Oct. 28, 2002 CODE OF FEDERAL REGULATIONS 7 Parts 1200 to 1599 Revised as of January 1, 2003 Agriculture Containing a codification of documents of general applicability and future effect As of January 1, 2003 With Ancillaries

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Administration

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 Table of Contents Page Explanation v Title 7: Subtitle B—Regulations of the Department of Agriculture (Continued) Chapter XI—Agricultural Marketing Service (Marketing Agreements and Orders; Miscellaneous Commodities), Department of Agriculture 5 Chapter XIV—Commodity Credit Corporation, Department of Agriculture 303 Chapter XV—Foreign Agricultural Service, Department of Agriculture 891 Finding Aids: Material Approved for Incorporation by Reference 911 Table of CFR Titles and Chapters 913 Alphabetical List of Agencies Appearing in the CFR 931 List of CFR Sections Affected 941

Cite this Code:CFR

To cite the regulations in this volume use title, part and section number. Thus, 7 CFR 1200.1 refers to title 7, part 1200, section 1. Explanation

The Code of Federal Regulations is a codification of the general and permanent rules published in the Federal Register by the Executive departments and agencies of the Federal Government. The Code is divided into 50 titles which represent broad areas subject to Federal regulation. Each title is divided into chapters which usually bear the name of the issuing agency. Each chapter is further subdivided into parts covering specific regulatory areas.

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Title 1 through Title 16

as of January 1

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as of April 1

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as of July 1

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as of October 1

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 OBSOLETE PROVISIONS

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 INCORPORATION BY REFERENCE

What is incorporation by reference? Incorporation by reference was established by statute and allows Federal agencies to meet the requirement to publish regulations in the Federal Register by referring to materials already published elsewhere. For an incorporation to be valid, the Director of the Federal Register must approve it. The legal effect of incorporation by reference is that the material is treated as if it were published in full in the Federal Register (5 U.S.C. 552(a)). This material, like any other properly issued regulation, has the force of law.

What is a proper incorporation by reference? The Director of the Federal Register will approve an incorporation by reference only when the requirements of 1 CFR part 51 are met. Some of the elements on which approval is based are:

(a) The incorporation will substantially reduce the volume of material published in the Federal Register.

(b) The matter incorporated is in fact available to the extent necessary to afford fairness and uniformity in the administrative process.

(c) The incorporating document is drafted and submitted for publication in accordance with 1 CFR part 51.

Properly approved incorporations by reference in this volume are listed in the Finding Aids at the end of this volume.

What if the material incorporated by reference cannot be found? If you have any problem locating or obtaining a copy of material listed in the Finding Aids of this volume as an approved incorporation by reference, please contact the agency that issued the regulation containing that incorporation. If, after contacting the agency, you find the material is not available, please notify the Director of the Federal Register, National Archives and Records Administration, Washington DC 20408, or call (202) 741-6010.

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The Federal Register Index is issued monthly in cumulative form. This index is based on a consolidation of the “Contents” entries in the daily Federal Register.

A List of CFR Sections Affected (LSA) is published monthly, keyed to the revision dates of the 50 CFR titles.

 REPUBLICATION OF MATERIAL

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 Raymond A. Mosley, Director, Office of the Federal Register. January 1, 2003. THIS TITLE

Title 7—Agriculture is composed of fifteen volumes. The parts in these volumes are arranged in the following order: parts 1-26, 27-52, 53-209, 210-299, 300-399, 400-699, 700-899, 900-999, 1000-1199, 1200-1599, 1600-1899, 1900-1939, 1940-1949, 1950-1999, and part 2000 to end. The contents of these volumes represent all current regulations codified under this title of the CFR as of January 1, 2003.

The Food and Nutrition Service current regulations in the volume containing parts 210-299, include the Child Nutrition Programs and the Food Stamp Program. The regulations of the Federal Crop Insurance Corporation are found in the volume containing parts 400-699.

All marketing agreements and orders for fruits, vegetables and nuts appear in the one volume containing parts 900-999. All marketing agreements and orders for milk appear in the volume containing parts 1000-1199. Part 900—General Regulations is carried as a note in the volume containing parts 1000-1199, as a convenience to the user.

