[Federal Register: July 13, 2001 (Volume 66, Number 135)]
[Proposed Rules]
[Page 36886-36890]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr13jy01-18]
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DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Part 1219
[FV-01-706-PR]
Hass Avocado Promotion, Research, and Information Order; Subpart
B--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 establish 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
would 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: Comments must be received by August 27, 2001.
ADDRESSES: Interested persons are invited to submit written comments
concerning this proposed rule to: Docket Clerk, Research and Promotion
Branch (RP), Fruit and Vegetable Programs (FV), Agricultural Marketing
Service (AMS), USDA, Stop 0244, Room 2535-S, 1400 Independence Avenue,
SW., Washington, DC 20250-0244. Comments should be submitted in
triplicate and will be made available for public inspection at the
above address during regular business hours. Comments may also be
submitted electronically to: malinda.farmer@usda.gov. All comments
should reference the docket number and the date and page number of this
issue of the Federal Register. A copy of this rule may be found at:
www.ams.usda.gov/fv/rpdocketlist.htm.
Pursuant to the Paperwork Reduction Act (PRA), send comments
regarding the accuracy of the burden estimate, ways to minimize the
burden, including the use of automated collection techniques or other
forms of information technology, or any other aspect of this collection
of information to the above address. Comments concerning the
information collection under the PRA should also be sent to the Desk
Officer for Agriculture, Office of Information and Regulatory Affairs,
Office of Management and Budget, Washington, DC 20503.
FOR FURTHER INFORMATION CONTACT: Julie A. Morin, RP, FV, AMS, USDA,
Stop 0244, 1400 Independence Avenue, SW., Room 2535-S, Washington, DC
20250-0244; telephone (202) 720-6930 or fax (202) 205-2800, or
julie.morin@usda.gov.
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 1218]. 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)
[Pub. L. 106-387, 7 U.S.C. 7801-7813]. It would cover domestic and
imported Hass avocados. A proposed Order is being published separately
in the Federal Register.
Question and Answer Overview
Why Are These Referendum Procedures Being Proposed?
USDA will conduct rulemaking and a national referendum on the
Order. In order to conduct the referendum, procedures need to be
established. Publishing this proposed rule provides the opportunity for
public input on the procedures before they are finalized.
How Long Do I Have To Comment on the Proposed Rule?
You have 45 days to submit written comments to USDA on the proposed
procedures or to OMB on the paperwork burden associated with the
procedures. You may submit your comments by mail, fax, or e-mail as
indicated above.
Who Is Eligible To Vote in the Referendum?
Each eligible producer, handler, and importer will be allowed one
vote in the referendum. In order to be implemented, the amendment must
be approved by a majority of the producers and importers voting in the
referendum.
When Will the Referendum Be Held?
After we have analyzed the comments on this proposed rule, we will
issue final referendum procedures. The voting period will last 30 days
and be announced 30 days in advance.
How Can I Vote in the Referendum?
Voting will take place by mail. All known eligible producers and
importers will receive a ballot and voting instructions in the mail
from USDA. Producers and importers who believe they are eligible to
vote and who do not receive a ballot in the mail may request a ballot
by calling a toll-free telephone number. The ballot must be received by
USDA by the close of business on the last day of the voting period.
Executive Order 12988
This proposed rule has been reviewed under Executive Order 12988,
Civil Justice Reform. It is not intended to have retroactive effect.
Section 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 Secretary of Agriculture (Secretary) stating
that the Order, any provision of the Order, or any obligation imposed
in connection with the Order, is not established in accordance with the
law, and requesting a modification of the Order or an exemption from
the Order. Any petition filed challenging the Order, any provision of
the Order or any obligation imposed in connection with the Order, shall
be filed within two years after the effective date of the Order,
provision or obligation subject to challenge in the petition. The
petitioner will have the opportunity for a hearing on the petition. 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 Secretary'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.
[[Page 36887]]
Regulatory Flexibility Act
In accordance with the Regulatory Flexibility Act (RFA) [5 U.S.C.
601 et seq.], the Agency is required to examine the impact of the
proposed rule on small entities. The purpose of the RFA is to fit
regulatory actions to the scale of businesses subject to such action so
that small businesses will not be disproportionately burdened.
The Act, which authorizes the Secretary to implement a research and
promotion program covering domestic and imported Hass avocados, became
effective on October 23, 2000.
This proposed rule would establish 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
would be eligible to vote. This proposal would add a new subpart which
establishes procedures to conduct the initial and future referenda. The
proposed subpart covers definitions, voting instructions, use of
subagents, ballots, the referendum report, and confidentiality of
information.
According to industry sources, there are approximately 6,000
producers and 200 importers who will vote in the referendum.
The Small Business Administration [13 CFR 121.201] defines small
agricultural producers as those having annual receipts of $500,000 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. On August 6, 2001, the
threshold for small agricultural producers will be increased to
$750,000. This increase has little import on the determination of
whether those covered by the program 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 are
covered by this proposed rule.
California is the source for over 95 percent of the Hass avocados
produced in the United States. According to the Commission, seven
avocado varieties are grown in California. Hass, the most popular
variety, accounts for 85 percent of the volume of California avocado
production. Hass avocados are available 12 months a year.
According to USDA's National Agricultural Statistics Service
(NASS), total U.S. production of avocados during the 1999-2000 season
was 181,300 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 1999-
2000 crops was $392 million. Production in 1999-2000 was up 14 percent
from the previous year's total of 159,250 tons, which had a value of
$344 million. According to an industry report, the U.S. avocado
category is expected to grow to more than 600 million pounds this year
(2000-2001)--up 53% from 1997-1998.
