Proposed Processed Raspberry Promotion, Research, and Information Order, 6131-6150 [2010-2065]

Agencies

• Agricultural Marketing Service
• DEPARTMENT OF AGRICULTURE

[Federal Register Volume 75, Number 25 (Monday, February 8, 2010)]
[Proposed Rules]
[Pages 6131-6150]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-2065]


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Proposed Rules
                                                Federal Register
________________________________________________________________________

This section of the FEDERAL REGISTER contains notices to the public of 
the proposed issuance of rules and regulations. The purpose of these 
notices is to give interested persons an opportunity to participate in 
the rule making prior to the adoption of the final rules.

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Federal Register / Vol. 75, No. 25 / Monday, February 8, 2010 / 
Proposed Rules

[[Page 6131]]



DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 1208

[Doc. No. AMS-FV-07-0077; FV-07-705-PR-2A]
RIN 0581-AC79


Proposed Processed Raspberry Promotion, Research, and Information 
Order

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Proposed rule and referendum order.

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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). 
The Department is conducting an initial referendum to ascertain whether 
the persons to be covered by and assessed under the Proposed Order 
favor the implementation of the program prior to it going into effect. 
In addition, USDA is announcing that the referendum will be conducted 
among eligible producers of raspberries for processing and importers of 
processed raspberries to determine whether they favor the 
implementation of the Proposed Order. The Proposed Order would be 
implemented if it is approved by a majority of producers and importers 
voting in the referendum. A separate final rule on referendum 
procedures is being published in this issue of the Federal Register.

DATES: The voting period is March 22, 2010 through April 2, 2010. To be 
eligible to vote, producers must have produced 20,000 pounds of 
raspberries for processing and importers must have imported 20,000 
pounds of processed raspberries during the representative period from 
January 1, 2008 through December 31, 2008. Ballots will be mailed to 
all known producers of raspberries for processing and importers of 
processed raspberries, on or before March 8, 2010. Ballots must be 
received by the referendum agents no later than the close of business 
4:30 p.m. (Eastern Time) on April 2, 2010.

ADDRESSES: Copies of the Proposed Order may be obtained from: 
Referendum Agent, Research and Promotion Branch, Fruit and Vegetable 
Programs, AMS, USDA, 1400 Independence Avenue, SW., Stop 0244, Room 
0632-S, Washington, DC 20250-0244; telephone: (202) 720-9915 or (888) 
720-9917 (toll free); or facsimile: (202) 205-2800; or can be viewed at 
https://www.regulations.gov.

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: Kimberly.Coy@ams.usda.gov.

SUPPLEMENTARY INFORMATION: This rule is issued pursuant to the 
Commodity Promotion, Research, and Information Act of 1996 (1996 Act) 
(7 U.S.C. 7411-7425).
    As part of this rulemaking, a proposed rule was published in the 
Federal Register on April 9, 2009 [74 FR 16289], with a 60-day comment 
period, which closed on June 8, 2009. Twenty-one comments were 
received.

Executive Order 12866

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

Executive Order 12988

    This rule has been reviewed under Executive Order 12988, Civil 
Justice Reform. It is not intended to have retroactive effect. Section 
524 of the 1996 Act provides that the 1996 Act shall not affect or 
preempt any other Federal or state law authorizing promotion or 
research relating to an agricultural commodity.
    Under section 519 of the 1996 Act, a person subject to an order may 
file a written petition with the Department stating that an order, any 
provision of an order, or any obligation imposed in connection with an 
order, is not established in accordance with the law, and requesting a 
modification of an order or an exemption from an order. Any petition 
filed challenging an order, any provision of an order, or any 
obligation imposed in connection with an order, shall be filed within 
two years after the effective date of an order, provision, or 
obligation subject to 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

[[Page 6132]]

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

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. Further, an 
estimated ten qualified organizations certified by the Secretary for 
nomination purposes, would be expected to generally consist of entities 
reflecting such sizes also. Producers and importers of less than 20,000 
pounds per year of raspberries for processing and processed raspberries 
respectively 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 of processed raspberries. 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 raspberries for processing 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, most of 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

[[Page 6133]]

