[Federal Register Volume 85, Number 81 (Monday, April 27, 2020)]
[Proposed Rules]
[Pages 23246-23248]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-08410]
[[Page 23246]]
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DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Part 1200
[Doc. No. AMS-SC-19-0105]
Administrative Procedures Governing Formulation of a Research and
Promotion Order
AGENCY: Agricultural Marketing Service, USDA.
ACTION: Proposed rule.
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SUMMARY: The Department of Agriculture (USDA) invites comments on the
proposed establishment of administrative procedures to govern
formulation of new research and promotion programs under the Commodity
Promotion, Research, and Information Act of 1996 (Act). This rule would
specify the process for proposing such programs to USDA. The proposed
rule would further clarify that AMS will continue to require
associations of producers or individuals proposing new programs to post
a bond or other collateral to reimburse USDA for the costs of program
development.
DATES: Comments must be received by May 27, 2020.
ADDRESSES: Interested persons are invited to submit written comments
concerning this proposed rule. All comments must be submitted through
the Federal e-rulemaking portal at http://www.regulations.gov and
should reference the document number and the date and page number of
this issue of the Federal Register. All comments submitted in response
to this proposed rule will be included in the rulemaking 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 http://www.regulations.gov.
FOR FURTHER INFORMATION CONTACT: Heather Pichelman, Promotion and
Economics Division, Specialty Crops Program, AMS, USDA, 1400
Independence Avenue SW, Room 1406-S, Stop 0244, Washington, DC 20250-
0244; telephone: (202) 720-9915; facsimile: (202) 205-2800; or
electronic mail: [email protected].
SUPPLEMENTARY INFORMATION: As authorized under the Act, this proposed
rule would add a new subpart D to 7 CFR part 1200--Rules of Practice
and Procedure Governing Proceedings Under Research, Promotion, and
Information Programs. Proposed subpart D would address procedures
specific to the formulation of new programs under the Act.
Executive Orders 12866, 13563, and 13771
Executive Orders 12866 and 13563 direct agencies to assess all
costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits (including potential economic, environmental, public
health, and safety effects; distributive impacts; and equity).
Executive Order 13563 emphasizes the importance of quantifying both
costs and benefits, reducing costs, harmonizing rules, and promoting
flexibility. This action falls within a category of regulatory actions
that the Office of Management and Budget (OMB) exempted from Executive
Order 12866 review. Additionally, because this rule does not meet the
definition of a significant regulatory action, it does not trigger the
requirements contained in Executive Order 13771. See OMB's Memorandum
titled ``Interim Guidance Implementing Section 2 of the Executive Order
of January 30, 2017, titled `Reducing Regulation and Controlling
Regulatory Costs' '' (February 2, 2017).
Executive Order 13175
This action has been reviewed in accordance with the requirements
of Executive Order 13175, Consultation and Coordination with Indian
Tribal Governments. The review reveals that this regulation would not
have substantial and direct effects on Tribal governments and would not
have significant Tribal implications.
Executive Order 12988
This rule has been reviewed under Executive Order 12988, Civil
Justice Reform. It is not intended to have retroactive effect. 7 U.S.C.
7423 provides that the Act shall not affect or preempt any other
Federal or State law authorizing promotion or research relating to an
agricultural commodity.
Background
This proposed rule invites comments on the procedure to establish
new research and promotion programs--or orders--under the Act. 7 U.S.C.
7413(b)(1)(B) authorizes associations of producers of an agricultural
commodity or other individuals to petition USDA to establish a
research, promotion, and/or information program with respect to that
commodity. The purpose of such programs is to provide a framework for
agricultural industries to pool their resources and combine efforts to
develop new markets, strengthen existing markets, and conduct important
research and promotion activities. See 7 U.S.C. 7411(b).
USDA's Agricultural Marketing Service (AMS) oversees these
programs. With this proposed rule, AMS seeks to establish procedures
for formulating new programs so interested parties are aware of the
process and requirements.
Proposed Sec. 1200.202(a) would provide that an industry
association or individuals may file a written proposal for a new
research and promotion program with the AMS Administrator
(Administrator). Under proposed Sec. 1200.202(b), the Administrator
would consider whether there is broad industry support for the proposed
program and whether proposed provisions of the program are authorized
under the Act. The Administrator would also evaluate anticipated
benefits to the industry and the economic feasibility of the program.
Finally, the Administrator would consider whether the proposed program
would tend to effectuate the declared policy of the Act. Under proposed
Sec. 1200.202(c), if the Administrator determined that the program
would not effectuate the policy of the Act, AMS would deny the proposal
and would so notify the proponent(s), explaining the grounds for
denial. Under proposed Sec. 1200.202(d), if the Administrator
determined that the proposed program would likely effectuate the
purposes of the Act by benefitting producers, handlers, and importers
of the commodity, or others in the marketing chain, the Administrator
would notify the proponent(s) that AMS would proceed with program
development and, in accordance with proposed Sec. 1200.204, the
proponent(s) would be required to post a bond or other collateral to
cover AMS expenses to develop the program.
