[Federal Register Volume 64, Number 140 (Thursday, July 22, 1999)]
[Proposed Rules]
[Pages 39790-39803]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-18691]
[[Page 39789]]
_______________________________________________________________________
Part V
Department of Agriculture
_______________________________________________________________________
Agricultural Marketing Service
_______________________________________________________________________
7 CFR Part 1218
Proposed Blueberry Promotion, Research, and Information Order; Proposed
Rule
Blueberry Promotion, Research, and Information Order; Referendum
Procedures; Proposed Rule
Federal Register / Vol. 64, No. 140 / Thursday, July 22, 1999 /
Proposed Rules
[[Page 39790]]
DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Part 1218
[FV-99-701-PR1]
Proposed Blueberry Promotion, Research, and Information Order
AGENCY: Agricultural Marketing Service, USDA.
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: The U.S. Department of Agriculture (USDA) is seeking comments
regarding the establishment of an industry-funded promotion, research,
and information program for cultivated blueberries. A proposed
program--the Blueberry Promotion, Research, and Information Order
(Order)--was submitted to USDA by the North American Blueberry Council,
Inc. Under the Order, blueberry producers and importers would pay an
assessment of $12 per ton, which would be paid to the proposed U.S.A.
Blueberry Council. Producers and importers of less than 2,000 pounds of
fresh and processed blueberries annually would be exempt from the
assessment. The proposed program would be implemented under the
Commodity Promotion, Research, and Information Act of 1996 (Act).
DATES: Comments must be received by September 20, 1999.
ADDRESSES: Interested persons are invited to submit written comments
concerning this proposed rule to the Docket Clerk, Research and
Promotion Branch, Fruit and Vegetable Programs, Agricultural Marketing
Service, USDA, Stop 0244, Room 2535-S, 1400 Independence Avenue, S.W.,
Washington, D.C. 20250-0244. Comments should be submitted in triplicate
and will be made available for public inspection at the above address
during regular business hours. Comments may also be submitted
electronically to: malinda.farmer@usda.gov. All comments should
reference the docket number, the date, and the page number of this
issue of the Federal Register. A copy of this rule may be found at:
www.ams.usda.gov/fv/rpdocketlist.htm.
Pursuant to the Paperwork Reduction Act (PRA), send 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 to the above address. Comments concerning the
information collection under the PRA should also be sent to the Desk
Officer for Agriculture, Office of Information and Regulatory Affairs,
Office of Management and Budget, Washington, D.C. 20503.
FOR FURTHER INFORMATION CONTACT: Oliver L. Flake, Research and
Promotion Branch, Fruit and Vegetable Programs, AMS, USDA, Stop 0244,
1400 Independence Avenue, S.W., Room 2535-S, Washington, D.C. 20250-
0244; telephone 202) 720-5976 or fax (202) 205-2800.
SUPPLEMENTARY INFORMATION: This proposed Order is issued pursuant to
the Commodity Promotion, Research, and Information Act of 1996, 7
U.S.C. 7401-7425; Public Law 104-127, enacted April 4, 1996,
hereinafter referred to as the Act.
Executive Order 12988
This proposed rule has been reviewed under Executive Order 12988,
Civil Justice Reform. It is not intended to have retroactive effect.
Section 524 of the Act provides that the Act shall not affect or
preempt any other Federal or state law authorizing promotion or
research relating to an agricultural commodity.
Under Section 519 of the Act, a person subject to the Order may
file a petition with the Secretary of Agriculture (Secretary) stating
that the Order, any provision of the Order, or any obligation imposed
in connection with the Order, is not established in accordance with the
law, and requesting a modification of the Order or an exemption from
the Order. Any petition filed challenging the Order, any provision of
the Order, or any obligation imposed in connection with the Order,
shall be filed within two years after the effective date of the Order,
provision, or obligation subject to challenge in the petition. The
petitioner will have the opportunity for a hearing on the petition.
Thereafter, the Secretary of Agriculture (Secretary) will issue a
ruling on a petition. The Act provides that the district court of the
United States for any district in which the petitioner resides or
conducts business shall have the jurisdiction to review a final ruling
on the petition, if the petitioner files a complaint for that purpose
not later than 20 days after the date of the entry of the Secretary's
final ruling.
Executive Order 12866
This proposed 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).
Regulatory Flexibility Act
In accordance with the Regulatory Flexibility Act (RFA) [5 U.S.C.
601 et seq.], the Agency 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 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.
This program is intended to develop and finance an effective and
coordinated program of promotion, research, and consumer information to
maintain and expand the markets for cultivated blueberries (hereinafter
referred to as blueberries). A proposal was submitted by the North
American Blueberry Council, Inc. (proponent or NABC). The proponent has
proposed that blueberry producers and importers approve the program in
a referendum in advance of its implementation. In addition, NABC
proposed that producers, importers, exporters, and a first handler
would serve on a 13-member U.S.A. Blueberry Council (USABC) that would
administer the program under USDA's oversight. In addition, any person
subject to the program may file with the Secretary a petition stating
that the Order or any provision is not in accordance with law and
requesting a modification of the Order or an exemption from the Order.
While the proposed Order would impose certain record keeping
requirements on first handlers, information required under the proposed
Order could be compiled from records currently maintained. First
handlers would collect and remit the assessments on domestic
blueberries to the Council. Their responsibilities would include
accurate recordkeeping and accounting of all blueberries purchased or
contracted for, including the number of pounds handled, the names of
their producers, and when blueberries are 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 Act. Such records shall be retained for at least two
years. These
[[Page 39791]]
requirements are already being conducted as a normal business practice.
In addition, first handlers of blueberries who seek nomination to
serve on the USABC would be required to complete a nomination form
which would be submitted to the Secretary.
The added burden to first handlers for a blueberry promotion,
research, and information program is therefore expected to be minimal.
There is also a minimal burden on producers. The burden relates to
those producers who would seek nomination to serve on the USABC and
those who vote in referenda. In addition, the proposed Order would
require producers to keep records and to provide information to the
USABC or the Secretary when requested. However, it is not anticipated
that producers would be required to submit forms to the USABC. Most
likely, the information would be obtained through an audit of a
producer's records to confirm information provided by a first handler
or if a first handler did not file the required reports as part of the
USABC's compliance operation. When seeking nomination to serve on the
USABC, producers would be required to complete one form which would be
submitted to the Secretary.
In addition, there is a minimal burden on importers. The import
assessments would be collected by the U.S. Customs Service (Customs) at
time of entry into the United States. Importers would be required to
keep records and to provide information to the USABC or the Secretary
when requested. However, it is not anticipated that importers would be
required to submit forms to the USABC. Importers who seek nomination to
serve on the USABC would be required to complete one form which would
be submitted to the Secretary.
Further, there would be a minimal burden on exporters who seek
nomination to serve on the USABC. They would be required to complete
one form which would be submitted to the Secretary.
The estimated annual cost of providing the information to the USABC
by an estimated 1,611 respondents (1,287 producers, 200 first handlers,
120 importers, and 4 exporters) would be $12,995 or $7,185 for all
producers or $5.58 per producer, $2,000 for all first handlers or
$10.00 per first handler, $3,800 for all importers or $31.66 per
importer, and $10 for all exporters or $2.50 per exporter
USDA would oversee program operations and, if the program is
implemented, would conduct a referendum (1) every five years to
determine whether blueberry producers and importers support
continuation of the program, (2) at the request of the USABC
established under the Order, or (3) at the request of 10 percent or
more of the number of persons eligible to vote in referenda.
Additionally, the Secretary may conduct a referendum at any time to
determine whether the continuation, suspension, or termination of the
Order or a provision of the Order is favored by those eligible to vote
in referenda.