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 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 also 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 will be conducted prior 
to putting this Proposed Order in effect. A referendum order is 
published herein. 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 of raspberries for 
processing 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 49 states and are harvested late June to mid 
August. The 2007 Census of Agriculture indicates that about 80 percent 
of the U.S. raspberry acreage was in California, Oregon, and 
Washington.
    According to the United States Department of Agriculture's National 
Agricultural Statistics Service (NASS) and the Foreign Agricultural 
Service, in 2008, 119,270 million pounds of raspberries (fresh) with a 
combined value approaching $286 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 
2007, 142,500 million pounds were produced and utilized, at a value of 
almost $267 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 62 million pounds in 2007 
with most recent years averaging approximately 69 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 2008. In comparison, imported 
processed raspberries surged from 7.5 to 53.8 million pounds from 1991 
to 2005 and then decreased to 45.8 million pounds in 2008. Chile, which 
is the predominate importer of processed raspberries to the United 
States, supplied just over 18 percent of the total U.S. market in 2008.
    Domestic uses of processed raspberries include further processing 
into juices, jellies, baked goods, and consumer retailer packs. After 
averaging approximately 188 million pounds for the period 2006 to 2008, 
approximately 165 million pounds of processed raspberries produced and 
imported into the United States in 2008, and 184 million pounds in 2007 
were utilized for processing. 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 2003 to 2008, with 22 and 69.5 
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.

[[Page 6134]]

    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 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 sent to the Council and 
placed on a ballot which will then be sent to producers in the State 
for a vote. The nominee for member will have received the highest 
number of votes cast. The person with the second highest number of 
votes cast will be the nominee for alternate. The persons with the 
third and fourth place highest number of votes cast will be designated 
as additional nominees for consideration by the Secretary. Once the 
Council has received all of the nominations from commissions or 
committees, the information will be submitted to the Secretary for 
appointment. Nominations for the initial Council will be handled by the 
Department. Subsequent nominations will be handled by the Council staff 
and shall be submitted to the Secretary not less than 90 days prior to 
the expiration of the term of office.
    If the Department determines that there are no State raspberry 
commissions or State marketing orders from States producing a minimum 
three year average of three million pounds of raspberries delivered for 
processing, the Council will seek nominations from the State 
Departments of Agriculture for members and alternates from the specific 
States 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 nominations for the one raspberry producer of raspberries for 
processing and alternate member, who represents all other States 
producing less than a minimum three year average of three million 
pounds of raspberries delivered for processing, which constitutes a 
region will be submitted to the Council in the following manner: (1) 
For those States that have a State raspberry commission or State 
marketing order, the State 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 sent to the Council and 
placed on a ballot which will then be sent to producers in the region 
for a vote. The nominee for member will have received the highest 
number of votes cast. The person with

[[Page 6135]]

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.
    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 they are no qualified 
organizations representing foreign producer interests, individual 
foreign producers may directly submit nominations to the Department for 
the initial Council. Subsequent nominations shall be submitted to the 
Council and will be handled by the Council staff who in turn shall 
submit those nominations to the Secretary not less than 90 days prior 
to the expiration of the term of office.
    In recommending the at-large member and alternate, the Council 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

[[Page 6136]]

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 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, the WRRC, stated that it has not been able 
to generate the funds necessary, nor has the ORBC or international 
raspberry organizations, to support the marketing efforts needed to 
help expand processed raspberry consumption and increase the demand for 
processed raspberries. In order to 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. The WRRC also proposed that a 
producer who operates under an approved National Organic Program (NOP) 
system plan, produces only products eligible to be labeled as 100 
percent organic under the NOP, and is not a split operation, be exempt 
from paying assessments under the 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.
    There are no Federal rules that duplicate, overlap, or conflict 
with this rule.
    The Department invited comments concerning potential effects of the 
Proposed Order on small entities and the accuracy regarding the number 
and size of entities covered under the Proposed Order. We did not 
receive any comments as a result of the publication of the Initial 
Regulatory Flexibility Analysis.

Paperwork Reduction Act

    In accordance with the Paperwork Reduction Act of 1995 [44 U.S.C. 
Chapter 35], AMS has requested 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: Awaiting Renewal.
    Title: National Research, Promotion, and Consumer Information 
Programs.

