[Federal Register Volume 61, Number 190 (Monday, September 30, 1996)]
[Proposed Rules]
[Pages 51055-51058]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-25002]
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DEPARTMENT OF AGRICULTURE
7 CFR Part 1215
[FV-96-709PR]
Popcorn Promotion, Research, 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 Popcorn
Promotion, Research, and Consumer Information Order is favored by a
majority of the processors voting in the referendum and that the
majority process more than 50 percent of the popcorn certified as being
processed by those voting in the referendum.
DATES: Comments must be received by October 30, 1996. Pursuant to the
Paperwork Reduction Act, comments on the information collection burden
must be received by November 29, 1996.
ADDRESSES: Interested persons are invited to submit written comments
concerning this purposed rule to: Research and Promotion Branch, Fruit
and Vegetable Division, AMS, USDA, P.O. Box 96456, Room 2535-S,
Washington, DC 20090-6456, Fax (202) 205-2800. Three copies of all
written materials should be submitted, and they will be made available
for public inspection in the Research and Promotion Branch, during
regular working hours. All comments should reference the docket number
and the date and page number of this issue of the Federal Register.
Pursuant to the Paperwork Reduction Act, also 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: Stacey L. Bryson, Research and
Promotion Branch, Fruit and Vegetable Division, AMS, USDA, Room 2535-S,
P.O. Box 96456, Washington, DC 20090-6456. Telephone (888) 720-9917 or
(202) 720-6930.
SUPPLEMENTARY INFORMATION: A referendum will be conducted among
eligible popcorn processors to determine whether the issuance of the
proposed Popcorn Promotion, Research, and Consumer Information Order
(Order) (7 CFR part 1215) is favored by
[[Page 51056]]
a majority of persons voting in the referendum. The Order is authorized
under the Popcorn Promotion, Research and Consumer Information Act
(Act) (Pub. L. 104-427, 7 U.S.C. 7481-7491).
Executive Order 12988
This proposed rule has been reviewed under Executive Order 12988,
Civil Justice Reform. It is not intended to have retroactive effect.
This proposed rule will not preempt any State or local laws,
regulations, or policies, unless they present an irreconcilable
conflict with this rule. In accordance with section 580 of the Act,
nothing in the popcorn statute preempts or supersedes any other program
relating to popcorn promotion organized and operated under the laws of
the United States or any State.
The Act provides that administrative proceedings must be exhausted
before parties may file suit in court. Under section 577 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 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 popcorn became effective on April 4, 1996.
Section 576 of the Act provides that the Secretary shall conduct a
referendum, within the 60-day period immediately preceding the
effective date of the Order, to determine whether the issuance of the
Order is favored by a majority of the processors voting in the
referendum. Paragraph (2) of section 576 of the Act requires that the
Order become effective only if favored by a majority of the processors
voting in the referendum and if the majority processed more than 50
percent of the popcorn certified as having been processed during the
representative period by the processors voting.
Small agricultural service firms, which would include processors
who would be covered under the proposed Order, have been defined by the
Small Business Administration (13 CFR 121.601) as those whose annual
receipts are less than $5 million. The Department estimates that there
are approximately 35 processors who would pay the assessments out of an
industry of 67 processors in total. Almost 50 percent of the industry
would be exempt from the program; those processors marketing 4 million
pounds or less of popcorn annually would be exempt from the proposed
Order. Further, only 2 of the 35 eligible processors have been
identified as small entities.
According to the Popcorn Institute, a trade association consisting
of popcorn processors representing the industry, annual sales of
popcorn were 77.240 million pounds less in 1994 than they were in 1993,
when sales totaled approximately 1.156 billion pounds.
The peak period for popcorn sales for home consumption is the fall.
Sales remain constant throughout the winter months and taper off during
the spring and summer.
Almost all of the popcorn consumed throughout the world is grown in
the United States, and Americans consume more popcorn than the citizens
of any other country. Popcorn is grown in 19 states. According to the
latest Census on Agriculture, the top five major popcorn-producing
states in 1992 were, in descending order, Indiana (23 percent),
Illinois (19 percent), Nebraska (18 percent), Ohio (10 percent), and
Missouri (7 percent). This is the most recent official information on
popcorn production released by the U.S. government.
U.S. exports of popcorn totaled nearly 290 million pounds in 1995,
with a value of $64.7 million. According to the Snack Food Association,
retail sales of popcorn in the United States totaled $1.469 billion in
1994.
This proposed rule provides the procedures under which eligible
popcorn processors may vote on whether they want the proposed popcorn
promotion and research program to be implemented.
The referendum procedures provide definitions of who is eligible to
vote and instructions for referendum agents regarding subagents,
publicity for the referendum and the results, ballots, voting, ballot
handling and tabulation, reporting, and confidentiality of referendum
materials. The representative period for establishing voter eligibility
for the referendum shall be determined by the Secretary. Persons who
have processed over 4 million pounds of popcorn for market during the
representative period will be eligible to vote; there are an estimated
35 eligible processors. The referendum will be conducted by mail
ballot.
The Department would inform all eligible processors of record
throughout the program implementation and referendum process to ensure
awareness and participation. In addition, trade associations and
related industry media would receive news releases and other
information regarding the implementation and referendum process.
Voting in the referendum is optional. However, if processors 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.
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, have 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
[[Page 51057]]
is estimated to average .25 hours per response for each processor.
Respondents: Processors.
Estimated Number of Respondents: 35.
Estimated Number of Responses per Respondent: 1 every 3 years
(.33).