There are approximately 1,287 producers, 200 first handlers, and
120 importers, and 4 exporters of blueberries who would be subject to
the program. Most of the producers would be classified as small
businesses under the criteria established by the Small Business
Administration (SBA) [13 CFR 121.601]. Most importers and first
handlers would not be classified as small businesses and while most
exporters are large we assume that some are small. The SBA defines
small agricultural handlers as those whose annual receipts are less
than $5 million, and small agricultural producers are defined as those
having annual receipts of not more than $500,000 annually.
The blueberry, along with the cranberry and Concord grape, is one
of only three native North American fruits. Blueberries were
domesticated from wild highbush blueberries in the early 1900's. Over
the years, they have been bred for flavor, size, color, vigor, and
yield.
North America is the world's leading producer of blueberries. From
1993 to 1997, cultivated blueberries represented an average of
approximately 70 percent of all blueberries produced in the United
States with the remainder, known as lowbush (wild) blueberries,
produced primarily in Maine. There are over 37 varieties of
blueberries, but not all are actively produced for market.
Blueberries are harvested from April through October, with more
than 60 percent harvested from mid-June though mid-August. Blueberries
are grown in 35 states. Commercial production operations are located in
Michigan (44 percent), New Jersey (19 percent), Oregon (12 percent),
Georgia 9 percent), North Carolina (5 percent), Washington (5 percent),
Indiana and Florida (2 percent each), and all other states (2 percent).
A majority of blueberry growers are relatively small business
owners, operating 20 to 30-acre farms which have been in their families
for a number of generations. Blueberry acreage is expanding in the
United States, with considerable growth in the high-yielding areas of
the Northwest and South. Harvested acreage in the United States has
more than doubled over the past 15 years, from 21,850 harvested acres
in 1980 to an estimated 46,685 harvested acres in 1996.
U.S. blueberry production has more than doubled since the late
1970's, from an average of 35,693 tons during the five-year period 1977
through 1981 to an average of more than 75,500 tons from 1993 through
1997. According to USDA's National Agricultural Statistics Service
(NASS), total production of blueberries was 79,485 tons in 1998, a
decrease from 84,990 tons in 1997. Approximately 39,493 tons of the
total were utilized for fresh market sale and 37,608 tons were
processed (primarily frozen).
Farm value of the 1997 blueberry crop was $141 million, compared
with $113.6 million a year earlier.
U.S. frozen blueberry per capita consumption has been declining
rapidly in recent years, decreasing from 0.38 pounds in 1996 to 0.33
pounds in 1997. From calendar year 1991 through 1995, U.S. per capita
consumption of frozen blueberries averaged 0.43 pounds.
The United States exported 6.3 million pounds of fresh blueberries
in 1997, valued at $7.9 million. Canada is the principal destination
for U.S. exports--accounting for nearly 79 percent of the total in
1997. Other key markets included Switzerland (7 percent), the United
Kingdom (5 percent), and Germany (3 percent). The remaining export
volume went mostly to other European and Asian countries.
U.S. exports of frozen blueberries totaled 11,050 tons in 1997, and
were valued at $9.9 million. The largest U.S. export market for frozen
blueberries is Canada, accounting for 90 percent of the total quantity
exported in 1997. Japan was the second largest U.S. market, accounting
for 8 percent of the total. The remaining 2 percent of U.S. exports
were sent mainly to other Asian and European countries.
In 1997, the United States imported 6,950 tons of fresh blueberries
worth $10.8 million. Imports from Canada accounted for 89 percent of
the total. Other major suppliers of fresh blueberries were Chile, with
9 percent of the total, and New Zealand with 2 percent.
In 1997, total imports of frozen blueberries reached 4,900 tons,
valued at $8.5 million. The bulk of U.S. frozen blueberry imports
(about 96 percent) in 1997 came from Canada. U.S. imports of frozen
blueberries from Chile represented 2 percent of the total, while Mexico
accounted for 1 percent of the total. The rest of the 1997 import
volume originated from the Netherlands, Costa Rica and Colombia.
[[Page 39792]]
During the 1997 season, average annual production per U.S. producer
was approximately 66.04 tons of blueberries. Blueberries produced
during this growing season provided average annual gross sales of
$109,557 per blueberry producer.
The proposed Order would authorize a fixed assessment paid by
producers (to be collected by first handlers) and importers (to be
collected by Customs) at a rate of $12 per ton.
Section 516(a)(1) of the Act provides authority to the Secretary to
exempt from the Order any de minimis quantity of an agricultural
commodity otherwise covered by the Order. The proponent has recommended
that producers and importers of less than 2,000 pounds of blueberries
annually be exempt from assessment.
At the proposed rate of assessment of $12 per ton, the USABC would
collect approximately $1.1 million annually. It is expected that the
assessment would represent less than 1 percent of producers' average
return. In 1997, the average price for blueberries was $1,659 per ton.
USDA will keep all individuals informed throughout the referendum
process to ensure that they are aware of and are able to participate in
the referendum. USDA will publicize information regarding the
referendum process so that trade associations and related industry
media can be kept informed. If the program is implemented, the newly
established USABC would recommend to USDA regulations for the program.
In addition, the blueberry industry would nominate producers,
importers, exporters, and a first handler to serve as members and
alternates on the USABC. The USABC would recommend the assessment rate,
programs, projects, a budget, and any rules and regulations that might
be necessary for the administration of the program. USDA would ensure
that the nominees represent the blueberry industry in accordance with
the proposed Order.
The USABC would consist of 13 members: one producer representative
from each of four regions, one producer representative for each of the
top five producing states, one importer, one exporter, one first
handler, and one public member. The regional and state members would be
nominated from within the respective regions or states by the state
commissions or the NABC as applicable for initial nominations, and the
importer, exporter, and first handler members would be nominated by the
USABC. There would be an alternate for each member. The importer
position would be filled by a person who imports fresh or processed
blueberries from outside of the United States for sale in the United
States. The exporter position would be filled by a representative of
the foreign production area which, based on a 3-year average, produces
the most blueberries that are shipped to the United States.
In order to provide the opportunity for public input into USABC
deliberations, the Secretary has added one public member and alternate
to the proponent's proposed USABC. The public member and alternate
would be nominated by the USABC.
Proposed record keeping and reporting requirements for the
blueberry promotion, research, and information program would be
designed to minimize the burden on the blueberry industry. The
blueberry promotion program would be designed to strengthen the
position of blueberries in the marketplace, maintain and expand
existing domestic and foreign markets, and develop new uses and markets
for blueberries.
The estimated annual cost of providing the information to the USABC
by an estimated 1,611 respondents (1,287 producers, 200 first handlers,
120 importers, and 4 exporters) would be $12,995 or $7,185 for all
producers or $5.58 per producer, $2,000 for all first handlers or
$10.00 per first handler, $3,800 for all importers or $31.66 per
importer, and $10 for all exporters or $2.50 per exporter.
With regard to alternatives to this proposed rule, the 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 Act, and other sections provide for
alternatives. For example, Section 514 of the 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 authorizes an order to provide for
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 Act provides for referenda to
ascertain approval of an order to be conducted either prior to its
going into effect or within 3 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 Act provides for
establishment of a board 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; and an initial
referendum to be conducted prior to the Order going into effect.
Approval would be based upon a majority of the blueberry production and
imports represented by those voting in the referendum.
While we have performed this Initial Regulatory Flexibility
Analysis regarding the impact of this proposed Order on small entities,
in order to obtain all the data necessary for a comprehensive analysis,
we invite comments concerning potential effects of the proposed Order.
In particular, we are seeking information on the number of first
handlers and importers that would be covered by the program and the
number of exporters that would be eligible to serve on the USABC. In
addition, we are interested in more information on the number and kind
of small entities that may incur benefits or costs from implementation
of the proposed Order and information on the expected benefits or
costs.
Paperwork Reduction Act
In accordance with the Office of Management and Budget (OMB)
regulation [5 CFR Part 1320] which implements the Paperwork Reduction
Act of 1995 [44 U.S.C. Chapter 35], the information collection and
record keeping requirements that may be imposed by this Order have been
submitted to OMB for approval.
