[Federal Register Volume 65, Number 135 (Thursday, July 13, 2000)]
[Rules and Regulations]
[Pages 43498-43525]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-17688]



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Part IV





Department of Agriculture





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Agricultural Marketing Service



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7 CFR Part 1230



Pork Promotion, Research, and Consumer Information Program: Procedures 
for the Conduct of Referendum; Final Rule

  Federal Register / Vol. 65, No. 135 / Thursday, July 13, 2000 / Rules 
and Regulations  

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DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 1230

[No. LS-99-14]


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

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Final rule.

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SUMMARY: This final rule sets forth the procedures for conducting a 
referendum to determine if producers and importers favor continuation 
of the Pork Checkoff Program, formally known as the Pork Promotion, 
Research, and Consumer Information Order (Order). The Pork Checkoff 
Program was implemented September 5, 1986, as authorized by the Pork 
Promotion, Research, and Consumer Information Act of 1985 (Act). The 
Secretary of Agriculture (Secretary) will conduct a referendum among 
persons who have been producers and importers during the period August 
18, 1999, through August 17, 2000, to determine whether producers and 
importers favor the continuation of the Pork Checkoff Program. 
Producers and importers can vote from August 18, 2000, through 
September 21, 2000. The Pork Checkoff Program would be terminated if a 
majority of producers and importers voting in the referendum favor 
termination.

EFFECTIVE DATE: This final rule is effective July 14, 2000.
    Referendum Dates: Producers can vote in-person in the referendum on 
September 19, 20, 21, 2000, at the county Farm Service Agency (FSA) 
offices. Absentee ballots for producers will be available from county 
FSA offices from August 18, 2000, through September 18, 2000. Importers 
can obtain ballots from the FSA headquarters office in Washington, DC, 
from August 18, 2000, through September 21, 2000, at the address listed 
in this rule. The representative period to establish voter eligibility 
will be the period from August 18, 1999, through August 17, 2000.

FOR FURTHER INFORMATION CONTACT: 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, DC 20250-0251; telephone number 202/720-1115, fax 202/
720-1125, or by e-mail [email protected].
    Producers can determine the location of county FSA offices by 
contacting (1) The nearest county FSA office; (2) the State FSA office; 
or (3) through an online search of the FSA website at www.fsa.usda.gov/pas/search.htm. From the options available on this webpage select ``FSA 
Field Office Search,'' select ``St Abbrv,'' and enter the county name 
in the ``Cnty code'' block. Some county FSA offices service multiple 
counties.

SUPPLEMENTARY INFORMATION: This final rule is being carried out in 
accordance with the Act (7 U.S.C. 4801-4819).

Question and Answer Overview

When Will the Referendum Be Held?

    Producers can vote in-person in the referendum on 3-consecutive 
days on September 19, 20, 21, 2000. Producers voting by absentee ballot 
may obtain ballot packages from August 18, 2000, through September 18, 
2000. Importers may obtain mail ballot packages from August 18, 2000, 
through September 21, 2000.

Who Is Eligible To Vote in the Referendum?

    People and businesses who owned and sold hogs or pigs or imported 
hogs, pigs, pork, or pork products during the representative period 
from August 18, 1999, through August 17, 2000, are eligible to vote. 
This means that there are three types of eligible voters: (1) Persons 
who own and sell hogs or pigs in the United States in their own name; 
(2) persons who import hogs, pigs, pork, or pork products into the 
United States in their own name; and (3) persons who are designated to 
cast the single vote for a business entity that owns and sells, or 
imports hogs, pigs, pork, or pork products into the United States. 
Persons ineligible to vote include persons who do not pay the pork 
checkoff such as contract growers unless they have owned and sold hogs 
or pigs in their own name at some time during the representative period 
of August 18, 1999, to August 17, 2000, as well as persons who left hog 
farming prior to the beginning date of the representative period of 
August 18, 1999.

Where Do I Vote if I'm a U.S. Producer?

    In-person voting will take place at the Department of Agriculture's 
(Department) FSA county offices. If you currently participate in FSA 
programs, you should vote at the FSA county office where you normally 
do business. If you do not participate in FSA programs, go to the FSA 
office in the county where you raise hogs or pigs (or if you raise hogs 
or pigs in more than one county, the county FSA office where most of 
your business is conducted). All county FSA office locations can be 
found on the FSA website at www.fsa.usda.gov/pas/search.htm.

Can I Vote by Absentee Ballot?

    Yes. We recognize that producers are very busy so absentee voting 
will be allowed from August 18, 2000, through September 21, 2000, in 
addition to the September 19-21, 2000, 3-day in-person voting period. 
Eligible voters may request an absentee ballot from the appropriate 
county FSA office. Producers can begin requesting absentee ballots on 
August 1, 2000. However, absentee ballots will not be available for 
distribution to producers until August 18, 2000. Producers can request 
an absentee ballot in-person, by telephone, by facsimile, or by mail 
beginning August 1, 2000. To count, absentee ballots must be delivered 
to the county office no later than September 21, 2000, or be postmarked 
by September 21, 2000, and be received by the county FSA office no 
later than September 28, 2000.

Where do I Vote if I'm an Importer?

    Voting will take place by mail. Voting by mail will be allowed for 
the same 35-day period of producer voting. Importers can request a 
ballot beginning August 1, 2000, from the FSA headquarters office in 
Washington, DC, at the address listed in this final rule. However, mail 
ballots will not be available for distribution to importers until 
August 18, 2000,

How Will the Department Make Certain That Only Eligible Persons Vote in 
the Referendum?

    FSA county offices will publicly display a list of all people who 
have voted at that office, by absentee ballot as well as in-person. 
This will allow scrutiny by everyone. If a person believes that an 
ineligible person has voted, he or she can challenge that person's 
ballot. When a person's vote has been challenged, the challenged voter 
will be required to submit documentation to the county FSA office to 
prove eligibility. The Department will require importers to submit 
proof that they paid the pork assessment when they request ballots.
    One commenter suggested several minor clarifying changes in the 
answers to three of the eight questions published with the proposed 
rule. We agree that these changes clarify the answers and have made the 
suggested changes. The

[[Page 43499]]

comments and responses are discussed in the section on comments.

Regulatory Impact Analysis

Executive Orders 12866 and 12998 and the Regulatory Flexibility Act

    This 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 final rule has been reviewed under Executive Order 12998, 
Civil Justice Reform. It is not intended to have a retroactive effect. 
The 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 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 final action on small 
entities.
    According to the December 29, 1999, issue of the ``Hogs and Pigs'' 
report published by the National Agricultural Statistics Service 
(NASS), the number of farms with hogs or pigs was 98,460. According to 
the U.S. Customs Service, in 1999 there were 524 importers of hogs, 
pigs, pork, or pork products in the United States. The majority of the 
98,460 hog producers and 524 importers subject to the Order should be 
classified as small entities under the criteria established by the 
Small Business Administration.
    This rule is being carried out in accordance with the Act and 
establishes procedures for the conduct of a referendum to determine 
whether producers and importers favor continuation of the Pork Checkoff 
Program. Such procedures will permit all eligible producers who have 
been engaged in the production and sale of hogs or pigs and importers 
who have been engaged in the importation of hogs, pigs, pork, or pork 
products to vote in the referendum. Participation in the referendum is 
voluntary. Producers may cast their votes either by absentee ballot or 
in-person at county FSA offices. Importers may cast their ballots by 
mail at the FSA headquarters office in Washington, DC.
    The information collection requirements, as discussed below, will 
be minimal. Casting votes by mail or in-person will not impose a 
significant economic burden on participants. Accordingly, the 
Administrator of AMS has determined that this rule will not have a 
significant economic impact on a substantial number of small entities.

Paperwork Reduction Act

    In accordance with the OMB regulation 5 CFR part 1320 that 
implements the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), 
OMB has approved the information collection requirements contained in 
this final rule.
    Title: Pork Promotion, Research, and Consumer Information Program: 
Procedures for the Conduct of Referendum.
    OMB Number: 0581-0194.
    Expiration Date of Approval: 06/30/2003.
    Type of Request: Revision of an approved information collection.
    Abstract: The purpose of this final rule is to determine whether 
pork producers and importers favor continuation of the Pork Checkoff 
Program. The question on the ballot will be: ``Do you favor continuing 
the Pork Checkoff program? Yes or No.'' For producers, provisions are 
made for in-person voting, absentee voting, and the challenge of 
voters. For importers, provision is made for voting by mail only. 
Importers will submit a copy of the U.S. Customs Service Form 7501 (as 
proof of eligibility) along with their request for a mail ballot.
    AMS estimates that the cost per person to comply with the reporting 
provision of this rule is $20 per hour for a total cost of $222,400. 
This is based on an estimated 50,000 voters participating in the 
referendum.
    In this final rule, information collection requirements include a 
one-time submission of the required information on the following forms 
that are included in an Appendix at the end of this action.
    (a) Producers voting in-person will:
    (1) Print their name and address on the In-Person Voter 
Registration List (Form LS-75).
    (2) Complete a Pork Producer In-Person Voting form (Form LS-72).
    (3) Insert the ballot into the ``Pork Ballot'' envelope (Form LS-
72-1).
    (4) Complete the In-Person Registration and Certification form 
(printed on the ``Pork Referendum'' envelope) (Form LS-72-2), and 
insert the sealed ``Pork Ballot'' envelope (Form LS-72-1), containing 
the ballot, into the ``Pork Referendum'' envelope (Form LS-72-2).
    (b) Producers voting absentee will:
    (1) Complete, a combined registration and absentee ballot form 
(Form LS-73).
    (2) Insert the ballot portion into a ``Pork Ballot`` envelope (Form 
LS-72-1).
    (3) Put the sealed ``Pork Ballot'' (Form LS-72-1) envelope and the 
completed registration form in the ``Pork Referendum'' envelope (Form 
LS-73-1).
    (c) Importers voting in the referendum will have their names placed 
on an Importer Ballot Request List (Form LS-77) by FSA employees. 
Importers will vote using a mail ballot package consisting of a 
combined ballot and registration and certification form (Form LS-76), a 
``Pork Ballot'' envelope (Form LS-72-1), and a ``Pork Referendum'' 
envelope (Form LS-73-1). They will complete the ballot and registration 
and certification form and place the ballot portion into the ``Pork 
Ballot'' envelope (Form LS-72-1), and place the sealed ``Pork Ballot'' 
envelope (Form LS-72-1) into the ``Pork Referendum'' envelope (Form LS-
73-1) along with the completed registration form.
    (d) This final rule requires each producer of hogs or pigs, who 
votes in-person to print on the In-Person Voter Registration List (Form 
LS-75) his or her name and address and, if applicable, the name and 
address of the corporation or other business entity he or she 
represents. Employees in each county FSA office will fill out the 
Absentee Voter Request List (Form LS-74).
1. Pork Producer In-Person Voting: Form LS-72, Pork Ballot envelope: 
Form LS-72-1, and In-Person Registration and Certification envelope: 
Form LS-72-2
    Estimate of Burden: The public reporting burden for this collection 
of

