[Federal Register Volume 64, Number 140 (Thursday, July 22, 1999)]
[Proposed Rules]
[Pages 39803-39807]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-18690]


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DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 1218

[FV-99-702-PR]


Blueberry Promotion, Research, and 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 establish procedures which the 
Department of Agriculture (USDA or the Department) will use in 
conducting a referendum to determine whether the issuance of the 
proposed Blueberry Promotion, Research, and Information Order (Order) 
is favored by the blueberry industry. Approval will be determined by 
producers and importers voting for approval who represent a majority of 
the volume of blueberries. These procedures would also be used for any 
subsequent referendum under the Order, if it is approved in the initial 
referendum. The proposal is being published in a separate document. 
This proposed program would be implemented under the Commodity 
Promotion, Research, and Information Act of 1996 (Act).

DATES: Comments must be received by September 20, 1999.

ADDRESSES: Interested persons are invited to submit written comments 
concerning this proposed rule to: Docket Clerk, Research and Promotion 
Branch, Fruit and Vegetable Programs (FV), Agricultural Marketing 
Service (AMS), USDA, Stop 0244, Room 2535-S, 1400 Independence Avenue, 
S.W., Washington, D.C. 20250-0244. Comments should be submitted in 
triplicate and will be made available for public inspection at the 
above address during regular business hours. Comments may also be 
submitted electronically to: [email protected]. All comments 
should reference the docket number and the date and page number of this 
issue of the Federal Register. A copy of this rule may be found at: 
www.ams.usda.gov/fv/rpdocketlist.htm.
    Pursuant to the Paperwork Reduction Act (PRA), send comments 
regarding the accuracy of the burden estimate, ways to minimize the 
burden, including 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. Comments concerning the 
information

[[Page 39804]]

collection under the PRA should also be sent to the Desk Officer for 
Agriculture, Office of Information and Regulatory Affairs, Office of 
Management and Budget, Washington, D.C. 20503.

FOR FURTHER INFORMATION CONTACT: Oliver L. Flake, Research and 
Promotion Branch, Fruit and Vegetable Programs, AMS, USDA, Stop 0244, 
1400 Independence Avenue, S.W., Room 2535-S, Washington, D.C. 20250-
0244; telephone (202) 720-5976 or fax (202) 205-2800.

SUPPLEMENTARY INFORMATION: A referendum will be conducted among 
eligible blueberry producers and importers to determine whether the 
issuance of the proposed Blueberry Promotion, Research, and Information 
Order (Order) (7 CFR Part 1218) is favored by those who would pay 
assessments under the program. Approval will be determined by persons 
voting for approval who represent a majority of the volume of 
blueberries. The Order is authorized under the Commodity Promotion, 
Research, and Information Act of 1996 (Act) [Pub. L. 104-427, 7 U.S.C. 
7401-7425]. It would cover domestic and imported cultivated blueberries 
(hereinafter called blueberries). A proposed Order is being published 
separately in the Federal Register.

Executive Order 12988

    This proposed rule has been reviewed under Executive Order 12988, 
Civil Justice Reform. It is not intended to have retroactive effect. 
Section 524 of the Act provides that the Act shall not affect or 
preempt any other Federal or State law authorizing promotion or 
research relating to an agricultural commodity.
    Under Section 519 of the Act, a person subject to the order may 
file a petition with the Secretary of Agriculture (Secretary) stating 
that the order, any provision of the order, or any obligation imposed 
in connection with the order, is not established in accordance with the 
law, and requesting a modification of the order or an exemption from 
the order. Any petition filed challenging the order, any provision of 
the order or any obligation imposed in connection with the order, shall 
be filed within two years after the effective date of the order, 
provision or obligation subject to challenge in the petition. The 
petitioner will have the opportunity for a hearing on the petition. The 
Act provides that the district court of the United States for any 
district in which the petitioner resides or conducts business shall be 
the jurisdiction to review a final ruling on the petition, if the 
petitioner files a complaint for that purpose not later than 20 days 
after the date of entry of the Secretary's final ruling.

Executive Order 12866

    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.

