[Federal Register Volume 62, Number 246 (Tuesday, December 23, 1997)]
[Rules and Regulations]
[Pages 66973-66977]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-32812]


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DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 1209

[FV-97-705IFR]


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

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Interim final rule with request for comments.

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SUMMARY: This rule provides procedures which the Department of 
Agriculture (Department) will use in conducting the referendum to 
determine whether

[[Page 66974]]

mushroom producers and importers favor continuance of the Mushroom 
Promotion, Research, and Consumer Information Order (Order). In order 
to continue, the Order must be approved by a simple majority of 
producers and importers voting in the referendum and that majority must 
represent more than 50 percent of the mushrooms produced and imported 
by those voting in the referendum. These procedures will also apply to 
any subsequent referenda to amend, continue, or terminate the order.

EFFECTIVE DATE: December 24, 1997. Comments must be received by January 
22, 1998.

ADDRESSES: Interested persons are invited to submit written comments 
concerning this proposed rule to: Research and Promotion Branch, Fruit 
and Vegetable Division, Agricultural Marketing Service (AMS), 1400 
Independence Avenue, Room 2535-S, Stop Code 0244, Washington, DC 20250-
0244, fax: (202) 205-2800. Three copies of all materials should be 
submitted, and they will be made available for public inspection at the 
Research and Promotion Branch during regular business hours. All 
comments should reference the docket number and the date and page 
number of this issue of the Federal Register.

FOR FURTHER INFORMATION CONTACT: Stacey L. Bryson, Research and 
Promotion Branch, Fruit and Vegetable Programs, AMS, USDA, 1400 
Independence Avenue, Room 2535-S, Stop Code 0244, Washington, DC 20250-
0244, telephone (202) 720-6930 or (888) 720-9917.

SUPPLEMENTARY INFORMATION: This rule is issued under the Mushroom 
Promotion, Research, and Consumer Information Act of 1990 (7 U.S.C. 
6107-6112), hereinafter referred to as the Act.

    This rule provides the procedures under which the referendum will 
be conducted.

Executive Order 12988

    This rule has been reviewed under Executive Order 12988, Civil 
Justice Reform. It is not intended to have retroactive effect. Section 
1930 of the Act provides that nothing in the Act may be construed to 
preempt or supersede any other program relating to mushroom promotion, 
research, consumer information, or industry information 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 Sec. 1927 of the Act, 
after an Order is implemented, a person subject to the Order may file a 
petition with the Secretary of Agriculture (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

Paperwork Reduction 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 has examined the impact of this rule on small 
entities.
    The Act became effective on November 20, 1990. The Order, which is 
authorized under the Act, became effective on January 8, 1993.
    Section 1926 of the Act provides that the Secretary shall conduct a 
referendum effective 5 years after the date on which the Order became 
effective. The referendum must be conducted among mushroom producers 
and importers to ascertain whether they favor continuation, 
termination, or suspension of the Order. Paragraph (b)(2) of Sec. 1926 
of the Act requires that the Order be approved by a majority of 
producers and importers voting in the referendum which majority, on 
average, annually produces and imports into the United States more than 
50 percent of mushrooms annually produced and imported by all those 
persons voting in the referendum.
    There are approximately 134 producers and 4 importers of fresh 
mushrooms covered by the program. Small agricultural service firms, 
which will include the importers who will vote in the referendum, have 
been defined by the Small Business Administration (SBA) (13 CFR 
121.601) as those whose annual receipts are less than $5 million and 
small agricultural producers as those having annual receipts of 
$500,000. Only one importer has been identified to have $5 million in 
annual sales. In addition, there are 134 producers at or over the 
$500,000 annual sales receipts threshold. Therefore, it could be 
concluded that a majority of producers and importers are not considered 
small businesses.
    The total volume of mushroom sales in the United States during the 
1996-97 production year (July 1, 1996, through June 30, 1997) was 776.7 
million pounds (553.8 million pounds for the fresh market and 222.9 
million pounds for the processed market). The value of sales for the 
crop was $765.8 million. Historically, Pennsylvania produced 45 percent 
of total volume of sales, followed by California with 17 percent, 
Florida with 5 percent, Ohio with 2 percent, and Michigan with 2 
percent. Eighteen other States account for the remainder.
    U.S. fresh market exports of mushrooms totaled 5.3 million pounds 
from July 1996 through June 1997, with a value of $20 million. Canada 
was the principal destination, accounting for about 74 percent of the 
poundage and about 38 percent of the value of U.S. exports. Japan 
accounted for 14 percent of the quantity exported, and 40 percent of 
the value of exports.
    Fresh mushroom imports into the United States for the same period 
were about 5.1 million pounds, with a value of about $12.1 million. 
About 82 percent of that poundage and 86 percent of the value came from 
Canada, and about 10 percent of the poundage and about 5 percent of the 
value came from the People's Republic of China.
    This rule provides the procedures under which mushroom producers 
and importers may vote on whether they want the mushroom promotion and 
research program to continue. Such a referendum is required by the Act. 
There are approximately 138 eligible voters. In addition, these 
procedures will apply to any subsequent referenda to amend, continue, 
or terminate the order.
    The Department will keep all of these individuals informed 
throughout the referendum process to ensure that they are aware of and 
are able to participate. In addition, trade associations and related 
industry media will receive news releases and other information 
regarding the referendum.
    Voting in the referendum is optional. However, if producers and 
importers choose to vote, the burden of voting will be offset by the 
benefits of having the opportunity to vote on whether they want the 
program to continue or not.
    The Department considered requiring eligible voters to vote in 
person at various Department offices across the