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information is estimated to average .10 hour per response.
    Respondents: Only producers voting in-person in the referendum will 
use these forms.
    Estimated Number of Respondents: 25,000.
    Estimated Number of Responses per Respondent: 1.
    Estimated Total Annual Burden on Respondents: 2,500 hours.
    Total Cost: $50,000.
2. Pork Producer Absentee Voting: Form LS-73, Pork Ballot envelope: 
Form LS-72-1, and Pork Referendum envelope: Form LS-73-1
    Estimate of Burden: The public reporting burden for this collection 
of information is estimated to average .10 hour per response.
    Respondents: Only producers requesting an absentee ballot to vote 
in the referendum will use these forms.
    Estimated Number of Respondents: 25,000.
    Estimated Number of Responses per Respondent: 1.
    Estimated Total Annual Burden on Respondents: 2,500 hours.
    Total Cost: $50,000.
3. In-Person Voter Registration List: Form LS-75
    Estimate of Burden: The public reporting burden for this collection 
of information is estimated to average .03 hour per response.
    Respondents: Only producers voting in-person in the referendum will 
use this form.
    Estimated Number of Respondents: 25,000.
    Estimated Number of Responses per Respondent: 1.
    Estimated Total Annual Burden on Respondents: 750 hours.
    Total Cost: $15,000.
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 Lists (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.
5. Challenge of Voters
    Estimate of Burden: The public reporting burden for this collection 
of information is estimated to average .08 hour 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.
6. 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.
7. 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.
8. Pork Importer Mail Voting: Form LS-76, Pork Ballot Envelope: Form 
LS-72-1, and Pork Referendum Envelope: Form LS-73-1
    Estimate of Burden: The public reporting burden for this collection 
of information is estimated to average .10 hour per response.
    Respondents: Importers can only vote by mail ballot in the 
referendum and will use these forms.
    Estimated Number of Respondents: 500.
    Estimated Number of Responses per Respondent: 1.
    Estimated Total Annual Burden on Respondents: 50 hours.
    Total Cost: $1,000.
9. Submission of U.S. Customs Service Form 7501 as Proof of Importer 
Eligibility
    Estimate of Burden: The public reporting burden for this collection 
of information is estimated to average 1 hour per response.
    Respondents: Importers voting in the referendum will submit a copy 
of U.S. Customs Service Form 7501 with their request for a mail ballot.
    Estimated Number of Respondents: 500.
    Estimated Number of Responses per Respondent: 1.
    Estimated Total Annual Burden on Respondents: 500 hours.
    Total Cost: $10,000.
10. Importer Ballot Request List: Form LS-77
    Estimate of Burden: Employees in the Washington, DC, FSA 
headquarters office will print the name and address of the importer 
requesting the ballot on the Importer Ballot Request List (Form LS-77). 
Because only headquarters FSA employees will complete the Importer 
Ballot Request List, the estimated average reporting burden would not 
apply to importers voting in the referendum.
    In the proposed rule published April 18, 2000, comments were 
invited on: (1) Whether the proposed collection of information is 
necessary for the proper performance of the functions of the agency, 
including whether the information would have practical utility; (2) the 
accuracy of the agency's estimate of the burden of the proposed 
collection of information including the validity of the methodology and 
assumptions used; (3) ways to enhance the quality, utility, and clarity 
of the information to be collected; and (4) ways to minimize the burden 
of the collection of information on those who are to respond, including 
through the use of appropriate automated, electronic, mechanical, or 
other technological collection techniques or other forms of information 
technology.
    One commenter recommended several changes to the Paperwork 
Reduction Act section of the proposed rule. They are organized below by 
the applicable section.

Abstract

    The commenter suggested that the Department require producers to 
provide documentation as evidence of their status as a producer to be 
eligible to vote the same as it requires for importers to obtain a 
ballot. The commenter believed that requiring

[[Page 43501]]

producer documentation when requesting a ballot would reduce the costs 
of challenges. Importers must submit a U.S. Custom Form 7501 with their 
request for a mail ballot. The Department is requiring importers to 
submit this form because unlike producers who vote in the county FSA 
offices, and may be known by the FSA county employees and by other 
producers in the county, importers are not typically known by these 
persons. For this reason, FSA is requiring that importers vote in one 
location, the FSA headquarters office in Washington, DC. The submission 
of Form 7501 up-front will eliminate the challenge process.
    The Department believes that requiring producers to present 
documentation that they have sold hogs or pigs during the 
representative period, to prove their eligibility prior to obtaining a 
ballot, would increase the paperwork burden on the public. Assuming 
that it takes a producer the same amount of time to acquire and present 
documentation at the time of voting as it does to present the same 
proof in responding to a challenge, the public paperwork burden would 
be 50,000 hours if required of all producers at a cost of $1,000,000. 
By contrast, if 4,000 producers' ballots are challenged, the public 
paperwork burden would be 4,000 hours at a cost of $80,000.

Section 5 Challenge of Voters

    The same commenter recommended that under section 5, Challenge of 
Voters, the wording under Respondents should be corrected to be 
consistent with the rule section by replacing the word ``producers'' 
with the word ``persons.'' The Department agrees. Any person can 
challenge the ballot of another person. Accordingly ``persons'' is 
substituted for ``producers'' making that statement consistent with the 
regulatory text.

Section 6 Proof of Eligibility

    The same commenter suggested that the number of producers having to 
respond to challenges listed as Estimated Number of Respondents under 
section 6, Proof of Eligibility, would be approximately 8,000 as 
opposed to the proposed 2,000. The commenter based his estimate on his 
interpretation of the results of AMS' evaluation of petitions submitted 
by the Campaign for Family Farms (CFF) requesting that the Secretary 
conduct a referendum of the Pork Checkoff Program. The Department based 
the proposed number of challenged ballots of 2,000 on the percentage of 
challenged ballots in previous referenda that was 1.5 to 2 percent of 
the number of voters and doubled that figure to reflect approximately 4 
percent. Upon further review, the Department agrees that the number of 
challenged ballots is likely to be greater than the original estimated 
number of 2,000, but is not persuaded it will be as high as 8,000.
    The Department has reconsidered the Estimated Number of Responses 
per Respondent and has increased the number from an average of 1 to an 
average of 2 in section 5, Challenge of Voters. Therefore, the 
Department has changed the Estimated Number of Respondents from 2,000 
to 4,000 in section 6, Proof of Eligibility. The Department has also 
reconsidered the Estimated Number of Respondents in section 7, 
Appealing a Challenge of Eligibility, and reduced the number from 2,000 
in the proposed rule to 500. In the proposed rule the Department 
estimated that 2,000 producers whose votes would be challenged would 
appeal. However, upon review, the Department now estimates that all 
2,000 producers challenged would not have been found to be ineligible. 
Recognizing this fact, the Department now believes that a smaller 
number of persons will be declared ineligible to vote and thus appeal. 
The Department has estimated the number of respondents to be 500.
    The same commenter also suggested that the estimate of 25,000 
voters may be too low. The Department estimated that 50,000 producers 
and importers would vote in the pork referendum and further estimated 
that 25,000 would vote in-person and 25,000 would vote absentee or by 
mail ballot. The Department agrees with the commenter that more than 
25,000 voters should be expected in the referendum and thus continues 
to estimate that there will be approximately 50,000 voters. 
Accordingly, no change is made based upon this comment.

Background

    The Act provides for the establishment of a coordinated program of 
promotion and research designed to strengthen the pork industry's 
position in the marketplace and to maintain and expand domestic and 
foreign markets and uses for pork and pork products. The program is 
financed by a pork checkoff assessment of 0.45 percent of the market 
value of domestic and imported hogs and pigs and an equivalent amount 
on imported pork and pork products. Pursuant to the Act, an Order was 
made effective on September 5, 1986, and the collection of assessments 
began on November 1, 1986.
    The Act provides that at the request of a number of persons equal 
to at least 15 percent of persons who have been producers and importers 
during a representative period as determined by the Secretary, the 
Secretary shall conduct a referendum to determine whether the producers 
and importers favor the continuation of the Pork Checkoff Program. 
Based on statistical data reported by NASS in the December 29, 1998, 
issue of the ``Hogs and Pigs'' report and information from the 1997 
Census, there were 98,892 producers who sold hogs or pigs in 1998. 
According to data submitted by U.S. Customs Service, in 1998, there 
were 1,017 importers of hogs, pigs, pork, or pork products. The total 
number of producers and importers who would be eligible to sign a 
petition was 99,909. Fifteen percent of 99,909 equals 14,986. 
Therefore, AMS determined that a petition containing 14,986 valid 
signatures was sufficient to request a referendum.
    On May 24, 1999, a petition containing 19,043 names was submitted 
to AMS. AMS conducted a signature validation process to ensure that the 
petitioners were pork producers or importers during the representative 
period, January 1, 1997, to June 1, 1999, and signed the petition. 
However, the Department concluded that the validation process was 
vulnerable to criticism in a number of respects and that the Department 
cannot be certain of the exact number of valid signatures. Because many 
thousands of valid signatures were received, however, the Secretary 
determined that a referendum would be held at the Department's expense 
in the interest of fairness. Pork producers and importers have not 
voted on the continuation of the Pork Checkoff Program since the 
initial referendum in 1988.
    The purpose of the final rule is to determine whether pork 
producers and importers favor continuation of the Order. Therefore, the 
question on the ballot will be: ``Do you favor continuing the Pork 
Checkoff program? Yes or No.'' Support of the program by a majority of 
persons who pay assessments is essential to both the establishment and 
the continuation of this program. Assessment collection under the Order 
would be terminated not later than 30 days after the date it is 
determined that termination of the Order is favored by a majority of 
the producers and importers voting in the referendum. The Order would 
be terminated in an orderly manner, as soon as practical, after the 
date of such determination. The proceedings after termination are set 
forth in Sec. 1230.85 of the Order.
    The final rule sets forth procedures to be followed in conducting 
the

[[Page 43502]]

referendum, including definitions, representative period, supervision 
of the referendum, mail ballots, challenge of voters and appeals, in-
person voting procedures, absentee voting procedures, importer voting 
procedures, reporting referendum results, and disposition of the 
ballots and records. FSA will assist in the conduct of the referendum 
by (1) Providing the polling places; (2) counting ballots; (3) 
determining the eligibility of challenged voters; and (4) reporting 
referendum results.
    The proposed rule was published (65 FR 20861, April 18, 2000) with 
a request for comments to be submitted by May 18, 2000. The Department 
received 1,005 comments in a timely manner. In addition, 73 late 
comments were received. These comments generally reflected the 
substance of comments timely received. The bulk of the comments were 
submitted by individual hog producers. About 40 comments were received 
from organizations or associations representing hog producers, pork 
importers, and farmers. The comments have been posted on AMS' website 
at (http://www.ams.usda.gov/lsg/mpb/pork/pkrefrule.htm).
    The changes suggested by commenters are discussed below, along with 
the changes made by the Department upon further review of the proposed 
procedures for the conduct of the referendum. Also, the Department has 
made other minor changes for the purpose of clarity and accuracy. For 
the readers' convenience the discussion of comments is organized by the 
topic headings of the proposed rule.