Title: National Research, Promotion, and Consumer Information
Programs.
OMB Number for background form (number 1 below): 0505-0001.
Expiration Date of Approval: November 30, 1999.
OMB Number for other information collections: 0581-0093.
Expiration Date of Approval: November 30, 2000.
Type of Request: Revision of currently approved information
collections for advisory committees and boards and for research and
promotion programs.
[[Page 39793]]
Abstract: The information collection requirements in the request
are essential to carry out the intent of the Act.
In addition, there will 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 USABC. While the proposed Order would impose certain
record keeping 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. The estimated annual
cost of providing the information to the USABC by an estimated 1,611
respondents (1,287 producers, 200 first handlers, 120 importers, and 4
exporters) would be $12,995 or $7,185 for all producers or $5.58 per
producer, $2,000 for all first handlers or $10.00 per first handler,
$3,800 for all importers or $31.66 per importer, and $10 for all
exporters or $2.50 per exporter.
The proposed Order's provisions have been carefully reviewed, and
every effort has been made to minimize any unnecessary record keeping
costs or requirements, including efforts to utilize information already
submitted under other blueberry programs administered by USDA.
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 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
USABC. 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. Reporting other than yearly would impose an
additional and unnecessary record keeping burden on first handlers. 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. In addition, the information to be
included on these forms is not available from other sources because
such information relates specifically to individual producers and first
handlers who are subject to the provisions of the 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
Estimate of Burden: Public reporting for this collection of
information is estimated to average 0.5 hours per response for each
producer.
Respondents: Producers, importers, exporters, and first handlers.
Estimated number of Respondents: 18 (52 for initial nominations to
the USABC, 28 in the second year, and 24 in the fourth year).
Estimated number of Responses per Respondent: 1 every 3 years.
Estimated Total Annual Burden on Respondents: 26 hours for the
initial nominations to the promotion board and 9 hours annually
thereafter.
(2) An Annual Report by Each First Handler of Blueberries
Estimate of Burden: Public reporting burden for this collection of
information is estimated to average 0.5 hours per each first handler
reporting on blueberries handled.
Respondents: First handlers.
Estimated number of Respondents: 200.
Estimated number of Responses per Respondent: 1.
Estimated Total Annual Burden on Respondents: 100 hours.
(3) A Request for Certificate of Exemption
Estimate of Burden: Public reporting burden for this collection of
information is estimated to average 0.5 hours per first handler,
producer, or importer reporting on blueberries handled. Upon approval
of an application, producers and importers will receive exemption
certification.
Respondents: Producers and importers.
Estimated number of Respondents: 200.
Estimated number of Responses per Respondent: 1.
Estimated Total Annual Burden on Respondents: 100 hours.
(4) Importer Application for Reimbursement of Assessment
Estimate of Burden: Public reporting burden for this collection of
information is estimated to average 0.5 hours per importer requesting a
refund.
Respondents: Producers and importers.
Estimated number of Respondents: 45.
Estimated number of Responses per Respondent: 12.
Estimated Total Annual Burden on Respondents: 270 hours.
(5) A Requirement to Maintain Records Sufficient to Verify Reports
Submitted Under the Order
Estimate of Burden: Public record keeping burden for keeping this
information is estimated to average 0.5 hours per recordkeeper
maintaining such records.
Recordkeepers: Producers, first handlers, and importers.
Estimated number of recordkeepers: 1,607.
Estimated total record keeping hours: 803.5 hours.
Comments are invited on: (a) Whether the proposed collection of
information is necessary for the proper performance of functions of the
Order and the USDA's oversight of the program, including whether the
information will have practical utility; (b) the accuracy of USDA's
estimate of the burden of the proposed collection of information,
including the validity of the methodology and assumption used; (c) ways
to enhance the quality, utility, and clarity of the information to be
collected; and (d) 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.
The Act provides for the submission of proposals for a blueberry
promotion, research, and information order by industry organizations or
any other interested person affected by the Act.
Comments concerning the information collection requirements
contained in this action should reference OMB No. 0581-0093. Comments
addressing the nomination background information form should reference
OMB No. 0505-0001. 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 and the OMB Desk
Officer for Agriculture at the addresses and within the time frames
listed above. All
[[Page 39794]]
comments received will be available for public inspection during
regular business hours at the same address. All responses to this
notice will be summarized and included in the request for OMB approval.
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
The Act authorizes the Secretary, under a generic authority, to
establish agricultural commodity research and promotion orders. The Act
provides for a number of optional provisions that allow the tailoring
of orders for different commodities. Section 516 of the Act provides
permissive terms for orders, and other sections provide for
alternatives. For example, Section 514 of the Act provides for orders
applicable to (1) producers, (2) first handlers and others in the
marketing chain as appropriate, and (3) importers (if importers are
subject to assessment). Section 516 authorizes an order to provide for
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 Act provides for referenda to
ascertain approval of an order to be conducted either prior to its
going into effect or within 3 years after assessments first begin under
the order. The order also may provide for its approval in a referendum
based upon different voting patterns. Section 515 provides for
establishment of a board 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, and an initial
referendum to be conducted prior to the Order going into effect.
Approval would be based upon a majority of the blueberry production and
imports represented by the persons voting in the referendum.
The proponent has requested the establishment of a national
blueberry promotion, research, and information order pursuant to the
Act. The Act authorizes the establishment and operation of generic
promotion programs 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 markets and uses for agricultural commodities. This
proposal would provide for the development and financing of an
effective and coordinated program of research, promotion, and
information for blueberries. The purpose of the program would be to
strengthen the position of blueberries in domestic and foreign markets,
and to develop, maintain, and expand markets for blueberries.
The program would not become effective until approved in a
referendum conducted by USDA. Section 518 of the Act provides for USDA
(1) to conduct an initial referendum, preceding a proposed order's
effective date, among persons who would pay assessments under the
program or (2) to implement a proposed order, pending the conduct of a
referendum, among persons subject to assessments, within three years
after assessments first begin.
In accordance with Section 518(e) of the Act, the results of the
referendum must be determined one of three ways: (1) approval by a
majority of those persons voting; (2) approval by persons voting who
represent a majority of the volume of the commodity covered by the
program; or (3) approval by a majority of the persons voting who also
represent a majority of the volume of the commodity produced, handled,
or imported by the persons voting.
The proponent has recommended that the Secretary conduct a
referendum in which approval of the Order would be based on producers
and importers voting for approval who represent a majority of the
volume of blueberries. The proponent has also recommended that a
referendum be conducted prior to the proposed order going into effect.
In accordance with the Act, USDA would oversee the program's
operations. In addition, the Act requires the Secretary to conduct
subsequent referenda: (1) not later than 7 years after assessments
first begin under the Order; or (2) at the request of the board
established under the Order; or (3) at the request of 10 percent or
more of the number of persons eligible to vote. The proponent group has
requested that a referendum be conducted every five years to determine
if producers and importers want the program to continue.
In addition to these criteria, the Act provides that the Secretary
may conduct a referendum at any time to determine whether the
continuation, suspension, or termination of the Order or a provision of
the Order is favored by persons eligible to vote.
A national research and promotion program for blueberries would
help the industry to address the many market problems it currently
faces. According to the proponent, three main factors currently
affecting blueberry sales, both here in the domestic market and abroad,
are increasing production, aggressive competition, and changing
consumer habits.
Over the years, increased blueberry production has led to depressed
grower prices and increasing cold storage inventory levels. Though
slightly lower production and inventory levels in 1996 and early 1997
improved grower returns to more profitable levels, record production in
1997 led once again to a build up in cold storage inventory of frozen
blueberries and a downturn in grower prices in late 1997 and early
1998. The potential for continued increases in tonnage from new
plantings, expected to come into full production in the future, will
continue to affect the balance of supply and demand and threaten to
depress grower returns.
