Lamb Promotion, Research, and Information Order; Activity Changes
| Published date | 22 December 2021 |
| Citation | 86 FR 72507 |
| Record Number | 2021-27467 |
| Section | Rules and Regulations |
| Court | Agricultural Marketing Service |
This section of the FEDERAL REGISTER
contains regulatory documents having general
applicability and legal effect, most of which
are keyed to and codified in the Code of
Federal Regulations, which is published under
50 titles pursuant to 44 U.S.C. 1510.
The Code of Federal Regulations is sold by
the Superintendent of Documents.
Rules and Regulations Federal Register
72507
Vol. 86, No. 243
Wednesday, December 22, 2021
DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Part 1280
[Document No. AMS–LP–19–0093]
RIN 0581–AC06
Lamb Promotion, Research, and
Information Order; Activity Changes
AGENCY
: Agricultural Marketing Service,
USDA.
ACTION
: Final rule.
SUMMARY
: This rulemaking revises the
Lamb Promotion, Research, and
Information Order (Order), requiring
market agencies (e.g., commission
merchant, auction market, livestock
market) in the business of receiving
lambs to collect and remit on behalf of
the producer, feeder, or seedstock
producer, the ‘‘live-weight’’ assessment
on ovine animals sold and the ‘‘price-
per-head’’ assessment owed by the first
handler when lambs are sold through
these channels. Market agencies are
required to remit the full assessment to
the American Lamb Board (also known
as the Lamb, Promotion, Research, and
Information Board (Board)) when ovine
animals are sold. This rulemaking
includes technical amendments to the
Order, correcting references to
assessment rates that were inadvertently
not updated during the previous
amendment to the Order.
DATES
:
Effective date: January 21, 2022.
Delayed enforcement date:
Enforcement of the market agency
assessment remittance procedures is
delayed until March 22, 2022.
FOR FURTHER INFORMATION CONTACT
:
Jason Julian, Agricultural Marketing
Specialist, Research and Promotion
Division, Livestock and Poultry
Program, AMS, USDA; Telephone: (202)
731–2149; or Email: jason.julian@
usda.gov.
SUPPLEMENTARY INFORMATION
: Under the
Order (7 CFR part 1280), which became
effective April 11, 2002, the Board
administers a nationally coordinated
program of research, development, and
promotion activities designed to
strengthen the position of, and to
develop and expand the markets for,
ovine animals and ovine products. The
program is financed by producers,
feeders, and seedstock producers (i.e.,
producers) who pay an assessment of
seven-tenths of a cent ($0.007) per
pound on all live lambs sold.
Additionally, first handlers or exporters,
pay $0.42 per head on ovine animals
purchased for slaughter.
The Order currently mandates that
assessments be collected from producers
or feeders for the sale of live lambs, and
that the assessment be forwarded to the
subsequent purchaser (if applicable)
until remitted by a first handler or
exporter. That first handler or exporter
is responsible for submitting both the
producer or feeder’s assessment and the
first handler or exporter’s assessment
and volume report to the Board. The
collection process is known as a ‘‘pass-
through’’ assessment. Since the initial
Order was established, industry markets
have evolved; non-traditional first
handlers, such as ethnic processors
(butcher shops) and farmers market
processors now participate to a larger
degree in the purchasing and processing
of lamb and lamb products. However,
based on information about lamb sales
from market agencies, the Board
believes many non-traditional first
handlers are not remitting assessments,
as required by the Order. The Board, in
turn, is not capturing all assessments
paid by producers and feeders. Over the
years, Board staff has worked to collect
the owed lamb assessments from the
nontraditional buyers, with limited
success.
On January 23, 2019, the Board
approved a motion to request the
Secretary of Agriculture (Secretary)
amend the assessment collection
procedures and update corresponding
sections of the Order. The revisions to
the assessment collection procedures
require market agencies to collect the
full assessment, including the first
handler assessment portion, for
remittance to the Board. The assessment
collection change only impacts lambs
sold through market agencies. Other
modes of sale, such as traditional
markets (e.g., first handler purchases
from a producer or feeder, independent
of a market agency) will continue to use
the pass-through assessment collection
process. Examples 1 and 2 below show
the current assessment collection
processes when lambs are sold through
a market agency:
Example 1—Existing Procedures—
Producer sells lambs at market agency
to a first handler: The producer pays the
assessment to the market agency who
passes the assessment through to the
first handler. The first handler remits
the live-weight (LW) and price-per-head
(PH) assessments to the Board along
with a Remittance Report form. This
example is depicted in Figure 1.
BILLING CODE P
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Example 2—Existing Procedures—
Producer sells lambs at market agency
to a feeder. At a later date, the feeder
sells the same lambs to a first handler
(via traditional sales/non-market
agency): The producer pays the live-
weight assessment (LW) to the market
agency, who passes the assessment
through to the feeder. At a later date, the
feeder sells the same lambs to a first
handler, where the LW assessment
passes-through to the first handler, who
remits the LW assessment and the PH
assessment to the Board. This example
is depicted in Figure 2.
Under the proposed rule, existing
procedures in Example 1 above would
stay the same and existing procedures in
Example 2 above, would be replaced as
shown in the following three scenarios.
Under this final rule, existing
procedures in Example 1 and Example
2 will be replaced as shown in the
following three scenarios.
Example 3—Revised Procedure—
Producer sells lambs at market agency
to first handler: Under this final rule,
the market agency collects the LW
assessment from the producer and the
PH assessment from the first handler
and remits both assessments to the
Board. This example is depicted in
Figure 3.
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Figure
1.
Producer
Figure
2.