Background

    One commenter pointed out that an assessment of 0.45 percent of the 
market value not only applies to domestic hogs and pigs but also to 
imported market hogs and pigs. The proposed Order stated that an 
equivalent amount applied to imported market hogs and pigs. The 
commenter is correct. The 0.45 percent of market value applies to 
domestic and imported pigs and hogs. An assessment equivalent to 0.45 
percent of market value applies only to imported pork and pork 
products. The commenter's recommended change has been incorporated in 
the final rule.
    One commenter stated that the last statements in paragraph three 
concerning the Department's determination to hold a referendum are 
biased or ``positioned'' comments and should be deleted since the 
Department should maintain a neutral role. The Department does not 
agree. The statements are factual and are an integral part of the 
background information that explains why the referendum is being held. 
This recommendation is not adopted.
    One commenter pointed out that the Order has information concerning 
the proceedings after termination, suggesting that it should be 
referenced and included for producer knowledge in the final rule. The 
Department agrees. A reference to Sec. 1230.85 in the Order concerning 
these proceedings has been included in the Background Section.

Definitions

Section 1230.608  Farm Service Agency State Committee

    AMS and FSA reviewed the procedures for determining an appeal in 
Sec. 1230.631(g) after the proposed rule was published. They agreed the 
appeals of the FSA County Committee's determination would be faxed to 
the Administrator of AMS for a final determination of voter eligibility 
rather than be sent to the FSA State Committee. For the purpose of this 
final rule, the FSA State Committee is not involved in the procedures 
for the conduct of the referendum. Consequently, the definition of FSA 
State Committee at Sec. 1230.608 has been deleted and each following 
section has been renumbered.

Section 1230.615  Producer

    Some commenters suggested that the definition of producer should be 
clarified by inserting ``2 or more'' after ``animals'' and suggested 
``and markets'' be inserted after ``produces.'' The Department finds 
that the suggestion that the production of two or more hogs is needed 
to qualify as a producer is not consistent with the language and intent 
of the Act and Order. The definition of producer in the proposed rule 
is consistent with the definition of a producer in the Act. The Act 
specifies no minimum number of hogs a person must own to be eligible to 
vote in the referendum. A person who produces one hog or pig in the 
United States for sale in commerce must pay the checkoff just as a 
person who produces more than one. Accordingly, this suggestion is not 
adopted. The commenter's suggestion to include ``and markets'' in the 
definition of producer is also not adopted. The Department has 
determined that this addition is not needed as the language of the 
definition from the Act ``produces for sale in commerce'' includes 
porcine animals that are marketed.

Section 1230.617  Referendum

    One commenter suggested that the phrase ``* * * continuation of the 
Order.'' should be replaced with ``ending the mandatory pork checkoff 
assessment program.''
    The Secretary in announcing that a referendum would be held stated 
``* * * it is appropriate and necessary to determine whether a majority 
of pork producers do in fact continue to support the checkoff.'' The 
Department has determined that the language in the proposed rule with 
some modification is appropriate and reflects the intent of this 
referendum. Accordingly, this suggestion is not adopted.

Section 1230.618  Representative Period

    Numerous commenters supported the proposed representative period of 
12-consecutive months prior to the referendum, which is the timeframe 
during which producers must have owned and sold hogs or pigs to be 
eligible to vote in the referendum. However, many commenters 
recommended changes in the length (both longer and shorter) of the 
representative period. Many commenters recommended lengthening the 
period by a varying number of years, including 2 years, 3 years, 4 
years, and even to a much longer timeframe such as 12 years or since 
the beginning of the Pork Checkoff Program. These commenters contended 
that an extended period is necessary for a variety of reasons. The 
reasons given most often were to enable all producers who signed the 
CFF petition requesting a referendum on the Pork Checkoff Program to 
participate in the referendum; to permit producers who may have 
temporarily left the business due to the extremely low hog prices 
experienced in 1998 and 1999 to participate in the referendum; and to 
allow all producers who have paid the checkoff at some time in the past 
to participate in the referendum. In contrast, some commenters 
recommended shortening the representative period. These comments 
included limiting the representative period to the year 2000; to the 
period from April 18, 2000, until the referendum begins; and to 
requiring ownership of hogs on the date the producer votes in the 
referendum. These commenters emphasized the need for current producers, 
who will be paying the checkoff in the future, to determine whether the 
checkoff continues.
    Some commenters recommended an earlier ending date for the 
representative period than the one included in the proposed rule. Their 
comments included ending the representative period on February 28, 2000 
(the day the Secretary announced a pork referendum would be held); on 
April 18,

[[Page 43503]]

2000 (the day the proposed referendum rule was published); and the date 
the final referendum rule is published. These commenters expressed 
concern that questionable hog transactions could occur after these 
dates solely for the purpose of establishing a person's eligibility to 
vote in the referendum.
    The Department has carefully considered these comments and 
recognizes the importance of this issue to all producers desiring to 
vote in the referendum. The Department has determined that the 
representative period will be the 12-consecutive month period prior to 
the beginning of absentee balloting for producers and mail balloting 
for importers. Producers who may have temporarily left the hog business 
in 1998 and 1999 and were interested in getting back into hog 
production due in part to significant capital investments in hog 
production facilities most likely would have since returned to the 
business due to higher hog prices (current price is approximately $50/
cwt) and low corn prices (current price is approximately $2.00/bu).
    The Department finds that the 1-year representative period is a 
period used by AMS in many other referenda and that the period will 
provide an opportunity for all pork producers presently engaged in 
producing and selling hogs and paying the checkoff assessments to 
determine whether the checkoff continues.
    One commenter suggested that the exact dates of the representative 
period should be clear to producers, importers, and FSA representatives 
who will vote in the referendum or implement the referendum rules. The 
dates of the representative period are August 18, 1999, through August 
17, 2000. These dates are set forth in the Dates section of this final 
rule and other sections, as applicable, as well as being included in 
the voting materials for all voters.

Section 1230.621  Voting Period

    Numerous commenters recommended increasing the length of the in-
person voting period. These commenters suggested that the 2-day in-
person voting period be extended by 1 week to as many as 8 weeks. The 
commenters contend that the longer time period is needed to accommodate 
producers' busy schedules and to promote maximum eligible producer 
participation. Many other commenters supported the 2-day in-person 
voting period.
    The Department recognizes the need for producers to have ample time 
to participate in the referendum and is extending the 2-day in-person 
voting period to 3 days. The Department believes a 3-day in-person 
voting period in conjunction with a 32-day absentee voting period will 
give producers who want to vote ample time to cast their ballot. During 
the 32-day absentee voting period, producers may request absentee 
ballots in-person, by telephone, facsimile, or by mail. This final rule 
permits producers to obtain an absentee ballot and vote at the county 
FSA office during any business day during the 32-day absentee voting 
period. Any producer who is concerned about being able to vote during 
the 3-day in-person voting period may use the absentee voting option. 
Accordingly, the suggestion for a longer in-person voting period is 
accepted in part by extending the in-person voting period from 2 days 
to 3 days. Section 1230.621 has been revised to reflect the expanded 
voting period. References in other sections to the length of the in-
person voting period have been changed as appropriate.

Section 1230.622  General

    A number of commenters questioned the legitimacy of holding a 
referendum expressing their belief that there is no authority in the 
law, the Order, or the regulations to call for a referendum.
    The Department disagrees. The Department has authority to conduct a 
referendum to determine if producers do in fact wish to continue to pay 
assessments to fund the Pork Checkoff Program.

Section 1230.624  Eligibility

    One commenter recommended revising Sec. 1230.625 so that groups of 
family members raising hogs are not presumed to be selling hogs under 
one business entity. Individual family members should be presumed to be 
individual producers unless there is evidence that all hogs are owned 
and sold under a single business entity. The language in Sec. 1230.624 
of this final rule (Sec. 1230.625 in the proposed rule) makes it clear 
that any member of a group, i.e., member of a family may register to 
vote if he or she sells hogs or pigs in his or her own name. 
Accordingly, this suggestion is not adopted.
    The same commenter also recommended that the terms ``joint 
tenants'' and ``tenants in common'' refer to ownership in real estate 
interests, not personal property interests such as hogs. This comment 
has merit. The words ``joint tenants'' and ``tenants in common'' have 
been deleted from Sec. 1230.624(a)(2) and (a)(3). These terms have also 
been deleted from the voting registration and certification forms.
    Numerous comments supported either ``one hog or pig'' or ``two or 
more hogs or pigs'' as the number that a producer must own and sell to 
be eligible to vote. Those supporting two or more hogs and pigs assert 
that a producer as defined in the Act, is a person who produces porcine 
animals in the United States for sale in commerce and argue that 
``porcine animals'' is plural and thus means two or more hogs or pigs.
    Those who support the need to own only one hog or pig to be 
eligible to vote argue that producers who produce one hog or pig for 
sale in commerce must pay the assessment just as producers who produce 
more than one hog or pig. The Department agrees. All producers subject 
to paying the checkoff including those producing and selling one hog or 
pig are eligible to vote in this referendum. Accordingly, the 
Department has amended Sec. 1230.624(a)(1) to clarify that producers 
owning and selling at least one hog or pig are eligible to vote.
    Numerous commenters suggested that there should be a minimum voting 
age. The majority of commenters recommended 18 years as the minimum 
age. The commenters point out that a person must be 18 years old to 
vote in general elections in the United States and that younger voters 
in general would not understand the implications of their vote.
    The Act (in defining producers) does not differentiate between 
producers by age. Younger producers are subject to assessment the same 
as producers 18 years of age and older. Therefore, the suggestion for a 
minimum voting age of 18 is not adopted. However, individual producers 
must be old enough to complete the required registration and 
certification form and mark the ballot since no proxy voting is 
permitted for individual producers.
    Several commenters recommended the words ``and markets'' be added 
after ``produces'' in both Sec. 1230.624(a)(1) and Sec. 1230.624(a)(2). 
As mentioned previously, in order to prove that a person whose 
eligibility to vote is challenged has met the definition of a producer, 
it will be necessary to provide a sales document, tax records, or other 
similar documents showing that the producer owned and sold hogs or 
pigs. The Department believes that producers will understand the terms 
``owned and sold'' better than ``marketed.'' Therefore, this suggestion 
is not adopted.
    Several commenters expressed opinions on the eligibility to vote of 
individuals or business entities that raise hogs or pigs through 
production contracts but who do not own the hogs or pigs they raise. 
The commenters asserted that individuals or business entities that 
raise hogs or pigs through

[[Page 43504]]

production contracts but who do not own the hogs or pigs they raise 
should not be eligible to vote. Other commenters argued that these 
individuals or business entities are often more dependent on the hog 
industry for a major share of their income than many small diversified 
farming operations that have hogs as a minor enterprise and thus should 
be eligible to vote. Likewise, other commenters argued that full-time 
employees in hog operations are fully dependent on the viability of 
these hog businesses and, thus, should be eligible to vote.
    Individuals or business entities that raise hogs or pigs under 
production contracts do not take ownership of the hogs and pigs and 
sell them. They are not subject to paying assessments when the hogs or 
pigs are sold. Therefore, contract producers are not eligible to vote 
in this referendum, unless they have produced and sold pigs or hogs in 
their own names during the representative period. Full-time employees 
of hog enterprises are not eligible to vote as a result of employment 
in the hog industry. Eligibility to vote is based on the ownership and 
sale of hogs or pigs. Accordingly, the suggestions that contract 
growers of hogs or pigs and employees of hog operations be allowed to 
vote based on their involvement in the industry is not adopted.

