[Federal Register: September 28, 2009 (Volume 74, Number 186)]
[Proposed Rules]
[Page 49342-49344]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr28se09-15]
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Proposed Rules
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.
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[[Page 49342]]
DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Part 1250
[Doc. No. AMS-PY-09-0116]
Egg Research and Promotion Order; Referendum Procedures
AGENCY: Agricultural Marketing Service, USDA.
ACTION: Proposed rule with request for comments.
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SUMMARY: This proposed rule would establish procedures which the USDA
will use in conducting a referendum to determine whether egg producers
favor increasing the assessment they pay to the American Egg Board
(AEB) from a rate of 10 cents per 30-dozen case of commercial eggs to
15 cents per case. An amendment to increase the assessment rate in the
Egg Research and Promotion Order will be implemented if it is approved
by two-thirds of the egg producers voting in the referendum or by a
majority of producers voting if they produced two-thirds of the eggs
produced by all voters. These procedures would also be used for
subsequent referenda. A proposed rule to increase the assessment rate
is published separately in this issue of the Federal Register. AEB,
which administers the Order, recommended this action to sustain and
expand its national promotion, research, and consumer information
program.
DATES: Comments must be received on or before November 27, 2009.
ADDRESSES: Interested persons are invited to submit written comments on
the Internet at http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.regulations.gov or to Angela C. Snyder,
Research and Promotion; Standards, Promotion, & Technology Branch;
Poultry Programs, AMS, USDA; 1400 Independence Avenue, SW., Room 3932-
S, Stop 0256; Washington, DC 20250-0259; fax (202) 720-2930. Comments
should reference the docket number and the date and page number of this
issue of the Federal Register and will be available for public
inspection at the above address during regular business hours or can be
viewed at: http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.regulations.gov. All comments received will be
posted without change, including any personal information provided.
FOR FURTHER INFORMATION CONTACT: Angela C. Snyder, Research and
Promotion; Standards, Promotion & Technology Branch; Poultry Programs,
AMS, USDA, 1400 Independence Avenue, SW., Room 3932-S, Stop 0256;
Washington, DC 20250-0256; telephone: (202) 720-4476; fax (202) 720-
2930; or e-mail: angie.snyder@ams.usda.gov.
SUPPLEMENTARY INFORMATION:
Executive Order 12866
The Office of Management and Budget (OMB) has waived the review
process required by Executive Order 12866 for this action.
Executive Order 12988
This proposed rule has been reviewed under Executive Order 12988,
Civil Justice Reform. The rule is not intended to have a retroactive
effect and will not affect or preempt any State or Federal law
authorizing promotion or research relating to an agricultural
commodity.
The Act provides that administrative proceedings must be exhausted
before parties may file suit in court. Section 14 of the Act allows
those subject to the Order to file a written petition with the
Secretary of Agriculture (Secretary) if they believe that the Order,
any provision of the Order, or any obligation imposed in connection
with the Order, is not in accordance with the law. In any petition, the
person may request a modification of the Order or an exemption from the
Order. The petitioner will have the opportunity for a hearing on the
petition. Afterwards, an Administrative Law Judge (ALJ) will issue a
decision. If the petitioner disagrees with the ALJ's ruling, the
petitioner has 30 days to appeal to the Judicial Officer, who will
issue a ruling on behalf of the Secretary. If the petitioner disagrees
with the Secretary's ruling, the petitioner may file, within 20 days,
an appeal in the U.S. District Court for the district where the
petitioner resides or conducts business.
Initial Regulatory Flexibility Act Analysis and Paperwork Reduction Act
In accordance with the Regulatory Flexibility Act (RFA) [5 U.S.C.
601-612], the AMS has considered the economic impact of this action on
the small producers that would be affected by this rule. The purpose of
the RFA is to fit regulatory action to scale on businesses subject to
such action so that small businesses will not be disproportionately
burdened.