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 Stacey L. Bryson, at the address listed
above by November 29, 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 purpose of the Act is to provide an orderly procedure for
developing and financing an effective and coordinated program of
promotion, research, and consumer information to strengthen the markets
for popcorn. The program would be funded by an assessment of no more
than 8 cents per hundredweight levied on popcorn processors. Processors
who process and market 4 million pounds or less of popcorn annually
would be exempt from paying the assessment. Assessments would be used
to pay for: Promotion, research, consumer information, and industry
information; administration, maintenance, and functioning of the
Popcorn Board which would operate the program under the Secretary's
supervision; and expenses incurred by the Secretary in implementing and
administering the program, including referendum costs.
A proposed rule on the Order is published separately in this issue
of the Federal Register.
This proposed rule would add a new subpart which would establish
procedures to be used in the initial referendum required by the Act.
This subpart would be in effect for the referendum period only and
would not be part of the Code of Federal Regulations. The proposed
Order would go into effect only if the Secretary determines that the
Order is approved by no less than a majority of the processors voting
in the referendum and if the majority processed more than 50 percent of
the popcorn certified as having been processed during the
representative period by the processors voting.
The referendum procedures provide definitions of who is eligible to
vote and instructions for referendum agents regarding subagents,
publicity for the referendum and the results, ballots, voting, ballot
handling and tabulation, reporting, and confidentiality of referendum
materials. The representative period for establishing voter eligibility
for the referendum shall be determined by the Secretary. Persons who
have processed over 4 million pounds of popcorn for market during the
representative period will be eligible to vote; there are an estimated
35 eligible processors. The referendum will be conducted by mail
ballot.
All written comments received in response to this proposed 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 popcorn
processors.
List of Subjects in 7 CFR Part 1215
Administrative practice and procedure, Advertising, Consumer
information, Marketing agreements, Popcorn, 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. In proposed part 1215, subpart C is added to read as follows:
PART 1215--POPCORN PROMOTION, RESEARCH, AND CONSUMER INFORMATION
ORDER
* * * * *
Subpart C--Procedure for the Conduct of Referenda in Connection With
the Popcorn Promotion, Research, and Consumer Information Order
Sec.
1215.500 General.
1215.501 Definitions.
1215.502 Voting.
1215.503 Instructions.
1215.504 Subagents.
1215.505 Ballots.
1215.506 Referendum report.
1215.507 Confidential information.
Authority: 7 U.S.C. 7481-7491.
Subpart C--Procedure for the Conduct of Referenda in Connection
With the Popcorn Promotion, Research, and Consumer Information
Order
Sec. 1215.500 General.
A referendum to determine whether eligible processors favor the
issuance of the Order shall be conducted in accordance with these
procedures.
Sec. 1215.501 Definitions.
Unless otherwise defined below, the definitions 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 Popcorn Promotion, Research, and Consumer
Information Order.
(c) Referendum agent or subagent 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 have title to, or leasehold interest in,
processing 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 processing of popcorn and the authority to transfer
title to the popcorn so processed.
[[Page 51058]]
(f) Eligible processor means any person who processes over 4
million pounds of popcorn during the representative period and who:
(1) Owns or shares in the ownership of processing facilities and
equipment resulting in the ownership of the popcorn process;
(2) Rents processing facilities and equipment resulting in the
ownership of all or a portion of the popcorn processing;
(3) Owns processing facilities and equipment but does not manage
them and, as compensation, obtains the ownership of a portion of the
popcorn processing; or
(4) Is a party in a landlord-tenant relationship or a divided
ownership arrangement involving totally independent entities
cooperating only to process popcorn who share the risk of loss and
receive a share of the popcorn processing. No other acquisition of
legal title to popcorn shall be deemed to result in persons becoming
eligible processors.
Sec. 1215.502 Voting.
(a) Each person who is an eligible processor 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 processor in a landlord-tenant relationship or a divided
ownership arrangement involving totally independent entities
cooperating only to process popcorn, in which more than one of the
parties is a processor, shall be entitled to cast one ballot in the
referendum covering only such processor's share of the ownership.
(b) Proxy voting is not authorized, but an officer or employee of
an eligible corporate processor or an administrator, executor, or
trustee of an eligible processing entity may cast a ballot on behalf of
such processing entity. Any individual so voting in a referendum shall
certify that such individual is an officer or employee of the eligible
processor, or an administrator, executor, or trustee of an eligible
processing 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. 1215.503 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:
(a) Prepare 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, and
(2) The total volume of popcorn processed by the voting processor
during the representative period.
(b) Give reasonable advance public notice of the referendum by
utilizing available media or public information sources, without
incurring advertising expense, to publicize the dates, method of
voting, eligibility requirements, and other pertinent information. Such
sources of publicity may include, but are not limited to, print and
radio and such other means as the agent may deem advisable.
(c) Mail to each eligible processor 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.
(d) 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.
(e) Prepare a report on the referendum.
(f) Announce the results to the public.
Sec. 1215.504 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.
Sec. 1215.505 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.
Sec. 1215.506 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. 1215.507 Confidential information.
The ballots and other information or reports that reveal, or tend
to reveal, the vote of any processor in the referendum shall be held
strictly confidential and shall not be disclosed.
Dated: September 24, 1996.
Robert C. Keeney,
Director, Fruit and Vegetable Division.
[FR Doc. 96-25002 Filed 9-27-96; 8:45 am]
BILLING CODE 3410-02-P