The blueberry industry has seen tremendous growth in the Northwest
and Southern states which accounted for an estimated 19.9 percent of
total U.S. blueberry acreage in 1980 and an estimated 38.6 percent of
acres by 1996. The growth in the Northwest is an important factor for
the future of the industry, given its production potential. Over the
years, yield per acre in the Northwest has been substantially above
that of the major growing regions of Michigan and New Jersey. On
average, from 1990 to 1996, Oregon produced 71 percent more blueberries
per acre than New Jersey (3.6 tons per acre versus 2.1 tons per acre)
and more than twice the yield of Michigan (3.6 tons per acre versus 1.6
tons per acre). During this same time period, Washington produced an
average of 38 percent more blueberries per acre than New Jersey (2.9
tons per acre compared to 2.1 tons per acre) and 81 percent more than
Michigan (2.9 tons per acre versus 1.6 tons per acre).
The blueberry industry is facing strong competition in the
marketplace from both indirect and direct competitors. Like all food
products, the blueberry must compete for a share of the consumer
dollar. As competition in the supermarket increases, the blueberry
industry must work harder to gain its share of consumer attention at a
time when the industry's direct and indirect
[[Page 39795]]
competitors expand their promotional activities.
A recent informal survey conducted by the proponent showed that
from 1991 to 1995, the blueberry industry committed an average of 0.26
percent of farm gate value to the voluntary NABC domestic marketing
program, far below the average of products such as prunes, kiwifruit,
figs, pears, grapes, apples, citrus, and avocados whose domestic
marketing expenditures averaged 2.10 percent of crop value. Though some
individual members of the blueberry industry conduct promotional
efforts on their own as well as contribute to the NABC program, it is
extremely difficult to compete for a share of consumer and industrial
user attention when the national generic marketing expenditure is
slightly more than one-tenth the average amount of competitive
products.
The blueberry industry must also address direct competition with
the lowbush blueberry industry which is very active and aggressive in
the industrial market both in the United States and abroad. The
blueberry industry must also contend with artificial blueberries which
are making their presence felt in a wide range of national and regional
branded food products.
Changing consumer trends are also having an impact on the use of
blueberries. Of great concern to the blueberry industry is the overall
decline in home baking, given the fact that consumers perceive
blueberries as the primary baking berry. As consumers move away from
home baking of blueberry muffins and pies and decide to buy rather than
bake, the industry must increase its efforts in the industrial market
to be sure that manufacturers maintain and expand their use of
blueberries in baked applications.
It is also necessary for the industry to expand the awareness of
the versatility of blueberries and encourage new consumer and food
manufacturer uses.
In 1965, the NABC was established as a voluntary association of
U.S. and Canadian lowbush (native) and cultivated (highbush) blueberry
growers and marketers who collectively worked to promote blueberry
awareness and consumption. Over the years, the structure of the
organization changed to where the association now represents only the
cultivated blueberry industry in the United States and Canada. The 31
U.S.-based NABC members account for an estimated 78 percent of the U.S.
blueberry crop. These members, along with members from British Columbia
and Quebec, voluntarily assess themselves at a rate of $9 per ton to
fund domestic publicity and promotion efforts directed to both the
consumer and industrial user, as well as to support international
market development. The NABC generates approximately $500,000 annually.
As the only national organization funding blueberry market
development efforts, the voluntary NABC has not been able to generate
the funds necessary to support the aggressive marketing efforts needed
to help expand blueberry consumption and improve the profitability of
the industry. In order to deal with increased production, aggressive
competition, and changing consumer habits, the proponent states that a
more extensive marketing program is needed. A mandatory national
program could solve this problem. In addition, a mandatory national
program would place all domestic growers, first handlers, and importers
on an equal playing field with each investing a fair share in promoting
blueberries.
Additional funds generated through a national program would allow
the blueberry 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. It would also allow for increased participation in
the USDA's Market Access Program and the opportunity to develop
stronger markets overseas. Increased funding would allow for a more
aggressive school effort (educational films, educational booklets,
Internet lesson plans, and the like) and help increase awareness and
demand among children. In addition, such a program would create the
opportunity to explore tie-in promotional activities with nationally
branded food products which would help the blueberry industry gain
advertising and in-store exposure. Further, a mandatory national
program would generate the funds for the industry to support expanded
varietal research activities, new product development efforts, and
nutritional and health research proposals.
Section 516(f) of the 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. The proponent has proposed to assess imports.
The assessment levied on domestically-produced and imported
blueberries 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 Order, including referenda costs,
also would be paid from assessments.
Sections 516(e)(1) and (2) of the Act state that the Secretary may
provide credits of assessments for generic and branded activities. The
proponent has elected not to propose credits for generic or branded
activities. Therefore, the terms ``generic activities'' and ``branded
activities'' are not defined in the Order, and credits for assessments
would not be made.
First handlers would be responsible for the collection of
assessments from the producer and payment to the Council. First
handlers would be required to maintain records for each producer for
whom blueberries are handled, including blueberries produced by the
first handler. In addition, first handlers would be required to file
reports regarding the collection, payment, or remittance of the
assessments.
Assessments on imported fresh and processed blueberries would be
collected by Customs at the time of entry into the United States and
remitted to the Council.
All information obtained from persons subject to this Order as a
result of record keeping and reporting requirements would be kept
confidential by all officers, employees, and agents of USDA and of the
Council. However, 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 request of the Secretary or to which the
Secretary or any officer of USDA 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, by
direction of the Secretary of the name of any person violating the
Order and a statement of the particular provisions of the Order
violated by the person.
The proposed Order provides for USDA to conduct an initial
referendum preceding the proposed Order's effective date. Therefore,
the proposed Order must be approved by producers and importers voting
in the referendum. Approval will be determined by producers and
importers voting who represent a majority of the volume of
[[Page 39796]]
blueberries covered by the program. The proposed Order also provides
for subsequent referenda to be conducted (1) every 5 years after the
program is in effect, (2) at the request of the Board established under
the Order, or (3) when requested by 10 percent or more of blueberry
producers and importers covered by the Order. In addition, the
Secretary may conduct a referendum at any time.
The Act requires that such a proposed order provide for the
establishment of a board to administer the program under USDA
supervision. The proponent's proposal provides for a 12-member U.S.A.
Blueberry Council to which the Secretary would add a public member, as
stated earlier.
To ensure fair and equitable representation of the blueberry
industry on the USABC, the Act requires membership on the USABC to
reflect the geographical distribution of the production of blueberries
and the quantity or value of imports. To that end, this proposal
divides the production area into four relatively equal regions which
would each have one member on the USABC. Regions were based on the most
recent 3-year average of blueberries produced in each region. The
proposal also provides for a representative from each of the top five
blueberry producing states based on the most recent 3-year average of
blueberries produced in each state. In addition, the proposal provides
for one importer, a first handler, and a exporter position to be filled
by a representative of the foreign production area which, based on a 3-
year average, produces the most blueberries that are shipped to the
United States. Each member would have an alternate.
Upon implementation of the Order and pursuant to the Act, the USABC
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 blueberries in the United States and the quantity of
blueberries 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
USABC.
Members and alternates would serve for three-year terms, except
that the members and alternates appointed to the initial USABC would
serve proportionately for two, three, and four years. No member or
alternate would serve more than two consecutive three-year terms.
The proposed Order submitted by the proponent is summarized as
follows:
Sections 1218.1 through 1218.23 of the proposed Order define
certain terms, such as blueberries, producer, and importer, which are
used in the proposed Order.
Sections 1218.40 through 1216.47 include provisions relating to the
USABC. These provision cover establishment and membership, nominations,
selections, acceptance, term of office, vacancies, procedures for
conducting USABC business, alternate members, compensation and
reimbursement, and powers and duties of the USABC, which is the
governing body authorized to administer the Order through the
implementation of programs, plans, projects, budgets, and contracts to
promote and disseminate information about blueberries, subject to
oversight of the Secretary. These sections also include maintenance of
books and records by the USABC and prohibited activities of the USABC,
its employees, and agents.