Section 1230.625  Time and Place of Registration and Voting.

    A large number of commenters expressed opinions on the length of 
the producer voting period. These commenters suggested that the 2-day 
in-person voting period be extended by 1 week to 8 weeks. Commenters 
contend that the longer time period is needed to accommodate producers' 
busy schedules and to promote maximum eligible producer participation. 
Many other commenters supported the 2-day in-person voting period.
    The Department recognizes the need for producers to have ample time 
to participate in the referendum and is extending the 2-day in-person 
voting period to 3 days. The Department believes a 3-day in-person 
voting period in conjunction with a 32-day absentee voting period will 
give producers who want to vote ample time to cast their ballot. During 
the 32-day absentee voting period, producers may request absentee 
ballots in-person, by telephone, facsimile, or by mail. This final rule 
permits producers to obtain an absentee ballot and vote at the county 
FSA office during any business day during the 32-day absentee voting 
period. Any producer who is concerned about being able to vote during 
the 3-day in-person period may use the absentee voting option. 
Accordingly, the suggestion for a longer in-person voting period is 
accepted in part by extending the in-person voting period from 2 days 
to 3 days.
    Commenters in general were supportive of holding the referendum for 
producers at county FSA offices. County FSA offices will conduct the 
referendum for producers and the FSA headquarters office will conduct 
the referendum for importers as proposed.
    A number of commenters requested that ballots be mailed by the 
Department to producers such as those producers who signed the petition 
for a pork referendum and those who received Small Hog Operation 
Payment (SHOP) program payments. Other commenters agreed with the 
proposed 2-day in-person voting period and 30-day absentee voting 
period, citing that it was consistent with the procedures of the 
initial referendum. They also expressed their belief that the 
Department has no current comprehensive list of eligible producers and 
providing ballots to some groups of producers would be inequitable and 
unfair.
    The Department does not have a list of the names and addresses of 
all pork producers in the United States. Further, to rely solely on 
lists that do not identify the names and addresses of all hog producers 
in the United States to mail ballots to producers would not be 
equitable. Thus, the recommendation to mail ballots to producers who 
signed the petition or other lists of producers is not adopted. 
Producers who wish to vote by mail ballot can obtain absentee ballots 
from county FSA offices.
    One commenter suggested that the final rule should clarify that in-
person registration and voting will be carried out ``on-site'' at FSA 
offices. The commenter suggested the rule was not clear whether a 
person could pickup a ballot, leave the office, and return with a 
completed ballot. The intent of the rule is that in-person voting will 
be carried out ``on-site.'' The suggestion is adopted and Sec. 1230.625 
has been revised accordingly.

Section 1230.626  Facilities for Registering and Voting

    Many commenters requested that absentee ballots be made available 
if requested by telephone or electronic mail.
    The Department has determined that in the interest of making voting 
more convenient for producers, absentee ballots will be made available 
to producers if requested by telephone. Thus, the suggestion to provide 
ballots by telephone is adopted and incorporated into this final rule. 
Obtaining importer ballots by telephone is addressed in the discussion 
of comments on Sec. 1230.629 registration and voting procedures for 
importers.
    The Department has determined that not all county FSA offices can 
receive electronic mail from sources outside of the Department. Thus, 
the suggestion that voters could request ballots by electronic mail is 
not adopted.
    Several commenters recommended that the final rule clarify the fact 
that voting materials would not be faxed to participants due to the 
nature of materials that include special envelopes needed for a valid 
ballot. This clarification is made in Sec. 1230.626 of the final rule 
by stating that ballot materials requested by telephone, mail, and 
facsimile will be provided to the requestor by mail.
    Several commenters suggested that it should be made clear that 
county FSA offices will keep a list of absentee ballot requests and 
will match it with the returned voting materials to ensure only those 
registered are considered to be valid ballots. This was the intent of 
the proposed rule and is the intent of this final rule. Accordingly, 
Sec. 1230.633 canvassing ballots is revised to emphasize this 
requirement. Instructions issued to FSA county offices also will 
reflect this requirement.

Section 1230.627  Registration Form and Ballot

    Several commenters recommended that the ballot question be changed 
and the certification statement should be more prominently displayed on 
the voting forms. This suggestion has been adopted. The ballot and 
ballot question as well as the certification statement have been 
revised to make them easier to use and understand. The ballot portions 
of the registration and certification forms have been redesigned so 
they will appear more prominent.
    Many commenters had a wide range of recommendations on the wording 
of the ballot question. Some commenters recommended the ballot read as 
follows: ``Do you vote to end the mandatory Pork Checkoff assessment 
program?'' These commenters believe that the ballot question must 
emphasize that the referendum is about ending the mandatory Pork 
Checkoff Program.
    Other commenters recommended that the language emphasize that the 
purpose of the referendum is to determine whether the Order is to 
continue and should be exactly the same as the language used in the 
1988 referendum.

[[Page 43505]]

    Some commenters were concerned that the proposed language could 
confuse some voters since these voters might not understand that a 
``No'' vote in the referendum would mean that both the Pork Checkoff 
Program and the Order would be terminated.
    To make the ballot question as simple and straightforward as 
possible, the Department has determined that the ballot question will 
read as follows: ``Do you favor continuing the Pork Checkoff program?'' 
Therefore, the specific language recommended by the various commenters 
is not adopted.
    Commenters suggested that the instructions to voters on the ballot 
forms and the registration and certification statements be amended and 
clarified to: (1) Clarify the difference between voting as an 
individual producer and voting as a representative of a corporation or 
other business entity; (2) clarify that contract growers are not 
eligible to vote; (3) clarify eligibility requirements; and (4) 
strengthen the language in the certification statement.
    The Department finds that these suggestions have merit and these 
forms have been revised to incorporate each of these suggestions. In 
addition, there will be handouts given to voters at the county FSA 
offices for easy reference on eligibility, challenges, and appeals.
    One commenter recommended that there needed to be instructions on 
how to complete the county blank on the registration forms as it is 
confusing because the form did not indicate what county a voter is 
supposed to enter, i.e., county of residence, county voting in, etc. 
The Department upon further review finds that county has little 
significance on the form and, therefore the requirement for providing 
county, has been deleted from this final rule and the forms for the 
registration and certification of voters.
    Some commenters suggested that the In-Person Voter Registration 
List (Form LS-75) be amended to provide the address of the voter. They 
assert that in the event that multiple producers with the same last 
name are voting, having the address would facilitate the challenge 
process by helping to distinguish between persons with the same last 
name. The Department agrees. Recording of the voter's address in 
addition to his or her name on Form LS-75 would help distinguish 
between producers having the same last name for purposes of challenging 
voters. This suggestion is adopted. The Department is also requiring 
that the address of a voting business entity be added to Form LS-75.

Section 1230.628  Registration and Voting Procedures for Producers

    Many commenters registered opinions on both sides of the issue of 
whether producers should be required to provide documentation of 
eligibility to vote. The proposed rule did not require documentation to 
vote but provided for certification of eligibility and a challenge 
process. Many commenters suggested that an up-front documentation 
requirement would eliminate time-consuming challenges, give more 
integrity to the process, and better ensure equal treatment among all 
voters. They assert that large numbers of challenges are likely and 
that resolution of the challenges would be much more cumbersome and 
time consuming than requiring documentation up-front. Other commenters 
were opposed to up-front documentation of eligibility and supported the 
challenge process. These commenters believe that many eligible voters 
would not vote if required to provide documentation of eligibility up-
front and believe that the challenge procedures would adequately 
protect the integrity of the process.
    The Department has carefully considered the pros and cons of up-
front documentation. The Department believes that requiring a person 
voting in this referendum to sign a certification statement attesting 
to the fact that they are a producer and that they comply with the 
eligibility requirement when they vote coupled with having to provide 
documentation to prove eligibility as a producer if challenged protects 
the integrity of the voting process. This suggestion is not adopted.
    One commenter recommended that the word ``on-site'' be added to the 
last sentence in Sec. 1230.628(a)(2) to clarify that in-person voters 
must complete the voting procedure before leaving the FSA county 
office. The proposed wording is consistent with the intent of the 
section and provides clarification. Therefore, the recommendation has 
been adopted and incorporated in the language of this section in the 
final rule.
    One commenter recommended that a procedure be incorporated in this 
final rule to allow producers to obtain a clean package of voting 
materials if they spoiled a ballot by merely returning the initial 
package received whether it was received in-person or by mail. The In-
person Ballot, the Absentee Ballot, and the Importer Mail Ballot only 
require that a person check ``yes'' or ``no.'' The ballot portion of 
the forms shown in the appendix in the proposed rule have been 
redesigned and the ballot question simplified. The Department believes 
that this redesign and simplification will make it easier for producers 
to clearly mark their choice on the ballot. Accordingly, this 
suggestion is not adopted.
    Some commenters recommended that changes to Sec. 1230.628(b)(3) 
should include the actual dates ballots and registration forms could be 
requested rather than the term ``during a specified time period.'' When 
the Department published the proposed rule, the dates that the 
referendum would be held had not been decided. Consequently, actual 
dates that ballots and registration forms could be requested were not 
included in the proposed rule. However, the Department has established 
the date for the referendum and other dates associated with the 
referendum and has included these dates in appropriate sections in this 
final rule and on the registration and ballot forms.
    One commenter recommended that language confirm that the absentee 
ballot materials could be picked up in-person at county FSA offices as 
well as received by mail upon request. Section 1230.628(b)(2) 
registration and voting procedures states in part ``* * * he or she 
[the producer] may request an absentee voting package by telephone, by 
mail, by facsimile, or pick it up in-person from the county FSA office 
* * *'' The Department finds the present language clearly states the 
ways in which producers can obtain absentee ballots, including by mail 
or by picking them up in-person. For this reason, this suggestion is 
not adopted.
    One commenter recommended that Sec. 1230.628(b)(6) be amended to 
stipulate that the county FSA office has responsibility to check that 
no absentee ballot is returned that was not duly requested and logged 
on the Absentee Voter Request List (Form LS-74). The Department finds 
no need to include such language in this section as this requirement is 
covered in Sec. 1230.633 canvassing ballots and is in the instructions 
to FSA county offices.
    Some commenters recommended that Sec. 1230.628(b)(7) be clarified 
to specify the deadline for receipt of absentee ballots delivered in-
person. This suggestion has merit and is included in the final rule in 
Sec. 1230.628(b)(6) for clarity.

