[Federal Register Volume 75, Number 215 (Monday, November 8, 2010)]
[Proposed Rules]
[Pages 68529-68533]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-28040]
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DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Part 1214
[Document No. AMS-FV-10-0008-PR]
RIN 0581-AD00
Proposed Christmas Tree Promotion, Research, and Information
Order; Referendum Procedures
AGENCY: Agricultural Marketing Service, Agriculture, USDA.
ACTION: Proposed rule.
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SUMMARY: This proposed rule invites comments on procedures for
conducting a referendum to determine whether the issuance or
continuation of the proposed Christmas Promotion, Research, and
Information Order (Proposed Order) is favored by domestic producers and
importers of Christmas trees. This proposed program would be
implemented under the Commodity Promotion, Research, and Information
Act of 1996 (1996 Act). The 1996 Act allows for a referendum to be
conducted determining if domestic producers and importers favor the
proposed order and also providing that a referendum be conducted up to
three years after the effective date of the Proposed Order. The program
would be implemented or continued if approved by a simple majority of
the eligible domestic producers and importers voting in the referendum.
These procedures would also be used for any subsequent referendum under
the Proposed Order, if it is approved in the initial referendum. The
Proposed Order is being published separately in this issue of the
Federal Register. This proposed rule also announces the Agricultural
Marketing Service's (AMS) intent to request approval by the Office of
Management and Budget (OMB) of new information collection requirements
to implement the program.
DATES: Comments must be received by February 7, 2011. Pursuant to the
Paperwork Reduction Act, comments on the information collection burden
that would result from this proposal must be received by February 7,
2011.
ADDRESSES: Interested persons are invited to submit written comments
concerning this proposed rule. Comments can be made on the Internet at
http://www.regulations.gov or to the Research and Promotion Branch,
Fruit and Vegetable Programs, Agricultural Marketing Service, USDA,
Stop 0244, Room 0634-S, 1400 Independence Avenue, SW., Washington, DC
20250-0244; Fax (202) 205-2800; Toll Free (888) 720-9917. Comments
should reference the docket number, title of action, date, and page
number of this issue of the Federal Register and will be made available
for public inspection at the above address during regular business
hours or at http://www.regulations.gov. All comments submitted in
response to this proposed rule will be included in the record and will
be made available to the public. Please be advised that the identity of
the individuals or entities submitting comments will be made public on
the Internet at the address provided above.
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 and to the Desk Office for
Agriculture, Office of Information and Regulatory Affairs, Office of
Management and Budget, New Executive Office Building, 725 17th Street,
NW., Room 725, Washington, DC 20503.
FOR FURTHER INFORMATION CONTACT: Patricia A. Petrella, Marketing
Specialist, Research and Promotion Branch, FV, AMS, USDA, Stop 0244,
Room 0634-S, 1400 Independence Avenue, SW., Washington, DC 20250-0244;
telephone 202-720-9915 or (888) 720-9917 (toll free) or e-mail:
[email protected].
SUPPLEMENTARY INFORMATION: This proposed rule is issued pursuant to the
Commodity Promotion, Research, and Information Act of 1996 (1996 Act)
(7 U.S.C. 7411-7425).
Executive Order 12866
This proposed rule has been determined to be not significant for
purposes of Executive Order 12866 and, therefore, has not been reviewed
by the Office of Management and Budget (OMB).
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 1996 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 1996 Act, a person subject to an order may
file a petition with the Department (USDA) stating that an order, any
provision of an order, or any obligation imposed in connection with an
order, is not established in accordance with the law. In the petition,
the person may request a modification of an order or an exemption from
an order. Any petition filed challenging an order, any provision of an
order, or any obligation imposed in connection with an order, shall be
filed within two years after the effective date of an order, provision
or obligation subject to challenge in the petition. The petitioner will
have the opportunity for a hearing on the petition. Thereafter, the
Department will issue a ruling on the petition. The 1996 Act provides
that the district court of the United States for any district in which
the petitioner resides or conducts business shall have the jurisdiction
to review a final ruling on the petition, if the petitioner files a
complaint for that
[[Page 68530]]
purpose not later than 20 days after the date of entry of the
Department's final ruling.
