[Federal Register Volume 66, Number 135 (Friday, July 13, 2001)]
[Proposed Rules]
[Pages 36886-36890]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-17428]


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DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 1219

[FV-01-706-PR]


Hass Avocado Promotion, Research, and Information Order; Subpart 
B--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 Hass Avocado Promotion, Research, and Information Order 
(Order) is favored by the producers and importers of Hass avocados. The 
Order will be implemented if it is approved by a simple majority of the 
producers and importers voting 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 proposed Order is being 
published in a separate document. This proposed program would be 
implemented under the Hass Avocado Promotion, Research, and Information 
Act of 2000.

DATES: Comments must be received by August 27, 2001.

ADDRESSES: Interested persons are invited to submit written comments 
concerning this proposed rule to: Docket Clerk, Research and Promotion 
Branch (RP), Fruit and Vegetable Programs (FV), Agricultural Marketing 
Service (AMS), USDA, Stop 0244, Room 2535-S, 1400 Independence Avenue, 
SW., Washington, DC 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 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, DC 20503.

FOR FURTHER INFORMATION CONTACT: Julie A. Morin, RP, FV, AMS, USDA, 
Stop 0244, 1400 Independence Avenue, SW., Room 2535-S, Washington, DC 
20250-0244; telephone (202) 720-6930 or fax (202) 205-2800, or 
[email protected].

SUPPLEMENTARY INFORMATION: A referendum will be conducted among 
eligible producers and importers of Hass avocados to determine whether 
they favor issuance of the proposed Hass Avocado Promotion, Research, 
and Information Order (Order) [7 CFR Part 1218]. The program will be 
implemented if it is approved by a simple majority of the producers and 
importers voting in the referendum. The Order is authorized under the 
Hass Avocado Promotion, Research, and Information Act of 2000 (Act) 
[Pub. L. 106-387, 7 U.S.C. 7801-7813]. It would cover domestic and 
imported Hass avocados. A proposed Order is being published separately 
in the Federal Register.

Question and Answer Overview

Why Are These Referendum Procedures Being Proposed?

    USDA will conduct rulemaking and a national referendum on the 
Order. In order to conduct the referendum, procedures need to be 
established. Publishing this proposed rule provides the opportunity for 
public input on the procedures before they are finalized.

How Long Do I Have To Comment on the Proposed Rule?

    You have 45 days to submit written comments to USDA on the proposed 
procedures or to OMB on the paperwork burden associated with the 
procedures. You may submit your comments by mail, fax, or e-mail as 
indicated above.

Who Is Eligible To Vote in the Referendum?

    Each eligible producer, handler, and importer will be allowed one 
vote in the referendum. In order to be implemented, the amendment must 
be approved by a majority of the producers and importers voting in the 
referendum.

When Will the Referendum Be Held?

    After we have analyzed the comments on this proposed rule, we will 
issue final referendum procedures. The voting period will last 30 days 
and be announced 30 days in advance.

How Can I Vote in the Referendum?

    Voting will take place by mail. All known eligible producers and 
importers will receive a ballot and voting instructions in the mail 
from USDA. Producers and importers who believe they are eligible to 
vote and who do not receive a ballot in the mail may request a ballot 
by calling a toll-free telephone number. The ballot must be received by 
USDA by the close of business on the last day of the voting period.

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 1212 of the Act states that the Act may not be construed to 
preempt or supersede any other program relating to Hass avocado 
promotion, research, industry information, and consumer information 
organized under the laws of the United States or of a state.
    Under Section 1207 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.

[[Page 36887]]

