00-9541. Pork Promotion, Research, and Consumer Information Program: Procedures for the Conduct of Referendum

AGENCY:

Agricultural Marketing Service, USDA.

ACTION:

Proposed rule and notice and request for comments.

SUMMARY:

This proposed rule sets forth the procedures for conducting a referendum to determine if producers and importers favor continuation of the Pork Checkoff, formally known as the Pork Promotion, Research, and Consumer Information Order (Order). The Pork Checkoff was implemented September 5, 1986, as authorized by the Pork Promotion, Research, and Consumer Information Act of 1985 (Act). The Secretary of Agriculture (Secretary) will conduct a referendum among persons who have been producers and importers during a representative period, as determined by the Secretary, to determine whether the producers and importers favor the continuation of the Pork Checkoff. The referendum would be conducted on dates to be determined by the Secretary. The Pork Checkoff would be terminated if a majority of producers and importers voting in the referendum favor termination.

DATES:

Written comments on this proposed rule must be received by May 18, 2000. Comments on the information collection requirements of this proposed rule must be received by June 19, 2000.

ADDRESSES:

Send two copies of comments to Ralph L. Tapp, Chief; Marketing Programs Branch, Room 2627-S; Livestock and Seed Program; Agricultural Marketing Service (AMS), USDA; STOP-0251; 1400 Independence Avenue, SW.; Washington, D.C. 20250-0251. Comments may also be sent by e-mail to [e-mail] or by fax to 202/720-1125. State that your comments refer to Docket No. LS-99-14. Comments received may be inspected at this location between 8:00 a.m. and 4:30 p.m., Monday through Friday, except holidays, or on the internet at www.ams.usda.gov/​lsg/​mpb/​rp-pork.htm.

Pursuant to the Paperwork Reduction Act of 1995 (PRA), also send comments regarding the merits of the burden estimate, ways to minimize the burden, including through the use of automated collection techniques or other forms of information technology, or any other aspect of this collection of information to the above address. Comments concerning the information collection requirements contained in this proposed rule should also be sent to the Desk Officer for Agriculture, Offices of Information and Regulatory Affairs, Office of Management and Budget (OMB), Washington, D.C. 20503.

FOR FURTHER INFORMATION CONTACT:

Ralph L. Tapp, Chief, Marketing Programs Branch on 202/720-1115, fax [phone], or by e-mail [e-mail].

Producers can determine the location of county Farm Service Agency (FSA) offices by contacting (1) the nearest county FSA office, (2) the State FSA office, or (3) through an online search of the FSA website at www.fsa.usda.gov/​pas/​search.htm. From the options available on this webpage select “FSA Field Office Search,” select “St Abbrv,” and enter the county name in the “Cnty code” block. Some county FSA offices service multiple counties.

SUPPLEMENTARY INFORMATION:

This proposed rule is authorized under Act (7 U.S.C. 4801-4819).

Question and Answer Overview

Why Are Rules Being Proposed for a Referendum on the Pork Checkoff Program?

Later this year, the Department of Agriculture (Department) will conduct a referendum to determine whether producers and importers favor continuation of the pork checkoff program. We want to make sure that our voting procedures and ballots are easily understood and fair. By sharing our proposed procedures and ballots in this document, we can get your feedback on how to make this voting process the best possible.

How Long Do I Have To Comment on the Proposed Rule?

You have 30 days to comment on this proposal. That means your written comments must be received by May 18, 2000. You can mail, fax, or e-mail your comments. Additionally, you have 60 days to provide written comments to OMB on the paperwork burden associated with this proposal. Those comments must be received by June 19, 2000.

Who Is Eligible To Vote in the Referendum?

People and businesses who pay the pork checkoff are eligible to vote. This means that there are three types of eligible voters: (1) persons who produce and sell hogs and pigs in the United States in their own name; (2) persons who import hogs, pigs, or pork products into the United States in their own name; and (3) persons who are designated to cast the single vote for a business that produces and sells, or imports hogs, pigs, or pork products into the United States. In all cases, to be eligible, the person or business would have had to sell hogs, pigs or pork products sometime during the year preceding the referendum voting period.

Persons ineligible to vote include persons who do not pay the pork checkoff such as contract growers as well as persons who left hog farming more than 1 year before the referendum.

When Will the Referendum Be Held?

As soon as we analyze comments on this proposal and make necessary refinements to these voting procedures, a final rule will be published in the Federal Register. The final rule will designate two consecutive business days during which producers may vote in-person at the FSA county offices as well as the procedures and dates for casting an absentee ballot. Importers will vote only by mail during the period provided for producer balloting.

Where Do I Vote if I'm a U.S. Producer?

In-person voting will take place at the Department's FSA county offices. If you currently participate in FSA programs, you should vote at the FSA county office where you normally do business. If you do not participate in FSA programs, go to the FSA office in the county where you raise hogs and pigs (or if you raise hogs and pigs in more than one county, the FSA county office where most of your business is conducted). All FSA office locations can be found on the FSA website at www.fsa.usda.gov/​pas/​search.htm.

Can I Vote by Absentee Ballot?

Yes. We recognize that producers are very busy so absentee balloting will be allowed. Eligible voters may request an absentee ballot from the appropriate county FSA office. Absentee ballots will be available beginning 30 days before the in-person voting. Producers can stop by FSA county offices at their convenience to pick up a ballot or request one by mail. To count, absentee ballots must be postmarked by the last day of the voting period and be received no later than five business days following the voting period.

Where Do I vote if I'm an Importer?

Voting will take place by mail. Importers can request a ballot from the FSA headquarters office in Washington, D.C., at the address listed in this proposed rule.

How Will the Department Make Certain That Only Eligible Persons Vote in the Referendum?

FSA county offices will publicly display a list of all people who have voted at that office, by absentee ballot as well as in-person. This will allow scrutiny by everyone. If a producer believes that an ineligible person has voted, he or she can challenge that person's ballot. Once a challenge is made, the Department will investigate and determine whether a voting violation has occurred. The Department will require importers to submit proof that they paid the pork assessment when they request their ballots.

Regulatory Impact Analysis

Executive Orders 12866 and 12998 and the Regulatory Flexibility Act

This proposed rule has been determined to be not significant for purposes of Executive Order 12866 and therefore has not been reviewed by OMB.

