`[Federal Register Volume 75, Number 222 (Thursday, November 18, 2010)]
[Rules and Regulations]
[Pages 70573-70578]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-29106]


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DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 1221

[Doc. No. AMS-LS-10-0003]


Sorghum Promotion and Research Program: Procedures for the 
Conduct of Referenda

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Final rule.

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SUMMARY: The Commodity Promotion, Research, and Information Act of 1996 
(Act) authorizes a program of promotion, research, and information to 
be developed through the promulgation of the Sorghum Promotion, 
Research, and Information Order (Order). The Act requires that the 
Secretary of Agriculture (Secretary) conduct a referendum among persons 
subject to assessments who, during a representative period established 
by the Secretary, have engaged in the production or importation of 
sorghum. This final rule establishes procedures the Department of 
Agriculture (USDA) will use in conducting the required referendum as 
well as future referenda. Eligible persons will be provided the 
opportunity to vote during a specified period announced by USDA. For 
the program to continue, it must be approved, with an affirmative vote, 
by at least a majority of those persons voting who were engaged in the 
production or importation of sorghum during the representative period.

DATES: Effective Date: December 20, 2010.

FOR FURTHER INFORMATION CONTACT: Kenneth R. Payne, Chief, Marketing 
Programs Branch on 202/720-1115, fax 202/720-1125, or by e-mail at 
[email protected] or Rick Pinkston, USDA, FSA, DAFO, on 202/
690-8034, fax 202/720-5900, or by e-mail on [email protected].

SUPPLEMENTARY INFORMATION:

Executive Order 12866

    This final rule has been determined not significant for purposes of 
Executive Order 12866 and therefore has not been reviewed by the Office 
of Management and Budget (OMB).

Executive Order 12988

    This final rule has been reviewed under Executive Order 12988, 
Civil Justice Reform. It is not intended to have retroactive effect. 
Section 524 of the Act provides that the Act shall not affect or 
preempt any other Federal or State law authorizing promotion or 
research relating to an agricultural commodity.
    Under section 519 of the Act, a person subject to the Order may 
file a petition with the Secretary stating that the Order, any 
provision of the Order, or any obligation imposed in connection with 
the Order is not established in accordance with the law, and may 
request a modification of the Order or an exemption from the Order. Any 
petition filed challenging the Order, any provision of the Order, or 
any obligation imposed in connection with the Order, shall be filed 
within 2 years after the effective date of the Order, provision, or 
obligation subject to challenge in the petition. The petitioner will 
have the opportunity for a hearing on the petition. Thereafter, the 
Secretary will issue a ruling on the petition. The Act provides that 
the district court of the United States for any district in which the 
petitioner resides or conducts business shall have the jurisdiction to

[[Page 70574]]

review a final ruling on the petition if the petitioner files a 
complaint for that purpose not later than 20 days after the date of the 
entry of the Secretary's final ruling.

