[Federal Register Volume 65, Number 31 (Tuesday, February 15, 2000)]
[Rules and Regulations]
[Pages 7652-7656]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-3404]



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Part III





Department of Agriculture





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Agricultural Marketing Service



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7 CFR Part 1218



Blueberry Promotion, Research, and Information Order; Referendum 
Procedures; Final Rule



Proposed Blueberry Promotion, Research, and Information Order; Proposed 
Rule

  Federal Register / Vol. 65, No. 31 / Tuesday, February 15, 2000 / 
Rules and Regulations  

[[Page 7652]]


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DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 1218

[FV-99-702-FR]


Blueberry Promotion, Research, and Information Order; Referendum 
Procedures

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Final rule.

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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. The Order will be implemented if 
it is approved by a majority of producers and importers who also 
represent a majority of the volume of blueberries represented in the 
referendum. These procedures would also be used for any subsequent 
referendum under the Order, if it is approved in the initial 
referendum. The Order 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: This final rule is effective February 16, 2000.

FOR FURTHER INFORMATION CONTACT: Oliver L. Flake, Research and 
Promotion Branch, Fruit and Vegetable Programs, AMS, USDA, Stop 0244, 
1400 Independence Avenue, SW, 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. The Order will be implemented if it is 
approved by a majority of producers and importers voting for approval 
who also represent a majority of the volume of blueberries represented 
in the referendum. 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 final 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. Approval of the 
Order would be based on a majority of producers and importers voting 
for approval who also represent a majority of the volume of blueberries 
represented in the referendum. The proponent also has recommended that 
a referendum be conducted prior to the proposed Order going into 
effect.
    This rule establishes 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 action will add a new subpart 
which establishes procedures to conduct an initial and future 
referenda. The subpart covers definitions, voting instructions, use of 
subagents, ballots, the referendum report, and confidentiality of 
information.
    There are approximately 2,000 producers, 200 first handlers, 50 
importers, and 4 exporters of blueberries who would be subject to the 
program. It is estimated that 1,818 producers and 32 importers would be 
eligible to vote in the first referendum. These figures have been 
revised since publication of the proposed rule. This revision is based 
upon more current information from a comment received concerning the 
proposed Order. That comment is discussed in the proposed rule for the 
Order which is published separately in this issue of the Federal 
Register.
    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.

[[Page 7653]]

    According to USDA's National Agricultural Statistics Service, 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 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 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 these procedures 
would apply. There are approximately 1,818 producers and 32 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 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 1,818 producers (2,000-182 exempt 
producers) would be $909.00 or $.50 per producer and for an estimated 
32 importers (50-18 exempt importers) would be $16.00 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.
    There are no federal rules that duplicate, overlap, or conflict 
with this rule.

Paperwork Reduction Act

    In accordance with the Office of Management and Budget (OMB) 
regulation (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, 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: 1850.
    Estimated Number of Responses per Respondent: 1 every 5 years 
(0.2).
    Estimated Total Annual Burden on Respondents: 92.5 hours.
    The estimated annual cost of providing the information by an 
estimated 1,818 producers (2,000-182 exempt producers) would be $909.00 
or $.50 per producer and for an estimated 32 importers (50-18 exempt 
importers) would be $16.00 or $.50 per importer.
    The ballot will be added to the other information collections 
approved for use under OMB Number 0581-0093.
    In the proposed rule published on July 22, 1999, comments were 
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.
    The number of respondents and burden have been changed to reflect

[[Page 7654]]

more current information provided in a comment received concerning the 
proposed Order. This comment is discussed in the proposed rule for the 
Order which is published separately in this issue of the Federal 
Register.

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, rabbit eye varieties, any hybrid, and 
excluding the lowbush (native) blueberry Vaccinium Angustifolium.
    Assessments would be used to pay for promotion, research, and 
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 published 
separately in this issue of the Federal Register, the Order will become 
effective if it is approved during the initial referendum, which will 
be held before the program is implemented. The program will be 
implemented if it is approved by a majority of producers and importers 
voting for approval who also represent a majority of the volume of 
blueberries represented in the referendum. Producers and importers of 
2,000 pounds or more of blueberries annually will be eligible to vote.
    This 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 1,850 eligible voters.
    This 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.
    A proposed rule on the Order was published in the July 22, 1999, 
issue of the Federal Register (64 FR 39790). On the same date, a 
proposed rule was published on the referendum procedures (64 FR 39803). 
While no comments were received referencing this proposed rule, changes 
have been made to the estimates of the numbers of producers and 
importers and the information collection burden based upon more current 
information provided in a comment to the proposed Order.
    In addition to estimate changes, the Department has revised the 
referendum requirements. The proponent had recommended that the Order 
be implemented if approved by producers and importers representing a 
majority of the volume of blueberries represented in the referendum. 
The Department will keep this requirement but add a second requirement. 
In order to be implemented, the Order must also be approved by a 
majority of the voters in the referendum. The majority of the persons 
to be covered by the proposed program are small producers. This change 
was made in order to ensure that these small producers have fair input 
into the outcome of the referendum. In addition, this change would 
further the goals of the Secretary's Small Farm Initiative without 
harming the interests of the larger growers.
    Pursuant to the provisions in 5 U.S.C. 553, it is found and 
determined that good cause exists for not postponing the effective date 
of this action until 30 days after publication in the Federal Register 
because: (1) A proposed rule with request for comments was published in 
the Federal Register and no comments were received; (2) it is necessary 
to have these procedures in place in order to conduct the referendum in 
February 2000 prior to the beginning of the 2000 crop year; and (3) no 
useful purpose will be served by a delay of the effective date.

List of Subjects in 7 CFR Part 1218

    Administrative practice and procedure, Advertising, Blueberries, 
Consumer Information, Marketing agreements, Blueberry promotion, 
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:
    1. Part 1218 is added to read as follows:

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

Subpart A--[Reserved]

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.

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

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, rabbit eye 
varieties, and any hybrid, 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

[[Page 7655]]

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 ``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.

[[Page 7656]]

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: February 9, 2000.
Robert C. Keeney,
Deputy Administrator, Fruit and Vegetable Programs.
[FR Doc. 00-3404 Filed 2-14-00; 8:45 am]
BILLING CODE 3410-02-P