Regulatory Flexibility Act

    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. The purpose of the RFA is to fit regulatory 
actions to the scale of businesses subject to such action so that small 
businesses will not be disproportionately burdened.
    The Act, which authorizes the Secretary to consider industry 
proposals for generic programs of promotion, research, and information 
for agricultural commodities, became effective on April 4, 1996. The 
Act provides for alternatives within the terms of a variety of 
provisions.
    Paragraph (e) of Section 518 of the Act provides three options for 
determining industry approval of a new research and promotion program: 
(1) By a majority of those voting; (2) by a majority of the volume of 
the agricultural commodity voted in the referendum; or (3) by a 
majority of those persons voting who also represent a majority of the 
volume of the agricultural commodity voted in the referendum. In 
addition, section 518 of the Act provides for referenda to ascertain 
approval of an order to be conducted either prior to its going into 
effect or within three years after assessments first begin under the 
order. The North American Blueberry Council, Inc. (proponent), has 
recommended that the Secretary conduct a referendum in which approval 
of the Order would be based on producers and importers voting for 
approval who represent a majority of the volume of blueberries. The 
proponent also has recommended that a referendum be conducted prior to 
the proposed Order going into effect.
    This proposed rule would establish the procedures under which 
producers and importers may vote on whether they want a blueberry 
promotion, research, and information program to be implemented. 
Blueberry producers and importers of 2,000 pounds or more of 
blueberries annually would be eligible to vote. The proposed order 
provides for an exemption from assessments for producers and importers 
of less than 2,000 pounds of fresh and processed blueberries. This 
proposal would add a new subpart which establishes procedures to 
conduct an initial and future referenda. The proposed subpart covers 
definitions, voting instructions, use of subagents, ballots, the 
referendum report, and confidentiality of information.
    There are approximately 1,287 producers, 200 first handlers, 120 
importers, and 4 exporters of blueberries who would be subject to the 
program. It is estimated that 1,132 producers and 75 importers would be 
eligible to vote in the first referendum. Most of the producers would 
be classified as small businesses under the criteria established by the 
Small Business Administration (SBA) [13 CFR 121.601]. Most importers 
and first handlers would not be classified as small businesses. The SBA 
defines small agricultural handlers as those whose annual receipts are 
less than $5 million, and small agricultural producers are defined as 
those having annual receipts of not more than $500,000 annually.
    According to USDA's National Agricultural Statistics Service 
(NASS), total production of cultivated blueberries was 172.9 million 
pounds in 1997, up 35 percent from the 1996 output. Approximately 70.2 
million pounds of the total were utilized for fresh market sale and 
99.4 million pounds were used for processing (primarily frozen). 
Blueberries are grown in 35 states. Commercial production operations 
are located in Michigan (44 percent), New Jersey (19 percent), Oregon 
(12 percent), Georgia 9 percent), North Carolina (5 percent), 
Washington (5 percent), Indiana and Florida (2 percent each), and all 
other states (2 percent). Farm value for the 1997 cultivated blueberry 
crop was $141 million, compared with $113.6 million a year earlier.
    U.S. frozen blueberry per capita consumption has been declining 
rapidly in recent years, decreasing from 0.38 pounds in 1996 to 0.33 
pounds in 1997. From calendar year 1991 through 1995, U.S. per capita 
consumption of frozen blueberries averaged 0.43 pounds.
    The United States exported 6.3 million pounds of fresh cultivated 
blueberries in 1997, valued at $7.9 million. Canada is the principal 
destination for U.S. exports--accounting for nearly 79 percent of the 
total in 1997. Other key markets included Switzerland (7 percent), the 
United Kingdom (5 percent), and Germany (3 percent). The remaining 
export volume of fresh cultivated blueberries primarily went to other 
European and Asian countries.
    U.S. exports of frozen cultivated blueberries totaled 22.1 million 
pounds

