[Federal Register Volume 65, Number 203 (Thursday, October 19, 2000)]
[Rules and Regulations]
[Pages 62577-62579]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-27024]



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Rules and Regulations
                                                Federal Register
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Federal Register / Vol. 65, No. 203 / Thursday, October 19, 2000 / 
Rules and Regulations

[[Page 62577]]



DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 1230

[No. LS-00-10]


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

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Interim rule.

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SUMMARY: This interim rule amends the Pork Promotion, Research, and 
Consumer Information Program: Procedures for the Conduct of Referendum, 
to provide an additional 5-day period to give interested persons an 
opportunity to challenge producers who requested absentee ballots and 
were not subject to challenge during the initial challenge period, 
September 19, 2000, through October 2, 2000. This interim rule also 
establishes new dates for notifying challenged producers, submitting 
proof of eligibility, and resolving challenges.

DATES: This interim final rule is effective October 20, 2000. Comments 
must be received by November 20, 2000.

ADDRESSES: Interested persons are invited to submit written comments 
concerning this interim rule. Comments must be sent to Ralph L. Tapp, 
Chief; Marketing Programs Branch, Room 2627-S; Livestock and Seed 
Program, Agricultural Marketing Service (AMS), USDA; STOP 0251; 1400 
Independence Avenue, SW.; Washington, D.C. 20250-0251; telephone number 
202/720-1115, fax 202/720-1125, or by e-mail <a href="/cdn-cgi/l/email-protection#c496a5a8b4acea90a5b4b484b1b7a0a5eaa3abb2"><span class="__cf_email__" data-cfemail="b8ead9d4c8d096ecd9c8c8f8cdcbdcd996dfd7ce">[email protected]</span></a>. 
Comments should make reference to the date and page number of this 
issue of the Federal Register and they will be made available for 
public inspection in the above office during regular business hours.

FOR FURTHER INFORMATION CONTACT: Ralph L. Tapp, Chief; Marketing 
Programs Branch, Room 2627-S; Livestock and Seed Program, AMS, USDA; 
Stop 0251; 1400 Independence Avenue, SW.; Washington, D.C. 20250-0251; 
telephone number 202/720-1115, fax 202/720-1125, or by e-mail 
<a href="/cdn-cgi/l/email-protection#74261518041c5a2015040434010710155a131b02"><span class="__cf_email__" data-cfemail="3c6e5d504c5412685d4c4c7c494f585d125b534a">[email protected]</span></a>.

SUPPLEMENTARY INFORMATION:
    Prior documents: Final rule--Pork Promotion, Research, and Consumer 
Information Program: Procedures for the Conduct of Referendum published 
July 13, 2000 [65 FR 43498] and Proposed rule--Pork Promotion, 
Research, and Consumer Information Program: Procedures for the Conduct 
of Referendum published April 18, 2000 [65 FR 20862].