Regulatory Flexibility and Paperwork Reduction Act

    In accordance with the Regulatory Flexibility Act (RFA) (5 U.S.C. 
601-612), USDA is required to examine the impact of this rule on small 
entities. The purpose of the RFA is to fit regulatory actions to the 
scale of businesses subject to such actions so that small businesses 
will not be disproportionately burdened.
    The Act, which authorizes USDA to consider industry proposals for 
generic programs of promotion, research, and information for 
agricultural commodities, became effective on April 4, 1996. The Act 
states that Congress found that it is in the national public interest 
and vital to the welfare of the agricultural economy of the United 
States to maintain and expand existing markets and develop new markets 
and uses for agricultural commodities through industry-funded, 
Government-supervised, commodity promotion programs.
    Section 518 of the Act provides three options for determining 
industry approval or continuation of a new research and promotion 
program. They are: (1) By a majority of those voting; (2) by a majority 
of the volume of the agricultural commodity voted in the referendum; or 
(3) by a majority of those persons voting who also represent a majority 
of the volume of the agricultural commodity voted in the referendum. In 
addition, Sec.  518 of the Act provides for referendums to ascertain 
approval of an Order to be conducted either prior to its going into 
effect or within 3 years after assessments first begin under an Order. 
As recommended by representatives of the sorghum industry, the final 
Order, which was published in the Federal Register on May 6, 2008 (73 
FR 25398), provides that USDA conduct a referendum within 3 years after 
assessments begin and that the continuation of the Order be approved by 
at least a majority of those persons voting for approval who are 
engaged in the production or importation sorghum.
    This final rule establishes the procedures USDA will use for the 
conduct of a nationwide referendum among eligible persons to determine 
if the Order should be continued. This final rule adds a new subpart 
that establishes procedures to conduct the initial and future 
referendums. The new subpart covers definitions, certification and 
voting procedures, eligibility, disposition of forms and records, the 
role of the Farm Service Agency (FSA), and reporting the results.
    According to the 2007 Census of Agriculture, there are 
approximately 26,000 persons engaged in the production of sorghum who 
are subject to the program. Most sorghum producers are classified as 
small businesses under the criteria established by the Small Business 
Administration (SBA) (13 CFR 121.201).
    In accordance with OMB regulation (5 CFR part 1320) that implements 
the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35) (PRA), AMS 
received OMB approval for a new information collection for the sorghum 
program. Upon approval, this collection was merged into the existing 
collection numbered 0581-0093.
    The information collection requirements are minimal. Public 
reporting burden on producers and importers for this collection of 
information is estimated to average 0.01 hours per response with an 
estimated total number of 166 hours and a total cost of $3,079.30. 
Obtaining a ballot by mail, in-person, facsimile, or via the Internet 
and completing it in its entirety will not impose a significant 
economic burden on participants. Accordingly, the Administrator of the 
Agricultural Marketing Service (AMS) has determined that this final 
rule will not have a significant economic impact on a substantial 
number of small business entities.

Background

    The Act (U.S.C. 7411-7425), which became effective on April 4, 
1996, authorizes USDA to establish generic programs of promotion, 
research, and information for agricultural commodities designed to 
strengthen an industry's position in the marketplace and to maintain 
and expand existing domestic and foreign markets and uses for 
agricultural commodities. Pursuant to the Act, a proposed Order on the 
Sorghum Checkoff Program was published in the Federal Register on 
November 23, 2007 (72 FR 65842). The final Order was published in the 
Federal Register on May 6, 2008 (73 FR 25398). Collection of 
assessments began on July 1, 2008.
    This program is funded primarily by those persons engaged in the 
production of sorghum. Grain sorghum is assessed at a rate of 0.6 
percent of net market value received by the producer. Sorghum forage, 
sorghum hay, sorghum haylage, sorghum billets, and sorghum silage are 
assessed at a rate of 0.35 percent of net market value received by the 
producer. Imported sorghum is also subject to assessment and therefore, 
sorghum importers are eligible to vote in the referendum. Total annual 
revenue for the program is approximately $6,000,000 of which, less than 
$100 comes from import assessments.
    For purposes of this program, Sorghum means any harvested portion 
of Sorghum bicolor (L.) Moench or any related species of the genus 
Sorghum of the family Poaceae. This includes, but is not limited to, 
grain sorghum (including hybrid sorghum seeds, inbred sorghum line 
seed, and sorghum cultivar seed), sorghum forage, sorghum hay, sorghum 
haylage, sorghum billets, and sorghum silage.
    The Act requires that a referendum to ascertain approval of the 
Order must be conducted either prior to the Order going into effect or 
within 3 years after assessments first begin. The industry recommended 
to USDA that the referendum be conducted no later than 3 years after 
assessments first begin to determine whether the Order should be 
continued. Assessments began on July 1, 2008. Thus, USDA is required to 
conduct a nationwide referendum among persons subject to the assessment 
by July 1, 2011.
    On January 25, 2010, the Chairman of the United Sorghum Checkoff 
Program Board signed a letter requesting that the referendum be 
completed by March 1, 2011. He observed that there is a large area of 
sorghum production in South Texas, Louisiana, Arkansas and other 
southern States that begin planting in March. He noted that by 
conducting the referendum before March 1, 2011, producers will not have 
to interrupt planting operations at a critical time to go and vote.
    The Order will continue if a majority of those persons voting favor 
continuing the program. If the continuation of the Order is not 
approved by eligible persons voting in the referendum, USDA will begin 
the process of terminating the program.
    Eligible persons are required to complete a ballot in its entirety, 
vote ``yes'' or ``no'' to continue the program, and provide 
documentation showing that they engaged in the production or 
importation of sorghum during the representative period. The person 
will sign the ballot certifying that they were engaged in the 
production or importation of sorghum during a representative period 
specified by the Secretary to the best of one's knowledge.
    USDA has determined that the representative period for the 
production or importation of sorghum will be July 1, 2008 through 
December 31, 2010. This final rule also provides that the

