Watermelon Research and Promotion Plan: Amendments to the Referendum Procedures

DEPARTMENT OF AGRICULTURE

7 CFR Part 1210

RIN 0581-AB21

[FV-93-706FR]

Watermelon Research and Promotion Plan: Amendments to the

Referendum Procedures

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Final rule.

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SUMMARY: This final rule will amend the rules of practice for referenda

on the Watermelon Research and Promotion Plan to provide for referenda

to be conducted by mail ballot, to allow watermelon importers to vote

in the referendum, to change the eligibility criteria for producers to

vote in referenda, and to include the 50 States and the District of

Columbia.

EFFECTIVE DATE: August 30, 1994.

FOR FURTHER INFORMATION CONTACT: Sonia N. Jimenez, Research and

Promotion Branch, Fruit and Vegetable Division, AMS, USDA, P.O. Box

96456, Room 2535-S, Washington, DC 20090-6456; telephone (202) 720-

9916.

SUPPLEMENTARY INFORMATION: This final rule is issued under the

Watermelon Research and Promotion Plan [7 CFR 1210], hereinafter

referred as the Plan. The Plan is effective under the Watermelon

Research and Promotion Act, as amended by the Watermelon Research and

Promotion Improvement Act of 1993, [7 U.S.C. 4901-4916] hereinafter

referred as the Act.

This rule has been determined to be not-significant for the

purposes of Executive Order 12866 and therefore has not been reviewed

by OMB.

This rule has been reviewed under Executive Order 12778, Civil

Justice Reform. It is not intended to have retroactive effect. This

rule will not preempt any State or local laws, regulations, or

policies, unless they present an irreconcilable conflict with this

rule.

The Act provides that administrative proceedings must be exhausted

before parties may file suit in court. Under Sec. 1650 of the Act, a

person subject to the Plan may file a petition with the Secretary

stating that the Plan or any provision of the Plan, or any obligation

imposed in connection with the Plan, is not in accordance with law and

requesting a modification of the Plan or an exemption from the Plan.

The petitioner is afforded the opportunity for a hearing on the

petition. After such hearing, the Secretary will make a ruling on the

petition. The Act provides that the district courts of the United

States in any district in which a person who is a petitioner resides or

carries on business are vested with jurisdiction to review the

Secretary's ruling on the petition, if a complaint for that purpose is

filed within 20 days after the date of the entry of the ruling.

Regulatory Flexibility Act

Pursuant to requirements set forth in the Regulatory Flexibility

Act (RFA), the Administrator of the Agricultural Marketing Service

(AMS) has considered the economic impact of this rule on small

entities.

The purpose of the RFA is to fit regulatory actions to the scale of

business subject to such actions in order that small businesses will

not be unduly or disproportionately burdened.

There are approximately 750 watermelon handlers and 5,000

watermelon producers in the 50 States of the United States who would be

affected by this rule. There are approximately 140 importers of

watermelons. Small agricultural service firms are defined by the Small

Business Administration [13 CFR 121.601] as those having annual

receipts of less than $5 million and small agricultural producers are

defined as those having annual receipts of less than $500,000. The

majority of watermelon handlers, producers, and importers may be

classified as small entities.

U.S. production of watermelons is estimated through the use of U.S.

shipment statistics. Shipments of U.S.-produced watermelons totaled

about 1,895.6 million pounds in 1993, 7 percent less than in 1992.

Imports of watermelons in 1993 totalled 343.5 million pounds, an

increase of 12 percent. Therefore, domestic production is about six

times as great as the volume of imports.

The changes to the procedures for conduct of referenda reflect

amendments to the Act. The overall economic impact of these changes is

not expected to be significant. The change from voting at Extension

Service county offices to voting by mail ballot will not cause a change

in the burden on voters. Allowing importers to vote in the referendum

would add a burden for those importers who choose to vote. However,

this burden is offset by the opportunity to vote on whether they are

covered by the program. Increasing the exemption level from 5 acres to

10 acres and the change in producers' eligibility to vote will reduce

the number of small producers eligible to vote in the program and hence

the reduce burden on small producers. Further, voting in the referendum

is voluntary. Including the 50 States and the District of Columbia will

cause a burden on those producers and handlers in those regions but

this burden is offset by the opportunity to participate in the

referendum.

The research and promotion program is expected to continue to

benefit producers, handlers, and importers subject to the Plan by

expanding and maintaining new and existing markets. Accordingly, the

Administrator of AMS has determined that this final rule will not have

a significant economic impact on a substantial number of small

entities.

