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Rules and Regulations Federal Register

55255 

Vol. 75, No. 175 

Friday, September 10, 2010 

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: Final rule. 

SUMMARY: This final rule establishes 

procedures that the Agricultural 

Marketing Service (AMS) 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 (Order) will be 

implemented if it is approved by twothirds of the egg producers voting in the 

referendum or by a majority of 

producers voting if they produced twothirds of the eggs produced by all voters. 

These procedures will also be used for 

subsequent referenda. AEB, which 

administers the Order, recommended 

this action to sustain and expand its 

national promotion, research, and 

consumer information program. 

DATES: Effective Date: September 13, 

2010. 

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 final rule has been reviewed 

under Executive Order 12988, Civil 

Justice Reform. This rule is not intended 

to have a retroactive effect. 

The Egg Research and Consumer 

Information Act (7 U.S.C. 2701–2718) 

(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. 

Regulatory Flexibility Act Analysis and 

Paperwork Reduction Act 

In accordance with the Regulatory 

Flexibility Act (RFA) [5 U.S.C. 601– 

612], AMS has considered the economic 

impact of this action on the small 

producers that will 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 (USDA). 

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 as those having annual receipts of 

no more than $7 million. Under this 

definition, the vast majority of the egg 

producers that will 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 farmgate price of $0.837 per 

dozen, total annual receipts would be 

$1.38 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 final rule establishes procedures 

under which egg producers vote on 

whether they favor an increase in the 

assessments they pay to AEB. This rule 

adds a new subpart and establishes 

procedures to conduct this referendum 

as well as future referenda. The subpart 

covers definitions, voting, instructions, 

use of subagents, ballots, the 

referendum report, and confidentiality 

of information. 

AMS 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. 

AMS 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. 

AMS considered electronic voting, but 

the use of computers is not universal. 

Conducting the referendum from one 

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55256 Federal Register / Vol. 75, No. 175 / Friday, September 10, 2010 / Rules and Regulations 

central location by mail ballot would be 

more cost-effective and reliable. 

In accordance with 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 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 Regulatory 

Flexibility Analysis regarding the 

impact of these referendum procedures 

on small entities, and we invited 

comments concerning potential effects 

of these amendments on small 

businesses. No comments were 

received. 

Background 

The 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 

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 and the District of 

Columbia are subject to the program, 

and producers owning 75,000 or fewer 

laying hens are eligible to obtain an 

exemption from paying assessments. 

This final rule establishes procedures 

under which egg producers may vote on 

whether they want to increase the rate 

of assessments they pay to AEB from 10 

cents to 15 cents per 30-dozen case of 

eggs. These procedures will also be used 

for any future referenda. A proposed 

rule and request for comments was 

published in the Federal Register on 

September 28, 2009 (74 FR 49342), with 

a 60-day comment period. No comments 

were received. A separate proposed rule 

to increase the assessment rate was 

published in the September 25, 2009, 

issue of the Federal Register (74 FR 

48865). 

This final rule adds a new subpart 

and establishes 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. 

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

and determined 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 on whether 

producers favor increasing the 

assessment rate as soon as possible. 

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 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. 7401. 

■ 2. Part 1250 is 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 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 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. 

(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 

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Federal Register / Vol. 75, No. 175 / Friday, September 10, 2010 / Rules and Regulations 55257 

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 whether the person voting 

or on whose behalf the vote is cast, is 

an eligible voter, and 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 therefore, 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 3, 2010. 

David R. Shipman, 

Acting Administrator, Agricultural Marketing 

Service. 

[FR Doc. 2010–22644 Filed 9–9–10; 8:45 am] 

BILLING CODE 3410–02–P 

FEDERAL ELECTION COMMISSION 

11 CFR Part 100 

[Notice 2010–18] 

Definition of Federal Election Activity 

AGENCY: Federal Election Commission. 

ACTION: Final rules. 

SUMMARY: The Federal Election 

Commission is revising its rules as to 

the activities that constitute ‘‘Federal 

election activity’’ under the Federal 

Election Campaign Act of 1971, as 

amended. Specifically, these final rules 

modify the definitions of ‘‘voter 

registration activity’’ and ‘‘get-out-thevote activity,’’ in response to the 

decision of the U.S. Court of Appeals for 

the District of Columbia Circuit in Shays 

v. FEC. 

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