[Federal Register Volume 73, Number 235 (Friday, December 5, 2008)]
[Proposed Rules]
[Pages 74078-74080]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-28674]


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DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 1220

[Docket No. AMS-LS-08-0074]


Soybean Promotion, Research, and Information Program: Amend 
Procedures To Request a Referendum

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Proposed rule.

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SUMMARY: This rule would amend the regulations that provide for 
procedures to request a referendum under the Soybean Promotion, 
Research, and Consumer Information Program, commonly known as the 
soybean checkoff program. The number of soybean producers referred to 
the in the regulations would change from 663,880 to 589,182, based on 
information provided by the Department of Agriculture (USDA), Farm 
Service Agency (FSA). This change is necessary to establish the number 
of soybean producers who are eligible to participate in the 2009 
Request for Referendum. Additionally, this rule would amend the 
regulations pursuant to administrative changes to Web site addresses 
and office locations made for the USDA's Agricultural Marketing Service 
(AMS).

DATES: Comments must be received by December 22, 2008.

ADDRESSES: Comments may be posted online at http://www.regulations.gov, 
or sent to Kenneth R. Payne, Chief, Marketing Programs Branch, 
Livestock and Seed Program, AMS, USDA, Room 2628-S, STOP 0251, 1400 
Independence Avenue, SW., Washington, DC 20250-0251; or via Fax to 
(202) 720-1125. Comments will be made available for public inspection 
at the above address during regular business hours or via the Internet 
at http://www.regulations.gov. Comments received will be posed

[[Page 74079]]

without change, including any personal information provided. All 
comments should reference the docket number, Docket No. AMS-LS-08-0074; 
the date of submission; and the page number of this issue of the 
Federal Register.

FOR FURTHER INFORMATION CONTACT: Kenneth R. Payne, Chief, Marketing 
Programs Branch, Livestock and Seed Program, AMS, USDA, Room 2628-S, 
STOP 0251, 1400 Independence Avenue, SW., Washington, DC 20250-0251; 
Telephone 202/720-1115; Fax 202/720-1125; or e-mail to 
[email protected].

SUPPLEMENTARY INFORMATION: 

Executive Order 12866

    The Office of Management and Budget (OMB) has waived the review 
process required by Executive Order 12866 for this action.

Executive Order 12988

    This proposed rule has been reviewed under Executive Order 12988, 
Civil Justice Reform. This proposal is not intended to have a 
retroactive effect. The proposed rule would not preempt any other 
Federal or State laws, regulations, or policies.
    The Soybean Promotion, Research, and Consumer Information Act (Act) 
provides that administrative proceedings must be exhausted before 
parties may file suit in court. Under section 1971 of the Act, a person 
subject to the Soybean Promotion and Research Order (Order) may file a 
petition with USDA stating that the Order, any provision of the Order, 
or any obligation imposed in connection with the Order, is not in 
accordance with the law and requesting a modification of the Order or 
an exemption from the Order. The petitioner is afforded the opportunity 
for a hearing on the petition. After a hearing, USDA would rule on the 
petition. The Act provides that district courts of the United States in 
any district in which such person is an inhabitant, or has their 
principal place of business, has jurisdiction to review USDA's ruling 
on the petition, if a complaint for this purpose is filed within 20 
days after the date of the entry of the ruling.
    Further, section 1974 of the Act provides, with certain exceptions, 
that nothing in the Act may be construed to preempt or supersede any 
other program relating to soybean promotion, research, consumer 
information, or industry information organized under the laws of the 
United States or any State. One exception in the Act concerns 
assessments collected by Qualified State Soybean Boards (QSSBs). The 
exception provides that to ensure adequate funding of the operations of 
QSSBs under the Act, no State law or regulation may limit or have the 
effect of limiting the full amount of assessments that a QSSB in that 
State may collect, and which is authorized to be credited under the 
Act. Another exception concerns certain referenda conducted during 
specified periods by a State relating to the continuation of a QSSB or 
State soybean assessment.

