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

Federal RegisterSep 30, 1996

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DEPARTMENT OF AGRICULTURE

7 CFR Part 1215

[FV-96-709PR]

Popcorn Promotion, Research, and Consumer Information Order;

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 provide procedures which the

Department of Agriculture (Department) will use in conducting the

referendum to determine whether the issuance of the proposed Popcorn

Promotion, Research, and Consumer Information Order is favored by a

majority of the processors voting in the referendum and that the

majority process more than 50 percent of the popcorn certified as being

processed by those voting in the referendum.

DATES: Comments must be received by October 30, 1996. Pursuant to the

Paperwork Reduction Act, comments on the information collection burden

must be received by November 29, 1996.

ADDRESSES: Interested persons are invited to submit written comments

concerning this purposed rule to: Research and Promotion Branch, Fruit

and Vegetable Division, AMS, USDA, P.O. Box 96456, Room 2535-S,

Washington, DC 20090-6456, Fax (202) 205-2800. Three copies of all

written materials should be submitted, and they will be made available

for public inspection in the Research and Promotion Branch, during

regular working hours. All comments should reference the docket number

and the date and page number of this issue of the Federal Register.

Pursuant to the Paperwork Reduction Act, also send comments regarding

the accuracy of the burden estimate, ways to minimize the burden,

including through 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.

FOR FURTHER INFORMATION CONTACT: Stacey L. Bryson, Research and

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

P.O. Box 96456, Washington, DC 20090-6456. Telephone (888) 720-9917 or

(202) 720-6930.

SUPPLEMENTARY INFORMATION: A referendum will be conducted among

eligible popcorn processors to determine whether the issuance of the

proposed Popcorn Promotion, Research, and Consumer Information Order

(Order) (7 CFR part 1215) is favored by

[[Page 51056]]

a majority of persons voting in the referendum. The Order is authorized

under the Popcorn Promotion, Research and Consumer Information Act

(Act) (Pub. L. 104-427, 7 U.S.C. 7481-7491).

Executive Order 12988

This proposed rule has been reviewed under Executive Order 12988,

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

This proposed rule will not preempt any State or local laws,

regulations, or policies, unless they present an irreconcilable

conflict with this rule. In accordance with section 580 of the Act,

nothing in the popcorn statute preempts or supersedes any other program

relating to popcorn promotion organized and operated under the laws of

the United States or any State.

The Act provides that administrative proceedings must be exhausted

before parties may file suit in court. Under section 577 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 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.

Executive Order 12866 and Regulatory Flexibility Act

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.

In accordance with the Regulatory Flexibility Act (5 U.S.C. 601 et

seq.), the Agency is required to examine the impact of the proposed

rule on small entities.

Legislation to create a generic program of promotion and research

for popcorn became effective on April 4, 1996.

Section 576 of the Act provides that the Secretary shall conduct a

referendum, within the 60-day period immediately preceding the

effective date of the Order, to determine whether the issuance of the

Order is favored by a majority of the processors voting in the

referendum. Paragraph (2) of section 576 of the Act requires that the

Order become effective only if favored by a majority of the processors

voting in the referendum and if the majority processed more than 50

percent of the popcorn certified as having been processed during the

representative period by the processors voting.

Small agricultural service firms, which would include processors

who would be covered under the proposed Order, have been defined by the

Small Business Administration (13 CFR 121.601) as those whose annual

receipts are less than $5 million. The Department estimates that there

are approximately 35 processors who would pay the assessments out of an

industry of 67 processors in total. Almost 50 percent of the industry

would be exempt from the program; those processors marketing 4 million

pounds or less of popcorn annually would be exempt from the proposed

Order. Further, only 2 of the 35 eligible processors have been

identified as small entities.

According to the Popcorn Institute, a trade association consisting

of popcorn processors representing the industry, annual sales of

popcorn were 77.240 million pounds less in 1994 than they were in 1993,

when sales totaled approximately 1.156 billion pounds.

The peak period for popcorn sales for home consumption is the fall.

Sales remain constant throughout the winter months and taper off during

the spring and summer.