[[Page 70575]]

ballots may be cast in person, by facsimile, or by mail-in vote at the 
appropriate county FSA or, for importers, AMS office. Providing 
producers an opportunity to vote at the county FSA office and importers 
through the AMS office provides persons subject to the Order the 
greatest opportunity to vote in the referendum.
    Producers are directed to vote at the county FSA office where FSA 
maintains and processes the person's administrative farm records. For 
those eligible producers not participating in FSA programs, the 
opportunity to vote is provided at the county FSA office serving the 
county where the person owns or rents land. A person engaged in the 
production of sorghum in more than one county will vote in the county 
FSA office where the person does most of his or her business. Eligible 
producer voters can determine the location of county FSA offices by 
contacting (1) the nearest county FSA office, (2) the State FSA office, 
or (3) through an online search of FSA's Web site at http://www.fsa.usda.gov/pas/default.asp. From the options available on this 
Web page select ``Your local office,'' click on your State, and click 
on the map to select a county.
    Importers will vote by contacting Craig Shackelford, Marketing 
Programs Branch, Livestock and Seed Program, AMS, USDA, Room 2628-S, 
STOP 0251, 1400 Independence Avenue, SW., Washington, DC 20250-0251; 
Telephone: (202) 720-1115; Fax: (202) 720-1125; 
[email protected]. Forms may be obtained via the Internet 
at http://www.ams.usda.gov/LSMarketingPrograms.
    The final rule establishes procedures USDA will use in conducting 
the required referendum as well as future referendums provided under 
the Act. The final rule includes definitions, eligibility, 
certification and voting procedures, reporting results, and disposition 
of the forms and records.
    FSA will coordinate State and county FSA roles in conducting the 
referendum by (1) Determining producer eligibility, (2) canvassing and 
counting ballots, and (3) reporting the results. AMS will coordinate 
importer voting. A 60 day comment period was provided from July 16, 
2010 through September 14, 2010 in order for interested persons to 
comment.

Comments

    USDA published proposed procedures for conducting a Sorghum 
Promotion, Research and Information Program referendum on July 16, 2010 
[75 FR 41392] with a request for comments on the proposal to be 
received by September 14, 2010. USDA received two timely comments 
regarding the proposal. Two comments were received on September 10, 
2010 by sorghum industry organizations. Both comments stated that the 
proposed rule adequately reflects the intentions of the producers they 
represent. Both comments suggested that section 1221.222 Eligibility 
could be strengthened by adding a sentence to clarify that the intent 
of eligibility is to allow each entity one vote. This comment has merit 
and a new sentence has been added to section 1221.222 to add clarity.

List of Subjects in 7 CFR Part 1221

    Administrative practice and procedure, Advertising, Agricultural 
research, Marketing agreements, Sorghum and sorghum products, Reporting 
and recordkeeping requirements.

0
For the reasons set forth in the preamble, Title 7, Chapter XI, part 
1221 of the Code of Federal Regulations, is amended as follows:

PART 1221--SORGHUM PROMOTION, RESEARCH, AND INFORMATION

0
1. The authority citation for 7 CFR part 1221 continues to read as 
follows:

    Authority:  7 U.S.C. 7411-7425.


0
2. In part 1221, subpart B is added to read as follows:
Subpart B--Procedures for the Conduct of Referenda

Definitions

Sec.
1221.200 Terms defined.
1221.201 Administrator, AMS.
1221.202 Administrator, FSA.
1221.203 Eligible person.
1221.204 Farm Service Agency.
1221.205 Farm Service Agency County Committee.
1221.206 Farm Service Agency County Executive Director.
1221.207 Farm Service Agency State Committee.
1221.208 Farm Service Agency State Executive Director.
1221.209 Public notice.
1221.210 Representative period.
1221.211 Voting period.