Regulatory Flexibility Act

    In accordance with the Regulatory Flexibility Act (RFA) (5 U.S.C. 
601-612), USDA 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 actions so that small 
businesses will not be disproportionately burdened.
    For the purpose of the Request for Referendum, the Secretary would 
use the most recent number of soybean producers identified by USDA's 
FSA. The latest number of soybean producers identified by FSA is 
589,182 and was obtained using information from 2006 and 2007 acreage 
reports. The data were sorted in such a manner as to include all 
producers that were engaged in the production of soybeans in at least 
one of the 2 years and exclude counting a producer more than once if 
that producer engaged in production during both years. Therefore, the 
number of soybean producers who would be eligible to participate in the 
Request for Referendum would be 589,182. The majority of producers 
subject to the Order are small businesses under the criteria 
established by the Small Business Administration (SBA) [13 CFR 
121.201]. SBA defines small agricultural producers as those having 
annual receipts of less than $750,000.
    Further, the information collection requirements are minimal. 
Requesting form LS-51-1 to participate in a Request for Referendum may 
be done by mail, in-person, by facsimile, or via the Internet and would 
not impose a significant economic burden on participants. Finally, this 
action would amend the regulations pursuant to administrative changes 
to web site addresses and office locations for the AMS. Accordingly, 
the Administrator of AMS has determined that this proposed rule will 
not have a significant economic impact on a substantial number of small 
business entities.

Paperwork Reduction Act

    In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 
Chapter 35), the reporting and recordkeeping requirements included in 7 
CFR part 1220 were previously approved by OMB and were assigned control 
number 0581-0093.

Background

    The Act (7 U.S.C. 6301-6311) provides for the establishment of a 
coordinated program of promotion and research designed to strengthen 
the soybean industry's position in the marketplace, and to maintain and 
expand domestic and foreign markets and uses for soybeans and soybean 
products. The program is financed by an assessment of 0.5 of 1 percent 
of the net market price of soybeans sold by producers. The final rule 
establishing a Soybean Promotion, Research, and Consumer Information 
program was published in the July 9, 1991, issue of the Federal 
Register (56 FR 31043) and assessments began on September 1, 1991.
    The Act required that an initial referendum be conducted no earlier 
than 18 months and not later than 36 months after the issuance of the 
Order to determine whether the Order should be continued. The initial 
referendum was conducted on February 9, 1994. On April 1, 1994, the 
Secretary announced that of the 85,606 valid ballots cast, 46,060 (53.8 
percent) were in favor of continuing the Order and the remaining 39,546 
votes (46.2 percent) were against continuing the Order. The Act 
required approval by a simple majority for the Order to continue.
    The Act also required that within 18 months after the Secretary 
announced the results of the initial referendum, the Secretary would 
conduct a poll among producers to determine if producers favored a 
referendum on the continuance of the payment of refunds under the 
Order.
    A July 25, 1995, nationwide poll of soybean producers did not 
generate sufficient support for a refund referendum to be held. A 
refund referendum would have been held if at least 20 percent (not in 
excess of one-fifth of which may be producers in any one State) of the 
381,000 producers (76,200) nationwide requested it. Only 48,782 soybean 
producers participated in the poll. Consequently, refunds were 
discontinued on October 1, 1995.
    The Act also specifies that the Secretary shall, 5 years after the 
conduct of the initial referendum and every 5 years thereafter, provide 
soybean producers an opportunity to request a referendum on the Order. 
Additionally, the Act specifies that these subsequent polls require 
that at least 10 percent (not in excess of one-fifth in any one State) 
of all producers must request a

[[Page 74080]]