The Act provides that once a board is established under an order,
the Secretary of Agriculture (Secretary) must be reimbursed for all
expenses incurred in the implementation, administration, and
supervision of the order, including all referenda costs incurred in
connection with the order. The board uses assessment funds collected
from regulated entities to reimburse the Secretary for program
oversight.
However, AMS incurs substantial expense in the development process
leading to program establishment. AMS may conduct industry outreach
meetings, solicit public input, analyze economic data, draft rulemaking
documents, and conduct initial referenda. These activities are
necessary
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to progress toward program establishment. Typical expenses for these
preliminary activities may include, but not be limited to, employee
time and travel, supplies, printing, and mailing.
In some cases, the proponent industry may elect to defer an initial
referendum for up to three years after the program is established. In
other cases, despite all efforts of the proponent and AMS to develop a
new program, ultimately the proposed program may not be established.
Nevertheless, under either of these scenarios, AMS will have already
incurred expenses related to program development.
Section 7417(a)(2) of the Act provides that the Secretary can
require the industry seeking a new program to post a bond or other
collateral to cover the cost of the initial referendum. Proposed Sec.
1200.201 would define cost of the referendum to mean all the expenses
AMS incurs in the development of a potential new program, including the
cost of conducting an initial referendum.
The amount of the bond or collateral required under proposed Sec.
1200.204 would be based on unique factors like the projected number of
staff hours involved, the amount of staff travel necessary for
outreach, the size and complexity of the proposed program, and the
number of industry members to be polled in an initial referendum. This
would ensure that AMS would be reimbursed on a timely basis for all
expenses related to program development, even if the initial referendum
is deferred or if the program is not established.
Section 1200.202(e) of the proposed rule would provide that once
AMS has worked with industries or individuals to develop a proposed
order, AMS would publish notice of the proposal in the Federal Register
to allow the public to comment on the proposed program. Based on
comments, AMS would determine whether to proceed with program
establishment.
Under Sec. 1200.203 of the proposed rule, if AMS determined to
proceed with program establishment, the Administrator could conduct an
initial referendum among the producers, handlers, and importers who
would be subject to assessment under the program in order to determine
whether they favor establishment of the program. The Act provides that
USDA could also establish the program and defer the initial referendum
for up to three years after the program is established. See 7 U.S.C.
7417(b). In either case, referendum voters would be those entities who,
during a representative period determined by the Administrator,
produced, handled, and/or imported the agricultural commodity. For
referendum expenses incurred after a board is established, the
Secretary will be reimbursed by the board appointed to administer the
program, as provided by the Act. See 7 U.S.C. 7417(f).
Under proposed Sec. 1200.205, if at any time during the
development process, based on public comments, referendum votes, or
other information available, AMS determined that the proposed program
would not tend to effectuate the policy of the Act, the Administrator
would terminate proceedings and would collect reimbursement for program
development expenses from the bond or collateral posted by the program
proponent(s).
The proposed rule would also make other administrative provisions
related to establishment of a new program. Section 1200.201 of the
proposed rule would define other terms necessary for administration of
the regulation. Section 1200.206 would provide for the issuance,
effectuation, and publication of the new order.
Initial Regulatory Flexibility Act Analysis
The Regulatory Flexibility Act (RFA) (5 U.S.C. 601-612), requires
agencies to consider the economic impact of each 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. The purpose of research,
promotion, and information programs is to benefit all sizes of
producers, handlers, and importers of an agricultural commodity.
The Act makes it possible for producer associations or other
individuals engaged in specific agricultural commodity industries to
submit a proposal for a new program. It is impossible for AMS to
determine which industries may seek research and promotion programs in
the future or to determine the number or size of business entities that
might propose such programs. The expenses necessary for each program's
development depend on factors such as projected staff hours to develop
the program, travel expenses related to outreach, size and complexity
of the proposed program, and the size of the industry to be polled in a
referendum. Based on its experience with past program proposals, AMS
estimates that expenses for typical program development range from
$80,000 to $150,000. Thus, under the proposed rule, proponents could be
required to post bonds or other collateral to cover those amounts if
AMS agreed to proceed with proposed program development. Costs to
individuals or businesses would depend on the number of entities in
each proponent group. Given that we don't know the identity or business
size of future program proponents, AMS cannot determine what economic
impact this proposed rule might have on small entities. Based on
experience with proponents seeking to establish new programs under the
Act, AMS believes that this rule is unlikely to have a significant
economic impact on a substantial number of small entities.
There would be no new direct costs associated with the
implementation of the proposed rule. The proposed rule codifies
procedures for proposing new research and promotion programs under the
Act that have been practiced since the Act's adoption in 1996. In
addition to specifying the program proposal process, the rule would
clarify that the cost of the referendum to be covered by the required
bond or collateral would include all the costs associated with program
development.
Paperwork Reduction Act
No information collection or recordkeeping requirements are imposed
on the public by this proposed rule. Accordingly, OMB clearance is not
required by the Paperwork Reduction Act of 1995, 44 U.S.C. 3501,
Chapter 35.
As with all Federal promotion programs, reports and forms are
periodically reviewed to reduce information requirements and
duplication by industry and public sector agencies.
E-Government Act
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.