Procedures

1221.220 General.
1221.221 Supervision of the process for conducting referenda.
1221.222 Eligibility.
1221.223 Time and place of the referendum.
1221.224 Facilities.
1221.225 Certification and referendum ballot form.
1221.226 Certification and voting procedures.
1221.227 Canvassing voting ballots.
1221.228 Counting ballots.
1221.229 FSA county office report.
1221.230 FSA State office report.
1221.231 Results of the referendum.
1221.232 Disposition of records.
1221.233 Instructions and forms.
1221.234 Confidentiality.

Subpart B--Procedures for the Conduct of Referenda

Definitions


Sec.  1221.200  Terms defined.

    As used throughout this subpart, unless the context otherwise 
requires, terms shall have the same meaning as the definition of such 
terms in subpart A of this part.


Sec.  1221.201  Administrator, AMS.

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


Sec.  1221.202  Administrator, FSA.

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


Sec.  1221.203  Eligible person.

    Eligible person is defined as any person subject to the assessment 
who during the representative period determined by the Secretary has 
engaged in the production or importation of sorghum. Such persons are 
eligible to participate in the referendum.


Sec.  1221.204  Farm Service Agency.

    Farm Service Agency, also referred to as ``FSA,'' means the Farm 
Service Agency of USDA.


Sec.  1221.205  Farm Service Agency County Committee.

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


Sec.  1221.206  Farm Service Agency County Executive Director.

    Farm Service Agency County Executive Director, also referred to as 
``CED,'' means the person employed by the FSA County Committee to 
execute the policies of the FSA County Committee and to be responsible 
for the day-to-day operation of the FSA county

[[Page 70576]]

office, or the person acting in such capacity.


Sec.  1221.207  Farm Service Agency State Committee.

    Farm Service Agency State Committee, also referred to as ``FSA 
State Committee,'' means the group of persons within a State who are 
appointed by the Secretary to act as the Farm Service Agency State 
Committee.


Sec.  1221.208  Farm Service Agency State Executive Director.

    Farm Service Agency State Executive Director, also referred to as 
``SED,'' means the person within a State who is appointed by the 
Secretary to be responsible for the day-to-day operation of the FSA 
State Office, or the person acting in such capacity.


Sec.  1221.209  Public notice.

    Public notice means not later than 30 days before the referendum is 
conducted, the Secretary shall notify the eligible voters in such 
manner as determined by the Secretary, of the voting period during 
which voting in the referendum will occur. The notice shall explain any 
registration and voting procedures established under section 518 of the 
Act.


Sec.  1221.210  Representative period.

    Representative period means the period designated by the Secretary 
pursuant to section 518 of the Act.


Sec.  1221.211  Voting period.

    The term voting period means a 4-week period to be announced by the 
Secretary for voting in the referendum.

Procedures


Sec.  1221.220  General.

    A referendum to determine whether eligible persons favor the 
continuance of this part shall be carried out in accordance with this 
subpart.
    (a) The referendum will be conducted at county FSA offices for 
producers and through AMS headquarters offices for importers.
    (b) The Secretary shall determine if at least a majority of those 
persons voting favor the continuance of this part.


Sec.  1221.221  Supervision of the process for conducting referenda.

    The Administrator, AMS, shall be responsible for supervising the 
process of permitting persons to vote in a referendum in accordance 
with this subpart.


Sec.  1221.222  Eligibility.

