Soybean Promotion and Research Program: Procedures for the Conduct of a Producer Poll

DEPARTMENT OF AGRICULTURE

7 CFR Part 1220

[No. LS-94-006]

RIN 0581-AB30

Soybean Promotion and Research Program: Procedures for the

Conduct of a Producer Poll

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Proposed rule.

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SUMMARY: Pursuant to the Soybean Promotion, Research, and Consumer

Information Act (Act), a poll must be conducted among eligible soybean

producers to determine if they support the conduct of a referendum on

the continuance of the payment of refunds under the Soybean Promotion

and Research Order (Order). This proposed rule sets forth the

procedures for conducting the required producer poll.

DATES: Written comments must be received by November 17, 1994.

ADDRESSES: Send two copies of comments to Ralph L. Tapp, Chief;

Marketing Programs Branch; Livestock and Seed Division; Agricultural

Marketing Service (AMS), USDA; P.O. Box 96456, room 2624-S; Washington,

D.C. 20090-6456. Comments will be available for public inspection

during regular business hours at the above office in room 2624 South

Agriculture Building, 14th and Independence Avenue SW., Washington,

D.C. Comments on the information collection requirements contained in

this proposed rule may also be sent to the Office of Information and

Regulatory Affairs, Office of Management and Budget, Washington, D.C.

20503, Attention: Desk Officer for AMS, USDA.

FOR FURTHER INFORMATION CONTACT: Ralph L. Tapp, Chief, Marketing

Programs Branch, 202/720-1115.

SUPPLEMENTARY INFORMATION:

Executive Order 12866 and Regulatory Flexibility Act

This proposed rule has been determined to be not-significant for

purposes of Executive Order 12866 and therefore has not been reviewed

by OMB.

This proposed rule has been reviewed under Executive Order 12778,

Civil Justice Reform. It is not intended to have a retroactive effect.

The Act provides that administrative proceedings must be exhausted

before parties may file suit in court. Under Sec. 1971 of the Act, a

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 law and

requesting a modification of the Order or an exemption from the Order.

The petitioner is afforded the opportunity for a hearing on the

petition. After a hearing the Secretary will rule on the petition. The

statute 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 the Secretary's decision if a complaint for that

purpose is filed not later than 20 days after the date of the entry of

the Secretary's decision.

Further, Sec. 1974 of the Act provides, with certain exceptions,

that nothing in the Act may be construed to preempt or supersede any

other program relating to soybean promotion, research, consumer

information, or industry information organized and operated under the

laws of the United States or any State. One exception in the Act

concerns assessments collected by the Qualified State Soybean Boards

(QSSBs). The exception provides that to ensure adequate funding of the

operations of QSSBs under the Act, no State law or regulation may limit

or have the effect of limiting the full amount of assessments that a

QSSB in that State may collect, and which is authorized to be credited

under the Act. Another exception concerns certain referendums conducted

during specified periods by a State relating to the continuation or

termination of a QSSB or State soybean assessment.

This proposed rule would establish procedures for the conduct of a

producer poll. It provides to all eligible soybean producers the

opportunity to request that the Secretary conduct a refund referendum

on the continuance of the payment of refunds under the Order.

Participation in the producer poll would be voluntary. 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 the Paperwork Reduction Act of 1980, the

information collection requirements contained in this proposed rule

have been approved by the Office of Management and Budget (OMB). They

have been assigned OMB control number 0581-0093. The information

collection requirements in this proposed rule include the following:

(a) In-person requests to conduct a refund referendum: Each person

who wishes to request that the Secretary conduct a refund referendum

must ask the appropriate county Agricultural Stabilization and

Conservation Service (ASCS) office to enter his/her name and address on

Form LS-51, ``Producer Poll on Refund Referendum Request List.'' Each

person must read the Certification Statement at the top of the form and

sign his/her name certifying that he/she meets the eligibility

requirements. The estimated average time burden for completing the

procedure is 5 minutes per person.

(b) Absentee requests to conduct a refund referendum: Each person

who wishes to request that the Secretary conduct a refund referendum

must complete Form LS-53, ``Producer Poll on Refund Referendum--

Absentee Request.'' Form LS-53 is a self-mailer, the person making a

request must read and sign the form, fold the form so that the ASCS

office address is showing, and tape the form closed. The form may be

returned by mail by affixing a stamp or it may be returned in person.

The estimated average time burden for completing the procedure is 5

minutes per person.

