[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