[[Page 66975]]

country. However, conducting the referendum from one central location 
is more cost effective for this program. In addition, the Department 
will accept ballots sent by fax as well as by mail. The fax number to 
be used will be published soon in the referendum order. The Department 
will provide easy access to information for potential voters through a 
toll free telephone line.
    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 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 138 
producers and importers who will be eligible to vote in the referendum. 
It will take an average of 15 minutes for each voter to read the voting 
instructions and complete the referendum ballot. The total burden on 
the total number of voters will be 34.5 hours.
    The Department has not identified any relevant Federal rules that 
duplicate, overlap, or conflict with this rule.

Background

    The Act authorized the Secretary to establish a national mushroom 
promotion, research, and consumer information program. The program is 
funded by an assessment levied on producers and importers of more than 
500,000 pounds annually. Each producers and importer covered by the 
program pays an assessment of 0.45 cents per pound of fresh mushrooms.
    Assessments are used to pay for: research, promotion, and consumer 
information; administration, maintenance, and functioning of the Board; 
and expenses incurred by the Secretary in implementing and 
administering the Order, including referendum costs.
    Section 1926 of the Act provides that the Secretary of Agriculture 
(Secretary) shall conduct a referendum effective 5 years after the date 
on which the Order became effective. The Order became effective on 
January 8, 1993. The referendum must be conducted among mushroom 
producers and importers to ascertain whether they favor continuation, 
termination, or suspension of the Order. Paragraph (b)(2) of Sec. 1926 
of the Act requires that the Order be approved by a majority of 
producers and importers voting in the referendum which majority, on 
average, annually produces and imports into the United States more than 
50 percent of mushrooms annually produced and imported by all those 
persons voting in the referendum. Only mushroom producers and importers 
who either produced or imported, on average, over 500,000 pounds of 
mushrooms annually during the representative period will be eligible to 
vote in the referendum. Producers and importers will be required to 
certify the pounds of mushrooms they either produced or imported during 
the representative period.
    In accordance with Sec. 1923 of the Act, a producer is defined in 
the Order as any person engaged in the production of mushrooms who owns 
or shares the ownership and risk of loss of such mushrooms and who 
produces, on average, over 500,000 pounds of mushrooms per year. 
Importer is defined as any person who imports, on average, over 500,000 
pounds of mushrooms annually from outside the United States.
    This rule provides the procedures under which mushroom producers 
and importers may vote on whether they want the mushroom promotion and 
research program to continue. There are approximately 138 eligible 
voters. These procedures are similar to those published (57 FR 31948) 
prior to the mushroom order going into effect. This interim final rule, 
however, provides that ballots are to be cast only by mail or fax and 
not at polling places.
    Persons voting in a referendum will certify their eligibility to 
vote and will designate their status as either a mushroom producer or 
importer. Producers and importers will be required to certify the 
pounds of mushrooms they either produced or imported during the 
representative period. The representative period will be announced in a 
referendum order at a later date.
    This rule will add a new subpart which establishes procedures to be 
used in a referendum. This subpart covers definitions, voting, 
instructions, use of subagents, ballots, the referendum report, and 
confidentiality of information.
    All written comments received in response to this rule by the date 
specified herein will be considered prior to finalizing this action.
    After consideration of all relevant material, it is found that the 
order provisions subject to this action tend to effectuate the declared 
policy of the Act.
    Pursuant to the provisions in 5 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 action into effect and that good cause exists for not 
postponing the effective date of this rule until 30 days after 
publication in the Federal Register, because: (1) This action provides 
procedures to be used in connection with the referendum which will take 
place in early 1998; (2) the Act requires that a referendum be 
conducted 5 years after the date on which an order became effective; 
(3) these procedures are very similar to procedures used in other 
programs and to the procedures used for the initial referendum on the 
mushroom program; and (4) the 30-day comment period will provide 
interested persons sufficient time to comment prior to the issuance of 
a final rule.

List of Subjects in 7 CFR Part 1209

    Administrative practice and procedure, Advertising, Agricultural 
research, Marketing agreements, Mushrooms, Reporting and recordkeeping 
requirements.