(c) The proposed rule contains a requirement that the county ASCS

office list the names and addresses of each person or entity requesting

Form LS-53 (Absentee Request), the date the form was requested, and the

date it was received back by the ASCS office. This information is

necessary for the Department to list the identities of each person

making a request in the producer poll and to allow interested parties

to see the identity of each person making a request to the Secretary to

conduct a refund referendum. This information can be used to validate

requests and to challenge potentially ineligible persons. Each county

ASCS office will fill out one or more of the Form LS-52 ``Absentee

Request List.'' The estimated average reporting burden will vary

depending on the number of requests. The estimated number of producers,

including in-person and absentee, who will request that the Secretary

conduct a refund referendum is 75,000-100,000 with each producer making

one request.

Please send comments concerning the information collection

requirements contained in this proposed rule to the Office of

Information and Regulatory Affairs, Office of Management and Budget,

Washington, D.C. 20503, Attention: Desk Officer for AMS, USDA.

Background

The Act (7 U.S.C. 6301-6311) provides for the establishment of a

coordinated program of promotion and research designed to strengthen

the soybean industry's position in the marketplace and to maintain and

expand domestic and foreign markets and uses for soybeans and soybean

products. The program is financed by an assessment of 0.5 of one

percent of the net market price of soybeans sold by producers. Pursuant

to the Act, an Order was made effective July 9, 1991, and the

collection of assessments began September 1, 1991.

The Act requires that a referendum be conducted no earlier than 18

months and no later than 36 months after the issuance of the Order to

determine whether the Order should be continued.

The required initial referendum was conducted on February 9, 1994.

Of the 85,606 valid ballots cast, 46,060 (53.8 percent) were in favor

of continuing the Order and the remaining 39,546 votes (46.2 percent)

were against continuing the Order. The Act requires approval by a

simple majority for the Order to continue.

The Act also requires that within 18 months after the Secretary

announces the results of the referendum, the Secretary conduct a poll

of producers to determine if producers support the conducting of a

referendum on the continuance of the payment of refunds under the

Order. The Secretary announced the results of the referendum on April

1, 1994. Therefore, the producer poll must be held before October 1,

1995.

If, based on the poll, the Secretary determines that at least 20

percent of the approximately 400,000 producers nationwide (not in

excess of one-fifth of which may be producers in any one State) support

the conducting of a refund referendum, the Secretary must conduct a

refund referendum within 1 year of that determination.

If, based on the poll, the Secretary determines that at least 20

percent of the approximately 400,000 producers nationwide (not in

excess of one-fifth of which may be producers in any one State) do not

support the conducting of a refund referendum, no refund referendum

will be conducted and refunds will be discontinued.

The Act specifies that the producer poll shall be conducted for a

period established by the Secretary. Eligible persons must both certify

that they were engaged in the production of soybeans during a

representative period specified by the Secretary, and indicate that

they support the conducting of a refund referendum. The Act also

provides that the producer poll may be conducted in person at county

Extension offices or county ASCS offices or by mail-in requests.

Conducting the poll at county ASCS offices and providing for mail-in

requests will provide the greatest opportunity for those producers who

wish to indicate that they support the conducting of a refund

referendum.

The proposed rule sets forth procedures to be followed in

conducting the producer poll under the Act. The proposed rule includes

provisions concerning definitions, supervision of the producer poll,

certification and request procedures, reporting poll results, and

disposition of records. We propose that ASCS of the Department

coordinate State and County ASCS roles in conducting the poll.

List of Subjects in 7 CFR Part 1220

Administrative practice and procedure, Advertising, Agricultural

research, Marketing agreements, Soybeans and soybean products,

Reporting and recordkeeping requirements.

For the reasons set forth in the preamble, it is proposed that

title 7 of the CFR part 1220 be amended as follows:

PART 1220--SOYBEAN PROMOTION, RESEARCH, AND CONSUMER INFORMATION

1. The authority citation for part 1220 continues to read as

follows:

Authority: Title XIX, Pub. L. 101-624, 104 Stat. 3359, 3881 (7

U.S.C. 6301-6311).

2. Subpart F is added to read as follows:

Subpart F--Procedures for the Conduct of a Producer Poll

Sec.

Definitions

1220.701 Act.

1220.702 Administrator.

1220.703 Agricultural Stabilization and Conservation County

Committee.

1220.704 Agricultural Stabilization and Conservation Service.

1220.705 Agricultural Stabilization and Conservation Service County

Executive Director.