Producer
Market
Aaancy
Feeder
lambs
Sold
Flrat
Handler
Board
Board
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Federal Register / Vol. 86, No. 243 / Wednesday, December 22, 2021 / Rules and Regulations
Example 4—Revised Procedure—
Producer sells lambs at market agency
to a feeder. At a later date, the feeder
brings the same lambs to a market
agency to sell to a first handler: The
producer pays the LW assessment to the
market agency. The feeder pays the PH
assessment to the market agency, which
remits both assessments to the Board
(LW and PH). At a later date, when the
feeder sells the same lambs at market
agency, the feeder pays the LW
assessment to the market agency, and
the first handler pays the PH assessment
to the market agency, which remits both
assessments to the Board (LW and PH).
Since the feeder was initially charged
the PH assessment (first handler’s
assessment) and then paid the total LW
assessment (lambs sold at market agency
to the first handler), the feeder is
eligible for a refund on the original PH
assessment (initial first handler’s
assessment) and the difference between
the total LW assessment and the
producer’s LW assessment. If the feeder
were to exercise this option to recoup
the two assessments, the feeder
completes the Lamb Assessment
Refund, form LP–85, and files with the
Board to receive a refund. This example
is depicted in Figure 4.
Example 5—Revised Procedure—
Producer sells lambs at a market agency
to a feeder. At a later date, the feeder
sells the lambs to a first handler (via
traditional market/non-market agency
sale): The producer pays the LW
assessment to the market agency.
Additionally, the feeder pays the PH
assessment to the market agency, which
remits both assessments to the Board
(LW and PH). At a later date, when the
feeder sells the lambs to a first handler
(via traditional market/non-market
agency sale), the feeder pays the LW
assessment to the first handler, who
remits the LW assessment and the PH
assessment to the Board. The feeder is
eligible for refunds on the original PH
assessment paid (first handler
assessment) and the difference between
the total LW assessment and the
producer’s original LW assessment. If
the feeder were to exercise this option
to recoup the two assessments, the
feeder completes the Lamb Assessment
Refund, form LP–85, and files with the
Board to receive a refund. This example
is depicted in Figure 5.
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Figure
3.
Producer First
Handler
Baard
Figure
4.
Feeder Feeder
First Handler
Board
Board
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BILLING CODE C
The amended collection process is
estimated to generate approximately
$500,000 in new revenue, or
approximately 20 percent of the Board’s
annual budget, based on 2019
production levels (pre-COVID 19). The
Board’s budget is based on the amount
of assessments collected on an annual
basis, voluntary contributions, and
revenue derived from the investment of
funds.
This final rule also adds a definition
for market agency and makes technical
corrections to the regulations that
remove references to obsolete
assessment rates. Finally, references to
Order administration prior to
appointment of the Board are removed.
The Commodity Promotion, Research,
and Information Act of 1996 (Act) (7
U.S.C. 7413) provides for the creation
of, and amendments to, the Order. The
Order provides in § 1280.210 that the
Board shall have the powers and duties
to recommend to the Secretary such
amendments to the Order as the Board
considers appropriate.
Revisions
This final rule revises § 1280.101 to
consolidate definitions listed in
§ 1280.101 through §1280.129 and to
establish a definition for market agency.
Sections 1280.102 through 1280.129 are
removed. This change alphabetizes and
consolidates the definitions into one
section, to simplify any future revisions
to the Definitions Section.
This final rule revises § 1280.217(a) to
reflect the current assessment rate of
seven-tenths of a cent ($.007) per pound
of live lambs sold. This corrects the
reference to an obsolete assessment rate.
Additionally, this final rule incorporates
the last three sentences from current
§ 1280.217(e) into §1280.217(a),
maintaining the right of the Board to
raise or lower the assessment rate.
Section 1280.217(e) will be removed.
This final rule revises § 1280.217(c) to
reflect the current first handler
assessment rate and make a conforming
change to reflect the elimination of
§ 1280.217(e). Additionally, a reference
in § 1280.217(c) to the assessment rate
in § 1280.217(e) is revised to reference
the assessment rate in corrected
§ 1280.217(a).
This final rule revises § 1280.217(d)
requiring market agencies to collect and
remit the producer, seedstock producer,
feeder, or first handler assessments to
the Board. Additionally, § 1280.217(d),
provides that lamb feeder farms who
pay assessments twice may request a
refund by completing and submitting
the Lamb Assessment Refund, form LP–
85, to the Board. This final rule removes
§ 1280.217(g), as it is no longer
applicable, and makes conforming
changes. Additionally, this final rule
redesignates § 1280.217(f) as
§ 1280.217(e) and §1280.217(h) as
§ 1280.217(f).
This final rule revises § 1280.218 to
reference the assessment rate
established in § 1280.217(a). This final
rule revises § 1280.218 to change
assessment due dates from ‘‘time of
export’’ to ‘‘the 15th day of the month
following the month in which the lambs
were purchased for slaughter and export
or live export.’’ This aligns with the
current process for the collection of
assessments listed in § 1280.220.
This final rule revises § 1280.220(a)
and provides that market agencies, as
well as first handlers and exporters, are
responsible for collecting and remitting
assessments to the Board.
This final rule makes a conforming
change to § 1280.402(b) requiring
market agencies to collect and remit
assessments to the Board, to reflect the
revision in § 1280.217(d).
Finally, this final rule revises
§ 1280.402(e)(1) by removing, ‘‘. . . if a
first handler markets lambs or lamb
products directly to consumers, in order
to avoid late payment charges.’’ This
phrase, which is not applicable here,
was placed in this section inadvertently
and should be removed.
Comments
The Agricultural Marketing Service
(AMS) received 11 submissions to the
proposed rule, 3 of the submissions
contained multiple comments to the
proposed rule.
Comment: One comment from an
individual agreed with the proposed
rule.
AMS Response: No response.
Comment: One comment received
from an individual stated, ‘‘go lambs.’’
AMS Response: No response.
Comment: One comment received by
a livestock sales association was against
the proposed rule, stating that ‘‘. . .
requiring only transactions by marketing
agencies, exporters, and first handlers to
collect and remit the assessments, much
of the volume currently conducted by
marketing agencies will move away.
This volume as well as volume
currently conducted by other entities
and individuals, will not be subject to
collection and remittance of checkoff
funds.’’
