02-3796. Hass Avocado Promotion, Research, and Information Order; Referendum Procedures

AGENCY:

Agricultural Marketing Service, Agriculture.

ACTION:

Final rule.

SUMMARY:

This rule establishes procedures which the Department of Agriculture (USDA or the Department) will use in conducting a referendum to determine whether the issuance of the proposed Hass Avocado Promotion, Research, and Information Order (Order) is favored by the producers and importers of Hass avocados. The Order will be implemented if it is approved by a simple majority of the producers and importers voting in the referendum. These procedures will also be used for any subsequent referendum under the Order, if it is approved in the initial referendum. The proposed Order is being published in a separate document. This proposed program would be implemented under the Hass Avocado Promotion, Research, and Information Act of 2000.

DATES:

February 20, 2002.

FOR FURTHER INFORMATION CONTACT:

Julie A. Morin, Research and Promotion Branch, Fruit and Vegetable Programs, AMS, USDA, Stop 0244, 1400 Independence Avenue, SW., Room 2535-S, Washington, DC 20250-0244; telephone [phone], fax [phone], or [e-mail].

SUPPLEMENTARY INFORMATION:

A referendum will be conducted among eligible producers and importers of Hass avocados to determine whether they favor issuance of the proposed Hass Avocado Promotion, Research, and Information Order (Order) [7 CFR Part 1219]. The program will be implemented if it is approved by a simple majority of the producers and importers voting in the referendum. The Order is authorized under the Hass Avocado Promotion, Research, and Information Act of 2000 (Act) [7 U.S.C. 7801-7813]. It would cover domestic and imported Hass avocados. A proposed Order is being published separately in this issue of the Federal Register.

Prior documents: A proposed rule was published in the Federal Register on July 13, 2001 [66 FR 36886], with a 45-day comment period. Subsequently, USDA published a notice in the Federal Register on August 28, 2001 [66 FR 45188], extending the comment period by 15 days, to September 12, 2001. In addition, USDA published a proposed rule on the proposed Hass Avocado Promotion, Research, and Information Order in the Federal Register on July 13, 2001 [66 FR 36870], with a 45-day comment period. The comment period on this rule was also extended 15 days. These comment periods were extended one day due to mail service being shut down on September 11-12, 2001.

Question and Answer Overview

Why Are These Referendum Procedures Being Issued?

These procedures are needed to conduct the referendum on the proposed Order. The Order will be implemented if it is approved by a simple majority of the eligible voters in the referendum.

When Will the Referendum Be Held?

The provisions of a proposed Hass Avocado Promotion, Research, and Information Order will be published in this issue of the Federal Register. A referendum order will be published in the Federal Register after a bond or irrevocable letter of credit has been posted by the California Avocado Commission. The representative period for eligibility for voting in the referendum and the dates for registration and for voting will be announced in the referendum order.

Who Is Eligible To Vote in the Referendum?

Each eligible producer and importer will be allowed to register to vote in the referendum. An eligible producer or importer will have produced or imported Hass avocados for at least one year prior to the referendum.

How Do I Register To Vote?

USDA will provide all known Hass avocado producers and importers with registration instructions. Registration may be done by mail or fax.

How Can I Vote in the Referendum?

All registered producers and importers will receive a ballot and voting instructions in the mail from USDA. Voting will take place by mail and fax. The ballot must be received by USDA by the close of business on the last day of the voting period.

Executive Order 12988

This rule has been reviewed under Executive Order 12988, Civil Justice Reform. It is not intended to have retroactive effect. Section 1212 of the Act states that the Act may not be construed to preempt or supersede any other program relating to Hass avocado promotion, research, industry information, and consumer information organized under the laws of the United States or of a state.

Under Section 1207 of the Act, a person subject to the Order may file a petition with the Department 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. The Act provides that the district court of the United States for any district in which the petitioner resides or conducts business shall be 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 entry of the Department's final ruling.

Executive Order 12866

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.

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 this rule on small entities. The purpose of the RFA is to fit regulatory actions to the scale of businesses subject to such action so that small businesses will not be disproportionately burdened.

The Act, which authorizes the Department to implement a research and promotion program covering domestic and imported Hass avocados, became effective on October 23, 2000.

