[Federal Register Volume 69, Number 199 (Friday, October 15, 2004)]
[Proposed Rules]
[Pages 61159-61164]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-23110]


 ========================================================================
 Proposed Rules
                                                 Federal Register
 ________________________________________________________________________
 
 This section of the FEDERAL REGISTER contains notices to the public of 
 the proposed issuance of rules and regulations. The purpose of these 
 notices is to give interested persons an opportunity to participate in 
 the rule making prior to the adoption of the final rules.
 
 ========================================================================
 

  Federal Register / Vol. 69, No. 199 / Friday, October 15, 2004 / 
Proposed Rules  

[[Page 61159]]



DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 1280

[No. LS-04-06]


Lamb Promotion and Research Program: Procedures for the Conduct 
of a Referendum

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Proposed rule.

-----------------------------------------------------------------------

SUMMARY: The Commodity Promotion, Research, and Information Act of 1996 
(Act) authorizes a program of promotion, research, and information to 
be developed through the promulgation of the Lamb Promotion, Research, 
and Information Order (Order). The Act requires that the Secretary of 
Agriculture (Secretary) conduct a referendum among persons subject to 
assessments who, during a representative period established by the 
Secretary, have engaged in the production, feeding, or slaughter of 
lambs. The Act further requires that a referendum be conducted not 
later than 3 years after assessments first begin to determine whether 
the Order should be continued. Assessments began on July 1, 2002. This 
proposed rule establishes procedures the Department of Agriculture 
(USDA) would use in conducting the required referendum as well as 
future referendums. Eligible persons would be provided the opportunity 
to vote during a specified period announced by USDA at the county Farm 
Service Agency (FSA) office where FSA maintains and processes the 
person's administrative farm records. For those eligible persons not 
participating in FSA programs, the opportunity to vote would be 
provided at the county FSA office serving the county where the person 
owns or rents land. A person engaged in the production, feeding, or 
slaughter of lambs in more than one county would vote in the county FSA 
office where the person does most of his or her business. For the 
program to continue, it must be approved by at least a majority of 
those persons voting for approval who are engaged in the production, 
feeding, or slaughter of lambs and who also represent a majority of the 
volume of lambs produced, fed, or slaughtered.

DATES: Written comments must be received by November 4, 2004. Pursuant 
to the Paperwork Reduction Act of 1995 (PRA), comments on the 
information collection burden that would result from this proposal must 
be received by December 14, 2004.

ADDRESSES: Send comments to Kenneth R. Payne, Chief; Marketing Programs 
Branch; Livestock and Seed Program; Agricultural Marketing Service 
(AMS), USDA, Room 2638-S; STOP 0251; 1400 Independence Avenue, SW.; 
Washington, DC. 20250-0251. Comments may also be sent electronically to 
[email protected], http://www.regulations.gov, or by facsimile at 
202/720-1125. All comments should reference the docket number LS-04-06, 
the date, and the page number of this issue of the Federal Register. 
Comments received may be inspected at this location between 8 a.m. and 
4:30 p.m., Monday through Friday, except holidays, or via the Internet 
at http://www.ams.usda.gov/lsg/mpb/rp-lamb.htm.
    Pursuant to PRA, send comments regarding the accuracy of the burden 
estimate and ways to minimize the burden. Comments concerning PRA 
should also be sent to the Desk Officer for Agriculture; Office of 
Information and Regulatory Affairs; Office of Management and Budget; 
New Executive Office Building; 725 17th Street, NW., Room 725; 
Washington, DC 20503.

FOR FURTHER INFORMATION CONTACT: Kenneth R. Payne, Chief, Marketing 
Programs Branch on 202/720-1115, fax 202/720-1125, or by e-mail at 
[email protected] or Phil Brockman, USDA, FSA, DAFO, on 202/690-
8034, fax 202/720-5900, or by e-mail on [email protected].
    Eligible voters 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 FSA's Web site at http://www.fsa.usda.gov/pas/default.asp. From the options available on this 
Web page select ``Your local office,'' click on your State, and click 
on the map to select a county.

SUPPLEMENTARY INFORMATION: 

Executive Order 12866

    The Office of Management and Budget (OMB) has waived the review 
process required by Executive Order (E.O.) 12866 for this action.