AMS Response: Traditional lamb sales
(first handler purchases from a producer
or feeder, independent of a market
agency) will still be subject to the
current assessment remittance
procedures via the pass-through
collection process. Additionally, the
Board performs monthly compliance
checks and random onsite audits to
determine potential sellers and buyers
who are not remitting their assessments.
Lastly, if the Board is made aware of
new processing facilities or individuals
who are selling or buying lambs, they
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Figure
5.
B~-,----,-,-
Fueler
Board Board
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will notify such individuals of their
requirements to remit assessments and
will perform onsite audits, if needed.
These efforts assist in ensuring that all
appropriate entities and individuals
who are subject to collection and
remittance of checkoff funds are
following the requirements of the Act
and Order.
Comment: One comment received by
a national trade association for livestock
auction markets, stated that ‘‘If auction
markets are going to be made mandatory
collection points, then all participants
should be made to follow the rules of
the checkoff through the pass-through
and remittance requirements. The
Board, through their partnership with
the U.S. Department of Agriculture
(USDA), AMS, should prioritize finding
solutions to help those currently not
participating in the process to come into
compliance.
AMS Response: Anyone who sells or
buys domestic lamb or lamb products in
the United States of America, is
required by law to pay the price-per-
pound and price-per-head assessments.
In order to reduce assessment
delinquency rates or non-payment of
assessment rates, the Board proposed
market agencies collect the assessments
at the point of sale/purchase. The
collection of assessments at the market
agency level will be a solution to those
who do not currently participate in the
assessment remittance process at the
market agency level. Individuals who do
not remit their assessments or who are
late in the pass-through remittance
process will continue to be subject to
the Board’s Compliance Department.
Additionally, the Board performs
monthly compliance checks and
random onsite audits to determine
potential sellers and buyers who are not
remitting their assessments. Lastly, if
the Board is made aware of new
processing facilities or individuals who
are selling or buying lambs, they will
notify such individuals of their
requirements to remit assessments and
will perform onsite audits, if needed.
These efforts assist in ensuring that all
appropriate entities and individuals
who are subject to collection and
remittance of checkoff funds are
following the requirements of the Act
and Order.
Comment: One comment received was
concerned that ‘‘If the reason for making
these changes are because first handlers
are not remitting assessments to the
Board now, it cannot be assumed they
would disclose to the market agency
they are the first handler and have the
assessment deducted after the
amendment.’’
AMS Response: Under the final rule,
anyone purchasing lambs at a market
agency will be required to pay the $0.42
per-head-assessment rate on ovine
animals, regardless if the buyer
discloses that they are a first handler or
not. Currently, there is no requirement
in the Order for disclosing first handler
status.
Comment: One comment received was
concerned with implementation costs of
the proposed rule. Another commenter
was concerned with implementation
costs of the proposed rule as well as the
technical training of market agency staff
on how to perform assessment
collection procedures.
AMS Response: The Board will cover
the costs of upgrades to each
respondent’s existing computer software
system (at an estimated cost of $500 per
respondent) and provide hands-on
training to amend the collection and
remittance process. Once this final rule
is implemented, the Board will perform
educational outreach to the market
agencies to educate them on the new
collection and remittance process. The
outreach efforts will also consist of
mailed educational materials and
training webinars, which is estimated to
cost $5 per respondent.
Comment: One commenter asked for
flexibility on the frequency of
assessment remittances to ‘‘relieve the
burden of constant documentation and
remittance on markets, particularly
those who do not regularly sell small
ruminants at their businesses.’’
Additionally, another commenter from
an advocacy alliance group stated that
‘‘if market agencies already have low
sales volume, it is the position of the
alliance that AMS ought to be lifting
burdens, rather than adding to them.’’
AMS Response: Due to the above
comments, AMS reopened the comment
period on two separate occasions [86 FR
10459 and 86 FR 24513] to encourage
additional input on:
1. What level or threshold should
AMS consider as a low-volume market
agency that might be eligible for
additional flexibility?
2. Approximately how many market
agencies would fit into such a category?
3. How would this type of flexibility
reduce regulatory burden for those
market agencies?
Unfortunately, during the two
additional comment periods, no data
was provided to AMS to define a low-
volume market agency. Should such
data be provided at a later date, AMS
would consider defining a low-volume
market agency in hopes of alleviating
the burden to said agencies. However,
the final rule does allow for flexibility
in the remittance process as auction
markets only need to complete a
remittance form when lambs were sold
in the previous month. For those
markets that do not sell lambs each
month, this offers flexibility in the
remittance of assessments. For example,
seasonal market agencies, who facilitate
the selling and buying of lambs for 3
months out of the year, will only be
required to collect and remit
assessments for those 3 months.
Comment: One commenter was
concerned that the proposed rule could
‘‘create an incentive for sellers of sheep
to choose to market their livestock
outside of a public auction environment
through other private channels (e.g.,
livestock dealers or direct sales) to skirt
around checkoff requirements.’’
AMS Response: Traditional lamb sales
(first handler purchases from a producer
or feeder, independent of a market
agency) will still be subject to the
current assessment remittance
procedures via the pass-through
collection process.
Multiple commenters responding to
the proposed rule submitted comments
that were outside the scope of this
particular rulemaking. For example, one
commenter suggested that Research and
Promotion Programs should be
voluntary in nature, instead of
mandatory. Two commenters responded
to the proposed rule in what appeared
to be Slovakian language. When
translated, the comments mentioned a
cleaning company and the services they
provided. Three commenters made
disparaging remarks about the U.S.
Government. Accordingly, AMS is
making no changes to the final rule
based on these comments.
Executive Orders 12866 and 13563
AMS is issuing this final rule in
conformance with Executive Orders
(E.O.) 12866 and 13563, which 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). E.O. 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 E.O. 12866
review.
Executive Order 12988
This final rule has been reviewed
under E.O. 12988, Civil Justice Reform.
