2023-22508. Natural Grass Sod Promotion, Research, and Information Order; Referendum Procedures

AGENCY:

Agricultural Marketing Service, USDA.

ACTION:

Proposed rule.

SUMMARY:

This proposed rule invites comments on the establishment of procedures for conducting a referendum to determine whether issuance of a proposed Natural Grass Sod Research and Promotion Order (Order) is favored by natural grass sod producers. The procedures would also be used for any subsequent referendum under the Order. The proposed Order is being published separately in this issue of the Federal Register .

DATES:

Comments must be received on or before December 15, 2023 to be assured consideration. Pursuant to the Paperwork Reduction Act (44 U.S.C. Chapter 35) (PRA), comments on the information collection burden that would result from this proposal must be received on or before December 15, 2023 to be assured consideration.

ADDRESSES:

Interested persons are invited to submit comments concerning this notice by using the electronic process available at https://www.regulations.gov. Written comments may also be submitted to Jeana Harbison, Director; Research and Promotion Division; Livestock and Poultry Program, AMS, USDA; Room 2625–S, STOP 0251, 1400 Independence Avenue SW, Washington, DC 20250–0251. All comments should reference the document number and the date and page number of this issue of the Federal Register . All comments received will be posted without change, including any personal information provided, at https://www.regulations.gov and will be included in the record and made available to the public.

Pursuant to the PRA, 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, should be sent to the address above. In addition, comments concerning the information collection should be sent 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:

Jeana Harbison; Director; Research and Promotion Division; Telephone: [phone]; or Email to [e-mail].

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 Orders 12866, 13563, and 14094

Executive Orders (E.O.) 12866 and 13563 direct agencies to assess 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. Executive Order 14094 updates and modernizes E.O. 12866 and directs agencies to conduct proactive outreach to engage interested and affected parties through a variety of means, such as through field offices, and alternative platforms and media. This rule has been designated as not a “significant regulatory action” under section 3(f) of Executive Order 12866. Accordingly, the Office of Management and Budget (OMB) has not reviewed this action.

Executive Order 12988

This proposed rule has been reviewed under E.O. 12988, Civil Justice Reform. It is not intended to have retroactive effect. Section 524 of the 1996 Act provides that it 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 written petition with the Secretary of Agriculture (Secretary) 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, and 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 Secretary 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 the entry of Secretary's final ruling.

Executive Order 13175

This proposed rule has been reviewed under E.O. 13175—Consultation and Coordination with Indian Tribal Governments. E.O. 13175 requires Federal agencies to consult and coordinate with Tribes on a government-to-government basis on: (1) policies that have Tribal implication, including regulation, legislative comments, or proposed legislation; and (2) other policy statements or actions that have substantial direct effects on one or more Indian Tribes, on the relationship between the Federal Government and Indian Tribes, or on the distribution of power and responsibilities between the Federal Government and Indian Tribes.

AMS has assessed the impact of this proposed rule on Indian Tribes and determined that this rule would not have Tribal implications that require consultation under E.O. 13175. AMS hosts a quarterly teleconference with Tribal leaders where matters of mutual interest regarding the marketing of agricultural products are discussed. Information about the proposed regulation will be shared during an upcoming quarterly call, and Tribal leaders will be informed about the proposed regulation and the opportunity to submit comments. AMS will work with the U.S. Department of Agriculture (USDA) Office of Tribal Relations to ensure meaningful consultation is provided as needed with regards to the regulations.

Background

This proposed rule invites comments on procedures for conducting a referendum to determine whether natural grass sod producers support the issuance of a natural grass sod Order. AMS would conduct the referendum. Should an up-front referendum be held, AMS would publish a final rule for the referendum procedures that would state the timing and voting method for the referendum. AMS would also conduct extensive outreach to natural grass sod producers to inform them of the referendum voting process and the deadlines for voting. As an up-front referendum, producers would cast a vote on the revised draft Order, based on comments received from the public, that will be published at the same time as the final rule for the referendum procedures. The program would be implemented if it is favored by a simple majority of natural grass sod producers voting in the referendum that have been engaged in the production and sale of natural grass sod products in the United States during a representative period determined by the Secretary. The proposed Order is being published separately in this issue of the Federal Register .