This proposed rule has been reviewed under Executive Order 12998, Civil Justice Reform. It is not intended to have a retroactive effect. The Act states that the statute is intended to occupy the field of promotion and consumer education involving pork and pork products and of obtaining funds thereof from pork producers and that regulation of such activity (other than a regulation or requirement relating to a matter of public health or the provision of State or local funds for such activity) that is in addition to or different from the Act may not be imposed by a State.

The Act provides that any person subject to the Order may file with the Secretary a petition stating that the Order, any provision of the Order, or any obligation imposed in connection with the Order is not in accordance with the law, and requesting a modification of the Order or an exemption from certain provisions or obligations of the Order. The petitioner will have the opportunity for a hearing on the petition. Thereafter the Secretary will issue a decision on the petition. The Act provides that the district court of the United States in any district in which the petitioner resides or carries on business has jurisdiction to review a 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 the Secretary's decision.

The petitioner must exhaust his or her administrative remedies before he or she can initiate any such proceedings in the district court.

Pursuant to requirements set forth in the Regulatory Flexibility Act (RFA) (5 United States Code (U.S.C.) 601 et seq.), the Administrator of AMS has considered the economic impact of this proposed action on small entities.

According to the December 29, 1999, issue of the “Hogs and Pigs” report published by the National Agricultural Statistics Service (NASS), the number of farms with hogs and pigs was 98,460. According to the U.S. Customs Service, in 1999 there were 524 importers of hogs, pigs, pork and pork products in the United States. The majority of the 98,460 hog producers and 524 importers subject to the Order should be classified as small entities under the criteria established by the Small Business Administration.

This proposed rule is authorized under the Act and would establish procedures for the conduct of a referendum to determine whether producers and importers favor continuation of the Pork Checkoff. Such procedures would permit all eligible producers and importers who have been engaged in the production and sale or importation of hogs, pigs, pork, and pork products to vote in the referendum. Participation in the referendum is voluntary. Producers may cast their votes either by absentee ballots or in-person at county FSA offices. Importers would cast their ballots by mail at the FSA headquarters office in Washington, D.C.

The information collection requirements, as discussed below, would be minimal. Casting votes by mail or in-person would not impose a significant economic burden on participants. Accordingly, the Administrator of AMS has determined that this proposed rule will not have a significant economic impact on a substantial number of small business entities.

Paperwork Reduction Act

This proposed rule contains reporting requirements that are subject to public comment and review by OMB under PRA (44 U.S.C. Chapter 35). In accordance with 5 CFR Part 1320, we include the description of the reporting requirements and an estimate of the annual burden on producers and importers required to report information under this proposed rule. The information collection requirements in this proposed rule are being submitted for OMB approval.

Title: Pork Promotion, Research, and Consumer Information Program: Procedures for the Conduct of Referendum

OMB Number: 0581-New collection.

Expiration Date of Approval: 3 years from date of approval.

Type of Request: Approval of new information collection.

Abstract: The purpose of this proposed rule is to determine whether pork producers and importers favor continuation of the Pork Promotion, Research, and Consumer Information Program. The question on the ballot will be: “Do you favor the continuation of the Pork Checkoff which funds the Pork Promotion, Research, and Consumer Information Program? Yes or No.” For producers, provisions are made for in-person voting, absentee voting, registration lists and the challenge of voters. For importers, provision is made for voting by mail only. Importers would submit a copy of the U.S. Customs Service Form 7501 (as proof of eligibility) along with their request for a mail ballot.

AMS estimates that the cost per person to comply with the reporting provision of this proposed rule is $20 per hour for a total cost of $207,400. This is based on an estimated 50,000 voters participating in the referendum.

In this proposed rule, information collection requirements include a one-time submission of the required information on the following forms which are included in an Appendix at the end of this action.

(a) Producers voting in-person would:

(1) Sign the In-Person Voter Registration List (Form LS-75).

(2) Complete a Ballot Form (Form LS-72).

(3) Insert the ballot into the “PORK BALLOT” envelope (Form LS-72-1).

(4) Complete the Certification and Registration Form that is printed on the “PORK REFERENDUM” envelope (Form LS-72-2), and insert the “PORK BALLOT” envelope (Form LS-72-1), with the enclosed ballot, in the “PORK REFERENDUM” envelope (Form LS-72-2).

(b) Producers voting absentee would:

(1) Complete, a combined registration and absentee ballot form (Form LS-73).

(2) Insert the ballot portion in a “PORK BALLOT” envelope (Form LS-72-1).

(3) Put the sealed “PORK BALLOT” (Form LS-72-1) envelope and the registration form in the “PORK REFERENDUM” envelope (Form LS-73-1).

(c) Importers voting in the referendum would have their names placed on a Importer Ball Request List (Form LS-77) by FSA employees. They would vote using a mail ballot package consisting of an Importer Ballot, Registration, Certification (Form LS-76), a “Pork Ballot” envelope (Form LS-72-1), and a “Pork Referendum” envelope (Form LS-72-2). They would complete the ballot and registration form and place the ballot in the “Pork Ballot” envelope, and place it in the “Pork Referendum” envelope along with the registration form.

(d) The proposed rule requires each producer of hogs and pigs, who votes in person to record on the In-Person Voter Registration List (Form LS-75) his or her name and the name of the corporation or other entity he or she represents. Employees in each county FSA office will fill out the Absentee Voter Request List (Form LS-74).

1. In-Person Voting Ballot: Form LS-72, Pork Ballot Envelope: Form LS-72-1, In-Person Registration and Certification Envelope: Form LS-72-2.

Estimate of Burden: The public reporting burden for this collection of information is estimated to average .10 hour per response.

Respondents: Only producers voting in-person in the referendum would use the forms.

Estimated Number of Respondents: 25,000.

Estimated Number of Responses per Respondent: 1.

Estimated Total Annual Burden on Respondents: 2,500 hours.

Total Cost: $50,000.

2. Absentee Registration and Certification and Voting Ballot: Form LS-73, Pork Ballot Envelope: Form LS-72-1, Pork Referendum Envelope: Form LS-73-1.

Estimate of Burden: The public reporting burden for this collection of information is estimated to average .10 hour per response.

Respondents: Only producers requesting an absentee ballot to vote in the referendum would use the forms.