It is not intended to have a retroactive
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effect. Section 524 of the 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 Act (7 U.S.C.
7418), a person subject to an order may
file a written petition with 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, 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 2 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, USDA will issue a
ruling on the petition. The 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 USDA’s final ruling.
Executive Order 13175
This final 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
final rule on Indian tribes and
determined that this rule will not have
tribal implications that require
consultation under E.O. 13175.
Additionally, AMS hosts a quarterly
teleconference with tribal leaders where
matters of mutual interest regarding the
marketing of agricultural products are
discussed. Information about the final
rule was shared with tribal leaders
during a quarterly conference call. AMS
will continue to work with the USDA
Office of Tribal Relations to ensure
meaningful consultation is provided as
needed with regards to the regulations.
Regulatory Flexibility Act
Pursuant to the requirements set forth
in the Regulatory Flexibility Act (RFA)
(5 U.S.C. 601 et seq.), AMS has
performed a RFA review regarding the
impact of the final rule on small
entities. The purpose of RFA is to fit
regulatory actions to the scale of
businesses subject to such actions in
order that small businesses will not be
unduly burdened. AMS determined that
small businesses will not be unduly
burdened.
The North American Industry
Classification System (NAICS) code for
sheep farms is 112410. The Small
Business Association (SBA) size
classification for this industry limits the
number of employees for a small
business to 100 people. Based on
industry response, almost all lamb farms
employ fewer than 100 people; in fact,
almost all lamb farms employ less than
15 people. The majority of lamb farms
are considered small businesses.
According to the 2017 Census of
Agriculture (AC–17–A–51), there were
60,675 farms that sold sheep and lambs.
This number includes sheep and lambs
raised for dairy, wool, and meat. This
final rule focuses only on those lambs
raised for meat. The census does not
break down the data to the level of lamb
feeder farms. Therefore, AMS has
worked with industry stakeholders to
understand the makeup of the industry.
According to lamb industry estimates, of
those 60,675 farms, 500 farms are
considered feeder farms that raise lambs
for meat. Additionally, the lamb
industry estimates that of those 500
feeder farms, approximately 10 percent,
or 50 of those feeder farms, could
potentially purchase/sell their lambs at
market agencies. The remainder of the
feeder farms sell lambs directly to a first
handler. Therefore, AMS has concluded
that the number of feeder farms that
raise lambs for meat that will be
financially impacted by this final rule
will not be considered substantial.
This final rule does not increase the
assessment rates under the Order, thus
no new economic burden is placed on
producers, feeders, seedstock producers,
or first handlers for sales that take place
outside of market agencies, as that
process for paying assessments will not
change. When a sale takes place at a
market agency, no new burden will be
placed on producers or seedstock
producers, regardless of size, as they
will continue to pay their assessments
to the market agency. No new burden
will be placed on first handlers of any
size as they will remit assessments to
the market agency instead of the Board.
However, the final rule will place a
burden on feeder farms who pay
assessments twice, having to seek
reimbursement for two assessments paid
for the same lambs by filling out a Lamb
Assessment Refund form. However,
AMS concluded that this impact will
not be considered substantial. Under
this final rule, a lamb feeder farm could
potentially pay assessments twice in
scenarios 4 and 5 described above and
will need to fill out a refund form after
selling the lambs through a market
agency to recoup the twice-paid
assessment. This paperwork burden is
described in detail in the Paperwork
Reduction Act section of this final rule.
During the initial 60-day comment
period [85 FR 62617], AMS sought
comments on whether the limited data
available is representative of industry
lamb numbers and what alternative data
sources, if any, were available to further
refine this analysis. Unfortunately, no
data existed.
This final rule does require market
agencies to report and collect
assessments from producers, feeders,
seedstock producers, and first handlers;
and remit to the Board, thus placing a
new burden on market agencies to
collect and remit assessments for the
sale and purchase of lambs.
NAICS code for marketing agencies is
424520. Firms in the 424-sector
classification are defined as large or
small depending on the number of
employees rather than sales values. SBA
size classification for this industry
limits the number of employees for a
small business to 100. Data on employee
numbers for this industry is available
from the U.S. Department of Commerce,
Census Bureau. The most recent
available data to determine the size of
firms in the industry is from the 2012
Economic Census. According to the
data, the vast majority of the firms (666
of 668 total firms) are small businesses.
According to industry, of the 666
existing firms, approximately 300
market agencies that sell lambs will be
impacted by this final rule. Currently,
50 full-time market agencies are
voluntarily collecting and remitting
producer assessments to the Board;
however, they are not collecting and
remitting first handler assessments.
Additionally, 250 seasonal market
agencies are not collecting and remitting
either of the assessments to the Board.
The Board provided AMS an estimate
that all 50 full-time market agencies
currently utilize computer software in
their information collection and billing
processes. Therefore, implementation
costs will consist of upgrades to each
respondent’s existing computer software
system and hands-on training to amend
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the collection and remittance process, at
an estimated cost of $500 per
respondent that will be paid for by the
Board. Thus, lessening the burden on
the markets. Additionally, the Board has
provided an estimate to AMS that a
large majority of the 250 seasonal
market agencies currently perform their
information collection and billing
process utilizing computer software
programs. Due to seasonal sales and low
sheep volume sales per respondent,
AMS anticipates that the seasonal
markets will be able to utilize existing
computer software systems or existing
hard-copy tracking procedures for the
new collection and remittance process.
Once this final rule is implemented, the
Board will perform educational
outreach to the seasonal market agencies
to educate them on the new collection
and remittance process. The outreach
efforts will consist of mailed
educational materials and training
webinars to limit the burden on auction
managers to train personnel, which is
estimated will cost $5 per respondent.
Once the computer software is installed
and the outreach efforts have been
completed, the physical submission of
the assessments to the Board will be the
only burden on market agencies, which
is considered a minor burden. However,
the option to electronically remit the
owed assessments to the Board is
available, which will further reduce the
burden. AMS considered the economic
effect of this action on small entities and
has determined that this final rule,
while imposing new administrative
burdens on market agencies and some
feeder farms, will not have a significant
economic impact on a substantial
number of small entities.
