Lime Research, Promotion, and Consumer Information Order; Referendum Order and Procedures

DEPARTMENT OF AGRICULTURE

7 CFR Part 1212

[FV-95-701]

Lime Research, Promotion, and Consumer Information Order;

Referendum Order and Procedures

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Interim final rule with request for comments; referendum order.

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SUMMARY: The purpose of this rulemaking action is to give notice of a

referendum and to provide procedures for which the Department of

Agriculture will use in conducting the referendum to determine whether

the issuance of the Lime Research, Promotion, and Consumer Information

Order is favored by a majority of the producers, producer-handlers, and

importers voting in the referendum. The Lime Board at its August 7,

1995, meeting requested that a referendum be held as soon as possible.

The referendum order establishes the voting period, representative

period, method of voting, and agents.

DATES: This rule is effective October 11, 1995 through December 31,

1995. Comments must be received by October 26, 1995. The representative

period for establishing voter eligibility shall be the period from

September 1, 1994, through August 31, 1995. A referendum shall be

conducted by mail ballot from November 1, 1995, through November 15,

1995.

ADDRESSES: Interested persons are invited to submit written comments

concerning this rule to: Docket Clerk, Fruit and Vegetable Division,

AMS, USDA, PO Box 96456, Room 2535-S, Washington, DC 20090-6456. Three

copies of all written materials should be submitted, and they will be

made available for public inspection in the Office of the Docket Clerk

during regular working hours. All comments should reference the docket

number of this issue of the Federal Register.

FOR FURTHER INFORMATION CONTACT: Richard Schultz, Research and

Promotion Branch, Fruit and Vegetable Division, AMS, USDA, room 2535-S,

PO Box 96456, Washington, DC 20090-6456. Telephone (202) 720-5976.

SUPPLEMENTARY INFORMATION: A referendum will be conducted among

eligible lime producers, producer-handlers, and importers to determine

whether the issuance of the Lime Research, Promotion, and Consumer

Information Order (Order) (7 CFR part 1212) is favored by a majority of

persons voting in the referendum. The Order is authorized under the

Lime Research, Promotion, and Consumer Information Act of 1990, as

amended (Act).

The representative period for establishing voter eligibility for

the referendum shall be the period from September 1, 1994, through

August 31, 1995. Persons who have produced or imported 200,000 or more

pounds of limes for the fresh market during the representative period

are eligible to vote. The referendum shall be conducted by mail ballot

from November 1, 1995, through November 15, 1995.

Section 1960 of the Act provides that the Secretary of Agriculture

(Secretary) shall conduct a referendum not later than 30 months after

the date on which the collection of assessments begins to determine

whether the issuance of the Order is favored by a majority of the

producers, producer-handlers, and importers voting in the referendum.

Paragraph (b) of section 1960 of the Act requires that the Order

continue in effect only if favored by such majority.

The Department of Agriculture (Department) is issuing this rule in

conformance with Executive Order 12866.

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 section 1957 of the Act, a

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

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

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

requesting a modification of the Order

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or an exemption from the Order. The petitioner is afforded the

opportunity for a hearing on the petition. After such hearing, the

Secretary will make a ruling on the petition. The Act provides that the

district courts of the United States in any district in which a person

who is a petitioner resides or carries on business are vested with

jurisdiction to review the Secretary's ruling on the petition, if a

complaint for that purpose is filed within 20 days after the date of

the entry of the ruling.

Regulatory Impact Analysis

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 disproportionatley burdened.

The Department estimates that there are approximately 50 producers

who produce at least 200,000 pounds annually and will be subject to the

Order. A majority of producers subject to the Order will be classified

as small entities. Small agricultural producers have been defined by

the Small Business Administration (SBA) (13 CFR 121.601) as those

having annual receipts of less than $500,000.

The Department estimates that there are approximately 25 first

handlers. Further, the Department estimates that there are

approximately 35 importers who import at least 200,000 pounds and will

be subject to the Order. A majority of first handlers and importers

subject to the Order will be classified as small entities. Small

agricultural service firms, which include handlers and importers, have

been defined by the SBA as those having annual receipts of less than

$5,000,000.