Almost all of the popcorn consumed throughout the world is grown in

the United States, and Americans consume more popcorn than the citizens

of any other country. Popcorn is grown in 19 states. According to the

latest Census on Agriculture, the top five major popcorn-producing

states in 1992 were, in descending order, Indiana (23 percent),

Illinois (19 percent), Nebraska (18 percent), Ohio (10 percent), and

Missouri (7 percent). This is the most recent official information on

popcorn production released by the U.S. government.

U.S. exports of popcorn totaled nearly 290 million pounds in 1995,

with a value of $64.7 million. According to the Snack Food Association,

retail sales of popcorn in the United States totaled $1.469 billion in

1994.

This proposed rule provides the procedures under which eligible

popcorn processors may vote on whether they want the proposed popcorn

promotion and research program to be implemented.

The referendum procedures provide definitions of who is eligible to

vote and instructions for referendum agents regarding subagents,

publicity for the referendum and the results, ballots, voting, ballot

handling and tabulation, reporting, and confidentiality of referendum

materials. The representative period for establishing voter eligibility

for the referendum shall be determined by the Secretary. Persons who

have processed over 4 million pounds of popcorn for market during the

representative period will be eligible to vote; there are an estimated

35 eligible processors. The referendum will be conducted by mail

ballot.

The Department would inform all eligible processors of record

throughout the program implementation and referendum process to ensure

awareness and participation. In addition, trade associations and

related industry media would receive news releases and other

information regarding the implementation and referendum process.

Voting in the referendum is optional. However, if processors choose

to vote, the burden of voting would be offset by the benefits of having

the opportunity to vote on whether they want the program.

The Department considered requiring eligible voters to vote in

person at various Department offices across the country. However,

conducting the referendum from one central location by mail ballot is

more cost effective for this program. Also, the Department would

provide easy access to information for potential voters through a toll

free telephone line.

Paperwork Reduction Act

In accordance with the Office of Management and Budget (OMB)

regulations (5 CFR part 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, have been submitted to OMB for

approval.

Title: National Research, Promotion, and Consumer Information

Programs.

OMB Number: 0581-0093.

Expiration Date of Approval: October 31, 1997.

Type of Request: Revision of a currently approved 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

[[Page 51057]]

is estimated to average .25 hours per response for each processor.

Respondents: Processors.

Estimated Number of Respondents: 35.

Estimated Number of Responses per Respondent: 1 every 3 years

(.33).

Because there may be insufficient time for normal clearance

procedures, AMS is seeking temporary approval from OMB for the use of

the ballot for the referendum. The ballot would be added to the other

information collections approved for use under OMB Number 0581-0093.

Comments are invited on: (a) Whether the proposed collection of

information is necessary for the proper performance of functions of the

Order and the Department's oversight of the program, including whether

the information will have practical utility; (b) the accuracy of the

AMS's estimate of the burden of the proposed collection of information

including the validity of the methodology and assumption 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

collections techniques or other forms of information technology.

Comments should reference OMB No. 0581-0093, the docket number, and

the date and page number of this issue of the Federal Register.

Comments should be sent to Stacey L. Bryson, at the address listed

above by November 29, 1996. 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 purpose of the Act is to provide an orderly procedure for

developing and financing an effective and coordinated program of

promotion, research, and consumer information to strengthen the markets

for popcorn. The program would be funded by an assessment of no more

than 8 cents per hundredweight levied on popcorn processors. Processors

who process and market 4 million pounds or less of popcorn annually

would be exempt from paying the assessment. Assessments would be used

to pay for: Promotion, research, consumer information, and industry

information; administration, maintenance, and functioning of the

Popcorn Board which would operate the program under the Secretary's

supervision; and expenses incurred by the Secretary in implementing and

administering the program, including referendum costs.

A proposed rule on the Order is published separately in this issue

of the Federal Register.

This proposed rule would add a new subpart which would establish

procedures to be used in the initial referendum required by the Act.

This subpart would be in effect for the referendum period only and

would not be part of the Code of Federal Regulations. The proposed

Order would go into effect only if the Secretary determines that the

Order is approved by no less than a majority of the processors voting

in the referendum and if the majority processed more than 50 percent of

the popcorn certified as having been processed during the