This section of the FEDERAL REGISTER

contains regulatory documents having general

applicability and legal effect, most of which

are keyed to and codified in the Code of

Federal Regulations, which is published under

50 titles pursuant to 44 U.S.C. 1510.

The Code of Federal Regulations is sold by

the Superintendent of Documents. Prices of

new books are listed in the first FEDERAL

REGISTER issue of each week.

Rules and Regulations Federal Register

51069 

Vol. 74, No. 191 

Monday, October 5, 2009 

DEPARTMENT OF AGRICULTURE 

Agricultural Marketing Service 

7 CFR Part 1205 

[Doc. AMS–CN–09–0027; CN–08–003] 

Cotton Research and Promotion 

Program: Referendum Procedures 

AGENCY: Agricultural Marketing Service. 

ACTION: Final rule. 

SUMMARY: This final rule establishes 

procedures which the Department of 

Agriculture (USDA) will use in 

conducting a referendum considering 

amendments to the Cotton Research and 

Promotion Order (7 CFR part 1205) 

(Order) implementing section 14202 of 

the Food, Conservation, and Energy Act 

of 2008, hereinafter the ‘‘2008 Farm 

Bill.’’ USDA is considering amendments 

to the Order in a separate action. 

Referenda among cotton producers and 

cotton importers are required by the 

Cotton Research and Promotion Act 

(Act) to implement, amend, continue, or 

when appropriate to suspend or 

terminate the Order or any of its 

provisions. The provisions of this rule 

would be used for all such referenda. 

DATES: Effective Date: October 6, 2009. 

FOR FURTHER INFORMATION CONTACT: 

Shethir M. Riva, Chief, Research and 

Promotion Staff, Cotton and Tobacco 

Programs, AMS, USDA, Stop 0224, 1400 

Independence Ave., SW., Room 2637–S, 

Washington, DC 20250–0224, telephone 

(202) 720–6603, facsimile (202) 690– 

1718, or e-mail at 

shethir.riva@ams.usda.gov. A copy of 

this final rule may also be found at: 

http://www.regulations.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 final rule has been reviewed 

under Executive Order 12988, Civil 

Justice Reform. It is not intended to 

have retroactive effect. This final rule 

would not preempt any state or local 

laws, regulations, or policies, unless 

they present an irreconcilable conflict 

with this rule. The Act provides that 

administrative proceedings must be 

exhausted before parties may file suit in 

court. Under section 12 of the Act, any 

person subject to an order may file with 

the Secretary of Agriculture (Secretary) 

a petition stating that the order, any 

provision of the plan, or any obligation 

imposed in connection with the order is 

not in accordance with law and 

requesting a modification of the order or 

to be exempted therefrom. Such person 

is afforded the opportunity for a hearing 

on the petition. After the hearing, the 

Secretary would rule on the petition. 

The Act provides that the District Court 

of the United States in any district in 

which the person is an inhabitant, or 

has his principal place of business, has 

jurisdiction to review the Secretary’s 

ruling, provided a complaint is filed 

within 20 days from the date of the 

entry of ruling. 

Regulatory Flexibility Act and 

Paperwork Reduction Act 

Pursuant to requirements set forth in 

the Regulatory Flexibility Act (RFA) [5 

U.S.C. 601–612], the Agricultural 

Marketing Service has considered the 

economic effect of this action on small 

entities and has determined that its 

implementation will not have a 

significant economic impact on a 

substantial number of small entities. 

There are currently approximately 

18,000 producers, and approximately 

16,000 importers that are subject to the 

order. In 13 CFR part 121, the Small 

Business Administration (SBA) defines 

small agricultural producers as those 

having annual receipts of no more than 

$750,000 and small agricultural service 

firms (handlers) as those having annual 

receipts of no more than $7.0 million. 

The majority of these producers and 

importers are small businesses under 

the criteria established by the SBA. 

This final rule establishes the 

procedures under which cotton 

producers and importers vote on 

whether to implement, amend, 

continue, or when appropriate to 

suspend or terminate the Order or any 

of its provisions. This rule would add a 

new subpart and establish procedures 

for all such referenda. The subpart 

covers definitions, voting, instructions, 

ballots, the referendum report, and 

confidentiality of information. 

