[Federal Register Volume 74, Number 39 (Monday, March 2, 2009)]
[Rules and Regulations]
[Pages 9047-9049]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-4292]


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DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 1220

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


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

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Final rule.

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SUMMARY: This final rule amends the procedures to request a referendum 
under the Soybean Promotion, Research, and Consumer Information 
program, commonly known as the soybean checkoff program, by updating 
the number of soybean producers in the United States. The number of 
soybean producers, based on information provided by the Department of 
Agriculture (USDA), Farm Service Agency (FSA), is 589,182.
    Additionally, this rule amends the regulations pursuant to 
administrative changes to Web site addresses and office locations made 
for the USDA's Agricultural Marketing Service (AMS).

DATES: Effective Date: March 3, 2009.

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 final rule has been reviewed under Executive Order 12988, 
Civil Justice Reform. This final rule is not intended to have a 
retroactive effect. The final 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

    AMS has determined that this final rule will not have a significant 
impact on a substantial number of small entities, as defined by the 
Regulatory Flexibility Act (RFA) (5 U.S.C. 601-612). 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 will 
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

[[Page 9048]]

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, as presented in the proposed rule, who would be 
eligible to participate in the Request for Referendum will be changed 
from 663,880 to 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 
final rule will amend, as described in the proposed rule, the 
regulations pursuant to administrative changes to Web site addresses 
and office locations for the AMS.

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. On December 5, 2008, USDA published a proposed rule in the 
Federal Register (73 FR 74080) to amend the procedures for soybean 
producers to request a referendum on 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 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 the proposed rule, data provided by USDA's FSA 
was presented that would amend the number of soybean producers in 
preparation for this upcoming Request for Referendum. Presently, 
section 1220.616 of the Order states that the number of soybean 
producers in the United States is 663,880. This final rule amends the 
number of eligible producers based on information from acreage reports 
provided by FSA which identifies 589,182 soybean producers for crop 
years 2006 and 2007. 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 section 1220.616 in 2004.
    In addition to the changes presented in the proposed rule relating 
to the number of eligible soybean producers, AMS also proposed 
amendments to sections 1220.622 and 1220.628 to update Web site 
addresses and office locations as a result of internal changes within 
the agency.

Discussion of Comments

    In the December 5, 2008, proposed rule in the Federal Register (73 
FR 74080), interested persons were provided the opportunity to comment 
on the changes to section 1220.616 of the regulations. The comment 
period ended December 22, 2008.
    USDA received one comment raising a number of issues concerning the 
2009 Request for Referendum, including the timing of the poll. The 
comment, however, did not address the proposed changes to section 
1220.616. The 2009

[[Page 9049]]

Request for Referendum will be conducted in accordance with the Act and 
applicable regulations. Pursuant to 5 U.S.C. 553, good cause is found 
for not postponing the effective date of the action until 30 days after 
publication in the Federal Register in order to conduct the Request for 
Referendum within the timeframes that appear in the Act.

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.


0
For the reasons set forth in the preamble, 7 CFR part 1220 is amended 
as follows:

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

0
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

0
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]

0
3. In Sec.  1220.622, paragraph (b) the Web site ``http://www.ams.usda.gov/lsg/mpb/rp-soy.htm'' is removed and a new Web site 
``http://www.ams.usda.gov/lsmarketing programs'' is added in its place.
0
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: February 24, 2009.
Robert C. Keeney,
Acting Associate Administrator.
[FR Doc. E9-4292 Filed 2-27-09; 8:45 am]
BILLING CODE 3410-02-P