Executive Order 12988

    This final rule has been reviewed under E.O. 12988, Civil Justice 
Reform. It is not intended to have a retroactive effect.
    Section 524 of the Act provides that the Act shall not affect or 
preempt any other Federal or State law authorizing promotion or 
research relating to an agricultural commodity.
    Under section 519 of the Act, a person subject to the Order may 
file a petition with USDA stating that the Order, any provision of the 
Order, or any obligation imposed in connection with the Order, is not 
established in accordance with the law, and requesting a modification 
of the Order or an exemption from the Order. Any petition filed 
challenging the Order, any provision of the Order, or any obligation 
imposed in connection with the Order, shall be filed within 2 years 
after the effective date of the Order, provision, or obligation subject 
to challenge in the petition. The petitioner will have the opportunity 
for a hearing on the petition. Thereafter, USDA will issue a ruling on 
the petition. The Act provides that the district court of the United 
States for any district in which the petitioner resides or carries on 
business shall have the jurisdiction to review a final 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 final ruling. 
Service of process in a proceeding may be made on USDA by delivering a 
copy of the complaint to USDA. If the court determines that the ruling 
is not in accordance with the law, the court shall remand the matter to 
USDA with direction to make such ruling as the court determining to be 
in accordance with the law or to take further action as, in the opinion 
of the court the law requires. The pendency of a petition filed or an 
action commended shall not be operated as a stay of any action 
authorized by section 520 of the Act to

[[Page 61160]]

be taken to enforce, including any rule, Order, or penalty in effect.

Regulatory Flexibility Act

    In accordance with the Regulatory Flexibility Act (RFA) (5 U.S.C. 
601 et seq.), AMS has considered the economic effect of the proposed 
rule on small entities. The purpose of RFA is to fit the regulatory 
actions to the scale of businesses subject to such actions in order 
that small businesses will not be unduly burdened.
    The Act, which authorizes USDA to consider industry proposals for 
generic programs of promotion, research, and information for 
agricultural commodities, became effective on April 4, 1996.
    Section 518 of the Act provides three options for determining 
industry approval or continuation of a new research and promotion 
program. They are: (1) By a majority of those voting; (2) by a majority 
of the volume of the agricultural commodity voted in the referendum; or 
(3) by a majority of those persons voting who also represent a majority 
of the volume of the agricultural commodity voted in the referendum. In 
addition, Sec.  518 of the Act provides for referendums to ascertain 
approval of an Order to be conducted either prior to its going into 
effect or within 3 years after assessments first begin under an Order. 
As recommended by representatives of the lamb industry, the final 
Order, which was published in the Federal Register on April 11, 2002 
(67 FR 17848), provides that USDA conduct a referendum within 3 years 
after assessments begin and that the continuation of the Order be 
approved by at least a majority of those persons voting for approval 
who are engaged in the production, feeding, or slaughter of lambs and 
who also represent a majority of the volume of lambs produced, fed, or 
slaughtered.
    This proposed rule would establish the procedures USDA would use 
for the conduct of a nationwide referendum among eligible persons to 
determine if the Order should be continued. This proposal would add a 
new subpart that establishes procedures to conduct the initial and 
future referendum. The new subpart would cover definitions, 
certification and voting procedures, eligibility, disposition of forms 
and records, FSA's role, and reporting the results.
    There are approximately 67,468 persons engaged in the production, 
feeding, or slaughtering of lamb who are subject to the program. Most 
of the lamb producers, seedstock producers, and feeders, would be 
classified as small businesses under the criteria established by the 
Small Business Administration (SBA)(13 CFR 121.201). Most first 
handlers would not be classified as small businesses. SBA defines small 
agricultural service firms as those whose annual receipts are less than 
$5 million and small agricultural producers are defined as those having 
annual receipts of less than $750,000. This number and size data 
remains the same as it appeared in the earlier analyses for the Order.
    The information collection requirements, as discussed below, are 
minimal. Obtaining a ballot by mail, in-person, facsimile, or via the 
Internet and completing it in its entirety would not impose a 
significant economic burden on participants. Accordingly, the 
Administrator of AMS has determined that this proposed rule will not 
have a significant economic impact on a substantial number of small 
business entities.