Paperwork Reduction Act

In accordance with the Paperwork Reduction Act of 1980 [40 U.S.C.

chapter 35], the information collection requirements contained in the

Plan have previously been approved by the Office of Management and

Budget (OMB) and assigned OMB number 0581-0093. There will be a new

reporting burden on importers but the burden has been already approved

by the OMB and assigned OMB control number 0581-0093. This action adds

no additional reporting burden. It has been estimated that it will take

an average of 10 minutes for each producer, handler, and importer of

watermelons to participate in the voluntary referendum balloting.

Background

Under the Plan, the National Watermelon Promotion Board (Board)

administers a nationally coordinated program of research, development,

advertising, and promotion designed to strengthen the watermelon's

position in the market place and to establish, maintain, and expand

markets for domestic watermelons. This program is financed by

assessments on producers and handlers of watermelons. The Plan

specifies that handlers are responsible for collecting and submitting

both the producer and handler assessments to the Board, reporting their

handling of watermelons, and maintaining records necessary to verify

their reporting.

A proposed rule was published in the Federal Register on April 14,

1994 [59 FR 17739]. The rule published in April contained the proposed

amendments to the Plan, rules and regulations, rules of practice for

petitions, and referendum procedures. The Department has decided to

separately make final the referendum procedures because the changes to

the referendum procedures must be in place in order to conduct the

referendum in November 1994 on two of the amendments. Therefore, this

action will put into effect the subpart containing the referendum

procedures. The proposed amendments to the Plan, rules and regulations,

and rules of practice for petitions are published separately in this

issue of the Federal Register.

The deadline for comments on all of the proposed amendments

published on April 14 was May 16, 1994. Twenty-one comments were

received.

Three of the comments related to the referendum procedures. Three

commentors stated that proof of voter eligibility should be required.

They stated that this could be accomplished by requesting voters to

provide their business identification number or social security number

and/or sales receipts, acreage reports, or bill of lading that reflect

their watermelon activity for 1993.

The Department agrees with requesting business identification

number or social security number on the ballot as proof of voter

eligibility. However, it is not necessary to modify the referendum

rules in order to collect this information. This collection of

information has been approved by OMB under OMB number 0581-0093 and

does not add any burden on voters.

The amendments to the Act authorize an assessment on watermelons

imported into the United States by importers and the addition of

importer members to the Board if approved by watermelon producers,

handlers, and importers in a referendum. Therefore, watermelon

importers will also be eligible to vote in the referenda. In order to

include importers in the referendum procedures, this rule will amend

Secs. 1210.200, 1210.201, 1210.202, 1210.203, and 1210.204 of the

referendum procedures.

The Act increased the acreage for exempt producers from ``less than

5 acres'' to ``less than 10 acres'' of watermelons and changed the

eligibility for producers to serve on the Board. The Act provides that

a producer is eligible to serve on the Board as a representative of

handlers (1) if a producer purchases watermelons from other producers

in a combined total volume that is equal to 25 percent or more of the

producer's own production or (2) if the combined total volume of

watermelons handled by the producer from the producer's own production

and purchases from other producer's production is more than 50 percent

of the producer's own production. This provision clarifies the

eligibility of producers and handlers to serve on the Board as

representatives of their specific group and also applies to voter

eligibility. In addition, the increase in the exemption level from

``less than 5 acres'' to ``less than 10 acres'' will determine

producer's eligibility to vote because only producers of 10 acres or

more will be eligible to vote in the referendum. Therefore, this rule

will amend Secs. 1210.201 and 1210.202.

The Act also increases applicability of the law from the 48

contiguous States to the 50 States and the District of Columbia.

Therefore, since they will be covered by the Plan, voters in Alaska,

Hawaii, and the District of Columbia are entitled to vote in the

referendum. This rule will amend Sec. 1210.201 accordingly.

The Act also provides that all future promulgation and amendment

referenda do not have to be conducted at Extension Service county

offices. This procedure proved to be expensive and difficult to

administer. The Act will now allow referenda to be conducted by mail

ballot which will reduce the costs involved in conducting referenda and

facilitate a more timely tabulation of the results. In order to make

this change, this rule will amend Secs. 1210.203 and 1210.204.

Minor changes are made in this final rule for the purpose of

clarity.

In addition, conforming changes will be made to Sec. 1210.201.

After consideration of all relevant material presented with regard

to the procedures to conduct a referendum, it is found that they

effectuate the declared policy of the Act.

Pursuant to the provisions in 5 U.S.C. 553, it is found and

determined that good cause exists for not postponing the effective date

of this action until 30 days after publication in the Federal Register

because:

(1) A proposed rule with request for comments was published in the

Federal Register and comments were received and they are addressed in

this rule;

(2) It is necessary to have these procedures in place in order to

conduct the referendum in November 1994; and

(3) No useful purpose will be served by a delay of the effective

date.

List of Subjects in 7 CFR Part 1210

Agricultural promotion, Agricultural research, Market development,

Reporting and recordkeeping requirements, Watermelons.