Section 1230.629  Registration and Voting Procedures for Importers

    Some commenters recommended that the period for importer voting be 
the same as the total period for producer voting including absentee and 
in-person voting. This was the intent of the proposed rule and this 
final rule emphasizes that the same 35-day voting

[[Page 43506]]

period is provided for both producer and importer voting.
    One commenter recommended that importers' votes should be weighted 
to equal the percent of total assessment collections attributed to 
importers. There is no provision in the Act that permits weighted 
voting based on the amount of annual assessment. Eligibility to vote is 
based on owning and selling one or more hogs or pigs or importing hogs, 
pigs, pork, or pork products during the representative period and each 
eligible individual and each eligible business entity is entitled to 
cast one vote.
    Consistent with the requirements of the Act, the results of the 
referendum will be determined by a majority of producers and importers 
casting valid ballots. Thus, the recommendation for weighted voting 
based on the level of contributions to the Pork Checkoff Program is not 
adopted.
    Several commenters requested that ballots be available if requested 
by telephone by producers or importers. The Department has determined 
that producers and importers can request ballot materials by telephone. 
Section 1230.628(b) and (c) of the final rule have been amended to 
provide for producers to request absentee voting materials by telephone 
and for importers to request mail ballots by telephone.

Section 1230.630  List of Registered Voters

    One commenter recommended that the Importer Ballot Request Lists 
(Form LS-77) be posted for public inspection just as the producer 
absentee and in-person lists are posted and that there be a provision 
for the challenge of importers.
    Unlike for producer voting, documentation of an individual 
importer's or importer entities' eligibility to vote is required to 
obtain a ballot package. FSA employees will maintain an Importer Ballot 
Request List and will check the returned voting materials against the 
list. FSA officials and AMS officials will review the U.S. Custom Form 
7501 to ascertain that importers and importer entities are eligible to 
vote. The Department concludes there is no need for posting the names 
of importers or importer entities who have been declared eligible to 
vote.
    Several commenters recommended that only producers who actually 
vote be subject to challenge and that absentee voters' names be posted 
as their absentee ballots are received. In Sec. 1230.631(c) the 
language of the proposed and final rules clearly states: ``Absentee 
ballots have to be received in the county FSA office before a 
producer's vote can be challenged.'' The Absentee Voter Request List 
will contain the name and address of producers and producer entities 
requesting absentee ballots. The date that each absentee ballot is 
received in the county FSA office will be entered for each name. The 
list will be posted in the county FSA office beginning on the first day 
of the in-person voting period. Producers who requested absentee 
ballots have until close of business on the 5th business day after the 
end of the in-person voting period, for absentee ballots mailed on the 
last day of the in-person voting period to arrive at FSA county offices 
by mail. The names of those producers who do not have a date of receipt 
of their ballot by their name will remain on the list for that 5-day 
period. To do otherwise, would necessitate county FSA employees 
maintaining separate lists that will increase their workload and 
increase the chance for errors. In Sec. 1230.630(a) the language of the 
proposed and final rules clearly states: ``Absentee ballots arriving 
after the Absentee Voter Request List is first posted will be recorded 
on the Absentee Voter Request List each day.'' The Department believes 
this final rule adequately addresses the posting of the Absentee Voter 
Request List. These two suggestions are not adopted.

Section 1230.631  Challenge of Voters

    Some commenters suggested that the challenge period should be 
extended from the proposed 6 business days to 7 or 10 business days 
after the last day of in-person voting. They contend that the proposed 
challenge period is unreasonably short because absentee ballots may not 
arrive at the county FSA office until 5 business days after the close 
of voting resulting in only 1 day to challenge the ballots of absentee 
voters. The Department has determined that this suggestion has merit 
and will facilitate a person's review of the Absentee Voter Request 
List. Accordingly, Sec. 1280.631 has been revised to show the challenge 
period has been extended from 6 to 7 business days after the last day 
of in-person voting. This coupled with the 3-day in-person voting 
period will provide a total of 10 days to review these two voter lists 
and submit challenges.
    One commenter suggested that county offices should provide a 
standard challenge form for a person to complete when challenging a 
producer's eligibility to vote. The Department does not agree. The 
information required for challenging a producer is minimal and each 
challenge of a voter's ballot must be made on a separate sheet of paper 
and signed. Thus, the Department believes that a form is not necessary. 
This suggestion has not been adopted.
    One commenter recommended that a person challenging a ballot should 
be required to state in-writing specific reasons why he or she believes 
that the person challenged does not meet the eligibility requirements 
to vote. They further recommended that a person challenging a ballot 
should be required to sign a certification statement that he or she has 
good reason for challenging the voter. While the Department believes 
that challengers should have a good reason for challenging a person's 
eligibility to vote and discourages frivolous challenges, the 
Department does not believe it is necessary to require challengers to 
give specific reasons for challenges or to sign a certification 
statement that he or she has good reason for challenging the voter. 
Therefore, the suggestion is not adopted.
    Some commenters suggested that the final rule should make it clear 
that the identity of the challenger should remain confidential. The 
Department agrees. Therefore, this suggestion is adopted and 
appropriate language has been added to Sec. 1230.631 of this final 
rule.
    Some commenters recommended that all challenged producers be 
required to provide documentation of eligibility. They assert that this 
is necessary to ensure valid proof of eligibility and equitable 
treatment of all persons challenged. Other commenters recommended that 
the FSA County Committee use its own knowledge, records, and other 
available information to resolve challenges, whenever possible, to 
minimize the burden on challenged producers. The Department agrees that 
requiring all voters whose ballots have been challenged to provide 
documentation that they have sold one or more hogs will provide for 
increased uniformity and fairness in the resolution of challenges.
    To incorporate this revision into the challenge resolution process, 
a new subsection (d) notification of challenges has been added to 
Sec. 1230.631 challenge of votes. Notifying all challenged producers 
that they have been challenged and providing time for producers to 
provide documentation of eligibility once notified, will add 10 
business days to the challenge resolution process, but it will be fair 
to all challenged producers. As a result of the 10 additional business 
day change and the additional day for challenges discussed earlier, a 
determination of eligibility will now be made no later than 22 business 
days after the last day of in-person voting rather than the 11

[[Page 43507]]

business days after the last day of in-person voting permitted in the 
proposed rule.
    The proposed rule provided for the FSA State committees to resolve 
appeals. After the proposed rule was published, AMS and FSA agreed that 
appeals of the FSA County Committee's determinations would be faxed to 
the Administrator, AMS, for a final determination of eligibility rather 
than be sent to the State committees. When appeals of the FSA County 
Committee's determinations are submitted to the Administrator of AMS, 
the Administrator will review the challenge to determine whether the 
FSA County Committee conducted a full and impartial review of the 
information presented to correctly resolve the original challenge. This 
change was made to provide increased consistency in the determination 
of appeals and to minimize the workload and costs incurred at the FSA 
State offices. Section 1280.631 of this final rule has been modified 
accordingly.
    One commenter suggested that the referendum rule should provide 
objective standards for deciding challenges including documentation. 
Documentation is being required in the final rule to resolve all 
challenges and examples of the types of documentation that will be 
acceptable are included in the final rule, posted in county FSA 
offices, and listed in FSA's instructions to county offices. Thus, 
changes have been made to incorporate the concepts proposed in this 
recommendation.

Section 1230.633  Canvassing Ballots

    One commenter recommended that by the time of in-person voting, FSA 
county offices should have posted the date, place, and time that 
ballots will be tabulated so that interested parties can observe. This 
commenter also suggested that the results be made public at the time of 
counting and be reportable to interested parties.
    The Department will allow interested parties to observe the 
counting of ballots. The ballots will be counted on the day following 
the end of the challenge resolution process which will be November 29, 
2000. Section 1230.633 has been revised to include the date the ballots 
will be counted and indicate during normal business hours. The date and 
time the county FSA offices will count the ballots will be posted. 
However, to minimize speculation on the results of the referendum, the 
county level and State level results will not be made available until 
the Secretary has announced the results of the referendum.

Section 1230.634  FSA County Report

    One commenter recommended that time specific reporting dates for 
reporting county office results should be included in the final rule. 
The Department finds no compelling reason to have such requirements in 
the final rule. The results will be reported from the county level, to 
the State level, and to the national level in a timely manner and in 
accordance with FSA instructions, once all challenges are resolved. 
This suggestion is not adopted.

Section 1230.635  FSA State Office Report

    One commenter recommended that specific reporting dates for 
reporting State results as well as a report of results on a county-by-
county basis should be included in the final rule. The Department finds 
no compelling reason to have such requirements in the final rule. The 
results will be reported from the State level to the national level in 
a timely manner in accordance with FSA instructions once all challenges 
are resolved. This suggestion is not adopted.

Section 1230.636  Results of the Referendum

    Some commenters recommended that results be announced within 2 
weeks of the vote. With 7 business days after the in-person voting 
period provided for challenges and with a lengthy challenge resolution 
process including provisions for an appeal to the Administrator of AMS, 
the results of the referendum will not be available within the time 
period recommended. This suggestion is not adopted.

Section 1230.637  Disposition of Ballots and Records

    One commenter recommended that AMS maintain accurate records of the 
vote that would be made available in the event the vote is challenged. 
The proposed and final rule provide that the FSA County Executive 
Director maintain all referendum records for at least 12 months and 
longer if notified to do so by the Administrator of FSA. Any challenge 
of referendum results would likely occur within less than 12 months of 
the referendum. No change in the rule appears to be necessary to 
accommodate this suggestion.

General Comments

    Some commenters recommended a section be added in the final rule to 
cover false statements. They recommended the following language:
    False Statements--Persons who participate in the referendum who 
knowingly or willfully make false statements on documents related to 
the referendum may be fined up to $10,000, imprisoned up to 5 years or 
both penalties applied (19 U.S.C. 1001 et seq.). Notice of this penalty 
shall be displayed at the FSA polling site and on related documents for 
registration and voting.
    The Department has determined it is not necessary to have this 
language in the final rule. Language concerning the penalties for 
making false statements is displayed prominently on the voting forms 
and will be posted at the FSA polling sites. Providing information 
about penalties for false statements in this manner is deemed to be 
sufficient and so the recommendation to incorporate it in the final 
rule is not adopted.
    One commenter recommended that procedures be added to prevent a 
company with multiple production locations from voting in multiple 
counties. The voting materials clearly indicate that only an authorized 
individual can cast the one vote a business entity is entitled to cast. 
In addition, as indicated above the penalty for false statements is 
clearly displayed in conjunction with the producers' certification of 
eligibility to vote. Thus, no changes have been made as a result of 
this comment.
    Pursuant to the provisions in 5 U.S.C. 553 et seq., good cause 
exists for not postponing the effective date of this action until 30 
days after publication in the Federal Register because postponing the 
final rule until 30 days after publication would make the rule 
effective after the date pork producers can request absentee ballots.