Estimated Number of Respondents: 25,000.

Estimated Number of Responses per Respondent: 1.

Estimated Total Annual Burden on Respondents: 2,500 hours.

Total Cost: $50,000.

3. In-Person Voter Registration List: Form LS-75.

Estimate of Burden: The public reporting burden for this collection of information is estimated to average .02 hour per response.

Respondents: Only producers voting in-person in the referendum would use this form.

Estimated Number of Respondents: 25,000.

Estimated Number of Responses per Respondent: 1.

Estimated Total Annual Burden on Respondents: 500 hours.

Total Cost: $10,000.

4. Absentee Voter Request List: Form LS-74.

Estimate of Burden: Employees in each county FSA office would fill out one or more of the Absentee Voter Request Lists (Form LS-74). Because only county FSA employees would complete the Absentee Voter Request List, the estimated average reporting burden would not apply to the producer voting absentee in the referendum.

5. Challenge of Voters.

Estimate of Burden: The public reporting burden for this collection of information is estimated to average .08 hour per response.

Respondents: Only producers wishing to challenge a vote of another producer would be required to provide such challenge in writing to the county FSA office.

Estimated Number of Respondents: 2,000.

Estimated Number of Responses per Respondent: 1.

Estimated Total Annual Burden on Respondents: 320 hours.

Total Cost: $6,400.

6. Proof of Eligibility.

Estimate of Burden: The public reporting burden for this collection of information is estimated to average 1 hour per response.

Respondents: Producers responding to a challenge of their eligibility to vote would be required to submit to the county FSA office records such as sales documents, or other similar documents to prove that the person was a producer during the representative period.

Estimated Number of Respondents: 2,000.

Estimated Number of Responses per Respondent: 1.

Estimated Total Annual Burden on Respondents: 2,000 hours.

Total Cost: $40,000.

7. Appealing a Challenge of Eligibility.

Estimate of Burden: The public reporting burden for this collection of information is estimated to average 1 hour per response.

Respondents: Producers appealing a determination of their ineligibility to vote in the referendum would be required to submit to the county FSA office records such as sales documents, or other similar documents to prove that the person was a producer during the representative period.

Estimated Number of Respondents: 2,000.

Estimated Number of Responses per Respondent: 1.

Estimated Total Annual Burden on Respondents: 2,000 hours.

Total Cost: $40,000.

8. Importer Ballot: Form LS-76, Pork Ballot Envelope: Form LS-72-1, Pork Referendum Envelope: Form LS-73-1.

Estimate of Burden: The public reporting burden for this collection of information is estimated to average .10 hour per response.

Respondents: Importers who can only vote by mail ballot in the referendum would use the forms.

Estimated Number of Respondents: 500.

Estimated Number of Responses per Respondent: 1.

Estimated Total Annual Burden on Respondents: 50 hours.

Total Cost: $1,000.

9. Submission of U.S. Customs Service Form 7501 as proof of importer eligibility.

Estimate of Burden: The public reporting burden for this collection of information is estimated to average 1 hour per response.

Respondents: Importers voting in the referendum would submit a copy of U.S. Customs Service Form 7501 with their request for a mail ballot.

Estimated Number of Respondents: 500.

Estimated Number of Responses per Respondent: 1.

Estimated Total Annual Burden on: 500 hours.

Total Cost: $10,000.

10. Importer Ballot Request List: Form LS-77.

Estimate of Burden: Employees in the Washington D.C. FSA headquarters office would fill out the Importer Ballot Request List (Form LS-77). Because only headquarters FSA employees would complete the Importer Ballot Request List, the estimated average reporting burden would not apply to importers voting in the referendum.

Comments are invited on: (1) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information would have practical utility; (2) the accuracy of the agency's estimate of the burden of the proposed collection of information including the validity of the methodology and assumptions used; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology. Comments concerning the information collection requirements contained in this action should reference the Docket Number LS-99-14, together with the date and page number of this issue of the Federal Register. Comments also may be sent to Ralph L. Tapp, Chief; Marketing Programs Branch, Room 2627-S; Livestock and Seed Program, AMS, USDA; STOP 0251; 1400 Independence Avenue, SW.; Washington, D.C. 20250-0251; by fax at 202/720-1125, or by e-mail at [e-mail]. Comments should be sent to the Desk Officer for Agriculture, Office of Information and Regulatory Affairs, OMB, Washington, D.C. 20503. All comments received will be available for public inspection during regular business hours, 8 a.m. to 4:30 p.m. Eastern Time, Monday through Friday, at the same address. All responses to this rule will be summarized and included in the request for OMB approval.

OMB is required to make a decision concerning the collection of information contained in this rule between 30 days and 60 days after publication. Therefore, a comment to OMB is best assured of being considered if OMB receives it within 30 days after publication.

Background

The Act provides for the establishment of a coordinated program of promotion and research designed to strengthen the pork industry's position in the marketplace and to maintain and expand domestic and foreign markets and uses for pork and pork products. The program is financed by a pork checkoff assessment of 0.45 percent of the market value of domestic hogs and pigs and an equivalent amount on imported hogs and pigs and imported pork and pork products. Pursuant to the Act, an Order was made effective September 5, 1986, and the collection of assessments began on November 1, 1986.

The Act provides that at the request of a number of persons equal to at least 15 percent of persons who have been producers and importers during a representative period as determined by the Secretary, the Secretary would conduct a referendum to determine whether the producers and importers favor the continuation of the Pork Checkoff. Based on statistical data reported by NASS in the December 29, 1998, issue of the “Hogs and Pigs” report and information from the 1997 Census, there were 98,892 producers who sold hogs and pigs in 1998. According to data submitted by U.S. Customs Service, in 1998, there were 1,017 importers of hogs, pigs, pork, and pork products. The total number of producers and importers who would be eligible to sign the petition was 99,909. Fifteen percent of 99,909 equals 14,986. Therefore, AMS determined that a petition containing 14,986 valid signatures was sufficient to request a referendum.