Regulatory Flexibility Act

    In accordance with the Regulatory Flexibility Act (RFA) [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 implement a research and 
promotion program covering domestic and imported Hass avocados, became 
effective on October 23, 2000.
    This proposed rule would establish the procedures under which 
producers and importers may vote on whether they want a national 
promotion, research, and information program to be implemented for Hass 
avocados. Producers and importers of Hass avocados who have produced or 
imported Hass avocados for at least one year prior to the referendum 
would be eligible to vote. This proposal would add a new subpart which 
establishes procedures to conduct the initial and future referenda. The 
proposed subpart covers definitions, voting instructions, use of 
subagents, ballots, the referendum report, and confidentiality of 
information.
    According to industry sources, there are approximately 6,000 
producers and 200 importers who will vote in the referendum.
    The Small Business Administration [13 CFR 121.201] defines small 
agricultural producers as those having annual receipts of $500,000 or 
less annually and small agricultural service firms as those having 
annual receipts of $5 million or less. Importers would be considered 
agricultural service firms. Using these criteria, most producers and 
importers would be considered small businesses. On August 6, 2001, the 
threshold for small agricultural producers will be increased to 
$750,000. This increase has little import on the determination of 
whether those covered by the program would be considered small 
businesses.
    The Act authorizes assessments on fresh, frozen, and processed Hass 
avocados. However, initially only fresh Hass avocados will be assessed. 
Therefore, only producers and importers of fresh Hass avocados are 
covered by this proposed rule.
    California is the source for over 95 percent of the Hass avocados 
produced in the United States. According to the Commission, seven 
avocado varieties are grown in California. Hass, the most popular 
variety, accounts for 85 percent of the volume of California avocado 
production. Hass avocados are available 12 months a year.
    According to USDA's National Agricultural Statistics Service 
(NASS), total U.S. production of avocados during the 1999-2000 season 
was 181,300 tons, most of which was utilized fresh except for a small 
processed quantity that NASS included in fresh utilization to protect 
the confidentiality of individual operations. The value of the 1999-
2000 crops was $392 million. Production in 1999-2000 was up 14 percent 
from the previous year's total of 159,250 tons, which had a value of 
$344 million. According to an industry report, the U.S. avocado 
category is expected to grow to more than 600 million pounds this year 
(2000-2001)--up 53% from 1997-1998.
    In the 1999-2000 season, the major countries exporting to the U.S. 
were Chile (59 percent), Mexico (20 percent), and the Dominican 
Republic (15 percent). Data on imports is not collected by variety, but 
it is believed to be mostly Hass. Avocados are imported both in fresh 
and processed form. According to U.S. Census Bureau data, fresh avocado 
imports during the 1999-2000 season (November/October) accounted for 
about 75 percent of the total tonnage of fresh and processed avocados 
imported. In 1999-2000, imported fresh avocados totaled 66,237 tons, up 
from 55,515 tons during the 1998-99 season.
    The total import value for fresh and processed avocados was $137 
million in 1999-2000, up from $95 million in 1998-99. Almost all 
prepared or preserved avocado imports come from Mexico. The trend in 
imports is up, and imports have more than doubled since 1995.
    This proposed rule provides the procedures under which producers 
and importers of Hass avocados 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 
proposed procedures would apply.
    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 6,000 producers would be 
$3,000 or $0.50 per producer and for an estimated 200 importers would 
be $100 or $0.50 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.
    While we have performed this Initial Regulatory Flexibility 
Analysis regarding the impact of this proposed rule on small entities, 
in order to have as much data as possible for a more comprehensive 
analysis of the effects of this rule on small entities, we are inviting 
comments concerning potential effects. 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-NEW.
    Expiration Date of Approval: To be assigned by OMB.

[[Page 36888]]

    Type of Request: New 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: 6,200.
    Estimated Number of Responses per Respondent: 1 every 5 years 
(0.2).
    Estimated Total Annual Burden on Respondents: 310 hours.
    The estimated annual cost of providing the information by an 
estimated 6,000 producers would be $3,000.00 or $0.50 per producer and 
for an estimated 200 importers would be $100.00 or $0.50 per importer.
    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-NEW, 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.

Background

    The Act, which became effective on October 23, 2000, authorizes the 
Secretary to establish a national research and promotion program 
covering domestic and imported Hass avocados. The Commission submitted 
an entire proposed Order on December 29, 2000. Subsequently, on March 
9, 2001, partial proposals were received from Hass avocado interests in 
Chile, Mexico, and New Zealand. These proposals are being published for 
public comment in this issue of the Federal Register.
    The proposed Order would provide for the development and financing 
of an effective and coordinated program of promotion, research, and 
consumer and industry information for Hass avocados in the United 
States. 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 
an initial rate of 2.5 cents per pound. The Act authorizes assessments 
on fresh, frozen, and processed Hass avocados. However, initially, only 
fresh domestic and imported Hass avocados will be covered by the 
program.
    The assessments would be used to pay for promotion, research, and 
consumer and industry information; administration, maintenance, and 
functioning of the Hass Avocado Board; and expenses incurred by the 
Secretary in implementing and administering the Order, including 
referendum costs.
    Section 1206 of the Act requires that a referendum be conducted 
among eligible producers and importers of Hass avocados to determine 
whether they favor implementation of the Order. That section also 
requires the Order to be approved by a simple majority of the producers 
and importers voting. In order to be eligible to vote, producers and 
importers must have been engaged in producing or importing Hass 
avocados for at least one year prior to the referendum.
    This proposed rule establishes the procedures under which producers 
and importers of Hass avocados may vote on whether they want the Hass 
avocado promotion, research, and information program to be implemented. 
There are approximately 6,200 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, registration, voting, instructions, 
use of subagents, ballots, the referendum report, and confidentiality 
of information.
    A 30-day comment period is provided on this proposed rule. This 
period is deemed appropriate to better reflect the implementation time 
frames provided in the Act.
    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 Hass avocado industry.

