[Federal Register Volume 61, Number 190 (Monday, September 30, 1996)]
[Proposed Rules]
[Pages 51055-51058]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-25002]


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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 
representative period by the processors voting.
    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.
    All written comments received in response to this proposed rule by 
the date specified herein will be considered prior to finalizing this 
action. We encourage the industry to pay particular attention to the 
definitions to be sure that they are appropriate for popcorn 
processors.

List of Subjects in 7 CFR Part 1215

    Administrative practice and procedure, Advertising, Consumer 
information, Marketing agreements, Popcorn, Promotion, Reporting and 
recordkeeping requirements.

    For the reasons set forth in the preamble, it is proposed that 
Title 7, chapter XI of the Code of Federal Regulations be amended as 
follows:
    1. In proposed part 1215, subpart C is added to read as follows:

PART 1215--POPCORN PROMOTION, RESEARCH, AND CONSUMER INFORMATION 
ORDER

* * * * *
Subpart C--Procedure for the Conduct of Referenda in Connection With 
the Popcorn Promotion, Research, and Consumer Information Order
Sec.
1215.500  General.
1215.501  Definitions.
1215.502  Voting.
1215.503  Instructions.
1215.504  Subagents.
1215.505  Ballots.
1215.506  Referendum report.
1215.507  Confidential information.

    Authority: 7 U.S.C. 7481-7491.

Subpart C--Procedure for the Conduct of Referenda in Connection 
With the Popcorn Promotion, Research, and Consumer Information 
Order


Sec. 1215.500  General.

    A referendum to determine whether eligible processors favor the 
issuance of the Order shall be conducted in accordance with these 
procedures.


Sec. 1215.501  Definitions.

    Unless otherwise defined below, the definitions of terms used in 
these procedures shall have the same meaning as the definitions in the 
Order.
    (a) 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.
    (b) Order means the Popcorn Promotion, Research, and Consumer 
Information Order.
    (c) Referendum agent or subagent means the individual or 
individuals designated by the Secretary to conduct the referendum.
    (d) Representative period means the period designated by the 
Secretary.
    (e) 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:
    (1) A husband and wife who have title to, or leasehold interest in, 
processing facilities and equipment as tenants in common, joint 
tenants, tenants by the entirety, or, under community property laws, as 
community property, and
    (2) 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 processing of popcorn and the authority to transfer 
title to the popcorn so processed.

[[Page 51058]]

    (f) Eligible processor means any person who processes over 4 
million pounds of popcorn during the representative period and who:
    (1) Owns or shares in the ownership of processing facilities and 
equipment resulting in the ownership of the popcorn process;
    (2) Rents processing facilities and equipment resulting in the 
ownership of all or a portion of the popcorn processing;
    (3) Owns processing facilities and equipment but does not manage 
them and, as compensation, obtains the ownership of a portion of the 
popcorn processing; or
    (4) Is a party in a landlord-tenant relationship or a divided 
ownership arrangement involving totally independent entities 
cooperating only to process popcorn who share the risk of loss and 
receive a share of the popcorn processing. No other acquisition of 
legal title to popcorn shall be deemed to result in persons becoming 
eligible processors.


Sec. 1215.502  Voting.

    (a) Each person who is an eligible processor as defined in this 
subpart, at the time of the referendum and during the representative 
period, shall be entitled to cast only one ballot in the referendum. 
However, each processor in a landlord-tenant relationship or a divided 
ownership arrangement involving totally independent entities 
cooperating only to process popcorn, in which more than one of the 
parties is a processor, shall be entitled to cast one ballot in the 
referendum covering only such processor's share of the ownership.
    (b) Proxy voting is not authorized, but an officer or employee of 
an eligible corporate processor or an administrator, executor, or 
trustee of an eligible processing entity may cast a ballot on behalf of 
such processing entity. Any individual so voting in a referendum shall 
certify that such individual is an officer or employee of the eligible 
processor, or an administrator, executor, or trustee of an eligible 
processing 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) All ballots are to be cast by mail.


Sec. 1215.503  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:
    (a) Prepare ballots and related material to be used in the 
referendum. Ballot material shall provide for recording essential 
information including that needed for ascertaining:
    (1) Whether the person voting, or on whose behalf the vote is cast, 
is an eligible voter, and
    (2) The total volume of popcorn processed by the voting processor 
during the representative period.
    (b) Give reasonable advance public notice of the referendum by 
utilizing available media or public information sources, without 
incurring advertising expense, to publicize the dates, method of 
voting, eligibility requirements, and other pertinent information. Such 
sources of publicity may include, but are not limited to, print and 
radio and such other means as the agent may deem advisable.
    (c) Mail to each eligible processor 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.
    (d) 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.
    (e) Prepare a report on the referendum.
    (f) Announce the results to the public.


Sec. 1215.504  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.


Sec. 1215.505  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.


Sec. 1215.506  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.


Sec. 1215.507  Confidential information.

    The ballots and other information or reports that reveal, or tend 
to reveal, the vote of any processor in the referendum shall be held 
strictly confidential and shall not be disclosed.

    Dated: September 24, 1996.
Robert C. Keeney,
Director, Fruit and Vegetable Division.
[FR Doc. 96-25002 Filed 9-27-96; 8:45 am]
BILLING CODE 3410-02-P