[[Page 39805]]

in 1997 and were valued at $9.9 million. The largest U.S. export market 
is Canada, accounting for 90 percent of the total quantity in 1997. 
Japan was the second largest U.S. market for frozen cultivated 
blueberries, accounting for 8 percent of the total. The remaining 2 
percent of U.S. exports were sent mainly to other Asian and European 
countries.
    In 1997, the United States imported 13.9 million pounds of fresh 
cultivated blueberries worth $10.8 million. Imports from Canada alone 
accounted for 89 percent of the total. Other important fresh cultivated 
blueberry import sources were Chile with 9 percent of the total and New 
Zealand with 2 percent. Small amounts were also imported from Mexico 
and Honduras.
    In 1997, total imports of frozen cultivated blueberries were 9.8 
million pounds and were valued at $8.5 million. The vast majority of 
U.S. frozen blueberry imports (about 96 percent) came from Canada in 
1997. U.S. imports of frozen cultivated blueberries from Chile 
represented 2 percent of the total, while Mexico accounted for 1 
percent of the total. The rest of the 1997 import volume originated 
from the Netherlands, Costa Rica and Colombia.
    This proposed rule provides the procedures under which blueberry 
producers and importers may vote on whether they want the Order to be 
implemented. In accordance with the provisions of the Act, subsequent 
referenda may be conducted, and it is anticipated that the proposed 
procedures would apply. There are approximately 1132 producers and 75 
importers who will be eligible to vote in the first referendum.
    USDA will keep these individuals informed throughout the program 
implementation and referendum process to ensure that they are aware of 
and are able to participate in the program implementation process. USDA 
will also publicize information regarding the referendum process so 
that trade associations and related industry media can be kept 
informed.
    Voting in the referendum is optional. However, if producers and 
importers choose to vote, the burden of voting would be offset by the 
benefits of having the opportunity to vote on whether or not they want 
to be covered by the program.
    The information collection requirements contained in this proposed 
rule are designed to minimize the burden on producers and importers. 
This rule provides for a ballot to be used by eligible producers and 
importers to vote in the referendum. The estimated annual cost of 
providing the information by an estimated 1,132 producers (1,287-155 
exempt producers) would be $556.00 or $.50 per producer and for an 
estimated 75 importers (120-45 exempt importers) would be $37.50 or 
$.50 per importer.
    The Secretary considered requiring eligible voters to vote in 
person at various USDA offices across the country. The Secretary also 
considered electronic voting, but the use of computers is not 
universal, current technology is not reliable enough to ensure that 
electronic ballots would be received in a readable format, and 
technology is insufficient at this time to provide sufficient 
safeguards of voters' confidentiality. Conducting the referendum from 
one central location by mail ballot would be more cost-effective and 
reliable. The Department will provide easy access to information for 
potential voters through a toll-free telephone line. The Department 
will also accept ballots sent by facsimile (fax) machine. A pilot of 
this method was conducted during a recent referendum for another 
program. A fax machine was dedicated to the receipt of ballots.
    There are no federal rules that duplicate, overlap, or conflict 
with this rule.
    We have performed this Initial Regulatory Flexibility Analysis 
regarding the impact of this proposed rule on small entities. However, 
in order to obtain all of the data necessary for a comprehensive 
analysis, we invite comments concerning the potential effects of this 
proposed rule. In particular, we are interested in obtaining more 
information on the number of small entities that may incur benefits or 
costs from the implementation of this proposed rule and information on 
the expected benefits or costs.

Paperwork Reduction Act

    In accordance with the Office of Management and Budget (OMB) 
regulation (5 CFR 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, has been submitted to OMB for approval.
    Title: National Research, Promotion, and Consumer Information 
Programs.
    OMB Number: 0581-0093.
    Expiration Date of Approval: November 30, 2000.
    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 is estimated to average 0.25 hours per response for each 
producer and importer.
    Respondents: Producers and importers.
    Estimated Number of Respondents: 1207.
    Estimated Number of Responses per Respondent: 1 every 5 years 
(0.2).
    Estimated Total Annual Burden on Respondents: 1,208 hours.
    The estimated annual cost of providing the information by an 
estimated 1,132 producers (1,287-155 exempt producers) would be $556.00 
or $.50 per producer and for an estimated 75 importers (120-45 exempt 
importers) would be $37.50 or $.50 per importer.
    The ballot will 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 and whether it will have practical utility; 
(b) the accuracy of USDA's estimate of the burden of the proposed 
collection of information, including the validity of the methodology 
and assumptions 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 collection techniques or other forms 
of information technology.
    Comments concerning the information collection requirements 
contained in this action 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 the USDA Docket Clerk and the OMB 
Desk Officer for Agriculture at the addresses and within the time 
frames specified above. 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.
    OMB is required to make a decision concerning the collection of 
information contained in this rule between 30 and 60 days after 
publication. Therefore, a comment to OMB is best assured of having its 
full effect if OMB receives it within 30 days of publication.

