This section of the FEDERAL REGISTER

contains notices to the public of the proposed

issuance of rules and regulations. The

purpose of these notices is to give interested

persons an opportunity to participate in the

rule making prior to the adoption of the final

rules.

Proposed Rules Federal Register

49342 

Vol. 74, No. 186 

Monday, September 28, 2009 

DEPARTMENT OF AGRICULTURE 

Agricultural Marketing Service 

7 CFR Part 1250 

[Doc. No. AMS–PY–09–0116] 

Egg Research and Promotion Order; 

Referendum Procedures 

AGENCY: Agricultural Marketing Service, 

USDA. 

ACTION: Proposed rule with request for 

comments. 

SUMMARY: This proposed rule would 

establish procedures which the USDA 

will use in conducting a referendum to 

determine whether egg producers favor 

increasing the assessment they pay to 

the American Egg Board (AEB) from a 

rate of 10 cents per 30-dozen case of 

commercial eggs to 15 cents per case. 

An amendment to increase the 

assessment rate in the Egg Research and 

Promotion Order will be implemented if 

it is approved by two-thirds of the egg 

producers voting in the referendum or 

by a majority of producers voting if they 

produced two-thirds of the eggs 

produced by all voters. These 

procedures would also be used for 

subsequent referenda. A proposed rule 

to increase the assessment rate is 

published separately in this issue of the 

Federal Register. AEB, which 

administers the Order, recommended 

this action to sustain and expand its 

national promotion, research, and 

consumer information program. 

DATES: Comments must be received on 

or before November 27, 2009. 

ADDRESSES: Interested persons are 

invited to submit written comments on 

the Internet at http:// 

www.regulations.gov or to Angela C. 

Snyder, Research and Promotion; 

Standards, Promotion, & Technology 

Branch; Poultry Programs, AMS, USDA; 

1400 Independence Avenue, SW., Room 

3932–S, Stop 0256; Washington, DC 

20250–0259; fax (202) 720–2930. 

Comments should reference the docket 

number and the date and page number 

of this issue of the Federal Register and 

will be available for public inspection at 

the above address during regular 

business hours or can be viewed at: 

http://www.regulations.gov. All 

comments received will be posted 

without change, including any personal 

information provided. 

FOR FURTHER INFORMATION CONTACT: 

Angela C. Snyder, Research and 

Promotion; Standards, Promotion & 

Technology Branch; Poultry Programs, 

AMS, USDA, 1400 Independence 

Avenue, SW., Room 3932–S, Stop 0256; 

Washington, DC 20250–0256; telephone: 

(202) 720–4476; fax (202) 720–2930; or 

e-mail: angie.snyder@ams.usda.gov. 

SUPPLEMENTARY INFORMATION: 

Executive Order 12866 

The Office of Management and Budget 

(OMB) has waived the review process 

required by Executive Order 12866 for 

this action. 

Executive Order 12988 

This proposed rule has been reviewed 

under Executive Order 12988, Civil 

Justice Reform. The rule is not intended 

to have a retroactive effect and will not 

affect or preempt any State or Federal 

law authorizing promotion or research 

relating to an agricultural commodity. 

The Act provides that administrative 

proceedings must be exhausted before 

parties may file suit in court. Section 14 

of the Act allows those subject to the 

Order to file a written petition with the 

Secretary of Agriculture (Secretary) if 

they believe that the Order, any 

provision of the Order, or any obligation 

imposed in connection with the Order, 

is not in accordance with the law. In 

any petition, the person may request a 

modification of the Order or an 

exemption from the Order. The 

petitioner will have the opportunity for 

a hearing on the petition. Afterwards, an 

Administrative Law Judge (ALJ) will 

issue a decision. If the petitioner 

disagrees with the ALJ’s ruling, the 

petitioner has 30 days to appeal to the 

Judicial Officer, who will issue a ruling 

on behalf of the Secretary. If the 

petitioner disagrees with the Secretary’s 

ruling, the petitioner may file, within 20 

days, an appeal in the U.S. District 

Court for the district where the 

petitioner resides or conducts business. 

Initial Regulatory Flexibility Act 

Analysis and Paperwork Reduction Act 

In accordance with the Regulatory 

Flexibility Act (RFA) [5 U.S.C. 601– 

612], the AMS has considered the 

economic impact of this action on the 

small producers that would be affected 

by this rule. The purpose of the RFA is 

to fit regulatory action to scale on 

businesses subject to such action so that 

small businesses will not be 

disproportionately burdened. 