Sections 1218.50 through 1218.56 cover budget review and approval;
authorize the collection of assessments; specify how assessments would
be used, including reimbursement of necessary expenses incurred by the
USABC for the performance of its duties and expenses incurred for
USDA's oversight responsibilities; specify who pays the assessment and
how; authorize the imposition of a late-payment charge on past-due
assessments; address programs, plans, and projects; require the USABC
to periodically conduct an independent review of its overall program;
specify a program operating reserve; cover the investment of assessment
funds; and address patents, copyrights, trademarks, information,
publications, and product formulations developed through the use of
assessment funds.
The proponent recommends a proposed assessment rate of $12 per ton
for domestic blueberries and imported fresh and processed blueberries.
The assessment rate may be raised or lowered after the initial
continuance referendum which would be conducted after the program has
been in operation 5 years. A referendum on a new assessment rate is not
required.
The federal debt collection procedures referenced in
Sec. 1218.52(e) include those set forth in 7 CFR 3.1 through 3.36 for
all research and promotion programs administered by AMS [60 FR 12533,
March 7, 1995].
Sections 1218.60 through 1218.62 concern reporting and
recordkeeping requirements for persons subject to the Order and protect
the confidentiality of information from such books, records, or
reports.
Sections 1218.70 through 1218.78 describe the rights of the
Secretary; authorize the Secretary to suspend or terminate the Order
when deemed appropriate; prescribe proceedings after suspension or
termination; and address personal liability, separability, and
amendments.
USDA has modified the proponent's proposal to make it consistent
with the Act and other similar national research and promotion
programs; for consistency throughout the text; and for clarity.
In the definitions, ``commodity covered'' was changed to
``blueberries,'' ``consumer information'' and ``producer information''
were combined into a definition of ``information'' to conform with the
Act. Additionally, the definition of ``research,'' and ``importer''
were altered to conform with the Act.
In the definitions and throughout the proposed Order, ``grower/
producer'' was changed to ``producer,'' ``handler'' was changed to
``first handler,'' the term ``board'' was eliminated, and ``council''
was changed to ``U.S.A. Blueberry Council'' or ``USABC.'' The terms
``plans, projects, and programs'' were deleted because they were deemed
unnecessary, and a definition for ``processed blueberries'' and ``part
and subpart'' were added. Throughout the proposed Order, the term
``blueberry products'' was changed to ``fresh and processed
blueberries,'' and, for clarity, time periods were changed to match
definitions.
The following terms were removed from the definitions:
``association,'' ``buyer,'' ``broker,'' ``distributor,'' ``packer,''
``processor,'' and ``shipper.'' These terms were removed because they
are not necessary for the administration of the proposed program.
In Sec. 1218.40 Establishment and membership, the two exporter/
importer positions on the proposed USABC have been changed to an
importer position and an exporter position. The industry's proposal
made importer representation optional. However, Sec. 515(a)(1)(B) of
the Act requires importers to have representation on boards when
imports are assessed under a program. It is estimated that imports will
represent approximately 12 percent of the assessments under this
proposed program. One of the optional importer/exporter positions has
been changed to provide for an importer position, and the other
position has been changed to provide for an exporter position. The
exporter position will be filled by a representative of the foreign
production area which, based on a 3-year average, produces the most
blueberries that are shipped to the United States. In
[[Page 39797]]
addition, to provide the opportunity for public input into USABC
deliberations, the Secretary has added a public member and alternate to
the proponent's proposed USABC. The public member and alternate would
be nominated by the USABC.
In this same section, a statement indicating that the addition of
importer members and alternates will be accomplished by notice and
rulemaking, was deleted as unnecessary.
In Sec. 1218.43 Vacancies, additional information was added to
specify that alternate members would assume the position of member if
the member position becomes vacant during a term of office. In
Sec. 1218.44, a new paragraph (g) was added to clarify that proxy
voting is not authorized. In addition, a new paragraph (h) was added to
allow the chairperson to have a vote during the USABC meetings.
In Sec. 1218.60, the date all reports are due was changed from
November 30 of the crop year to 30 days after the end of the crop year.
This phrase was changed for clarity.
In Sec. 1218.61, the length of time records must be maintained by
first handlers, producers, and importers was changed from seven years
to two years beyond the fiscal period to be consistent with other
research and promotion programs. Also, the following sections were
added to the proponent's proposal: Sec. 1218.73 Proceedings after
termination; Sec. 1218.74 Effect of termination or amendment; and
Sec. 1218.76 Separability.
Minor grammatical changes and other minor changes which do not
materially affect the text were made.
USDA has determined that this proposed Order is consistent with and
will effectuate the purposes of the Act.
The proposal set forth below has not received the approval of the
Secretary.
List of Subjects in 7 CFR Part 1218
Administrative practice and procedure, Advertising, Blueberries,
Consumer information, Marketing agreements, Reporting and recordkeeping
requirements.
For the reasons set forth in the preamble, it is proposed that
chapter XI of title 7 of the Code of Federal Regulations be amended by
adding part 1218 to read as follows:
PART 1218--BLUEBERRY PROMOTION, RESEARCH, AND INFORMATION ORDER
Subpart A--Blueberry Promotion, Research, and Information Order
Definitions
Sec.
1218.1 Act.
1218.2 Blueberries.
1218.3 Conflict of interest.
1218.4 Crop year.
1218.5 Department.
1218.6 Exporter.
1218.7 First handler.
1218.8 Fiscal period.
1218.9 Importer.
1218.10 Information.
1218.11 Market or marketing.
1218.12 Order.
1218.13 Part and subpart.
1218.14 Person.
1218.15 Processed blueberries.
1218.16 Producer.
1218.17 Promotion.
1218.18 Research.
1218.19 Secretary.
1218.20 Suspend.
1218.21 Terminate.
1218.22 United States.
1218.23 USABC.
U.S.A. Blueberry Council
1218.40 Establishment and membership.
1218.41 Nominations and appointments.
1218.42 Term of office.
1218.43 Vacancies.
1218.44 Alternate members.
1218.45 Procedure.
1218.46 Compensation and reimbursement.
1218.47 Powers and duties of the U.S.A. Blueberry Council.
1218.48 Prohibited activities.
Expenses and Assessments
1218.50 Budget and expenses.
1218.51 Financial statements.
1218.52 Assessments.
1218.53 Exemption procedures.
1218.54 Programs, plans, and projects.
1218.55 Independent evaluation.
1218.56 Patents, copyrights, trademarks, information, publications,
and product formulations.
Reports, Book, and Records
1218.60 Reports.
1218.61 Books and records.
1218.62 Confidential treatment.
Miscellaneous
1218.70 Right of the Secretary.
1218.71 Referenda.
1218.72 Suspension and termination.
1218.73 Proceedings after termination.
1218.74 Effect of termination or amendment.
1218.75 Personal liability.
1218.76 Separability.
1218.77 Amendments.
1218.78 OMB control numbers.
Authority: 7 U.S.C. 7401-7425.
Subpart A--Blueberry Promotion, Research, and Information Order
Definitions
Sec. 1218.1 Act.
Act means the Commodity Promotion, Research, and Information Act of
1996 (7 U.S.C.7401-7425; Pub. L. 104-127; 110 Stat. 1029), or any
amendments thereto.
Sec. 1218.2 Blueberries.
Blueberries means cultivated blueberries grown in or imported into
the United States of the genus Vaccinium Corymbosum and Ashei,
including the northern highbush, southern highbush, and rabbit eye
varieties and excluding the lowbush (native) blueberry Vaccinium
Angustifolium.
Sec. 1218.3 Conflict of interest.