Referendum Order

    It is hereby directed that a referendum be 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 the Order will continue. Producer in-person voting in the 
referendum will be on September 19, 20, 21, 2000, at county FSA 
offices. Producer absentee ballots will be available at those offices 
from August 18, 2000, through September 18, 2000. Importers can obtain 
ballots from the FSA headquarters office in Washington, DC, from August 
18, 2000, through September 21, 2000. The representative period to 
establish voter eligibility will be the period from August 18, 1999, 
through August 17, 2000.
    In summary, this final rule adopts provisions of the April 18, 
2000, proposed rule with the changes

[[Page 43508]]

discussed herein and with other minor changes made for purposes of 
clarity and accuracy.

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.


    2. A new subpart E is added to read as follows:

Subpart E--Procedures for the Conduct of Referendum

Definitions

Sec.
1230.601   Act.
1230.602   Administrator, AMS.
1230.603   Administrator, FSA.
1230.604   Department.
1230.605   Farm Service Agency.
1230.606   Farm Service Agency County Committee.
1230.607   Farm Service Agency County Executive Director.
1230.608   Imported porcine animals, pork, and pork products.
1230.609   Importer.
1230.610   Order.
1230.611   Porcine animal.
1230.612   Person.
1230.613   Pork.
1230.614   Pork product.
1230.615   Producer.
1230.616   Public notice.
1230.617   Referendum.
1230.618   Representative period.
1230.619   Secretary.
1230.620   State.
1230.621   Voting period.

Referendum

1230.622   General.
1230.623   Supervision of referendum.
1230.624   Eligibility.
1230.625   Time and place of registration and voting.
1230.626   Facilities for registering and voting.
1230.627   Registration form and ballot.
1230.628   Registration and voting procedures for producers.
1230.629   Registration and voting procedures for importers.
1230.630   List of registered voters.
1230.631   Challenge of votes.
1230.632   Receiving ballots.
1230.633   Canvassing ballots.
1230.634   FSA county office report.
1230.635   FSA State office report.
1230.636   Results of the referendum.
1230.637   Disposition of ballots and records.
1230.638   Instructions and forms.

Subpart E--Procedures for the Conduct of Referendum

Definitions


Sec. 1230.601  Act.

    The term Act means the Pork Promotion, Research, and Consumer 
Information Act of 1985 (7 U.S.C. 4801-4819) and any amendments 
thereto.


Sec. 1230.602  Administrator, AMS.

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


Sec. 1230.603  Administrator, FSA.

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


Sec. 1230.604  Department.

    The term Department means the United States Department of 
Agriculture.


Sec. 1280.605  Farm Service Agency.

    The term Farm Service Agency also referred to as ``FSA'' means the 
Farm Service Agency of the Department.


Sec. 1230.606  Farm Service Agency County Committee.

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


Sec. 1230.607  Farm Service Agency County Executive Director.

    The term Farm Service Agency County Executive Director also 
referred to as the CED, means the person employed by the FSA County 
Committee to execute the policies of the FSA County Committee and be 
responsible for the day-to-day operations of the FSA county office or 
the person acting in such capacity.


Sec. 1230.608  Imported porcine animals, pork, and pork products.

    The term Imported porcine animals, pork, and pork products means 
those animals, pork, or pork products that are imported into the United 
States and subject to assessment under the harmonized tariff schedule 
numbers identified in Sec. 1230.110 of the regulations.


Sec. 1230.609  Importer.

    The term Importer means a person who imports porcine animals, pork, 
or pork products into the United States.


Sec. 1280.610  Order.

    The term Order means the Pork Promotion, Research, and Consumer 
Information Order.


Sec. 1230.611  Porcine animal.

    The term Porcine animal means a swine, that is raised:
    (a) As a feeder pig, that is, a young pig sold to another person to 
be finished over a period of more than 1 month for slaughtering;
    (b) For breeding purposes as seedstock and included in the breeding 
herd; and
    (c) As a market hog, slaughtered by the producer or sold to be 
slaughtered, usually within 1 month of such transfer.


Sec. 1230.612  Person.

    The term Person means any individual, group of individuals, 
partnership, corporation, association, cooperative, or any other legal 
entity.


Sec. 1230.613  Pork.

    The term Pork means the flesh of a porcine animal.


Sec. 1230.614  Pork product.

    The term Pork product means an edible product processed in whole or 
in part from pork.


Sec. 1230.615  Producer.

    The term Producer means a person who produces porcine animals in 
the United States for sale in commerce.


Sec. 1230.616  Public notice.

    The term Public notice means information regarding a referendum 
that would be provided by the Secretary, such as press releases, 
newspapers, electronic media, FSA county newsletters, and the like. 
Such notice would contain the referendum date and location, 
registration and voting requirements, rules regarding absentee voting, 
and other pertinent information.


Sec. 1230.617  Referendum.

    The term Referendum means any referendum to be conducted by the 
Secretary pursuant to the Act whereby persons who have been producers 
and importers during a representative period would be given the 
opportunity to vote to determine whether producers and importers favor 
continuation of the Order.

[[Page 43509]]

Sec. 1230.618  Representative period.

    The term Representative period means the 12-consecutive months 
prior to the first day of absentee and importer voting in the 
referendum. The representative period for this referendum is August 18, 
1999, through August 17, 2000.


Sec. 1230.619  Secretary.

    The term Secretary means the Secretary of Agriculture of the United 
States or any other officer or employee of the Department to whom there 
has been delegated or to whom authority may hereafter be delegated to 
act in the Secretary's stead.


Sec. 1230.620  State.

    The term State means each of the 50 States.


Sec. 1230.621  Voting period.

    The term Voting period means the 3-consecutive business day period 
for in-person voting.

Referendum


Sec. 1230.622  General.

    (a) A referendum to determine whether eligible pork producers and 
importers favor continuation of the Pork Checkoff Program will be 
conducted in accordance with this subpart.
    (b) The Pork Checkoff Program will be terminated only if a majority 
of producers and importers voting in the referendum favor such 
termination.
    (c) The referendum will be conducted at the county FSA offices for 
producers and at FSA headquarters office in Washington, DC, for 
importers.


Sec. 1230.623  Supervision of referendum.

    The Administrator, AMS, will be responsible for conducting the 
referendum in accordance with this subpart.


Sec. 1230.624  Eligibility.

    (a) Eligible producers and importers. Persons eligible to register 
and vote in the referendum include:
    (1) Individual Producers. Each individual that owns and sells at 
least one hog or pig during the representative period and does so in 
his or her own name is entitled to cast one ballot.
    (2) Producers who are a corporation or other entity. Each 
corporation or other entity that owns and sells at least one hog or pig 
during the representative period is entitled to cast one ballot. A 
group of individuals, such as members of a family, a partnership, 
owners of community property, or a corporation engaged in the 
production of hogs and pigs will be entitled to only one vote; 
provided, however, that any member of a group may register to vote as a 
producer if he or she sells at least one hog or pig in his or her own 
name.
    (3) Importers. Each importer who imports hogs, pigs, pork, or pork 
products during the representative period is entitled to cast one 
ballot. A group of individuals, such as members of a family, a 
partnership, or a corporation engaged in the importation of hogs, pigs, 
pork, or pork products will be entitled to only one vote; provided, 
however, that any member of a group may register to vote as a importer 
if he or she imports hogs, pigs, pork, or pork products in his or her 
own name.
    (b) Proxy registration and voting. Proxy registration and voting is 
not authorized, except that an officer or employee of a corporate 
producer or importer, or any guardian, administrator, executor, or 
trustee of a producer's or importer's estate, or an authorized 
representative of any eligible producer or importer (other than an 
individual producer or importer), such as a corporation or partnership, 
may register and cast a ballot on behalf of that entity. Any individual 
who registers to vote in the referendum on behalf of any eligible 
producer or importer corporation or other entity must certify that he 
or she is authorized to take such action.


Sec. 1230.625  Time and place of registration and voting.

    (a) Producers. The referendum shall be held for 3-consecutive days 
on September 19, 20, 21, 2000. Eligible producers shall register and 
vote on-site following the procedures in 1230.628. Producers shall 
register and vote during the normal business hours of each county FSA 
office or request absentee ballots from the county FSA offices by mail, 
telephone, or facsimile, or pick up an absentee ballot in-person. The 
absentee voting period shall be from August 18, 2000, through September 
21, 2000.
    (b) Importers. Importer voting shall take place during the same 
time period provided producers for in-person and absentee voting in the 
referendum. The referendum shall be conducted by mail ballot by the FSA 
headquarters office in Washington, DC, between August 18, 2000, through 
September 21, 2000.


Sec. 1230.626  Facilities for registering and voting.

    (a) Producers. Each county FSA office shall provide:
    (1) Adequate facilities and space to permit producers of hogs and 
pigs to register and to mark their ballots in secret;
    (2) A sealed box or other designated receptacle for registration 
forms and ballots that is kept under observation during office hours 
and secured at all times; and
    (3) Copies of the Order for review.
    (b) Absentee ballots. Each FSA county office shall provide each 
producer an absentee ballot package upon request. Producers can pick up 
an absentee ballot in-person or request it by telephone, mail, or 
facsimile. The FSA county office will provide absentee ballots by mail 
for all requests received by telephone, mail, or facsimile. The FSA 
county office shall record date of receipt of the ``Pork Referendum'' 
envelope containing the completed absentee ballot on the Absentee Voter 
Request List and place it unopened in a secure ballot box.
    (c) Importers. The FSA headquarters office in Washington, DC, will:
    (1) Mail ballot packages to eligible importers upon request;
    (2) Have a sealed box or other designated receptacle for 
registration forms and ballots that is kept under observation during 
office hours and secured at all times; and
    (3) Mail copies of the Order to importers if requested by mail, 
telephone, or facsimile. Importers can also pickup a ballot in-person.


Sec. 1230.627  Registration form and ballot.

    (a) Producers. (1) A ballot (Form LS-72) and combined registration 
and certification form (Form LS-72-2) will be used for voting in-
person. The information required on the registration form includes 
name, address, and telephone number. Form LS-72-2 also contains the 
certification statement referenced in Sec. 1230.628. The ballot will 
require producers to check a ``yes'' or ``no.''
    (2) A combined registration and voting form (Form LS-73) will be 
used for absentee voting. The information required on this combined 
registration and voting form includes name, address, and telephone 
number. Form LS-73 also contains the certification statement referenced 
in Sec. 1230.628. The ballot will require producers to check ``yes'' or 
``no.''
    (b) Importers. A combined registration and ballot form (Form LS-76) 
will be used for importer voting. The information required on this 
combined registration and ballot form includes name, address, and 
telephone number. Form LS-76 also contains the certification statement 
referenced in Sec. 1230.629. The ballot will require importers to check 
``yes'' or ``no.''