According to AEB, approximately 245 

producers are subject to the provisions 

of the Order, including paying 

assessments. Under the current Order, 

producers in the 48 contiguous United 

States and the District of Columbia who 

own more than 75,000 laying hens each 

pay a mandatory assessment of 10 cents 

per 30-dozen case of eggs. Assessments 

under the program are used by AEB to 

finance promotion, research, and 

consumer information programs 

designed to increase consumer demand 

for eggs in domestic and international 

markets. At the current rate of 10 cents 

per case, assessments generate about 

$20 million in annual revenues. The 

Order is administered by AEB under 

supervision of the U.S. Department of 

Agriculture. 

In 13 CFR part 121, the Small 

Business Administration (SBA) defines 

small agricultural producers as those 

having annual receipts of no more than 

$750,000. Under this definition, the vast 

majority of the egg producers that would 

be affected by this rule would not be 

considered small entities. Producers 

owning 75,000 or fewer laying hens are 

exempt from this program. 

Given that a laying hen produces 

approximately 22 dozen eggs per year, 

production from 75,000 laying hens 

would result in 1.65 million dozen eggs. 

With a wholesale price of $0.965 per 

dozen, total annual receipts would be 

$1.59 million, which is well above the 

definition used to describe a small farm. 

The wholesale price of eggs would need 

to drop to approximately $0.45 per 

dozen before a producer with 75,000 

hens could be classified as a small farm 

under the SBA definition. 

This proposed rule would establish 

the procedures under which egg 

producers vote on whether they favor an 

increase in the assessments they pay to 

AEB. This proposal would add a new 

subpart which establishes procedures to 

conduct this referendum as well as 


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Federal Register / Vol. 74, No. 186 / Monday, September 28, 2009 / Proposed Rules 49343 

future referenda. The proposed subpart 

covers definitions, voting, instructions, 

use of subagents, ballots, the 

referendum report, and confidentiality 

of information. 

USDA will keep egg producers who 

are eligible to vote informed throughout 

the referendum process to ensure that 

they are aware of and are able to 

participate. USDA will also publicize 

information regarding the referendum 

process so that trade associations and 

related industry media can be kept 

informed. 

Voting in the referendum is optional. 

However, if egg producers choose to 

vote, the burden of voting is minimal. 

USDA considered electronic voting, but 

the use of computers is not universal. 

Conducting the referendum from one 

central location by mail ballot would be 

more cost-effective and reliable. 

In accordance with the Office of 

Management and Budget (OMB) 

regulation 5 CFR part 1320 that 

implements the Paperwork Reduction 

Act of 1995 [44 U.S.C. Chapter 35], the 

information collection requirements 

contained in this proposed rule have 

been approved previously under OMB 

control number 0581–0093. This rule 

does not result in a change to those 

information collection and 

recordkeeping requirements. 

There are no Federal rules that 

duplicate, overlap, or conflict with this 

rule. 

We have performed this Initial 

Regulatory Flexibility Analysis 

regarding the impact of these proposed 

referendum procedures on small 

entities, and we invite comments 

concerning potential effects of these 

amendments on small businesses. 

Background 

The Egg Research and Consumer 

Information Act established a national 

egg research and promotion program— 

administered by AEB—that is financed 

through industry assessments and 

subject to oversight by AMS. This 

program of promotion, research, and 

consumer information is designed to 

strengthen the position of eggs in the 

marketplace and to establish, maintain, 

and expand markets for eggs. 

This program is financed by 

assessments on egg producers owning 

more than 75,000 laying hens. The Egg 

Research and Promotion Order specifies 

that handlers are responsible for 

collecting and remitting the producer 

assessments to AEB, reporting their 

handling of eggs, and maintaining 

records necessary to verify their reports. 

Only producers in the contiguous 

United States are subject to the program, 

and producers owning 75,000 or fewer 

laying hens are exempt from paying 

assessments. 

This proposed rule would establish 

the procedures under which egg 

producers may vote on whether they 

want to increase the assessments they 

pay to AEB by increasing the rate from 

10 cents to 15 cents per 30-dozen case 

of eggs. A proposed rule to increase the 

assessment rate is published separately 

in this issue of the Federal Register. 

This proposed rule would add a new 

subpart which would establish 

procedures to be used in this and future 

referenda. This subpart covers 

definitions, voting, instructions, use of 

subagents, ballots, the referendum 

report, and confidentiality of 

information. 

A 60-day comment period is provided 

to allow interested parties to respond to 

this proposal. All written comments 

received by the date specified in 

response to this rule will be considered 

prior to conduct of the referendum. 

All written comments received in 

response to this rule by the date 

specified will be considered prior to 

finalizing this action. 

List of Subjects in 7 CFR Part 1250 

Administrative practice and 

procedure, Advertising, Agricultural 

research, Eggs and egg products, 

Reporting and recordkeeping 

requirements. 

