[Federal Register Volume 60, Number 196 (Wednesday, October 11, 1995)]
[Rules and Regulations]
[Pages 52835-52838]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-25165]
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DEPARTMENT OF AGRICULTURE
7 CFR Part 1212
[FV-95-701]
Lime Research, Promotion, and Consumer Information Order;
Referendum Order and Procedures
AGENCY: Agricultural Marketing Service, USDA.
ACTION: Interim final rule with request for comments; referendum order.
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SUMMARY: The purpose of this rulemaking action is to give notice of a
referendum and to provide procedures for which the Department of
Agriculture will use in conducting the referendum to determine whether
the issuance of the Lime Research, Promotion, and Consumer Information
Order is favored by a majority of the producers, producer-handlers, and
importers voting in the referendum. The Lime Board at its August 7,
1995, meeting requested that a referendum be held as soon as possible.
The referendum order establishes the voting period, representative
period, method of voting, and agents.
DATES: This rule is effective October 11, 1995 through December 31,
1995. Comments must be received by October 26, 1995. The representative
period for establishing voter eligibility shall be the period from
September 1, 1994, through August 31, 1995. A referendum shall be
conducted by mail ballot from November 1, 1995, through November 15,
1995.
ADDRESSES: Interested persons are invited to submit written comments
concerning this rule to: Docket Clerk, Fruit and Vegetable Division,
AMS, USDA, PO Box 96456, Room 2535-S, Washington, DC 20090-6456. Three
copies of all written materials should be submitted, and they will be
made available for public inspection in the Office of the Docket Clerk
during regular working hours. All comments should reference the docket
number of this issue of the Federal Register.
FOR FURTHER INFORMATION CONTACT: Richard Schultz, Research and
Promotion Branch, Fruit and Vegetable Division, AMS, USDA, room 2535-S,
PO Box 96456, Washington, DC 20090-6456. Telephone (202) 720-5976.
SUPPLEMENTARY INFORMATION: A referendum will be conducted among
eligible lime producers, producer-handlers, and importers to determine
whether the issuance of the Lime Research, Promotion, and Consumer
Information Order (Order) (7 CFR part 1212) is favored by a majority of
persons voting in the referendum. The Order is authorized under the
Lime Research, Promotion, and Consumer Information Act of 1990, as
amended (Act).
The representative period for establishing voter eligibility for
the referendum shall be the period from September 1, 1994, through
August 31, 1995. Persons who have produced or imported 200,000 or more
pounds of limes for the fresh market during the representative period
are eligible to vote. The referendum shall be conducted by mail ballot
from November 1, 1995, through November 15, 1995.
Section 1960 of the Act provides that the Secretary of Agriculture
(Secretary) shall conduct a referendum not later than 30 months after
the date on which the collection of assessments begins to determine
whether the issuance of the Order is favored by a majority of the
producers, producer-handlers, and importers voting in the referendum.
Paragraph (b) of section 1960 of the Act requires that the Order
continue in effect only if favored by such majority.
The Department of Agriculture (Department) is issuing this rule in
conformance with Executive Order 12866.
This rule has been reviewed under Executive Order 12778, Civil
Justice Reform. It is not intended to have retroactive effect. This
rule will not preempt any State or local laws, regulations, or
policies, unless they present an irreconcilable conflict with this
rule.
The Act provides that administrative proceedings must be exhausted
before parties may file suit in court. Under section 1957 of the Act, a
person subject to the Order may file a petition with the Secretary
stating that the Order or any provision of the Order, or any obligation
imposed in connection with the Order, is not in accordance with law and
requesting a modification of the Order
[[Page 52836]]
or an exemption from the Order. The petitioner is afforded the
opportunity for a hearing on the petition. After such hearing, the
Secretary will make a ruling on the petition. The Act provides that the
district courts of the United States in any district in which a person
who is a petitioner resides or carries on business are vested with
jurisdiction to review the Secretary's ruling on the petition, if a
complaint for that purpose is filed within 20 days after the date of
the entry of the ruling.
Regulatory Impact Analysis
Pursuant to requirements set forth in the Regulatory Flexibility
Act (RFA), the Administrator of the Agricultural Marketing Service
(AMS) has considered the economic impact of this rule on small
entities.
The purpose of the RFA is to fit regulatory actions to the scale of
business subject to such actions in order that small businesses will
not be unduly or disproportionatley burdened.
The Department estimates that there are approximately 50 producers
who produce at least 200,000 pounds annually and will be subject to the
Order. A majority of producers subject to the Order will be classified
as small entities. Small agricultural producers have been defined by
the Small Business Administration (SBA) (13 CFR 121.601) as those
having annual receipts of less than $500,000.