Should the referendum result in support for the creation of the program, AMS would publish a final rule for the Order that would include the date for when assessments would begin to be collected. The referendum procedures in this proposed rule would also be used for any subsequent referenda conducted under the Order. This proposed rule also announces AMS's intent to request approval by OMB of new information collection requirements to implement the program.

Authority in the 1996 Act

The Commodity, Promotion, Research and Information Act of 1996 (7 U.S.C. 7411–7425) authorizes USDA to establish agricultural commodity research and promotion orders that 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 sec. 513(1) of the 1996 Act (7 U.S.C. 7412), agricultural commodities. The 1996 Act provides for alternatives within the terms of a variety of provisions. Paragraph (e) of sec. 518 of the 1996 Act (7 U.S.C. 7417) 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, sec. 518 of the (7 U.S.C. 7417) 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.

Program Overview

AMS received a proposal for a national research and promotion program for natural grass sod from Turfgrass Producers International (TPI). TPI is an industry organization made up of members from across the natural grass seed and sod industry worldwide. The program would be financed by an assessment on natural grass sod products and would be administered by a board of industry members selected by the Secretary. Initially, producers would pay one-tenth (1/10th) of one penny ($0.01) per square foot, or the equivalent thereof, of natural grass sod products. No natural grass sod producer would be exempt from paying the assessment unless producing a certified organic product under the National Organic Program.

The purpose of the program would be to strengthen the position of natural grass in the marketplace, maintain and expand markets for natural grass, and develop new uses for natural grass. TPI proposed that a referendum be held among eligible natural grass sod producers to determine whether they favor implementation of the program prior to the Order going into effect. TPI recommended that the program be implemented if it is favored by a simple majority of the natural grass sod producers voting in the referendum.

Summary of Regulatory Text

Because the regulatory text proposed herein contains the complete proposed Order, this section will highlight key proposed provisions.

Definitions

Proposed § 1240.81 of the Referendum Procedures defines certain terms that would be used throughout. All terms have the same meaning as set forth in § 1240.20 of Subpart A.

Proposed § 1240.83 discusses eligibility and manner of persons voting. An eligible Natural Grass Sod Producer, officer or employee of an eligible Natural Grass Sod Producer, an administrator, executor, or trustee of an Eligible Natural Grass Sod Producer may cast a ballot. Any individual so voting in a Referendum shall certify 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.

Proposed § 1240.84 discusses the Referendum Agent, appointed by the Administrator, who will provide instructions for voting and conduct the Referendum. The Referendum Agent will determine the time period during which ballots may be cast and give reasonable public notice of the Referendum, not less than thirty (30) days. No person who claims to be an Eligible Natural Grass Sod Producer will be refused a ballot. At the end of the voting period the agent will tabulate the results, prepare a report on the Referendum, and announce the results to the public.

Initial Regulatory Flexibility Analysis

In accordance with the Regulatory Flexibility Act (RFA) (5 U.S.C. 601–612), AMS is required to examine the impact of this rule on small entities. Accordingly, AMS has prepared this initial regulatory flexibility analysis (RFA).

The purpose of 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.

According to 2017 USDA National Agricultural Statistics Service data, there are 1,465 farms in the U.S. producing natural grass; of those, approximately 70 percent (or 1,034 farms), would be classified as small agricultural producers based on value of sales per farm.

This proposed rule invites comments on procedures for conducting a referendum to determine whether natural grass sod producers favor issuance of a proposed natural grass sod Order. AMS would conduct the referendum. As previously mentioned, paragraph (e) of § 518 of the 1996 Act (7 U.S.C. 7417) 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. This program is an industry-led effort to drive consumer demand for natural grass sod products through the development and implementation of programs, plans, and projects of research, information, and promotion, with funding for such efforts provided by the industry through assessments paid by natural grass sod producers involved in the production of monostands or blends or mixtures of Bentgrass, Bermudagrass, Buffalograss, Centipedegrass, Fine fescue, Kentucky bluegrass, Ryegrass, Seashore Paspalum, St. Augustinegrass, Tall fescue, Zoysiagrass, Bahiagrass, and other native or adapted grasses harvested and sold as sod, and products containing natural grass with artificial elements that are sold as sod (“natural grass sod products”). In order to ensure that natural grass sod producers involved in the sale of natural grass sod products make the decision on whether this program should be implemented, and subsequently continue or not, this program would be implemented if it is favored by a majority of natural grass sod producers voting in a referendum. This procedure would also be used for any subsequent referendum under the Order. Eligible natural grass sod producers would have the opportunity to participate in the referendum. Voting in the referendum is optional and this proposal outlines the requirements for doing so, such as instructions outlining the referendum process.