Paperwork Reduction Act
The information collection and
recordkeeping requirements that are
imposed by the Order have been
approved previously under OMB
control number 0581–0093. In
accordance with the Paperwork
Reduction Act of 1995 (44 U.S.C.
Chapter 35, subchapter I).
The existing form (LP–81) will be
amended to require data for the total
lambs sold/slaughtered, to effectively
carry out the requirements of the
program, and its use is necessary to
fulfill the intent of the Act. The Board
will supply such information for data
processing software and/or technical
expertise to train market agency staff on
how to complete the information
collection and remittance process. The
lamb information collection and
remittance form will be simple, easy to
understand, and will place as small a
burden as possible on the person
required to file the information.
The timing and frequency of
collecting the revised information are
intended to meet the needs of the
industry while minimizing the amount
of work necessary to fill out the required
reports. In addition, the information that
will be included on this form is not
available from other sources because
such information relates specifically to
individual market agencies who are
reporting information subject to the
provisions of the Act. There is no
practical method for collecting the
required information without the use of
these forms.
Information collection requirements
that are in this proposal include:
Title: LP–81—Lamb Promotion,
Research, and Information Board
Remittance Report form.
OMB Number: 0581–0093.
Type of Request: Amended collection.
Abstract: The information collection
requirements are essential to carry out
this rule.
The Order authorizes the collection of
assessments from lamb producers,
feeders, seedstock producers, and first
handlers. Under this final rule, market
agencies are required to collect and
remit assessments, while the collection
and remittance process remains
unchanged for lamb sales independent
of market agencies. This final rule
requires assessment-related records,
including the Remittance Report form,
be retained for at least 2 years beyond
the fiscal year of their applicability.
This is consistent with the current
recordkeeping requirements of the
program. Two hundred fifty of the 300
market agency respondents operate on a
seasonal basis. It is estimated that these
market agencies will complete three
responses per respondent, as
assessments are submitted monthly and
a typical season consists of 3 months.
The additional 50 market agency
respondents operate on a full-time basis.
These market agencies will complete an
estimated 12 responses per year per
respondent, as assessments are
submitted monthly.
The design of this form has 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 lamb
programs administered by USDA. The
form will be available through the Board
or USDA. The information collection
will be used only by authorized Board
employees and representatives of
USDA, including AMS staff.
(1) The request for approval of the
amended information collection is as
follows: Form LP–81, Lamb Promotion,
Research, and Information Board
Remittance Report form.
Estimate of Burden: Public reporting
burden for this collection of information
is estimated to average 1 hour per lamb
sale or purchase via market agency.
Respondents: Lamb Market Agencies.
Estimated Number of Respondents:
800 (includes 300 new respondents—50
monthly and 250 seasonal).
Estimated Number of Responses per
new Respondent per year: 12 (monthly
respondents 12 × 550 = 6,600 responses;
and seasonal respondents 1 × 250 = 250
responses).
Estimated Total Annual Burden on
Respondents: 6,850 hours (includes 850
new burden hours annually).
The total annual estimated cost for
market agencies in providing the
information to the Board is $125,150
(Increase in response total 850 × $18.27
= $15,529.50; grand total is 6,850 ×
$18.27 = $125,149.50). This total has
been estimated by multiplying 850 total
burden hours by $18.27, the estimated
wage rate of respondents. AMS used the
hourly wage of farmworkers, farm,
ranch, and aquaculture animals as
obtained from the U.S. Bureau of Labor
Statistics, Occupational Employment
and Wages, published May 2018. This
publication can be found at the
following website: https://www.bls.gov/
oes/current/oes_nat.htm.
The average hourly wage rate of
$13.87 with an additional 31.7 percent
to account for benefits and
compensations, for an hourly wage of
$18.27, was used to calculate annual
cost. Costs of benefits and compensation
guidance were provided by Bureau of
Labor Statistics News Release issued
December 14, 2018.
To offset startup costs associated with
the new collection and remittance
process, the Board will allocate
approximately $500 per full-time market
agency respondent to upgrade their
computer software programs and to
provide staff training for the new
collection and remittance procedures
(50 full-time market agencies × $500 =
$25,000). Additionally, the Board will
provide educational training materials
and will host training webinars with
seasonal market agency staff on the new
collection and remittance process. The
Board will allocate approximately $5 for
the educational materials and webinar
training costs per seasonal market
agency respondent (250 seasonal market
agencies × $5 = $1,250).
This final rule also announces that
AMS sought approval for a new
information collection and
recordkeeping requirement that is
imposed under the Order. The new
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information collection has been
submitted to OMB for approval.
The ‘‘Lamb Feeder Checkoff Refund’’
form will require the minimum
information necessary to effectively
carry out the requirements of the
program, and its use is necessary to
fulfill the intent of the Act. Such
information can be supplied without
data processing equipment or outside
technical expertise. In addition, there
are no additional training requirements
for individuals filling out reports and
requesting a refund from the Board. The
form will be simple, easy to understand,
and place as small a burden as possible
on the person required to file the
information.
The timing and frequency of
collecting information are intended to
meet the needs of the industry while
minimizing the amount of work
necessary to fill out the required reports.
In addition, the information to be
included on this form is not available
from other sources because such
information relates specifically to
individual market agencies who are
subject to the provisions of the Act.
Therefore, there is no practical method
for collecting the required information
without the use of these forms.
Information collection requirements
that are included in this proposal
include:
Title: LP–85—Lamb Assessment
Refund Form.
OMB Number: 0581–0325.
Type of Request: New collection.
Abstract: The information collection
requirements are essential to carry out
this final rule.