The Department estimates that there are approximately 25 first
handlers. Further, the Department estimates that there are
approximately 35 importers who import at least 200,000 pounds and will
be subject to the Order. A majority of first handlers and importers
subject to the Order will be classified as small entities. Small
agricultural service firms, which include handlers and importers, have
been defined by the SBA as those having annual receipts of less than
$5,000,000.
Since the enactment of the Act, the character of the lime industry
has significantly changed. As a result of the extensive damage to lime
orchards in Florida by Hurricane Andrew in August 1992, domestic
production has plummeted and the volume of imports has increased
dramatically. Domestic production is not expected to reach pre-
Hurricane Andrew levels for several more years because Florida
accounted for a majority of domestic production.
Shipment reports of domestic limes, from January 1, 1994, through
December 31, 1994, indicate truck shipments of 13.5 million pounds from
Florida, 4.7 million pounds from California, and 1 million pounds from
Texas for a total of 19.2 million pounds. Shipment reports of imported
limes for the same 12 month period indicate truck shipments of 292.9
million pounds from Mexico plus an additional 14.4 million pounds from
9 other countries. Imports currently represent roughly 94 percent of
lime shipments in the United States.
The Administrator of the AMS has determined that this rule will not
have a significant economic impact on a substantial number of small
entities.
Paperwork Reduction Act
In accordance with the Paperwork Reduction Act of 1980 (44 U.S.C.
chapter 35), the referendum ballot has been approved by the Office of
Management and Budget (OMB) and has been assigned OMB number 0581-0093.
It is estimated that there are approximately 50 producers and producer-
handlers and approximately 35 importers who will be eligible to vote in
the referendum. It will take an average of 15 minutes for each voter to
complete the referendum ballot.
Background
The Lime Research, Promotion, and Consumer Information Act of 1990
(1990 Act) (Pub. L. 101-624, 7 U.S.C. 6201-6212) was enacted on
November 28, 1990, for the purpose of establishing an orderly procedure
for the development and financing of an effective and coordinated
program of research, promotion, and consumer information to strengthen
the domestic and foreign markets for limes. The Order required by the
1990 Act became effective on January 27, 1992 (57 FR 2985), after
notice and comment rulemaking.
In March 1992 the Department conducted nomination meetings to
nominate lime producers and importers for appointment to the Lime Board
(Board). The Board members were appointed by the Secretary in September
1992 and the Board conducted its first meeting at the Department in
Washington, DC in October 1992. During the course of this meeting, the
Board and the Department concluded that a technical amendment to the
1990 Act was needed before an order could be implemented. Consequently,
full implementation of the Order was delayed until the enactment of
such technical amendment.
The Lime Research, Promotion, and Consumer Information Improvement
Act (1993 Act) (Pub. L. 103-194, Dec. 14, 1993) contained the necessary
technical amendment to properly cover the regulated commodity. The 1993
Act also provided for increasing the exemption level from less than
35,000 pounds annually to less than 200,000; terminating the initial
Board; changing the size and composition of the Board; and delaying the
initial referendum date.
A proposed rule was published in the April 7, 1994, issue of the
Federal Register (58 FR 3446) inviting comments on amending the Order
to reflect the provisions of the 1993 Act. A final rule was published
in the February 8, 1995, issue of the Federal Register (60 FR 7435).
In March 1995, as a result of terminating the initial Board under
the 1993 Act, the Department conducted nomination meetings to nominate
lime producers and importers for appointment to the new Board. The
Board members were appointed by the Secretary in June 1995 and the
newly constituted Board met at the Department in Washington, DC in
August 1995. At this meeting, amid concern over the changing character
of the lime industry, the Board voted that a referendum be conducted
before the Order is fully implemented to determine industry support.
In response to the Board's vote, the Department is issuing a
referendum order and establishing procedures to be used in the conduct
such referendum. The interim final rule will add a new Sec. 1212.90
addressing these procedures. This section covers definitions, voting,
referendum agent instructions, use of subagents, ballots, the
referendum report, and confidentiality of information.
Pursuant to the provisions in U.S.C. 553, it is found and
determined upon good cause that it is impracticable, unnecessary, and
contrary to the public interest to give preliminary notice prior to
putting this rule into effect and that good cause exists for not
postponing the effective date of this action until 30 days after
publication in the Federal Register because: (1) This action formalizes
the Department's approval to conduct a referendum as requested by the
Board; (2) it is necessary that this rule be in place to conduct a
referendum; (3) a 15-day period is provided to allow interested parties
to comment prior to finalization; and (4) no useful purpose would be
served by a delay of the effective date.
