[Federal Register Volume 61, Number 192 (Wednesday, October 2, 1996)]
[Proposed Rules]
[Pages 51391-51395]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-24843]
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DEPARTMENT OF AGRICULTURE
7 CFR Part 1214
[FV-96-708PR]
Kiwifruit Research, Promotion, and Consumer Information Order;
Referendum Procedures
AGENCY: Agricultural Marketing Service, USDA.
ACTION: Proposed rule with request for comments.
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SUMMARY: The purpose of this rule is to provide procedures which the
Department of Agriculture (Department) will use in conducting the
referendum to determine whether the issuance of the proposed Kiwifruit
Research, Promotion, and Consumer Information Order (Order) is approved
by a majority of the producers and importers voting in the referendum
and that the producers and importers favoring approval produce and
import 50 percent of the total volume of kiwifruit produced and
imported by persons voting in the referendum.
DATES: Comments must be received by November 1, 1996. Pursuant to the
Paperwork Reduction Act, comments on the information collection burden
must be received by December 2, 1996.
[[Page 51392]]
ADDRESSES: Interested persons are invited to submit written comments
concerning this proposed rule to: Research and Promotion Branch, Fruit
and Vegetable Division, Agricultural Marketing Service (AMS), USDA, PO
Box 96456, Room 2535-S, Washington, DC 20090-6456, fax (202) 205-2800.
Three copies of all written material should be submitted, and they will
be made available for public inspection at the Research and Promotion
Branch during regular business hours. All comments should reference the
docket number and the date and page number of this issue of the Federal
Register. Also, pursuant to the Paperwork Reduction Act, send comments
regarding the accuracy of the burden estimate, ways to minimize the
burden, including through 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.
FOR FURTHER INFORMATION CONTACT: Sonia N. Jimenez, Research and
Promotion Branch, Fruit and Vegetable Division, AMS, USDA, PO Box
96456, Room 2535-S, Washington, DC 20090-6456, telephone (202) 720-9916
or (888) 720-9917.
SUPPLEMENTARY INFORMATION: This proposed rule is issued under the
Kiwifruit Research, Promotion, and Consumer Information Act (7 U.S.C.
7461-7473), hereinafter referred to as the Act.
This rule provides the procedures under which the referendum would
be conducted.
Executive Order 12988
This rule has been reviewed under Executive Order 12988, Civil
Justice Reform. It is not intended to have retroactive effect. This
rule would 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 558 of the Act,
after an Order is implemented, 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
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.
Executive Order 12866 and Regulatory Flexibility Act
This rule has been determined not significant for purposes of
Executive Order 12866, and therefore has not been reviewed by the
Office of Management and Budget.
In accordance with the Regulatory Flexibility Act (5 U.S.C. 601 et
seq.), the Agency is required to examine the impact of the proposed
rule on small entities.
Legislation to create a generic program of promotion and research
for kiwifruit became effective on April 4, 1996.
Section 561 of the Act provides that the Secretary of Agriculture
(Secretary) shall conduct a referendum during the 60-day period
immediately preceding the proposed effective date of an Order to
determine whether the issuance of an Order is favored by a majority of
the producers and importers voting in the referendum. Paragraph (a)(2)
of Section 561 of the Act requires that the Order be approved by a
majority of producers and importers voting in the referendum and that
the producers and importers favoring approval produce and import 50
percent or more of the volume of kiwifruit produced and imported by
persons voting in the referendum.
There are approximately 650 producers, 45 importers, and 65
handlers of kiwifruit that would be covered by the program. Small
agricultural service firms, which would include the handlers and
importers who would be covered under the Order, have been defined by
the Small Business Administration (SBA) (13 CFR 121.601) as those whose
annual receipts are less than $5 million and small agricultural
producers, those who would be required to pay assessments, as those
having annual receipts of $500,000. Only one handler has been
identified to have $5 million in annual sales. In addition, there are
10 producers at or over the $500,000 annual sales receipts threshold.
The Department does not have specific information regarding the size of
importers. However, it could be concluded that the majority of
kiwifruit producers and importers may be classified as small entities.