    For the reasons set forth in the preamble, Title 7, chapter XI of 
the Code of Federal Regulations is amended as follows:

PART 1209--MUSHROOM PROMOTION, RESEARCH, AND CONSUMER INFORMATION 
ORDER

    1. The authority citation for part 1209 continues to read as 
follows:

    Authority: 7 U.S.C. 6101-6112.

    2. In part 1209, subpart C is added to read as follows:

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

Sec.
1209.300  General.
1209.301  Definitions.
1209.302  Voting.
1209.303  Instructions.
1209.304  Subagents.
1209.305  Ballots.
1209.306  Referendum report.
1209.307  Confidential information.


Sec. 1209.300  General.

    A referendum to determine whether eligible producers and importers 
favor continuation of the Mushroom Promotion, Research, and Consumer 
Information Order shall be conducted in accordance with these 
procedures.


Sec. 1209.301  Definitions.

    Unless otherwise defined below, the definition 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

[[Page 66976]]

the Department to whom authority has been delegated or may hereafter be 
delegated to act in the Administrator's stead.
    (b) Order means the Mushroom Promotion, Research, and Consumer 
Information Order, including an amendment to the Order.
    (c) Referendum agent or agent 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, 
mushroom production 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 production or importation of fresh mushrooms and the 
authority to transfer title to the mushrooms so produced or imported.
    (f) Eligible producer means any person or entity defined as a 
producer who produces, on average, over 500,000 pounds annually of 
fresh mushrooms during the representative period and who:
    (1) Owns or shares in the ownership of mushroom production 
facilities and equipment resulting in the ownership of the mushrooms 
produced;
    (2) Rents mushroom production facilities and equipment resulting in 
the ownership of all or a portion of the mushrooms produced;
    (3) Owns mushroom production facilities and equipment but does not 
manage them and, as compensation, obtains the ownership of a portion of 
the mushrooms produced; or
    (4) Is a party in a landlord-tenant relationship or a divided 
ownership arrangement involving totally independent entities 
cooperating only to produce mushrooms who share the risk of loss and 
receive a share of the mushrooms produced. No other acquisition of 
legal title to mushrooms shall be deemed to result in persons becoming 
eligible producers.
    (g) Eligible importer means any person or entity defined as an 
importer who imports, on average, over 500,000 pounds annually of fresh 
mushrooms 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 
mushrooms 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 mushrooms from the U.S. Customs Service when such 
mushrooms are entered or withdrawn for consumption in the United 
States.


Sec. 1209.302  Voting.

    (a) Each person who is an eligible producer or importer, 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 producer in a landlord-tenant relationship or 
a divided ownership arrangement involving totally independent entities 
cooperating only to produce mushrooms, 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.
    (b) Proxy voting is not authorized, but an officer or employee of 
an eligible corporate producer or importer, or an administrator, 
executor, or trustee of an eligible producing or importing entity may 
cast a ballot on behalf of such producer or importer entity. Any 
individual so voting in a referendum shall certify that such individual 
is an officer or employee of the eligible producer or importer, or an 
administrator, executor, or trustee of an eligible producing 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) Ballots are to be cast by mail or fax.


Sec. 1209.303  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 procedure to be followed by 
the referendum agent. Such agent shall:
    (a) Determine the time of commencement and termination of the 
period during which ballots may be cast.
    (b) Provide 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;
    (2) The total volume of mushrooms produced by the voting producer 
during the representative period; and
    (3) The total volume of mushrooms imported by the voting importer 
during the representative period.
    (c) Give reasonable advance public notice of the referendum:
    (1) 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
    (2) By such other means as the agent may deem advisable.
    (d) Mail to eligible producers and importers, whose names and 
addresses are known to the referendum agent, the instructions on 
voting, a ballot, and a summary of the terms and conditions of the 
Order. No person who claims to be eligible to vote shall be refused a 
ballot.
    (e) Collect and safeguard ballots received by fax.
    (f) At the end of the voting period, collect, open, number, and 
review the ballots and tabulate the results.
    (g) Prepare a report on the referendum.
    (h) Prepare an announcement of the results for the public.


Sec. 1209.304  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 or all of the functions which, 
in the absence of such appointment, shall be performed by the agent.


Sec. 1209.305  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.

[[Page 66977]]

Ballots invalid under this subpart shall not be counted.


Sec. 1209.306  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. 1209.307  Confidential information.

    The ballots and other information or reports that reveal, or tend 
to reveal, the identity or vote of any person covered under the Act 
shall be held confidential and shall not be disclosed.

    Dated: December 11, 1997.
Sharon Bomer Lauritsen,
Associate Deputy Administrator, Fruit and Vegetable Programs.
[FR Doc. 97-32812 Filed 12-22-97; 8:45 am]
BILLING CODE 3410-02-P