[Federal Register Volume 63, Number 215 (Friday, November 6, 1998)]
[Proposed Rules]
[Pages 59907-59911]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-29728]
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DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Part 1216
[FV-98-703-PR]
Peanut 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 Peanut Promotion, Research, and Information Order (Order) is
favored by a majority of the producers 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 Commodity Promotion, Research, and Information
Act of 1996 (Act). In addition, in accordance with the Paperwork
Reduction Act of 1995 (PRA), this proposed rule specifies the public
reporting burden for the collection of information involved in
conducting the referendum.
DATES: Comments must be received by January 5, 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 of 1995 (PRA), also send comments regarding the accuracy
of the burden estimate, ways to minimize the burden, including through
the use of automated collection techniques or other forms of
information technology, or any other aspect of this collection of
information, to the above address. 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, D.C. 20503.
FOR FURTHER INFORMATION CONTACT: Angela C. Snyder, Research and
Promotion Branch, FV, AMS, USDA, Stop 0244, Room 2535-S, 1400
Independence Avenue, S.W., Washington, D.C. 20250-0244; telephone (910)
860-4689 or facsimile (202) 205-2800.
SUPPLEMENTARY INFORMATION: A referendum would be conducted among
eligible peanut producers to determine whether the issuance of the
proposed Peanut Promotion, Research, and Information Order (Order) (7
CFR Part 1216) is favored by a majority of persons voting 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). 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 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 the 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 American Farm Bureau Federation (proponent) has recommended
that the Secretary conduct a referendum in which the Order must be
approved by a majority of those persons voting. 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 may vote on whether they want a
[[Page 59908]]
peanut promotion, research, and information program to be implemented.
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 25,000 producers and 57 handlers of peanuts
who would be subject to the program. Most producers would be classified
as small businesses under the criteria established by the Small
Business Administration (SBA) [13 CFR Sec. 121.601], and most of the
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), the nine major peanut-producing states in the United States
account for 99 percent of the peanuts grown in this country. The
combined production from these states totaled 3.5 billion pounds in
1997. NASS reports that Georgia was the largest producer (38 percent of
the total), followed by Texas (23 percent), Alabama (11 percent), North
Carolina (9 percent), Florida (6 percent), Virginia (5 percent),
Oklahoma (5 percent), New Mexico (1 percent), and South Carolina (1
percent). The farm value of peanuts in 1997 reached $932 million.
According to 1992 Census of Agriculture (Census) data, small amounts of
peanuts were also grown in seven other states.
According to the proponent, and based on the Census for these nine
states, 36 percent of the peanut-producing counties in the United
States had 35 percent or more of their total crop income from peanuts.
Twenty-four percent of the counties had 50 percent or more of their
crop income from peanuts. From a state perspective, 70 percent of the
crop income in Alabama's peanut-producing counties is generated from
peanuts. For Virginia, the percentage is 48 percent. In addition,
16,194 farms harvested peanuts in 1992. Of these, 15,914 were located
in the nine primary peanut-producing states.
Three main types of peanuts are grown in the United States:
Florunners, Virginia, and Spanish. The southeast growing region grows
mostly the medium-kernel Runner peanuts. The southwest growing region
used to grow two-thirds Spanish and one-third Runner peanuts, but now
more Runners than Spanish are grown. Virtually all of the Spanish
peanut production is in Oklahoma and Texas. In the Virginia-Carolina
region, mainly large-kernel Virginia peanuts are grown. New Mexico
grows a fourth type of peanut, the Valencia.
Peanut manufacturers produce three principal peanut products:
peanut butter, packaged nuts (including salted, unsalted, flavored, and
honey-roasted nuts), and peanut candies. In most years, half of all
peanuts produced in the United States for edible purposes are used to
manufacture peanut butter. Packaged nuts account for almost one-third
of all processed peanuts. Some of these (commonly referred to as
``ballpark'' peanuts) are roasted in the shell, while a much larger
quantity is used as shelled peanuts packed as dry-roasted peanuts,
salted peanuts, and salted mixed nuts. Some peanuts are ground to
produce peanut granules and flour. Other peanuts are crushed to produce
oil.