In the 1999-2000 season, the major countries exporting to the U.S.
were Chile (59 percent), Mexico (20 percent), and the Dominican
Republic (15 percent). Data on imports is not collected by variety, but
it is believed to be mostly Hass. Avocados are imported both in fresh
and processed form. According to U.S. Census Bureau data, fresh avocado
imports during the 1999-2000 season (November/October) accounted for
about 75 percent of the total tonnage of fresh and processed avocados
imported. In 1999-2000, imported fresh avocados totaled 66,237 tons, up
from 55,515 tons during the 1998-99 season.
The total import value for fresh and processed avocados was $137
million in 1999-2000, up from $95 million in 1998-99. Almost all
prepared or preserved avocado imports come from Mexico. The trend in
imports is up, and imports have more than doubled since 1995.
This proposed rule provides the procedures under which producers
and importers of Hass avocados vote on whether they want the Order to
be implemented. In accordance with the provisions of the Act,
subsequent referenda may be conducted, and it is anticipated that these
proposed procedures would apply.
USDA will keep 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. 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 proposed
rule are designed to minimize the burden on producers and importers.
This rule provides for 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
$3,000 or $0.50 per producer and for an estimated 200 importers would
be $100 or $0.50 per importer.
The Secretary considered requiring eligible voters to vote in
person at various USDA offices across the country. The Secretary also
considered electronic voting, but the use of computers is not
universal, current technology is not reliable enough to ensure that
electronic ballots would be received in a readable format, and
technology is insufficient at this time to provide sufficient
safeguards of voters' confidentiality. Conducting the referendum from
one central location by mail ballot would be more cost-effective and
reliable. The Department 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.
While we have performed this Initial Regulatory Flexibility
Analysis regarding the impact of this proposed rule on small entities,
in order to have as much data as possible for a more comprehensive
analysis of the effects of this rule on small entities, we are inviting
comments concerning potential effects. In particular, we are interested
in obtaining more information on the number of small entities that may
incur benefits or costs from the implementation of this proposed rule
and information on the expected benefits or costs.
Paperwork Reduction Act
In accordance with the Office of Management and Budget (OMB)
regulation [5 CFR 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-NEW.
Expiration Date of Approval: To be assigned by OMB.
[[Page 36888]]
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 burden associated
with the ballot is as follows:
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.
The estimated annual cost of providing the information by an
estimated 6,000 producers would be $3,000.00 or $0.50 per producer and
for an estimated 200 importers would be $100.00 or $0.50 per importer.
Comments are invited on: (a) Whether the proposed collection of
information is necessary and whether it will have practical utility;
(b) the accuracy of USDA's estimate of the burden of the proposed
collection of information, including the validity of the methodology
and assumptions used; (c) ways to enhance the quality, utility, and
clarity of the information to be collected; and (d) ways to minimize
the burden of the collection of information on those who are to
respond, including the use of appropriate automated, electronic,
mechanical, or other technological collection techniques or other forms
of information technology.
Comments concerning the information collection requirements
contained in this action should reference OMB No. 0581-NEW, the docket
number, and the date and page number of this issue of the Federal
Register. Comments should be sent to the USDA Docket Clerk and the OMB
Desk Officer for Agriculture at the addresses and within the time
frames specified above. 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, which became effective on October 23, 2000, authorizes the
Secretary to establish a national research and promotion program
covering domestic and imported Hass avocados. The Commission submitted
an entire proposed Order on December 29, 2000. Subsequently, on March
9, 2001, partial proposals were received from Hass avocado interests in
Chile, Mexico, and New Zealand. These proposals are being published for
public comment in this 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 Hass Avocado Board; and expenses incurred by the
Secretary 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.
This proposed 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.
This proposed rule would add a new subpart which would establish
procedures to be used in this and future referenda.
The subpart covers definitions, registration, voting, instructions,
use of subagents, ballots, the referendum report, and confidentiality
of information.
A 30-day comment period is provided on this proposed rule. This
period is deemed appropriate to better reflect the implementation time
frames provided in the Act.
All written comments received in response to this rule by the date
specified 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 Hass avocado industry.
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, it is proposed that
Title 7, Chapter XI of the Code of Federal Regulations be amended by
amending part 1219 proposed elsewhere in this issue as follows:
1. The authority citation for part 1219 continues to read as
follows:
Authority: 7 U.S.C. 7801-7813.
2. Subpart B is added to proposed Part 1219 to read as follows:
PART 1219--HASS AVOCADO PROMOTION, RESEARCH, AND INFORMATION
* * * * *
Subpart B--Referendum Procedures
Sec.
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.
Subpart B--Referendum Procedures
Sec. 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.
Sec. 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 in the Harmonized Tariff Schedule of the United
States,\1\
[[Page 36889]]
for at least one year prior to the referendum. Importation occurs when
Hass avocados originating outside 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.
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\1\ The Department of Agriculture has applied to the
International Trade Commission for an Harmonized Tariff Code number
for Hass avocados. The number will be available prior to the
finalization of this rule.
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(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 Secretary to conduct the referendum.
(h) Representative period means the period designated by the
Secretary.
(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, the Federated
States of Micronesia.
Sec. 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 Secretary prior to the voting period,
after receiving notice from the Secretary concerning the referendum
under Sec. 1219.103.
Sec. 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, as instructed by the
Secretary.
Sec. 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.
Sec. 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.
Sec. 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
[[Page 36890]]
thereto, and the disposition thereof. Ballots invalid under this
subpart shall not be counted.
Sec. 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.
Sec. 1219.108 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 strictly confidential and shall not be disclosed.
Dated: July 5, 2001.
Kenneth C. Clayton,
Acting Administrator.
[FR Doc. 01-17428 Filed 7-10-01; 8:45 am]
BILLING CODE 3410-02-P
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