# Watermelon Research and Promotion Plan: Amendments to the Referendum Procedures

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URL: https://www.frixlaw.com/law-library/documents/fr%3A94-21318

## Record

- **Collection:** Federal Register
- **Document type:** Uncategorized Document
- **Published:** August 30, 1994

## Text

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]
BILLING CODE 3410-02-P

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A94-21318. Public record. Not legal advice.