[[Page 6137]]

    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.
    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 processed 
raspberries imported during the reporting period and a record of each 
importation of such product during such period, giving quantity, date, 
and port of entry. Under the 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: 7.8 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: Producers and importers.
    Estimated number of Respondents: 10.
    Estimated number of Responses per Respondent: 1.
    Estimated Total Annual Burden on Respondents: 2.5 hours.

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

    Estimate of Burden: Public recordkeeping burden for keeping this 
information is estimated to average 0.5 hours per record keeper 
maintaining such records.
    Recordkeepers: Producers, first handlers, and importers.
    Estimated number of recordkeepers: 297.
    Estimated total recordkeeping hours: 148.5 hours.

(6) Application for Certification of Organizations

    Estimate of Burden: Public recordkeeping burden for this collection 
of information is estimated to average 0.5 hours per application.
    Respondents: Importers and foreign producer organizations.
    Estimated Number of Respondents: 10.
    Estimated Number of Responses per Respondent: 1.

[[Page 6138]]

    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.

(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.
    Comments were 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. We received one comment 
regarding the collection of information part of this rule. This comment 
is discussed in the comments section of this proposal.

Comments

    A 60-day comment period was provided to allow interested persons an 
opportunity to respond to this proposal. Twenty-one comments were 
received on the Proposed Order by the June 08, 2009 deadline. Comments 
were received from producers of raspberries for processing, importers 
of processed raspberries, industry associations, consumers, brokers, 
and other interested parties. Eighteen commenters supported the 
Proposed Order and three were opposed.
    Three commenters that supported the Proposed Order stated that with 
new challenges in the current global situation, a good marketing 
program funded by those in the industry would help sustain the industry 
and that producers and importers working together would provide funds 
sufficient to carry out nutrition and health based research and 
subsequent marketing efforts to grow the market for all participants. 
These commenters also stated that in order to sustain the processed 
raspberry industry and develop new markets domestically and 
internationally, it is necessary to have the Proposed Order 
implemented.
    Four commenters that supported the Proposed Order stated that it 
was necessary for those who benefit from market development activities 
to share in the cost burden. The commenters also stated that producers 
from countries that have turned from marketing fresh raspberries to 
processed raspberries because of the profitability year round should 
contribute to the cost of promotions and research needed to ensure 
strong markets. In addition, these commenters stated that importers who 
benefit from research and promotions generated domestically should pay 
their fair share into the program. The commenters also believe that 
growers should pay equitable share of cost to keep the industry healthy 
and are therefore in favor of the Proposed Order. 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.
    Two commenters in favor of the Proposed Order stated that they 
appreciate the accessibility of raspberries during off season and the 
nutrition that they can provide to their family. The comments also 
stated that consumers need good factual nutrition information and a 
program to increase supply and build bigger markets is appreciated.
    Two commenters that supported the Proposed Order said they felt the 
initial assessment rate of one cent per pound should provide adequate 
funding for nutritional research and consumer education programs.
    One commenter that supported the Proposed Order believes the 20,000 
pound exemption from assessment for producers is appropriate.
    Three commenters that supported the Proposed Order were of the view 
that the Proposed Order would not only benefit small growers, but 
provide a gross benefit to the fresh market as well and can enable the 
fresh and processed raspberry industries to work together to build 
markets and address common research needs.
    Two commenters that supported the Proposed Order would like to see 
fresh and organic raspberries added to the Proposed Order in the 
future. However, the proponent group did not include fresh raspberries 
believing that their inclusion was not timely. If the fresh raspberry 
industry is interested in including fresh raspberries in the proposed 
program in the future, the Proposed Order would need to be amended and 
a referendum would be conducted to determine if fresh raspberries 
should be added. With regard to organic raspberries, a producer who 
operates under an approved National Organic Program (NOP) (7 CFR part 
205) system plan, who also produces only products that are eligible to 
be labeled as 100 percent organic under the NOP, and is not a split 
operation, is exempt from the payment of assessments. Furthermore, 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 also be exempt from the payment of assessments.
    One commenter that supported the Proposed Order is concerned that 
the

[[Page 6139]]