    (a) Any person subject to the assessment who during the 
representative period determined by the Secretary has engaged in the 
production or importation of sorghum is eligible to participate in the 
referendum. An eligible person at the time of the referendum and during 
the representative period, shall be entitled to cast only one vote in 
the referendum.
    (b) Proxy registration. Proxy registration is not authorized, 
except that an officer or employee of a corporate producer or importer, 
or any guardian, administrator, executor, or trustee of a person's 
estate, or an authorized representative of any eligible producer or 
importer entity (other than an individual person), such as a 
corporation or partnership, may vote on behalf of that entity. Further, 
an individual cannot vote on behalf of another individual (i.e., 
spouse, family members, sharecrop lease, joint tenants, tenants in 
common, owners of community property, a partnership, or a corporation).
    (c) Any individual, who votes on behalf of any producer or importer 
entity, shall certify that he or she is authorized by such entity to 
take such action. Upon request of the county FSA or AMS office, the 
person voting may be required to submit adequate evidence of such 
authority.
    (d) Joint and group interest. A group of individuals, such as 
members of a family, joint tenants, tenants in common, a partnership, 
owners of community property, or a corporation who engaged in the 
production or importation of sorghum during the representative period 
as a producer or importer entity shall be entitled to cast only one 
vote; provided, however, that any individual member of a group who is 
an eligible person separate from the group may vote separately.


Sec.  1221.223  Time and place of the referendum.

    (a) The opportunity to vote in the referendum shall be provided 
during a 4-week period beginning and ending on a date determined by the 
Secretary. Eligible persons shall have the opportunity to vote 
following the procedures established in this subpart during the normal 
business hours of each county FSA or AMS office.
    (b) Persons can determine the location of county FSA offices by 
contacting the nearest county FSA office, the State FSA office, or 
through an online search of FSA's Web site.
    (c) Each eligible producer shall cast a ballot in the county FSA 
office where FSA maintains the person's administrative farm records. 
For eligible persons not participating in FSA programs, the opportunity 
to vote will be provided at the county FSA office serving the county 
where the person owns or rents land. A person engaged in the production 
of sorghum in more than one county will vote in the county FSA office 
where the person does most of his or her business.
    (d) Each eligible importer will cast a ballot in the Marketing 
Programs Branch, Livestock and Seed Program, AMS, USDA, Room 2628-S, 
STOP 0251, 1400 Independence Avenue, SW., Washington, DC 20250-0251; 
Telephone: (202) 720-1115; Fax: (202) 720-1125.


Sec.  1221.224  Facilities.

    Each county FSA office will provide:
    (a) A voting place that is well known and readily accessible to 
persons in the county and that is equipped and arranged so that each 
person can complete and submit a ballot in secret without coercion, 
duress, or interference of any sort whatsoever, and
    (b) A holding container of sufficient size so arranged that no 
ballot or supporting documentation can be read or removed without 
breaking seals on the container.


Sec.  1221.225  Certification and referendum ballot form.

    Form LS-379 shall be used to vote in the referendum and certify 
eligibility. Eligible persons will be required to complete a ballot in 
its entirety, vote ``yes'' or ``no'' to continue the program and 
provide documentation such as a sales receipt or remittance form 
showing that the person voting was engaged in the production of sorghum 
during the representative period. The person or authorized 
representative shall sign the ballot certifying that they or the entity 
they represent were engaged in the production of sorghum during the 
representative period.


Sec.  1221.226  Certification and voting procedures.

    (a) Each eligible person shall be provided the opportunity to cast 
a ballot during the voting period announced by the Secretary.
    (1) Each eligible person shall be required to complete Form LS-379 
in its entirety, sign it and, provide evidence that they were engaged 
in the production or importation of sorghum during the representative 
period. The person must legibly place his or her name and, if 
applicable, the entity represented, address, county and, telephone 
number. The person shall sign and certify on Form LS-379 that:
    (i) The person was engaged in the production or importation of 
sorghum during the representative period;

[[Page 70577]]