[[Page 43510]]

Sec. 1230.628  Registration and voting procedures for producers.

    (a) Registering and voting in-person. (1) Each eligible producer 
who wants to vote whether as an individual or as a representative of a 
corporation or other entity shall register during the 3-day in-person 
voting period at the county FSA office where FSA maintains and 
processes the individual producer's or corporation's or other entities' 
administrative farm records. A producer voting as an individual or as a 
representative of a corporation or other entity not participating in 
FSA programs, shall register and vote in the county FSA office serving 
the county where the individual producer or corporation or other entity 
owns hogs or pigs. An individual or an authorized representative of a 
corporation or other entity who owns hogs or pigs in more than one 
county shall register and vote in the FSA county office where the 
individual or corporation or other entity does most of their business. 
Producers shall be required to record on the In-Person Voter 
Registration List (Form LS-75) their name and address, and if 
applicable, the name and address of the corporation or other entity 
they represent before they can receive a registration form and ballot. 
To register, producers shall complete the in-person registration and 
certification form (Form LS-72-2) and certify that:
    (i) They or the corporation or other entity they represent were 
producers during the specified representative period; and
    (ii) The person voting on behalf of a corporation or other entity 
referred to in Sec. 1230.612 is authorized to do so.
    (2) Each eligible producer who has not voted by means of an 
absentee ballot may cast a ballot in-person at the location and time 
set forth in Sec. 1230.625 and on September 19, 20, 21, 2000. Eligible 
producers who record their names and addresses and, if applicable, the 
name and address of the corporation or other entity they are authorized 
to represent on the In-Person Voter Registration List (Form LS-75) will 
receive a combined registration and certification form printed on an 
envelope (Form LS-72-2) and a ballot (Form LS-72). Producers will enter 
the information requested on the combined registration and 
certification form/envelope (Form LS-72-2) as indicated above. 
Producers will then mark their ballots to indicate ``yes'' or ``no.'' 
Producers will place their completed ballots in an envelope marked 
``Pork Ballot'' (Form LS-72-1), seal and place it in the completed and 
signed registration form/envelope marked ``Pork Referendum'' (Form LS-
72-2), seal that envelope and personally place it in a box marked 
``Ballot Box'' or other designated receptacle. Voting will be conducted 
on-site under the supervision of the county FSA County Executive 
Director (CED).
    (b) Absentee voting. (1) Eligible producers who are unable to vote 
in-person may request an absentee voting package consisting of a 
combined registration and absentee ballot form (Form LS-73) and two 
envelopes--one marked ``Pork Ballot'' (Form LS-72-1) and the other 
marked ``Pork Referendum'' (Form LS-73-1) by mail, telephone, 
facsimile, or by picking up one in-person from the county FSA office 
where FSA maintains and processes the producer's administrative farm 
records.
    (2) If a producer, whether requesting an absentee ballot as an 
individual or as an authorized representative of a corporation or other 
entity that does not participate in FSA programs, and therefore does 
not have administrative records at a county FSA office, he or she may 
request an absentee voting package by telephone, mail, facsimile, or 
pick it up in-person from the county FSA office serving the county 
where the individual or corporation or other entity owns hogs or pigs. 
An individual or authorized representative of a corporation or other 
entity, who owns hogs or pigs in more than one county can request an 
absentee ballot from the county FSA office where the producer or 
corporation or other entity does most of their business.
    (3) An absentee voting package will be mailed to producers by the 
FSA CED to the address provided by the prospective voter. Only one 
absentee registration form and absentee ballot will be provided to each 
eligible producer. The absentee ballots and registration forms may be 
requested during August 1, 2000, through September 18, 2000.
    (4) The county FSA office will enter on the Absentee Voter Request 
List (Form LS-74) the name and address of the individual or corporation 
or other entity requesting an absentee ballot and the date the forms 
were requested.
    (5) To register, eligible producers shall complete and sign the 
combined registration and certification form and absentee ballot (Form 
LS-73) and certify that:
    (i) They or the corporation or other entity they represent were 
producers during the specified representative period;
    (ii) If voting on behalf of a corporation or other entity referred 
to in Sec. 1230.612, they are authorized to do so.
    (6) A producer, after completing the absentee voter registration 
form and marking the ballot, shall remove the ballot portion of the 
combined registration and absentee ballot form (Form LS-73) and seal 
the completed ballot in a separate envelope marked ``Pork Ballot'' 
(Form LS-72-1) and place the sealed ``Pork Ballot'' envelope in the 
mailing envelope marked ``Pork Referendum'' (Form LS-73-1) along with 
the signed registration form. Producers are required to print their 
name and address on the mailing envelope marked ``Pork Referendum'' 
(Form LS-73-1), and mail or hand deliver it to the county FSA office 
from which the producer or corporation or other entity obtained the 
absentee voting package. Absentee ballots returned in-person must be 
received by close of business on the last day of the in-person voting 
period, which is September 21, 2000. Ballots received after that date 
will be counted as invalid ballots.
    (7) Absentee ballots returned by mail have to be postmarked with a 
date not later than the last day of the in-person voting period, which 
is September 21, 2000, and be received in the county FSA office by the 
close of business on the 5th business day after the last day of the in-
person voting period, which is September 28, 2000. Absentee ballots 
received after that date will be counted as invalid ballots. Upon 
receiving the ``Pork Referendum'' envelope (Form LS-73-1) containing 
the registration form and ballot, the county FSA CED will record the 
date the ``Pork Referendum'' envelope (Form LS-73-1) containing the 
absentee ballot was received in the FSA county office on the Absentee 
Voter Request List (Form LS-74) opposite the name of the producer 
voting absentee. The county FSA CED will place it, unopened, in a 
secure ballot box.


Sec. 1230.629  Registration and voting procedures for importers.

    (a) Individual importers, corporations, or other entities can 
obtain the registration and certification forms, ballots, and envelopes 
by mail from the following address: USDA, FSA, Operations Review and 
Analysis Staff, Attention: William A. Brown, P.O. Box 44366, 
Washington, DC 20026-4366. Importers may pick up the voting materials 
in-person at USDA, FSA, Operations Review and Analysis Staff, Room 
2741, South Agriculture Building, 1400 Independence Avenue, SW., 
Washington, DC. Importers may also request voting materials by 
facsimile or telephone. The facsimile number is 202/690-3354. The 
telephone number is 202/720-6833.
    (b) When requesting a ballot, eligible importers will be required 
to submit a

[[Page 43511]]

U.S. Customs Service Form 7501 showing that they paid the pork 
assessment during the representative period.
    (c) Upon receipt of a request and U.S. Customs Service Form 7501, 
the voting materials will be mailed to importers by the FSA 
headquarters office in Washington, DC, to the address provided by the 
importer or importer corporation or other entity. Only one mail ballot 
and registration form will be provided to each eligible importer. The 
forms must be requested during August 1, 2000, through September 21, 
2000.
    (d) The FSA headquarters office in Washington, DC, will enter on 
the Importer Ballot Request List (Form LS-77) the name and address of 
the importer requesting a ballot and the date of the request.
    (e) To register, eligible importers will complete and sign the 
combined registration form and ballot (Form LS-76) and certify that:
    (1) To the best of their knowledge and belief the information 
provided on the form is true and accurate;
    (2) If voting on behalf of an importer corporation or other entity 
referred to in Sec. 1230.612, they are authorized to do so.
    (f) Eligible importers, after completing the combined ballot and 
registration form, will remove the ballot portion of the combined 
registration and ballot form (Form LS-76) and seal the completed ballot 
in a separate envelope marked ``Pork Ballot'' (Form LS-72-1) and place 
the sealed ``Pork Ballot'' envelope in the mailing envelope marked 
``Pork Referendum'' (Form LS-73-1) along with the signed registration 
form. Importers, corporations, or other entities must legibly print 
their name and address on the mailing envelope marked ``Pork 
Referendum'' (Form LS-73-1), and mail the envelope to the FSA 
headquarters office at the following address: USDA, FSA, Operations 
Review and Analysis Staff, Attention: William A. Brown, Post Office Box 
44366, Washington, DC 20026-4366. Importers may hand deliver the ``Pork 
Referendum'' envelope to USDA, FSA, Operations Review and Analysis 
Staff, Room 2741, South Agriculture Building, 1400 Independence Avenue, 
SW., Washington, DC.
    (g) The ``Pork Referendum'' envelope (Form LS-73-1) containing the 
registration form and ballot has to be postmarked with a date not later 
than the last day of the in-person voting period, which is September 
21, 2000, and be received in the FSA headquarters office by the close 
of business on the 5th business day after the date of the last day of 
the in-person voting period, which is September 28, 2000. If delivered 
in-person, it has to reach headquarters office not later than the last 
day of the in-person voting period. Ballots received after that date 
will be counted as invalid ballots. Upon receiving the ``Pork 
Referendum'' envelope (Form LS-73-1) containing the registration form 
and ballot, an FSA employee will record the date the ``Pork 
Referendum'' envelope containing the completed ballot was received in 
the FSA headquarters office in Washington, DC, on the Importer Ballot 
Request List (Form LS-77) directly opposite the voting importer's name. 
The FSA employee will place the ``Pork Referendum'' envelope, unopened, 
in a secure ballot box.


Sec. 1230.630  List of registered voters.

    (a) Producers. The In-Person Voter Registration List (Form LS-75) 
and the Absentee Voter Request List (Form LS-74) will be available for 
inspection during the 3 days of the voting period and during the 7 
business days following the date of the last day of the voting period 
at the county FSA office. The lists will be posted during regular 
office hours in a conspicuous public location at the FSA county office. 
The Absentee and In-Person Voter Registration Lists will be updated and 
posted daily. The complete In-Person Voter Request List (Form LS-75) 
will be posted in the FSA county office on the 1st business day after 
the date of the last day of the voting period. The complete Absentee 
Voter Request List (Form LS-74) will be posted in the FSA county office 
on the 6th business day after the date of the last day of the voting 
period.
    (b) Importers. The Importer Ballot Request List (Form LS-77) will 
be maintained by the FSA headquarters office in Washington, DC, and not 
posted.


Sec. 1230.631  Challenge of votes.