For the reasons set forth in the preamble, Part 1210, Chapter XI of

Title 7 is amended as follows:

PART 1210--WATERMELON RESEARCH AND PROMOTION

1. The authority citation for 7 CFR Part 1210 continues to read as

follows:

Authority: 7 U.S.C. 4901-4916.

Subpart--Procedure for the Conduct of Referenda in Connection with

the Watermelon Research and Promotion Plan

2. Section 1210.200 is revised to read as follows:

Sec. 1210.200 General.

Referenda to determine whether producers, handlers, and importers

favor issuance, suspension or termination of a Watermelon Research and

Promotion Plan shall be conducted in accordance with this subpart.

3. Section 1210.201 is amended in paragraph (a) to add at the end

of the paragraph ``, as amended.''; in paragraph (g) by removing the

phrase ``and handling'' and adding in its place ``, handling, and

importing''; in paragraph (h) introductory text by removing the phrase

``five'' and adding in its place ``10''; and adding new paragraphs (j)

and (k) to read as follows:

Sec. 1210.201 Definitions.

* * * * *

(j) ``Importer'' means any person who imports watermelons into the

United States as principal or as an agent, broker, or consignee for any

person who produces watermelons outside the United States for sale in

the United States.

(k) ``United States'' means each of the several States and the

District of Columbia.

4. Section 1210.202 is revised to read as follows:

Sec. 1210.202 Voting.

(a) Each person who is a producer, handler, or importer as defined

in this subpart, at the time of the referendum and who also was a

producer, handler, or importer during the representative period, shall

be entitled to only one vote in the Referendum: Provided, That each

producer in a landlord-tenant relationship or a divided ownership

arrangement involving totally independent entities cooperating only to

produce watermelons in which more than one of the parties is a

producer, shall be entitled to one vote in the referendum covering only

that producer's share of the ownership: Provided further, That the vote

of a person who both produces and handles watermelons will be counted

as a handler vote if the producer purchased watermelons from other

producers, in a combined total volume that is equal to 25 percent or

more of the producer's own production; or the combined total volume of

watermelon handled by the producer from the producer's own production

and purchases from other producer's production is more than 50 percent

of the producer's own production: Provided further, That the vote of a

person who both imports and handles watermelons will be counted as an

importer vote if that person imports 50 percent or more of the combined

total volume of watermelons handled and imported by that person.

(b) Proxy voting is not authorized, but an officer or employee of a

corporate producer, handler, or importer, or an administrator, executor

or trustee of a producing, handling, or importing entity may cast a

ballot on behalf of such entity. Any individual so voting in a

referendum shall certify that individual is an officer or employee of

the producer, handler, or importer, or an administrator, executor, or

trustee of a producing, handling, or importing entity and that that

individual has the authority to take such action. Upon request of the

referendum agent, the individual shall submit adequate evidence of such

authority.

(c) Each producer, handler, or importer shall be entitled to cast

only one ballot in the referendum.

5. Section 1210.203 is amended by revising paragraphs (b), (d)(1),

(d)(2), and (d)(3) and adding a new paragraph (d)(4) to read as

follows:

Sec. 1210.203 Instructions.

* * * * *

(b) Determine procedures for casting ballots.

* * * * *

(d) * * *

(1) Whether the person voting, or on whose behalf the vote is cast,

is an eligible voter; and, if appropriate;

(2) The acreage and volume in pounds of watermelons produced by the

voting producer during the representative period;

(3) The volume in pounds of watermelons handled by the voting

handler during the representative period; and

(4) The volume in pounds of watermelons imported by the voting

importer during the representative period.

* * * * *

6. Section 1210.204 is amended by revising the section heading and

paragraph (a)(1); removing paragraph (b); redesignating paragraph (c)

as paragraph (b); removing in new paragraph (b) the phrase ``and

handlers'' and adding in its place ``, handlers, and importers'';

adding new paragraph (c), and revising paragraphs (d) and (e) to read

as follows:

Sec. 1210.204 Agent.

* * * * *

(a) * * *

(1) Utilizing, without advertising expense, available media or

public information sources (including, but not limited to, press and

radio facilities serving the production area) to announce the dates of

the referendum as well as the methods of voting, the eligibility

requirements for voting, and other pertinent information regarding the

referendum.

* * * * *

(c) Preside at a meeting where ballots are to be cast.

(d) Distribute ballots and the aforesaid texts to producers,

handlers, and importers and receive any ballots which are cast.

(e) Record the name and address of persons receiving a ballot from,

or casting a ballot with, said agent and inquire into the eligibility

of such persons to vote in the referendum.

Dated: August 24, 1994.

Lon Hatamiya,

Administrator.

[FR Doc. 94-21318 Filed 8-29-94; 8:45 am]

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