According to AEB, approximately 245 producers are subject to the
provisions of the Order, including paying assessments. Under the
current Order, producers in the 48 contiguous United States and the
District of Columbia who own more than 75,000 laying hens each pay a
mandatory assessment of 10 cents per 30-dozen case of eggs. Assessments
under the program are used by AEB to finance promotion, research, and
consumer information programs designed to increase consumer demand for
eggs in domestic and international markets. At the current rate of 10
cents per case, assessments generate about $20 million in annual
revenues. The Order is administered by AEB under supervision of the
U.S. Department of Agriculture.
In 13 CFR part 121, the Small Business Administration (SBA) defines
small agricultural producers as those having annual receipts of no more
than $750,000. Under this definition, the vast majority of the egg
producers that would be affected by this rule would not be considered
small entities. Producers owning 75,000 or fewer laying hens are exempt
from this program.
Given that a laying hen produces approximately 22 dozen eggs per
year, production from 75,000 laying hens would result in 1.65 million
dozen eggs. With a wholesale price of $0.965 per dozen, total annual
receipts would be $1.59 million, which is well above the definition
used to describe a small farm. The wholesale price of eggs would need
to drop to approximately $0.45 per dozen before a producer with 75,000
hens could be classified as a small farm under the SBA definition.
This proposed rule would establish the procedures under which egg
producers vote on whether they favor an increase in the assessments
they pay to AEB. This proposal would add a new subpart which
establishes procedures to conduct this referendum as well as
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future referenda. The proposed subpart covers definitions, voting,
instructions, use of subagents, ballots, the referendum report, and
confidentiality of information.
USDA will keep egg producers who are eligible to vote informed
throughout the referendum process to ensure that they are aware of and
are able to participate. USDA will also publicize information regarding
the referendum process so that trade associations and related industry
media can be kept informed.
Voting in the referendum is optional. However, if egg producers
choose to vote, the burden of voting is minimal. USDA considered
electronic voting, but the use of computers is not universal.
Conducting the referendum from one central location by mail ballot
would be more cost-effective and reliable.
In accordance with the Office of Management and Budget (OMB)
regulation 5 CFR part 1320 that implements the Paperwork Reduction Act
of 1995 [44 U.S.C. Chapter 35], the information collection requirements
contained in this proposed rule have been approved previously under OMB
control number 0581-0093. This rule does not result in a change to
those information collection and recordkeeping requirements.
There are no Federal rules that duplicate, overlap, or conflict
with this rule.
We have performed this Initial Regulatory Flexibility Analysis
regarding the impact of these proposed referendum procedures on small
entities, and we invite comments concerning potential effects of these
amendments on small businesses.
Background
The Egg Research and Consumer Information Act established a
national egg research and promotion program--administered by AEB--that
is financed through industry assessments and subject to oversight by
AMS. This program of promotion, research, and consumer information is
designed to strengthen the position of eggs in the marketplace and to
establish, maintain, and expand markets for eggs.
This program is financed by assessments on egg producers owning
more than 75,000 laying hens. The Egg Research and Promotion Order
specifies that handlers are responsible for collecting and remitting
the producer assessments to AEB, reporting their handling of eggs, and
maintaining records necessary to verify their reports.
Only producers in the contiguous United States are subject to the
program, and producers owning 75,000 or fewer laying hens are exempt
from paying assessments.
This proposed rule would establish the procedures under which egg
producers may vote on whether they want to increase the assessments
they pay to AEB by increasing the rate from 10 cents to 15 cents per
30-dozen case of eggs. A proposed rule to increase the assessment rate
is published separately in this issue of the Federal Register. This
proposed rule would add a new subpart which would establish procedures
to be used in this and future referenda. This subpart covers
definitions, voting, instructions, use of subagents, ballots, the
referendum report, and confidentiality of information.
A 60-day comment period is provided to allow interested parties to
respond to this proposal. All written comments received by the date
specified in response to this rule will be considered prior to conduct
of the referendum.
All written comments received in response to this rule by the date
specified will be considered prior to finalizing this action.
List of Subjects in 7 CFR Part 1250
Administrative practice and procedure, Advertising, Agricultural
research, Eggs and egg products, Reporting and recordkeeping
requirements.