On May 24, 1999, a petition containing 19,043 names was submitted to AMS. AMS conducted a signature validation process to ensure that the petitioners were pork producers or importers during the representative period, January 1, 1997, to June 1, 1999, and signed the petition. However, the Department concluded that the validation process is vulnerable to criticism in a number of respects and that the Department cannot be certain of the exact number of valid signatures. Because many thousands of valid signatures were received, however, the Secretary has determined to hold a referendum at the Department's expense in the interest of fairness. Since the initial referendum in 1988, pork producers and importers have not had the opportunity to vote on the continuation of the pork checkoff program.

The purpose of the proposed rule is to determine whether pork producers and importers favor continuation of the Pork Promotion, Research, and Consumer Information Order. Therefore, the question on the ballot will be: “Do you favor the continuation of the Pork Checkoff program which funds the Pork Promotion, Research, and Consumer Information Order? Yes or No.” Support of the program by a majority of persons who pay assessments is essential to both the establishment and the continuation of this program. Assessment collection under the Order would be terminated not later than 30 days after the date it is determined that termination of the Order is favored by a majority of the producers and importers voting in the referendum. The Order would be terminated in an orderly manner as soon as practical after the date of such determination.

The initial referendum was conducted in 1988, and this is the first referendum conducted since the initial one.

The proposed rule sets forth procedures to be followed in conducting the referendum under the Act, including definitions, representative period, supervision of the referendum, mail ballots, challenge of voters and appeals, in-person voting procedures, absentee voting procedures, importer voting procedures, reporting referendum results, and disposition of the ballots and records. FSA will assist in the conduct of the referendum by (1) providing the polling places; (2) counting ballots; (3) determining the eligibility of challenged voters; and (4) reporting referendum results.

Interested persons are invited to comment on this proposed rule. A 30-day comment period is provided to submit comments on this proposal. This comment period is deemed appropriate in order to conduct a referendum as soon as possible.

List of Subjects in 7 CFR Part 1230

• Administrative practice and procedure
• Advertising
• Agricultural research
• Marketing agreements
• Pork and pork products
• Reporting and recordkeeping requirements

For the reasons set forth in the preamble, it is proposed that 7 CFR Part 1230 be amended as follows:

PART 1230—PORK PROMOTION, RESEARCH, AND INFORMATION

1. The authority citation for 7 CFR Part 1230 continues to read as follows:

Authority: 7 U.S.C. 4801-4819.

2. A new subpart E is added to read as follows:

Subpart E—Procedures for the Conduct of Referendum Definitions

1230.601

Act.

1230.602

Administrator, AMS.

1230.603

Administrator, FSA.

1230.604

Department.

1230.605

Farm Service Agency.

1230.606

Farm Service Agency County Committee.

1230.607

Farm Service Agency County Executive Director.

1230.608

Farm Service Agency State Committee

1230.609

Imported porcine animals, pork, and pork products.

1230.610

Importer.

1230.611

Order.

1230.612

Porcine animal.

1230.613

Person.

1230.614

Pork.

1230.615

Pork product.

1230.616

Producer.

1230.617

Public notice.

1230.618

Referendum.

1230.619

Representative period.

1230.620

Secretary.

1230.621

State.

1230.622

Voting period.

Referendum

1230.623

General.

1230.624

Supervision of referendum.

1230.625

Eligibility.

1230.626

Time and place of registration and voting.

1230.627

Facilities for registering and voting.

1230.628

Registration form and ballot.

1230.629

Registration and voting procedures for producers.

1230.630

Registration and voting procedures for importers.

1230.631

List of registered voters.

1230.632

Challenge of voters.

1230.633

Receiving ballots.

1230.634

Canvassing ballots.

1230.635

FSA county office report.

1230.636

FSA State office report.

1230.637

Results of the referendum.

1280.638

Disposition of ballots and records.

1230.639

Instructions and forms.

Subpart E—Procedures for the Conduct of Referendum Definitions

§ 1230.601

Act.

The term Act means the Pork Promotion, Research, and Consumer Information Act of 1985 (7 U.S.C. 4801-4819) and any amendments thereto.

§ 1230.602

Administrator, AMS.

The term Administrator, AMS, means the Administrator of the Agricultural Marketing Service, or any officer or employee of the Department to whom there has heretofore been delegated or may hereafter be delegated the authority to act in the Administrator's stead.

§ 1230.603

Administrator, FSA.

The term Administrator, FSA, means the Administrator, of the Farm Service Agency, or any officer or employee of the Department to whom there has heretofore been delegated or may hereafter be delegated the authority to act in the Administrator's stead.

§ 1230.604

Department.

The term Department means the United States Department of Agriculture.

§ 1280.605

Farm Service Agency.

The term Farm Service Agency also referred to as “FSA” means the Farm Service Agency of the Department.

§ 1230.606

Farm Service Agency County Committee.

The term Farm Service Agency County Committee, also referred to as the FSA County Committee or COC, means the group of persons within a county elected to act as the Farm Service Agency County Committee.

§ 1230.607

Farm Service Agency County Executive Director.

The term Farm Service Agency County Executive Director also referred to as the CED, means the person employed by the FSA County Committee to execute the policies of the FSA County Committee and be responsible for the day-to-day operations of the FSA county office, or the person acting in such capacity.

§ 1230.608

Farm Service Agency State Committee.

The term Farm Service Agency State Committee, also referred to as FSA State Committee or STC, means the group of persons within a State selected by the Secretary to act as the Farm Service Agency State Committee.

§ 1230.609

Imported porcine animals, pork, and pork products.

The term Imported porcine animals, pork, and pork products means those animals, pork, or pork products that are imported into the United States and subject to assessment under the harmonized tariff schedule numbers identified in § 1230.110 of the regulations.

§ 1230.610

Importer.

The term Importer means a person who imports porcine animals, pork, or pork products into the United States.

§ 1280.611

Order.

The term Order means the Pork Promotion, Research, and Consumer Information Order.

§ 1230.612

Porcine animal.

The term Porcine animal means a swine, that is raised:

(a) As a feeder pig, that is, a young pig sold to another person to be finished over a period of more than 1 month for slaughtering;

(b) For breeding purposes as seed stock and included in the breeding herd; and

(c) As a market hog, slaughtered by the producer or sold to be slaughtered, usually within 1 month of such transfer.

§ 1230.613

Person.

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

§ 1230.614

Pork.

The term Pork means the flesh of a porcine animal.

§ 1230.615

Pork product.

The term Pork product means an edible product processed in whole or in part from pork.