Paperwork Reduction Act

    In accordance with PRA (44 U.S.C. Chapter 35), this proposed rule 
announces that AMS is requesting approval from OMB for a new 
information collection. Once approved, this collection will be merged 
into 0581-0093.
    Title: Lamb Promotion, Research, and Information Referendum Ballot.
    OMB Number: 0581-New.
    Estimate of Burden: Public reporting burden for this collection of 
information is estimated to average .03 hours per response.
    Respondents: Producers, feeders, seedstock producers, and first 
handlers.
    Estimated Number of Respondents: 67,486.
    Estimated Number of Responses per Respondent: 1.
    Estimated Total Annual Burden on Respondents: 2,025 hours.
    Total Cost: $40,492.
    Abstract: The purpose of this proposed rule is to provide persons 
subject to the assessment who are engaged in the production, feeding, 
and slaughtering of lambs the opportunity to vote in a nationwide 
referendum on the continuation of the Order. Voting in the referendum 
is voluntary. This proposed rule would require eligible persons to 
complete a ballot (Form LS-86) in its entirety. Eligible persons 
subject to the assessment would be required to vote ``yes'' or ``no'' 
to continue the program, vote the number of lambs (volume of 
production) owned and produced; owned and fed; or slaughtered during a 
period specified by the Secretary, and provide documentation that shows 
the person voting engaged in the production, feeding, or slaughtering 
of lamb during the representative period determined by the Secretary. 
The ballot would require the person to sign it certifying that they 
engaged in the production, feeding, or slaughtering of lambs during a 
representative period specified by the Secretary and that the volume of 
production voted is true and accurate to the best of one's knowledge.
    Comments are invited on: (1) Whether the collection of information 
is necessary for the proper performance of the functions of AMS, 
including whether the information will have practical utility; (2) the 
accuracy of AMS' estimate of the burden of the 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 the 
use of appropriate automated, electronic, mechanical, or other 
technological collection techniques of other forms of information 
technology.
    A 60-day period is provided to comment on the information 
collection burden. Comments should reference OMB No. 0581-NEW and be 
sent to [email protected]. All comments received will be available 
for public inspection during regular business hours at the same 
address. All responses to this proposed rule will be summarized and 
included in the request for OMB approval. All comments will become a 
matter of public record.
    Comments concerning the information collection under the PRA should 
also be sent to the Desk Officer for Agriculture; Office of Information 
and Regulatory Affairs; Office of Management and Budget; New Executive 
Office Building; 725 17th Street, NW., Room 725; Washington, DC 20503.

Background

    The Act (U.S.C. 7411-7425) which became effective on April 4, 1996, 
authorizes USDA to establish generic programs of promotion, research, 
and information for agricultural commodities designed to strengthen an 
industry's position in the marketplace and to maintain and expand 
existing domestic and foreign markets and uses for agricultural 
commodities. Pursuant to the Act, a proposed Order on the Lamb Checkoff 
Program was published in the Federal Register on September 21, 2001 (66 
FR 48764). The final Order was published in the Federal Register on 
April 11, 2002 (67 FR 17848).

[[Page 61161]]