CFRORDR.FRM <LRH>7 CFR Ch. XI (1-1-03 Edition)</LRH> <RRH>Agricultural Marketing Service, USDA</RRH> <CFRTITLE> <TITLEHD> <PRTPAGE P="1"/> <HD SOURCE="HED">Title 7—Agriculture</HD> <P>(This book contains parts 1200 to 1599)</P> </TITLEHD> <CFRTOC> <SUBTI> <HD SOURCE="HED">SUBTITLE B—<E T="04">Regulations of the Department of Agriculture (Continued)</E> </HD> </SUBTI> <PTHD>Part</PTHD> <CHAPTI> <SUBJECT> <E T="04">chapter xi</E>—Agricultural Marketing Service (Marketing Agreements and Orders; Miscellaneous Commodities), Department of Agriculture</SUBJECT> <PG>1200</PG> </CHAPTI> <CHAPTI> <SUBJECT> <E T="04">chapter xiv</E>—Commodity Credit Corporation, Department of Agriculture</SUBJECT> <PG>1402</PG> </CHAPTI> <CHAPTI> <SUBJECT> <E T="04">chapter xv</E>—Foreign Agricultural Service, Department of Agriculture</SUBJECT> <PG>1520</PG> </CHAPTI> </CFRTOC> </CFRTITLE> <SUBTITLE> <PRTPAGE P="3"/> <HD SOURCE="HED">Subtitle B—Regulations of the Department of Agriculture (Continued)</HD> <CHAPTER> <TOC> <TOCHD> <PRTPAGE P="5"/> <HD SOURCE="HED">CHAPTER XI—AGRICULTURAL MARKETING SERVICE (MARKETING AGREEMENTS AND ORDERS; MISCELLANEOUS COMMODITIES), DEPARTMENT OF AGRICULTURE</HD> </TOCHD> <PTHD>Part</PTHD> <PGHD>Page</PGHD> <CHAPTI> <PT>1200</PT> <SUBJECT>Rules of practice and procedure governing proceedings under research, promotion, and information programs</SUBJECT> <PG>7</PG> <PT>1205</PT> <SUBJECT>Cotton research and promotion</SUBJECT> <PG>16</PG> <PT>1207</PT> <SUBJECT>Potato research and promotion plan</SUBJECT> <PG>46</PG> <PT>1208</PT> <SUBJECT>Fresh cut flowers and fresh cut greens promotion and information</SUBJECT> <PG>60</PG> <PT>1209</PT> <SUBJECT>Mushroom promotion, research, and consumer information order</SUBJECT> <PG>77</PG> <PT>1210</PT> <SUBJECT>Watermelon research and promotion plan</SUBJECT> <PG>97</PG> <PT>1214</PT> <SUBJECT>Kiwifruit research, promotion, and consumer information order</SUBJECT> <PG>120</PG> <PT>1215</PT> <SUBJECT>Popcorn promotion, research, and consumer information</SUBJECT> <PG>122</PG> <PT>1216</PT> <SUBJECT>Peanut promotion, research, and information order</SUBJECT> <PG>133</PG> <PT>1218</PT> <SUBJECT>Blueberry promotion, research, and information order</SUBJECT> <PG>147</PG> <PT>1219</PT> <SUBJECT>Hass avocado promotion, research, and information</SUBJECT> <PG>161</PG> <PT>1220</PT> <SUBJECT>Soybean promotion, research, and consumer information</SUBJECT> <PG>179</PG> <PT>1230</PT> <SUBJECT>Pork promotion, research, and consumer information</SUBJECT> <PG>203</PG> <PT>1240</PT> <SUBJECT>Honey research, promotion, and consumer information order</SUBJECT> <PG>228</PG> <PT>1250</PT> <SUBJECT>Egg research and promotion</SUBJECT> <PG>249</PG> <PT>1260</PT> <SUBJECT>Beef promotion and research</SUBJECT> <PG>265</PG> <PT>1270</PT> <RESERVED>Wool and mohair advertising and promotion [Reserved]</RESERVED> <PT>1280</PT> <SUBJECT>Lamb promotion, research, and information order</SUBJECT> <PG>287</PG> </CHAPTI> </TOC> <PART> <PRTPAGE P="7"/> <EAR>Pt. 1200</EAR> <HD SOURCE="HED">PART 1200—RULES OF PRACTICE AND PROCEDURE GOVERNING PROCEEDINGS UNDER RESEARCH, PROMOTION, AND INFORMATION PROGRAMS</HD> <CONTENTS> <SUBPART> <HD SOURCE="HED">Subpart A—Rules of Practice and Procedure Governing Proceedings to Formulate and Amend an Order</HD> <SECHD>Sec.</SECHD> <SECTNO>1200.1</SECTNO> <SUBJECT>Words in the singular form.</SUBJECT> <SECTNO>1200.2</SECTNO> <SUBJECT>Definitions.</SUBJECT> <SECTNO>1200.3</SECTNO> <SUBJECT>Proposals.</SUBJECT> <SECTNO>1200.4</SECTNO> <SUBJECT>Reimbursement of Secretary's expenses.</SUBJECT> <SECTNO>1200.5</SECTNO> <SUBJECT>Institution of proceedings.</SUBJECT> <SECTNO>1200.6</SECTNO> <SUBJECT>Docket number.</SUBJECT> <SECTNO>1200.7</SECTNO> <SUBJECT>Judge.</SUBJECT> <SECTNO>1200.8</SECTNO> <SUBJECT>Motions and requests.</SUBJECT> <SECTNO>1200.9</SECTNO> <SUBJECT>Conduct of the hearing.</SUBJECT> <SECTNO>1200.10</SECTNO> <SUBJECT>Oral and written arguments.</SUBJECT> <SECTNO>1200.11</SECTNO> <SUBJECT>Certification of the transcript.</SUBJECT> <SECTNO>1200.12</SECTNO> <SUBJECT>Copies of the transcript.</SUBJECT> <SECTNO>1200.13</SECTNO> <SUBJECT>Administrator's recommended decision.</SUBJECT> <SECTNO>1200.14</SECTNO> <SUBJECT>Submission to Secretary.</SUBJECT> <SECTNO>1200.15</SECTNO> <SUBJECT>Decision by the Secretary.</SUBJECT> <SECTNO>1200.16</SECTNO> <SUBJECT>Execution of the order.</SUBJECT> <SECTNO>1200.17</SECTNO> <SUBJECT>Filing, extension of time, effective date of filing, and computation of time.</SUBJECT> <SECTNO>1200.18</SECTNO> <SUBJECT>Ex parte communications.</SUBJECT> <SECTNO>1200.19</SECTNO> <SUBJECT>Additional documents to be filed with hearing clerk.</SUBJECT> <SECTNO>1200.20</SECTNO> <SUBJECT>Hearing before Secretary.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart B—Rules of Practice Governing Proceedings on Petitions to Modify or to be Exempted from Research, Promotion, and Information Programs</HD> <SECTNO>1200.50</SECTNO> <SUBJECT>Words in the singular form.</SUBJECT> <SECTNO>1200.51</SECTNO> <SUBJECT>Definitions.</SUBJECT> <SECTNO>1200.52</SECTNO> <SUBJECT>Institution of proceeding.</SUBJECT> </SUBPART> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>7 U.S.C. 2111, 2620, 2713, 4509, 4609, 4814, 4909, 6106, 6306, 6410, 7418, and 7486.</P> </AUTH> <SUBPART> <HD SOURCE="HED">Subpart A—Rules of Practice and Procedure Governing Proceedings to Formulate and Amend an Order</HD> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>7 U.S.C. 2103, 2614, 2704, and 4804.</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>47 FR 44684, Oct. 8, 1982, unless otherwise noted.</P> </SOURCE> <SECTION> <SECTNO>§ 1200.1</SECTNO> <SUBJECT>Words in the singular form.</SUBJECT> <P>Words in this subpart in the singular form shall be deemed to import the plural, and vice versa, as the case may demand.</P> </SECTION> <SECTION> <SECTNO>§ 1200.2</SECTNO> <SUBJECT>Definitions.</SUBJECT> <P>(a) The term <E T="03">Act</E> means the Cotton Research and Promotion Act, as amended [7 U.S.C. 2101-2119]; the Egg Research and Consumer Information Act, as amended [7 U.S.C. 2701-2718]; the Pork Promotion, Research, and Consumer Information Act [7 U.S.C. 4801-4819]; and the Potato Research and Promotion Act, as amended [7 U.S.C. 2611-2627].</P> <P>(b) <E T="03">Administrator</E> means the Administrator of the Agricultural Marketing Service or any officer or employee of the Department to whom authority has been delegated or may hereafter be delegated to act for the Administrator.</P> <P>(b) <E T="03">Board</E> means the board or council established by the order to administer the program.</P> <P>(c) <E T="03">Department</E> means the U.S. Department of Agriculture.</P> <P>(d) <E T="04">Federal Register</E> means the publication provided for by the <E T="04">Federal Register</E> Act, approved July 26, 1935 [44 U.S.C. 1501-1511], and acts supplementing and amending it.</P> <P>(e) <E T="03">Hearing</E> means that part of the proceeding which involves the submission of evidence.</P> <P>(f) <E T="03">Judge</E> means any administrative law judge appointed pursuant to 5 U.S.C. 3105 and assigned to conduct the hearing.</P> <P>(g) <E T="03">Hearing</E> means that part of the proceeding that involves the submission of evidence.</P> <P>(h) <E T="03">Hearing clerk</E> means the Hearing Clerk, U.S. Department of Agriculture, Washington, D.C.</P> <P>(i) <E T="03">Order</E> means any order or any amendment thereto which may be issued pursuant to the Act. The term <E T="03">order</E> shall include plans issued under the Acts listed in paragraph (a) of this section.</P> <P>(j) <E T="03">Proceeding</E> means a proceeding before the Secretary arising under the pertinent section of an Act.</P> <P>(k) <E T="03">Secretary</E> means the Secretary of Agriculture of the United States, or any officer or employee of the Department to whom authority has heretofore been delegated, or to whom authority may hereafter be delegated, to act for the Secretary.</P> <CITA>[67 FR 44350, July 2, 2002]</CITA> </SECTION> <SECTION> <PRTPAGE P="8"/> <SECTNO>§ 1200.3</SECTNO> <SUBJECT>Proposals.</SUBJECT> <P>(a) An order may be proposed by any organization certified pursuant to the Act or any interested person affected by the Act, including the Secretary. Any person or organization other than the Secretary proposing an order shall file with the Administrator a written application, together with a copy of the proposal, requesting the Secretary to hold a hearing upon the proposal. Upon receipt of such proposal, the Administrator shall cause such investigation to be made and such consideration to be given as, in the Administrator's opinion, are warranted. If the investigation and consideration lead the Administrator to conclude that the proposed order will not tend to effectuate the declared policy of the Act, or that for other proper reasons a hearing should not be held on the proposal, the Administrator shall deny the application, and promptly notify the applicant of such denial, which notice shall be accompanied by a brief statement of the grounds for the denial.</P> <P>(b) If the investigation and consideration lead the Administrator to conclude that the proposed order will tend to effectuate the declared policy of the Act, or if the Secretary desires to propose an order, the Administrator shall sign and cause to be served a notice of hearing, as provided herein.</P> </SECTION> <SECTION> <SECTNO>§ 1200.4</SECTNO> <SUBJECT>Reimbursement of Secretary's expenses.</SUBJECT> <P>If provided for in the Act or any amendment thereto, expenses incurred by the Secretary in preparing or amending the order, administering the order, and conducting the referendum shall be reimbursed.</P> </SECTION> <SECTION> <SECTNO>§ 1200.5</SECTNO> <SUBJECT>Institution of proceedings.</SUBJECT> <P>(a) <E T="03">Filing and contents of the notice of hearing.