Domestic producers and importers can vote three years after the
establishment of the program to determine if they favor the
continuation of the program. This proposed rule invites comments on
procedures for conducting a referendum to determine if domestic
producers and importers favor the proposed order. This referendum would
need to be approved by a simple majority of the eligible domestic
producers and importers voting in the referendum. The proponents
proposed that a referendum be held among domestic producers and
importers three years after the first assessments begin to determine
whether they favor continuation of the program. These procedures would
also be used for any subsequent referendum under the Proposed Order.
The Proposed Order is being published separately in this issue of the
Federal Register. This proposed rule also announces the Agricultural
Marketing Service's (AMS) intent to request approval by the Office of
Management and Budget (OMB) of new information collection requirements
to implement the program.
The 1996 Act authorizes USDA to establish agricultural commodity
research and promotion orders which may include a combination of
promotion, research, industry information, and consumer information
activities funded by mandatory assessments. These programs are designed
to maintain and expand markets and uses for agricultural commodities.
The 1996 Act provides for alternatives within the terms of a
variety of provisions. Paragraph (e) of section 518 of the 1996 Act
provides three options for determining industry approval of a new
research and promotion program: (1) By a majority of those persons
voting; (2) by persons voting for approval who represent a majority of
the volume of the agricultural commodity; or (3) by a majority of those
persons voting for approval who also represent a majority of the volume
of the agricultural commodity. In addition, section 518 of the 1996 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 an order.
USDA received a proposal for a national research and promotion
program for Christmas trees from the Christmas Tree Checkoff Task Force
(Task Force). The program would be financed by an assessment on
Christmas trees--domestic producers and importers--and would be
administered by a board of industry members selected by the Secretary
of Agriculture (Secretary). The initial assessment rate would be $0.15
per Christmas tree domestically produced or imported into the United
States and could be increased up to $0.20 per Christmas tree. The
purpose of the program would be to strengthen the position of fresh cut
Christmas trees in the marketplace and maintain and expand markets for
Christmas trees within the United States.
The Task Force proposed that a referendum be held among domestic
producers and importers three years after the first assessments begin
to determine whether they favor continuation of the program. The Task
Force recommended that the program be implemented or continued if it is
favored by a majority of the domestic producers and importers voting in
the referendum. Domestic producers or importers who domestically
produce or import more than 500 Christmas trees annually would be
eligible to vote in the referendum.
Accordingly, this proposed rule would add subpart B to part 1214
that would establish procedures for conducting the referendum. The
procedures would cover definitions, voting instructions, use of
subagents, ballots, the referendum report, and confidentiality of
information. The procedures would be applicable for the initial
referendum and future referenda.
Initial Regulatory Flexibility Act Analysis
In accordance with the Regulatory Flexibility Act (RFA) (5 U.S.C.
601-612), AMS is required to examine the impact of the proposed rule on
small entities. Accordingly, AMS has considered the economic impact of
this action on small entities.
The purpose of the RFA is to fit regulatory actions to the scale of
businesses subject to such actions so that small businesses will not be
disproportionately burdened. The Small Business Administration defines,
in 13 CFR part 121, small agricultural producers as those having annual
receipts of no more than $750,000 and small agricultural service firms
(domestic manufacturers and importers) as those having annual receipts
of no more than $7.0 million.
Under these criteria, the majority of the domestic producers that
would be covered under this Proposed Order would be considered small
entities, while most importers would not. Domestic producers and
importers who produced or imported less than 500 Christmas trees
annually would be exempt from the assessment. Organic domestic
producers and importers are also expected to be exempt from
assessments. The number of entities assessed under the program would be
approximately 3,263. Estimated revenue is expected at $2 million of
which 10 percent is expected from imported product and 90 percent from
domestic product.