[[Page 39806]]

Background

    The Act authorizes the Secretary, under generic authority, to 
establish agricultural commodity research and promotion orders. The 
North American Blueberry Council, Inc. (proponent) has requested the 
establishment of a Blueberry Promotion, Research, and Information Order 
(Order) pursuant to the Act. The proposed Order would provide for the 
development and financing of an effective and coordinated program of 
promotion, research, and information for fresh and processed 
blueberries. The program would be funded by an assessment levied on 
producers (to be collected by handlers) and importers (to be collected 
by the U.S. Customs Service at time of entry into the United States) at 
a rate of $12 per ton. In the proposed Order, blueberries are defined 
as cultivated blueberries grown in or imported into the United States 
of the genus Vaccinium Corymbosum and Ashei, including the northern 
highbush, southern highbush, and rabbit eye varieties, and excluding 
the lowbush (native) blueberry Vaccinium Angustifolium.
    Assessments would be used to pay for promotion, research, and 
consumer information; administration, maintenance, and functioning of 
the U.S.A. Blueberry Council; and expenses incurred by the Secretary in 
implementing and administering the Order, including referendum costs.
    Section 518 of the Act requires that a referendum be conducted 
among eligible blueberry producers and importers to determine whether 
they favor the Order. In addition, section 518 of the Act provides for 
referenda to ascertain approval of an order to be conducted either 
prior to its going into effect or within three years after assessments 
first begin under the order. According to a proposed rule that is 
published separately in this issue of the Federal Register, the Order 
would become effective if it is approved during the initial referendum, 
which will be held before the program is implemented. Approval will be 
determined by producers and importers voting for approval who represent 
a majority of the volume of blueberries. Producers and importers of 
2,000 pounds or more of blueberries annually will be eligible to vote.
    This proposed rule establishes the procedures under which producers 
and importers may vote on whether they want the blueberry promotion, 
research, and information program to be implemented. There are 
approximately 1207 eligible voters.
    This proposed rule would add a new subpart which would establish 
procedures to be used in this and future referenda.
    The 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 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 the blueberry industry.

List of Subjects in 7 CFR Part 1218

    Administrative practice and procedure, Advertising, Blueberries, 
Consumer information, Marketing agreements, 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:

PART 1218--BLUEBERRY PROMOTION, RESEARCH, AND INFORMATION ORDER

    1. The authority citation for part 1218 continues to read as 
follows:

    Authority: 7 U.S.C. 7401-7425.

    2. Subpart B is added to proposed part 1218 to read as follows:

Subpart B--Procedure for the Conduct of Referenda in Connection with 
the Blueberry Promotion, Research, and Information Order

Sec.
1218.100  General.
1218.101  Definitions.
1218.102  Voting.
1218.103  Instructions.
1218.104  Subagents.
1218.105  Ballots.
1218.106  Referendum report.
1218.107  Confidential information.

Subpart B--Procedure for the Conduct of Referenda in Connection 
with the Blueberry Promotion, Research, and Information Order


Sec. 1218.100  General.

    Referenda to determine whether eligible blueberry producers and 
importers favor the issuance, amendment, suspension, or termination of 
the Blueberry Promotion, Research, and Information Order shall be 
conducted in accordance with this subpart.


Sec. 1218.101  Definitions.

