[Federal Register Volume 84, Number 34 (Wednesday, February 20, 2019)]
[Rules and Regulations]
[Pages 4951-4953]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-02775]



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 Rules and Regulations
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  Federal Register / Vol. 84, No. 34 / Wednesday, February 20, 2019 / 
Rules and Regulations  

[[Page 4951]]



DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 1208

[Document Number AMS-SC-18-0093]


Processed Raspberry Promotion, Research, and Information Order; 
Termination of Assessments

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Final rule.

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SUMMARY: This rule removes the requirement in the Processed Raspberry 
Promotion, Research, and Information Order (Order) that each eligible 
producer of raspberries for processing and eligible importer of 
processed raspberries pay to the National Processed Raspberry Council 
(Council) an assessment in the amount of one cent per pound as 
specified in the Order. The remaining provisions of the Order and 
regulations issued thereunder will terminated at a later date. This 
action is necessary because termination of the Order was favored by a 
majority of the eligible producers and eligible importers voting in a 
referendum conducted from September 10 through October 5, 2018.

DATES: Effective date: February 21, 2019.

FOR FURTHER INFORMATION CONTACT: Hakim Fobia, Marketing Specialist, 
Promotion and Economics Division, Specialty Crops Program, AMS, USDA, 
1400 Independence Avenue SW, Room 1406-S, Stop 0244, Washington, DC 
20250-0244, telephone: (202) 720-9915; (202) 720-4835; facsimile: (202) 
205-2800; or electronic mail: [email protected].

SUPPLEMENTARY INFORMATION: This final rule affecting 7 CFR part 1208 is 
authorized under the Commodity Promotion, Research, and Information Act 
of 1996 (1996 Act) (7 U.S.C. 7411-7425). The Processed Raspberry 
Promotion, Research, and Information Order is codified at 7 CFR part 
1208.
    Prior documents in this proceeding: Continuance Referendum, July 
25, 2018 [83 FR 35153]; Processed Raspberry Promotion, Research, and 
Information Order, May 8, 2012 [77 FR 26911]; and Referendum 
Procedures, February 8, 2010 [75 FR 6089].

Executive Orders 12866, 13563, and 13771

    Executive Orders 12866 and 13563 direct agencies to assess all 
costs and benefits of available regulatory alternatives and, if 
regulation is necessary, to select regulatory approaches that maximize 
net benefits (including potential economic, environmental, public 
health and safety effects, distributive impacts and equity). Executive 
Order 13563 emphasizes the importance of quantifying both costs and 
benefits, reducing costs, harmonizing rules and promoting flexibility. 
This final rule falls within a category of regulatory actions that the 
Office of Management and Budget (OMB) exempted from Executive Order 
12866 review. Additionally, because this rule does not meet the 
definition of a significant regulatory action it does not trigger the 
requirements contained in Executive Order 13771. See OMB's Memorandum 
titled ``Interim Guidance Implementing Section 2 of the Executive Order 
of January 30, 2017, titled `Reducing Regulation and Controlling 
Regulatory Costs' '' (February 2, 2017).

Executive Order 13175

    This final rule has been reviewed in accordance with the 
requirements of Executive Order 13175, Consultation and Coordination 
with Indian Tribal Governments. The review reveals that this rule will 
not have substantial and direct effects on Tribal governments and will 
not have significant Tribal implications.

Executive Order 12988

    In addition, this final rule has been reviewed under Executive 
Order 12988, Civil Justice Reform. It is not intended to have 
retroactive effect. Section 524 of the 1996 Act (7 U.S.C. 7423) 
provides that it shall not affect or preempt any other State or Federal 
law authorizing promotion or research relating to an agricultural 
commodity.
    Under section 519 of the 1996 Act (7 U.S.C. 7418), a person subject 
to an order may file a written petition with USDA 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 request a modification of an order or an exemption from an 
order. Any petition filed challenging an order, any provision of an 
order, or any obligation imposed in connection with an order, shall be 
filed within two years after the effective date of an order, provision, 
or obligation subject to challenge in the petition. The petitioner will 
have the opportunity for a hearing on the petition. Thereafter, USDA 
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 USDA's final ruling.

Background

    This final rule terminates Order requirements to pay an assessment 
as prescribed in Sec.  1208.52 of the Order and section 517 of the 1996 
Act. The 1996 Act authorizes a national processed raspberry promotion, 
research, and information program. In accordance with the 1996 Act, 
USDA developed and implemented the Order (7 CFR 1208.1-1208.520), which 
became effective on May 9, 2012.
    Section 518(c) of the 1996 Act (7 U.S.C. 7417(c)), and section 
1208.71(b) of the Order provide that the Secretary of Agriculture 
(Secretary) shall conduct a subsequent referendum among people subject 
to assessments. The Order states that subsequent referenda will be held 
every 7 years to determine whether producers of raspberries for 
processing and importers of processed raspberries favor continuance of 
the Order. A referendum also may be held by request of 10 percent or 
more of eligible voters, by request of the council established by the 
order, or when the Secretary deems it necessary. The Order shall 
continue if it is favored by a majority of producers and importers 
voting in the referendum, who during a representative period, have been 
engaged in the production or importation of processed raspberries.
    In March 2018, USDA received a petition requesting a referendum 
from more than the required 10 percent of eligible producers of 
raspberries for processing and importers of processed