Since the enactment of the Act, the character of the lime industry

has significantly changed. As a result of the extensive damage to lime

orchards in Florida by Hurricane Andrew in August 1992, domestic

production has plummeted and the volume of imports has increased

dramatically. Domestic production is not expected to reach pre-

Hurricane Andrew levels for several more years because Florida

accounted for a majority of domestic production.

Shipment reports of domestic limes, from January 1, 1994, through

December 31, 1994, indicate truck shipments of 13.5 million pounds from

Florida, 4.7 million pounds from California, and 1 million pounds from

Texas for a total of 19.2 million pounds. Shipment reports of imported

limes for the same 12 month period indicate truck shipments of 292.9

million pounds from Mexico plus an additional 14.4 million pounds from

9 other countries. Imports currently represent roughly 94 percent of

lime shipments in the United States.

The Administrator of the AMS has determined that this 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 (44 U.S.C.

chapter 35), the referendum ballot has been approved by the Office of

Management and Budget (OMB) and has been assigned OMB number 0581-0093.

It is estimated that there are approximately 50 producers and producer-

handlers and approximately 35 importers who will be eligible to vote in

the referendum. It will take an average of 15 minutes for each voter to

complete the referendum ballot.

Background

The Lime Research, Promotion, and Consumer Information Act of 1990

(1990 Act) (Pub. L. 101-624, 7 U.S.C. 6201-6212) was enacted on

November 28, 1990, for the purpose of establishing an orderly procedure

for the development and financing of an effective and coordinated

program of research, promotion, and consumer information to strengthen

the domestic and foreign markets for limes. The Order required by the

1990 Act became effective on January 27, 1992 (57 FR 2985), after

notice and comment rulemaking.

In March 1992 the Department conducted nomination meetings to

nominate lime producers and importers for appointment to the Lime Board

(Board). The Board members were appointed by the Secretary in September

1992 and the Board conducted its first meeting at the Department in

Washington, DC in October 1992. During the course of this meeting, the

Board and the Department concluded that a technical amendment to the

1990 Act was needed before an order could be implemented. Consequently,

full implementation of the Order was delayed until the enactment of

such technical amendment.

The Lime Research, Promotion, and Consumer Information Improvement

Act (1993 Act) (Pub. L. 103-194, Dec. 14, 1993) contained the necessary

technical amendment to properly cover the regulated commodity. The 1993

Act also provided for increasing the exemption level from less than

35,000 pounds annually to less than 200,000; terminating the initial

Board; changing the size and composition of the Board; and delaying the

initial referendum date.

A proposed rule was published in the April 7, 1994, issue of the

Federal Register (58 FR 3446) inviting comments on amending the Order

to reflect the provisions of the 1993 Act. A final rule was published

in the February 8, 1995, issue of the Federal Register (60 FR 7435).

In March 1995, as a result of terminating the initial Board under

the 1993 Act, the Department conducted nomination meetings to nominate

lime producers and importers for appointment to the new Board. The

Board members were appointed by the Secretary in June 1995 and the

newly constituted Board met at the Department in Washington, DC in

August 1995. At this meeting, amid concern over the changing character

of the lime industry, the Board voted that a referendum be conducted

before the Order is fully implemented to determine industry support.

In response to the Board's vote, the Department is issuing a

referendum order and establishing procedures to be used in the conduct

such referendum. The interim final rule will add a new Sec. 1212.90

addressing these procedures. This section covers definitions, voting,

referendum agent instructions, use of subagents, ballots, the

referendum report, and confidentiality of information.

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

determined upon good cause that it is impracticable, unnecessary, and

contrary to the public interest to give preliminary notice prior to

putting this rule into effect and that good cause exists for not

postponing the effective date of this action until 30 days after

publication in the Federal Register because: (1) This action formalizes

the Department's approval to conduct a referendum as requested by the

Board; (2) it is necessary that this rule be in place to conduct a

referendum; (3) a 15-day period is provided to allow interested parties

to comment prior to finalization; and (4) no useful purpose would be

served by a delay of the effective date.