According to the Task Force, based on data from the 2007 Census of
Agriculture, there were approximately 12,255 Christmas tree farms that
produced Christmas trees in the United States. Approximately 25 percent
of the domestic producers or 3,100 Christmas tree domestic producers
would be subject to the assessment based on the exemption of those
producing less than 500 Christmas trees would be exempt from
assessments. Approximately 95 percent of the domestic producers subject
to the assessment qualified under the definition for small business
owners. In 2008, there were approximately 175 importers. Based on the
U.S. Customs data, 163 importers are subject to the assessment rate
under the proposed Order.
This proposed rule invites comments on procedures for conducting a
referendum to determine whether domestic producers and importers favor
issuance or continuation of a proposed Christmas tree Order. USDA would
conduct the referendum. The 1996 Act allows for a referendum to be
conducted determining if domestic producers and importers favor the
proposed order and also providing that a referendum be conducted up to
three years after the effective date of the Proposed Order. Domestic
producers and importers can vote three years after the establishment of
the program to determine if they favor the continuation of the program.
The procedures would also be used for any subsequent referendum under
the Order. The procedures are authorized under paragraph (e) of section
518 of the 1996 Act.
Regarding the economic impact of the Proposed Order on affected
entities, domestic producers and importers of more than 500 Christmas
trees annually would be required to pay assessments to the Board. As
previously mentioned, the initial assessment rate would be $0.15 per
Christmas tree domestically produced or imported to the United States
and could be increased to no more than $0.20 per Christmas tree. Voting
in the referendum is optional. If domestic producers and importers
chose to vote, the burden of voting would be offset by the benefits of
having the
[[Page 68531]]
opportunity to vote on whether or not they want the program to become
effective.
Regarding alternatives, USDA considered requiring eligible voters
to vote in person at various USDA offices across the country.
Conducting the referendum from one central location by mail ballot
would be more cost effective and reliable. USDA would provide easy
access to information for potential voters through a toll free
telephone line. USDA also considered electronic voting, but the use of
computers is not universal.
This action would impose an additional reporting burden on domestic
producers and importers of Christmas trees. Eligible domestic producers
and importers would have the opportunity to complete and submit a
ballot to USDA indicating whether or not they favor implementation or
continuation of the proposed Order. The specific burden for the ballot
is detailed later in this document in the section titled Paperwork
Reduction Act. As with all Federal promotion programs, reports and
forms are periodically reviewed to reduce information requirements and
duplication by industry and public sector agencies. Finally, USDA has
not identified any relevant Federal rules that duplicate, overlap, or
conflict with this proposed rule.
AMS is committed to complying with the E-Government Act, to promote
the use of the Internet and other information technologies to provide
increased opportunities for citizen access to Government information
and services, and for other purposes.
Regarding outreach efforts, USDA would 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 would also publicize information
regarding the referendum process so that trade associations and related
industry media can be kept informed.
USDA has performed this initial RFA analysis regarding the impact
of this proposed rule on small businesses.
Paperwork Reduction Act
In accordance with 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
proposed rule, has been submitted to OMB for approval.
Title: Christmas Tree Promotion, Research, and Information Order.
OMB Number: 0581-NEW.
Expiration Date of Approval: 3 years from OMB date of approval.
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 1996 Act. The information
collection concerns a proposal received by USDA for a national research
and promotion program for Christmas trees. The program would be
financed by an assessment on Christmas tree domestic producers and
importers and would be administered by a board of industry members
selected by the Secretary. The program would provide an exemption for
domestic producers and importers that domestically produce or import
less than 500 Christmas trees annually. A referendum would be held
among eligible domestic producers and importers to determine whether
they favor implementation or continuation of the program. The purpose
of the program would be to help build the market for fresh cut
Christmas trees.
The information collection requirements in this proposed rule
concern the referendum that would be held to determine whether the
program is favored by the industry. Domestic producers and importers
that domestically produce or import more than 500 Christmas trees
annually would be eligible to vote in the referendum. The ballot would
be completed by eligible domestic producers and importers who want to
indicate whether or not they support implementation or continuation of
the program.