</E> The proceeding shall be instituted by filing the notice of hearing with the hearing clerk. The notice of hearing shall contain a reference to the authority under which the order is proposed; shall define the scope of the hearing as specifically as may be practicable; shall contain either the terms or substance of the proposed order or a description of the subjects and issues involved; and shall state the time and place of such hearing, and the place where copies of such proposed order may be obtained or examined. The time of the hearing shall not be less than 15 days after the date of publication of the notice in the <E T="04">Federal Register</E>, as provided herein, unless the Administrator shall determine that an emergency exists which requires a shorter period of notice, in which case the period of notice shall be that which the Administrator may determine to be reasonable in the circumstances: Except that in the case of hearings on amendments to an order, the time of the hearing may be less than 15 days but shall not be less than three days after the date of publication in the <E T="04">Federal Register</E>.</P> <P>(b) <E T="03">Giving notice of hearing and supplemental publicity.</E> (1) The Administrator shall give or cause to be given notice of hearing in the following manner:</P> <P>(i) By publication of the notice of hearing in the <E T="04">Federal Register</E>;</P> <P>(ii) By mailing a copy of the notice of hearing to each organization known by the Administrator to be interested therein;</P> <P>(iii) By issuing a press release containing the complete text or a summary of the contents of the notice of hearing and making the same available to such newspapers as, in the Administrator's discretion, are best calculated to bring the notice to the attention of the persons interested therein; and</P> <P>(iv) By forwarding copies of the notice of hearing addressed to those Governors of the States and executive heads of territories and possessions of the United States and the mayor of the District of Columbia that are directly affected by such order.</P> <P>(2) Legal notice of the hearing shall be deemed to be given if notice is given in the manner provided by paragraph (b)(1)(i) of this section; failure to give notice in the manner provided in paragraphs (b)(2) (ii), (iii), and (iv) of this section shall not affect the legality of the notice.</P> <P>(c) <E T="03">Record of notice and supplemental publicity.</E> There shall be filed with the hearing clerk or submitted to the judge at the hearing an affidavit or certificate of the person giving the notice provided in paragraphs (b)(1) (iii) and (iv) of this section. In regard to the <PRTPAGE P="9"/>provisions relating to mailing in paragraph (b)(1)(ii) of this section, determination by the Administrator that such provisions have been complied with shall be filed with the hearing clerk or submitted to the judge at the hearing. In the alternative, if notice is not given in the manner provided in paragraphs (b)(1) (ii), (iii), and (iv) of this section there shall be filed with the hearing clerk or submitted to the judge at the hearing a determination by the Administrator that such notice is impracticable, unnecessary, or contrary to the public interest with a brief statement of the reasons for such determination. Determinations by the Administrator as herein provided shall be final.</P> </SECTION> <SECTION> <SECTNO>§ 1200.6</SECTNO> <SUBJECT>Docket number.</SUBJECT> <P>Each proceeding, immediately following its institution, shall be assigned a docket number by the hearing clerk and thereafter the proceeding may be referred to by such number.</P> </SECTION> <SECTION> <SECTNO>§ 1200.7</SECTNO> <SUBJECT>Judge.</SUBJECT> <P>(a) <E T="03">Assignment.</E> No judge who has any pecuniary interest in the outcome of a proceeding shall serve as judge in such proceeding.</P> <P>(b) <E T="03">Power of judge.</E> Subject to review by the Secretary, as provided elsewhere in this subpart, the judge in any proceeding shall have power to:</P> <P>(1) Rule upon motions and requests;</P> <P>(2) Change the time and place of hearings, and adjourn the hearing from time to time or from place to place;</P> <P>(3) Administer oaths and affirmations and take affidavits;</P> <P>(4) Examine and cross-examine witnesses and receive evidence;</P> <P>(5) Admit or exclude evidence;</P> <P>(6) Hear oral argument on facts or law; and</P> <P>(7) Do all acts and take all measures necessary for the maintenance of order at the hearings and the efficient conduct of the proceeding.</P> <P>(c) <E T="03">Who may act in absence of judge.</E> In case of the absence of the judge or the judge's inability to act, the powers and duties to be performed by the judge under this part in connection with a proceeding may, without abatement of the proceeding unless otherwise ordered by the Secretary, be assigned to any other judge.</P> <P>(d) <E T="03">Disqualification of judge.</E> The judge may at any time withdraw as judge in a proceeding if such judge deems himself or herself to be disqualified. Upon the filing by an interested person in good faith of a timely and sufficient affidavit of personal bias or disqualification of a judge, the Secretary shall determine the matter as a part of the record and decision in the proceeding, after making such investigation or holding such hearings, or both, as the Secretary may deem appropriate in the circumstances.</P> </SECTION> <SECTION> <SECTNO>§ 1200.8</SECTNO> <SUBJECT>Motions and requests.</SUBJECT> <P>(a) <E T="03">General.</E> (1) All motions and requests shall be filed with the hearing clerk, except that those made during the course of the hearing may be filed with the judge or may be stated orally and made a part of the transcript.</P> <P>(2) Except as provided in § 1200.17(b) such motions and requests shall be addressed to, and ruled on by, the judge if made prior to certification of the transcript pursuant to § 1200.11 or by the Secretary if made thereafter.</P> <P>(b) <E T="03">Certification to Secretary</E>. The judge may, in his or her discretion, submit or certify to the Secretary for decision any motion, request, objection, or other question addressed to the judge.</P> </SECTION> <SECTION> <SECTNO>§ 1200.9</SECTNO> <SUBJECT>Conduct of the hearing.</SUBJECT> <P>(a) <E T="03">Time and place</E>. The hearing shall be held at the time and place fixed in the notice of hearing, unless the judge shall have changed the time or place, in which event the judge shall file with the hearing clerk a notice of such change, which notice shall be given in the same manner as provided in § 1200.5 (relating to the giving of notice of the hearing): Except that if the change in time or place of hearing is made less than five days prior to the date previously fixed for the hearing, the judge either in addition to or in lieu of causing the notice of the change to be given, shall announce, or cause to be announced, the change at the time and place previously fixed for the hearing.</P> <P>(b) <E T="03">Appearances</E>—(1) <E T="03">Right to appear</E>. At the hearing, any interested person <PRTPAGE P="10"/>shall be given an opportunity to appear, either in person or through authorized counsel or representative, and to be heard with respect to matters relevant and material to the proceeding. Any interested person who desires to be heard in person at any hearing under these rules shall, before proceeding to testify, state his or her name, address, and occupation. If any such person is appearing through a counsel or representative, such person or such counsel or representative shall, before proceeding to testify or otherwise to participate in the hearing, state for the record the authority to act as such counsel or representative, and the names, addresses, and occupations of such person and such counsel or representative. Any such person or such counsel or representative shall give such other information respecting such appearance as the judge may request.</P> <P>(2) <E T="03">Debarment of counsel or representative</E>. (i) Whenever, while a proceeding is pending before the judge, such judge finds that a person, acting as counsel or representative for any person participating in the proceeding, is guilty of unethical or unprofessional conduct, the judge may order that such person be precluded from further acting as counsel or representative in such proceeding. An appeal to the Secretary may be taken from any such order, but the proceeding shall not be delayed or suspended pending disposition of the appeal: Except that the judge may suspend the proceeding for a reasonable time for the purpose of enabling the client to obtain other counsel or representative.</P> <P>(ii) In case the judge has ordered that a person be precluded from further action as counsel or representative in the proceeding, the judge within a reasonable time thereafter shall submit to the Secretary a report of the facts and circumstances surrounding such order and shall recommend what action the Secretary should take respecting the appearance of such person as counsel or representative in other proceedings before the Secretary. Thereafter the Secretary may, after notice and an opportunity for hearing, issue such order respecting the appearance of such person as counsel or representative in proceedings before the Secretary as the Secretary finds to be appropriate.</P> <P>(3) <E T="03">Failure to appear.</E> If any interested person fails to appear at the hearing, that person shall be deemed to have waived the right to be heard in the proceeding.</P> <P>(c) <E T="03">Order of procedure.</E> (1) The judge shall, at the opening of the hearing prior to the taking of testimony, have noted as part of the record the notice of hearing as filed with the Office of the Federal Register and the affidavit or certificate of the giving of notice or the determination provided for in § 1200.5(c).</P> <P>(2) Evidence shall then be received with respect to the matters specified in the notice of the hearing in such order as the judge shall announce.</P> <P>(d) <E T="03">Evidence—</E>(1) <E T="03">General.</E> The hearing shall be publicly conducted, and the testimony given at the hearing shall be reported verbatim.</P> <P>(i) Every witness shall, before proceeding to testify, be sworn or make affirmation. Cross-examination shall be permitted to the extent required for a full and true disclosure of the facts.</P> <P>(ii) When necessary, in order to prevent undue prolongation of the hearing, the judge may limit the number of times any witness may testify to the same matter or the amount of corroborative or cumulative evidence.</P> <P>(iii) The judge shall, insofar as practicable, exclude evidence which is immaterial, irrelevant, or unduly repetitious, or which is not of the sort upon which responsible persons are accustomed to rely.</P> <P>(2) <E T="03">Objections.