    (a) Administrator means the Administrator of the Agricultural 
Marketing Service, with power to redelegate, or any officer or employee 
of the U.S. Department of Agriculture to whom authority has been 
delegated or may hereafter be delegated to act in the Administrator's 
stead.
    (b) Blueberries means cultivated blueberries grown in or imported 
into the United States of the genus Vaccinium Corymbosum and Ashei, 
including the northern highbush, southern highbush, and rabbit eye 
varieties, and excluding the lowbush (native) blueberry Vaccinium 
Angustifolium.
    (c) Eligible importer means any person who imported 2,000 pounds or 
more of fresh or processed blueberries, that are identified by the 
numbers 0810.40.0028 and 0811.90.2028, respectively, in the Harmonized 
Tariff Schedule of the United States or any other numbers used to 
identify fresh and frozen blueberries. 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 
blueberries 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 blueberries from the U.S. Customs Service when 
such blueberries are entered or withdrawn for consumption in the United 
States.
    (d) Eligible producer means any person who produced 2,000 pounds or 
more of blueberries in the United States during the representative 
period who:
    (1) Owns, or shares the ownership and risk of loss of, the crop;
    (2) Rents blueberry production facilities and equipment resulting 
in the ownership of all or a portion of the blueberries produced;
    (3) Owns blueberry production facilities and equipment but does not 
manage them and, as compensation, obtains the ownership of a portion of 
the blueberries produced; or
    (4) Is a party in a landlord-tenant relationship or a divided 
ownership arrangement involving totally independent entities 
cooperating only to produce blueberries who share the risk of loss and 
receive a share of the blueberries produced. No other acquisition of 
legal title to blueberries shall be deemed to result in persons 
becoming eligible producers.
    (e) Order means the Blueberry Promotion, Research, and Information 
Order.
    (f) Person means any individual, group of individuals, partnership, 
corporation, association, cooperative, or any other legal entity. For 
the purpose of this definition, the term

[[Page 39807]]

``partnership'' includes, but is not limited to:
    (1) A husband and a wife who have title to, or leasehold interest 
in, a blueberry farm 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 an 
agreement, informal or otherwise, contributed land and others 
contributed capital, labor, management, or other services, or any 
variation of such contributions by two or more parties.
    (g) Processed blueberries means blueberries which have been frozen, 
dried, pureed, or made into juice.
    (h) Referendum agent or agent means the individual or individuals 
designated by the Secretary to conduct the referendum.
    (i) Representative period means the period designated by the 
Secretary.
    (j) United States means collectively the 50 states, the District of 
Columbia, the Commonwealth of Puerto Rico, and the territories and 
possessions of the United States.


Sec. 1218.102  Voting.

    (a) Each person who is an eligible producer or an eligible 
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 blueberries, 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 or an eligible entity may cast a ballot on behalf 
of such entity. Any individual so voting in a referendum shall certify 
that such individual is an officer or employee of the eligible entity, 
or an administrator, executive, or trustee of an eligible 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 or by facsimile, as 
instructed by the Secretary.


Sec. 1218.103  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 period during which ballots may be cast.
    (b) Provide ballots and related material to be used in the 
referendum. The ballot 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.
    (c) Give reasonable 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 
proposed Order. No person who claims to be eligible to vote shall be 
refused a ballot.
    (e) 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 a third party authorized to monitor the referendum process.
    (f) Prepare a report on the referendum.
    (g) Announce the results to the public.


Sec. 1218.104  Subagents.

    The referendum agent may appoint any individual or individuals 
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. 1218.105  Ballots.

    The referendum agent and subagents shall accept all ballots cast. 
However, if an agent or subagent deems 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 this subpart shall not be 
counted.


Sec. 1218.106  Referendum report.

    Except as otherwise directed, the referendum agent shall prepare 
and submit to the Administrator a report on the results of the 
referendum, the manner in which it was conducted, the extent and kind 
of public notice given, and other information pertinent to the analysis 
of the referendum and its results.


Sec. 1218.107  Confidential information.

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

    Dated: July 16, 1999.
Robert C. Keeney, Deputy Administrator,
Fruit and Vegetable Programs
[FR Doc. 99-18690 Filed 7-21-99; 8:45 am]
BILLING CODE 3410-02-P