Conflict of interest means a situation in which a member or
employee of the U.S.A. Blueberry 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. 1218.4 Crop year.
Crop year means the 12-month period from November 1 through October
31 of the following year or such other period approved by the
Secretary.
Sec. 1218.5 Department.
Department means the U.S. Department of Agriculture.
Sec. 1218.06 Exporter.
Exporter means a person involved in exporting blueberries from
another country to the United States.
Sec. 1218.7 First handler.
First handler means any person, (excluding a common or contact
carrier), receiving blueberries from producers and who as owner, agent,
or otherwise ships or causes blueberries 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 blueberries in commercial quantities. This
does not include a retailer, except a retailer who purchases or
acquires from, or handles on behalf of any producer, blueberries.
Sec. 1218.8 Fiscal period.
Fiscal period means a calendar year from January 1 through December
31, or such other period as approved by the Secretary.
[[Page 39798]]
Sec. 1218.09 Importer.
Importer means any person who imports fresh or processed
blueberries into the United States as a principal or as an agent,
broker, or consignee of any person who produces or handles fresh or
processed blueberries 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 blueberries.
Sec. 1218.10 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 blueberries on a national or
international 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
blueberries; and
(b) Industry information, which means information and programs that
will lead to the development of new markets, new marketing strategies,
or increased efficiency for the blueberry industry, and activities to
enhance the image of the blueberry industry.
Sec. 1218.11 Market or marketing.
(a) Marketing means the sale or other disposition of blueberries in
any channel of commerce.
(b) To market means to sell or otherwise dispose of blueberries in
interstate, foreign, or intrastate commerce.
Sec. 1218.12 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. 1218.13 Part and subpart.
Part means the Blueberry 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. 1218.14 Person.
Person means any individual, group of individuals, partnership,
corporation, association, cooperative, or any other legal entity.
Sec. 1218.15 Processed blueberries.
Processed blueberries means blueberries which have been frozen,
dried, pureed, or made into juice.
Sec. 1218.16 Producer.
Producer means any person who grows blueberries 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, blueberries
beyond the person's own family use and having value at first point of
sale.
Sec. 1218.17 Promotion.
Promotion means any action taken to present a favorable image of
blueberries to the general public and the food industry for the purpose
of improving the competitive position of blueberries both in the United
States and abroad and stimulating the sale of blueberries. (This
includes paid advertising and public relations.)
Sec. 1218.18 Research.
Research means any type of test, study, or analysis designed to
advance the image, desirability, use, marketability, production,
product development, or quality of blueberries, including research
relating to nutritional value, cost of production, new product
development, varietal development, nutritional value, health research,
and marketing of blueberries.
Sec. 1218.19 Secretary.
Secretary means the Secretary of Agriculture of the United States,
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. 1218.20 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. 1218.21 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 date certain specified in the rule.
Sec. 1218.22 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.
Sec. 1218.23 USABC.
USABC, or U.S.A. Blueberry Council, means the administrative body
established pursuant to Sec. 1218.40.
U.S.A. Blueberry Council
Sec. 1218.40 Establishment and membership.
(a) Establishment of the U.S.A. Blueberry Council. There is hereby
established a U.S.A. Blueberry Council, hereinafter called the USABC,
composed of no more than 13 members and alternates, appointed by the
Secretary from the nominations as follows:
(1) One producer member and alternate from each of the following
regions:
(i) Region #1 Western Region (all states from the Pacific east to
the Rockies): Alaska, Arizona, California, Colorado, Hawaii, Idaho,
Montana, Nevada, New Mexico, Oregon, Utah, Washington, and Wyoming.
(ii) Region #2 Midwest Region (all states east of the Rockies to
the Great Lakes and south to the Kansas/Missouri/Kentucky state line)
Illinois, Indiana, Iowa, Kansas, Kentucky, Michigan, Minnesota,
Missouri, Nebraska, North Dakota, Ohio, South Dakota, and Wisconsin.
(iii) Region #3 Northeast Region (all states east of the Great
Lakes and North of the North Carolina/Tennessee state line)
Connecticut, Delaware, New York, Maine, Maryland, Massachusetts, New
Hampshire, New Jersey, Pennsylvania, Rhode Island, Virginia, Vermont,
Washington, D.C., and West Virginia.
(iv) Region #4 Southern Region (all states south of the Virginia/
Kentucky/Missouri/Kansas state line and east of the Rockies) Alabama,
Arkansas, Florida, Georgia, Louisiana, Mississippi, North Carolina,
Oklahoma, Puerto Rico, South Carolina, Tennessee, and Texas.
(2) One producer member and alternate from each of the top five
blueberry producing states, based upon the average of the total tons
produced over the previous three years. Average tonnage will be based
upon North American Blueberry Council production figures for the
initial election and production and assessment figures generated by the
USABC thereafter.
(3) One importer and alternate.
(4) One exporter and alternate shall be filled by foreign blueberry
producers currently shipping blueberries into the United States from
the largest foreign blueberry production area, based on a 3-year
average.
(5) One first handler member and alternate shall be filled by a
United States based independent or cooperative organization which is a
producer/shipper of domestic blueberries.
[[Page 39799]]
(6) One public member and alternate.
(b) Adjustment of membership. At least once every five years, the
USABC will review the geographical distribution of United States
production of blueberries and the quantity of imports. The review will
be conducted through an audit of state crop production figures and
USABC assessment receipts. If warranted, the USABC will recommend to
the Secretary that membership on the USABC be altered to reflect any
changes in geographical distribution of domestic blueberry production
and the quantity of imports. If the level of imports increases,
importer members and alternates may be added to the USABC.
Sec. 1218.41 Nominations and appointments.
(a) Nominations for regional and state representatives will be made
by mail ballot.
(b) In a case where a state has a state blueberry commission or
marketing order in place, the state commission or committee will
nominate members and alternates to serve on the USABC. At least two
nominees shall be submitted to the Secretary for each member and each
alternate.
(c) Nomination and election of regional, and state representatives
where no commission or order is in place will be handled by the USABC,
provided that the initial nominations will be handled by the North
American Blueberry Council. The USABC will seek nominations for members
and alternates from the specific states and/or regions. Nominations
will be returned to the USABC and placed on a ballot which will then be
sent to producers in the state and/or region for vote. The final
nominee for member will have received the highest number of votes cast.
The person with the second highest number of votes cast will be the
final nominee for alternate. The persons with the third and fourth
place highest number of votes cast will be designated as additional
nominees for consideration by the Secretary.
(d) Nominations for the importer, exporter, first handler, and
public member positions will be made by the USABC. Two nominees for
each member and alternate position will be submitted to the Secretary
for consideration.
(e) From the nominations, the Secretary shall select the members of
the USABC and alternates for each position on the USABC.
Sec. 1218.42 Term of office.
USABC members and alternates will serve for a term of three years
and be able to serve a maximum of two consecutive terms. A USABC member
may serve as an alternate during the years the member is ineligible for
a member position. When the USABC is first established, the state
representatives, first handler member, and their respected alternates
will be assigned initial terms of three years. Regional
representatives, the importer member, the exporter member, public
member, and their alternates will serve an initial term of two years.
Thereafter, each of these positions will carry a full three-year term.
USABC 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.
Sec. 1218.43 Vacancies.
(a) In the event any member of the USABC ceases to be a member of
the category of members from which the member was appointed to the
USABC, such position shall automatically become vacant.
(b) If a member of the USABC consistently refuses to perform the
duties of a member of the USABC, or if a member of the USABC engages in
acts of dishonesty or willful misconduct, the USABC may recommend to
the Secretary that the member be removed from office. If the Secretary
finds the recommendation of the USABC shows adequate cause, the
Secretary shall 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. 1218.40 and
Sec. 1218.41, except that said nomination and replacement shall not be
required if said unexpired terms are less than six months.
Sec. 1218.44 Alternate members.