Regulatory Impact Analysis

Executive Orders 12866 and 12998 and the Regulatory Flexibility Act

    This interim final rule has been determined to be not significant 
for purposes of Executive Order 12866 and therefore has not been 
reviewed by Office of Management and Budget (OMB).
    This interim rule has been reviewed under Executive Order 12998, 
Civil Justice Reform. It is not intended to have a retroactive effect. 
The Pork Promotion, Research, and Consumer Information Act of 1985 
(Act) states that the statute is intended to occupy the field of 
promotion and consumer education involving pork and pork products and 
of obtaining funds thereof from pork producers and that regulation of 
such activity (other than a regulation or requirement relating to a 
matter of public health or the provision of State or local funds for 
such activity) that is in addition to or different from the Act may not 
be imposed by a State.
    The Act provides that any person subject to the Pork Promotion, 
Research, and Consumer Information Order (Order) may file with the 
Secretary a petition stating that the Order, any provision of the 
Order, or any obligation imposed in connection with the Order is not in 
accordance with the law, and requesting a modification of the Order or 
an exemption from certain provisions or obligations of the Order. The 
petitioner will have the opportunity for a hearing on the petition. 
Thereafter the Secretary will issue a decision on the petition. The Act 
provides that the district court of the United States in any district 
in which the petitioner resides or carries on business has jurisdiction 
to review a ruling on the petition, if the petitioner files a complaint 
for that purpose not later than 20 days after the date of the entry of 
the Secretary's decision. The petitioner must exhaust his or her 
administrative remedies before he or she can initiate any such 
proceedings in the district court.
    Pursuant to requirements set forth in the Regulatory Flexibility 
Act (5 United States Code (U.S.C.) 601 et seq.), the Administrator of 
AMS has considered the economic impact of this interim rule on small 
entities.
    According to the December 29, 1999, issue of the ``Hogs and Pigs'' 
report published by the National Agricultural Statistics Service, the 
number of farms with hogs or pigs was 98,460. The majority of these hog 
producers subject to the Order should be classified as small entities 
under the criteria established by the Small Business Administration.
    This interim rule amends 7 CFR part 1230 Pork Promotion, Research, 
and Consumer Information Program: Procedures for the Conduct of 
Referendum; to establish an additional five business days for 
challenging absentee ballots to give interested persons an opportunity 
to challenge producers who requested absentee ballots and who were not 
subject to challenge during the September 19, 2000, through October 2, 
2000, challenge period. Those producers whose names were listed on the 
Absentee Voter Request List and who were subject to challenge because 
the Absentee Voter Request List indicated they had returned their 
ballot are not subject to challenge during this additional 5-day 
period. It also establishes new dates for notifying challenged 
producers, the dates by which challenged producers must submit proof of 
eligibility to the county Farm Service Agency (FSA) offices, and the 
dates by which FSA county offices must resolve challenges. This 
amendment imposes no new requirements upon those producers who cast 
their votes by absentee ballot or persons who wish to challenge 
absentee voters beyond those requirements provided by the pork 
referendum final rule (65 FR 43498). In the Paperwork Reduction Act 
section of the final rule

[[Page 62578]]

the Agency estimated that 25,000 pork producers would request absentee 
ballots. It was also estimated that the number of voters whose votes 
would be challenged would be 4,000. Pork producers who requested 
absentee ballots during the period provided for in the final rule and 
who have already been subject to challenge under the provisions of 
Sec. 1230.631 of the final rule will not be subject to further 
challenge during the additional 5-day challenge period.
    The information collection requirements, as discussed below, will 
be minimal. Therefore, this interim rule will not impose a significant 
economic burden on producers affected by these changes. Accordingly, 
the Administrator of AMS has determined that this rule will not have a 
significant impact on a substantial number of small entities.

Paperwork Reduction

    In accordance with the OMB regulation in 5 CFR part 1320 that 
implements the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), 
the reporting and recordkeeping included in 7 CFR part 1230 were 
previously approved by OMB and were assigned OMB Number 0581-0194.
    As discussed in the pork referendum rule, the relevant provisions 
concerning this action include:

1. Challenge of Voters

    Estimate of Burden: The public reporting burden for this collection 
of information is estimated to average .08 hours per response.
    Respondents: Only persons wishing to challenge a vote of another 
producer will be required to provide such challenge in writing to the 
county FSA office.
    Estimated Number of Respondents: 2,000.
    Estimated Number of Responses per Respondent: 2.
    Estimated Total Annual Burden on Respondents: 320 hours.
    Total Cost: $6,400.

2. Proof of Eligibility

    Estimate of Burden: The public reporting burden for this collection 
of information is estimated to average 1 hour per response.
    Respondents: Producers responding to a challenge of their 
eligibility to vote will be required to submit to the county FSA office 
records such as sales documents, tax records, or other similar 
documents to prove that the person owned and sold hogs or pigs during 
the representative period.
    Estimated Number of Respondents: 4,000.
    Estimated Number of Responses per Respondent: 1.
    Estimated Total Annual Burden on Respondents: 4,000 hours.
    Total Cost: $80,000.

3. Appealing a Challenge of Eligibility

    Estimate of Burden: The public reporting burden for this collection 
of information is estimated to average 1 hour per response.
    Respondents: Producers appealing a determination of their 
ineligibility to vote in the referendum will be required to submit to 
the county FSA office records such as sales documents, tax records, or 
other similar documents to prove that the person owned and sold hogs or 
pigs during the representative period.
    Estimated Number of Respondents: 500.
    Estimated Number of Responses per Respondent: 1.
    Estimated Total Annual Burden on Respondents: 500 hours.
    Total Cost: $10,000.