USDA will keep cotton producers and 

importers 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 a referendum is optional; 

however, if cotton producers and 

importers choose to vote, the burden of 

voting is minimal and necessary to 

determine whether or not they favor the 

action to be taken with regards to the 

Order or any of its provisions. 

In accordance with the Office of 

Management and Budget (OMB) 

regulation 5 CFR part 1320 that 

implements the provisions of the 

Paperwork Reduction Act of 1995 (44 

U.S.C. Chapter 35) the information 

collection requirements concerning 

procedures to conduct referenda in 

connection with the Cotton Research 

and Promotion Order has been 

previously approved by OMB and 

assigned OMB Control Number 0581– 

0093. 

USDA considered electronic voting, 

but the use of computers is not 

universal. Conducting the referendum 

from Farm Service Agency county 

offices and the USDA, Washington, DC 

office would be more cost-effective and 

reliable. 

Background 

The Act established a national cotton 

research and promotion program— 

administered by the Board—that is 

financed through cotton producer and 

cotton importer industry assessments 

and subject to oversight by AMS. This 

program of promotion, research, and 

consumer information is designed to 

strengthen the position of cotton in the 

marketplace and to establish, maintain, 

and expand markets for Upland cotton. 

The program is funded by assessments 

levied on each bale or bale equivalent of 

cotton at a rate of $1 per bale with a 

supplemental assessment not to exceed 

one percent of the value of lint of each 

bale. 

The 2009 Board is composed of 38 

members and 38 alternate members (23 


cprice-sewell on DSK2BSOYB1PROD with RULES
51070 Federal Register / Vol. 74, No. 191 / Monday, October 5, 2009 / Rules and Regulations 

producer and 15 importer members and 

alternate members) and one consumer 

advisor. The Act directed the Board to 

contract with a separate organization to 

conduct the research and promotion 

projects. The Board contracts with 

Cotton Incorporated (CI) to conduct the 

Program. CI uses assessment dollars to 

advance the quality of and demand for 

cotton fiber through its operating 

divisions: (1) Global Product Marketing, 

(2) Consumer Marketing, (3) 

Agricultural Research and (4) Textile 

Research, and (5) Strategic Planning. 

This final rule would establish 

procedures which the USDA will use in 

conducting referenda under the Act. 

USDA is proposing amendments to the 

Order to implement section 14202 of the 

2008 Farm Bill (see Secretary’s Decision 

published in the same issue of the 

Federal Register). Referendum 

procedures would need to be in place 

prior for the industry to vote and 

consider these amendments. Referenda 

among cotton producers and cotton 

importers are required by the Act to 

implement, amend, continue, or when 

appropriate, to suspend, or to terminate 

the Order or any of its provisions. 

A proposed rule with a request for 

comments was published in the Federal 

Register on June 4, 2009 (74 FR 26810), 

with a 10-day comment period. AMS 

received two comments, one from a 

cotton growers association and one from 

a national cotton industry organization. 

Both comments were in general 

agreement of the proposed referendum 

procedures and offered the same 

suggested changes to the sections 

1205.202 and 1205.203. 

The commenters recommended 

correction of duplicative language in 

section 1205.202 and a reversal of 

paragraph titles in section 1205.203(a) 

and (b). Both of these changes have 

merit and the appropriate changes are 

made in this action. 

The commenters also offered changes 

for section 1205.203(a) to clarify 

language concerning eligibility 

requirements, especially those 

concerning the specified timeframe 

needed to import Upland cotton in 

order for an importer to be eligible to 

vote in a referendum. The commenters 

believed that the proposed language was 

not complete and offered two 

alternatives to revise the provision. 

Proposed section 1205.203(a) provided 

general eligibility requirements that (1) 

each person who was engaged in the 

production of Upland cotton during the 

representative period; and (2) each 

person who is an importer of Upland 

cotton and imported Upland cotton 

during the representative period were 

eligible to vote. Upon review of this 

language, these comments have merit. 