This rule establishes the procedures under which producers and importers may vote on whether they want a national promotion, research, and information program to be implemented for Hass avocados. Producers and importers of Hass avocados who have produced or imported Hass avocados for at least one year prior to the referendum will be eligible to vote. This rule adds a new subpart which establishes procedures to conduct the initial and future referenda. The subpart covers definitions, registration, voting instructions, use of subagents, ballots, the referendum report, and confidentiality of information.

There are approximately 6,000 producers and 200 importers who will be eligible to vote in the referendum.

The Small Business Administration [13 CFR 121.201] defines small agricultural producers as those having annual receipts of $750,000 or less annually and small agricultural service firms as those having annual receipts of $5 million or less. Importers would be considered agricultural service firms. Using these criteria, most producers and importers would be considered small businesses.

The Act authorizes assessments on fresh, frozen, and processed Hass avocados. However, initially only fresh Hass avocados will be assessed. Therefore, only producers and importers of fresh Hass avocados will covered by the initial referendum.

According to USDA's National Agricultural Statistics Service (NASS), total U.S. production of avocados during the 2000-2001 season was 234,320 tons, most of which was utilized fresh except for a small processed quantity that NASS included in fresh utilization to protect the confidentiality of individual operations. The value of the 2000-2001 crop was $321 million. Production in 2000-2001 was up 28 percent from the previous year's total of 183,300 tons, which had a value of $379 million.

In 2000-2001, California accounted for more than 89 percent of U.S. avocado production, followed by Florida (nearly 11 percent) and Hawaii (about 0.1 percent). Hass avocados account for about 85 percent of the total California avocado crop.

Avocados are imported in both fresh and processed forms. In 2000, fresh avocado importers accounted for about 75 percent of the total tonnage of fresh and processed avocados imported. Imported fresh avocados totaled 86,667 tons, up 21 percent from 1999.

The total import value for fresh and processed avocados was $149 million in 2000, up from $105 million in 1999. The total tonnage imported was up 37 percent in 2000, to 111,880 tons. The trend in imports is up, and imports have more than doubled since 1997. Almost all prepared or preserved avocado imports come from Mexico. In recent years, Chile has accounted for more than 50 percent of fresh imports, followed by Mexico, the Dominican Republic, and New Zealand.

This rule provides the procedures under which producers and importers of Hass avocados will vote on whether they want the Order to be implemented. In accordance with the provisions of the Act, subsequent referenda may be conducted, and these procedures would apply. These procedures include provisions concerning producer and importer eligibility, registration, voting, and instructions for referendum agents.

USDA will keep producers and importers 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. USDA will also publicize information regarding the referendum process so that trade associations and related industry media can be kept informed.

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 or not they want to be covered by the program.

The information collection requirements contained in this final rule are designed to minimize the burden on producers and importers. This rule provides for voter registration and a ballot to be used by eligible producers and importers to vote in the referendum. The estimated annual cost of providing the information by an estimated 6,000 producers would be $6,000 or $1.00 per producer and for an estimated 200 importers would be $200 or $1.00 per importer.

The Department considered requiring eligible voters to vote in person at various USDA offices across the country. The Department also considered electronic voting, but the use of computers is not universal. Conducting the referendum from one central location by mail and fax would be more cost-effective. USDA will provide easy access to information for potential voters through a toll-free telephone line.

There are no federal rules that duplicate, overlap, or conflict with this rule.

Paperwork Reduction Act

In accordance with the OMB regulation [5 CFR 1320] which implements the Paperwork Reduction Act of 1995 [44 U.S.C. Chapter 35], voter registration and the referendum ballot, which represent the information collection and recordkeeping requirements imposed by this rule, have been approved by OMB.

Title: National Research, Promotion, and Consumer Information Programs.

OMB Number: 0581-0197.

Expiration Date of Approval: October 31, 2004.

Type of Request: New 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 information collection requirements relating to referenda are registration for the referendum and the ballot. To register, persons will submit to USDA, either by mail or fax, their name, company name (if applicable), address, and business telephone number. The information collected on the ballot will be the person's vote (yes or no) and signature certifying the person's eligibility to vote.

The estimated cost of providing the information by an estimated 6,000 producers would be $6,000 or $1.00 per producer and for an estimated 200 importers would be $200 or $1.00 per importer.

The registration and voting requirements have been carefully reviewed, and every effort has been made to minimize any unnecessary recordkeeping costs or requirements, including efforts to utilize information already maintained by potential voters.