The Department is aware of kiwifruit producers in California,
Oregon, Pennsylvania, South Carolina, and importers that import
kiwifruit from Chile, New Zealand, and Italy. The Department believes
that these individuals would include the majority of the producers and
importers that would be covered under the program.
California is the source for practically all of the kiwifruit
produced in the United States. The California kiwifruit industry
consists of approximately 600 producers and 65 handlers. Production
rose by 119 percent between 1984 and 1994, increasing from 18,000 tons
to 34,800 tons. In the same period, the value of production increased
by 4 percent.
Most U.S. kiwifruit is utilized fresh. Fresh utilization increased
by 219 percent between 1984 and 1994, growing from 11,700 tons to
37,500 tons. The season average price during the same period fell by 54
percent, declining from $1,000 per ton to $491 per ton. Exports
accounted for about 29 percent of U.S. fresh utilization during that
period.
Between 1992 and 1994, the average annual production per producer,
including kiwifruit for processing, was 22,365 7-pound trays of
kiwifruit. The average price was $376 per ton, giving an average return
of about $29,000 per producer per year. The average value of total
production (fresh and processed) per year was $16.3 million. A typical
f.o.b. price during this period was $7.78 per tray, and the average
amount shipped per handler was about 190,176 trays, yielding an average
annual revenue per handler of $1.5 million. U.S. importers handled an
average of 172,163 trays per year per importer. During this period, the
average value of total imports per year was $17.1 million (f.o.b.
country of origin). The majority of kiwifruit came from Chile, with the
remaining coming from New Zealand and Italy.
This proposed rule provides the procedures under which kiwifruit
producers and importers may vote on whether they want the kiwifruit
research and promotion program to be implemented. Kiwifruit producers
of 500 pounds or more and importers of 10,000 pounds or more annually
can vote in the referendum. There are approximately 700 eligible
voters.
The Department would keep all these individuals informed throughout
the program implementation and referendum process to ensure that they
are aware of and are able to participate in the program implementation
process. In addition, trade associations and related industry media
would receive news releases and other information regarding the
implementation and referendum process.
[[Page 51393]]
There is a federal marketing order program and a California state
program for kiwifruit. The marketing order regulations for grade, size,
maturity, and containers are designed to assure consumers of
consistently good quality California kiwifruit. The marketing order and
its regulations allow small farmers to compete effectively in an
increasingly competitive marketplace. The California Kiwifruit
Commission (CKC) administers the California state program for
kiwifruit. The CKC is composed of kiwifruit producers, packers, and
handlers. In 1995-96 it is estimated that producers would pay
$1,407,000 in assessments at a rate of 17 cents per kiwifruit tray or
tray equivalent. Handlers collect the assessments and remit the money
to the CKC.
Voting in the referendum is optional. However, if producers and
importers choose to vote, the burden of voting would be offset by the
benefits of having the opportunity to vote on whether they want the
program or not.
The Department considered requiring eligible voters to vote in
person at various Department offices across the country. However,
conducting the referendum from one central location by mail ballot is
more cost effective for this program. Also, the Department would
provide easy access to information for potential voters through a toll
free telephone line.
Paperwork Reduction Act
In accordance with the Office of Management and Budget (OMB)
regulations (5 CFR part 1320) which implements the Paperwork Reduction
Act of 1995 (44 U.S.C. Chapter 35), the referendum ballot, which
represents the information collection and recordkeeping requirements
that may be imposed by this rule has been submitted to OMB for
approval.
Title: National Research, Promotion, and Consumer Information
Programs.
OMB Number: 0581-0093.
Expiration Date of Approval: October 31, 1997.
Type of Request: Revision of a currently approved information
collection for research and promotion programs.
Abstract: The information collection requirements in this request
are essential to carry out the intent of the Act.
The burden associated with the ballot is as follows:
Estimate of Burden: Public reporting burden for this collection of
information is estimated to average .25 hours per response for each
producer and importer.
Respondents: Producers and importers.
Estimated Number of Respondents: 700.