All written comments received in response to this rule by the date

specified herein will be considered prior to finalizing this action. A

15-day comment period is considered appropriate because any changes to

this rule should be in effect as soon as possible. The referendum

begins November 1, 1995.

[[Page 52837]]

Referendum Order

It is hereby directed that a referendum be conducted among eligible

producers, producer-handlers, and importers to determine whether they

favor the issuance of the Order. The representative period for

establishing voter eligibility for the referendum shall be the period

from September 1, 1994, through August 31, 1995. A referendum shall be

conducted by mail ballot from November 1, 1995, through November 15,

1995.

Section 1960(a) of the Act specifies that ``* * * the Secretary

shall conduct a referendum among producers, producer-handlers, and

importers who (1) are not exempt from assessment * * *; and (2)

produced or imported limes during a representative period as determined

by the Secretary. Section 1960(b) of the Act further specifies that

``the referendum * * * is for the purpose of determining whether

issuance of the order is approved or favored by not less than a

majority of the producers, producer-handlers, and importers voting in

the referendum. The order shall continue in effect only with such a

majority.''

Richard Schultz and Martha B. Ransom, Research and Promotion

Branch, Fruit and Vegetable Division, Agricultural Marketing Service,

PO Box 96456, Department of Agriculture, Washington, DC 20090-6456, are

designated as the referendum agents of the Secretary of Agriculture to

conduct this referendum. The procedures described below shall be used

to conduct the referendum.

Ballots to be cast in the referendum, and any related material

relevant to the referendum, will be mailed by the referendum agents to

all known producers, producer-handlers, and importers. Persons who have

produced or imported 200,000 or more pounds of limes for the fresh

market during the representative period are eligible to vote. Such

persons shall establish their eligibility by providing information on

the ballot concerning their volume of production or importation. Any

eligible producer, producer-handler, or importer who does not receive a

ballot and related material should immediately contact the referendum

agents.

List of Subjects in 7 CFR Part 1212

Administrative practice and procedure, Advertising, Limes,

Marketing agreements, Reporting and recordkeeping requirements.

For the reasons set forth in the preamble, 7 CFR part 1212 is

amended as follows:

PART 1212--LIME RESEARCH, PROMOTION, AND CONSUMER INFORMATION

1. The authority citation for 7 CFR part 1212 continues to read as

follows:

Authority: 7 U.S.C. 6201-6212.

2. Section 1212.90 is added to read as follows:

Note: This section will not appear in the Code of Federal

Regulations.

Subpart A--Lime Research, Promotion, and Consumer Information Order

Sec. 1212.90 Referendum procedures.

A referendum to determine whether eligible producers, producer-

handlers, and importers favor the issuance of the Order shall be

conducted in accordance with these procedures.

(a) Definitions. Unless otherwise defined below, the definitions of

terms used in these procedures shall have the same meaning as the

definitions in the Order.

(1) Administrator means the Administrator of the Agricultural

Marketing Service, with power to redelegate, or any officer or employee

of the Department to whom authority has been delegated or may hereafter

be delegated to act in the Administrator's stead.

(2) Order means the Lime Research, Promotion, and Consumer

Information Order, part 1212, subpart A, Secs. 1212.1 through 1212.89,

title 7 of the Code of Federal Regulations, including any amendment to

the Order, with respect to which the Secretary has directed that a

referendum be conducted.

(3) Referendum agent or agent means the individual or individuals

designated by the Secretary to conduct the referendum.

(4) Representative period means the period designated by the

Secretary.

(5) 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:

(i) A husband and wife who has title to, or leasehold interest in,

production facilities and equipment as tenants in common, joint

tenants, tenants by the entirety, or, under community property laws, as

community property, and

(ii) So-called ``joint ventures'' wherein one or more parties to

the agreement, informal or otherwise, contributed capital and others

contributed labor, management, equipment, or other services, or any

variation of such contributions by two or more parties so that it

results in the production or importation of limes and the authority to

transfer title to the limes so produced or imported.