For the reasons set forth in the 

preamble, 7 CFR Part 1250 is proposed 

to be amended as follows: 

PART 1250—EGG RESEARCH AND 

PROMOTION 

1. The authority citation of Part 1250 

continues to read as follows: 

Authority: 7 U.S.C. 2701–2718 and 7 

U.S.C. 2401. 

2. Part 1250 is proposed to be 

amended by adding a new subpart 

consisting of §§ 1250.200 through 

1250.207 and titled ‘‘referendum 

Procedures’’ to read as follows: 

Subpart—Referendum Procedures 

Sec. 

1250.200 Referenda. 

1250.201 Definitions. 

1250.202 Voting. 

1250.203 Instructions. 

1250.204 Subagents. 

1250.205 Ballots. 

1250.206 Referendum report. 

1250.207 Confidential information. 

Subpart—Referendum Procedures 

§ 1250.200 Referenda. 

Referenda for the purpose of 

ascertaining whether the issuance by the 

Secretary of Agriculture of an Egg 

Research and Promotion Order, or the 

continuance, termination, or suspension 

of such an order, is approved or favored 

by producers shall, unless 

supplemented or modified by the 

Secretary, be conducted in accordance 

with this subpart. 

§ 1250.201 Definitions. 

(a) Act means the Egg Research and 

Consumer Information Act and as it may 

be amended (Pub. L. 93–428, 7 U.S.C. 

2701 et seq.). 

(b) Administrator means the 

administrator of the Agricultural 

Marketing Service, with power to 

redelegate, or any other officer or 

employee of the Department to whom 

authority has been delegated or may 

hereafter be delegated to act in the 

Administrator’s stead. 

(c) Egg producer or producer means 

any person who either: 

(1) Is an egg farmer who acquires and 

owns laying hens, chicks, and/or started 

pullets for the purpose of and is engaged 

in the production of commercial eggs; or 

(2) Is a person who supplied or 

supplies laying hens, chicks, and/or 

started pullets to an egg farmer for the 

purpose of producing commercial eggs 

pursuant to an oral or written 

contractual agreement for the 

production of commercial eggs. Such 

person is deemed to be the owner of 

such laying hens unless it is established 

in writing, to the satisfaction of the 

Secretary or the Egg Board, that actual 

ownership of the laying hens is in some 

other party to the contract. In the event 

the party to an oral contract who 

supplied or supplies the laying hens 

cannot be readily identified by the 

Secretary or the Egg Board, the person 

who has immediate possession and 

control over the laying hens at the egg 

production facility shall be deemed to 

be the owner of such hens unless 

written notice is provided to the 

Secretary or the Egg Board, signed by 

the parties to said oral contract, clearly 

stating that the eggs are being produced 

under a contractual agreement and 

identifying the party (or parties) under 

said contract who is the owner of the 

hens. 

(d) Order means the order or any 

amendment thereto promulgated 

pursuant to the act with respect to 

which the Secretary has directed that a 

referendum be conducted. 

(e) Person means any individual, 

group of individuals, partnership, 

corporation, association, cooperative, or 

any other entity. 

(f) Referendum agent means the 

individual or individuals designated by 

the Secretary to conduct the 

referendum. 


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49344 Federal Register / Vol. 74, No. 186 / Monday, September 28, 2009 / Proposed Rules 

(g) Representative period means the 

period designated by the Secretary 

pursuant to section 9 of the act (7 U.S.C. 

2708). 

(h) Secretary means the Secretary of 

Agriculture or any other officer or 

employee of the Department of 

Agriculture to whom there has 

heretofore been delegated, or to whom 

there may be hereafter delegated, the 

authority to act in the Secretary’s stead. 

§ 1250.202 Voting. 

(a) Each person who is a producer, as 

defined in this subpart, at the time of 

the referendum, who was engaged in the 

production of commercial eggs during 

the representative period, and who is 

not exempt from the provisions of the 

order as provided for in § 1250.348 

thereof, shall be entitled to only one 

vote in the referendum. 

(b) Proxy voting is not authorized, but 

an officer or employee of a corporate 

producer, or an administrator, executor, 

or trustee of a producing estate, or an 

authorized representative of any other 

entity may cast a ballot on behalf of 

such producer or estate. Any individual 

so voting in a referendum shall certify 

that such individual is an officer or 

employee of the corporate producer, or 

an administrator, executor, or trustee of 

the producing estate, or an authorized 

representative of such other entity, and 

that such individual has the authority to 

take such action. Upon request of the 

referendum agent, the individual shall 

submit adequate evidence of his 

authority. 

(c) Each producer shall be entitled to 

cast only one ballot in the referendum. 

§ 1250.203 Instructions. 