Estimated Number of Responses per Respondent: 1 every 6 years
(.16).
Estimated Total Annual Burden on Respondents: 28 hours.
Because there may be insufficient time for normal clearance
procedures, AMS is seeking temporary approval from OMB for the use of
the ballot for the referendum. The ballot would be added to the other
information collections approved for use under OMB Number 0581-0093.
Comments are invited on: (a) Whether the proposed collection of
information is necessary for the proper performance of functions of the
Order and the Department's oversight of the program, including whether
the information will have practical utility; (b) the accuracy of the
AMS'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
collections techniques or other forms of information technology.
Comments should reference OMB No. 0581-0093, the docket number, and
the date and page number of this issue of the Federal Register.
Comments should be sent to Sonia N. Jimenez at the address listed above
by December 2, 1996. All 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.
Background
The Act authorizes the Secretary to establish a national kiwifruit
research, promotion, and consumer information program. The program
would be funded by an assessment levied on producers and importers not
to exceed 10 cents per 7-pound tray of kiwifruit. Producers who produce
less than 500 pounds annually, importers who import less than 10,000
pounds annually, and kiwifruit sold directly to a consumer by a
producer for a purpose other than resale and domestic and imported
kiwifruit for processing are exempt from assessments.
Assessments would be used to pay for: research, promotion, and
consumer information; administration, maintenance, and functioning of
the Board; and expenses incurred by the Secretary in implementing and
administering the Order, including referendum costs.
Section 561 of the Act requires that a referendum be conducted
among eligible producers and importers of kiwifruit to determine
whether they favor implementation of the Order. The Order shall become
effective if it is approved by a majority of producers and importers
voting in the referendum and the producers and importers favoring
approval produce and import more than 50 percent of the total volume of
kiwifruit produced and imported by persons voting in the referendum.
A proposed rule on the Order is published separately in this issue
of the Federal Register.
This proposed rule provides the procedures under which kiwifruit
producers and importers may vote on whether they want the kiwifruit
research and promotion program to be implemented. Kiwifruit producers
of 500 pounds or more and importers of 10,000 pounds or more annually
can vote in the referendum. There are approximately 700 eligible
voters.
This proposed rule would add a new subpart which would establish
procedures to be used in the referendum. This subpart would be in
effect for the referendum period only and would not be part of the Code
of Federal Regulations. This subpart covers definitions, voting,
instructions, use of subagents, ballots, the referendum report, and
confidentiality of information.
All written comments received in response to this rule by the date
specified herein will be considered prior to finalizing this action. We
encourage the industry to pay particular attention to the definitions
to be sure that they are appropriate for the kiwifruit industry.
List of Subjects in 7 CFR Part 1214
Administrative practice and procedure, Advertising, Consumer
information, Marketing agreements, Kiwifruit, Promotion, Reporting and
recordkeeping requirements.
For the reasons set forth in the preamble, it is proposed that
Title 7, chapter XI of the Code of Federal Regulations be amended as
follows:
1. Subpart C is added to proposed Part 1214 to read as follows:
PART 1214--KIWIFRUIT RESEARCH, PROMOTION, AND CONSUMER INFORMATION
ORDER
* * * * *
[[Page 51394]]
Subpart C--Procedure for the Conduct of Referenda in Connection With
the Kiwifruit Research, Promotion, and Consumer Information Order
Sec.
1214.200 General.
1214.201 Definitions.
1214.202 Voting.
1214.203 Instructions.
1214.204 Subagents.
1214.205 Ballots.
1214.206 Referendum report.
1214.207 Confidential information.
Authority: 7 U.S.C. 7461-7473.
Subpart C--Procedure for the Conduct of Referenda in Connection
With the Kiwifruit Research, Promotion, and Consumer Information
Order
Sec. 1214.200 General.
A referendum to determine whether eligible producers and importers
favor the issuance of the proposed Kiwifruit Research, Promotion, and
Consumer Information Order shall be conducted in accordance with these
procedures.
Sec. 1214.201 Definitions.
Unless otherwise defined below, the definition of terms used in
these procedures shall have the same meaning as the definitions in the
Order.