1220.706 Department.

1220.707 Deputy Administrator.

1220.708 Order.

1220.709 Person.

1220.710 Producer.

1220.711 Public notice.

1220.712 Refund referendum.

1220.713 Representative period.

1220.714 Secretary.

1220.715 Soybeans.

1220.716 State and United States.

Producer Poll

1220.717 General.

1220.718 Supervision of producer poll.

1220.719 Eligibility.

1220.720 Time and place for requesting a refund referendum.

1220.721 Facilities for conducting poll.

1220.722 Certification and request forms.

1220.723 Certification and request procedure.

1220.724 Lists of registered producers.

1220.725 Challenge of eligibility.

1220.726 Canvassing request lists.

1220.727 ASCS county office report.

1220.728 ASCS State office report.

1220.729 Results of the poll.

1220.730 Disposition of records.

1220.731 Instructions and forms.

Subpart F--Procedures for the Conduct of a Producer Poll

Definitions

Sec. 1220.701 Act.

The term Act means the Soybean, Promotion, Research, and Consumer

Information Act set forth in title XIX, subtitle E of the Food,

Agriculture, Conservation, and Trade Act of 1990 (Pub. L. 101-624), and

any amendments thereto.

Sec. 1220.702 Administrator.

The term Administrator means the Administrator of AMS, or any

officer or employee of the Department to whom there has been delegated

or may be delegated the authority to act in the Administrator's stead.

Sec. 1220.703 Agricultural Stabilization and Conservation County

Committee.

The term Agricultural Stabilization and Conservation County

Committee, also referred to as ``ASC County Committee,'' means the

group of persons within a county who are elected to act as the County

Agricultural Stabilization and Conservation Committee.

Sec. 1220.704 Agricultural Stabilization and Conservation Service.

The term Agricultural Stabilization and Conservation Service, also

referred to as ``ASCS,'' means the Agricultural Stabilization and

Conservation Service of the Department.

Sec. 1220.705 Agricultural Stabilization and Conservation Service

County Executive Director.

The term Agricultural Stabilization and Conservation Service County

Executive Director, also referred to as ``CED,'' means the person

employed by the ASC County Committee to execute the policies of the ASC

County Committee and to be responsible for the day-to-day operation of

the ASCS county office, or the person acting in such capacity.

Sec. 1220.706 Department.

The term Department means the United States Department of

Agriculture.

Sec. 1220.707 Deputy Administrator.

The term Deputy Administrator means the Deputy or Acting Deputy

Administrator, State and County Operations, Agricultural Stabilization

and Conservation Service, U.S. Department of Agriculture.

Sec. 1220.708 Order.

The term Order means the Soybean Promotion and Research Order.

Sec. 1220.709 Person.

The term Person means any individual, group of individuals,

partnership, corporation, association, cooperative, or any other legal

entity.

Sec. 1220.710 Producer.

The term Producer means any person engaged in the growing of

soybeans in the United States who owns, or shares the ownership and

risk of loss of, such soybeans.

Sec. 1220.711 Public notice.

The term Public notice means information regarding a producer poll

that the Secretary shall provide, without advertising expenses, through

press releases by State and county ASCS offices and other appropriate

government offices, by means of newspapers, electronic media, county

newsletters, and the like. Such notice shall contain the dates during

which the producer poll will be conducted, where it will be conducted,

eligibility requirements, and other pertinent information.

Sec. 1220.712 Refund referendum.

The term Refund referendum means a referendum conducted pursuant to

Sec. 1969(1)(2)(F)(iv) of the Act relating to continuance of authority

for producers to receive refunds of assessments.

Sec. 1220.713 Representative period.

The term Representative period means the period designated by the

Secretary pursuant to Sec. 1970 of the Act.

Sec. 1220.714 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 there may be delegated the authority to

act in the Secretary's stead.

Sec. 1220.715 Soybeans.

The term Soybeans means all varieties of Glycine max or Glycine

soja.

Sec. 1220.716 State and United States.

The terms State and United States include the 50 States of the

United States of America, the District of Columbia, and the

Commonwealth of Puerto Rico.

Producer Poll

Sec. 1220.717 General.

(a) A poll to determine whether eligible producers favor the

conduct of a refund referendum on the continuance of the payment of

refunds under the Order shall be conducted in accordance with this

subpart.

(b) The poll shall be conducted at the county offices of ASCS.

(c) If the Secretary determines, based on the poll results, that at

least 20 percent of all producers (not in excess of one-fifth of which

may be producers in any one State) support the conducting of a refund

referendum to determine whether such producers favor the continuation

of the payment of refunds under the Order, a refund referendum will be

held within 1 year from that determination.

(d) If the Secretary determines, based on the poll results, that

less than 20 percent of all producers (not in excess of one-fifth of

which may be producers in any one State) favor the conduct of a refund

referendum, a refund referendum will not be held and refunds will be

discontinued.