We have revised the provision to 

include the more appropriate language 

presented in order to make clear the 

applicable general eligibility 

requirements. Finally, the commenters 

noted that the definition of importer 

was not limited by a designated period. 

We are amending for clarity the 

definition of importer to include the 

appropriate timeframe. 

In addition, USDA has included a 

clarifying change to the language of 

section 1205.204 concerning producers 

who grow Upland cotton in more than 

one county and identification of their 

voting office. 

Pursuant to 5 U.S.C. 553, it is found 

and determined good cause that good 

cause exists for not postponing the 

effective date of the rule until 30 days 

after publication in the Federal Register 

in order to conduct a referendum 

considering amendments implementing 

section 14202 of the 2008 Farm Bill 

(Pub. L. 110–246) and to conform to the 

timeline contained in that section as 

closely as possible. 

List of Subjects in 7 CFR Part 1205 

Advertising, Agricultural research, 

Cotton, Marketing agreements, 

Reporting and recordkeeping 

requirements. 

■ For the reasons set forth in the 

preamble 7 CFR part 1205 is amended 

as follows: 

PART 1205—COTTON RESEARCH 

AND PROMOTION 

■ 1. The authority citation for part 1205 

continues to read as follows: 

Authority: 7 U.S.C. 2101–2118 and 7 

U.S.C. 7401. 

■ 2. Part 1205 is amended by adding a 

new Subpart, consisting of §§ 1205.200 

through 1205.210, to read as follows: 

Subpart—Procedures for the Conduct of 

Referenda in Connection With Cotton 

Research and Promotion Order 

Sec. 

1205.200 General. 

1205.201 Definitions. 

1205.202 Agencies through which a 

referendum shall be conducted. 

1205.203 Voting eligibility. 

1205.204 Voting. 

1205.205 Canvass of ballots. 

1205.206 Reporting results of referendum. 

1205.207 Challenge of correctness of county 

summary of ballots. 

1205.208 Disposition of ballots and records. 

1205.209 Confidential Information. 

1205.210 Additional instructions and 

forms. 

Subpart—Referendum Procedures 

§ 1205.200 General. 

Referenda for the purpose of 

ascertaining whether producers and 

importers favor the issuance, 

continuance, amendment, suspension, 

or termination of the Cotton Research 

and Promotion Order shall be 

conducted in accordance with this 

subpart. 

§ 1205.201 Definitions. 

(a) Act means the Cotton Research and 

Promotion Act, as amended (7 U.S.C. 

2101–2118; Pub. L. 89–502, as 

amended). 

(b) Administrator means the 

Administrator of the Agricultural 

Marketing Service, or any officer or 

employee of USDA to whom authority 

has been delegated to act in the 

Administrator’s stead. 

(c) Agricultural Marketing Service also 

referred to as ‘‘AMS’’ means the 

Agricultural Marketing Service of the 

Department. 

(d) Cotton means all Upland cotton 

harvested in the United States or 

imports of Upland cotton, including the 

Upland cotton content of the products 

derived thereof. The term cotton shall 

not, however, include any entry of 

imported cotton by an importer which 

has a value or weight less than the de 

minimis value established by the 

Secretary or industrial products as that 

term is defined by regulation. 

(e) Upland Cotton means all 

cultivated varieties of the species 

Gossypium hirsutum L. 

(f) Department means the U.S. 

Department of Agriculture. 

(g) Deputy Administrator means the 

Deputy Administrator for Field 

Operations and also referred to as 

‘‘DAFO.’’ 

(h) Farm Service Agency also referred 

to as ‘‘FSA’’ means the Farm Service 

Agency of the Department. 

(i)(1) Importer means any person who 

enters, or withdraws from warehouse, 

cotton for consumption in the customs 

territory of the United States and who, 

during a 12-month period ending no 

later than 90 days prior to the conduct 

of the referendum, imported Upland 

cotton, and 

(2) the term import means any such 

entry. 

(j) Order means the Cotton Research 

and Promotion Order. 

(k) Person means any individual 18 

years of age or older, or any partnership, 

corporation, association, or any other 

entity. 