List of Subjects in 7 CFR Part 1219

    Administrative practice and procedure, Advertising, Consumer 
Information, Hass avocados, Marketing agreements, 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 by 
amending part 1219 proposed elsewhere in this issue as follows:
    1. The authority citation for part 1219 continues to read as 
follows:

    Authority: 7 U.S.C. 7801-7813.

    2. Subpart B is added to proposed Part 1219 to read as follows:

PART 1219--HASS AVOCADO PROMOTION, RESEARCH, AND INFORMATION

* * * * *

Subpart B--Referendum Procedures

Sec.
1219.100  General.
1219.101  Definitions.
1219.102  Registration.
1219.103  Voting.
1219.104  Instructions.
1219.105  Subagents.
1219.106  Ballots.
1219.107  Referendum report.
1219.108  Confidential information.

Subpart B--Referendum Procedures


Sec. 1219.100  General.

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


Sec. 1219.101  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) Eligible importer means any person who imported Hass avocados, 
that are identified in the Harmonized Tariff Schedule of the United 
States,\1\

[[Page 36889]]

for at least one year prior to the referendum. Importation occurs when 
Hass avocados originating outside the United States are released from 
custody by the U.S. Customs Service and introduced into the stream of 
commerce in the United States. Included are persons who hold title to 
foreign-produced Hass avocados 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 Hass avocados from the U.S. 
Customs Service when such Hass avocados are entered or withdrawn for 
consumption in the United States.
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    \1\ The Department of Agriculture has applied to the 
International Trade Commission for an Harmonized Tariff Code number 
for Hass avocados. The number will be available prior to the 
finalization of this rule.
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    (c) Eligible producer means any person who produced Hass avocados 
in the United States for at least one year prior to the referendum who:
    (1) Owns, or shares the ownership and risk of loss of, the crop;
    (2) Rents Hass avocado production facilities and equipment 
resulting in the ownership of all or a portion of the Hass avocados 
produced;
    (3) Owns Hass avocado production facilities and equipment but does 
not manage them and, as compensation, obtains the ownership of a 
portion of the Hass avocados produced; or
    (4) Is a party in a landlord-tenant relationship or a divided 
ownership arrangement involving totally independent entities 
cooperating only to produce Hass avocados who share the risk of loss 
and receive a share of the Hass avocados produced. No other acquisition 
of legal title to Hass avocados shall be deemed to result in persons 
becoming eligible producers.
    (d) Hass avocados means the fruit grown in or imported into the 
United States of the species Persea americana Mill. For the purposes of 
the initial referendum, the term shall include fresh fruit only.
    (e) Order means the Hass Avocado 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 Hass avocado 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) Referendum agent or agent means the individual or individuals 
designated by the Secretary to conduct the referendum.
    (h) Representative period means the period designated by the 
Secretary.
    (i) United States.--The term ``United States'' means collectively 
of the several 50 States of the United States, the District of 
Columbia, the Commonwealth of Puerto Rico, the Commonwealth of the 
Northern Mariana Islands, the United States Virgin Islands, Guam, 
American Samoa, the Republic of the Marshall Islands, the Federated 
States of Micronesia.


Sec. 1219.102  Registration.

    An eligible producer or importer of Hass avocados, as defined in 
this subpart, at the time of the referendum and during a representative 
period, who chooses to vote in any referendum conducted under this 
subpart, shall register with the Secretary prior to the voting period, 
after receiving notice from the Secretary concerning the referendum 
under Sec. 1219.103.


Sec. 1219.103  Voting.

    (a) Each eligible producer and eligible importer who registers to 
vote in the referendum 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 Hass avocados, 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, as instructed by the 
Secretary.


Sec. 1219.104  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 (voting 
period).
    (b) Notify producers and importers of the voting period for the 
referendum and the requirement to register to vote in the referendum at 
least 30 days in advance 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.
    (c) Develop the 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.
    (d) Develop a list of producers and importers who register to vote.
    (e) Mail to registered voters the instructions on voting, a ballot, 
and a summary of the terms and conditions of the proposed Order.
    (f) 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.
    (g) Prepare a report on the referendum.
    (h) Announce the results to the public.


Sec. 1219.105  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. 1219.106  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

[[Page 36890]]

thereto, and the disposition thereof. Ballots invalid under this 
subpart shall not be counted.


Sec. 1219.107  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. 1219.108  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 strictly confidential and shall not be disclosed.

    Dated: July 5, 2001.
Kenneth C. Clayton,
Acting Administrator.
[FR Doc. 01-17428 Filed 7-10-01; 8:45 am]
BILLING CODE 3410-02-P