For the reasons set forth in the preamble, 7 CFR Part 1250 is
proposed to be amended as follows:
PART 1250--EGG RESEARCH AND PROMOTION
1. The authority citation of Part 1250 continues to read as
follows:
Authority: 7 U.S.C. 2701-2718 and 7 U.S.C. 2401.
2. Part 1250 is proposed to be amended by adding a new subpart
consisting of Sec. Sec. 1250.200 through 1250.207 and titled
``referendum Procedures'' to read as follows:
Subpart--Referendum Procedures
Sec.
1250.200 Referenda.
1250.201 Definitions.
1250.202 Voting.
1250.203 Instructions.
1250.204 Subagents.
1250.205 Ballots.
1250.206 Referendum report.
1250.207 Confidential information.
Subpart--Referendum Procedures
Sec. 1250.200 Referenda.
Referenda for the purpose of ascertaining whether the issuance by
the Secretary of Agriculture of an Egg Research and Promotion Order, or
the continuance, termination, or suspension of such an order, is
approved or favored by producers shall, unless supplemented or modified
by the Secretary, be conducted in accordance with this subpart.
Sec. 1250.201 Definitions.
(a) Act means the Egg Research and Consumer Information Act and as
it may be amended (Pub. L. 93-428, 7 U.S.C. 2701 et seq.).
(b) Administrator means the administrator of the Agricultural
Marketing Service, with power to redelegate, or any other officer or
employee of the Department to whom authority has been delegated or may
hereafter be delegated to act in the Administrator's stead.
(c) Egg producer or producer means any person who either:
(1) Is an egg farmer who acquires and owns laying hens, chicks,
and/or started pullets for the purpose of and is engaged in the
production of commercial eggs; or
(2) Is a person who supplied or supplies laying hens, chicks, and/
or started pullets to an egg farmer for the purpose of producing
commercial eggs pursuant to an oral or written contractual agreement
for the production of commercial eggs. Such person is deemed to be the
owner of such laying hens unless it is established in writing, to the
satisfaction of the Secretary or the Egg Board, that actual ownership
of the laying hens is in some other party to the contract. In the event
the party to an oral contract who supplied or supplies the laying hens
cannot be readily identified by the Secretary or the Egg Board, the
person who has immediate possession and control over the laying hens at
the egg production facility shall be deemed to be the owner of such
hens unless written notice is provided to the Secretary or the Egg
Board, signed by the parties to said oral contract, clearly stating
that the eggs are being produced under a contractual agreement and
identifying the party (or parties) under said contract who is the owner
of the hens.
(d) Order means the order or any amendment thereto promulgated
pursuant to the act with respect to which the Secretary has directed
that a referendum be conducted.
(e) Person means any individual, group of individuals, partnership,
corporation, association, cooperative, or any other entity.
(f) Referendum agent means the individual or individuals designated
by the Secretary to conduct the referendum.
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(g) Representative period means the period designated by the
Secretary pursuant to section 9 of the act (7 U.S.C. 2708).
(h) Secretary means the Secretary of Agriculture or any other
officer or employee of the Department of Agriculture to whom there has
heretofore been delegated, or to whom there may be hereafter delegated,
the authority to act in the Secretary's stead.
Sec. 1250.202 Voting.
(a) Each person who is a producer, as defined in this subpart, at
the time of the referendum, who was engaged in the production of
commercial eggs during the representative period, and who is not exempt
from the provisions of the order as provided for in Sec. 1250.348
thereof, shall be entitled to only one vote in the referendum.
(b) Proxy voting is not authorized, but an officer or employee of a
corporate producer, or an administrator, executor, or trustee of a
producing estate, or an authorized representative of any other entity
may cast a ballot on behalf of such producer or estate. Any individual
so voting in a referendum shall certify that such individual is an
officer or employee of the corporate producer, or an administrator,
executor, or trustee of the producing estate, or an authorized
representative of such other entity, and that such individual has the
authority to take such action. Upon request of the referendum agent,
the individual shall submit adequate evidence of his authority.