According to USDA's Foreign Agricultural Service, exports of U.S.
peanuts (including peanut meal, oil, and peanut butter) totaled 880
million inshell equivalent pounds in 1997, with a value of $285 million
(U.S. point of departure for the foreign country). Of the total
quantity, 60 percent was shelled peanuts used as nuts, 11 percent was
blanched or otherwise prepared or preserved peanuts, 10 percent was
inshell peanuts, 7 percent was peanut butter, 4 percent was shelled oil
stock peanuts, 4 percent was crude peanut oil, and 3 percent was
refined peanut oil.
The major destinations for domestic shelled peanuts for use as nuts
are Canada, Mexico, the United Kingdom, and the Netherlands. Blanched
or otherwise prepared peanuts are sent mainly to Western Europe,
especially the Netherlands, France, and Spain. Inshell peanuts are
mainly exported to Canada and various countries in Western Europe.
Peanut butter is sent to many countries, with the largest amounts going
to Canada and Saudi Arabia. Peanut oil and oil stock peanuts are
exported world-wide, but major destinations can vary from year to year.
Approximately 250 million inshell equivalent pounds of peanuts and
processed peanuts (including oil and peanut butter) were imported in
1997 with a combined value (f.o.b. country of origin) of $73 million.
Most of the imports (45 percent) were shelled peanuts for use as nuts.
The major U.S. supplier is Argentina, but several other countries
export shelled peanuts to the United States, including Mexico,
Nicaragua, and South Africa.
Peanut butter imports are also significant and accounted for about
32 percent of the total quantity of nuts (inshell basis) imported in
1997. Most peanut butter imports come from Canada and Argentina. The
other major import category--crude and refined peanut oil--are shipped
mainly from Argentina and Nicaragua and account for approximately 18
percent of total imports (inshell equivalent basis). Inshell peanuts,
primarily from Mexico, accounted for nearly 3 percent of total imports
in 1997. About 3 percent of total imports consisted of blanched or
other processed peanuts, mainly from China. Imports of oil stock
shelled peanuts were negligible.
Most peanuts produced in other countries are crushed for oil and
protein meal. The United States is the main producer of peanuts used in
such edible products as peanut butter, roasted peanuts, and peanut
candies. Peanuts are one of the world's principal oilseeds, ranking
fourth behind soybeans, cottonseed, and rapeseed. India and China
usually account for half of the world's peanut production.
According to ``The Agriculture Statistics Report'' published by
USDA, during the 1995-96 season, the average annual production per
domestic producer was approximately 144,228 pounds of peanuts. Peanuts
produced during these growing seasons provided average annual gross
sales of $42,222 per peanut producer. The value of the 1995-96 crop was
approximately $1.013 billion. During the same period, per capita
consumption in the United States was 5.7 pounds of peanuts.
This proposed rule provides the procedures under which peanut
producers 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 25,000 producers 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 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.
[[Page 59909]]
The information collection requirements contained in this proposed
rule are designed to minimize the burden on producers. This rule
provides for a ballot to be used by eligible producers in voting in the
referendum. The estimated annual cost of providing the information by
an estimated 25,000 producers would be $12,500 or $0.50 per producer.
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 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. All ballots received in this manner were stored in
the memory of the machine until the end of the voting period. Due to
the large number of voters expected in the referendum on the proposed
peanut program, USDA may use more than one such machine, providing
voters in different states with different fax numbers in order to avoid
exceeding the memory of the machine. Further, the Department would
provide easy access to information for potential voters through a toll-
free telephone line.
While other peanut programs have been implemented by the
government, USDA has not identified any relevant federal rules that
duplicate, overlap, or conflict with this rule.
We have preformed 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)
regulations (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.
Respondents: Producers.
Estimated Number of Respondents: 25,000.
Estimated Number of Responses per Respondent: 1 every 5 years
(0.2).
Estimated Total Annual Burden on Respondents: 1,250 hours.
The estimated annual cost of providing the information by an
estimated 25,000 producers would be $12,500 or $0.50 per producer.
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 assumption used; (c) ways to enhance the quality, utility, and
clarity of the information to be collected; and (d) ways to minimize
the burden of the collection of information on those who are to
respond, including the use of appropriate automated, electronic,
mechanical, or other technological 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.