Collection of assessments began on July 1, 2002.
    This program is funded primarily by those persons engaged in the 
production and feeding of lambs in the amount of one-half cent ($.005) 
per pound when live lambs are sold. For purposes of this program, the 
term ``lamb'' as defined in the Order means, ``any ovine animal of any 
age, including ewes and rams.''
    First handlers, which means the packer or other person who buys or 
takes possession of lambs from a producer or feeder for slaughter, 
including custom slaughter, are assessed an additional $.30 cents per 
head purchased for slaughter or slaughtered by such first handler 
pursuant to a custom slaughter arrangement. Each person who processes 
or causes to be processed lamb or lamb products of that person's own 
production and markets the processed products is assessed one-half cent 
($.005) per pound on the live weight at the time of slaughter and is 
required to pay an additional assessment of $.30 per head. Assessment 
rates may be adjusted in accordance with applicable provisions of the 
Act and the Order. The Order also requires persons to collect and remit 
assessments to the Board. Each producer, feeder, or seedstock producer 
is obligated to pay that portion of the assessment that is equivalent 
to that producer's, feeder's, or seedstock producer's proportionate 
share and shall transfer the assessment to the subsequent purchaser. 
Additionally, a person who is a market agency; i.e., commission 
merchant, auction market, or broker in the business of receiving such 
lamb or lamb products for sale on commission for or on behalf of a 
producer, feeder, or seedstock producer, is required to collect an 
assessment and transfer the collected assessment on to the subsequent 
purchaser(s). Such person would not be subject to the assessment and 
not eligible to participate in the referendum. Any person who processes 
or causes to be processed lamb or lamb products of that person's own 
production and markets the processed products will be required to pay 
an additional assessment and remit the total assessment to the Board. 
Each first handler who buys or takes possession of lambs from a 
producer or feeder for slaughter is required to pay an additional 
assessment and remit the total assessment to the Board.
    The Act requires that a referendum to ascertain approval of an 
Order must be conducted either prior to the Order going into effect or 
within 3 years after assessments first begin. The industry recommended 
to USDA that the referendum be conducted no later than 3 years after 
assessments first begin to determine whether the Order should be 
continued. Assessments began on July 1, 2002. Thus, USDA is required to 
conduct a nationwide referendum among persons subject to the assessment 
by July 1, 2005. The Order would continue if a majority of those 
persons voting who also represent a majority of the volume of lambs 
voted in favor of continuing the program. If the continuation of the 
Order is not approved by eligible persons voting in the referendum, 
USDA would begin the process of terminating the program.
    Eligible persons would be required to complete a ballot in its 
entirety, vote ``yes'' or ``no'' to continue the program, enter the 
number of lambs (volume of production) owned and produced; owned and 
fed; or slaughtered during a specific period and provide documentation 
showing that they engaged in the production, feeding, or slaughter of 
lambs during the representative period. The person would sign the 
ballot certifying that they were engaged in the production, feeding, or 
slaughtering of lambs during a representative period specified by the 
Secretary and that the volume of production voted is true and accurate 
to the best of one's knowledge. To vote volume of production, producers 
and seedstock producers would enter the total number of live domestic 
lambs owned and produced during calendar year 2004. Feeders would vote 
the total number of lambs owed and fed during calendar year 2004. First 
handlers would vote the total number of lambs slaughtered during 
calendar year 2004. The volume of production must be determined by the 
person voting prior to completing the ballot and be verifiable. Those 
persons whose only share in the proceeds of a sale of lambs is a sales 
commission, handling fee or other service fee or the person acquired 
ownership of the lambs to facilitate the transfer of ownership of such 
lambs from the seller to a third party and resold such lambs no later 
than 10 days from the date on which the person acquired ownership are 
not considered are producers, seedstock producers, or feeders and not 
subject to the assessment would be. Such person would not be eligible 
to participate in the referendum. USDA proposes that the referendum 
period would be a 4-week period announced by the Secretary and that the 
representative period would be January 1, 2004, through December 31, 
2004. USDA also proposes that the ballots may be cast in person, by 
facsimile, or by mail-in vote at the appropriate county FSA offices. 
Providing participants an opportunity to vote at the county FSA office 
would give those persons the greatest opportunity to vote in the 
referendum.
    The proposed rule establishes procedures USDA would use in 
conducting the required referendum as well as future referendums 
provided under the Act. The proposed rule includes, definitions, 
eligibility, certification and voting procedures, reporting results, 
and disposition of the forms and records. FSA would coordinate State 
and county FSA roles in conducting the referendum by (1) determining 
producer eligibility, (2) canvassing and counting ballots, and (3) 
reporting the results. A 20 day comment period is provided for 
interested persons to comment. This comment period is deemed 
appropriate in order to conduct a referendum in a timely manner.

List of Subjects in 7 CFR Part 1280

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

    For the reasons set forth in the preamble, it is proposed that 
title 7, Part 1280 be amended to read as follows:

PART 1280--LAMB PROMOTION, RESEARCH, AND INFORMATION ORDER

    1. The authority citation for 7 CFR Part 1280 continues to read as 
follows:

    Authority: 7 U.S.C. 7411-7425.