Regarding alternatives, AMS is considering a variety of options to hold the referendum vote including email, mail, electronic voting through a smartphone application or website, sending ballots to one central location by mail ballot or through electronic mail, or by other means selected by the Administrator. AMS has previously conducted referenda through USDA Farm Service Agency County Offices for some larger checkoff programs. For more recently created programs, AMS has utilized an online voting application. AMS would provide easy access to information for potential voters through an email, telephone number, and internet-based resources. AMS is seeking comments on the preferred option or if there are other alternatives to consider.

This action would impose an additional reporting burden on natural grass sod producers. Natural grass sod producers would have the opportunity to complete and submit a ballot to AMS indicating whether or not they favor implementation of the proposed Order or, for subsequent referenda of an approved program, a continuance of the program. 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, AMS 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, AMS 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. AMS would also publicize information regarding the referendum process so that trade associations and related industry media are informed and can amplify the information to eligible producers.

AMS 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 rule, has been submitted to OMB for approval.

Title: Natural Grass Sod Research and Promotion Program.

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 the request are essential to carry out the intent of the 1996 Act. The information collection concerns a proposal received by AMS for a national research and promotion program for natural grass sod. The program would be financed by an assessment on natural grass sod and would be administered by a board of industry members selected by the Secretary.

A referendum would be held among natural grass sod producers to determine whether they favor the draft Order and subsequent implementation and operation of the program prior to it going into effect. The purpose of the program would be to help build the market for natural grass sod.

The information collection requirements in this rule concern the referendum that would be held to determine whether the program is favored by the industry. The ballot would be completed by natural grass sod producers who want to indicate whether or not they support implementation of the program.

For the purpose of estimating the cost of reporting and recordkeeping, this proposed rule uses $51 per hour. To arrive at this amount, AMS used the mean hourly earnings of farmers, ranchers, and other agricultural managers ($36.93) from the U.S. Department of Labor, Bureau of Labor Statistics, May 2020 National Occupational Employment and Wages Estimates.^[1] The mean hourly wage rate of $36.93 plus an additional 38.1 percent to account for benefits and compensation,^[2] for a total hourly wage of $51, was used to calculate annual cost. Costs of benefits and compensation guidance was obtained from the Bureau of Labor Statistics News Release issued December 14, 2018.^[3]

Information collection requirement that is included in this proposal is: LP–8 Referendum Ballot (OMB Form No. 0581–NEW).

Estimate of Burden: Public recordkeeping burden for this collection of information is estimated to average 0.1 hours per referendum ballot.

Respondents: Natural grass sod producers.

Estimated Number of Respondents: 1,400.

Estimated Number of Responses per Respondent: 1 every 7 years (Once implemented, subsequent referenda every 7 years thereafter) 0.14 per year.

Estimated Total Annual Burden on Respondents: 20 hours.

Total Cost: (20 hours × $51) $1,020.

The ballot would be added to the other information collections approved under OMB 0581–NEW.

An estimated 1,400 respondents would provide information to the AMS. The estimated cost of providing the information to AMS by respondents would be $1,020. This total has been estimated by multiplying 20 total hours required for reporting and recordkeeping by $51 per hour, representing the average hourly earnings plus benefits by various occupations involved in keeping this information. Data for computation of this hourly rate was obtained from the U.S. Department of Labor Statistics.

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 AMS's oversight of the proposed Order, including whether the information would have practical utility; (b) the accuracy of AMS's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used; (c) the accuracy of AMS's estimate of the number of natural grass sod that would be covered under the program; (d) ways to enhance the quality, utility, and clarity of the information to be collected; and (e) 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 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 rule.

A 60-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.

This proposed rule invites comments on the establishment of referendum procedures for the vote of the creation of an industry-funded research, promotion, and information program for natural grass products. Comments should clearly indicate whether or not you support any or all of the provisions proposed in the referendum procedures. Indicate the reason for your position and include relevant information and data to further support your position.