Background
The Act authorizes the Secretary, under generic authority, to
establish agricultural commodity research and promotion orders. The
American Farm Bureau Federation (proponent), working in cooperation
with 20 state and regional industry organizations from the peanut-
producing states, has requested the establishment of a Peanut
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 peanuts. The program would be funded by an assessment
levied on producers (to be collected by handlers) at a rate of 1
percent of the total value of all farmers stock peanuts. When peanuts
are placed under loan, a deduction from the producer's loan draft equal
to 1 percent of the price support value would be made and submitted to
the Board by an area marketing association. Once peanuts are sold for
disposition from a loan, the association would remit the balance of the
assessment to the Board. In the proposed Order, peanuts are defined as
the seeds of the legume arachis hypogaea, including both inshell and
shelled peanuts other than those marketed by the producer in green form
for consumption as boiled peanuts.
Assessments would be used to pay for promotion, research, 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 518 of the Act requires that a referendum be conducted
among eligible peanut producers 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 by a majority of producers voting in
the referendum,
[[Page 59910]]
which will be held before the program is implemented.
This proposed rule establishes the procedures under which producers
may vote on whether they want the peanut promotion, research, and
information program to be implemented. There are approximately 25,000
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 peanut industry. We also
encourage the industry to comment on whether it has considered the
impact of disaster transfers on the assessment process, whether peanuts
under those transfers would be considered quota or additional peanuts.
List of Subjects in 7 CFR Part 1216
Administrative practice and procedure, Advertising, Consumer
information, Marketing agreements, Peanut promotion, Reporting and
recordkeeping requirements.
For the reasons set forth in the preamble, it is proposed that
Title 7, Chapter XI of the Code of Federal Regulations be amended as
follows:
1. Subpart B is added to proposed Part 1216 to read as follows:
PART 1216--PEANUT PROMOTION, RESEARCH, AND INFORMATION ORDER
* * * * *
Subpart B--Procedure for the Conduct of Referenda in Connection with
the Peanut Promotion, Research, and Information Order
Sec.
1216.100 General.
1216.101 Definitions.
1216.102 Voting.
1216.103 Instructions.
1216.104 Subagents.
1216.105 Ballots.
1216.106 Referendum report.
1216.107 Confidential information.
Authority: 7 U.S.C. 7401-7425.
Subpart B--Procedure for the Conduct of Referenda in Connection
With the Peanut Promotion, Research, and Information Order
Sec. 1216.100 General.
Referenda to determine whether eligible peanut producers favor the
issuance, amendment, suspension, or termination of the proposed Peanut
Promotion, Research, and Information Order shall be conducted in
accordance with this subpart.
Sec. 1216.101 Definitions.
Unless otherwise defined in this section, 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 the Department to whom authority has been delegated or may hereafter
be delegated to act in the Administrator's stead.
(b) Order means the Peanut Promotion, Research, and Information
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 a wife who have title to, or leasehold interest
in, a peanut 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.
(f) Eligible producer means any person who is engaged in the
production and sale of peanuts in the United States and who:
(1) Owns, or shares the ownership and risk of loss of, the crop.
This does not include quota holders who do not share in the risk of
loss of the crop;
(2) Rents peanut production facilities and equipment resulting in
the ownership of all or a portion of the peanuts produced;
(3) Owns peanut production facilities and equipment but does not
manage them and, as compensation, obtains the ownership of a portion of
the peanuts produced; or
(4) Is a party in a landlord-tenant relationship or a divided
ownership arrangement involving totally independent entities
cooperating only to produce peanuts who share the risk of loss and
receive a share of the peanuts produced. No other acquisition of legal
title to peanuts shall be deemed to result in persons becoming eligible
producers.
Sec. 1216.102 Voting.
(a) Each person who is an eligible producer, 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 peanuts, 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 an administrator, executor, or
trustee or an eligible producing entity may cast a ballot on behalf of
such producer. Any individual so voting in a referendum shall certify
that such individual is an officer or employee of the eligible
producer, or an administrator, executive, or trustee of an eligible
producing 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. 1216.103 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
[[Page 59911]]
(2) By such other means as the agent may deem advisable.
(d) Mail to eligible producers 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. 1216.104 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. 1216.105 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. 1216.106 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. 1216.107 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: November 2, 1998.
Robert C. Keeney,
Deputy Administrator, Fruit and Vegetable Programs.
[FR Doc.98-29728 Filed 11-5-98; 8:45 am]
BILLING CODE 3410-02-P