(l) Producer means any person who 

shares in a cotton crop, or in the 

proceeds thereof, as an owner of the 


cprice-sewell on DSK2BSOYB1PROD with RULES
Federal Register / Vol. 74, No. 191 / Monday, October 5, 2009 / Rules and Regulations 51071 

farm, cash tenant, landlord of a share 

tenant, share tenant, or sharecropper, 

that planted the cotton during the 

representative period. 

(m) Representative Period means the 

period designated by the Secretary 

pursuant to section 8 of the Act (7 

U.S.C. 2107). 

(n) 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 be delegated, the 

authority to act in the Secretary’s stead. 

(o) State means each of the 50 states. 

(p) United States means 50 states of 

the United States of America. 

(q) Customs and Border Protection 

means the U.S. Customs and Border 

Protection of the Department of 

Homeland Security. Customs and 

Border Protection is also referred to as 

‘‘CBP.’’ 

§ 1205.202 Agencies through which a 

referendum shall be conducted. 

(a) Agricultural Marketing Service. 

The Administrator shall: 

(1) Determine the referendum period. 

(2) Give producers and importers 

reasonable advance notice of the 

referendum 

(i) by utilizing without advertising 

expense, available media of public 

information (including, but not being 

limited to, press and radio facilities) to 

announce the dates, places, or methods 

of voting, and other pertinent 

information, and 

(ii) by such other means as the 

Administrator may deem advisable. 

(3) Provide ballots and related 

material to be used in the referendum to 

FSA. The ballots: 

(i) shall provide for recording 

essential information for ascertaining 

whether the person voting is an eligible 

voter, and 

(ii) may provide for recording the total 

amount of Upland cotton produced by 

the producer or the total amount of 

cotton imported by the importer during 

the appropriate representative period. 

(4) Make available to producers 

through FSA county offices instructions 

on voting, an appropriate ballot and, 

except in the case of a referendum on 

the termination or suspension of an 

order, a summary of the terms and 

conditions of the order. The instructions 

on voting shall explain the method to be 

used in determining the amount of 

Upland cotton produced during the 

representative period and shall specify 

whether such amount is to be entered 

on the ballot by the voter, subject to the 

following terms and conditions: 

(i) If a current production year for 

which harvesting has not been 

completed is designated as the 

representative period, the amount of 

Upland cotton produced shall be 

determined by the FSA county office on 

the basis of the acreage planted or in the 

case of approved prevented plantings 

under the disaster payment program, the 

acreage the person intended to plant up 

to the allotted acreage as determined by 

the FSA county office, and the 

established yield for FSA program 

payment purposes: Provided, That on 

farms for which an established yield has 

not been established, the county 

committee shall determine an 

established yield based on actual 

production records on the farm for the 

preceding three years, as adjusted for 

any abnormal conditions, if available; if 

not available, on the basis of yield on 

similar farms in the area. 

(ii) On farms in which more than one 

eligible voter is engaged in production, 

the vote cast by each voter shall 

represent only the amount of Upland 

cotton that is the voter’s share of the 

crop, or proceeds thereof. 

(iii) If an eligible voter is engaged in 

production of Upland cotton on more 

than one farm, such voter is entitled to 

only one vote but any vote cast by such 

voter shall represent the total amount of 

Upland cotton that is that voter’s share 

of the crop, or proceeds thereof, on all 

such farms: Provided, That only farms 

for which records are maintained by the 

FSA county office designated as the 

voter’s polling place shall be considered 

unless the voter, prior to the expiration 

of the referendum period, establishes to 

the satisfaction of such county office the 

voter’s share of the crop, or proceeds 

thereof, on an additional farm or farms. 

(5) Make available to importers 

through FSA instructions on voting, an 

appropriate ballot and, except in the 

case of a referendum on the termination 

or suspension of an order, a summary of 

the terms and conditions of the order. 