4. Absentee Voter Request List: Form LS-74

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

Background

    Under the Act, a pork referendum was conducted during the period 
August 18, 2000, through September 21, 2000. The referendum was 
conducted pursuant to referendum rules published July 13, 2000, [65 FR 
43498] Pork Promotion, Research, and Consumer Information Program: 
Procedures for the Conduct of Referendum: final rule. The referendum 
was conducted among eligible pork producers who owned and sold one or 
more hogs or pigs and importers who imported pigs, hogs, pork or pork 
products to determine whether they favored the continuation of the 
Order. Producer in-person voting in the referendum was held September 
19, 20, 21, 2000, at county FSA offices. Producer absentee ballots were 
available at those offices from August 18, 2000, through September 18, 
2000. Importers could obtain ballots from the FSA headquarters office 
in Washington, D.C., from August 18, 2000, through September 21, 2000. 
The representative period to establish voter eligibility was the period 
from August 18, 1999, through August 17, 2000.
    This interim rule amends the final rule on the conduct of the Pork 
Checkoff Program referendum to provide an additional five business days 
for challenging absentee votes. These changes will ensure that persons 
have had an opportunity to challenge all absentee voters and that all 
eligible absentee votes will be counted. The final pork referendum 
rules required that persons voting by absentee ballot print their name 
and address on the outside of the absentee ballot mailing envelope so 
that FSA county offices could check whether the absentee ballot had 
been returned. The final rule also required that the absentee ballot be 
received by the FSA county office before a producer's vote could be 
challenged. Due to incorrectly completed or missing names and addresses 
on the absentee ballot mailing envelope, some FSA county offices were 
not able to determine the name of the person returning the absentee 
ballot and were, therefore, unable to post a complete list of absentee 
voters for public review and challenging.
    In order to ensure that eligible absentee ballots will be counted, 
AMS is amending the final referendum rule to allow for an additional 
period, beginning October 23, 2000, and ending October 27, 2000, for 
interested persons to review the Absentee Voter Request List (Form LS-
74) posted in FSA county offices and challenge absentee voters, who 
were not subject to challenge during the initial challenge period, 
September 19, 2000, through October 2, 2000. Those producers whose 
names were listed on the Absentee Voter Request List and who were 
subject to challenge because the Absentee Voter Request List (Form LS-
74) indicated the date by which they had returned their ballot are not 
subject to challenge during this additional 5-day period. Absentee 
voters whose ballots are challenged will have until November 7, 2000, 
to submit proof of eligibility. These changes do not affect producers 
who voted in-person or pork importers who voted by mail ballot.
    We are deleting the requirement in Sec. 1230.631(c) of the final 
rule that states that ``Absentee ballots have to be received in the FSA 
county office before a producer's vote can be challenged.''
    During the conduct of the referendum a question was raised 
concerning whether a ballot would be invalid if no return address was 
included on the outside envelope. The return address was for the FSA 
county offices' administrative convenience to ensure that an absentee 
ballot had been requested and returned. It was never intended to 
invalidate an otherwise

[[Page 62579]]

complete absentee ballot simply because the return address was missing 
on the mailing envelope, and the provision in the final rule specifying 
the reasons for declaring a ballot invalid is consistent with our 
intent.
    Pursuant to 5 U.S.C. 553, it is found and determined upon good 
cause that it is impracticable, unnecessary, and contrary to the public 
interest to give preliminary notice prior to putting this rule into 
effect and that good cause exists for not postponing the effective date 
of this rule until 30 days after publication in the Federal Register. 
This action amends 7 CFR part 1230, the Pork Promotion, Research, and 
Consumer Information Program: Procedures for the Conduct of Referendum, 
to provide an additional 5-day period to give interested persons an 
opportunity to challenge all producers who requested absentee ballots 
and who were not subject to challenge during the initial challenge 
period. This interim rule also establishes new dates for notifying 
challenged producers, submitting proof of eligibility, and resolving 
challenges.
    Voting in the pork referendum was completed on September 21, 2000, 
and the ballots will be counted by FSA county offices on November 29, 
2000, as provided for in Sec. 1230.633 of the final rule. Accordingly, 
the changes made in this action should be implemented as soon as 
possible. Further, for the same reasons, a 30-day comment period is 
deemed appropriate.

