[Federal Register Volume 60, Number 196 (Wednesday, October 11, 1995)]
[Rules and Regulations]
[Pages 52835-52838]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-25165]



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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 

[[Page 52836]]
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]
BILLING CODE 3410-02-P