    2. In Part 1280, a new subpart E is added to read as follows:
Subpart E--Procedures To Request a Referendum

Definitions

Sec.
1280.601 Terms defined.
1280.602 Administrator, AMS.
1280.603 Administrator, FSA.
1280.604 Eligibility.
1280.605 Farm Service Agency.
1280.606 Farm Service Agency County Committee.
1280.607 Farm Service Agency County Executive Director.
1280.608 Farm Service Agency State Committee.
1280.609 Farm Service Agency State Executive Director.
1280.610 Public notice.
1280.611 Representative period.
1280.612 Volume of production.
1280.613 Voting period.

Procedures

1280.620 General.
1280.621 Supervision of the process for conducting a referendum.
1280.622 Eligibility.

[[Page 61162]]

1280.623 Time and place of the referendum.
1280.624 Facilities.
1280.625 Certifications and referendum ballot form.
1280.626 Certification and procedures.
1280.627 Canvassing voting ballots.
1280.628 Counting ballots.
1280.629 FSA county office report.
1280.630 FSA State office report.
1280.631 Results of the referendum.
1280.632 Disposition of records.
1280.633 Instructions and forms.
1280.634 Confidentiality.

Subpart E--Procedures To Request a Referendum

Definitions


Sec.  1280.601  Terms defined.

    As used throughout this subpart, unless the context otherwise 
requires, terms shall have the same meaning as the definition of such 
terms in subpart A of this part.


Sec.  1280.602  Administrator, AMS.

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


Sec.  1280.603  Administrator, FSA.

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


Sec.  1280.604  Eligibility.

    Eligibility is defined as any person subject to the assessment who 
during the representative period determined by the Secretary have 
engaged in the production, feeding, or slaughtering of lambs. Such 
persons are eligible to participate in the referendum. Those persons 
whose only share in the proceeds of a sale of lambs is a sales 
commission, handling fee or other service fee or the person acquired 
ownership of the lambs to facilitate the transfer of ownership of such 
lambs from the seller to a third party and resold such lambs no later 
than 10 days from the date on which the person acquired ownership are 
not considered producers, seedstock producers, or feeders and are not 
subject to the assessment. Such persons would not be eligible to 
participate in the referendum.


Sec.  1280.605  Farm Service Agency.

    Farm Service Agency also referred to as ``FSA'' means the Farm 
Service Agency of USDA.


Sec.  1280.606  Farm Service Agency County Committee.

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


Sec.  1280.607  Farm Service Agency County Executive Director.

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


Sec.  1280.608  Farm Service Agency State Committee.

    Farm Service Agency State Committee, also referred to as ``FSA 
State Committee,'' means the group of persons within a State who are 
appointed by the Secretary to act as the Farm Service Agency State 
Committee.


Sec.  1280.609  Farm Service Agency State Executive Director.

    Farm Service Agency State Executive Director, also referred to as 
``SED,'' means the person employed by the FSA State Committee to 
execute the policies of the FSA State Committee and to be responsible 
for the day-to-day operation of the FSA State office, or the person 
acting in such capacity.


Sec.  1280.610  Public notice.

    Public notice means not later than 30-days before the referendum is 
conducted, the Secretary shall notify the eligible voters in such 
manner as determined by the Secretary, of the voting period during 
which voting in the referendum will occur. The notice shall explain any 
registration and voting procedures established under section 518 of the 
Act.


Sec.  1280.611  Representative period.

    Representative period means the period designated by the Secretary 
pursuant to section 518 of the Act.


Sec.  1280.612  Volume of production.

    (a) For producers and seedstock producers, the term volume of 
production means the total number of live domestic lambs owned and 
produced during the most recent calendar year.
    (b) For feeders, volume of production means the total number of 
lambs owned and fed during the most recent calendar year.
    (c) For first handlers, volume of production means the total number 
of lambs slaughtered during the most recent calendar year.


Sec.  1280.613  Voting period.

    The term voting period means a 4-week period to be announced by the 
Secretary for voting the referendum.

Procedures


Sec.  1280.620  General.

    A referendum to determine whether eligible persons favor the 
continuance of this part shall be carried out in accordance with this 
subpart.
    (a) The referendum will be conducted at county FSA offices.
    (b) The Secretary shall determine if at least a majority of those 
persons voting for approval who also represent a majority of the volume 
of lambs owned and produced; owned and fed; or slaughtered, favor the 
continuance of this part.


Sec.  1280.621  Supervision of the process for conducting a referendum.