Referendum Ballot
Estimate of Burden: Public recordkeeping burden for this collection
of information is estimated to average 0.25 hour per application.
Respondents: Domestic producers and importers.
Estimated Number of Respondents: 3,263 (3,100 domestic producers
and 163 importers).
Estimated Number of Responses per Respondent: 1 every 7 years
(0.14).
Estimated Total Annual Burden on Respondents: 114.21 hours.
The ballot would be added to the other information collections
approved under OMB No. 0581-NEW.
An estimated 3,263 respondents would provide information to the
Board (3,100 domestic producers and 163 importers). The estimated cost
of providing the information to the Board by respondents would be
$3,768.93. This total has been estimated by multiplying 114.21 total
hours required for reporting and recordkeeping by $33, the average mean
hourly earnings of various occupations involved in keeping this
information. Data for computation of this hourly rate was obtained from
the U.S. Department of Labor Statistics.
The proposed Order's provisions have been carefully reviewed, and
every effort has been made to minimize any unnecessary recordkeeping
costs or requirements, including efforts to utilize information already
submitted under other programs administered by USDA and other state
programs.
Request for Public Comment Under the Paperwork Reduction Act
Comments are invited on: (a) Whether the proposed collection of
information is necessary for the proper performance of functions of the
Proposed Order and USDA's oversight of the Proposed Order, including
whether the information would 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) the accuracy of USDA's estimate of the principal producing
areas in the United States for Christmas trees; (d) the accuracy of
USDA's estimate of the number of domestic producers and importers of
Christmas trees that would be covered under the program; (e) ways to
enhance the quality, utility, and clarity of the information to be
collected; and (f) 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. In
addition, the docket number, date, and page number of this issue of the
Federal Register also should be referenced. Comments should be sent to
the same addresses referenced in the ADDRESSES section of this proposed
rule.
A 90-day comment period is provided to allow interested persons to
comment on this proposed information collection. All written comments
received will be summarized and included in the request for OMB
approval. All comments will also become a matter of public record.
List of Subjects in 7 CFR Part 1214
Administrative practice and procedure, Advertising, Consumer
information, Marketing agreements, Christmas trees, Promotion,
Reporting and recordkeeping requirements.
[[Page 68532]]
For the reasons set forth in the preamble, it is proposed that
Title 7, Chapter XI of the Code of Federal Regulations, as proposed to
be amended elsewhere in this issue of the Federal Register, be further
amended as follows:
PART 1214--CHRISTMAS TREES, PROMOTION, RESEARCH AND INFORMATION
ORDER
1. The authority citation for part 1214 continues to read as
follows:
Authority: 7 U.S.C. 7411-7425; 7 U.S.C. 7401.
2. Subpart B is added to read as follows:
Subpart B--Referendum Procedures
Sec.
1214.100 General.
1214.101 Definitions.
1214.102 Voting.
1214.103 Instructions.
1214.104 Subagents.
1214.105 Ballots.
1214.106 Referendum report.
1214.107 Confidential information.
1214.108 OMB control number.
Subpart B--Referendum Procedures.
Sec. 1214.100 General.
Referenda to determine whether eligible domestic producers and
importers of Christmas trees favor the issuance, continuance,
amendment, suspension, or termination of the Christmas Tree Promotion,
Research, and Information Order shall be conducted in accordance with
this subpart.
Sec. 1214.101 Definitions.
(a) Administrator means the Administrator of the Agricultural
Marketing Service, with power to delegate, 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) Customs means the United States Customs and Border Protection
or U.S. Customs Service, an agency of the United States Department of
Homeland Security.
(c) Department means the U.S. Department of Agriculture or any
officer or employee of the Department to whom authority has heretofore
been delegated, or to whom authority may hereafter be delegated, to act
in the Secretary's stead.
