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[Federal Register Volume 75, Number 212 (Wednesday, November 3, 2010)]
[Rules and Regulations]
[Pages 67609-67611]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-27786]

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DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 1215

[Document Number AMS-FV-10-0010]

Popcorn Promotion, Research, and Consumer Information Order; 
Reapportionment

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Final rule.

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SUMMARY: This rule amends the Popcorn Promotion, Research and Consumer 
Information Order (Order) to reduce the Popcorn Board (Board) 
membership from nine to five members to reflect the consolidation of 
the popcorn industry and therefore, fewer popcorn processors in the 
industry. In accordance with the Popcorn Promotion, Research and 
Consumer Information Order which is authorized by the Popcorn 
Promotion, Research and Consumer Information Act (Act), the number of 
members on the Board may be changed by regulation; provided, that the 
Board consist of not fewer than four members and not more than nine 
members. In addition, the Order states that for purposes of nominating 
and appointing processors to the Board, the Secretary may take into 
account the geographical distribution of popcorn processors.

DATES: Effective Date: November 4, 2010.

FOR FURTHER INFORMATION CONTACT: Deborah Simmons, Marketing Specialist, 
Research and Promotion Branch, Fruit and Vegetable Programs, AMS, U.S. 
Department of Agriculture, Stop 0244, 1400 Independence Avenue, SW., 
Room 0632-S, Washington, DC 20250-0244; telephone: (888) 720-9917; 
facsimile: (202) 205-2800; or electronic mail: 
deborah.simmons@ams.usda.gov.

SUPPLEMENTARY INFORMATION: This rule is issued under the Popcorn 
Promotion, Research, and Consumer Information Order [7 CFR part 1215]. 
The Order is authorized under the Popcorn Promotion, Research and 
Consumer Information Act [7 U.S.C. 7481-7491]. This rule amends the 
Popcorn Promotion, Research and Consumer Information Order to reduce 
the Popcorn Board membership from nine to five members to reflect the 
consolidation of the popcorn industry and therefore, fewer popcorn 
processors in the industry.

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 rule has been reviewed under Executive Order 12988, Civil 
Justice Reform. The rule is not intended to have retroactive effect and 
will not affect or preempt any other State or Federal law authorizing 
promotion or research relating to an agricultural commodity.
    The Act provides that any person subject to an order may file a 
written petition with the U.S. Department of Agriculture (Department) 
if they believe that the Order, any provision of the Order, or any 
obligation imposed in connection with the Order, is not established in 
accordance with law. In any petition, the person may request 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, the Department would rule on the petition. The Act 
provides that the district court of the United States in any district 
in which the petitioner resides

[[Page 67610]]

or conducts business shall have the jurisdiction to review the 
Department's ruling on the petition, provided a complaint is filed not 
later than 20 days after the date of the entry of the ruling.

Initial Regulatory Flexibility Act and Paperwork Reduction Act

    In accordance with the Regulatory Flexibility Act (RFA) [5 U.S.C. 
601-612], the Agricultural Marketing Service (AMS) has considered the 
economic impact of this action on the processors that would be affected 
by this rule. The purpose of the RFA is to fit regulatory action to 
scale on businesses subject to such action so that small businesses 
will not be disproportionately burdened.
    Small agricultural service firms which include processors who are 
covered under the Order, have been defined by the Small Business 
Administration (13 CFR 121.607) as those having annual receipts of no 
more than $7 million. Almost 50 percent of the industry is exempt from 
paying assessments. Based on information from the Board there are 
currently a total of 40 processors in the industry. Of those, 21 
processors pay mandatory assessments into the program. Of the 21 
processors, 11 are be classified as small processors representing 7 
percent of the popcorn assessed. The top five popcorn producing states 
are Nebraska, Indiana, Illinois, Ohio and Iowa. In 2009, Indiana, 
Kansas, Michigan and Ohio had decreases in acreage planted and 
harvested while Kentucky, Illinois, Iowa, Missouri and Nebraska had 
increases in acreage planted and harvested over the acreage planted and 
harvested in 2008. Overall 2009 acreage planted increased by 1 percent 
and acreage harvested increased by 4 percent over 2008 numbers.
    Most of the processors are classified as small businesses under the 
criteria established by the Small Business Administration. Processors 
who process and distribute 4 million pounds or less of popcorn annually 
are exempt from this program. Persons that operate under an approved 
National Organics program (NOP) (7 CFR part 206) system plan; process 
only products that are eligible to be labeled as 100 percent organic 
under the NOP and are not split operations shall be exempt from the 
payment of assessments.
    The Board currently consists of 9 members which represent small, 
medium and large processors in the industry.
    The Board voted during its October 5, 2009, conference call to 
request that the Secretary reduce the number of members from nine to 
five and to appoint persons to reflect the consolidation of the popcorn 
industry and therefore, fewer popcorn processors in the industry who 
will equitably make up the board between large, medium and small 
processors. The Board will continue to strive for diversity within the 
industry.
    Nominations and appointments to the Board are conducted pursuant to 
sections 1215.22, 1215.23, and 1215.25 of the Order. Appointments to 
the Board are made by the Secretary from a slate of nominated 
candidates. Pursuant to section 1215.22(3)(i) of the Order, nominations 
for each position shall be made by processors, and be submitted to the 
Secretary for appointment to the Board. The Order requires that two 
nominees be submitted for each vacant position.
    The Department has not identified any relevant Federal rules that 
duplicate, overlap, or conflict with this rule.