(a) 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.
(b) Order means the Kiwifruit Research, Promotion, and Consumer
Information Order.
(c) Referendum agent or agent means the individual or individuals
designated by the Secretary to conduct the referendum.
(d) Representative period means the period designated by the
Secretary.
(e) 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:
(1) A husband and wife who has title to, or leasehold interest in,
kiwifruit production facilities and equipment as tenants in common,
joint tenants, tenants by the entirety, or, under community property
laws, as community property, and
(2) 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 kiwifruit and the authority
to transfer title to the kiwifruit so produced or imported.
(f) Eligible producer means any person or entity defined as a
producer who produced 500 pounds or more of kiwifruit during the
representative period and who:
(1) Owns or shares in the ownership of kiwifruit production
facilities and equipment resulting in the ownership of the kiwifruit
produced;
(2) Rents kiwifruit production facilities and equipment resulting
in the ownership of all or a portion of the kiwifruit produced;
(3) Owns kiwifruit production facilities and equipment but does not
manage them and, as compensation, obtains the ownership of a portion of
the kiwifruit produced; or
(4) Is a party in a landlord-tenant relationship or a divided
ownership arrangement involving totally independent entities
cooperating only to produce kiwifruit who share the risk of loss and
receive a share of the kiwifruit produced. No other acquisition of
legal title to kiwifruit shall be deemed to result in persons becoming
eligible producers.
(g) Eligible importer means any person or entity defined as an
importer who imported 10,000 pounds or more 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 kiwifruit immediately upon release by the
U.S. Customs Service, as well as any persons who act on behalf of
others, as agents or broker, to secure the release of kiwifruit from
the U.S. Customs Service when such kiwifruit are entered or withdrawn
for consumption in the United States.
Sec. 1214.202 Voting.
(a) Each person who is an eligible producer or importer, as defined
in this subpart, 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 kiwifruit, 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.
(b) Proxy voting is not authorized, but an officer or employee of
an eligible corporate producer or importer, or an administrator,
executor, or trustee of an eligible producing or importing entity may
cast a ballot on behalf of such producer or importer entity. Any
individual so voting in a referendum shall certify that such individual
is an officer or employee of the eligible producer or importer, or an
administrator, executor, or trustee of an eligible producing 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) All ballots are to be cast by mail.
Sec. 1214.203 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 procedure to be followed by
the referendum agent. Such agent shall:
(a) Determine the time of commencement and termination of the
period during which ballots may be cast.
(b) Provide ballots and related material to be used in the
referendum. Ballot material shall provide for recording essential
information including that needed for ascertaining:
(1) Whether the person voting, or on whose behalf the vote is cast,
is an eligible voter;
(2) The total volume of kiwifruit produced by the voting producer
during the representative period; and
(3) The total volume of kiwifruit imported by the voting importer
during the representative period.
(c) Give reasonable advance public notice of the referendum:
(1) 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
(2) By such other means as the agent may deem advisable.
(d) Mail to eligible producers and importers, whose names and
addresses are known to the referendum agent, the instructions on
voting, a ballot, and a summary of the terms and conditions of the
proposed Order. No person who claims to be eligible to vote shall be
refused a ballot.
(e) At the end of the voting period, collect, open, number, and
review the ballots and tabulate the results in
[[Page 51395]]
presence of an agent of the Office of Inspector General.
(f) Prepare a report on the referendum.
(g) Announce the results to the public.
Sec. 1214.204 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 or all of the functions which,
in the absence of such appointment, shall be performed by the agent.
Sec. 1214.205 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 this subpart shall not be
counted.
Sec. 1214.206 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.
Sec. 1214.207 Confidential information.
The ballots and other information or reports that reveal, or tend
to reveal, the vote of any person covered under the Act and the voting
list shall be held confidential and shall not be disclosed.
Dated: September 23, 1996.
Robert C. Keeney,
Director, Fruit and Vegetable Division.
[FR Doc. 96-24843 Filed 10-1-96; 8:45 am]
BILLING CODE 3410-02-P