List of Subjects in 7 CFR Part 1200
Administrative practice and procedure, Agricultural research,
Reporting and recordkeeping requirements.
For the reasons set forth in the preamble, AMS proposes to amend 7
CFR part 1200 as follows:
PART 1200--RULES OF PRACTICE AND PROCEDURE GOVERNING PROCEEDINGS
UNDER RESEARCH, PROMOTION, AND INFORMATION PROGRAMS
0
1. The authority citation for part 1200 continues to read as follows:
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Authority: 7 U.S.C. 2101-2119, 2611-2627, 2701-2718, 2901-2911,
4501-4514, 4801-4819, 4901-4916, 6101-6112, 6301-6311, 6401-6417,
7411-7425, 7481-7491, and 7801-7813.
0
2. In part 1200, add subpart D, consisting of Sec. Sec. 1200.200
through 1200.206, to read as follows:
Subpart D--Administrative Procedures Governing Formulation of a
Research and Promotion Order
Sec.
1200.200 General.
1200.201 Definitions.
1200.202 Proposals.
1200.203 Initial referendum.
1200.204 Reimbursement of Secretary's expenses.
1200.205 Termination of proceedings.
1200.206 Execution of the order.
Authority: 7 U.S.C. 7411-7425.
Subpart D--Administrative Procedures Governing Formulation of a
Research and Promotion Order
Sec. 1200.200 General.
The terms defined/specified in this subpart shall apply to all
research and promotion programs authorized under the Act.
Sec. 1200.201 Definitions.
Act means the Commodity Research, Promotion, and Information Act of
1996 (7 U.S.C. 7411-7425).
Administrator means the Administrator of the Agricultural Marketing
Service or any officer or employee of the United States Department of
Agriculture to whom authority has been delegated or may hereafter be
delegated to act for the Administrator.
Cost of the Referendum means all USDA expenditures related to
development of an order proposal, including, but not limited to,
salaries, travel, supplies, printing, mailing, and shipping, and any
costs related to an initial referendum.
Order means any order which may be issued pursuant to the Act.
Secretary means the United States Secretary of Agriculture or any
officer or employee of the United States Department of Agriculture to
whom authority has been delegated or may hereafter be delegated to act
for the Secretary.
Sec. 1200.202 Proposals.
(a) An order may be proposed by any association of producers of an
agricultural commodity, by any person that may be affected by the
issuance of an order with respect to an agricultural commodity, or by
the Secretary. Any person or organization other than the Secretary
proposing an order shall file with the Administrator a written
proposal.
(b) Upon receipt of a proposal, the Administrator shall investigate
and evaluate the proposal.
(c) If the proposal is submitted by an association of producers of
the agricultural commodity or by any person that may be affected by the
issuance of an order, and the investigation and consideration lead the
Administrator to conclude that the proposed order will not tend to
effectuate the declared policy of the Act, the Administrator shall deny
the proposal. The Administrator will promptly notify the proponent(s)
of such denial, which will be accompanied by a brief statement of the
grounds for the denial.
(d) If the proposal was submitted by an association of producers of
the agricultural commodity or by any person that may be affected by the
issuance of an order and the investigation and consideration lead the
Administrator to conclude that an order will tend to effectuate the
declared policy of the Act, the Administrator will promptly notify the
proponent(s) of such conclusion, and the proponent(s) will be required
to post a bond or other collateral in accordance with Sec. 1200.204.
(e) If the Administrator concludes that an order will tend to
effectuate the declared policy of the Act, the Administrator shall
publish the proposed order in the Federal Register and give due notice
and opportunity for public comment on the proposed order.
Sec. 1200.203 Initial referendum.
For the purpose of ascertaining whether the persons to be covered
by an order favor the order going into effect, the Administrator may
conduct an initial referendum among persons to be subject to an
assessment under the order who, during a representative period
determined by the Administrator, engaged in the production or handling
of the agricultural commodity or the importation of the agricultural
commodity.
Sec. 1200.204 Reimbursement of Secretary's expenses.
The Administrator may require any person or organization proposing
an order to post a bond or other collateral to cover the cost of the
referendum as defined in Sec. 1200.201.
Sec. 1200.205 Termination of proceedings.
If at any time during development of a new program the
Administrator concludes, based on public comments, referendum votes, or
other available information, that an order will not tend to effectuate
the declared policy of the Act, the Administrator shall terminate the
proceedings and collect reimbursements from the bond or other
collateral posted pursuant to Sec. 1200.204 for any expenses incurred
in development of the proposed program.
Sec. 1200.206 Execution of the order.
(a) Issuance of the order. The Administrator shall, if the
Administrator finds that it will tend to effectuate the purposes of the
Act, issue the final order.
(b) Effective date of order. No order shall become effective in
less than 30 days after its publication in the Federal Register, unless
the Administrator, upon good cause found and published with the order,
fixes an earlier effective date.
(c) Notice of issuance. After the Administrator issues the order,
AMS will publish notice of the order's issuance in the Federal
Register.
Bruce Summers,
Administrator, Agricultural Marketing Service.
[FR Doc. 2020-08410 Filed 4-24-20; 8:45 am]
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