</E> If a party objects to the admission or rejection of any evidence or to any other ruling of the judge during the hearing, such party shall state briefly the grounds of such objection, whereupon an automatic exception will follow if the objection is overruled by the judge. The transcript shall not include argument or debate thereon except as ordered by the judge. The ruling of the judge on any objection shall be a part of the transcript. Only objections made before the judge may subsequently be relied upon in the proceeding.</P> <P>(3) <E T="03">Proof and authentication of official records or documents.</E> An official record or document, when admissible for any <PRTPAGE P="11"/>purpose, shall be admissible as evidence without the presence of the person who made or prepared the same. The judge shall exercise discretion in determining whether an official publication of such record or document shall be necessary, or whether a copy would be permissible. If permissible such a copy should be attested to by the person having legal custody of it, and accompanied by a certificate that such person has the custody.</P> <P>(4) <E T="03">Exhibits.</E> All written statements, charts, tabulations, or similar data offered in evidence at the hearing shall, after identification by the proponent and upon satisfactory showing of authenticity, relevancy, and materiality, be numbered as exhibits and received in evidence and made a part of the record. Such exhibits shall be submitted in quadruplicate and in documentary form. In case the required number of copies is not made available, the judge shall exercise discretion as to whether said exhibits shall, when practicable, be read in evidence or whether additional copies shall be required to be submitted within a time to be specified by the judge. If the testimony of a witness refers to a statute, or to a report or document (including the record of any previous hearing), the judge, after inquiry relating to the identification of such statute, report, or document, shall determine whether the same shall be produced at the hearing and physically be made a part of the evidence as an exhibit, or whether it shall be incorporated into the evidence by reference. If relevant and material matter offered in evidence is embraced in a report or document (including the record of any previous hearing) containing immaterial or irrelevant matter, such immaterial or irrelevant matter shall be excluded and shall be segregated insofar as practicable, subject to the direction of the judge.</P> <P>(5) <E T="03">Official notice.</E> Official notice at the hearing may be taken of such matters as are judicially noticed by the courts of the United States and of any other matter of technical, scientific, or commercial fact of established character: Except that interested persons shall be given an adequate period of time, at the hearing or subsequent to it, of matters so noticed and shall be given adequate opportunity to show that such facts are inaccurate or are erroneously noticed.</P> <P>(6) <E T="03">Offer of proof.</E> Whenever evidence is excluded from the record, the party offering such evidence may make an offer of proof, which shall be included in the transcript. The offer of proof shall consist of a brief statement describing the evidence to be offered. If the evidence consists of a brief oral statement or of an exhibit, it shall be inserted into the transcript in toto. In such event, it shall be considered a part of the transcript if the Secretary decides that the judge's ruling in excluding the evidence was erroneous. The judge shall not allow the insertion of such evidence in toto if the taking of such evidence will consume a considerable length of time at the hearing. In the latter event, if the Secretary decides that the judge erred in excluding the evidence, and that such error was substantial, the hearing shall be reopened to permit the taking of such evidence.</P> </SECTION> <SECTION> <SECTNO>§ 1200.10</SECTNO> <SUBJECT>Oral and written arguments.</SUBJECT> <P>(a) <E T="03">Oral argument before the judge.</E> Oral argument before the judge shall be in the discretion of the judge. Such argument, when permitted, may be limited by the judge to any extent that the judge finds necessary for the expeditious disposition of the proceeding and shall be reduced to writing and made part of the transcript.</P> <P>(b) <E T="03">Briefs, proposed findings, and conclusions.</E> The judge shall announce at the hearing a reasonable period of time within which interested persons may file with the hearing clerk proposed findings and conclusions, and written arguments or briefs, based upon the evidence received at the hearing, citing, where practicable, the page or pages of the transcript of the testimony where such evidence appears. Factual material other than that adduced at the hearing or subject to official notice shall not be alluded to therein, and, in any case, shall not be considered in the formulation of the order. If the person filing a brief desires the Secretary to consider any objection made by such person to a ruling of the judge, as provided in § 1200.9(d), that person shall include in the brief a <PRTPAGE P="12"/>concise statement concerning each such objection, referring, where practicable, to the pertinent pages of the transcript.</P> </SECTION> <SECTION> <SECTNO>§ 1200.11</SECTNO> <SUBJECT>Certification of the transcript.</SUBJECT> <P>The judge shall notify the hearing clerk of the close of a hearing as soon as possible thereafter and of the time for filing written arguments, briefs, proposed findings, and proposed conclusions and shall furnish the hearing clerk with such other information as may be necessary. As soon as possible after the hearing, the judge shall transmit to the hearing clerk an original and three copies of the transcript of the testimony and the original and all copies of the exhibits not already on file in the office of the hearing clerk. The judge shall attach to the original transcript of the testimony a certificate stating that, to the best of the judge's knowledge and belief, the transcript is a true transcript of the testimony given at the hearing, except in such particulars as the judge shall specify, and that the exhibits transmitted are all the exhibits as introduced at the hearing with such exceptions as the judge shall specify. A copy of such certificate shall be attached to each of the copies of the transcript of testimony. In accordance with such certificate the hearing clerk shall note upon the official record copy, and cause to be noted on other copies of the transcript, each correction detailed therein by adding or crossing out (but without obscuring the text as originally transcribed) at the appropriate place any words necessary to make the same conform to the correct meaning, as certified by the judge. The hearing clerk shall obtain and file certifications to the effect that such corrections have been effectuated in copies other than the official record copy.</P> </SECTION> <SECTION> <SECTNO>§ 1200.12</SECTNO> <SUBJECT>Copies of the transcript.</SUBJECT> <P>(a) During the period in which the proceeding has an active status in the Department, a copy of the transcript and exhibits shall be kept on file in the office of the hearing clerk where it shall be available for examination during official hours of business. Thereafter said transcript and exhibits shall be made available by the hearing clerk for examination during official hours of business after prior request and reasonable notice to the hearing clerk.</P> <P>(b) Transcripts of hearings shall be made available to any person at actual cost of duplication.</P> <CITA>[47 FR 44684, Oct. 8, 1982, as amended at 67 FR 10830, Mar. 11, 2002]</CITA> </SECTION> <SECTION> <SECTNO>§ 1200.13</SECTNO> <SUBJECT>Administrator's recommended decision.</SUBJECT> <P>(a) <E T="03">Preparation.</E> As soon as practicable following the termination of the period allowed for the filing of written arguments or briefs and proposed findings and conclusions the Administrator shall file with the hearing clerk a recommended decision.</P> <P>(b) <E T="03">Contents.</E> The Administrator's recommended decision shall include: (1) a preliminary statement containing a description of the history of the proceedings, a brief explanation of the material issues of fact, law, or discretion presented on the record, and proposed findings and conclusions about such issues, including the reasons or basis for such proposed findings; (2) a ruling upon each proposed finding or conclusion submitted by interested persons; and (3) an appropriate proposed order effectuating the Administrator's recommendations.</P> <P>(c) <E T="03">Exceptions to recommended decision.</E> Immediately following the filing of the recommended decision, the Administrator shall give notice thereof and opportunity to file exceptions thereto by publication in the <E T="04">Federal Register</E>. Within a period of time specified in such notice any interested person may file with the hearing clerk exceptions to the Administrator's proposed order and a brief in support of such exceptions. Such exceptions shall be in writing, shall refer, where practicable, to the related pages of the transcript, and may suggest appropriate changes in the proposed order.</P> <P>(d) <E T="03">Omission of recommended decision.</E> The procedure provided in this section may be omitted only if the Secretary finds on the basis of the record that due and timely execution of the Secretary's functions imperatively and unavoidably requires such omission.</P> </SECTION> <SECTION> <PRTPAGE P="13"/> <SECTNO>§ 1200.14</SECTNO> <SUBJECT>Submission to Secretary.</SUBJECT> <P>Upon the expiration of the period allowed for filing exceptions or upon request of the Secretary, the hearing clerk shall transmit to the Secretary the record of the proceeding. Such record shall include: All motions and requests filed with the hearing clerk and rulings thereon; the certified transcript; any proposed findings or conclusions or written arguments or briefs that may have been filed; the Administrator's recommended decision, if any; and such exceptions as may have been filed.</P> </SECTION> <SECTION> <SECTNO>§ 1200.15</SECTNO> <SUBJECT>Decision by the Secretary.