[Federal Register Volume 75, Number 175 (Friday, September 10, 2010)]
[Rules and Regulations]
[Pages 55255-55257]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-22644]
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Rules and Regulations
Federal Register
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Federal Register / Vol. 75, No. 175 / Friday, September 10, 2010 /
Rules and Regulations
[[Page 55255]]
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: Final rule.
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SUMMARY: This final rule establishes procedures that the Agricultural
Marketing Service (AMS) 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
(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 will also be used for subsequent referenda. AEB, which
administers the Order, recommended this action to sustain and expand
its national promotion, research, and consumer information program.
DATES: Effective Date: September 13, 2010.
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: [email protected].
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 final rule has been reviewed under Executive Order 12988,
Civil Justice Reform. This rule is not intended to have a retroactive
effect.
The Egg Research and Consumer Information Act (7 U.S.C. 2701-2718)
(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.
Regulatory Flexibility Act Analysis and Paperwork Reduction Act
In accordance with the Regulatory Flexibility Act (RFA) [5 U.S.C.
601-612], AMS has considered the economic impact of this action on the
small producers that will 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 (USDA).
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 and small agricultural service firms as those having
annual receipts of no more than $7 million. Under this definition, the
vast majority of the egg producers that will 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 farmgate price of $0.837 per dozen, total annual
receipts would be $1.38 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 final rule establishes procedures under which egg producers
vote on whether they favor an increase in the assessments they pay to
AEB. This rule adds a new subpart and establishes procedures to conduct
this referendum as well as future referenda. The subpart covers
definitions, voting, instructions, use of subagents, ballots, the
referendum report, and confidentiality of information.
AMS 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. AMS 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. AMS considered
electronic voting, but the use of computers is not universal.
Conducting the referendum from one
[[Page 55256]]
central location by mail ballot would be more cost-effective and
reliable.
In accordance with 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 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 Regulatory Flexibility Analysis regarding
the impact of these referendum procedures on small entities, and we
invited comments concerning potential effects of these amendments on
small businesses. No comments were received.
Background
The 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 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 and the District of
Columbia are subject to the program, and producers owning 75,000 or
fewer laying hens are eligible to obtain an exemption from paying
assessments.
This final rule establishes procedures under which egg producers
may vote on whether they want to increase the rate of assessments they
pay to AEB from 10 cents to 15 cents per 30-dozen case of eggs. These
procedures will also be used for any future referenda. A proposed rule
and request for comments was published in the Federal Register on
September 28, 2009 (74 FR 49342), with a 60-day comment period. No
comments were received. A separate proposed rule to increase the
assessment rate was published in the September 25, 2009, issue of the
Federal Register (74 FR 48865).
This final rule adds a new subpart and establishes 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.
Pursuant to 5 U.S.C. 553, it is found and determined that good
cause exists for not postponing the effective date of the rule until 30
days after publication in the Federal Register in order to conduct a
referendum on whether producers favor increasing the assessment rate as
soon as possible.
List of Subjects in 7 CFR Part 1250
Administrative practice and procedure, Advertising, Agricultural
research, Eggs and egg products, Reporting and recordkeeping
requirements.
0
For the reasons set forth in the preamble, 7 CFR part 1250 is amended
as follows:
PART 1250--EGG RESEARCH AND PROMOTION
0
1. The authority citation of Part 1250 continues to read as follows:
Authority: 7 U.S.C. 2701-2718 and 7 U.S.C. 7401.
0
2. Part 1250 is 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 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 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.
(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
[[Page 55257]]
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 whether the person voting or on whose
behalf the vote is cast, is an eligible voter, and 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 therefore, 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 3, 2010.
David R. Shipman,
Acting Administrator, Agricultural Marketing Service.
[FR Doc. 2010-22644 Filed 9-9-10; 8:45 am]
BILLING CODE 3410-02-P