Background

    The Order became effective on July 22, 1997, and it is authorized 
under the Act. The Board is composed of nine processors. Nominations 
take into consideration the geographical distribution of popcorn 
production. The States that currently have representation on the Board 
are Nebraska, Indiana, Iowa, Missouri and Colorado. Based on 
information from the Board, in 2008, the top five popcorn producing 
states were Nebraska, Indiana, Illinois, Ohio and Iowa.
    Under the Order, the Board administers a nationally coordinated 
program of promotion, research, consumer information and industry 
information designed to strengthen the position of popcorn in the 
marketplace, and to maintain and expand domestic and foreign markets 
and uses for popcorn. This program is financed by assessments on 
processors who process and distribute 4 million pounds or more of 
popcorn annually. The current rate of assessment is 6 cents per 
hundredweight of popcorn. The Order specifies that processors are 
responsible for submitting the assessment to the Board and maintaining 
records necessary to verify their reporting(s). Processors who 
processes and distributes less than 4 million pounds of popcorn 
annually are exempt from this assessment.
    On October 5, 2009, the Board voted to decrease its membership from 
nine to five.
    A proposed rule was published in the Federal Register on June 4, 
2010 [75 FR 31730]. Copies of the rule were made available through the 
Internet by the Department and the Office of the Federal Register. That 
rule provided a 30-day comment period which ended July 6, 2010. One 
comment was received by the deadline.
    This rule amends the Popcorn Promotion, research and Consumer 
Information Order (Order) to reduce the Popcorn Board (Board) 
membership from nine to five members to reflect the consolidation of 
the popcorn industry and therefore, fewer popcorn processors in the 
industry.

Summary of Comments

    In response to the proposed rule, the Department received one 
comment in support of the proposed amendment to the Order to reduce the 
Popcorn Board membership from nine to five members to reflect the 
consolidation of the popcorn industry and therefore, fewer popcorn 
processors in the industry.
    Accordingly, the Department is not making any changes to the 
proposed rule based on this comment.
    Pursuant to 5 U.S.C. 553, it is also found and determined that good 
cause exists for not postponing the effective date of this action until 
30 days after publication in the Federal Register because a final rule 
needs to be in effect before the Board makes a call for nominations for 
the term of office beginning January 1, 2011.

List of Subjects in 7 CFR Part 1215

    Administrative practice and procedure, Advertising, Consumer 
information, Marketing agreements, Popcorn promotion, Reporting and 
recordkeeping requirements.

0
For the reasons set forth in the preamble, 7 CFR part 1215 is amended 
as follows:

PART 1215--POPCORN PROMOTION, RESEARCH, AND CONSUMER INFORMATION 
ORDER

0
1. The authority citation for 7 CFR part 1215 continues to read as 
follows:

    Authority: 7 U.S.C. 7481-7491; 7 U.S.C. 7401.

0
2. In Sec.  1215.21, paragraph (a) is revised to read as follows:

Sec.  1215.21  Establishment and membership.

    (a) There is hereby established a Popcorn Board of five members. 
The number of members on the board may be changed by rulemaking: 
Provided, that the Board consist of not fewer than four members and not 
more than nine members. The Board shall be composed of popcorn 
processors appointed by the Secretary under Sec.  1215.24.
* * * * *

[[Page 67611]]

    Dated: October 25, 2010.
Robert C. Keeney,
Acting Associate Administrator, Agricultural Marketing Service.
[FR Doc. 2010-27786 Filed 11-2-10; 8:45 am]
BILLING CODE 3410-02-P
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