The instructions on voting shall explain 

the appropriate method to be used in 

determining the amount of cotton 

imported during the representative 

period and specify whether such 

amount is to be entered on the ballot. If 

applicable, the following terms and 

conditions apply: 

(i) For importer entities in which 

more than one importer is eligible to 

vote, the vote cast by each importer 

shall represent only the amount in 

weight or value of cotton imported by 

each eligible voter. 

(ii) If an eligible importer is engaged 

in importation of cotton as more than 

one importer entity, such voter is 

entitled to only one vote but any vote 

cast by such voter shall represent the 

total amount in weight or value, of 

cotton in the voters share of cotton 

imported from each such importer 

entity: Provided, that only the importer 

entities for which records are 

maintained by CBP or other source 

determined by the Administrator shall 

be considered unless the voter, prior to 

the expiration of the referendum period, 

establishes to the satisfaction of the 

Administrator the voters share, in 

weight or value, of the imported cotton. 

(b) Farm Service Agency. Except for 

the functions specified in paragraph (a) 

of this section the Deputy Administrator 

shall be in charge of and responsible for 

conducting the referendum. Each FSA 

county office shall be in charge and 

responsible for conducting such 

referendum in its State. Each county 

office shall be responsible for the proper 

holding of such referendum in its 

county. It shall be the duty of each FSA 

county office to conduct each 

referendum in a fair, unbiased, and 

impartial manner in accordance with 

the regulations in this subpart. 

§ 1205.203 Voting eligibility. 

(a) General eligibility requirements. 

The following persons shall be eligible 

to vote in an announced referendum— 

(1) each person who was engaged in 

the production of Upland cotton during 

the representative period; and 

(2) each person who is an importer of 

Upland cotton and who, during a 12- 

month period ending no later than 90 

days prior to the conduct of the 

referendum, imported Upland cotton. 

(b) Special eligibility requirements. 

(1)(i) A person may qualify as an eligible 

voter by meeting the eligibility 

requirements, but no such person shall 

be entitled to more than one vote 

regardless of the number of importing 

entities or Upland cotton farms in 

which the person is interested or the 

number of communities, counties, or 

States in which are located farms in 

which such person is interested: 

Provided, however, That the individual 

members of a qualified partnership shall 

each have one vote, but the partnership 

as such shall not have a vote and an 

individual who qualifies as an eligible 

voter by reason of that individual’s 

separate farming or importing 

operations will be entitled to one vote 

even though that person is interested in 

an entity such as (but not limited to) a 

corporation which is also eligible as a 

voter and entitled to one vote. A person 

who, as a guardian, administrator, 

executor, or trustee engages in the 

production of Upland cotton or 

importation of cotton will be eligible to 

vote in such a fiduciary capacity if, in 

such a capacity, that person qualifies as 

an eligible voter. 


cprice-sewell on DSK2BSOYB1PROD with RULES
51072 Federal Register / Vol. 74, No. 191 / Monday, October 5, 2009 / Rules and Regulations 

(ii) In such cases the person for whom 

he or she is acting in a fiduciary 

capacity will not be eligible to vote. An 

individual may, if otherwise eligible, 

cast a ballot in his or her individual 

capacity although that person may also 

cast a ballot as a guardian, 

administrator, executor, or trustee. An 

individual who holds more than one 

fiduciary position may vote as a 

fiduciary in each case in which that 

person is otherwise eligible, as for 

example, if an individual is 

administrator of estate X, he or she may 

cast a ballot as administrator of estate X, 

and if the same individual is 

administrator of estate Y, he or she may 

cast another ballot as administrator or 

estate Y. 

(2) Where a group of several persons, 

such as a spouse or marital partner, and 

children, or unrelated individuals, are 

engaged in the production of Upland 

cotton under the same lease or cropping 

agreement, only the person or persons 

who signed or entered into the lease or 

cropping agreement shall be eligible to 

vote. In the event two or more persons 

are engaged in the production of Upland 

cotton as joint tenants, tenants in 

common, or owners of community 

property, each such person shall be 

entitled to one vote if otherwise 

qualified. For example, a husband or a 

wife is eligible to vote if he or she shares 

with his or her spouse in the proceeds 

of the required crop as an owner, cash 

tenant, share tenant, sharecropper or 

landlord of a fixed rent, standing rent or 

share tenant. Thus, if a husband and 

wife are tenants or sharecropper on a 

farm, jointly responsible under the 

rental or sharecropping agreement, both 

are eligible to vote. This is true whether 

the rental or sharecropping agreement is 

written, signed by both parties, or oral, 

provided both husband and wife made 

the oral agreement. A minor is not 

disqualified from voting solely because 

of minority if otherwise eligible and the 

minor is not less than 18 years of age. 