    (a) Challenge period. During the dates of the 3-consecutive day 
voting period and the 7 business days following the voting period, the 
ballots of producers may be challenged at the FSA county office.
    (b) Who can challenge. Any person can challenge a producer's vote. 
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 producer having cast an in-person 
ballot or an absentee ballot whose name is posted on the In-Person 
Voter Registration List (Form LS-75) or the Absentee Voter Request List 
(Form LS-74) can be challenged. Absentee ballots have to be received in 
the FSA county office before a producer's vote can be challenged. There 
is no challenge process for importers.
    (d) Notification of challenges. The FSA County Committee or its 
representative, acting on behalf the Administrator, AMS, will notify 
challenged producers as soon as practicable, but no later than 12 
business days after the date of the last day of the in-person voting 
period. FSA 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 the FSA county offices within 5 
business days of notification and not later than 17 business days after 
the date of the last day of the voting period.
    (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 22 business days after the date of the 
last day of the in-person voting period of its decision.
    (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 
within 5 business days after the date of receipt of the letter of 
notification of ineligibility, but not later than November 2, 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 county office or 
as soon as practical thereafter.
    (h) An appeal will be determined by the Administrator, AMS, as soon 
as practical, but in all cases not later than the 45th business day 
after the date of

[[Page 43512]]

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.


Sec. 1230.632  Receiving ballots.

    (a) Producers. A ballot shall be considered to be received on time 
if:
    (1) It was cast in-person in the county FSA office prior to the 
close of business on the date of the last day of the in-person voting 
period; or
    (2) It was cast as an absentee ballot, having a postmarked date not 
later than the last day of the in-person voting period and was received 
in the county FSA office not later than the close of business, 5 
business days after the last day of the in-person voting period.
    (b) Importers. A ballot shall be considered to be received on time 
if it had a postmarked date not later than the date of the last day of 
the in-person voting period and was received in the FSA headquarters 
office in Washington, DC, not later than the close of business, 5 
business days after the last day of the in-person voting period.


Sec. 1230.633  Canvassing ballots.

    (a) Producers. (1) Counting the ballots. Under the supervision of 
FSA CED, acting on behalf of the Administrator, AMS, the in-person 
registration and certification form envelopes (Form LS-72-2) and the 
absentee ``Pork Referendum'' envelopes (Form LS-73-1) containing the 
``Pork Ballot'' envelopes for producer voters will be checked against 
the In-Person Voter Registration List (Form LS-75) and the Absentee 
Voter Request List (Form LS-74), respectively, to determine properly 
registered voters. The ballots of producers voting in-person whose 
names are not on the In-Person Voter Registration List (Form LS-75), 
will be declared invalid. Likewise, the ballots of producers voting 
absentee whose names are not on the Absentee Voter Request List (Form 
LS-74) will be declared invalid. All ballots of challenged producer 
voters declared ineligible and invalid ballots will be kept separate 
from the other ballots and the envelopes containing these ballots will 
not be opened. The valid ballots will be counted on November 29, 2000, 
during regular business hours on the 46th business day after the last 
day of the in-person voting period. FSA county office employees will 
remove the sealed ``Pork Ballot'' envelopes (Form LS-72-1) from the 
registration form envelopes and ``Pork Referendum'' envelopes (absentee 
voting) envelopes of all eligible producer voters and all challenged 
producer voters determined to be eligible. After removing all ``Pork 
Ballot'' envelopes, FSA county employees will shuffle the sealed ``Pork 
Ballot'' envelopes or otherwise mix them up so that ballots cannot be 
matched with producers' names. After shuffling the ``Pork Ballot'' 
envelopes, FSA county employees will open them and count the ballots. 
The ballots will be counted as follows:
    (i) Number of eligible producers casting valid ballots;
    (ii) Number of producers favoring continuation of the Pork Checkoff 
Program;
    (iii) Number of producers favoring termination of the Pork Checkoff 
Program;
    (iv) Number of challenged producer ballots deemed ineligible;
    (v) Number of invalid ballots; and
    (vi) Number of spoiled ballots.
    (2) Invalid ballots. Ballots will be declared invalid if a producer 
voting in-person has failed to print his or her name and address on the 
In-Person Voter Registration List (Form LS-75) or if an absentee 
voter's name and address is not recorded on the Absentee Voter Request 
List (Form LS-74), or the registration form or ballot was incomplete or 
incorrectly completed.
    (3) Spoiled ballots. Ballots will be considered spoiled if they are 
mutilated or marked in such a way that it cannot be determined whether 
the voter is voting ``yes'' or ``no.'' Spoiled ballots shall not be 
considered as approving or disapproving the Pork Checkoff Program, or 
as a ballot cast in the referendum.
    (4) Confidentiality. All ballots shall be confidential and the 
contents of the ballots not divulged except as the Secretary may 
direct. The public may witness the opening of the ballot box and the 
counting of the votes but may not interfere with the process.
    (b) Importers. (1) Counting the ballots. FSA headquarters 
personnel, acting on behalf of the Administrator, AMS, will check the 
registration forms and ballots for all importer voters against the 
Importer Ballot Request List (Form LS-77) to determine properly 
registered voters. The ballots of importers voting whose names are not 
recorded on the Importer Ballot Request List (Form LS-77), will be 
declared invalid. All ballots of importer voters declared invalid will 
be kept separate from the other ballots and the envelopes containing 
these ballots will not be opened. The valid ballots will be counted on 
November 29, 2000, during regular office hours on the 46th business day 
after the date of the last day of the in-person voting period. FSA 
headquarter office employees will remove the sealed ``Pork Ballot'' 
envelope (Form LS-72-1) from the ``Pork Referendum'' envelopes (Form 
LS-73-1) of all eligible importer voters. After removing all ``Pork 
Ballot'' envelopes, FSA headquarter employees will shuffle the sealed 
``Pork Ballot'' envelopes or otherwise mix them up so that ballots 
cannot be matched with importers' names. After shuffling the ``Pork 
Ballot'' envelopes, FSA headquarters employees will open the envelopes 
and count the ballots. The ballots will be counted as follows:
    (i) Number of eligible importers casting valid ballots;
    (ii) Number of importers favoring continuation of the Pork Checkoff 
Program;
    (iii) Number of importers favoring termination of the Pork Checkoff 
Program;
    (iv) Number of importer ballots deemed invalid; and
    (v) Number of spoiled ballots.
    (2) Invalid ballots. Ballots will be declared invalid if an 
importer voter's name was not recorded on the Importer Ballot Request 
List (Form LS-77), or the registration form or ballot was incomplete or 
incorrectly completed.
    (3) Spoiled ballots. Ballots will be considered spoiled if they 
were mutilated or marked in such a way that it cannot be determined 
whether the voter is voting ``yes'' or ``no.'' Spoiled ballots shall 
not be considered as a ballot cast in the referendum.
    (4) Confidentiality. All ballots shall be confidential and the 
contents of the ballots not divulged except as the Secretary may 
direct. The public can witness the opening of the ballot box and the 
counting of the votes but can not interfere with the process.


Sec. 1230.634  FSA county office report.

    The FSA county office will notify the FSA State office of the 
results of the referendum. Each FSA county office will transmit the 
results of the referendum in its county to the FSA State office. Such 
report will include the information listed in Sec. 1230.633. The 
results of the referendum in each county will be made available to the 
public, after the results of the referendum are announced by the 
Secretary. A copy of the report of results will be posted for 30 days 
in the FSA county office in a conspicuous place accessible to the 
public and a copy will be kept on file in the FSA county office for a 
period of at least 12 months after the referendum.

[[Page 43513]]

Sec. 1230.635  FSA State office report.

    Each FSA State office will transmit to the Administrator, FSA, a 
written summary of the results of the referendum received from all FSA 
county offices within the State. The summary shall include the 
information on the referendum results contained in the reports from all 
county offices within each State and be certified by the FSA State 
Executive Director. The FSA State office will maintain a copy of the 
summary where it will be available for public inspection for a period 
of not less than 12 months.


Sec. 1230.636  Results of the referendum.

    (a) The Administrator, FSA, will submit the combined results of the 
FSA State offices' results of the producers' vote and the FSA 
headquarters office results of the importers' vote to the 
Administrator, AMS. The Administrator, AMS, will prepare and submit to 
the Secretary a report of the results of the referendum. The results of 
the referendum will be announced by the Department in an official press 
release and published in the Federal Register. State reports on 
producer balloting, FSA headquarters office report on importer 
balloting, and related papers will be available for public inspection 
in the office of the Marketing Programs Branch, Livestock and Seed 
Program, AMS, USDA, Room 2627, South Agriculture Building, 1400 
Independence Avenue, SW., Washington, DC.
    (b) If the Secretary deems it necessary, the report of producer 
voting results in any State or county or the report of importer voting 
results shall be reexamined and checked by such persons as may be 
designated by the Secretary.


Sec. 1230.637  Disposition of ballots and records.

    (a) Producer ballots and records. Each FSA CED will place in sealed 
containers marked with the identification of the referendum, the voter 
registration list, absentee voter request list, voted ballots, 
challenged registration forms/envelopes, challenged absentee voter 
registration forms, challenged ballots found to be ineligible, invalid 
ballots, spoiled ballots, and county summaries. Such records will be 
placed under lock in a safe place under the custody of the FSA CED for 
a period of not less than 12 months after the referendum. If no notice 
to the contrary is received from the Administrator, FSA, by the end of 
such time, the records shall be destroyed.
    (b) Importer ballots and records. The FSA headquarters office in 
Washington, DC, will deliver the importers' U.S. Customs Service Form 
7501s, the voter registration list, voted ballots, invalid ballots, 
spoiled ballots, and national summaries and records to the Marketing 
Programs Branch, Livestock and Seed Program, AMS, USDA, Room 2627, 
South Agriculture Building, 1400 Independence Avenue, SW., Washington, 
DC. A Marketing Programs Branch employee will place the ballots and 
records in sealed containers marked with the identification of the 
referendum. Such ballots and records will be placed under lock in a 
safe place under the custody of the Marketing Programs Branch for a 
period of not less than 12 months after the referendum. If no notice to 
the contrary is received from the Administrator, AMS, by the end of 
such time, the records shall be destroyed.


Sec. 1230.638  Instructions and forms.

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

    Dated: July 7, 2000.
Kathleen A. Merrigan,
Administrator, Agricultural Marketing Service.
BILLING CODE 3410-02-P

    Note: The following Appendix will not appear in the Code of 
Federal Regulations.

Appendix--Pork Referendum Forms

    The following nine forms referenced in Subpart E Part 1230--
Procedures for the Conduct of a Referendum--will be used for 
registering and voting in the pork referendum and for listing 
registered voters.
LS-72  Pork Producer In-Person Voting
LS-72-1  Pork Ballot (Envelope)
LS-72-2  In-Person Registration and Certification (Envelope)
LS-73  Pork Producer Absentee Voting
LS-73-1  Pork Referendum (Envelope)
LS-74  Absentee Voter Request List
LS-75  In-Person Voter Registration List
LS-76  Pork Importer Mail Voting
LS-77  Importer Ballot Request List


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[FR Doc. 00-17688 Filed 7-12-00; 8:45 am]
BILLING CODE 3410-02-C