</SUBJECT> <P>After due consideration of the record, the Secretary shall render a decision. Such decision shall become a part of the record and shall include: (a) a statement of findings and conclusions, including the reasons or basis for such findings, upon all the material issues of fact, law, or discretion presented on the record, (b) a ruling upon each proposed finding and proposed conclusion not previously ruled upon in the record, (c) a ruling upon each exception filed by interested persons, and (d) either (1) denial of the proposal to issue an order, or (2) if the findings upon the record so warrant, an order, the provisions of which shall be set forth and such order shall be complete except for its effective date and any determinations to be made under § 1200.16: <E T="03">Except that</E> such order shall not be executed, issued, or made effective until and unless the Secretary determines that the requirements of § 1200.16 have been met.</P> </SECTION> <SECTION> <SECTNO>§ 1200.16</SECTNO> <SUBJECT>Execution of the order.</SUBJECT> <P>(a) <E T="03">Issuance of the order.</E> The Secretary shall, if the Secretary finds that it will tend to effectuate the purposes of the Act, issue and make effective the order which was filed as part of the Secretary's decision pursuant to § 1200.15: Except that the issuance of such order shall have been approved or favored by eligible voters as required by the applicable Act.</P> <P>(b) <E T="03">Effective date of order.</E> No order shall become effective in less than 30 days after its publication in the <E T="04">Federal Register</E>, unless the Secretary, upon good cause found and published with the order, fixes an earlier effective date.</P> <P>(c) <E T="03">Notice of issuance.</E> After issuance of the order, such order shall be filed with the hearing clerk, and notice thereof, together with notice of the effective date, shall be given by publication in the <E T="04">Federal Register</E>.</P> </SECTION> <SECTION> <SECTNO>§ 1200.17</SECTNO> <SUBJECT>Filing, extension of time, effective date of filing, and computation of time.</SUBJECT> <P>(a) <E T="03">Number of copies.</E> Except as provided otherwise herein, all documents or papers required or authorized by the foregoing provisions hereof to be filed with the hearing clerk shall be filed in quadruplicate. Any documents or papers so required or authorized to be filed with the hearing clerk shall be filed with the judge during the course of an oral hearing.</P> <P>(b) <E T="03">Extension of time.</E> The time for filing of any document or paper required or authorized by the foregoing provisions to be filed may be extended by the judge (before the record is so certified by the judge) or by the Administrator (after the record is so certified by the judge but before it is transmitted to the secretary), or by the Secretary (after the record is transmitted to the secretary) upon request filed, and if, in the judgment of the judge, Administrator, or the Secretary, as the case may be, there is good reason for the extension. All rulings made pursuant to this paragraph shall be filed with the hearing clerk.</P> <P>(c) <E T="03">Effective date of filing.</E> Any document or paper required or authorized in this subpart to be filed shall be deemed to be filed at the time it is received by the Hearing Clerk.</P> <P>(d) <E T="03">Computation of time.</E> Each day, including Saturdays, Sundays, and legal public holidays, shall be included in computing the time allowed for filing any document or paper: <E T="03">Provided,</E> That when the time for filing a document or paper expires on a Saturday, Sunday, or legal public holiday, the time allowed for filing the document or paper shall be extended to include the following business day.</P> <CITA>[47 FR 44684, Oct. 8, 1982, as amended at 67 FR 10830, Mar. 11, 2002]</CITA> </SECTION> <SECTION> <PRTPAGE P="14"/> <SECTNO>§ 1200.18</SECTNO> <SUBJECT>Ex parte communications.</SUBJECT> <P>(a) At no stage of the proceeding following the issuance of a notice of hearing and prior to the issuance of the Secretary's decision thereon shall an employee of the Department who is or may reasonably be expected to be involved in the decision process of the proceeding discuss ex parte the merits of the proceeding with any person having an interest in the proceeding or with any representative of such person: Except that procedural matters and status reports shall not be included within the limitation: And except further that an employee of the Department who is or may reasonably be expected to be involved in the decisional process of the proceeding may discuss the merits of the proceeding with such a person if all parties known to be interested in the proceeding have been given notice and an opportunity to participate. A memorandum of any such discussion shall be included in the record of the proceeding.</P> <P>(b) No person interested in the proceeding shall make or knowingly cause to be made to an employee of the Department who is or may reasonably be expected to be involved in the decisional process of the proceeding an ex parte communication relevant to the merits of the proceeding except as provided in paragraph (a) of this section.</P> <P>(c) If an employee of the Department who is or may reasonably be expected to be involved in the decisional process of the proceeding receives or makes a communication prohibited by this section, the Department shall place on the public record of the proceeding:</P> <P>(1) All such written communications;</P> <P>(2) Memoranda stating the substance of all such oral communications; and</P> <P>(3) All written responses, and memoranda, stating the substance of all oral responses thereto.</P> <P>(d) Upon receipt of a communication knowingly made or knowingly caused to be made by a party in violation of this section, the Department may, to the extent consistent with the interest of justice and the policy of the underlying statute, take whatever steps are deemed necessary to nullify the effect of such communication.</P> <P>(e) For the purposes of this section, <E T="03">ex parte communication</E> means any oral or written communication not on the public record with respect to which reasonable prior notice to all interested parties is not given, but which shall not include requests for status reports (including requests on procedural matters) on a proceeding.</P> </SECTION> <SECTION> <SECTNO>§ 1200.19</SECTNO> <SUBJECT>Additional documents to be filed with hearing clerk.</SUBJECT> <P>In addition to the documents or papers required or authorized by the foregoing provisions of this subpart to be filed with the hearing clerk, the hearing clerk shall receive for filing and shall have custody of all papers, reports, records, orders, and other documents which relate to the administration of any order and which the Secretary is required to issue or to approve.</P> </SECTION> <SECTION> <SECTNO>§ 1200.20</SECTNO> <SUBJECT>Hearing before Secretary.</SUBJECT> <P>The Secretary may act in the place and stead of a judge in any proceeding herein. When the Secretary so acts, the hearing clerk shall transmit the record to the Secretary at the expiration of the period provided for the filing of proposed findings of fact, conclusions, and orders, and the Secretary shall then, after due consideration of the record, issue the final decision in the proceeding: Except the Secretary may issue a tentative decision in which event the parties shall be afforded an opportunity to file exceptions before the issuance of the final decision.</P> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart B—Rules of Practice Governing Proceedings on Petitions to Modify or to be Exempted from Research, Promotion and Information Programs</HD> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>7 U.S.C. 2111, 2620, 2713, 4509, 4609, 4814, 4909, 6008, 6106, 6306, 6410, 6807, 7106, 7418, 7486, and 7806.</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>60 FR 37326, July 20, 1995, unless otherwise noted.</P> </SOURCE> <SECTION> <SECTNO>§ 1200.50</SECTNO> <SUBJECT>Words in the singular form.</SUBJECT> <P>Words in this subpart in the singular form shall be deemed to import the <PRTPAGE P="15"/>plural, and <E T="03">vice versa,</E> as the case may demand.</P> </SECTION> <SECTION> <SECTNO>§ 1200.51</SECTNO> <SUBJECT>Definitions.</SUBJECT> <P>As used in this subpart, the terms as defined in the Act shall apply with equal force and effect. In addition, unless the context otherwise requires:</P> <P>(a) The term <E T="03">Act</E> means the Commodity Research, Promotion, and Information Act of 1996 [7 U.S.C. 7401-7425]; the Cotton Research and Promotion Act, as amended [7 U.S.C. 2101-2119]; the Dairy Production Stabilization Act of 1983 [7 U.S.C. 4501-4513]; the Egg Research and Consumer Information Act, as amended [7 U.S.C. 2701-2718]; the Fluid Milk Promotion Act of 1990 [7 U.S.C. 6401-6417]; the Hass Avocado Promotion, Research, and Information Act of 2000 [7 U.S.C. 7801-7813]; the Honey Research, Promotion, and Consumer Information Act, as amended [7 U.S.C. 4601-4612]; the Mushroom Promotion, Research, and Consumer Information Act of 1990 [7 U.S.C. 6101-6112]; the Pecan Promotion and Research Act of 1990 [7 U.S.C. 6001-6013]; the Popcorn Promotion, Research, and Consumer Information Act [7 U.S.C. 7481-7491]; the Pork Promotion, Research, and Consumer Information Act [7 U.S.C. 4801-4819]; the Potato Research and Promotion Act, as amended [7 U.S.C. 2611-2627]; the Sheep Promotion, Research, and Information Act of 1994 [7 U.S.C. 7101-7111]; the Soybean Promotion, Research, and Consumer Information Act [7 U.S.C. 6301-6311]; and the Watermelon Research and Promotion Act, as amended, [7 U.S.C. 4901-4916].</P> <P>(b) <E T="03">Administrator</E> means the Administrator of the Agricultural Marketing Service or any officer or employee of the Department to whom authority has been delegated or may hereafter be delegated to act for the Administrator.</P> <P>(c) <E T="03">Decision</E> means the judge's initial decision and includes the judge's:</P> <P>(1) Findings of fact and conclusions with respect to all material issues of fact, law or discretion, as well as the reasons or basis thereof;</P> <P>(2) Order; and</P> <P>(3) Rulings on findings, conclusions and orders submitted by the parties.</P> <P>(d) <E T="03">Department</E> means the U.S. Department of Agriculture.</P> <P>(e) Hearing means that part of the proceedings which involves the submission of evidence.