The registration and voting requirements have been designed to require the minimum information necessary to effectively carry out the requirements of the Act, 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 to register or vote. The registration and voting processes are simple, easy to understand, and place as small a burden as possible on the persons choosing to vote in the referendum.

The information collection requirements in this rule are:

1. Voter Registration

Estimate of Burden: Public reporting burden for this collection of information is estimated to average 0.25 hours per response for each producer and importer.

Respondents: Producers and importers.

Estimated Number of Respondents: 6,200.

Estimated Number of Responses per Respondent: 1 every 5 years (0.2).

Estimated Total Annual Burden on Respondents: 310 hours.

2. Ballot

Estimate of Burden: Public reporting burden for this collection of information is estimated to average 0.25 hours per response for each producer and importer.

Respondents: Producers and importers.

Estimated Number of Respondents: 6,200.

Estimated Number of Responses per Respondent: 1 every 5 years (0.2).

Estimated Total Annual Burden on Respondents: 310 hours.

Background

The Act, which became effective on October 23, 2000, authorizes the Department to establish a national research and promotion program covering domestic and imported Hass avocados. The California Avocado Commission (Commission) submitted an entire proposed Order and proposed referendum procedures on December 29, 2000. Subsequently, on March 9, 2001, partial proposals on the Order were received from Hass avocado interests in Chile, Mexico, and New Zealand. These proposals were published for public comment in the July 13, 2001, issue of the Federal Register.

The proposed Order would provide for the development and financing of an effective and coordinated program of promotion, research, and consumer and industry information for Hass avocados in the United States. The program would be funded by an assessment levied on producers (to be collected by handlers) and importers (to be collected by the U.S. Customs Service at time of entry into the United States) at an initial rate of 2.5 cents per pound. The Act authorizes assessments on fresh, frozen, and processed Hass avocados. However, initially, only fresh domestic and imported Hass avocados will be covered by the program.

The assessments would be used to pay for promotion, research, and consumer and industry information; administration, maintenance, and functioning of the proposed Hass Avocado Board; and expenses incurred by the Department in implementing and administering the Order, including referendum costs.

Section 1206 of the Act requires that a referendum be conducted among eligible producers and importers of Hass avocados to determine whether they favor implementation of the Order. That section also requires the Order to be approved by a simple majority of the producers and importers voting. In order to be eligible to vote, producers and importers must have been engaged in producing or importing Hass avocados for at least one year prior to the referendum. Further, producers and importers have to register with the Department prior to the voting period. Registration will occur after producers and importers receive registration instructions and notice that a referendum will be conducted. This notice will be at least 30 days prior to the referendum.

This rule establishes the procedures under which producers and importers of Hass avocados may vote on whether they want the Hass avocado promotion, research, and information program to be implemented. There are approximately 6,200 eligible voters.

Three comments were received on the referendum procedures. Two comments offered modifications or changes to the provisions and procedures for conducting the referendum. In addition, a third comment generally affirmed and supported one of these two comments.

One comment addressed the definition of “eligible importer” in the third sentence of § 1219.101. The comment stated that the definition should be changed to delete the reference to persons who hold title to foreign produced Hass avocados immediately upon release by the U.S. Customs Service. The comment noted that this could include persons who neither reside in nor are citizens of the United States. The definition of importers eligible to vote in referenda is the same as the definition of importer in § 1219.14 of the Order. The definition in the Order describes importers who would be required to pay assessments if the Order is implemented. Only persons subject to assessments can vote in referenda. Therefore, we are adopting, without change, the definition of eligible importer as proposed on July 13, 2001, to assure that all importers who would be required to pay assessments are eligible to vote in referenda.

Comments also were submitted on the registration process for the referendum. One comment recommended modifying § 1219.102 to designate the Commission as an agent for the purpose of registering voters with the Department to ensure the maximum voter registration. This would be in addition to the Department also being an agent for voter registration. The comment noted that the Commission is responsible for the implementation of the California State Hass avocado program and as such it would be logical to designate the Commission as agent for registration. We disagree. The Act provides that producers and importers register with the Department. The comment's suggestion would not be consistent with the registration provisions of the Act. Therefore, no change to § 1219.102 is made as a result of this comment.

