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[Federal Register Volume 76, Number 216 (Tuesday, November 8, 2011)]
[Rules and Regulations]
[Pages 69110-69114]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-28807]

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DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 1214

[Document No. AMS-FV-10-0008-FR]
RIN 0581-AD00

Christmas Tree Promotion, Research, and Information Order; 
Referendum Procedures

AGENCY: Agricultural Marketing Service, Agriculture, USDA.

ACTION: Final rule.

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SUMMARY: This final rule establishes procedures for conducting a 
referendum to determine whether the continuation

[[Page 69111]]

of the Christmas Promotion, Research, and Information Order (Order) is 
favored by domestic producers and importers of Christmas trees. This 
program will be implemented under the Commodity Promotion, Research, 
and Information Act of 1996 (1996 Act). The 1996 Act allows for a 
referendum to be conducted up to three years after the effective date 
of the Order. The program will be continued if approved by a simple 
majority of the current eligible domestic producers and importers 
voting in the referendum. These procedures will also be used for any 
subsequent referendum under the Order. The Order is being published 
separately in this issue of the Federal Register.

DATES: Effective Date: December 8, 2011.

FOR FURTHER INFORMATION CONTACT: Patricia A. Petrella, Marketing 
Specialist, Research and Promotion Branch, FV, AMS, USDA, Stop 0244, 
Room 1406-S, 1400 Independence Avenue SW., Washington, DC 20250-0244; 
telephone (202) 720-9915 or (888) 720-9917 (toll free) or email: 
Patricia.Petrella@ams.usda.gov.

SUPPLEMENTARY INFORMATION: This rule is issued pursuant to the 
Commodity Promotion, research, and Information Act of 1996 (1996 Act) 
(7 U.S.C. 7411-7425).
    As part of this rulemaking process, two proposed rules were 
published in the Federal Register on November 8, 2010. One rule 
pertained to the proposed Order (75 FR 68512) and a second rule 
pertained to proposed referendum procedures (75 FR 68529). Both rules 
provided for 60-day comment periods ending on February 7, 2011. No 
comments were received regarding the referendum procedures. However, 
the comment period for the proposed order was extended until March 9, 
2011 (76 FR 9695). Five hundred and sixty five comments were received 
regarding the proposed Order. Those comments are addressed in another 
final rule published earlier in the Federal Register.

Executive Order 12866

    This 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 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 purpose not later than 20 days after the date of 
entry of the Department's final ruling.
    This final rule establishes procedures for conducting a referendum 
to determine whether the continuation of the Christmas Promotion, 
Research, and Information Order (Order) is favored by domestic 
producers and importers of Christmas trees. 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 
referendum will 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. USDA will 
conduct the referendum. These procedures will also be used for any 
subsequent referendum under the Order.
    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. 
As defined under section 513(1)(D) of the 1996 Act, agricultural 
commodities include the products of forestry, which includes Christmas 
trees.
    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 will 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 will 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 will 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 continued if it is favored by a 
majority of the current domestic producers and importers voting in the 
referendum. Current domestic producers or importers who domestically 
produce or import more than 500 Christmas trees annually will be 
eligible to vote in the referendum.
    Accordingly, this rule will add subpart B to part 1214 that will 
establish procedures for conducting the referendum. The procedures will 
cover definitions, voting instructions, use of subagents, ballots, the 
referendum report, and confidentiality of information. The procedures 
will be applicable for the initial referendum and future referenda.

[[Page 69112]]

Final 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 final 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 Order will be considered small entities, 
while most importers will not. Domestic producers and importers who 
produced or imported less than 500 Christmas trees annually will 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 
will 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 rule establishes procedures for conducting a referendum to 
determine whether domestic producers and importers favor continuation 
of a Christmas tree Order. USDA will conduct the referendum. The 1996 
Act allows for a referendum to be conducted determining if domestic 
producers and importers favor the 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 will also be used for 
any subsequent referendum under the Order. The procedures are 
authorized under paragraph (e) of section 518 the 1996 Act.
    Regarding the economic impact of the Order on affected entities, 
domestic producers and importers of more than 500 Christmas trees 
annually will be required to pay assessments to the Board. As 
previously mentioned, the initial assessment rate will 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 current domestic producers and 
importers chose to vote, the burden of voting would be offset by the 
benefits of having the 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 will 
be more cost effective and reliable. USDA will provide easy access to 
information for potential voters through a toll free telephone line.
    This action imposes an additional reporting burden on eligible 
domestic producers and importers of Christmas trees. Current eligible 
domestic producers and importers will have the opportunity to complete 
and submit a ballot to USDA indicating whether or not they favor 
continuation of the 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 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 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.

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 
rule, has been preapproved by OMB.
    Title: Referendum for Christmas Tree Promotion, Research, and 
Information Program.
    OMB Number: 0581-0267.
    Expiration Date of Approval: 12/31/2013.
    Type of Request: Approval of a preapproved collection.
    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 will be financed 
by an assessment on Christmas tree domestic producers and importers and 
will be administered by a board of industry members selected by the 
Secretary. The program will provide an exemption for domestic producers 
and importers that domestically produce or import less than 500 
Christmas trees annually. A referendum will be held among eligible 
domestic producers and importers to determine whether they favor 
continuation of the program. The purpose of the program will be to help 
build the market for fresh cut Christmas trees.
    The information collection requirements in this rule concern the 
referendum that will be held to determine whether the program is 
favored by the industry. Current domestic producers and importers that 
domestically produce or import more than 500 Christmas trees annually 
will be eligible to vote in the referendum. The ballot will be 
completed by eligible current domestic producers and importers who want 
to indicate whether or not they support 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.

[[Page 69113]]

    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 will be added to the other information collections 
approved under OMB No. 0581-0267.
    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 will 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 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

    A proposed rule regarding the referendum procedures was published 
in the Federal Register on November 8, 2010 (75 FR 68529). Copies of 
the rule were made available by USDA through the Office of the Federal 
Register and were also made available via the Internet at http://www.regulations.gov. That rule provided for a 60-day comment period. No 
comments were received.
    In the November 8, 2010, proposed rule, comments were also invited 
on the information collection requirements prescribed in the Paperwork 
Reduction Act section of this rule. Specifically, comments were 
solicited 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 manufacturing areas in the 
United States for softwood lumber; (d) the accuracy of USDA's estimate 
of the number of domestic manufacturers and importers of softwood 
lumber 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. No comments were received 
regarding information collection.

List of Subjects in 7 CFR Part 1214

    Administrative practice and procedure, Advertising, Consumer 
information, Marketing agreements, Christmas trees, Promotion, 
Reporting and recordkeeping requirements.

    For the reasons set forth in the preamble, Title 7, Chapter XI of 
the Code of Federal Regulations, is amended to read as follows:

PART 1214--CHRISTMAS TREES, PROMOTION, RESEARCH AND INFORMATION 
ORDER

0
1. The authority citation for part 1214 continues to read as follows:

    Authority: 7 U.S.C. 7411-7425; 7 U.S.C. 7401.

0
2. Add subpart B to part 1214 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 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

[[Page 69114]]

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.
    (j) 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 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 0581-0267.

    Dated: November 1, 2011.
David R. Shipman,
Acting Administrator.
[FR Doc. 2011-28807 Filed 11-7-11; 8:45 am]
BILLING CODE 3410-02-P
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