The referendum agent shall conduct 

the referendum, in the manner herein 

provided, under supervision of the 

Administrator. The Administrator may 

prescribe additional instructions, not 

inconsistent with the provisions hereof, 

to govern the procedure to be followed 

by the referendum agent. Such agent 

shall: 

(a) Determine the time of 

commencement and termination of the 

period of the referendum, and the time 

when all ballots must be received by the 

referendum agent. 

(b) Determine whether ballots may be 

cast by mail, at polling places, at 

meetings of producers, or by any 

combination of the foregoing. 

(c) Provide ballots and related 

material to be used in the referendum. 

Ballot material shall provide for 

recording essential information for 

ascertaining: 

(1) Whether the person voting or on 

whose behalf the vote is cast, is an 

eligible voter, and 

(2) The total volume of commercial 

eggs produced during a representative 

period. 

(d) Give reasonable advance notice of 

the referendum: 

(1) By utilizing available media or 

public information sources, without 

incurring advertising expense, to 

publicize the dates, places, method of 

voting, eligibility requirements, and 

other pertinent information. Such 

sources of publicity may include, but 

are not limited to, print and radio; and 

(2) By such other means as the agent 

may deem advisable. 

(e) Make available to producers 

instructions on voting, appropriate 

registration, ballot, and certification 

forms, and, except in the case of a 

referendum on the termination or 

continuance of an order, a summary of 

the terms and conditions of the order: 

Provided, That no person who claims to 

be qualified to vote shall be refused a 

ballot. 

(f) If the ballots are to be cast by mail, 

cause all the material specified in 

paragraph (e) of this section to be 

mailed to each eligible producer whose 

name and address are known to the 

Secretary or the referendum agent. 

(g) If the ballots are to be cast at 

polling places or meetings, determine 

the necessary number of polling or 

meeting places, designate them, 

announce the time of each meeting or 

the hours during which each polling 

place will be open, provide the material 

specified in paragraph (e) of this 

section, and provide for appropriate 

custody of ballot forms and delivery to 

the referendum agent of ballots cast. 

(h) At the conclusion of the 

referendum, canvass the ballots, 

tabulate the results, and except as 

otherwise directed report the outcome 

to the Administrator and promptly 

thereafter submit the following: 

(1) All ballots received by the agent 

and appointees, together with a 

certificate to the effect that the ballots 

listed are all of the ballots cast and 

received by the agent and appointees 

during the referendum period; 

(2) A tabulation of all challenged 

ballots deemed to be invalid; and 

(3) A report of the referendum 

including a detailed statement 

explaining the method used in giving 

publicity to the referendum and 

showing other information pertinent to 

the manner in which the referendum 

was conducted. 

§ 1250.204 Subagents. 

The referendum agent may appoint 

any person or persons deemed 

necessary or desirable to assist the agent 

in performing such agent’s functions of 

this subpart. Each individual so 

appointed may be authorized by the 

agent to perform, in accordance with the 

requirements herein set forth, any or all 

of the following functions (which, in the 

absence of such appointment, shall be 

performed by said agent): 

(a) Give public notice of the 

referendum in the manner specified 

herein; 

(b) Preside at a meeting where ballots 

are to be cast or as poll officer at a 

polling place; 

(c) See the ballots and the aforesaid 

texts are distributed to producers and 

receive any ballots which are cast; and 

(d) Record the name and address of 

each person casting a ballot with said 

subagent and inquire, as deemed 

appropriate, into the eligibility of such 

persons to vote in the referendum. 

§ 1250.205 Ballots. 

The referendum agent and subagents 

shall accept all ballots cast; but should 

they, or any of them, deem that a ballot 

should be challenged for any reason, the 

agent or subagent shall endorse above 

their signature, on the ballot, a 

statement to the effect that such ballot 

was challenged, by whom challenged, 

the reasons therefor, and the results of 

any investigations made with respect 

thereto, and the disposition thereof. 

Invalid ballots shall not be counted. 

§ 1250.206 Referendum report. 

Except as otherwise directed, the 

Administrator shall prepare and submit 

to the Secretary a report on the results 

of the referendum, the manner in which 

it was conducted, the extent and kind of 

public notice given, and other 

information pertinent to analysis of the 

referendum and its results. 

§ 1250.207 Confidential information. 

The ballots cast or the manner in 

which any person voted and all 

information furnished to, compiled by, 

or in the possession of the referendum 

agent shall be regarded as confidential. 

The ballots and other information or 

reports that reveal, or tend to reveal, the 

vote of any person covered under the 

Order and the voter list shall be strictly 

confidential and shall not be disclosed. 

Dated: September 21, 2009. 

Rayne Pegg, 

Administrator, Agricultural Marketing 

Service. 

[FR Doc. E9–23151 Filed 9–25–09; 8:45 am] 

BILLING CODE 3410–02–P 


CPrice-Sewell on DSKGBLS3C1PROD with PROPOSALS