List of Subjects in 7 CFR Part 1240

• Administrative practice and procedure
• Advertising
• Consumer information
• Marketing agreements
• Natural grass sod
• Reporting and recordkeeping requirements

For the reason set forth in the preamble, the Agricultural Marketing Service proposes to amend 7 CFR part 1240 to read as follows:

PART 1240—NATURAL GRASS SOD PROMOTION, RESEARCH, AND INFORMATION ORDER

1. The authority citation for 7 CFR Part 1240 continues to read as follows:

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

2. Add subpart B to part 1240 to read as follows:

Subpart B—Referendum Procedures

1240.80

General.

1240.81

Definitions.

1240.83

Voting.

1240.84

Instructions.

1240.85

Subagents.

1240.86

Ballots.

1240.87

Referendum Report.

1240.88

Confidential Information.

1240.89

OMB Control Number.

Subpart B—Referendum Procedures

§ 1240.80

General.

Referenda to determine whether eligible natural sod producers favor the issuance, continuance, amendment, suspension, or termination of the Natural Grass Sod Research and Promotion Order shall be conducted in accordance with this Subpart B.

§ 1240.81

Definitions.

For purposes of this Subpart B, all defined terms shall have the same meaning as set forth in § 1240.20 of Subpart A. In addition, the following terms shall have the meanings set forth below:

Administrator means the Administrator of the Agricultural Marketing Service, or any officer or employee of USDA to whom there has been delegated or may be delegated the authority to act in the Administrator's stead.

Referenda refers, collectively, to the Initial Referendum and any Subsequent Referenda.

Referendum refers, individually, to the Initial Referendum or a Subsequent Referendum.

Referendum Agent or Agent means the individual or individuals designated by the Secretary to conduct the referendum.

Person means any individual, group of individuals, partnership, corporation, association, cooperative, or any other legal entity.

§ 1240.83

Voting.

(a) Each Eligible Natural Grass Sod Producer as set forth in § 1240.20 of Subpart A, shall be entitled to cast only one ballot in any Referenda.

(b) Proxy voting is not authorized, but an officer or employee of an eligible Natural Grass Sod Producer, or an administrator, executor, or trustee of an Eligible Natural Grass Sod Producer 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 Natural Grass Sod Producer, or an administrator, executive, or trustee of the Eligible Natural Grass Sod Producer 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, electronic mail, electronic voting through a smartphone application or website or sending ballots to one central location by mail ballot or through electronic mail or by any other means set forth by the Department.

§ 1240.84

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, consistent with the provisions of this Subpart, to govern the procedure to be followed by the Referendum Agent. Such Agent shall:

(a) Determine the time 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 Natural Grass Sod Producer;

(c) Give reasonable public notice of the Referendum, not less than thirty (30) days:

(1) By using 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, radio, email communications, and social media; and

(2) By such other means as the Agent may deem advisable.

(d) Distribute to Eligible Natural Grass Sod Producers whose names and contact information are known to the Referendum Agent, the instructions on voting, a ballot, and a summary of the terms and conditions of the proposed Natural Grass Sod Promotion, Research, and Information Order or the continuance of the Natural Grass Sod Promotion, Research, and Information Order, as the case may be. No Person who claims to be an Eligible Natural Grass Sod Producer 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; and

(g) Announce the results to the public.

§ 1240.85

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.

§ 1240.86

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 deemed invalid under this Subpart shall not be counted.

§ 1240.87

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.

§ 1240.88

Confidential information.

The ballots and other information or reports that reveal, or tend to reveal, the vote of any Natural Grass Sod Producer and the voter list shall be strictly confidential and shall not be disclosed.

§ 1240.89

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. is OMB control number 0581–NEW.

Melissa Bailey,

Associate Administrator, Agricultural Marketing Service.

Footnotes

1.  Occupational Employment and Wages, May 2020; 11–9013 Farmers, Ranchers, and Other Agricultural Managers https://www.bls.gov/​oes/​current/​oes119013.htm.

2.  News Release for Employer Costs for Employee Compensation—June 17, 2021, https://www.bls.gov/​news.release/​pdf/​ecec.pdf.

3.  Economic News Release: Employer Costs for Employee Compensation Summary for December 2020 https://www.bls.gov/​news.release/​ecec.nr0.htm.