All written comments received in response to this rule by the date
specified herein will be considered prior to finalizing this action. A
15-day comment period is considered appropriate because any changes to
this rule should be in effect as soon as possible. The referendum
begins November 1, 1995.
[[Page 52837]]
Referendum Order
It is hereby directed that a referendum be conducted among eligible
producers, producer-handlers, and importers to determine whether they
favor the issuance of the Order. The representative period for
establishing voter eligibility for the referendum shall be the period
from September 1, 1994, through August 31, 1995. A referendum shall be
conducted by mail ballot from November 1, 1995, through November 15,
1995.
Section 1960(a) of the Act specifies that ``* * * the Secretary
shall conduct a referendum among producers, producer-handlers, and
importers who (1) are not exempt from assessment * * *; and (2)
produced or imported limes during a representative period as determined
by the Secretary. Section 1960(b) of the Act further specifies that
``the referendum * * * is for the purpose of determining whether
issuance of the order is approved or favored by not less than a
majority of the producers, producer-handlers, and importers voting in
the referendum. The order shall continue in effect only with such a
majority.''
Richard Schultz and Martha B. Ransom, Research and Promotion
Branch, Fruit and Vegetable Division, Agricultural Marketing Service,
PO Box 96456, Department of Agriculture, Washington, DC 20090-6456, are
designated as the referendum agents of the Secretary of Agriculture to
conduct this referendum. The procedures described below shall be used
to conduct the referendum.
Ballots to be cast in the referendum, and any related material
relevant to the referendum, will be mailed by the referendum agents to
all known producers, producer-handlers, and importers. Persons who have
produced or imported 200,000 or more pounds of limes for the fresh
market during the representative period are eligible to vote. Such
persons shall establish their eligibility by providing information on
the ballot concerning their volume of production or importation. Any
eligible producer, producer-handler, or importer who does not receive a
ballot and related material should immediately contact the referendum
agents.
List of Subjects in 7 CFR Part 1212
Administrative practice and procedure, Advertising, Limes,
Marketing agreements, Reporting and recordkeeping requirements.
For the reasons set forth in the preamble, 7 CFR part 1212 is
amended as follows:
PART 1212--LIME RESEARCH, PROMOTION, AND CONSUMER INFORMATION
1. The authority citation for 7 CFR part 1212 continues to read as
follows:
Authority: 7 U.S.C. 6201-6212.
2. Section 1212.90 is added to read as follows:
Note: This section will not appear in the Code of Federal
Regulations.
Subpart A--Lime Research, Promotion, and Consumer Information Order
Sec. 1212.90 Referendum procedures.
A referendum to determine whether eligible producers, producer-
handlers, and importers favor the issuance of the Order shall be
conducted in accordance with these procedures.
(a) Definitions. Unless otherwise defined below, the definitions of
terms used in these procedures shall have the same meaning as the
definitions in the Order.
(1) Administrator means the Administrator of the Agricultural
Marketing Service, with power to redelegate, or any officer or employee
of the Department to whom authority has been delegated or may hereafter
be delegated to act in the Administrator's stead.
(2) Order means the Lime Research, Promotion, and Consumer
Information Order, part 1212, subpart A, Secs. 1212.1 through 1212.89,
title 7 of the Code of Federal Regulations, including any amendment to
the Order, with respect to which the Secretary has directed that a
referendum be conducted.
(3) Referendum agent or agent means the individual or individuals
designated by the Secretary to conduct the referendum.
(4) Representative period means the period designated by the
Secretary.
(5) Person means any individual, group of individuals, partnership,
corporation, association, cooperative, or any other legal entity. For
the purpose of this definition, the term ``partnership'' includes, but
is not limited to:
(i) A husband and wife who has title to, or leasehold interest in,
production facilities and equipment as tenants in common, joint
tenants, tenants by the entirety, or, under community property laws, as
community property, and
(ii) So-called ``joint ventures'' wherein one or more parties to
the agreement, informal or otherwise, contributed capital and others
contributed labor, management, equipment, or other services, or any
variation of such contributions by two or more parties so that it
results in the production or importation of limes and the authority to
transfer title to the limes so produced or imported.