The Order authorizes the collection of
assessments from lamb producers,
feeders, seedstock producers, and first
handlers. Under this final rule, market
agencies are required to collect and
remit assessments for the purchase and
sale of lambs, while the collection and
remittance process remain unchanged
when sales occur independent of market
agencies. This final rule requires
assessment-related records to be
retained for at least 2 years beyond the
fiscal year of their applicability. This is
consistent with the current
recordkeeping requirements of the
program. According to the 2017 Census
of Agriculture (AC–17–A–51), there
were 60,675 farms that sold lambs. The
census does not breakdown the data to
the level of feeder farms. Therefore,
AMS has worked with industry to
understand the makeup of the industry.
Of those farms, the lamb industry
estimated that 500 are considered feeder
farms. Additionally, the lamb industry
estimates that of those 500 feeder farms,
approximately 10 percent, or 50, of
those feeder farms purchase or sell
lambs at market agencies. The estimated
time for each respondent to complete
the Lamb Feeder Checkoff Refund form
is 15 minutes. The estimated total hours
for all respondents to complete the form
is 150 hours (i.e., 50 respondents
multiplied by one quarter of an hour to
complete the form per respondent
multiplied by 12 forms being filled out
per year, per respondent). The estimated
total cost of requesting a refund from the
Board, for all respondents, will be
$2,740.50. The total cost has been
estimated by multiplying the total hours
for respondents to complete the form
(150 hours) by $18.27, which is what
AMS used for the hourly wage of
farmworkers, farm, ranch, and
aquaculture animals, as obtained from
the U.S. Bureau of Labor Statistics,
Occupational Employment and Wages,
published May 2018. This publication
can be found at the following website:
https://www.bls.gov/oes/current/oes_
nat.htm.
Based on the average hourly wage rate
of $13.87 with an additional 31.7
percent to account for benefits and
compensations, for an hourly wage of
$18.27 was used to calculate annual
cost. Costs of benefits and compensation
guidance was provided by Bureau of
Labor Statistics News Release issued
December 14, 2018.
The design of this form has 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 lamb
program administered by USDA. The
form will be available through the Board
or USDA. The information collection
will be used only by authorized Board
employees and representatives of
USDA, including AMS staff.
(2) The request for approval of the
new information collection is as
follows: Form LP–85, Lamb Feeder
Checkoff Refund form.
Estimate of Burden: Public reporting
burden for this collection of information
is estimated to average 15 minutes per
lamb purchase/sale by a feeder at a
market agency.
Respondents: Feeder farms who sell
lambs at market agencies.
Estimated Number of Respondents:
50.
Estimated Number of Responses per
Respondent per Year: 12.
Estimated Total Annual Burden on
Respondents: 150 hours.
Total Cost: $2,740.50.
List of Subjects in 7 CFR Part 1280
Administrative practice and
procedure, Advertising, Agricultural
research, Meat and meat products,
Reporting and recordkeeping
requirements.
For the reasons set forth in the
preamble, the Agricultural Marketing
Service amends 7 CFR part 1280 as
follows:
PART 1280—LAMB PROMOTION,
RESEARCH, AND INFORMATION
ORDER
■1. The authority citation for part 1280
continues to read as follows:
Authority: 7 U.S.C. 7411–7425 and 7
U.S.C. 7401.
■2. Section 1280.101 is revised to read
as follows:
§ 1280.101 Definitions
Act means the Commodity Promotion,
Research, and Information Act of 1996
(7 U.S.C. 7411–7425; Public Law 104–
127; 110 Stat. 1029, as amended), or any
amendments thereto.
Board means the Lamb Promotion,
Research, and Information Board
established pursuant to § 1280.201.
Certified organization means any
organization which has been certified by
the Secretary pursuant to this part as
being eligible to submit nominations for
membership on the Board.
Conflict of interest means a situation
in which a member or employee of a
Board has a direct or indirect financial
interest in a person that performs a
service for, or enters into a contract
with, a Board for anything of economic
value.
Department means the United States
Department of Agriculture.
Exporter means any person who
exports domestic live lambs from the
United States.
Feeder means any person who
acquires ownership of lambs and feeds
such lambs in the U.S. until they reach
slaughter weight.
First handler means the packer or
other person who buys or takes
possession of lambs from a producer or
feeder for slaughter, including custom
slaughter. If a producer or feeder
markets lamb products directly to
consumers, the producer or feeder shall
be considered a first handler with
respect to such lambs produced by the
producer or feeder.
Fiscal period and marketing year
mean the 12-month period ending on
December 31 or such other consecutive
12-month period as shall be
recommended by the Board and
approved by the Secretary.
Information means information and
programs that are designed to increase
efficiency in producing lambs, to
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Federal Register / Vol. 86, No. 243 / Wednesday, December 22, 2021 / Rules and Regulations
maintain and expand existing markets,
and to develop new markets, marketing
strategies, increased market efficiency,
and activities that are designed to
enhance the image of lamb and lamb
products on a national or international
basis. These include:
(1) Consumer information, which
means any action taken to provide
information to, and broaden the
understanding of, the general public
regarding the consumption, use, and
nutritional attributes of lamb and lamb
products; and
(2) Industry information, which
means information and programs that
will lead to the development of new
markets, new marketing strategies, or
increased efficiency for the lamb
industry, and activities to enhance the
image of lamb.
Lamb means ovine animals of any age,
including ewes and rams.
Lamb products means products
produced in whole or in part from lamb,
including pelts, and excluding wool and
wool products.
Market agency means commission
merchant, auction market, or livestock
market in the business of receiving
lambs or lamb products for sale or
purchase on commission for or on
behalf of a producer, feeder, seedstock
producer, or first handler.
Order means an Order issued by the
Secretary under § 514 of the Act that
provides for a program of generic
promotion, research, and information
regarding agricultural commodities
authorized under the Act.
Part means the Lamb Promotion,
Research, and Information Order and all
rules and regulations issued pursuant to
the Act and the Order. The Order shall
be a subpart of the Part.
Person means any individual, group
of individuals, partnership, corporation,
association, cooperative, or any other
legal entity.