This comment also urged the Department to conduct the referendum in a prompt and efficient manner. The comment went on to discuss elections under the California State program and mentioned that information is available under that program that would be helpful in conducting the referendum for the federal program. The Department will utilize all available information as is appropriate in order to conduct the referendum in as prompt and efficient manner as is possible while maximizing participation in the referendum process.

A second comment concerning § 1219.102 supported the provision providing that the Department be the only entity in charge of registering eligible importers. The comment noted that the Department take its time in developing a list of eligible importers so that eligible importers are not excluded from registering for and voting in the referendum. This comment requested that, in order to ensure participation of the greatest possible number of importers in the referendum, the Department consult with country-of-origin exporter associations when developing a list of importers and the ballot and instructions for the referendum. As mentioned above in discussing the previous comment, the Department will utilize available information as is appropriate in order to conduct the referendum in as prompt and efficient manner as is possible while maximizing participation in the referendum process.

Finally, one comment stated that approval of the proposed Order should be based on a majority of the voters who represent a majority of the volume of Hass avocados voted in the referendum. The comment stated that basing approval of the proposed Order on a simple majority of the persons voting is discriminatory and unfair to importers because importers will be severely underrepresented. The comment noted that the number of importers is small relative to the volume of imports, and the number of producers is large relative to the volume of domestic production. The requirement for the proposed Order to be approved by a simple majority of the eligible producers and importers voting in the referendum—without a volume requirement—is established in the Act. Therefore, no change will be made in the conduct of the referendum as a result of this comment.

However, the Department has revised §§ 1219.101(b), (g), (h), and (i), 1219.102, 1219.103(c), and 1219.108 and added a new § 1219.109. Paragraphs (b) and (i) of § 1219.101 were revised to correct typographical errors in the July 13, 2001, proposed rule. Paragraphs (g) and (h) of § 1219.101 were revised by changing references to the “Secretary” to the “Administrator” for the purpose of accuracy and clarity. Section 1219.102 was revised by changing the citation of a cross-reference, specifying that registration information shall be confidential, and changing references to the “Secretary” to the “referendum agent” for accuracy and clarity. Paragraph (c) of § 1219.103 was revised by changing the reference to the “Secretary” to the “referendum agent” for accuracy and clarity and to authorize voters to cast their ballots by mail or by fax to add another voting option for voters. Section 1219.108 was revised to clarify that registration information shall be kept confidential and that the confidentiality requirement covers the identity as well as the vote of voters in the referendum. Section 1219.109 was added to identify the OMB control number for the subpart.

Pursuant to 5 U.S.C. 553, it is found that good cause exists for not postponing the effective date of this rule until 30 days after publication in the Federal Register because: (1) The referendum will be held in the near future; (2) producers and importers need to register with the Department prior to that time; (3) notice of the referendum is required to be given to producers and importers at least 30 days prior to the referendum; and (4) interested persons including producers and importers were given the opportunity to comment on the proposal for a total of 61 days.

List of Subjects in 7 CFR Part 1219

• Administrative practice and procedure
• Advertising
• Consumer information
• Hass avocados
• Marketing agreements
• Promotion
• Reporting and recordkeeping requirements

For the reasons set forth in the preamble, Title 7 Chapter XI of the Code of Federal Regulations is amended by adding part 1219 to read as follows:

PART 1219—HASS AVOCADO PROMOTION, RESEARCH, AND INFORMATION

Subpart A—[Reserved] Subpart B—Referendum Procedures

1219.100

General.

1219.101

Definitions.

1219.102

Registration.

1219.103

Voting.

1219.104

Instructions.

1219.105

Subagents.

1219.106

Ballots.

1219.107

Referendum report.

1219.108

Confidential information.

1219.109

OMB control number.

Authority: 7 U.S.C. 7801-7813.

Subpart A—[Reserved]

Subpart B—Referendum Procedures

§ 1219.100

General.

Referenda to determine whether eligible producers and importers of Hass avocados favor the issuance, amendment, suspension, or termination of the Hass Avocado Promotion, Research, and Information Order shall be conducted in accordance with this subpart.

§ 1219.101

Definitions.

(a) Administrator means the Administrator of the Agricultural Marketing Service, with power to redelegate, or any officer or employee of the U.S. Department of Agriculture to whom authority has been delegated or may hereafter be delegated to act in the Administrator's stead.