[[Page 4952]]

raspberries. As such, a referendum was held from September 10 through 
October 5, 2018. The representative period for establishing voter 
eligibility was January 1 through December 31, 2017. Persons who grew 
20,000 pounds or more of raspberries for processing in the United 
States or imported 20,000 pounds or more of processed raspberries into 
the United States during the representative period and were subject to 
assessment during the representative period were eligible to vote. 
Notice of the referendum was published in the Federal Register on July 
25, 2018 (83 FR 35153). Termination of the Order was favored by 57 
percent of the eligible producers and importers voting in the 
referendum.
    Section 522 of the 1996 Act (7 U.S.C. 7421) and Sec.  1208.72 of 
the Order provides that, if the Secretary determines that termination 
of the Order is favored by a majority of all the votes cast in a 
referendum, the Secretary shall terminate, as appropriate the 
collection of assessments under the Order not later than 180 days after 
the referendum results are announced. Further, the Secretary is 
required to terminate, as appropriate, activities under the Order as 
soon as practicable and in an orderly manner. A separate rule will be 
published in the future in the Federal Register terminating the 
remaining Order requirements and provisions.
    In accordance with section 1208.73, the Council will recommend not 
more than three of its members to the Secretary to serve as trustees 
for purposes of liquidating the assets of the Council.
    According to section 1208.74, termination of the Order and any of 
its provisions, including the requirements to pay assessments 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 
provisions of part 1208; or
    (b) Release or extinguish any violation of part 1208; or
    (c) Affect or impair any rights or remedies of the United States, 
or the Secretary, or any other person with respect to any such 
violation.

Final Regulatory Flexibility Act Analysis

    In accordance with the Regulatory Flexibility Act (5 U.S.C. 601-
612), AMS is required to examine the economic impact of this rule on 
small entities. Accordingly, AMS has considered the economic impact of 
this action on such 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 (SBA) 
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 $7.5 million.
    According to the Council, it is estimated that there are 160 
producers of raspberries for processing and 30 first handlers of 
raspberries for processing in the United States. Dividing the processed 
raspberry crop value for 2017 reported by the National Agricultural 
Statistics Service (NASS) of $102,691,456 \1\ by the number of 
producers yields an annual average producer revenue of $641,821. It is 
estimated that 75 percent of first handlers shipped under $7.5 million 
worth of processed raspberries.
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    \1\ Noncitrus Fruits and Nuts 2017 Summary, June 2018, USDA, 
National Agricultural Statistics Service, pg. 83.
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    Likewise, based on U.S. Customs data, it is estimated there are 136 
importers of processed raspberries. Using 2017 Customs data, nearly all 
importers, or 99 percent, import less than $7.5 million worth of 
processed raspberries annually. Thus, the majority of domestic 
producers, first handlers, and importers of processed raspberries would 
be considered small entities.
    Regarding the value of the commodity, as mentioned above, based on 
2017 NASS data, the value of the domestic crop was about $102 million. 
According to U.S. Customs data, the value of 2017 imports was about $55 
million.
    According to the Council, in 2017 there were 202 eligible producers 
and importers who paid about $1.2 million in assessments. When the 
Order was published in the Federal Register on May 8, 2012, the U.S. 
Department of Agriculture (USDA) stated that an anticipated $1.2 
million of assessments would be collected from about 245 eligible 
entities. The assessment rate currently is one cent per pound of 
processed raspberries. This is the same rate that was set when the 
program first started. This rule terminates the requirement for 
eligible producers and importers to pay assessments.
    The Order provides for reimbursements of assessments under certain 
conditions. Therefore, the exact economic impact of this action will 
take into account the amount of reimbursement of assessments producers 
and importers request from the Council.
    This action will not impose any additional reporting or 
recordkeeping requirements on either large or small producers or 
importers of processed raspberries.
    The Department has not identified any relevant Federal rules that 
duplicate, overlap, or conflict with this rule.

Order

    It is therefore ordered, that the terms and provisions of Subpart A 
of part 1208 that require eligible producers and importers to pay an 
assessment to finance the national program for processed raspberry 
promotion, research, and information Order (7 CFR part 1208) are hereby 
terminated.
    It is also found and determined upon good cause that it is 
impracticable, unnecessary, and contrary to the public interest to give 
preliminary notice or to engage in further public procedure prior to 
putting this action into effect, and that good cause exists for not 
postponing the effective date of this action until 30 days after 
publication in the Federal Register because: (1) This action relieves 
each eligible producer and importer from the burden to remit 
assessments; (2) termination of the Order was favored by a majority of 
eligible producers and importers voting in the referendum; and (3) the 
1996 Act and Order require that, upon such a determination by 
referendum, collection of assessments should terminate no later than 
180 days after the results are announced.

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, 7 CFR part 1208 is 
amended as follows:

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

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

0
1. The authority citation for 7 CFR part 1208 continues to read as 
follows:

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


0
2. A note is added to Sec.  1208.52 to read as follows:

[[Page 4953]]

Sec.  1208.52   Assessments.

* * * * *

    Note 1 to Sec.  1208.52:  The requirement to pay assessments is 
terminated as of February 21, 2019.


    Dated: February 14, 2019.
Bruce Summers,
Administrator.
[FR Doc. 2019-02775 Filed 2-19-19; 8:45 am]
 BILLING CODE 3410-02-P