(d) Eligible domestic producer means any person who domestically
produces more than 500 Christmas trees annually in the United States,
and who:
(1) Owns, or shares the ownership and risk of loss of the
production of Christmas trees;
(2) Rents Christmas tree production land, facilities and/or
equipment resulting in the ownership of all or a portion of the
Christmas trees domestically produced;
(3) Owns Christmas tree production facilities and equipment but
does not manage them and, as compensation, obtains the ownership of a
portion of the Christmas trees domestically produced; or
(4) Is a party in a landlord-tenant relationship or a divided
ownership arrangement involving totally independent entities
cooperating only to domestically produce Christmas trees who share the
risk of loss and receive a share of the Christmas trees domestically
produced. No other acquisition of legal title to Christmas trees shall
be deemed to result in persons becoming eligible domestic producers.
(e) Eligible importer means any person importing more than 500
Christmas trees annually into the United States as a principal or as an
agent, broker, or consignee of any person who domestically produces or
handles Christmas trees outside of the United States for sale in the
United States, and who is listed as the importer of record for such
Christmas trees that are identified in the Harmonized Tariff Schedule
of the United States by the numbers 0604.91.00.20, 0604.91.00.40, and
0604.91.00.60 during the representative period. Importation occurs when
Christmas trees originating outside of the United States are released
from custody by Customs and introduced into the stream of commerce in
the United States. Included are persons who hold title to foreign-
produced Christmas trees immediately upon release by Customs, as well
as any persons who act on behalf of others, as agents or brokers, to
secure the release of Christmas trees from Customs when such Christmas
trees are entered or withdrawn for consumption in the United States.
(f) Christmas tree means any tree of the coniferous species, that
is severed or cut from its roots and marketed as a Christmas tree for
holiday use.
(g) Order means the Christmas Tree Promotion, Research, and
Information Order.
(h) 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 Christmas tree 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.
(i) Referendum agent or agent means the individual or individuals
designated by the Department to conduct the referendum.
(j) Representative period means the period designated by the
Department.
(k) United States or U.S. means collectively the 50 states, the
District of Columbia, the Commonwealth of Puerto Rico, and the
territories and possessions of the United States.
Sec. 1214.102 Voting.
(a) Each eligible domestic producer and eligible importer of
Christmas trees shall be entitled to cast only one ballot in the
referendum. However, each domestic producer in a landlord/tenant
relationship or a divided ownership arrangement involving totally
independent entities cooperating only to domestically produce Christmas
trees, in which more than one of the parties is a domestic producer or
importer, shall be entitled to cast one ballot in the referendum
covering only such domestic producer or importer's share of the
ownership.
(b) Proxy voting is not authorized, but an officer or employee of
an eligible corporate domestic 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
Department.
(d) Eligible domestic producers or eligible importers may be asked
to provide proof of sales or acreage as proof of eligibility to vote in
any referendum.
Sec. 1214.103 Instructions.
The referendum agent shall conduct the referendum, in the manner
provided in this subpart, under the supervision of the Administrator.
The Administrator may prescribe additional instructions, not
inconsistent with the provisions of this subpart, to govern the
procedure to
[[Page 68533]]
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 domestic 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. 1214.104 Subagents.
The referendum agent may appoint any individual or individuals
necessary or desirable to assist the agent in performing such agent's
functions of this subpart. 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. 1214.105 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. 1214.106 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. 1214.107 Confidential information.
The ballots and other information or reports that reveal, or tend
to reveal, the vote of any person covered under the Order and the voter
list shall be strictly confidential and shall not be disclosed.
Sec. 1214.108 OMB control number.
The control number assigned to the information collection
requirement in this subpart by the Office of Management and Budget
pursuant to the Paperwork Reduction Act of 1995, 44 U.S.C. chapter 35
is OMB control number 0581-NEW.
Dated: November 2, 2010.
David R. Shipman,
Acting Administrator.
[FR Doc. 2010-28040 Filed 11-5-10; 8:45 am]
BILLING CODE 3410-02-P