(6) Eligible producer or eligible producer-handler means any person
who produces 200,000 pounds or more of limes during the representative
period and who:
(i) Owns or shares in the ownership of production facilities and
equipment resulting in the ownership of the limes produced;
(ii) Rents production facilities and equipment resulting in the
ownership of all or a portion of the limes produced;
(iii) Owns production facilities and equipment but does not manage
them and, as compensation, obtains the ownership of a portion of the
limes produced; or
(iv) Is a party in a landlord-tenant relationship or a divided
ownership arrangement involving totally independent entities
cooperating only to produce limes who share the risk of loss and
receive a share of the limes produced. No other acquisition of legal
title to limes shall be deemed to result in persons becoming eligible
producers or eligible producer-handlers.
(7) Eligible importer means any person who imports 200,000 or more
pounds of limes during the representative period. Importation occurs
when commodities originating outside the United States are entered or
withdrawn from the U.S. Customs Service for consumption in the United
States. Included are persons who hold title to foreign-produced limes
immediately upon release by the U.S. Customs Service, as well as any
persons who act on behalf of others, as agents or brokers, to secure
the release of limes from the U.S. Customs Service when such limes are
entered or withdrawn for consumption in the United States.
(b) Voting. (1) Each person who is an eligible producer, producer-
handler, or importer, as defined in these procedures, at the time of
the referendum and during the representative period, shall be entitled
to cast only one ballot in the referendum. However, each producer in a
landlord-tenant relationship or a divided ownership arrangement
involving totally independent entities cooperating only to produce
limes, in which more than one of the parties is a producer, shall be
entitled to cast one ballot in the referendum covering only such
producer's share of the ownership.
(2) Proxy voting is not authorized, but an officer or employee of
an eligible corporate producer, producer-handler, or importer, or an
administrator,
[[Page 52838]]
executor, or trustee of an eligible producing, producing and handling,
or importing entity may cast a ballot on behalf of such entity. Any
individual so voting in the referendum shall certify that such
individual is an officer or employee of the eligible producer,
producer-handler, or importer, or an administrator, executor, or
trustee of an eligible producing, producing and handling, or importing
entity, and that such individual has the authority to take such action.
Upon request of the referendum agent, the individual shall submit
adequate evidence of such authority.
(c) Instructions. The referendum agent shall conduct the
referendum, in the manner herein provided, under the supervision of the
Administrator. The Administrator may prescribe additional instructions,
not inconsistent with the provisions hereof, to govern the procedures
to be followed by the referendum agent. Such agent shall:
(1) Prepare ballots and related material to be used in the
referendum. Ballot material shall provide for recording essential
information including that needed for ascertaining whether the person
voting, or on whose behalf the vote is cast, is an eligible voter.
(2) Give reasonable advance public notice of the referendum:
(i) By utilizing available media or public information sources,
without incurring advertising expense, to publicize the dates, places,
method of voting, eligibility requirements, and other pertinent
information. Such sources of publicity may include, but are not limited
to, print and radio; and
(ii) By such other means as the agent may deem advisable.
(3) Mail to each eligible producer, producer-handler, and importer,
whose name and address is known to the agent, the instructions on
voting and a ballot. No person who claims to be eligible to vote shall
be refused a ballot.
(4) At the end of the voting period, collect, open, number, and
review the ballots and tabulate the results in the presence of an agent
of the Office of Inspector General.
(5) Prepare a report on the referendum.
(6) Announce the results to the public.
(d) Subagents. The referendum agent may appoint any individual or
individuals deemed necessary or desirable to assist the agent in
performing such agent's functions hereunder. Each individual so
appointed may be authorized by the agent to perform any and all
functions which, in the absence of such appointment, shall be performed
by the agent.
(e) Ballots. The referendum agent and subagents shall accept all
ballots cast; but, should they, or any of them, deem that a ballot
should be challenged for any reason, the agent or subagent shall
endorse above their signature, on the ballot, a statement to the effect
that such ballot was challenged, by whom challenged, the reasons
therefore, the results of any investigations made with respect thereto,
and the disposition thereof. Ballots invalid under these procedures
shall not be counted.
(f) Referendum report. Except as otherwise directed, the referendum
agent shall prepare and submit to the Administrator a report on results
of the referendum, the manner in which it was conducted, the extent and
kind of public notice given, and other information pertinent to
analysis of the referendum and its results.
(g) Confidential information. The ballots and other information or
reports that reveal, or tend to reveal, the vote of any person in the
referendum shall be held strictly confidential and shall not be
disclosed.
Dated: October 4, 1995.
Lon Hatamiya,
Administrator, Agricultural Marketing Service.
[FR Doc. 95-25165 Filed 10-10-95; 8:45 am]
BILLING CODE 3410-02-P