    (ii) The person voting on behalf of a corporation or other entity 
is authorized to do so;
    (iii) The person has cast only one vote; and
    (2) Only a completed and signed Form LS-379 accompanied by 
supporting documentation showing that the person was engaged in the 
production or importation of sorghum during the representative period 
shall be considered a valid vote.
    (b) To vote, eligible producers may obtain Form LS-379 in-person, 
by mail, or by facsimile from county FSA offices or through the 
Internet during the voting period. A completed and signed Form LS-379 
and supporting documentation, such as a sales receipt or remittance 
form, must be returned to the appropriate county FSA office where FSA 
maintains and processes the person's administrative farm records. For a 
person not participating in FSA programs, the opportunity to vote in a 
referendum will be provided at the county FSA office serving the county 
where the person owns or rents land. A person engaged in the production 
of sorghum in more than one county will vote in the county FSA office 
where the person does most of his or her business. A completed and 
signed Form LS-379 and the supporting documentation may be returned in-
person, by mail, or facsimile to the appropriate county FSA office. 
Form LS-379 and supporting documentation returned in-person or by 
facsimile, must be received in the appropriate county FSA office prior 
to the close of the work day on the final day of the voting period to 
be considered a valid ballot. Form LS-379 and the accompanying 
documentation returned by mail must be postmarked no later than 
midnight of the final day of the voting period and must be received in 
the county FSA office on the 5th business day following the final day 
of the voting period. To vote, eligible importers may obtain Form LS-
379 in-person, by mail or, by facsimile from AMS offices or through the 
Internet during the voting period. A completed and signed Form LS-379 
and supporting documentation, such as a U.S. Customs and Border 
Protection form 7501, must be returned to the AMS headquarters office.
    (c) A completed and signed Form LS-379 and the supporting 
documentation may be returned in-person, by mail, or facsimile to the 
appropriate county FSA office for producers and to AMS office for 
importers. Form LS-379 and supporting documentation returned in-person 
or by facsimile, must be received in the appropriate county FSA office 
for producers or the AMS office for importers prior to the close of the 
work day on the final day of the voting period to be considered a valid 
ballot. Form LS-379 and the accompanying documentation returned by mail 
must be postmarked no later than midnight of the final day of the 
voting period and must be received in the county FSA office for 
producers and the AMS office for importers on the 5th business day 
following the final day of the voting period.
    (d) Persons who obtain Form LS-379 in-person at the appropriate FSA 
county office may complete and return it the same day along with the 
supporting documentation. Importers who obtain Form LS-379 in-person at 
the appropriate AMS office may complete and return it the same day 
along with the supporting documentation.


Sec.  1221.227  Canvassing voting ballots.

    (a) Canvassing of Form LS-379 shall take place at the appropriate 
county FSA offices or AMS office on the 6th business day following the 
final day of the voting period. Canvassing of producer ballots shall be 
in the presence of at least two members of the county committee. If two 
or more of the counties have been combined and are served by one county 
office, the canvassing of the requests shall be conducted by at least 
one member of the county committee from each county served by the 
county office. The FSA State committee or the State Executive Director, 
if authorized by the State Committee, may designate the County 
Executive Director (CED) and a county or State FSA office employee to 
canvass the ballots and report the results instead of two members of 
the county committee when it is determined that the number of eligible 
voters is so limited that having two members of the county committee 
present for this function is impractical, and designate the CED and/or 
another county or State FSA office employee to canvass requests in any 
emergency situation precluding at least two members of the county 
committee from being present to carry out the functions required in 
this section.
    (b) Canvassing of importer ballots will be performed by AMS 
personnel or any other person as deemed necessary.
    (c) Form LS-379 should be canvassed as follows:
    (1) Number of valid ballots. A person has been declared eligible by 
FSA or AMS to vote by completing Form LS-379 in its entirety, signing 
it, and providing supporting documentation that shows the person who 
cast the ballot during the voting period was engaged in the production 
or importation of sorghum. Such ballot will be considered a valid 
ballot.
    (2) Number of ineligible ballots. If FSA or AMS cannot determine 
that a person is eligible based on the submitted documentation or if 
the person fails to submit the required supporting documentation, the 
person shall be determined to be ineligible. FSA or AMS shall notify 
ineligible persons in writing as soon as practicable but no later than 
the 8th business day following the final day of the voting period.
    (d) Appeal. A person declared to be ineligible by FSA or AMS can 
appeal such decision and provide additional documentation to the FSA 
county office or AMS within 5 business days after the postmark date of 
the letter of notification of ineligibility. FSA or AMS will then make 
a final decision on the person's eligibility and notify the person of 
the decision.
    (e) Invalid ballots. An invalid ballot includes, but is not limited 
to the following:
    (1) Form LS-379 is not signed or all required information has not 
been provided;
    (2) Form LS-379 and supporting documentation returned in-person or 
by facsimile was not received by close of business on the last business 
day of the voting period;
    (3) Form LS-379 and supporting documentation returned by mail was 
not postmarked by midnight of the final day of the voting period;
    (4) Form LS-379 and supporting documentation returned by mail was 
not received in the county FSA or AMS office by the 5th business day 
following the final day of the voting period;
    (5) Form LS-379 or supporting documentation is mutilated or marked 
in such a way that any required information on the Form is illegible; 
or
    (6) Form LS-379 and supporting documentation not returned to the 
appropriate county FSA or AMS office.