Producer means any person who
owns and produces lambs in the United
States for sale.
Producer information means activities
designed to provide producers, feeders,
and first handlers with information
relating to production or marketing
efficiencies, development of new
markets, program activities, or other
information that would facilitate an
increase in the demand for lamb or lamb
products.
Promotion means any action,
including paid advertising and the
dissemination of culinary and
nutritional information and public
relations with emphasis on new
marketing strategies, to present a
favorable image of U.S. lamb products to
the public for the purpose of improving
the competitive position of U.S. lamb
and lamb products in the marketplace
and to stimulate sales.
Referendum means a referendum to
be conducted by the Secretary pursuant
to the Act whereby producers, feeders,
first handlers, and exporters shall be
given the opportunity to vote to
determine whether the continuance of
this subpart is favored by a majority of
eligible persons voting and a majority of
volume voting.
Research means any type of test,
study, or analysis designed to advance
the image, desirability, use,
marketability, production, product
development, or quality of lamb or lamb
products.
Secretary means the Secretary of
Agriculture of the United States or any
other 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.
Seedstock producer means any lamb
producer in the U.S. who engages in the
production and sale of breeding
replacement lambs or semen or
embryos.
State means each of the 50 States and
the District of Columbia.
Suspend means to issue a rule under
§ 553 of title 5 U.S.C., to temporarily
prevent the operation of an Order or
part thereof during a particular period of
time specified in the rule.
Terminate means to issue a rule under
§ 553 of title 5 U.S.C., to cancel
permanently the operation of an Order
or part thereof beginning on a date
certain specified in the rule.
Unit means each State, group of
States, or class designation (producers,
feeders, first handlers, or seedstock
producers) that is represented on the
Board.
United States means collectively the
50 States and the District of Columbia.
Wool means fiber from the fleece of a
lamb.
Wool products mean products
produced, in whole or in part, from
wool and products containing wool
fiber, excluding pelts.
§ §1280.102 through 1280.129 [Removed
and Reserved]
■3. Remove and reserve §§ 1280.102
through 1280.129.
■4. Section 1280.217 is amended by:
■a. Revising paragraphs (a), (c), and (d);
■b. Removing paragraphs (e) and (g);
and
■c. Redesignating paragraphs (f) and (h)
as paragraphs (e) and (f), respectively.
The revisions read as follows:
§ 1280.217 Lamb purchases.
(a) Except as prescribed by regulations
approved by the Secretary, each first
handler or exporter making payment to
a producer, seedstock producer, or
feeder for lambs purchased from such
producer, seedstock producer, or feeder
shall collect an assessment from the
producer, seedstock producer, or feeder.
Each producer, seedstock producer, or
feeder shall pay such assessment to the
first handler or exporter, at the rate of
seven-tenths of a cent ($.007) per pound
of live lambs sold. The rate of
assessment may be raised or lowered no
more than twenty-hundredths of a cent
($0.002) in any one year. The Board may
recommend any change in the
assessment rate to the Department. Prior
to a change in the assessment rate, the
Department will provide notice by
publishing in the Federal Register any
proposed changes with interested
parties allowed to provide comment.
* * * * *
(c) Each person processing or causing
to be processed lambs or lamb products
of that person’s own production and
marketing such lambs or lamb products,
shall pay an assessment on such lambs
or lamb products on the live weight of
the lamb at the time of slaughter at the
rate established in subparagraph (a) of
this section. In addition, pursuant to
§ 1280.108, such an individual is
considered a first handler and is
required by § 1280.219 to pay an
additional assessment of $0.42 per head.
As the first handler, the individual must
remit the total amount of assessments to
the Board.
(d) A market agency shall collect an
assessment from the producer,
seedstock producer, feeder, or first
handler and remit the collected
assessment to the Board. Any person
who pays more than one assessment on
the same lamb may be eligible for a
refund by submitting a request on a
form provided by the Board.
* * * * *
■5. Section 1280.218 is revised to read
as follows:
§ 1280.218 Exporter.
Each person exporting live lambs or
lamb products, including an exporter
directly exporting his or her own lambs
or lamb products, shall remit to the
Board an assessment at the rate
established in § 1280.217(a) by the 15th
day of the month following the month
in which the live lambs were purchased
for slaughter and export or live export.
■6. Section 1280.220 is amended by
revising paragraph (a) to read as follows:
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1
Modification of Registration Requirement for
Petitioners Seeking To File Cap-Subject H–1B
Petitions, 86 FR 1676 (Jan. 8, 2021).
2
Modification of Registration Requirement for
Petitioners Seeking To File Cap-Subject H–1B
Petitions; Delay of Effective Date, 86 FR 8543 (Feb.
8, 2021).
3
See Chamber of Commerce of the United States
of America et al. v. United States Department of
Homeland Security, et al., No. 4:20–cv–07331 (N.D.
Cal. March 19, 2021) (Amended Complaint).
4
See Chamber of Commerce of the United States
of America et al. v. United States Department of
Homeland Security, et al., No. 4:20–cv–07331 (N.D.
Cal. Apr. 15, 2021) (Order Permitting
Supplementation of Complaint and Extending
Deadline to Submit Joint Case Management
Conference Statement).
5
See Chamber of Commerce of the United States
of America et al. v. United States Department of
Homeland Security, et al., No. 4:20–cv–07331 (N.D.
Cal. Sep. 15, 2021) (Order Granting Pl.’s Motion for
Summary Judgment and Denying Def.’s Cross-
Motion for Summary Judgment; Judgment). On
November 12, 2021 a notice of appeal was filed in
the case. On November 30, 2021, the government
filed a motion to voluntarily dismiss the appeal,
and the appeal was dismissed on December 2, 2021.
The district court’s judgment is final.