    The Administrator, AMS, shall be responsible for supervising the 
process of permitting persons to vote in a referendum in accordance 
with this subpart.


Sec.  1280.622  Eligibility.

    (a) Any person subject to the assessment who during the 
representative period determined by the Secretary has engaged in the 
production, feeding, or slaughtering of lambs is eligible to 
participate in the referendum. Those persons whose only share in the 
proceeds of a sale of lambs is a sales commission, handling fee or 
other service fee or the person acquired ownership of the lambs to 
facilitate the transfer of ownership of such lambs from the seller to a 
third party and resold such lambs no later than 10 days from the date 
on which the person acquired ownership are not considered producers, 
seedstock producers, or feeders and are not subject to the assessment. 
Such persons would not be eligible to participate in the referendum.
    (b) Proxy registration. Proxy registration is not authorized, 
except that an officer or employee of a corporate producer, feeder, 
seedstock producer, or first handler, or any guardian, administrator, 
executor, or trustee of a person's estate, or an authorized 
representative of any eligible producer, feeder, seedstock producer, or 
first handler entity (other than an individual person), such as a 
corporation or partnership, may vote on behalf of that entity. Further, 
an individual cannot vote on behalf of another individual (i.e., 
spouse, sharecrop lease, etc.). Any individual,

[[Page 61163]]

who votes on behalf of any producer, feeder, seedstock producer, or 
first handler entity, shall certify that he or she is authorized by 
such entity to take such action. Upon request of the county FSA office, 
the person voting may be required to submit adequate evidence of such 
authority.
    (c) Joint and group interest. A group of individuals, such as 
members of a family, joint tenants, tenants in common, a partnership, 
owners of community property, or a corporation who engaged in the 
production, feeding, or slaughtering of lambs during the representative 
period as a producer, feeder, seedstock producer, or first handler 
entity shall be entitled to cast only one vote; provided, however, that 
any individual member of a group who is an eligible person separate 
from the group may vote separately.


Sec.  1280.623  Time and place of the referendum.

    (a) The opportunity to vote in the referendum shall be provided 
during a 4-week period beginning and ending on a date determined by the 
Secretary. Eligible persons shall have the opportunity to vote 
following the procedures established in this subpart during the normal 
business hours of each county FSA office.
    (b) Persons can determine the location of county FSA offices by 
contacting the nearest county FSA office, the State FSA office, or 
through an online search of FSA's Web site at http://www.fsa.usda.gov/pas/default.asp.
    (c) Each eligible person shall cast a ballot in the county FSA 
office where FSA maintains the person's administrative farm records. 
For eligible persons not participating in FSA programs, the opportunity 
to vote would be provided at the county FSA office serving the county 
where the person owns or rents land. A person engaged in the 
production, feeding, slaughtering, of lambs in more than one county 
would vote in the county FSA office where the person does most of his 
or her business.


Sec.  1280.624  Facilities.

    Each county FSA office will provide:
    (a) A voting place that is well known and readily accessible to 
persons in the county and that is equipped and arranged so that each 
person can complete and submit their ballot in secret without coercion, 
duress, or interference of any sort whatsoever, and
    (b) A holding container of sufficient size so arranged that no 
ballot or supporting documentation can be read or removed without 
breaking seals on the container.


Sec.  1280.625  Certifications and referendum ballot form.

    Form LS-86 shall be used to vote in the referendum and certify 
eligibility. Eligible persons would be required to complete a ballot in 
its entirety, vote ``yes'' or ``no'' to continue the program, enter the 
number of lambs (volume of production) owned and produced; owned and 
fed; or slaughtered during a representative period and provide 
documentation such as a sales receipt or remittance form showing that 
the person voting was engaged in the production, feeding, or 
slaughtering of lambs during the representative period. The person or 
authorized representative shall sign the ballot certifying that they or 
the entity they represent were engaged in the production, feeding, or 
slaughtering of lambs during the representative period and that the 
volume of production voted is true and accurate.


Sec.  1280.626  Certification and procedures.