§ 1230.616

Producer.

The term Producer means a person who produces porcine animals in the United States for sale in commerce.

§ 1230.617

Public notice.

The term Public notice means information regarding a referendum that would be provided by the Secretary, such as press releases, newspapers, electronic media, FSA county newsletters, and the like. Such notice would contain the referendum date and location, registration and voting requirements, rules regarding absentee voting, and other pertinent information.

§ 1230.618

Referendum.

The term Referendum means any referendum to be conducted by the Secretary pursuant to the Act whereby persons who have been producers and importers during a representative period would be given the opportunity to vote to determine whether producers and importers favor continuation of the Order.

§ 1230.619

Representative period.

The term Representative period means the 12-consecutive months prior to the referendum.

§ 1230.620

Secretary.

The term Secretary means the Secretary of Agriculture of the United States or any other officer or employee of the Department to whom there has been delegated or to whom authority may hereafter be delegated to act in the Secretary's stead.

§ 1230.621

State.

The term State means each of the 50 States.

§ 1230.622

Voting period.

The term Voting period means the 2-consecutive business day period for in-person voting.

Referendum

§ 1230.623

General.

(a) A referendum to determine whether eligible pork producers and importers favor continuation of the Pork Checkoff would be conducted in accordance with this subpart.

(b) The Pork Checkoff would be terminated only if a majority of producers and importers voting in the referendum favor such termination.

(c) The referendum would be conducted at the county FSA offices for producers and at FSA headquarters office in Washington, D.C., for importers.

§ 1230.624

Supervision of referendum.

The Administrator, AMS would be responsible for conducting the referendum in accordance with this subpart.

§ 1230.625

Eligibility.

(a) Eligible producers and importers. Persons eligible to register and vote in the referendum include:

(1) Individual Producers. Each individual who produces hogs or pigs for sale in commerce during the representative period and does so in his or her own name is entitled to cast one ballot.

(2) Producers who are a corporation or other entity. Each corporation or other entity that produces hogs or pigs for sale in commerce during the representative period is entitled to cast one ballot. A group of individuals, such as members of a family, joint tenants, tenants in common, a partnership, owners of community property, or a corporation engaged in the production of hogs and pigs would be entitled to only one vote; provided, however, that any member of a group may register to vote as a producer if he or she sells hogs or pigs in his or her own name.

(3) Importers. Each importer who imports hogs, pigs, pork, or pork products during the representative period is entitled to cast one ballot. A group of individuals, such as members of a family, joint tenant, tenants in common, a partnership, or a corporation engaged in the importation of hogs, pigs, pork, or pork products would be entitled to only one vote; provided, however, that any member of a group may register to vote as a importer if he or she imports hogs, pigs, pork, or pork products in his or her own name.

(b) Proxy registration and voting. Proxy registration and voting is not authorized, except that an officer or employee of a corporate producer or importer, or any guardian, administrator, executor, or trustee of a producer's or importer's estate, or an authorized representative of any eligible producer or importer (other than an individual producer or importer), such as a corporation or partnership, may register and cast a ballot on behalf of that entity. Any individual who registers to vote in the referendum on behalf of any eligible producer or importer corporation or other entity would certify that he or she is authorized to take such action.

§ 1230.626

Time and place of registration and voting.

(a) Producers. The referendum shall be held for 2-consecutive days on dates to be determined by the Secretary. Eligible producers shall register and vote following the procedures in § 1230.629. Producers shall register and vote during the normal business hours of each county FSA office or request absentee ballots from the county FSA offices by mail or facsimile, or pick up an absentee ballot in person.

(b) Importers. The referendum shall be conducted by mail ballot by the FSA headquarters office in Washington, D.C., during dates to be determined by the Secretary. Importer voting shall take place during the same time period provided producers for in-person and absentee voting in the referendum.

§ 1230.627

Facilities for registering and voting.

(a) Producers. Each county FSA office will provide:

(1) Adequate facilities and space to permit producers of hogs and pigs to register and to mark their ballots in secret,

(2) A sealed box or other designated receptacle for registration forms and ballots that is kept under observation during office hours and secured at all times, and

(3) Copies of the Order for review.

(b) Absentee Ballots. Each FSA county office shall provide each producer an absentee ballot package upon request. Producers can pick up an absentee ballot in person or request it by mail or facsimile. The FSA county office shall record receipt of the completed absentee ballot and place it in a secure ballot box.

(c) Importers. The FSA headquarters office will:

(1) Mail ballot packages to eligible importers upon request,

(2) Have a sealed box or other designated receptacle for registration forms and ballots that is kept under observation during office hours and secured at all times, and

(3) Mail copies of the Order to importers if requested.

§ 1230.628

Registration form and ballot.

(a) Producers. (1) A ballot (Form LS-72) and combined registration and certification form (Form LS-72-2) will be used for voting in-person. The information required on the registration form will include name, address, and county of voter residence. The form also will contain the certification statement referenced in § 1230.629. The ballot will require producers to check a “yes” or “no.”

(2) A combined registration and voting form (Form LS-73) will be used for absentee voting. The information required on this combined registration and voting form will include name, address, telephone number, and county of voter residence. The form will also contain the certification statement referenced in § 1230.629. The ballot will require producers to check “yes” or “no.”

(b) Importers. A combined registration and ballot (Form LS-76) will be used for importer voting. The information required on the combined registration and ballot will include name, address, and telephone number. The form will also contain a certification statement referenced in § 1230.630. The ballot will require importers to check “yes” or “no.”

§ 1230.629

Registration and voting procedures for producers.