(6) Eligible producer or eligible producer-handler means any person

who produces 200,000 pounds or more of limes during the representative

period and who:

(i) Owns or shares in the ownership of production facilities and

equipment resulting in the ownership of the limes produced;

(ii) Rents production facilities and equipment resulting in the

ownership of all or a portion of the limes produced;

(iii) Owns production facilities and equipment but does not manage

them and, as compensation, obtains the ownership of a portion of the

limes produced; or

(iv) Is a party in a landlord-tenant relationship or a divided

ownership arrangement involving totally independent entities

cooperating only to produce limes who share the risk of loss and

receive a share of the limes produced. No other acquisition of legal

title to limes shall be deemed to result in persons becoming eligible

producers or eligible producer-handlers.

(7) Eligible importer means any person who imports 200,000 or more

pounds of limes during the representative period. Importation occurs

when commodities originating outside the United States are entered or

withdrawn from the U.S. Customs Service for consumption in the United

States. Included are persons who hold title to foreign-produced limes

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 limes from the U.S. Customs Service when such limes are

entered or withdrawn for consumption in the United States.

(b) Voting. (1) Each person who is an eligible producer, producer-

handler, or importer, as defined in these procedures, at the time of

the referendum and during the representative period, 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

limes, 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.

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

an eligible corporate producer, producer-handler, or importer, or an

administrator,

[[Page 52838]]

executor, or trustee of an eligible producing, producing and handling,

or importing entity may cast a ballot on behalf of such entity. Any

individual so voting in the referendum shall certify that such

individual is an officer or employee of the eligible producer,

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

trustee of an eligible producing, producing and handling, or importing

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) Instructions. The referendum agent shall conduct the

referendum, in the manner herein provided, under the supervision of the

Administrator. The Administrator may prescribe additional instructions,

not inconsistent with the provisions hereof, to govern the procedures

to be followed by the referendum agent. Such agent shall:

(1) Prepare ballots and related material to be used in the

referendum. Ballot material 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.

(2) Give reasonable advance public notice of the referendum:

(i) 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; and

(ii) By such other means as the agent may deem advisable.

(3) Mail to each eligible producer, producer-handler, and importer,

whose name and address is known to the agent, the instructions on

voting and a ballot. No person who claims to be eligible to vote shall

be refused a ballot.

(4) At the end of the voting period, collect, open, number, and

review the ballots and tabulate the results in the presence of an agent

of the Office of Inspector General.

(5) Prepare a report on the referendum.

(6) Announce the results to the public.

(d) Subagents. The referendum agent may appoint any individual or

individuals deemed necessary or desirable to assist the agent in

performing such agent's functions hereunder. Each individual so

appointed may be authorized by the agent to perform any and all

functions which, in the absence of such appointment, shall be performed

by the agent.

(e) Ballots. The referendum agent and subagents shall accept all

ballots cast; but, should they, or any of them, deem that a ballot

should be challenged for any reason, the agent or subagent shall

endorse above their signature, on the ballot, a statement to the effect

that such ballot was challenged, by whom challenged, the reasons

therefore, the results of any investigations made with respect thereto,

and the disposition thereof. Ballots invalid under these procedures

shall not be counted.

(f) Referendum report. Except as otherwise directed, the referendum

agent shall prepare and submit to the Administrator a report on results

of the referendum, the manner in which it was conducted, the extent and

kind of public notice given, and other information pertinent to

analysis of the referendum and its results.

(g) Confidential information. The ballots and other information or

reports that reveal, or tend to reveal, the vote of any person in the

referendum shall be held strictly confidential and shall not be

disclosed.

Dated: October 4, 1995.

Lon Hatamiya,

Administrator, Agricultural Marketing Service.

[FR Doc. 95-25165 Filed 10-10-95; 8:45 am]

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