</P> <P>(f) <E T="03">Hearing clerk</E> means the Hearing Clerk, U.S. Department of Agriculture, Washington, D.C.</P> <P>(g) <E T="03">Judge</E> means any administrative law judge, appointed pursuant to 5 U.S.C. 3105, and assigned to the proceeding involved.</P> <P>(h) <E T="03">Order</E> means any order or any amendment thereto which may be issued pursuant to the Act. The term order shall include plans issued under the Acts listed in paragraph (a) of this section.</P> <P>(i) <E T="03">Party</E> includes the Department.</P> <P>(j) <E T="03">Person</E> means any individual, group of individuals, partnership, corporation, association, cooperative, or any other legal entity subject to an order or to whom an order is sought to be made applicable, or on whom an obligation has been imposed or is sought to be imposed under an order.</P> <P>(k) <E T="03">Petition</E> includes an amended petition.</P> <P>(l) <E T="03">Proceeding</E> means a proceeding before the Secretary arising under the pertinent section of an Act.</P> <P>(m) <E T="03">Secretary</E> means the Secretary of Agriculture of the United States, or any officer or employee of the Department to whom authority has heretofore been delegated, or to whom authority may hereafter be delegated, to act for the Secretary.</P> <CITA>[67 FR 44350, July 2, 2002]</CITA> </SECTION> <SECTION> <SECTNO>§ 1200.52</SECTNO> <SUBJECT>Institution of proceeding.</SUBJECT> <P>(a) <E T="03">Filing and service of petitions.</E> Any person subject to an order desiring to complain that such order or any provision of such order or any obligation imposed in connection with an order is not in accordance with law, shall file with the hearing clerk, in quintuplicate, a petition in writing addressed to the Secretary. Promptly upon receipt of the petition in writing the hearing clerk shall transmit a true copy thereof to the Administrator and the General Counsel, respectively.</P> <P>(b) <E T="03">Contents of petitions.</E> A petition shall contain:</P> <P>(1) The correct name, address, and principal place of business of the petitioner. If the petitioner is a corporation, such fact shall be stated, together <PRTPAGE P="16"/>with the name of the State of incorporation, the date of incorporation, and the names, addresses, and respective positions held by its officers and directors; if an unincorporated association, the names and addresses of its officers, and the respective positions held by them; if a partnership, the name and address of each partner;</P> <P>(2) Reference to the specific terms or provisions of the order, or the interpretation or application of such terms or provisions, which are complained of;</P> <P>(3) A full statement of the facts, avoiding a mere repetition of detailed evidence, upon which the petition is based, and which it is desired that the Secretary consider, setting forth clearly and concisely the nature of the petitioner's business and the manner in which petitioner claims to be affected by the terms or provisions of the order or the interpretation or application thereof, which are complained of;</P> <P>(4) A statement of the grounds on which the terms or provisions of the order, or the interpretation or application thereof, which are complained of, are challenged as not in accordance with law;</P> <P>(5) Requests for the specific relief which the petitioner desires the Secretary to grant; and</P> <P>(6) An affidavit by the petitioner, or, if the petitioner is not an individual, by an officer of the petitioner having knowledge of the facts stated in the petition, verifying the petition and stating that it is filed in good faith and not for purposes of delay.</P> <P>(c) <E T="03">A motion to dismiss a petition: filing, contents, and responses to a petition.</E> If the Administrator is of the opinion that the petition, or any portion thereof, does not substantially comply, in form or content, with the Act or with requirements of paragraph (b) of this section, the Administrator may, within 30 days after the service of the petition, file with the hearing clerk a motion to dismiss the petition, or any portion of the petition, on one or more of the grounds stated in this paragraph. Such motion shall specify the grounds for objection to the petition and if based, in whole or in part, on allegations of fact not appearing on the face of the petition, shall be accompanied by appropriate affidavits or documentary evidence substantiating such allegations of fact. The motion may be accompanied by a memorandum of law. Upon receipt of such motion, the hearing clerk shall cause a copy thereof to be served upon the petitioner, together with a notice stating that all papers to be submitted in opposition to such motion, including any memorandum of law, must be filed by the petitioner with the hearing clerk not later than 20 days after the service of such notice upon the petitioner. Upon the expiration of the time specified in such notice, or upon receipt of such papers from the petitioner, the hearing clerk shall transmit all papers which have been filed in connection with the motion to the judge for the judge's consideration.</P> <P>(d) <E T="03">Further proceedings.</E> Further proceedings on petitions to modify or to be exempted from the Order shall be governed by §§ 900.52(c)(2) through 900.71 of the Rules of Practice Governing Proceedings on Petitions To Modify or To Be Exempted From Marketing Orders. However, each reference to <E T="03">marketing order</E> in the title shall mean <E T="03">order.</E> </P> <CITA>[47 FR 44684, Oct. 8, 1982, as amended at 67 FR 10830, Mar. 11, 2002]</CITA> </SECTION> </SUBPART> </PART> <PART> <EAR>Pt. 1205</EAR> <HD SOURCE="HED">PART 1205—COTTON RESEARCH AND PROMOTION</HD> <CONTENTS> <SUBPART> <HD SOURCE="HED">Subpart—Procedures for Conduct of Sign-up Period</HD> <SUBJGRP> <HD SOURCE="HED">Definitions</HD> <SECHD>Sec.</SECHD> <SECTNO>1205.10</SECTNO> <SUBJECT>Act.</SUBJECT> <SECTNO>1205.11</SECTNO> <SUBJECT>Administrator.</SUBJECT> <SECTNO>1205.12</SECTNO> <SUBJECT>Cotton.</SUBJECT> <SECTNO>1205.13</SECTNO> <SUBJECT>Upland cotton.</SUBJECT> <SECTNO>1205.14</SECTNO> <SUBJECT>Department.</SUBJECT> <SECTNO>1205.15</SECTNO> <SUBJECT>Farm Service Agency.</SUBJECT> <SECTNO>1205.16</SECTNO> <SUBJECT>Order.</SUBJECT> <SECTNO>1205.17</SECTNO> <SUBJECT>Person.</SUBJECT> <SECTNO>1205.18</SECTNO> <SUBJECT>Producer.</SUBJECT> <SECTNO>1205.19</SECTNO> <SUBJECT>Importer.</SUBJECT> <SECTNO>1205.20</SECTNO> <SUBJECT>Representative period.</SUBJECT> <SECTNO>1205.21</SECTNO> <SUBJECT>Secretary.</SUBJECT> <SECTNO>1205.22</SECTNO> <SUBJECT>State.</SUBJECT> <SECTNO>1205.23</SECTNO> <SUBJECT>United States.</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Procedures</HD> <SECTNO>1205.24</SECTNO> <SUBJECT>General.</SUBJECT> <SECTNO>1205.25</SECTNO> <SUBJECT>Supervision of sign-up period.</SUBJECT> <SECTNO>1205.26</SECTNO> <SUBJECT>Eligibility.</SUBJECT> <SECTNO>1205.27</SECTNO> <SUBJECT>Participation in the sign-up period.</SUBJECT> <SECTNO>1205.28</SECTNO> <SUBJECT>Counting.<PRTPAGE P="17"/> </SUBJECT> <SECTNO>1205.29</SECTNO> <SUBJECT>Reporting results.</SUBJECT> <SECTNO>1205.30</SECTNO> <SUBJECT>Instructions and forms.</SUBJECT> </SUBJGRP> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart—Cotton Research and Promotion Order</HD> <SUBJGRP> <HD SOURCE="HED">Definitions</HD> <SECTNO>1205.301</SECTNO> <SUBJECT>Secretary.</SUBJECT> <SECTNO>1205.302</SECTNO> <SUBJECT>Act.</SUBJECT> <SECTNO>1205.303</SECTNO> <SUBJECT>Person.</SUBJECT> <SECTNO>1205.304</SECTNO> <SUBJECT>Cotton.</SUBJECT> <SECTNO>1205.305</SECTNO> <SUBJECT>Upland cotton.</SUBJECT> <SECTNO>1205.306</SECTNO> <SUBJECT>Bale.</SUBJECT> <SECTNO>1205.307</SECTNO> <SUBJECT>Fiscal period.</SUBJECT> <SECTNO>1205.308</SECTNO> <SUBJECT>Cotton Board.</SUBJECT> <SECTNO>1205.309</SECTNO> <SUBJECT>Producer.</SUBJECT> <SECTNO>1205.310</SECTNO> <SUBJECT>Importer.</SUBJECT> <SECTNO>1205.311</SECTNO> <SUBJECT>Handler.</SUBJECT> <SECTNO>1205.312</SECTNO> <SUBJECT>Handle.</SUBJECT> <SECTNO>1205.313</SECTNO> <SUBJECT>United States.</SUBJECT> <SECTNO>1205.314</SECTNO> <SUBJECT>Cotton-producing State.</SUBJECT> <SECTNO>1205.315</SECTNO> <SUBJECT>Marketing.</SUBJECT> <SECTNO>1205.316</SECTNO> <SUBJECT>Cotton-Producer organization.</SUBJECT> <SECTNO>1205.317</SECTNO> <SUBJECT>Cotton-Importer organization.</SUBJECT> <SECTNO>1205.318</SECTNO> <SUBJECT>Contracting organization or association.</SUBJECT> <SECTNO>1205.319</SECTNO> <SUBJECT>Cotton-producing region.</SUBJECT> <SECTNO>1205.320</SECTNO> <SUBJECT>Marketing year.</SUBJECT> <SECTNO>1205.321</SECTNO> <SUBJECT>Part and subpart.</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Cotton Board</HD> <SECTNO>1205.322</SECTNO> <SUBJECT>Establishment and membership.</SUBJECT> <SECTNO>1205.323</SECTNO> <SUBJECT>Term of office.</SUBJECT> <SECTNO>1205.324</SECTNO> <SUBJECT>Nominations.</SUBJECT> <SECTNO>1205.325</SECTNO> <SUBJECT>Selection.</SUBJECT> <SECTNO>1205.326</SECTNO> <SUBJECT>Acceptance.</SUBJECT> <SECTNO>1205.327</SECTNO> <SUBJECT>Vacancies.</SUBJECT> <SECTNO>1205.328</SECTNO> <SUBJECT>Alternate members.</SUBJECT> <SECTNO>1205.329</SECTNO> <SUBJECT>Procedure.</SUBJECT> <SECTNO>1205.330</SECTNO> <SUBJECT>Compensation and reimbursement.</SUBJECT> <SECTNO>1205.331</SECTNO> <SUBJECT>Powers.</SUBJECT> <SECTNO>1205.332</SECTNO> <SUBJECT>Duties.</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Research and Promotion</HD> <SECTNO>1205.333</SECTNO> <SUBJECT>Research and promotion.</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Expenses and Assessments</HD> <SECTNO>1205.334</SECTNO> <SUBJECT>Expenses.</SUBJECT> <SECTNO>1205.335</SECTNO> <SUBJECT>Assessments.</SUBJECT> <SECTNO>1205.336</SECTNO> <SUBJECT>“Importer Reimbursements”.</SUBJECT> <SECTNO>1205.337</SECTNO> <SUBJECT>Influencing governmental action.</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Reports, Books, and Records</HD> <SECTNO>1205.338</SECTNO> <SUBJECT>Reports.</SUBJECT> <SECTNO>1205.339</SECTNO> <SUBJECT>Books and records.</SUBJECT> <SECTNO>1205.340</SECTNO> <SUBJECT>Confidential treatment.</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Certification of Cotton Producer Organization</HD> <SECTNO>1205.341</SECTNO> <SUBJECT>Certification of cotton producer organization.</SUBJECT> <SECTNO>1205.342</SECTNO> <SUBJECT>Certification of cotton importer organizations.</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Miscellaneous</HD> <SECTNO>1205.343</SECTNO> <SUBJECT>Suspension and termination.