An alternate member of the USABC, 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 both a producer member of the USABC and
the alternate are unable to attend a meeting, the USABC may not
designate any other alternate to serve in such member's or alternate's
place and stead for such a meeting.
Sec. 1218.45 Procedure.
(a) At a USABC meeting, it will be considered a quorum when a
minimum of seven members, or their alternates serving in the absence,
are present.
(b) At the start of each fiscal period, the USABC will select a
chairperson and vice chairperson who will conduct meetings throughout
that period.
(c) All USABC members and alternates will receive a minimum of 10
days advance notice of all USABC and committee meetings.
(d) Each member of the USABC will be entitled to one vote on any
matter put to the USABC, and the motion will carry if supported by one
vote more than 50 percent of the total votes represented by the USABC
members present.
(e) It will be considered a quorum at a committee meeting when at
least one more than half of those assigned to the committee are
present. Alternates may also be assigned to committees as necessary.
(f) In lieu of voting at a properly convened meeting and, when in
the opinion of the chairperson of the USABC such action is considered
necessary, the USABC may take action if supported by one vote more than
50 percent of the members 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 the same force and effect as though such action had been
taken at a properly convened meeting of the USABC. All votes shall be
recorded in USABC minutes.
(g) There shall be no voting by proxy.
(h) The chairperson shall be a voting member.
(i) The organization of the USABC and the procedures for the
conducting of meetings of the USABC shall be in accordance with its
bylaws, which shall be established by the USABC and approved by the
Secretary.
Sec. 1218.46 Compensation and reimbursement.
The members of the USABC, and alternates when acting as members,
shall serve without compensation but shall be reimbursed for reasonable
travel expenses, as approved by the USABC, incurred by them in the
performance of their duties as USABC members.
Sec. 1218.47 Powers and duties of the U.S.A. Blueberry Council.
The USABC shall have the following powers and duties:
(a) To administer the Order in accordance with its terms and
conditions and to collect assessments;
[[Page 39800]]
(b) To develop and recommend to the Secretary for approval such
bylaws as may be necessary for the functioning of the USABC, 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
USABC a chairperson, other officers, committees, and subcommittees, as
the USABC determines to be appropriate;
(d) To employ persons, other than the members, as the USABC
considers necessary to assist the USABC in carrying out its duties and
to determine the compensation and specify the duties of such persons;
(e) 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 USABC shall develop and submit to the USABC 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 USABC of activities conducted under the contract or
agreement; and make such other reports available as the USABC or the
Secretary considers relevant. Any contract or agreement shall provide
that:
(1) The contractor or agreeing party shall develop and submit to
the USABC 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 USABC of
activities conducted, submit accounting for funds received and
expended, and make such other reports as the Secretary or the USABC may
require;
(3) The Secretary may audit the records of the contracting or
agreeing party periodically; and
(4) Any subcontractor who enters into a contract with a USABC
contractor and who receives or otherwise uses funds allocated by the
USABC shall be subject to the same provisions as the contractor.
(f) To prepare and submit for approval of the Secretary fiscal year
budgets in accordance with Sec. 1218.50;
(g) 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 prescribe; 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
USABC;
(h) To cause its books to be audited by a competent 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;
(i) To give the Secretary the same notice of meetings of the USABC
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 USABC to the Secretary;
(j) To act as intermediary between the Secretary and any producer,
first handler, importer, or exporter;
(k) To furnish to the Secretary any information or records that the
Secretary may request;
(l) To receive, investigate, and report to the Secretary complaints
of violations of the Order;
(m) To recommend to the Secretary such amendments to the Order as
the USABC considers appropriate; and
(n) To work to achieve an effective, continuous, and coordinated
program of promotion, research, consumer information, evaluation, and
industry information designed to strengthen the blueberry industry's
position in the marketplace; maintain and expand existing markets and
uses for blueberries; and to carry out programs, plans, and projects
designed to provide maximum benefits to the blueberry industry.
Sec. 1218.48 Prohibited activities.
The USABC may not engage in, and shall prohibit the employees and
agents of the USABC from engaging in:
(a) Any action that would be a conflict of interest; and
(b) Using funds collected by the USABC 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;
Expenses and Assessments
Sec. 1218.50 Budget and expenses.
(a) At least 60 days prior to the beginning of each fiscal year,
and as may be necessary thereafter, the USABC shall prepare and submit
to the Secretary a budget for the fiscal year covering its anticipated
expenses and disbursements in administering this subpart. Each such
budget shall include:
(1) A statement of objectives and strategy for each program, plan,
or project;
(2) A summary of anticipated revenue, with comparative data for at
least one preceding year (except for the initial budget);
(3) A summary of proposed expenditures for each program, plan, or
project; and
(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 of funds
which do not cause an increase in the USABC's approved budget and which
are consistent with governing bylaws need not have prior approval by
the Secretary.
(d) The USABC 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 USABC 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 USABC.
(e) With approval of the Secretary, the USABC may borrow money for
the payment of administrative expenses, subject to the same fiscal,
budget, and audit controls as other funds of the USABC. Any funds
borrowed by the USABC shall be expended only for startup costs and
capital outlays and are limited to the first year of operation of the
USABC.
(f) The USABC may accept voluntary contributions, but these shall
only be used to pay expenses incurred in the conduct of programs,
plans, and projects. Such contributions shall be free from any
encumbrance by the donor and the USABC shall retain complete control of
their use.
(g) The USABC 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.
(h) The USABC shall reimburse the Secretary for all expenses
incurred by the Secretary in the implementation, administration, and
supervision of the
[[Page 39801]]
Order, including all referendum costs in connection with the Order.
(i) The USABC may not expend for administration, maintenance, and
functioning of the USABC in any fiscal year an amount that exceeds 15
percent of the assessments and other income received by the USABC for
that fiscal year. Reimbursements to the Secretary required under
paragraph (h) are excluded from this limitation on spending.
Sec. 1218.51 Financial statements.
(a) As requested by the Secretary, the USABC 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 USABC 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. 1218.52 Assessments.
(a) The funds to cover the Board's expenses shall be acquired by
the levying of assessments upon producers and importers.
(b) The collection of assessments on domestic blueberries will be
the responsibility of the first handler receiving the blueberries. In
the case of the producer acting as its own first handler, the producer
will be required to collect and remit its individual assessments.
(c) Such assessments shall be levied at a rate of $12 per ton on
all blueberries. The assessment rate will be reviewed, and may be
modified with the approval of the Secretary, after the first referendum
is conducted as stated in Sec. 1218.71(b).
(d) Each importer of fresh and processed blueberries shall pay an
assessment to the USABC on blueberries imported for marketing in the
United States, through the U.S. Customs Service.
(1) The assessment rate for imported fresh and processed
blueberries shall be the same or equivalent to the rate for fresh
blueberries produced in the United States.
(2) The import assessment shall be uniformly applied to imported
fresh and frozen blueberries that are identified by the numbers
0810.40.0028 and 0811.90.2028, respectively, in the Harmonized Tariff
Schedule of the United States or any other numbers used to identify
fresh and frozen blueberries. Assessments on other types of imported
processed blueberries, such as dried blueberries, puree, and juice, may
be added at the recommendation of the USABC with the approval of the
Secretary.
(3) The assessments due on imported fresh and processed blueberries
shall be paid when they enter or are withdrawn for consumption in the
United States.
(e) All assessment payments and reports will be submitted to the
office of the USABC. All final payments for a crop year are to be
received no later than November 30 of that year. Payments received
after that date will be subject to a late payment charge to be
determined by the USABC with the approval of the Secretary. The late
payment charge will be in the form of interest on the outstanding
portion of any amount for which the person is liable. The rate of
interest shall be prescribed 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 USABC may authorize other organizations to collect
assessments on its behalf with the approval of the Secretary.
Sec. 1218.53 Exemption procedures.