(a) Registering and voting in-person. (1) Each eligible producer who wants to vote whether as an individual or as a representative of a corporation or other entity would register during the voting period at the county FSA office where FSA maintains and processes the individual producer's or corporation or other entities' administrative farm records. A producer voting as an individual or as a representative of a corporation or other entity not participating in FSA programs, shall register and vote in the county FSA office serving the county where the individual producer or corporation or other entity owns hogs and pigs. An individual or an authorized representative of a corporation or other entity who owns hogs and pigs in more than one county would register and vote in the FSA county office where the individual or corporation or other entity does most of its business. Producers shall be required to record on the In-Person Voter Registration List (Form LS-75) their names and, if applicable, the name of the corporation or other entity they represent before they can receive a registration form and ballot. To register, producers shall complete the registration form (Form LS-72-2) and certify that:

(i) They or the corporation or other entity they represent were producers during the specified representative period; and

(ii) The person voting on behalf of a corporation or other entity referred to in § 1230.613 is authorized to do so;

(2) Each eligible producer who has not voted by means of an absentee ballot may cast a ballot in person at the location and time set forth in § 1230.626 and on the dates to be announced by the Secretary. Eligible producers who record their name or the corporation or other entity they are authorized to represent on the In-Person Voter Registration List (Form LS-75) will receive a registration form/envelope (Form LS-72-2) and a ballot (Form LS-72). Voters will enter the information requested on the combined registration and certification form/envelope (Form LS-72-2) as indicated above. Producers will then mark their ballots to indicate “yes” or “no.” Producers will place their completed ballots in an envelope marked “PORK BALLOT” (Form LS-72-1), seal and place it in the completed and signed registration form/envelope marked “PORK REFERENDUM” (Form LS-72-2), seal that envelope and personally place it in a box marked “Ballot Box” or other designed receptacle. Voting will be conducted under the supervision of the county FSA CED.

(b) Absentee voting. (1) Eligible producers who are unable to vote in person may request an absentee voting package consisting of a combined registration and absentee ballot form (Form LS-73) and two envelopes—one marked “PORK BALLOT” (Form LS-72-1) and the other marked “PORK REFERENDUM” (Form LS-73-1) by mail, facsimile, or by picking up one in person from the county FSA office where FSA maintains and processes the producer's administrative farm records.

(2) If a producer, whether requesting an absentee ballot as an individual or an authorized representative of a corporation or other entity does not participate in FSA programs, and therefore does not have administrative records at a county FSA office, he or she may request an absentee voting package by mail, facsimile, or pick it up in-person from the county FSA office serving the county where the individual or corporation or other entity owns hogs and pigs. An individual or authorized representative of a corporation or other entity, who owns hogs or pigs in more than one county can request an absentee ballot from the county FSA office where the producer or corporation or other entity does most of their business.

(3) An absentee voting package will be mailed to producers by the FSA CED to the address provided by the prospective voter. Only one absentee registration form and absentee ballot will be provided to each eligible producer. The absentee ballots and registration forms may be requested during a specified time period that will be announced by the Secretary.

(4) The county FSA office will enter on the Absentee Voter Request List (Form LS-74) the name and address of the individual or corporation or other entity requesting an absentee ballot and the date the forms were requested.

(5) To register, eligible producers shall complete and sign the combined registration form and absentee ballot (Form LS-73) and certify that:

(i) They or the corporation or other entity they represent were producers during the specified representative period;

(ii) If voting on behalf of a corporation or other entity referred to in § 1230.613, they are authorized to do so.

(6) A producer, after completing the absentee voter registration form and the ballot, shall remove the ballot portion of the combined registration and absentee ballot form (Form LS-73) and seal the completed ballot in a separate envelope marked “PORK BALLOT” (Form LS-72-1) and place the sealed envelope in a second envelope marked “PORK REFERENDUM” (Form LS-73-1) along with the signed registration form. Producers will be required to print their names on the envelope marked “PORK REFERENDUM” (Form LS-73-1), and mail or hand deliver it to the county FSA office from which the producer or corporation or other entity obtained the absentee voting package.

(7) Absentee ballots returned by mail will have to be postmarked with a date not later than the last day of the voting period and be received in the county FSA office by the close of business on the fifth business day after the last day of the voting period. Absentee ballots received after that date will be counted as invalid ballots. Upon receiving the “PORK REFERENDUM” envelope (Form LS-73-1) containing the registration form and ballot, the county FSA CED would place it, unopened in a secure ballot box. Before placing the “Pork Referendum” envelope (Form LS-73-1) in the ballot box the county FSA CED would record the date the absentee ballot was received in the FSA county office on the absentee Ballot Request List (Form LS-74).

§ 1230.630

Registration and voting procedures for importers.

(a) Individual importers, corporation, or other entities can obtain the registration and certification forms, ballots and envelopes by mail from the following address: USDA, FSA, Operations Review and Analysis Staff, Attention: William A. Brown, Post Office Box XXXX, Washington, D.C., XXXXX. Importers may pick up the voting materials in-person at USDA, FSA, Operations Review and Analysis Staff, Room 2741, South Agriculture Building, 1400 Independence Avenue, SW., Washington, D.C. Importers may request voting materials by facsimile. The facsimile number is 202/690-3354.

(b) When requesting a ballot, eligible importers will be required to submit a U.S. Customs Service Form 7501 showing that they paid the pork assessment during the representative period.

(c) Upon receipt of a request and U.S. Customs Service Form 7501, the voting materials will be mailed to importers by the FSA headquarters office in Washington, D.C., to the address provided by the importer or corporation or other entity. Only one mail ballot and registration form will be provided to each eligible importer. The forms must be requested during a specified time period to be announced by the Secretary.

(d) The FSA headquarters office in Washington, D.C., will enter on the Importer Ballot Request List (Form LS-77) the name and address of the importer requesting a ballot and the date of the request.

(e) To register, eligible importers would complete and sign the combined registration form and ballot (Form LS-76) and certify that:

(1) To the best of their knowledge and belief the information provided on the form is true and accurate;

(2) If voting on behalf of an importer corporation or other entity referred to in § 1230.613, they are authorized to do so.

(f) Eligible importers, after completing the ballot and registration form, would remove the ballot portion of the combined registration form and ballot form (Form LS-76) and seal the completed ballot in a separate envelope marked “PORK BALLOT” (Form LS-72-1) and place the sealed envelope in a second envelope marked “PORK REFERENDUM” (Form LS-73-1) along with the signed registration form. Importers or corporations or other entities would legibly print their names on the envelope marked “PORK REFERENDUM” (Form LS-73-1), and mail the envelope to the FSA headquarters office at the following address: USDA, FSA, Operations Review and Analysis Staff, Attention: William A. Brown, Post Office Box XXXX, Washington, D.C., XXXXX. Importers may hand deliver the “Pork Referendum” envelope to USDA, FSA, Operations Review and Analysis Staff, Room 2741, South Agriculture Building, 1400 Independence Avenue, SW., Washington, D.C.