(c) Voting by proxy prohibited. There 

shall be no voting by proxy or agent but 

a duly authorized officer of a 

corporation, association or their legal 

entity may cast its vote. 

§ 1205.204 Voting. 

(a) Place of voting. The FSA county 

office serving the county in which the 

producer’s farm is located shall be the 

producer’s polling place. For a person 

not participating in an FSA program, the 

opportunity to vote in a referendum will 

be provided at the FSA county office 

serving the county where the person 

owns or rents land. If a person’s 

operation is located in several counties, 

the voting office shall be determined 

based on the major portion of the 

operation’s location. The U.S. 

Department of Agriculture, FSA, DAFO, 

P.O. Box 23704, Washington, DC 20026– 

3704 shall be the polling place for all 

cotton importers. 

(b) Register of eligible voters. The FSA 

county office shall establish a register of 

known eligible producer voters prior to 

the referendum. AMS shall establish a 

register of known eligible importer 

voters prior to the referendum and 

provide the list to FAS. 

(c) Voting. (1) For Upland producers 

to vote, eligible persons may obtain 

form CN–100 in-person, by mail or by 

facsimile from FSA county offices or 

through the Internet during the voting 

period. A completed and signed CN–100 

and supporting documentation, such as 

a sales receipt or remittance form, must 

be returned to the appropriate FSA 

county office. Forms obtained via the 

Internet will be located at http:// 

www.ams.usda.gov/Cotton. Upon 

request by Upland producers, ballots 

shall be mailed by FSA county offices. 

(2) For cotton importers to vote, 

eligible persons may obtain form CN– 

100 in-person, by mail or by facsimile 

from USDA, FSA in Washington, D.C. or 

through the Internet during the voting 

period. In addition, before the 

referendum, USDA shall mail a request 

form to each known, eligible, cotton 

importer. A completed and signed CN– 

100 and supporting documentation of 

CBP Form 7501, must be returned 

USDA, FSA, DAFO, P.O. Box 23704, 

Washington, DC 20026–3704. Forms 

obtained via the Internet will be located 

at http://www.ams.usda.gov/Cotton. 

(d) Returning ballot to polling place. 

Each person to whom a ballot is issued 

by Internet, mail, facsimile, or in-person 

shall only be allowed to vote in the 

referendum by completing and signing 

the ballot, placing it in an envelope, and 

delivering or mailing it to the 

appropriate polling place. In order to be 

eligible for tabulation, voted ballots 

must be received at the polling place 

during the period established for 

holding the referendum. A ballot shall 

be considered to have been received 

during the referendum period if: 

(1) In the case of the ballot delivered 

to the polling place, it was received in 

the office prior to the close of the work 

day on the final day of the referendum 

period, or 

(2) In the case of the mailed ballot, it 

was postmarked not later than midnight 

of the final day of the referendum 

period and was received in the polling 

place prior to the start of canvassing the 

ballots. 

(e) Placing ballots in ballot box. 

Notwithstanding the fact that a ballot(s) 

may be later challenged by FSA county 

office or a representative of FSA, 

envelopes containing ballots received at 

the polling place during the referendum 

period shall remain unopened and shall 

be placed immediately in a ballot box 

provided by FSA for producers and 

importers. Such ballot box shall be 

arranged so that ballots cannot be read 

or moved without breaking the seal on 

the container. 

§ 1205.205 Canvass of ballots. 

(a) Canvassing procedure. Canvassing 

of returned ballots shall take place as 

soon as possible after the opening of the 

FSA offices on the fifth day following 

the close of the referendum period. 