Order may disparage the fresh raspberries market. The Proposed Order 
states in section 1208.48(c) that the Council may not engage in, and 
shall prohibit, employees and agents of the Council from engaging in 
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. 
Accordingly, this provision addresses the commenter's concern.
    One commenter that supported the Proposed Order is concerned that 
the proposal does not clearly use ``processed raspberries'' in the 
definitions of information and research in the Proposed Order. This 
comment has merit. Accordingly, the Department has changed section 
1208.11 and section 1208.24 of the Proposed Order to add processed 
raspberries to those sections.
    One commenter that supported the Proposed Order states that passage 
of the referendum should be based on voting by a majority of those 
voting who also represent a majority of production of processed 
raspberries. Section 518(e) of the 1996 Act states that an order may 
provide for its approval in referendum by a majority of those persons 
voting, by persons voting for approval who represent a majority of the 
volume of the agricultural commodity, or by a majority of those persons 
voting for approval who also represent a majority of the volume of the 
agricultural commodity. Any one of these three voting criteria would be 
appropriate for a research and promotion program. However, the 
proponent group proposed that passage of the referendum be based on a 
majority of those persons voting in the referendum. Further, only one 
comment was received concerning this matter. Therefore, the Department 
will keep the current method of voting, which is by a majority of those 
persons voting in the referendum, as the industry has put forth in the 
Proposed Order.
    Three commenters that supported the Proposed Order believe that 
promotion activities should be restricted to the United States or 
consequently would request that the Council demonstrate how foreign 
expenditures will have the result of promotion consumption in the 
United States as well as abroad. Section 512(b)(2) of the Act provides 
authority for the Council to conduct activities in foreign markets. 
Furthermore, it is the Department's policy that the funds used for 
promotions for those research and promotion programs that promote 
outside the U.S. be proportionate to the funds collected domestically. 
In addition, the Council is composed of both importers and producers, 
and it is the Council's responsibility to determine how best to 
properly allocate the funds collected consistent with the provisions of 
the Order and the 1996 Act.
    One commenter that supported the Proposed Order would like a credit 
of assessments for contributions made to programs for generic 
activities initiated in foreign countries. According to section 
516(e)(1) of the 1996 Act, authority is provided for credits of 
assessments for those individuals who contribute to other similar 
generic research, promotion, and information programs at the State, 
regional, or local level. Accordingly, no change to the proposal is 
made as a result of this comment.
    Four commenters that supported the Proposed Order proposed that the 
aggregate credits that any importer or U.S. producer may be entitled to 
receive for contributions to U.S.-based and non U.S.-based generic 
research, promotion, and information programs in any one year be 
limited to an amount equal to no more than twenty-five percent of the 
total assessments paid by such importer or producer in that year. 
Section 516 of the 1996 Act authorizes credits only for similar generic 
research, promotion and information programs at the State, regional, or 
local level. The Department believes that this comment as it relates to 
a credit limit on contributions to U.S.-based programs has merit. 
However, a specific amount should be determined by the Council with 
approval of the Secretary. Therefore, section 1208.52(h)(3) of the 
Proposed Order is changed to add language allowing the Council to 
determine an appropriate rate. However, as stated above, contributions 
to non-U.S.-based programs are not authorized to receive credits of 
assessments paid.
    One commenter that supported the Proposed Order approves of the 
provision for a public member and the membership distribution on the 
Council in the Proposed Order.
    Three commenters that supported the Proposed Order suggested that 
the number of board seats for importers be reduced from three to two, 
while the number of foreign producer seats increase from two to three. 
In addition, three commenters proposed an increase in foreign producer 
seats on the Council because they believe that foreign producers will 
ultimately bear the cost of assessments. The Proposed Order states that 
the Council be composed of thirteen members and thirteen alternate 
members, appointed by the Secretary from nominations as follows: Six 
processed raspberry producer members and alternate members from States 
producing a minimum of three million pounds of raspberries delivered 
for processing; one processed raspberry producer member and alternate 
member representing all other States producing less than a three 
million pounds of raspberries delivered for processing; three processed 
raspberry importer members and alternate members; two 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 one at-large member and an alternate 
recommended by the Council. Using this distribution, the domestic 
producer members on the Council would account for 54 percent of Council 
membership, importer members would account for 23 percent of Council 
membership, foreign producers would account for 15 percent of Council 
membership, and the at-large member would account for 8 percent of 
Council membership. In 2010, estimated revenue from assessments is 
expected at $1.2 million of which 57 percent is expected from domestic 
product and 43 percent from imported product. The total number of 
importers and foreign producers on the Council will equal 38 percent of 
the total seats on the Council