(g) The “PORK REFERENDUM” envelope containing the registration and ballot has to be postmarked with a date not later than the last day of the voting period and be received in the FSA office by the close of business on the fifth business day after the date of the last day of the voting period. Ballots received after that date will be counted as invalid ballots. Upon receiving the “PORK REFERENDUM” envelope (Form LS-73-1) containing the registration form and ballot, an FSA employee will place it, unopened in a secure ballot box. Before placing the “PORK REFERENDUM” envelope (Form LS-73-1) in the ballot box, the FSA employee will record the date the ballot was received in the FSA headquarters office in Washington, D.C., on the Importer Ballot Request List (Form LS-77).

§ 1230.631

List of registered voters.

(a) Producers. The Voter Registration List (Form LS-75) and the Absentee Voter Request List (Form LS-74) will be available for inspection on the 2 days of the voting period and the six business days following the date of the last day of the voting period at the county FSA office. The lists will be posted during regular office hours in a conspicuous public location at the FSA county office. Absentee ballots arriving after the Absentee Voter Request List is first posted will be recorded on the Absentee Voter Request List each day. The complete In-Person Voter Request List will be posted in the FSA county office on the first business day after the date of the last day of the voting period. The complete Absentee Voter Request List will be posted in the FSA county Office on the sixth business day after the date of the last day of the voting period.

(b) Importers. The Importer Ballot Request List (Form LS-77) will be maintained by the FSA headquarters office in Washington, D.C., and not posted. Importers will be required to submit proof of eligibility a copy of a U.S. Customs Service Form 7501 with their request for a ballot.

§ 1280.632

Challenge of votes.

(a) Challenge period. During the dates of the 2-consecutive day voting period and the six business days following the voting period, the ballots of producers may be challenged at the FSA county office.

(b) Who can challenge. Any person can challenge a producer's vote. Any person who wants to challenge shall do so in writing and shall include the full name of the individual or corporation or other entity being challenged. Each challenge of a producer voter must be made separately and each challenge must be signed by the challenger.

(c) Who can be challenged. Any producer having cast an in-person ballot or an absentee ballot whose name is posted on the Voter Registration List or the Absentee Voter Request List can be challenged. Absentee ballots have to be received in the FSA county office before a producer's vote can be challenged.

(d) Determination of challenges. The FSA County Committee or its representative, acting on behalf of the Administrator, AMS, will make a determination concerning the challenge and will notify challenged producers as soon as practicable, but no later than eleven business days after the date of the last day of the voting period. If the FSA County Committee or its representative, acting on behalf of the Administrator, AMS, is unable to determine whether a person was a producer during the representative period, it will require the person to submit records such as sales documents, or other similar documents to prove that the person was a producer during the representative period. The FSA County Committee will then make a decision on the producer's eligibility and notify the producer of its decision.

(e) Challenged ballot. A challenge to a ballot shall be deemed to have been resolved if the determination of the FSA County Committee or its representative acting on behalf of the Administrator, AMS, is not appealed within the time allowed for appeal or there has been a determination by FSA after an appeal.

(f) Appeal. A person declared to be ineligible to register and vote by the FSA County Committee or its representative, acting on behalf of the Administrator, AMS, can file an appeal at the FSA county office within five business days after the date of receipt of the letter of notification of ineligibility. The FSA county office shall send a producers's appeal by facsimile to the FSA State Committee on the date it is filed at the FSA county office or as soon as practical thereafter.

(g) An appeal will be determined by the FSA State Committee as soon as practicable, but in all cases not later than the thirtieth business day after the date of the last day of the voting period. The FSA State Committee shall send its decision on a producer's appeal to the FSA County office where the producer was initially challenged. The FSA County office shall notify the challenged producers of the FSA State Committee's determination on their appeals. The FSA State Committee's determination on an appeal shall be final.

§ 1230.633

Receiving ballots.

(a) Producers. A ballot shall be considered to be received on time if:

(1) It was cast in-person in the county FSA office prior to the close of business on the date of the last day of the voting period; or

(2) It was cast as an absentee ballot, having a postmarked date not later than the last day of the voting period and was received in the county FSA office not later than the close of business, five business days after the last day of the voting period.

(b) Importers. A ballot shall be considered to be received on time if it had a postmark not later than the date of the last day of the voting period and was received in the FSA headquarters office in Washington, D.C., not later than the close of business, five business days after the last day of the voting period.

§ 1230.634

Canvassing ballots.

(a) Producers. (1) Counting the ballots. Under the supervision of FSA County Executive Director acting on behalf of the Administrator, AMS, the registration forms and ballots for producer voters will be checked against the Voter Registration List (Form LS-75) and the Absentee Voter Request List (Form LS-74) to determine properly registered voters. The ballots of producers voting in-person whose names are not on the Voter Registration List (Form LS-75), will be declared invalid. Likewise, the ballots of producers voting absentee whose names are not on the Absentee Voter Request List (Form LS-74) will be declared invalid. All ballots of challenged producer voters declared ineligible and invalid ballots will be kept separate from the other ballots and the envelopes containing these ballots will not be opened. The valid ballots will be counted on the thirty-first business day after the last day of the voting period. FSA county office employees will remove the sealed “PORK BALLOT” envelope (Form LS-72-1) from the registration form/envelopes or absentee ballot envelopes of all eligible producer voters and all challenged producer voters determined to be eligible. After removing all “Pork Ballot” envelopes, FSA county employees will shuffle the sealed “Pork Ballot” envelopes or otherwise mix them up so that ballots cannot be matched with producers' names. After shuffling the “Pork Ballot” envelopes, FSA county employees will open them and count the ballots. The ballots will be counted as follows:

(i) Number of eligible producers casting valid ballots;

(ii) Number of producers favoring continuation of the Pork Checkoff;

(iii) Number of producers favoring termination of the Pork Checkoff;

(iv) Number of challenged producer ballots deemed ineligible;

(v) Number of invalid ballots; and

(vi) Number of spoiled ballots.

(2) Invalid ballots. Ballots will be declared invalid if a producer voting in-person has failed to sign the Voter Registration List (Form LS-75) or an absentee voter's name is not recorded on the Absentee Voter Request List (Form LS-74), or the registration form or ballot was incomplete or incorrectly completed.