referendum in order to trigger the conduct of a referendum. If a 
referendum is requested, it will be held within 1 year of that 
determination.
    On October 1, 1999, through November 16, 1999, a nationwide Request 
for Referendum was conducted to determine if there was sufficient 
interest among soybean producers to vote on whether to continue the 
soybean checkoff program. Ten percent of the 600,813 soybean producers 
nationwide (not in excess of one-fifth of which may be producers in any 
one State) needed to participate in the Request for Referendum to 
trigger a referendum. Only 17,970 eligible soybean producers completed 
valid requests.
    Five years later, another Request for Referendum was conducted May 
1, 2004, through May 28, 2004. As in the prior Request for Referendum, 
the purpose was to determine if there was sufficient interest among 
soybean producers to vote on whether to continue the soybean checkoff 
Program. To be eligible to participate in the Request for Referendum, 
producers or the producer entity that they are authorized to represent 
had to certify and provide supporting documentation showing that they 
or the producer entity they represent paid an assessment sometime 
during the representative period between January 1, 2002, and December 
31, 2003. Of the total 663,880 soybean producers eligible to 
participate, 3,206 valid Requests for Referendum were completed. This 
number did not meet the requisite number of 66,388; therefore, a 
referendum was not conducted.
    In accordance with the Act, another Request for Referendum will be 
conducted in 2009. In this proposed rule, data provided by USDA's FSA 
would be used to amend the number of soybean producers in preparation 
for this upcoming Request for Referendum. Presently, Sec.  1220.616 of 
the Order states that the number of soybean producers in the United 
States is 663,880. The latest number of soybean producers identified by 
FSA is 589,182 soybean producers for crop years 2006 and 2007, using 
information based on acreage reports compiled on a daily basis. The 
data were sorted in such a manner as to include all producers that were 
engaged in the production of soybeans in at least one of the 2 years 
and exclude counting a producer more than once if that producer engaged 
in production during both years. Using the last two crop years for 
which complete data is available ensures that all eligible producers 
are counted, as some producers use soybeans in rotation with other 
crops and do not plant soybeans every year or the market for some 
producers in a particular crop year may not have been conducive to 
growing soybeans. This methodology is consistent with that used during 
the last amendment to Sec.  1220.616 in 2004.
    In addition to the changes proposed relating to the number of 
eligible soybean producers, AMS also intends to amend Sec. Sec.  
1220.622 and 1220.628 to update Web site addresses and office locations 
as a result of internal changes within the agency.
    A 15-day comment period is provided for interested persons to 
comment on the proposed changes to section 1220.616. This comment 
period is deemed appropriate because the Act provides that the 
Secretary, every 5 years after the initial continuation referendum, 
will give soybean producers the opportunity to request additional 
referenda on the Order. A 15-day comment period will allow sufficient 
time to publish a final rule to amend Sec.  1220.616 before the 
upcoming Request for Referendum. As such, the number of soybean 
producers eligible to participate in a Request for Referendum will be 
established, and a Request for Referendum can be conducted as early in 
2009 as practicable.

List of Subjects in 7 CFR Part 1220

    Administrative practice and procedure, Advertising, Agricultural 
research, Marketing agreements, Reporting and recordkeeping 
requirements, Soybeans and soybean products.

    For the reasons set forth in the preamble, it is proposed that 7 
CFR part 1220 be amended as follows:

PART 1220--SOYBEAN PROMOTION, RESEARCH, AND CONSUMER INFORMATION

    1. The authority citation for part 1220 continues to read as 
follows:

    Authority: 7 U.S.C. 6301-6311 and 7 U.S.C. 7401.

Subpart F--Procedures To Request a Referendum

    2. In Sec.  1220.616, paragraph (d) is revised to read as follows:


Sec.  1220.616   General.

* * * * *
    (d) For purposes of paragraphs (b) and (c) of this section, the 
number of soybean producers in the United States is determined to be 
589,182.


Sec.  1220.622   [Amended]

    3. In Sec.  1220.622, paragraph (b) the Web site 
``www.ams.usda.gov/lsg/mpb/rp-soy.htm'' is removed and a new Web site 
``www.ams.usda.gov/lsmarketingprograms'' is added in its place.
    4. In Sec.  1220.628, paragraph (a) is revised to read as follows:


Sec.  1220.628   Results of the request for referendum.

    (a) The Administrator, FSA, shall submit to the Administrator, AMS, 
the reports from all State FSA offices. The Administrator, AMS shall 
tabulate the results of the Request for Referendum. USDA will issue an 
official press release announcing the results of the Request for 
Referendum and publish the same results in the Federal Register. In 
addition, USDA will post the official results at the following Web 
site: http://www.ams.usda.gov/lsmarketingprograms. Subsequently, State 
reports and related papers shall be available for public inspection 
upon request during normal business hours in the Marketing Programs 
Branch office, Livestock and Seed Program, AMS, USDA, Room 2628-S, STOP 
0251, 1400 Independence Avenue, SW., Washington, DC.
* * * * *

    Dated: November 26, 2008.
James E. Link,
Administrator.
[FR Doc. E8-28674 Filed 12-4-08; 8:45 am]
BILLING CODE 3410-02-P