    (a) Each eligible person shall be provided the opportunity to cast 
a ballot during the voting period announced by the Secretary.
    (1) Each eligible person shall be required to complete form LS-86 
in its entirety, sign it, and provide evidence that they were engaged 
in the production, feeding, or slaughtering of lambs during the 
representative period. The person must legibly place his or her name 
and, if applicable, the entity represented, address, county, and 
telephone number. The person shall sign and certify on form LS-86 that:
    (i) The person was engaged in the production, feeding, or 
slaughtering of lambs during the representative period;
    (ii) The person voting on behalf of a corporation or other entity 
is authorized to do so;
    (iii) The person has cast only one vote; and
    (iv) The volume of production listed on the ballot is true and 
accurate.
    (2) Only a completed and signed form LS-86 accompanied by 
supporting documentation showing that the person was engaged in the 
production, feeding, or slaughter of lambs during the representative 
period shall be considered a valid vote.
    (b) To vote, eligible persons may obtain form LS-86 in-person, by 
mail, or by facsimile from county FSA offices or through the Internet 
during the voting period. A completed and signed form LS-86 and 
supporting documentation, such as a sales receipt or remittance form, 
must be returned to the appropriate county FSA office where FSA 
maintains and processes the person's administrative farm records. For a 
person not participating in FSA programs, the opportunity to vote in a 
referendum will be provided at the county FSA office serving the county 
where the person owns or rents land. A person engaged in the 
production, feeding, or slaughtering of lambs in more than one county 
would vote in the county FSA office where the person does most of his 
or her business. Forms obtained via the Internet would be located at 
http://www.ams.usda.gov/lsg/mpb/rp-lamb.htm.
    (c) A completed and signed form LS-86 and the supporting 
documentation may be returned in-person, by mail, or facsimile to the 
appropriate county FSA office. Form LS-86 and supporting documentation 
returned in-person or by facsimile, must be received in the appropriate 
county FSA office prior to the close of the work day on the final day 
of the voting period to be considered a valid ballot. Form LS-86 and 
the accompanying documentation returned by mail must be postmarked no 
later than midnight of the final day of the voting period and must be 
received in the county FSA office on the 5th business day following the 
final day of the voting period.
    (d) Persons who obtain form LS-86 in-person at the appropriate FSA 
county office may complete and return it the same day along with the 
supporting documentation.


Sec.  1280.627  Canvassing voting ballots.

    (a) Canvassing of form LS-86 shall take place at the county FSA 
offices on the 6th business day following the final day of the voting 
period. Such canvassing, acting on behalf of the Administrator, AMS, 
shall be in the presence of at least two members of the county 
committee. If two or more of the counties have been combined and are 
served by one county office, the canvassing of the requests shall be 
conducted by at least one member of the county committee from each 
county served by the county office. The FSA State committee or the 
State Executive Director, if authorized by the State Committee, may 
designate the County Executive Director (CED) and a county or State FSA 
office employee to canvass the ballots and report the results instead 
of two members of the county committee when it is determined that the 
number of eligible voters is so limited that having two members of the 
county committee present for this function is impractical, and 
designate the CED and/or another county or State FSA office employee to 
canvass requests in any emergency situation precluding at least two 
members of the county committee from being present to carry

[[Page 61164]]

out the functions required in this section.
    (b) Form LS-86 should be canvassed as follows:
    (1) Number of valid ballots. A person has been declared eligible by 
FSA to vote by completing form LS-86 in its entirety, signing it, 
voting volume of production, and providing supporting documentation 
that shows the person who cast the ballot during the voting period was 
engaged in the production, feeding, or slaughtering of lambs during the 
representative period. Such ballot will be considered a valid ballot.
    (2) Number of ineligible ballots. If FSA cannot determine that a 
person is eligible based on the submitted documentation or if the 
person fails to submit the required supporting documentation, the 
person shall be determined to be ineligible. FSA shall notify 
ineligible persons in writing as soon as practicable but no later than 
the 8th business day following the final day of the voting period.
    (c) Appeal. A person declared to be ineligible by FSA can appeal 
such decision and provide additional documentation to the FSA county 
office within 5 business days after the postmark date of the letter of 
notification of ineligibility. FSA will then make a final decision on 
the person's eligibility and notify the person of the decision.
    (d) Invalid ballots. An invalid ballot includes, but is not limited 
to the following:
    (1) Form LS-86 is not signed or all required information has not 
been provided;
    (2) Form LS-86 and supporting documentation returned in-person or 
by facsimile was not received by close of business on the last business 
day of the voting period;
    (3) Form LS-86 and supporting documentation returned by mail was 
not postmarked by midnight of the final day of the voting period;
    (4) Form LS-86 and supporting documentation returned by mail was 
not received in the county FSA office by the 5th business day following 
the final day of the voting period;
    (5) Form LS-86 or supporting documentation is mutilated or marked 
in such a way that any required information on the form is illegible; 
or
    (6) Form LS-86 and supporting documentation not returned to the 
appropriate county FSA office.