Sec. 1220.718 Supervision of poll.

The Administrator shall be responsible for conducting the poll in

accordance with this subpart.

Sec. 1220.719 Eligibility.

(a) Eligible producers. Each person who was a producer during the

representative period is entitled to request a refund referendum. Each

producer entity is entitled to only one request.

(b) Proxy registration and voting. Proxy registration and voting is

not authorized.

(c) An officer or employee of a corporate producer, or any

guardian, administrator, executor, or trustee of a producer's estate,

or an authorized representative of any eligible producer entity (other

than an individual producer), such as a corporation or partnership, may

register and request a refund referendum on behalf of that entity. Such

individual must certify that he/she is authorized by such entity to

take such action.

(d) 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 engaged in the

production of soybeans as a producer entity will be entitled to make

only one request; provided, however, that any individual member of a

group who is an eligible producer separate from the group may register

and make a request as a producer.

Sec. 1220.720 Time and place for requesting a refund referendum.

A poll will be conducted for one day on a date to be determined by

the Secretary. Eligible persons shall make their requests following the

procedures in Sec. 1220.723. Except for absentee requests, the polling

will take place during the business hours of each county ASCS office.

Sec. 1220.721 Facilities for conducting poll.

Each county ASCS office shall provide adequate facilities and space

to permit producers to register and to sign Form LS-50 indicating that

they are requesting that a refund referendum be conducted.

Sec. 1220.722 Certification and request forms.

A single sheet (Form LS-51) shall be used for certifying

eligibility and for requesting a refund referendum. The county ASCS

office, at the request of the producer, will fill out the form,

including the producer's name and address. The county ASCS office will

require the producer to read the certification statement and to sign

his/her name. The form does not require a ``yes'' or ``no.'' Completing

and signing the Form LS-51 will be considered a request to the

Secretary to conduct a refund referendum. A combined registration,

certification, and request form (Form LS-53) shall be used for absentee

requests. The producer must read and sign the form simultaneously

registering, certifying eligibility, and requesting that a refund

referendum be conducted.

Sec. 1220.723 Certification and request procedure.

(a) In-person. Each producer who wants to request that a refund

referendum be conducted shall, during the period to be specified by the

Secretary, request that the county ASCS office in, or serving, the

county in which the producer resides, enter his/her name and address on

Form LS-51. Each producer entity shall make its request at the county

ASCS office in the county in which its headquarters office or business

is located or at the county office serving the county in which the

entity's headquarters office or business is located. Producers will be

required to provide their names and addresses to the county ASCS office

and to read the certification statement before signing the form. By

signing the form, producers certify that they or the entity they

represent were producers during the specified representative period. A

producer who is requesting a refund referendum on behalf of an entity

referred to in Sec. 1220.719 certifies by signing the form that he is

authorized to do so.

(b) Absentee requests. Individual eligible producers may request

and obtain a combined registration, certification, and request form

(Form LS-53) from the county ASCS office of the county in which they

reside. Eligible producer entities may request Form LS-53 from the

county in which their main office is located. Only one Form LS-53 shall

be provided to each eligible producer. Form LS-53 may be requested in

person or in writing during a specified period which will be announced

by the Secretary. The county ASCS office shall enter on Form LS-52,

``Absentee Request List,'' the name and address of each person or

entity requesting Form LS-53 and the date the form was provided.

(2) To register, eligible producers must complete and sign Form LS-

53, and certify that:

(i) They or the entity they represent were producers during the

specified representative period; and

(ii) If voting on behalf of an entity referred to in Sec. 1220.719

they are authorized to do so.

(3) After completing Form LS-53, a producer must fold the self-

mailer so that the ASCS county office address is properly displayed,

and mail or deliver the form to the address shown.

(4) Absentee requests must be received at the appropriate county

ASCS office during the period to be established. A request shall be

considered to have been received during the period if it was received

in the office before the close of business on the final day of the

established period.

Sec. 1220.724 Lists of registered producers.

Maintaining security of Forms LS-51 and LS-52. County ASCS offices

shall at all times maintain control of the master (original) Forms LS-

51 and LS-52. A copy will be posted and available for public inspection

each day during the polling period and for 2 business days thereafter.

The form will be posted during regular office hours in a conspicuous

public location.

Sec. 1220.725 Challenge of eligibility.

(a) Who may challenge. A person's eligibility to request a refund

referendum may be challenged by any person.

(b) Challenge period. A challenge of a person's eligibility to

request a refund referendum may be made at any time during the polling

period, but no later than the close of business on the 2nd day after

the polling period ends.