(b) Eligible importer means any person who imported Hass avocados, that are identified by the number 08-04.00.00.10 in the Harmonized Tariff Schedule of the United States for at least one year prior to the referendum. Importation occurs when Hass avocados originating outside of the United States are released from custody by the U.S. Customs Service and introduced into the stream of commerce in the United States. Included are persons who hold title to foreign-produced Hass avocados 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 Hass avocados from the U.S. Customs Service when such Hass avocados are entered or withdrawn for consumption in the United States.

(c) Eligible producer means any person who produced Hass avocados in the United States for at least one year prior to the referendum who:

(1) Owns, or shares the ownership and risk of loss of, the crop;

(2) Rents Hass avocado production facilities and equipment resulting in the ownership of all or a portion of the Hass avocados produced;

(3) Owns Hass avocado production facilities and equipment but does not manage them and, as compensation, obtains the ownership of a portion of the Hass avocados produced; or

(4) Is a party in a landlord-tenant relationship or a divided ownership arrangement involving totally independent entities cooperating only to produce Hass avocados who share the risk of loss and receive a share of the Hass avocados produced. No other acquisition of legal title to Hass avocados shall be deemed to result in persons becoming eligible producers.

(d) Hass avocados means the fruit grown in or imported into the United States of the species Persea americana Mill. For the purposes of the initial referendum, the term shall include fresh fruit only.

(e) Order means the Hass Avocado Promotion, Research, and Information Order.

(f) 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 a wife who have title to, or leasehold interest in, a Hass avocado farm 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 an agreement, informal or otherwise, contributed land and others contributed capital, labor, management, or other services, or any variation of such contributions by two or more parties.

(g) Referendum agent or agent means the individual or individuals designated by the Administrator to conduct the referendum.

(h) Representative period means the period designated by the Administrator.

(i) United States. The term “United States” means collectively of the several 50 States of the United States, the District of Columbia, the Commonwealth of Puerto Rico, the Commonwealth of the Northern Mariana Islands, the United States Virgin Islands, Guam, American Samoa, the Republic of the Marshall Islands, and the Federated States of Micronesia.

§ 1219.102

Registration.

An eligible producer or importer of Hass avocados, as defined in this subpart, at the time of the referendum and during a representative period, who chooses to vote in any referendum conducted under this subpart, shall register with the referendum agent prior to the voting period, after receiving notice from the referendum agent concerning the referendum under § 1219.104(b). Registration information shall be confidential under § 1219.108.

§ 1219.103

Voting.

(a) Each eligible producer and eligible importer who registers to vote in the referendum 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 Hass avocados, 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 or an eligible entity may cast a ballot on behalf of such entity. Any individual so voting in a referendum shall certify that such individual is an officer or employee of the eligible entity, or an administrator, executive, or trustee of an eligible 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 or fax, as instructed by the referendum agent.

§ 1219.104

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 period during which ballots may be cast (voting period).

(b) Notify producers and importers of the voting period for the referendum and the requirement to register to vote in the referendum at least 30 days in advance 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.

(c) Develop the ballots and related material to be used in the referendum. The ballot 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.

(d) Develop a list of producers and importers who register to vote.

(e) Mail to registered voters the instructions on voting, a ballot, and a summary of the terms and conditions of the proposed Order.

(f) 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 a third party authorized to monitor the referendum process.

(g) Prepare a report on the referendum.

(h) Announce the results to the public.

§ 1219.105

Subagents.

The referendum agent may appoint any individual or individuals 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.

§ 1219.106

Ballots.

The referendum agent and subagents shall accept all ballots cast. However, if an agent or subagent deems 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.

§ 1219.107

Referendum report.

Except as otherwise directed, the referendum agent shall prepare and submit to the Administrator a report on the results of the referendum, the manner in which it was conducted, the extent and kind of public notice given, and other information pertinent to the analysis of the referendum and its results.

§ 1219.108

Confidential information.

The list of registered voters, ballots, and all other information or reports that reveal, or tend to reveal, the identity or vote of voters in the referendum shall be strictly confidential and shall not be disclosed.

§ 1219.109

OMB control number.

The control number assigned to the information collection requirement in this subpart 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 0581-0197.

Dated: February 12, 2002.

A.J. Yates,

Administrator, Agricultural Marketing Service.