(3) Spoiled ballots. Ballots will be considered spoiled if they are mutilated or marked in such a way that either the “yes” or “no” vote is illegible. Spoiled ballots shall not be considered as approving or disapproving the Pork Checkoff, or as a ballot cast in the referendum.

(4) Confidentiality. All ballots shall be confidential and the contents of the ballots not divulged except as the Secretary may direct. The public may witness the opening of the ballot box and the counting of the votes but may not interfere with the process.

(b) Importers. (1) Counting the ballots. FSA headquarters personnel acting on behalf of the Administrator, AMS, will check the registration forms and ballots for all importer voters against the Importer Ballot Request List (Form LS-77) to determine properly registered voters. The ballots of importers voting whose names are not recorded on the Importer Ballot Request List (Form LS-77), will be declared invalid. All ballots of importer voters declared invalid will be kept separate from the other ballots and the envelopes containing these ballots will not be opened. The valid ballots will be counted on the thirty-first business day after the date of the last day of the voting period. FSA headquarter office employees will remove the sealed “PORK BALLOT” envelope (Form LS-72-1) from the “Pork Referendum” envelopes (Form LS-73-1) of all eligible importer voters. After removing all “Pork Ballot” envelopes, FSA headquarter employees will shuffle the sealed “Pork Ballot” envelopes or otherwise mix them up so that ballots cannot be matched with importers' names. After shuffling the “Pork Ballot” envelopes, FSA headquarters employees will open the envelopes and count the ballots. The ballots will be counted as follows:

(i) Number of eligible importers casting valid ballots;

(ii) Number of importers favoring continuation of the Pork Checkoff;

(iii) Number of importers favoring termination of the Pork Checkoff;

(iv) Number of importer ballots deemed invalid; and

(v) Number of spoiled ballots.

(2) Invalid ballots. Ballots will be declared invalid if an importer voter's name was not recorded on the Importer Ballot Request List (Form LS-77), or the registration form or ballot was incomplete or incorrectly completed.

(3) Spoiled ballots. Ballots will be considered spoiled if they were mutilated or marked in such a way that either the “yes” or “no” vote was illegible. Spoiled ballots shall not be considered as a ballot cast in the referendum.

(4) Confidentiality. All ballots shall be confidential and the contents of the ballots not divulged except as the Secretary may direct. The public can witness the opening of the ballot box and the counting of the votes but can not interfere with the process.

§ 1230.635

FSA county office report.

The FSA county office will notify the FSA State office of the results of the referendum. Each FSA county office will transmit the results of the referendum in its county to the FSA State office. Such report will include the information listed in § 1230.634. The results of the referendum in each county will be made available to the public. A copy of the report of results will be posted for 30 days in the FSA county office in a conspicuous place accessible to the public, and a copy will be kept on file in the FSA county office for a period of at least 12 months after the referendum.

§ 1230.636

FSA State office report.

Each FSA State office will transmit to the Administrator, FSA, a written summary of the results of the referendum received from all FSA county offices within the State. The summary shall include the information on the referendum results contained in the reports from all county offices within each State and be certified by the FSA State Executive Director. The FSA State office will maintain a copy of the summary where it will be available for public inspection for a period of not less than 12 months.

§ 1230.637

Results of the referendum.

(a) The Administrator, FSA, will submit the combined results of the FSA State offices' results of the producers' vote and the FSA headquarters office results of the importers' vote to the Administrator, AMS. The Administrator, AMS, will prepare and submit to the Secretary a report of the results of the referendum. The results of the referendum will be issued by the Department in an official press release and published in the Federal Register. State reports on producer balloting, FSA headquarters office report on importer balloting, and related papers will be available for public inspection in the office of the Marketing Programs Branch, Livestock and Seed Program, AMS, USDA, Room 2627, South Agriculture Building, 1400 Independence Avenue, SW., Washington, D.C.

(b) If the Secretary deems it necessary, the report of any State or county shall be re-examined and checked by such persons as may be designated by the Secretary.

§ 1230.638

Disposition of ballots and records.

(a) Producer Ballots and Records. Each FSA County Executive Director will place in sealed containers marked with the identification of the referendum, the voter registration list, absentee voter request list, voted ballots, challenged registration forms/envelopes, challenged absentee voter registration forms, challenged ballots found to be ineligible, invalid ballots, spoiled ballots, and county summaries. Such records will be placed under lock in a safe place under the custody of the FSA County Executive Director for a period of not less than 12 months after the referendum. If no notice to the contrary is received from the Administrator, FSA, by the end of such time, the records shall be destroyed.

(b) Importer Ballots and Records. The FSA headquarters office in Washington, D.C., will deliver the importer U.S. Customs Service Form 7501 the voter registration list, voted ballots, invalid ballots, spoiled ballots, and national summaries and records to the Marketing Programs Branch, Livestock and Seed Program, AMS, USDA, Room 2627, South Agriculture Building, 1400 Independence Avenue, SW., Washington, D.C. A Marketing Programs Branch employee will place the ballots and records in sealed containers marked with the identification of the referendum. Such ballots and records will be placed under lock in a safe place under the custody of the Marketing Programs Branch for a period of not less than 12 months after the referendum. If no notice to the contrary is received from the Administrator, AMS, by the end of such time, the records shall be destroyed.

§ 1230.639

Instructions and forms.

The Administrator, AMS, is authorized to prescribe additional instructions and forms not inconsistent with the provisions of this subpart to govern the conduct of the referendum.

Dated: April 12, 2000.

Kathleen A. Merrigan,

Administrator, Agricultural Marketing Service.

Note:

The following Appendix will not appear in the Code of Federal Regulations.

Appendix—Pork Referendum Forms

The following nine forms referenced in Subpart E Part 1230—Procedures for the Conduct of a Referendum—will be used for registering and voting in the pork referendum and for listing registered voters.

LS-72 In-Person Voting Ballot

LS-72-1 Pork Ballot Envelope

LS-72-2 In-Person Registration and Certification Envelope

LS-73 Absentee Voting Ballot and Registration and Certification Form

LS-73-1 Pork Referendum Envelope

LS-74 Absentee Voter Request List

LS-75 In-Person Voter Registration List

LS-76 Importer Ballot, Registration, and Certification Form

LS-77 Importer Ballot Voter Request List