List of Subjects in 7 CFR Part 1230

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


    For the reasons set forth in the preamble, 7 CFR part 1230 is 
amended as follows:

PART 1230--PORK PROMOTION, RESEARCH, AND INFORMATION

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

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


Sec. 1230.631  [Amended]

    2. In Sec. 1230.631 paragraph (c) is amended by removing the 
sentence ``Absentee ballots have to be received in the FSA county 
office before a producer's vote can be challenged.''

    3. A new Sec. 1230.639 is added to read as follows:


Sec. 1230.639  Additional absentee voter challenge period.

    (a) Absentee Voter Request List. The Absentee Voter Request List 
(Form LS-74) will be available for inspection during an additional 
challenge period of five business days (October 23, 2000-October 27, 
2000) at county FSA offices. The Absentee Voter Request List will be 
posted daily during regular office hours in a conspicuous public 
location at FSA county offices during the additional challenge period.
    (b) Who can challenge. Any person can challenge a producer's vote 
during the period provided in paragraph (a) of this section. Any person 
who wants to challenge shall do so in writing and shall include the 
full name of the individual or corporation or other entity being 
challenged. Each challenge of a producer vote must be made on a 
separate sheet of paper and each challenge must be signed by the 
challenger. The identity of the challenger will be kept confidential 
except as the Secretary may direct or as otherwise required by law.
    (c) Who can be challenged. Any person whose name is on the Absentee 
Voter Request List who was not subject to challenge during the 
September 19, 2000, through October 2, 2000, challenge period may be 
challenged. Those producers whose names were listed on the Absentee 
Voter Request List and who were subject to challenge because the 
Absentee Voter Request List indicated they had returned their ballot 
are not subject to challenge during this additional 5-day period.
    (d) Notification of challenges. The FSA County Committee or its 
representative, acting on behalf of the Administrator, AMS, will notify 
challenged producers as soon as practicable, but no later than the 2nd 
business day (October 31, 2000) after the last day of the additional 
challenge period. FSA county offices will notify all challenged persons 
that documentation such as sales documents, tax records, or other 
similar documents proving that the person owned and sold hogs or pigs 
during the representative period must be submitted or his or her vote 
will not be counted. The documentation must be provided to FSA county 
offices not later than November 7, 2000.
    (e) Determination of challenges. The FSA County Committee or its 
representative, acting on behalf of the Administrator, AMS, will make a 
determination concerning the challenge based on documentation provided 
by the producer and will notify challenged producers as soon as 
practicable but no later than November 9, 2000.
    (f) Challenged ballot. A challenge to a ballot shall be deemed to 
have been resolved if the determination of the FSA County Committee or 
its representative, acting on behalf of the Administrator, AMS, is not 
appealed within the time allowed for appeal or there has been a 
determination by the Administrator, AMS, after an appeal.
    (g) Appeal. A person declared to be ineligible to register and vote 
by the FSA County Committee or its representative, acting on behalf of 
the Administrator, AMS, can file an appeal at the FSA county office not 
later than November 17, 2000. The FSA county office shall send a 
producer's appeal by facsimile to the Administrator, AMS, on the date 
it is filed at the FSA office or as soon as practical thereafter.
    (h) Determination of appeals. An appeal will be determined by the 
Administrator, AMS, as soon as practical, but in all cases not later 
than the 45th business day (November 28, 2000) after the date of the 
last day of the voting period. The Administrator, AMS, shall send her 
decision on a producer's appeal to the FSA county office where the 
producer was initially challenged. The FSA county office shall notify 
the challenged producer of the Administrator's, AMS, determination on 
his or her appeal. The Administrator's, AMS, determination on an appeal 
shall be final.

    Dated: October 17, 2000.
Kathleen A. Merrigan,
Administrator, Agricultural Marketing Service.
[FR Doc. 00-27024 Filed 10-17-00; 1:39 pm]
BILLING CODE 3410-02-P


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