</SUBJECT> <SECTNO>1205.345</SECTNO> <SUBJECT>Proceedings after termination.</SUBJECT> <SECTNO>1205.346</SECTNO> <SUBJECT>Effect of termination or amendment.</SUBJECT> <SECTNO>1205.347</SECTNO> <SUBJECT>Personal liability.</SUBJECT> <SECTNO>1205.348</SECTNO> <SUBJECT>Separability.</SUBJECT> </SUBJGRP> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart—Members of Cotton Board</HD> <SECTNO>1205.401</SECTNO> <SUBJECT>Definitions.</SUBJECT> <SECTNO>1205.402</SECTNO> <SUBJECT>Determination of Cotton Board membership.</SUBJECT> <SECTNO>1205.403</SECTNO> <SUBJECT>Nomination procedure.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart—Cotton Board Rules and Regulations</HD> <SUBJGRP> <HD SOURCE="HED">Definitions</HD> <SECTNO>1205.500</SECTNO> <SUBJECT>Terms defined.</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">General</HD> <SECTNO>1205.505</SECTNO> <SUBJECT>Communication.</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Assessments</HD> <SECTNO>1205.510</SECTNO> <SUBJECT>Levy of assessments.</SUBJECT> <SECTNO>1205.511</SECTNO> <SUBJECT>Payment and collection.</SUBJECT> <SECTNO>1205.512</SECTNO> <SUBJECT>Collecting handlers and time of collection of $1 per bale assessment.</SUBJECT> <SECTNO>1205.513</SECTNO> <SUBJECT>Collecting handlers and time of collection of the supplemental assessment.</SUBJECT> <SECTNO>1205.514</SECTNO> <SUBJECT>Customs Service and the Collection of the $1 per bale assessment.</SUBJECT> <SECTNO>1205.515</SECTNO> <SUBJECT>Customs Service and the collection of the supplemental assessment.</SUBJECT> <SECTNO>1205.516</SECTNO> <SUBJECT>Reports and remittance to the Cotton Board.</SUBJECT> <SECTNO>1205.517</SECTNO> <SUBJECT>Failure to report and remit.</SUBJECT> <SECTNO>1205.518</SECTNO> <SUBJECT>Receipts for payment of assessments.</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Reimbursements</HD> <SECTNO>1205.520</SECTNO> <SUBJECT>Procedure for obtaining reimbursement.</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Warehouse Receipts</HD> <SECTNO>1205.525</SECTNO> <SUBJECT>Entry of gin code number.</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Reports and Records</HD> <SECTNO>1205.530</SECTNO> <SUBJECT>Gin reports and reporting schedule.</SUBJECT> <SECTNO>1205.531</SECTNO> <SUBJECT>Records.</SUBJECT> <SECTNO>1205.532</SECTNO> <SUBJECT>Retention period for reports and records.</SUBJECT> <SECTNO>1205.533</SECTNO> <SUBJECT>Availability of reports and rec-ords.</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Confidential Information</HD> <SECTNO>1205.540</SECTNO> <SUBJECT>Confidential books, records, and reports.</SUBJECT> <SECTNO>1205.541</SECTNO> <SUBJECT>OMB control numbers.</SUBJECT> </SUBJGRP> </SUBPART> <SUBPART> <RESERVED>Subpart—Fiscal Period [Reserved]</RESERVED> </SUBPART> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>7 U.S.C. 2101-2118.</P> </AUTH> <SUBPART> <PRTPAGE P="18"/> <HD SOURCE="HED">Subpart—Procedures for Conduct of Sign-up Period</HD> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>62 FR 1660, Jan. 13, 1997, unless otherwise noted.</P> </SOURCE> <SUBJGRP> <HD SOURCE="HED">Definitions</HD> <SECTION> <SECTNO>§ 1205.10</SECTNO> <SUBJECT>Act.</SUBJECT> <P>The term <E T="03">Act</E> means the Cotton Research and Promotion Act, as amended [7 U.S.C 2101-2118; Public Law 89-502, 80 Stat 279, as amended].</P> </SECTION> <SECTION> <SECTNO>§ 1205.11</SECTNO> <SUBJECT>Administrator.</SUBJECT> <P>The term <E T="03">Administrator</E> means the Administrator of the Agricultural Marketing Service, or any officer or employee of USDA to whom authority has been delegated to act in the Administrator's stead.</P> </SECTION> <SECTION> <SECTNO>§ 1205.12</SECTNO> <SUBJECT>Cotton.</SUBJECT> <P>The term <E T="03">cotton</E> means all Upland cotton harvested in the United States and all imports of Upland cotton, including the Upland cotton content of products derived thereof. The term <E T="03">cotton</E> does not include imported cotton for which the assessment is less than the value of $2.00 per line item entry as established by regulations.</P> <CITA>[62 FR 1660, Jan. 13, 1997, as amended at 67 FR 21169, Apr. 30, 2002]</CITA> </SECTION> <SECTION> <SECTNO>§ 1205.13</SECTNO> <SUBJECT>Upland cotton.</SUBJECT> <P>The term <E T="03">Upland cotton</E> means all cultivated varieties of the species <E T="03">Gossypium hirsutum L.</E> </P> </SECTION> <SECTION> <SECTNO>§ 1205.14</SECTNO> <SUBJECT>Department.</SUBJECT> <P>The term <E T="03">Department</E> means the U.S. Department of Agriculture.</P> </SECTION> <SECTION> <SECTNO>§ 1205.15</SECTNO> <SUBJECT>Farm Service Agency.</SUBJECT> <P>The term <E T="03">Farm Service Agency</E>—formerly Agricultural Stabilization and Conservation Service (ASCS)—also referred to as “FSA,” means the Farm Service Agency of the Department.</P> </SECTION> <SECTION> <SECTNO>§ 1205.16</SECTNO> <SUBJECT>Order.</SUBJECT> <P>The term <E T="03">Order</E> means the Cotton Research and Promotion Order.</P> </SECTION> <SECTION> <SECTNO>§ 1205.17</SECTNO> <SUBJECT>Person.</SUBJECT> <P>The term <E T="03">person</E> means any individual 18 years of age or older, or any partnership, corporation, association, or any other entity.</P> </SECTION> <SECTION> <SECTNO>§ 1205.18</SECTNO> <SUBJECT>Producer.</SUBJECT> <P>The term <E T="03">producer</E> means any person who shares in a cotton crop, or in the proceeds thereof, as an owner of the farm, cash tenant, landlord of a share tenant, share tenant, or sharecropper, that planted the cotton during the representative period.</P> <CITA>[67 FR 21169, Apr. 30, 2002]</CITA> </SECTION> <SECTION> <SECTNO>§ 1205.19</SECTNO> <SUBJECT>Importer.</SUBJECT> <P>The term <E T="03">importer</E> means any person who enters, or withdraws from warehouse, cotton for consumption in the customs territory of the United States, and the term import means any such entry.</P> </SECTION> <SECTION> <SECTNO>§ 1205.20</SECTNO> <SUBJECT>Representative period.</SUBJECT> <P>The term <E T="03">representative period</E> means the 2001 calendar year.</P> <CITA>[67 FR 21169, Apr. 30, 2002]</CITA> </SECTION> <SECTION> <SECTNO>§ 1205.21</SECTNO> <SUBJECT>Secretary.</SUBJECT> <P>The term <E T="03">Secretary</E> means the Secretary of Agriculture of the United States, or any other officer or employee of the Department to whom authority has been delegated to act in the Secretary's stead.</P> </SECTION> <SECTION> <SECTNO>§ 1205.22</SECTNO> <SUBJECT>State.</SUBJECT> <P>The term <E T="03">State</E> means each of the 50 states.</P> </SECTION> <SECTION> <SECTNO>§ 1205.23</SECTNO> <SUBJECT>United States.</SUBJECT> <P>The term <E T="03">United States</E> means the 50 states of the United States of America.</P> </SECTION> <HD SOURCE="HED">Procedures</HD> <SECTION> <SECTNO>§ 1205.24</SECTNO> <SUBJECT>General.</SUBJECT> <P>A sign-up period will be conducted to determine whether eligible producers and importers favor the conduct of a referendum on the continuance of the 1991 amendments to the Order.</P> <P>(a) If the Secretary determines, based on the results of the sign-up period, that at least 10 percent (4,622) or more of the number of cotton producers and importers who voted in the 1991 referendum request the conduct of a continuance referendum on the 1991 Order amendments, a referendum will be held <PRTPAGE P="19"/>within 12 months after the end of the sign-up period. Not more than 20 percent of the total requests counted toward the 10 percent figure may be from producers from any one state or from importers of cotton.</P> <P>(b) If the Secretary determines that fewer than 10 percent (4,622) of the number of producers and importers who voted in the 1991 referendum do not favor a continuance referendum, no referendum will be held.</P> </SECTION> <SECTION> <SECTNO>§ 1205.25</SECTNO> <SUBJECT>Supervision of sign-up period.</SUBJECT> <P>The Administrator shall be responsible for conducting the sign-up period in accordance with this subpart.</P> </SECTION> <SECTION> <SECTNO>§ 1205.26</SECTNO> <SUBJECT>Eligibility.</SUBJECT> <P>Only persons who meet the eligibility requirements in this subpart may participate in the sign-up period. No person is entitled to sign up more than once.</P> <P>(a) Except as set forth in paragraphs (b) and (c) of this section, the following persons are eligible to request the conduct of a continuance referendum:</P> <P>(1) Any person who was engaged in the production of Upland cotton during calendar year 2001; and</P> <P>(2) Any person who was an importer of Upland cotton and imported Upland cotton in excess of the value of $2.00 per line item entry during calendar year 2001.</P> <P>(b) A general partnership is not eligible to request a continuance referendum, however, the individual partners of an eligible general partnership are each entitled to submit a request.</P> <P>(c) Where a group of individuals is engaged in the production of Upland cotton under the same lease or cropping agreement, only the individual or individuals who signed or entered into the lease or cropping agreement are eligible to participate in the sign-up period. Individuals who are engaged in the production of Upland cotton as joint tenants, tenants in common, or owners of community property, are each entitled to submit a request if they share in the proceeds of the required crop as owners, cash tenants, share tenants, sharecroppers or landlords of a fixed rent, standing rent or share tenant.</P> <P>(d) An officer or authorized representative of a qualified corporation, association, or limited partnership may submit a request on behalf of that corporation, association, or limited partnership.</P> <P>(e) A guardian, administrator, executor, or trustee of any qualified estate or trust may submit a request on behalf of that estate or trust.</P> <P>(f) An individual may not submit a request on behalf of another individual.</P> <P>(g) Participation in the sign-up by proxy or power of attorney is not authorized.</P> <CITA>[62 FR 1660, Jan. 13, 1997, as amended at 67 FR 21169, Apr. 30, 2002]</CITA> </SECTION> <SECTION> <SECTNO>§ 1205.27</SECTNO> <SUBJECT>Participation in the sign-up period.</SUBJECT> <P>The sign-up period will be from June 3, 2002, through August 30, 2002. Those persons who favor the conduct of a continuance referendum and who wish to request that USDA conduct such a referendum may do so by submitting such request in accordance with this section. All requests must be received by the appropriate USDA office by August 30, 2002.