(c) Each producer shall be entitled to cast only one ballot in the
referendum.
Sec. 1250.203 Instructions.
The referendum agent shall conduct the referendum, in the manner
herein provided, under supervision of the Administrator. The
Administrator may prescribe additional instructions, not inconsistent
with the provisions hereof, to govern the procedure to be followed by
the referendum agent. Such agent shall:
(a) Determine the time of commencement and termination of the
period of the referendum, and the time when all ballots must be
received by the referendum agent.
(b) Determine whether ballots may be cast by mail, at polling
places, at meetings of producers, or by any combination of the
foregoing.
(c) Provide ballots and related material to be used in the
referendum. Ballot material shall provide for recording essential
information for ascertaining:
(1) Whether the person voting or on whose behalf the vote is cast,
is an eligible voter, and
(2) The total volume of commercial eggs produced during a
representative period.
(d) Give reasonable advance notice of the referendum:
(1) By utilizing available media or public information sources,
without incurring advertising expense, to publicize the dates, places,
method of voting, eligibility requirements, and other pertinent
information. Such sources of publicity may include, but are not limited
to, print and radio; and
(2) By such other means as the agent may deem advisable.
(e) Make available to producers instructions on voting, appropriate
registration, ballot, and certification forms, and, except in the case
of a referendum on the termination or continuance of an order, a
summary of the terms and conditions of the order: Provided, That no
person who claims to be qualified to vote shall be refused a ballot.
(f) If the ballots are to be cast by mail, cause all the material
specified in paragraph (e) of this section to be mailed to each
eligible producer whose name and address are known to the Secretary or
the referendum agent.
(g) If the ballots are to be cast at polling places or meetings,
determine the necessary number of polling or meeting places, designate
them, announce the time of each meeting or the hours during which each
polling place will be open, provide the material specified in paragraph
(e) of this section, and provide for appropriate custody of ballot
forms and delivery to the referendum agent of ballots cast.
(h) At the conclusion of the referendum, canvass the ballots,
tabulate the results, and except as otherwise directed report the
outcome to the Administrator and promptly thereafter submit the
following:
(1) All ballots received by the agent and appointees, together with
a certificate to the effect that the ballots listed are all of the
ballots cast and received by the agent and appointees during the
referendum period;
(2) A tabulation of all challenged ballots deemed to be invalid;
and
(3) A report of the referendum including a detailed statement
explaining the method used in giving publicity to the referendum and
showing other information pertinent to the manner in which the
referendum was conducted.
Sec. 1250.204 Subagents.
The referendum agent may appoint any person or persons deemed
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, in accordance with the requirements
herein set forth, any or all of the following functions (which, in the
absence of such appointment, shall be performed by said agent):
(a) Give public notice of the referendum in the manner specified
herein;
(b) Preside at a meeting where ballots are to be cast or as poll
officer at a polling place;
(c) See the ballots and the aforesaid texts are distributed to
producers and receive any ballots which are cast; and
(d) Record the name and address of each person casting a ballot
with said subagent and inquire, as deemed appropriate, into the
eligibility of such persons to vote in the referendum.
Sec. 1250.205 Ballots.
The referendum agent and subagents shall accept all ballots cast;
but should they, or any of them, deem 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 therefor, and
the results of any investigations made with respect thereto, and the
disposition thereof. Invalid ballots shall not be counted.
Sec. 1250.206 Referendum report.
Except as otherwise directed, the Administrator shall prepare and
submit to the Secretary 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 analysis of the referendum
and its results.
Sec. 1250.207 Confidential information.
The ballots cast or the manner in which any person voted and all
information furnished to, compiled by, or in the possession of the
referendum agent shall be regarded as confidential. The ballots and
other information or reports that reveal, or tend to reveal, the vote
of any person covered under the Order and the voter list shall be
strictly confidential and shall not be disclosed.
Dated: September 21, 2009.
Rayne Pegg,
Administrator, Agricultural Marketing Service.
[FR Doc. E9-23151 Filed 9-25-09; 8:45 am]
BILLING CODE 3410-02-P