(a) Any producer who produces less than 2,000 pounds of blueberries
annually who desires to claim an exemption from assessments during a
fiscal year as provided in Sec. 1218.52 shall apply to the USABC, on a
form provided by the USABC, for a certificate of exemption. Such
producer shall certify that the producer's production of blueberries
shall be less than 2,000 pounds for the fiscal year for which the
exemption is claimed. Any importer who imports less than 2,000 pounds
of fresh and processed blueberries annually who desires to claim an
exemption from assessments during a fiscal year as provided in
Sec. 1218.52 shall apply to the USABC, on a form provided by the USABC,
for a certificate of exemption. Such importer shall certify that the
importer's importation of fresh and processed blueberries shall not
exceed 2,000 pounds, for the fiscal year for which the exemption is
claimed.
(b) On receipt of an application, the USABC shall determine whether
an exemption may be granted. The USABC then will issue, if deemed
appropriate, a certificate of exemption to each person who is eligible
to receive one. Each producer who is exempt from assessment must
provide an exemption number to the first handler in order to be exempt
from the collection of an assessment on blueberries. First handlers and
importers, except as otherwise authorized by the USABC, shall maintain
records showing the exemptee's name and address along with the
exemption number assigned by the USABC.
(c) Importers who are exempt from assessment shall be eligible for
reimbursement of assessments collected by the U.S. Customs Service and
shall apply to the USABC for reimbursement of such assessments paid. No
interest will be paid on assessments collected by the U.S. Customs
Service. Requests for reimbursement shall be submitted to the USABC
within 90 days of the last day of the year the blueberries were
actually imported.
(d) Any person who desires an exemption from assessments for a
subsequent fiscal year shall reapply to the USABC, on a form provided
by the USABC, for a certificate of exemption.
(e) The USABC may require persons receiving an exemption from
assessments to provide to the USABC reports on the disposition of
exempt blueberries and, in the case of importers, proof of payment of
assessments.
Sec. 1218.54 Programs, plans, and projects.
(a) The USABC 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 information, with respect to fresh and
processed blueberries; and
(2) The establishment and conduct of research with respect to the
use, nutritional value, sale, distribution, and marketing of fresh and
processed blueberries, and the creation of new products thereof, to the
end that the marketing and use of blueberries may be encouraged,
expanded, improved, or made more acceptable and to advance the image,
desirability, or quality of fresh and processed blueberries.
(b) No program, plan, or project shall be implemented prior to its
approval by the Secretary. Once a program, plan, or project is so
approved, the USABC shall take appropriate steps to implement it.
(c) Each program, plan, or project implemented under this subpart
shall be reviewed or evaluated periodically by
[[Page 39802]]
the USABC to ensure that it contributes to an effective program of
promotion, research, or consumer information. If it is found by the
USABC that any such program, plan, or project does not contribute to an
effective program of promotion, research, or consumer information, then
the USABC shall terminate such program, plan, or project.
(d) No program, plan, or project including advertising shall be
false or misleading or disparaging another agricultural commodity.
Blueberries of all origins shall be treated equally.
Sec. 1218.55 Independent evaluation.
The USABC shall, not less often than every five years, authorize
and fund, from funds otherwise available to the USABC, an independent
evaluation of the effectiveness of the Order and other programs
conducted by the USABC pursuant to the Act. The USABC shall submit to
the Secretary, and make available to the public, the results of each
periodic independent evaluation conducted under this paragraph.
Sec. 1218.56 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
USABC under this subpart shall be the property of the U.S. Government
as represented by the USABC 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 USABC; shall be considered income subject to the same
fiscal, budget, and audit controls as other funds of the USABC; and may
be licensed subject to approval by the Secretary. Upon termination of
this subpart, Sec. 1218.73 shall apply to determine disposition of all
such property.
Reports, Book, and Records
Sec. 1218.60 Reports.
(a)(1) Each first handler subject to this subpart may be required
to provide to the USABC periodically such information as may be
required by the USABC, with the approval of the Secretary, which may
include but not be limited to the following:
(i) Number of pounds handled;
(ii) Number of pounds on which an assessment was collected;
(iii) Name and address of person from whom the first handler has
collected the assessments on each pound handled; and
(iv) Date collection was made on each pound handled.
(2) All reports are due to the USABC 30 days after the end of the
crop year.
(b)(1) Each producer and importer subject to this subpart may be
required to provide to the USABC periodically such information as may
be required by the USABC, with the approval of the Secretary, which may
include but not be limited to the following:
(i) Number of pounds produced;
(ii) Number of pounds on which an assessment was paid;
(iii) Name and address of the producer;
(iv) Date collection was made on each pound produced.
(2) All reports are due to the USABC 30 days after the end of the
crop year.
Sec. 1218.61 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 2 years beyond the fiscal period of their
applicability.
Sec. 1218.62 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 USABC, 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 USABC members, producers, importers, exporters, or
first handlers. Only those persons having a specific need for such
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. 1218.70 Right of the Secretary.
All fiscal matters, programs, plans, or projects, rules or
regulations, reports, or other substantive actions proposed and
prepared by the USABC shall be submitted to the Secretary for approval.
Sec. 1218.71 Referenda.
(a) Initial referendum. The Order shall not become effective
unless:
(1) The Secretary determines that the Order is consistent with and
will effectuate the purposes of the Act; and
(2) The Order is approved by a simple majority of the blueberry
volume represented by the eligible producers and importers voting in a
referendum who, during a representative period determined by the
Secretary, have been engaged in the production or importation of
blueberries.
(b) Subsequent referenda. Every five years, the Secretary shall
hold a referendum to determine whether blueberry producers and
importers favor the continuation of the Order. The Order shall continue
if it is approved by a simple majority of the blueberry volume
represented by the eligible producers and importers voting in a
referendum who, during a representative period determined by the
Secretary, have been engaged in the production or importation of
blueberries. The Secretary will also conduct a referendum if 10 percent
or more of all eligible blueberry producers and importers request the
Secretary to hold a referendum. In addition, the Secretary may hold a
referendum at any time.
Sec. 1218.72 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
[[Page 39803]]
simple majority of the blueberry volume represented by eligible
producers and importers voting in a referendum who, during a
representative period determined by the Secretary, have been engaged in
the production or importation of blueberries.
(c) If, as a result of a referendum the Secretary determines that
this subpart is not approved, the Secretary shall:
(1) Not later than 180 days after making the determination, suspend
or terminate, as the case may be, collection of assessments under this
subpart; and
(2) As soon as practical, suspend or terminate, as the case may be,
activities under this subpart in an orderly manner.
Sec. 1218.73 Proceedings after termination.
(a) Upon the termination of this subpart, the USABC 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 USABC. 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 USABC, 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 USABC 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 USABC and the trustees, to such person or persons as the
Secretary may direct; and
(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 USABC 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 USABC 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 the blueberry producer
organizations in the interest of continuing blueberry promotion,
research, and information programs.
Sec. 1218.74 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; or
(b) Release or extinguish any violation of this subpart or any
regulation issued thereunder; or
(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. 1218.75 Personal liability.
No member or alternate member of the USABC 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 or alternate,
except for acts of dishonesty or willful misconduct.
Sec. 1218.76 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. 1218.77 Amendments.
Amendments to this subpart may be proposed from time to time by the
USABC or by any interested person affected by the provisions of the
Act, including the Secretary.
Sec. 1218.78 OMB control numbers.
The control number assigned to the information collection
requirements by the Office of Management and Budget pursuant to the
Paperwork Reduction Act of 1995, 44 U.S.C. Chapter 35, is OMB control
number 0581-0093, except for the USABC nominee background statement
form which is assigned OMB control number 0505-001.
Dated: July 16, 1999.
Enrique E. Figueroa,
Administrator, Agricultural Marketing Service.
[FR Doc. 99-18691 Filed 7-21-99; 8:45 am]
BILLING CODE 3410-02-P