Sec.  1221.228  Counting ballots.

    (a) Form LS-379 shall be counted by county FSA offices or the AMS 
office on the same day as the ballots are canvassed if there are no 
ineligibility determinations to resolve. For those county FSA offices 
that do have ineligibility determinations, the requests shall be 
counted no later than the 14th business day following the final day of 
the voting period.
    (b) Ballots shall be counted as follows:
    (1) Number of valid ballots cast;
    (2) Number of persons favoring the Order;
    (3) Number of persons not favoring the Order;

[[Page 70578]]

    (4) Number of invalid ballots.


Sec.  1221.229  FSA county office report.

    The county FSA office report shall be certified as accurate and 
complete by the CED or designee, acting on behalf of the Administrator, 
AMS, as soon as may be reasonably possible, but in no event shall 
submit no later than the 18th business day following the final day of 
the specified period. Each county FSA office shall transmit the results 
in its county to the FSA State office. The results in each county may 
be made available to the public upon notification by the Administrator, 
FSA, that the final results have been released by the Secretary. A copy 
of the report shall be posted for 30 calendar days following the date 
of notification by the Administrator, FSA, in the county FSA office in 
a conspicuous place accessible to the public. One copy shall be kept on 
file in the county FSA office for a period of at least 12 months after 
notification by FSA that the final results have been released by the 
Secretary.


Sec.  1221.230  FSA State office report.

    Each FSA State office shall transmit to the Administrator, FSA, as 
soon as possible, but in no event later than the 20th business day 
following the final day of the voting period, a report summarizing the 
data contained in each of the reports from the county FSA offices. One 
copy of the State summary shall be filed for a period of not less than 
12 months after the results have been released and available for public 
inspection after the results have been released.


Sec.  1221.231  Results of the referendum.

    (a) The Administrator, FSA, shall submit to the Administrator, AMS, 
reports from all State FSA offices. The Administrator, AMS shall 
tabulate the results of the ballots. USDA will issue an official press 
release announcing the results of referendum and publish the same 
results in the Federal Register. In addition, USDA will post the 
official results on its Web site. State reports and related papers 
shall be available for public inspection upon request during normal 
business hours at the Marketing Programs Branch; Livestock and Seed 
Program, AMS, USDA, Room 2628-S; STOP 0251; 1400 Independence Avenue, 
SW., Washington, DC.
    (b) If the Secretary deems necessary, a State report or county 
report shall be reexamined and checked by such persons who may be 
designated by the Secretary.


Sec.  1221.232  Disposition of records.

    Each FSA CED will place in sealed containers marked with the 
identification of the ``Sorghum Checkoff Program Referendum,'' all of 
the Forms LS-379 along with the accompanying documentation and county 
summaries. Such records will be placed in a secure location under the 
custody of FSA CED for a period of not less than 12 months after the 
date of notification by the Administrator, FSA, that the final results 
have been announced by the Secretary. If the county FSA office receives 
no notice to the contrary from the Administrator, FSA, by the end of 
the 12 month period as described above, the CED or designee shall 
destroy the records.


Sec.  1221.233  Instructions and forms.

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


Sec.  1221.234  Confidentiality

    The names of persons voting in the referendum and ballots shall be 
confidential and the contents of the ballots shall not be 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.

    Dated: November 10, 2010.
David R. Shipman,
Acting Administrator, Agricultural Marketing Service.
[FR Doc. 2010-29106 Filed 11-17-10; 8:45 am]
BILLING CODE 3410-02-P`