Sec.  1280.628  Counting ballots.

    (a) Form LS-86 shall be counted by county FSA offices on the same 
day as the ballots are canvassed if there are no ineligibility 
determinations to resolve. For those county FSA offices that do have 
ineligibility determinations, the requests shall be counted no later 
than the 14th business day following the final day of the voting 
period.
    (b) Ballots shall be counted as follows:
    (1) Number of valid ballots cast;
    (2) Number of persons favoring the Order;
    (3) Number of persons not favoring the Order;
    (4) Volume of production voted favoring the continuation of the 
Order;
    (5) Volume of production voted not favoring the continuation of the 
Order and;
    (6) Number of invalid ballots.


Sec.  1280.629  FSA county office report.

    The county FSA office report shall be certified as accurate and 
complete by the CED or designee, acting on behalf of the Administrator, 
AMS, as soon as may be reasonably possible, but in no event shall 
submit no later than 18th business day following the final day of the 
specified period. Each county FSA office shall transmit the results in 
its county to the FSA State office. The results in each county may be 
made available to the public upon notification by the Administrator, 
FSA, that the final results have been released by the Secretary. A copy 
of the report shall be posted for 30 calendar days following the date 
of notification by the Administrator, FSA, in the county FSA office in 
a conspicuous place accessible to the public. One copy shall be kept on 
file in the county FSA office for a period of at least 12 months after 
notification by FSA that the final results have been released by the 
Secretary.


Sec.  1280.630  FSA State office report.

    Each FSA State office shall transmit to the Administrator, FSA, as 
soon as possible, but in no event later than the 20th business day 
following the final day of the voting period, a report summarizing the 
data contained in each of the reports from the county FSA offices. One 
copy of the State summary shall be filed for a period of not less than 
12 months after the results have been released and available for public 
inspection after the results have been released.


Sec.  1280.631  Results of the referendum.

    (a) The Administrator, FSA, shall submit to the Administrator, AMS, 
the reports from all State FSA offices. The Administrator, AMS, shall 
tabulate the results of the ballots. USDA will issue an official press 
release announcing the results of referendum and publish the same 
results in the Federal Register. In addition, USDA will post the 
official results at the following Web site: http://www.ams.usda.gov/lsg/mpb/rp-lamb.htm. Subsequently, State reports and related papers 
shall be available for public inspection upon request during normal 
business hours in the Marketing Programs Branch; Livestock and Seed 
Program, AMS, USDA, Room 2638-S; STOP 0251; 1400 Independence Avenue, 
SW.; Washington, DC.
    (b) If the Secretary deems necessary, a State report or county 
report shall be reexamined and checked by such persons who may be 
designated by the Secretary.


Sec.  1280.632  Disposition of records.

    Each FSA CED will place in sealed containers marked with the 
identification of the ``Lamb Checkoff Program Referendum,'' all of the 
form LS-86's along with the accompanying documentation and county 
summaries. Such records will be placed in a secure location under the 
custody of FSA CED for a period of not less than 12 months after the 
date of notification by the Administrator, FSA, that the final results 
have been announced by the Secretary. If the county FSA office receives 
no notice to the contrary from the Administrator, FSA, by the end of 
the 12 month period as described in this section, the CED or designee 
shall destroy the records.


Sec.  1280.633  Instructions and forms.

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


Sec.  1280.634  Confidentiality.

    The names of persons voting in the referendum and ballots shall be 
confidential and the contents of the ballots shall not be 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.

    Dated: October 8, 2004.
Barry L. Carpenter,
Acting Administrator, Agricultural Marketing Service.
[FR Doc. 04-23110 Filed 10-12-04; 9:08 am]
BILLING CODE 3410-02-P