be required 
by the Council, with the approval of the Secretary, which may include 
but not be limited to the following:
    (1) Number of pounds of processed raspberries imported;
    (2) Number of pounds which an assessment was paid;
    (3) Name and address of the importer;
    (4) Date collection was made on each pound of processed raspberries 
imported. All reports are due to the Council 30 days after the end of 
the crop year.


Sec.  1208.61  Books and records.

    Each first handler, producer, and importer subject to this subpart 
shall maintain and make available for inspection by the Secretary such 
books and records as are necessary to carry out the provisions of this 
subpart and the regulations issued thereunder, including such records 
as are necessary to verify any reports required. Such records shall be 
retained for at least two (2) years beyond the fiscal period of their 
applicability.


Sec.  1208.62  Confidential treatment.

    All information obtained from books, records, or reports under the 
Act, this subpart, and the regulations issued thereunder shall be kept 
confidential by all persons, including all employees and former 
employees of the Council, all officers and employees and former 
officers and employees of contracting and subcontracting agencies or 
agreeing parties having access to such information. Such information 
shall not be available to Council members, producers, importers, 
exporters, foreign producers, or first handlers. Only those persons 
having a specific need for such

[[Page 16288]]

information to effectively administer the provisions of this subpart 
shall have access to such information. Only such information so 
obtained as the Secretary deems relevant shall be disclosed by them, 
and then only in a judicial proceeding or administrative hearing 
brought at the direction, or on the request, of the Secretary, or to 
which the Secretary or any officer of the United States is a party, and 
involving this subpart. Nothing in this section shall be deemed to 
prohibit:
    (a) The issuance of general statements based upon the reports of 
the number of persons subject to this subpart or statistical data 
collected therefrom, which statements do not identify the information 
furnished by any person; and
    (b) The publication, by direction of the Secretary, of the name of 
any person who has been adjudged to have violated this subpart, 
together with a statement of the particular provisions of this subpart 
violated by such person.

Miscellaneous


Sec.  1208.70  Right of the Secretary.

    All fiscal matters, programs, plans, or projects, rules or 
regulations, reports, or other substantive actions proposed or prepared 
by the Council shall be submitted to the Secretary for approval.


Sec.  1208.71  Referenda.

    (a) Initial referendum. The Order shall not become effective unless 
the Order is approved by a majority of producers and importers voting 
for approval in the initial referendum who, during a representative 
period determined by the Secretary, have been engaged in the production 
or importation of processed raspberries.
    (b) Subsequent referenda. Every seven years, the Secretary shall 
hold a referendum to determine whether producers of raspberry delivered 
for processing and importers of processed raspberries favor the 
continuation of the Order. The Order shall continue if it is favored by 
a majority of producers and importers voting for approval in the 
referendum who, during a representative period determined by the 
Secretary, have been engaged in the production or importation of 
processed raspberries. The Secretary will also conduct a subsequent 
referendum if 10 percent or more of all eligible producers of 
raspberries for processing and importers of processed raspberries 
request the Secretary to hold a referendum or if the Council 
established under Sec.  1208.40 requests that the Secretary hold a 
referendum. In addition, the Secretary may hold a referendum at any 
time.


Sec.  1208.72  Suspension and termination.

    (a) The Secretary shall suspend or terminate this part or subpart 
or a provision thereof if the Secretary finds that the subpart or a 
provision thereof obstructs or does not tend to effectuate the purposes 
of the Act, or if the Secretary determines that this subpart or a 
provision thereof is not favored by persons voting in a referendum 
conducted pursuant to the Act.
    (b) The Secretary shall suspend or terminate this subpart at the 
end of the marketing year whenever the Secretary determines that its 
suspension or termination is approved or favored by a majority of 
producers and importers voting for approval who, during a 
representative period determined by the Secretary, have been engaged in 
the production or importation of processed raspberries.
    (c) If, as a result of a referendum the Secretary determines that 
this subpart is not approved, the Secretary shall:
    (1) Not later than one hundred and eighty (180) days after making 
the determination, suspend or terminate, as the case may be, collection 
of assessments under this subpart.
    (2) As soon as practical, suspend or terminate, as the case may be, 
activities under this subpart in an orderly manner.


Sec.  1208.73  Proceedings after termination.

    (a) Upon the termination of this subpart, the Council shall 
recommend not more than three of its members to the Secretary to serve 
as trustees for the purpose of liquidating the affairs of the Council. 
Such persons, upon designation by the Secretary, shall become trustees 
of all of the funds and property then in the possession or under 
control of the Council, including claims for any funds unpaid or 
property not delivered, or any other claim existing at the time of such 
termination.
    (b) The said trustees shall:
    (1) Continue in such capacity until discharged by the Secretary.
    (2) Carry out the obligations of the Council under any contracts or 
agreements entered into pursuant to the Order.
    (3) From time to time account for all receipts and disbursements 
and deliver all property on hand, together with all books and records 
of the Council and the trustees, to such person or persons as the 
Secretary may direct.
    (4) Upon request of the Secretary execute such assignments or other 
instruments necessary and appropriate to vest in such persons title and 
right to all funds, property and claims vested in the Council or the 
trustees pursuant to the Order.
    (c) Any person to whom funds, property or claims have been 
transferred or delivered pursuant to the Order shall be subject to the 
same obligations imposed upon the Council and upon the trustees.
    (d) Any residual funds not required to defray the necessary 
expenses of liquidation shall be turned over to the Secretary to be 
disposed of, to the extent practical, to one or more domestic raspberry 
industry organizations in the interest of continuing processed 
raspberry promotion, research, and information programs.


Sec.  1208.74  Effect of termination or amendment.

    Unless otherwise expressly provided by the Secretary, the 
termination of this subpart or of any regulation issued pursuant 
thereto, or the issuance of any amendment to either thereof, shall not:
    (a) Affect or waive any right, duty, obligation or liability which 
shall have arisen or which may thereafter arise in connection with any 
provision of this subpart or any regulation issued thereunder.
    (b) Release or extinguish any violation of this subpart or any 
regulation issued thereunder.
    (c) Affect or impair any rights or remedies of the United States, 
or of the Secretary or of any other persons, with respect to any such 
violation.


Sec.  1208.75  Personal liability.

    No member, alternate member, or employee of the Council shall be 
held personally responsible, either individually or jointly with 
others, in any way whatsoever, to any person for errors in judgment, 
mistakes, or other acts, either of commission or omission, as such 
member, alternate, or employee, except for acts of dishonesty or 
willful misconduct.


Sec.  1208.76  Separability.

    If any provision of this subpart is declared invalid or the 
applicability thereof to any person or circumstances is held invalid, 
the validity of the remainder of this subpart or the applicability 
thereof to other persons or circumstances shall not be affected 
thereby.


Sec.  1208.77  Amendments.

    Amendments to this subpart may be proposed from time to time by the 
Council or by any interested person affected by the provisions of the 
Act, including the Secretary.


Sec.  1208.78  OMB control numbers.

    The control number assigned to the information collection 
requirements by the Office of Management and Budget

[[Page 16289]]

pursuant to the Paperwork Reduction Act of 1995, 44 U.S.C. Chapter 35, 
is OMB control number 0505-0001, OMB control number 0581-0093, and OMB 
control number 0581-NEW.

Subpart B--[Reserved]

    Dated: April 3, 2009.
Robert C. Keeney,
Acting Associate Administrator.
 [FR Doc. E9-7981 Filed 4-8-09; 8:45 am]
BILLING CODE 3410-02-P