(c) Determination of challenges. The ASC County Committee or its

designee shall make a determination concerning the eligibility of a

producer who has been challenged and notify challenged producers as

soon as practicable, but not later than 5 business days after the last

day of the polling period.

(d) Challenged names. The names of producers whose eligibility is

challenged shall be so noted. The notation ``challenged'' shall be made

next to the name on the Form LS-51 or Form LS-52. After the challenge

has been resolved, the county ASCS office shall write either

``eligible'' or ``ineligible'' next to the name on the Form LS-51 or

Form LS-52. A challenge shall be determined to have been resolved if

the determination of the ASC County Committee or its designee is not

appealed within the time allowed for appeal or there has been a

determination by the ASC County Committee after an appeal.

(e) Appeal. A person declared to be ineligible to request a refund

referendum by the ASC County Committee or its designee may file an

appeal at the county ASCS office within 3 business days after

notification of such decision. Such person may be required to provide

documentation such as sales documents or similar documents in order to

demonstrate his or her eligibility. An appeal shall be determined by

the ASC County Committee or its designee as soon as practicable, but in

all cases not later than the 9th business day after the last day of the

polling period. The ASC County Committee or its designee's

determination on an appeal is final.

Sec. 1220.726 Canvassing request lists.

(a) Canvassing procedure. Canvassing of Forms LS-51, LS-52, and LS-

53 shall take place as soon as possible after the opening of county

ASCS offices on the 10th business day following the last day of the

polling period. Such canvassing shall be in the presence of at least

two ASCS employees. CED or designee shall supervise the canvassing

process and make a determination as to:

(1) The number of producers signing Forms LS-51 and LS-53 and found

to be eligible to request a refund referendum, and

(2) The number of producers signing Forms LS-51 and LS-53 found to

be ineligible to request a refund referendum.

(b) The public may witness the review and tabulation of Forms LS-

51, LS-52, and LS-53, but may not interfere with the process.

Sec. 1220.727 ASCS county office report.

The ASCS county report shall be certified as complete by the CED or

designee. ASCS county office shall notify ASCS State office of the

results of the poll. Each ASCS county office shall transmit the results

of the poll in its county to the ASCS State office. Such report shall

include, but not be limited to, the number of producers registering to

request a refund referendum, the number of requests declared invalid,

and the total number of valid requests to conduct a referendum. The

results of the poll in each county may be made available to the public

after the county has reported to the State office. A copy of the report

of results shall be posted for 30 days in ASCS county office in a

conspicuous place accessible to the public, and a copy shall be kept on

file in ASCS county office for a period of at least 12 months.

Sec. 1220.728 ASCS State office report.

Each ASCS State office shall transmit to the Deputy Administrator,

ASCS, a written summary of the results of the poll received from all

ASCS county offices within the State. The summary shall include the

information on the poll results contained in the reports from all

county offices within each State and be certified by the ASCS State

Executive Director. The State ASCS office shall maintain a copy of the

summary where it shall be available for public inspection for a period

of not less than 12 months.

Sec. 1220.729 Results of the poll.

(a) The Deputy Administrator, ASCS, shall submit to the

Administrator, AMS, the results of the poll. The Administrator, AMS,

shall prepare and submit to the Secretary a report of the results of

the poll. The results of the poll shall be issued by the Department in

an official press release and published in the Federal Register. State

reports and related papers shall be available for public inspection in

the office of the Marketing Programs Branch, Livestock and Seed

Division, AMS, USDA, room 2624 South Agriculture Building, 14th and

Independence Avenue SW., Washington, D.C.

(b) If the Secretary deems it necessary, the report of any State or

county will be re-examined and checked by such persons who may be

designated by the Deputy Administrator, ASCS, or the Secretary.

Sec. 1220.730 Disposition of records.

Each ASCS county executive director shall place in sealed

containers marked with the identification of the soybean producer poll,

the request lists and county summaries. Such records shall be secured

in the custody of the ASCS county executive director for a period of

not less than 12 months after the poll. If no notice to the contrary is

received from the Deputy Administrator, ASCS, by the end of such time,

the records shall be destroyed.

Sec. 1220.731 Instructions and forms.

The Administrator is hereby authorized to prescribe additional

instructions and forms not inconsistent with the provisions of this

subpart to govern the conduct of the producer poll.

Dated: October 11, 1994.

Lon Hatamiya,

Administrator.

[FR Doc. 94-25665 Filed 10-17-94; 8:45 am]

BILLING CODE 3410-02-P