Such canvassing shall be in the 

presence of at least one member of the 

FSA county office for producer ballots 

or an FSA representative for importer 

ballots and shall be open to the public. 

The canvassing and ballots shall be 

handled in such a manner so that no 

member of the public may see how any 

person voted in the referendum. The 

county office or FSA representative 

shall supervise the opening of the sealed 

ballot box, the opening of the envelopes 

containing the ballots and a 

determination as to: 

(1) The number of eligible voters 

favoring the Order and where necessary, 

the amount of cotton represented by 

them, 

(2) The number of eligible voters 

disapproving the Order and, where 

necessary, the amount of cotton 

represented by them. 

(3) The number of ballots cast by 

voters found to be ineligible to vote in 

the referendum, and 

(4) The number of spoiled ballots. The 

ballots determined to be spoiled or cast 

by ineligible voters shall not be 

considered as approving or 

disapproving the Order, and the persons 

who cast such ballots shall not be 

regarded as participating in the 

referendum. 

(b) Spoiled ballots. A ballot shall be 

considered as a spoiled ballot if: 

(1) It is mutilated or marked in such 

a way that it is not possible to determine 

with certainty how the ballot was 

intended to be counted, or 

(2) It does not contain the signature of 

the voter, or the voter’s properly 

witnessed mark. 

(c) Challenge of ballots. A producer 

ballot may be challenged by the member 

of the FSA county office and the 

importer ballot may be challenged by 

the representative of FSA. Before a 

challenged ballot is either counted or 

declared invalid, a determination shall 

be made by the FSA county office or 

representative of FSA as to the 


cprice-sewell on DSK2BSOYB1PROD with RULES
Federal Register / Vol. 74, No. 191 / Monday, October 5, 2009 / Rules and Regulations 51073 

1See Division A, titled the ‘‘Federal Housing 

Finance Regulatory Reform Act of 2008,’’ Title I, 

Section 1101 of HERA. 

2 12 U.S.C. 1820(k). 

eligibility of the voter to vote in the 

referendum. 

§ 1205.206 Reporting results of 

referendum. 

(a) Each FSA county office shall 

transmit a written county summary of 

ballots showing the results of the 

referendum in its county to its State 

office. 

(b) Each State office shall transmit a 

written summary of the referendum 

results from the county offices within its 

State to DAFO, and DAFO will provide 

a copy to the AMS. AMS will make the 

results available for public inspection 

for a period of 5 years following the end 

of the referendum period. 

(c) AMS shall prepare and submit to 

the Secretary a report as to the results 

of the referendum. The Secretary shall 

then publically proclaim the results of 

the referendum. 

§ 1205.207 Challenge of correctness of 

county summary of ballots. 

The FSA state offices shall make a 

prompt investigation and decision in 

case of any dispute or challenge 

regarding the correctness of the county 

summary of ballots in any county: 

Provided, That no dispute of challenge 

shall be investigated unless it is brought 

to the attention of the State FSA office 

within 3 days after receipt by the FSA 

State office of the county summary of 

ballots from such county. 

§ 1205.208 Disposition of ballots and 

records. 

The FSA county office shall seal the 

voted ballots, challenged ballots found 

to be ineligible, spoiled ballots, register 

sheets, and summary sheets for the 

county in one or more envelopes or 

packages, plainly marked with the 

identification of the referendum, the 

date and the names of the county and 

State, and place them under lock and 

key in a safe place under the custody of 

the FSA county office for a period of 45 

days after the referendum period. If no 

notice to the contrary is received by the 

end of such time, and after the ballots 

and other records have been examined 

by a representative of the State FSA 

office, the voted ballots and challenged 

ballots shall be destroyed, but the 

registers and county summary sheets 

shall be filed for a period of 5 years in 

the office of the FSA county office. 

§ 1205.209 Confidential information. 

(a) 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. 

(b) 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. 

§ 1205.210 Additional instructions and 

forms. 

AMS is hereby authorized to prescribe 

additional instructions and forms not 

inconsistent with the provisions of this 

subpart for the use of State and County 

FSA offices in conducting a referendum. 