6
See 8 CFR 214.2(h)(8)(iii)(A)(3) (explaining that
the annual initial registration period will start at
least 14 calendar days before the earliest date on
which H–1B cap-subject petitions may be filed,
consistent with 8 CFR 214.2(h)(2)(i)(I). For the FY
2023 H–1B numerical allocations, the earliest date
that H–1B cap-subject petitions may be filed is
April 1, 2022, such that registration is likely to
commence in early March 2022).
§ 1280.220 Collections.
(a) Each first handler, market agency,
and exporter responsible for the
collection of assessments under this
subpart shall remit assessments to the
Board by the 15th day of the month
following the month in which the lambs
were purchased for slaughter or export.
* * * * *
■7. Section 1280.402 is amended by
revising paragraphs (b) and (e)(1) to read
as follows:
§ 1280.402 Assessments.
* * * * *
(b) Market agency. A market agency
will be required to collect an assessment
from the producer, feeder, seedstock
producer, or first handler and remit the
collected assessment to the Board.
* * * * *
(e) * * *
(1) Assessments shall be remitted to
the Lamb Promotion, Research, and
Information Program, c/o the Secretary
at USDA, 23029 Network Place,
Chicago, Illinois 60673–1230, with a
‘‘Monthly Remittance Report’’ form not
later than the 15th day of the following
month in which lambs or lamb products
were purchased for slaughter or export,
or marketed.
* * * * *
Melissa Bailey,
Associate Administrator, Agricultural
Marketing Service.
[FR Doc. 2021–27467 Filed 12–21–21; 8:45 am]
BILLING CODE P
DEPARTMENT OF HOMELAND
SECURITY
8 CFR Part 214
RIN 1615–AC61
Modification of Registration
Requirement for Petitioners Seeking
To File Cap-Subject H–1B Petitions,
Implementation of Vacatur
AGENCY
: U.S. Citizenship and
Immigration Services, Department of
Homeland Security.
ACTION
: Final rule; withdrawal.
SUMMARY
: This final rule withdraws the
‘‘Modification of Registration
Requirement for Petitioners Seeking to
File Cap-Subject H–1B Petitions,’’ final
rule issued on January 8, 2021, because
that rule has been vacated by a Federal
district court.
DATES
: The Department of Homeland
Security is withdrawing the final rule
published January 8, 2021 (86 FR 1676),
which was delayed by the final rule
published February 8, 2021 (86 FR
8543), as of December 22, 2021.
FOR FURTHER INFORMATION CONTACT
:
Charles L. Nimick, Chief, Business and
Foreign Workers Division, Office of
Policy and Strategy, U.S. Citizenship
and Immigration Services, Department
of Homeland Security, 5900 Capital
Gateway Drive, Mail Stop 2090, Camp
Springs, MD 20588–0009. Telephone
Number (240) 721–3000 (not a toll-free
call).
SUPPLEMENTARY INFORMATION
:
I. Background and Basis for Removal of
Regulations
On January 8, 2021, after going
through notice and comment
rulemaking, the Department of
Homeland Security (DHS) issued a final
rule titled ‘‘Modification of Registration
Requirement for Petitioners Seeking To
File Cap-Subject H–1B Petitions’’ (‘‘H–
1B Selection Final Rule’’).
1
The rule was
scheduled to go into effect on March 9,
2021. On February 8, 2021, DHS issued
a final rule delaying the effective date of
the H–1B Selection Final Rule to
December 31, 2021.
2
On March 19,
2021, Plaintiffs in ongoing litigation
moved to file an amended complaint in
the U.S. District Court for the Northern
District of California adding the H–1B
Selection Final Rule to the list of
challenged agency actions,
3
which the
court granted leave to file on April 15,
2021.
4
Following several months of
litigation, on September 15, 2021, the
court vacated the H–1B Selection Final
Rule and remanded the matter to DHS.
5
DHS intends to comply with the
court’s decision vacating the H–1B
Selection Final Rule. Therefore, since
regulatory changes promulgated through
the H–1B Selection Final Rule are
scheduled to be codified in the Code of
Federal Regulations (CFR) at 8 CFR
214.2 on the rule’s new effective date,
December 31, 2021, DHS is issuing this
rule to withdraw the vacated H–1B
Selection Final Rule.
DHS is not required to provide notice
and comment or delay the effective date
of this rule because this rule simply
implements the court’s vacatur of the
H–1B Selection Final Rule and ensures
that the vacated regulatory provisions
are not codified in CFR. Following the
vacatur, the changes made by the H–1B
Selection Final Rule do not have any
legal effect.
Moreover, good cause exists here for
forgoing notice and comment and a
delayed effective date even if those
procedures were otherwise required.
Notice and comment and a delayed
effective date are unnecessary for the
implementation of the court’s order
vacating the rule and would be
impracticable in light of the agency’s
immediate need to implement the final
judgment. See 5 U.S.C. 553(b)(B), (d).
Furthermore, DHS believes that
delaying this ministerial act would be
contrary to public interest because it
could lead to vacated regulatory
provisions being codified and
significant confusion among the
regulated public regarding the
administration of the fiscal year (FY)
2023 H–1B numerical allocations,
generally known as the ‘‘H–1B cap,’’
which is likely to begin in early March
2022.
6
DHS has concluded that each of those
three reasons—that notice and comment
and a delayed effective date are
unnecessary, impracticable, and
contrary to the public interest—
independently provides good cause to
bypass any otherwise applicable
requirements of notice and comment
and a delayed effective date.
II. Paperwork Reduction Act
Under the Paperwork Reduction Act
of 1995, 44 U.S.C. 3501–3521, DHS is
required to submit to the Office of
Management and Budget (OMB), for
review and approval, collections of
information and changes to collections
of information. The following
information collections are impacted by
the vacatur. DHS is withdrawing the
VerDate Sep<11>2014 16:01 Dec 21, 2021 Jkt 256001 PO 00000 Frm 00010 Fmt 4700 Sfmt 4700 E:\FR\FM\22DER1.SGM 22DER1
khammond on DSKJM1Z7X2PROD with RULES