Such additional instructions may 

include procedures for FSA county and 

State offices to report and announce the 

results of the preliminary count of the 

votes in the county and the State. 

Dated: September 28, 2009. 

Rayne Pegg, 

Administrator, Agricultural Marketing 

Service. 

[FR Doc. E9–23831 Filed 10–2–09; 8:45 am] 

BILLING CODE P 

FEDERAL HOUSING FINANCE 

AGENCY 

12 CFR Part 1212 

RIN 2590–AA19 

Post-Employment Restriction for 

Senior Examiners 

AGENCY: Federal Housing Finance 

Agency. 

ACTION: Final rule. 

SUMMARY: The Federal Housing Finance 

Agency (FHFA) is issuing a final 

regulation that sets forth a one-year 

post-employment restriction for senior 

examiners of FHFA pursuant to the 

Federal Housing Enterprises Financial 

Safety and Soundness Act of 1992, 

which provides that each examiner of 

FHFA shall be subject to the same 

disclosures, prohibitions, obligations, 

and penalties applicable to examiners 

employed by the Federal Reserve Banks. 

DATES: The final regulation is effective 

November 4, 2009. 

FOR FURTHER INFORMATION CONTACT: 

Janice A. Kullman, Assistant General 

Counsel, telephone (202) 414–8970 (not 

a toll-free number), Federal Housing 

Finance Agency, Fourth Floor, 1700 G 

Street, NW., Washington, DC 20552. The 

telephone number for the 

Telecommunications Device for the Deaf 

is (800) 877–8339. 

SUPPLEMENTARY INFORMATION: 

I. Background 

The Housing and Economic Recovery 

Act of 2008 (HERA), Public Law No. 

110–289, 122 Stat. 2654 (2008), 

amended the Federal Housing 

Enterprises Financial Safety and 

Soundness Act of 1992 (12 U.S.C. 4501 

et seq.) (Safety and Soundness Act) to 

establish FHFA as an independent 

agency of the Federal Government.1

FHFA was established to oversee the 

prudential operations of the Federal 

National Mortgage Association and the 

Federal Home Loan Mortgage 

Corporation (collectively, the 

Enterprises), and the Federal Home 

Loan Banks (Banks) (collectively, the 

regulated entities), and to ensure that 

they operate in a safe and sound manner 

including being capitalized adequately; 

foster liquid, efficient, competitive and 

resilient national housing finance 

markets; comply with the Safety and 

Soundness Act and rules, regulation, 

guidelines and orders issued under the 

Safety and Soundness Act, and the 

respective authorizing statutes of the 

regulated entities; and carry out their 

missions through activities authorized 

and consistent with the Safety and 

Soundness Act and their authorizing 

statutes; and, that the activities and 

operations of the regulated entities are 

consistent with the public interest. 

FHFA also has regulatory authority over 

the Office of Finance under 12 U.S.C 

4511. 

II. Proposed Rulemaking 

Section 6303(b) of the Intelligence 

Reform and Terrorism Prevention Act of 

2004, Public Law No. 108–458 (Dec. 17, 

2004), in amending section 10 of the 

Federal Deposit Insurance Act, 

established a post-employment 

restriction for senior examiners of the 

Office of the Comptroller of the 

Currency, Federal Reserve System, 

Federal Deposit Insurance Corporation, 

and Office of Thrift Supervision.2 In 

response, the Board of Governors of the 

Federal Reserve System (Federal 

Reserve) and the other financial 

regulators issued regulations on 

November 17, 2005, to reflect the new 

post-employment restriction. 

The Safety and Soundness Act 

provides that each examiner of FHFA 

‘‘shall be subject to the same 

disclosures, prohibitions, obligations 

and penalties as are applicable to 

examiners employed by the Federal 

Reserve Banks.’’ 12 U.S.C. 4517(e). In 

light of that provision, FHFA published 

a proposed Post-Employment 

Restriction for Senior Examiners 

regulation for public comment in the 

Federal Register, 74 FR 27470 (June 10, 

2009). The proposed regulation set forth 


cprice-sewell on DSK2BSOYB1PROD with RULES