</P> <P>(a) Before the sign-up period begins, FSA shall establish a list of known, eligible, Upland cotton producers in the county that it serves during the representative period, and shall also establish a list of known, eligible Upland cotton importers.</P> <P>(b) Before the start of the sign-up period, USDA shall mail a request form to each known, eligible, cotton importer. Importers who wish to request a referendum and who do not receive a request form in the mail by June 3, 2002, may participate in the sign-up period by submitting a signed, written request for a continuance referendum, along with a copy of a U.S. Customs form 7501 showing payment of a cotton assessment for calendar year 2001. Importers must submit their requests and supporting documents to USDA, FSA, ORAS, Attention: Phil Brockman, PO Box 23278, Washington, DC 20026-3278. All requests and supporting documents must be received by the appropriate FSA office by August 30, 2002.</P> <P>(c) Each person on the county FSA office lists may participate in the sign-up period. Eligible producers must date <PRTPAGE P="20"/>and sign their name on the “County FSA Office Sign-up Sheet.” A person whose name does not appear on the county FSA office list may participate in the sign-up period. Such person must be identified on FSA-578 during the representative period or provide documentation that demonstrates that the person was a cotton producer during the representative period. Cotton producers not listed on the FSA-578 shall submit at least one sales receipt for cotton they planted during the representative period. Cotton producers must make requests to the county FSA office where the producer's farm is located. If the producer's land is in more than one county, the producer shall make request at the county office where FSA administratively maintains and processes the producer's farm records. It is the responsibility of the person to provide the information needed by the county FSA office to determine eligibility. It is not the responsibility of the county FSA office to obtain this information. If any person whose name does not appear on the county FSA office list fails to provide at least one sales receipt for the cotton they produced during the representative period, the county FSA office shall determine that such person is ineligible to participate in the sign-up period, and shall note ineligible in the remarks section next to the person's name on the county FSA office sign-up sheet. In lieu of personally appearing at a county FSA office, eligible producers may request a sign-up form from the county FSA office where the producer's farm is located. If the producer's land is in more than one county, the producer shall make the request for the sign-up form at the county office where FSA administratively maintains and processes the producer's farm records. Such request must be accompanied by a copy of at least one sales receipt for cotton they produced during the representative period. The appropriate FSA office must receive all completed forms and supporting documentation by August 30, 2002.</P> <CITA>[67 FR 21169, Apr. 30, 2002]</CITA> </SECTION> <SECTION> <SECTNO>§ 1205.28</SECTNO> <SUBJECT>Counting.</SUBJECT> <P>County FSA offices and FSA, Director for Operations Review and Analysis Staff (ORAS), shall begin counting requests no later than September 3, 2002. FSA shall determine the number of eligible persons who favor the conduct of a continuance referendum.</P> <CITA>[62 FR 1660, Jan. 13, 1997, as amended at 67 FR 21170, Apr. 30, 2002]</CITA> </SECTION> <SECTION> <SECTNO>§ 1205.29</SECTNO> <SUBJECT>Reporting results.</SUBJECT> <P>(a) Each county FSA office shall prepare and transmit to the state FSA office, by September 10, 2002, a written report of the number of eligible producers who requested the conduct of a referendum, and the number of ineligible persons who made requests.</P> <P>(b) ORAS shall prepare, by September 10, 2002, a written report of the number of eligible importers who requested the conduct of a referendum, and the number of ineligible persons who made requests.</P> <P>(c) Each state FSA office shall, by September 17, 2002, forward all county reports to ORAS. By September 24, 2002, ORAS shall forward its report of the total number of eligible producers and importers that requested a continuance referendum, through the sign-up period, to the Deputy Administrator, Cotton Program, AMS, Stop 0224, 1400 Independence Ave., SW, Washington, DC 20250-0224.</P> <P>(d) The Chief of the Research and Promotion Staff, Cotton Program, shall prepare a report of the requests received, including the number of eligible persons who requested the conduct of a referendum, and the number of ineligible persons who made requests, to the Deputy Administrator of the Cotton Program, and shall maintain one copy of the report where it will be available for public inspection for a period of 5 years following the end of the sign-up period.</P> <P>(e) The Deputy Administrator of the Cotton Program shall prepare and submit to the Secretary a report of the results of the sign-up period. The Secretary will conduct a referendum if requested by 10 percent or more of the number of cotton producers and importers voting in the most recent (July 1991) referendum, but not more than 20 percent of the total requests counted toward the 10 percent figure may be from producers in any one state or <PRTPAGE P="21"/>from importers of cotton. The Secretary shall announce the results of the sign-up period in a separate notice in the <E T="04">Federal Register</E>.</P> <CITA>[67 FR 21170, Apr. 30, 2002]</CITA> </SECTION> <SECTION> <SECTNO>§ 1205.30</SECTNO> <SUBJECT>Instructions and forms.</SUBJECT> <P>The Administrator is hereby authorized to prescribe additional instructions and forms consistent with the provisions of this subpart to govern conduct of the sign-up period.</P> </SECTION> </SUBJGRP> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart—Cotton Research and Promotion Order</HD> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>31 FR 16758, Dec. 31, 1966, unless otherwise noted.</P> </SOURCE> <SUBJGRP> <HD SOURCE="HED">Definitions</HD> <SECTION> <SECTNO>§ 1205.301</SECTNO> <SUBJECT>Secretary.</SUBJECT> <P> <E T="03">Secretary</E> means the Secretary of Agriculture of the United States, or any officer or employee of the U.S. Department of Agriculture to whom authority has heretofore been delegated, or to whom authority may hereafter be delegated, to act in his stead.</P> </SECTION> <SECTION> <SECTNO>§ 1205.302</SECTNO> <SUBJECT>Act.</SUBJECT> <P> <E T="03">Act</E> means the Cotton Research and Promotion Act, as amended (7 U.S.C. 2101-2118; Public Law 89-502, 80 Stat 279, as amended).</P> <CITA>[56 FR 64472, Dec. 10, 1991]</CITA> </SECTION> <SECTION> <SECTNO>§ 1205.303</SECTNO> <SUBJECT>Person.</SUBJECT> <P> <E T="03">Person</E> means any individual, partnership, corporation, association, or any other entity.</P> </SECTION> <SECTION> <SECTNO>§ 1205.304</SECTNO> <SUBJECT>Cotton.</SUBJECT> <P> <E T="03">Cotton</E> means:</P> <P>(a) All Upland cotton harvested in the United States, and, except as used in §§ 1205.311 and 1205.335, includes cottonseed of such cotton and the products derived from such cotton and its seed, and</P> <P>(b) Imports of Upland cotton, including the Upland cotton content of the products derived thereof. The term “cotton” shall not, however, include:</P> <P>(1) Any entry of imported cotton by an importer which has a value or weight less than a de minimis amount established in regulations issued by the Secretary and</P> <P>(2) Industrial products as that term is defined by regulation.</P> <CITA>[56 FR 64472, Dec. 10, 1991]</CITA> </SECTION> <SECTION> <SECTNO>§ 1205.305</SECTNO> <SUBJECT>Upland cotton.</SUBJECT> <P> <E T="03">Upland cotton</E> means all cultivated varieties of the species Gossypium hirsutum L.</P> <CITA>[56 FR 64472, Dec. 10, 1991]</CITA> </SECTION> <SECTION> <SECTNO>§ 1205.306</SECTNO> <SUBJECT>Bale.</SUBJECT> <P>Except as used in § 1205.322, <E T="03">Bale</E> means the package of lint cotton produced at a cotton gin or the amount of processed cotton in a manufactured product that is equivalent to a 500 pound bale of lint cotton.</P> <CITA>[56 FR 64472, Dec. 10, 1991]</CITA> </SECTION> <SECTION> <SECTNO>§ 1205.307</SECTNO> <SUBJECT>Fiscal period.</SUBJECT> <P> <E T="03">Fiscal period</E> is the 12-month budgetary period and means the calendar year unless the Cotton Board, with the approval of the Secretary, selects some other 12-months budgetary period.</P> <CITA>[31 FR 16758, Dec. 31, 1966. Redesignated at 56 FR 64472, Dec. 10, 1991]</CITA> </SECTION> <SECTION> <SECTNO>§ 1205.308</SECTNO> <SUBJECT>Cotton Board.</SUBJECT> <P> <E T="03">Cotton Board</E> means the administrative body established pursuant to § 1205.318.</P> <CITA>[31 FR 16758, Dec. 31, 1966. Redesignated at 56 FR 64472, Dec. 10, 1991]</CITA> </SECTION> <SECTION> <SECTNO>§ 1205.309</SECTNO> <SUBJECT>Producer.</SUBJECT> <P> <E T="03">Producer</E> means any person who shares in a cotton crop actually harvested on a farm, or in the proceeds thereof, as an owner of the farm, cash tenant, landlord of a share tenant, share tenant, or sharecropper.</P> <CITA>[31 FR 16758, Dec. 31, 1966. Redesignated at 56 FR 64472, Dec. 10, 1991]</CITA> </SECTION> <SECTION> <SECTNO>§ 1205.310</SECTNO> <SUBJECT>Importer.</SUBJECT> <P> <E T="03">Importer</E> means many person who enters, or withdraws from warehouse, cotton for consumption in the customs territory of the United States, and the term <E T="03">import</E> means any such entry.</P> <CITA>[56 FR 64472, Dec. 10, 1991]</CITA> </SECTION> <SECTION> <PRTPAGE P="22"/> <SECTNO>§ 1205.311</SECTNO> <SUBJECT>Handler.</SUBJECT> <P> <E T="03">Handler</E> means any person who handles cotton, including the Commodity Credit Corporation.</P> <CITA>[31 FR 16758, Dec. 31, 1966. Redesignated at 56 FR 64472, Dec. 10, 1991]</CITA> </SECTION> <SECTION> <SECTNO>§ 1205.312</SECTNO> <SUBJECT>Handle.</SUBJECT> <P> <E T="03">Handle</E> means to harvest, gin, warehouse, compress, purchase, market, transport, or otherwise acquire ownership or control of cotton.</P> <CITA>[31 FR 16758, Dec. 31, 1966. Redesignated at 56 FR 64472, Dec. 10, 1991]</CITA> </SECTION> <SECTION> <SECTNO>§ 1205.313</SECTNO> <SUBJECT>United States.</SUBJECT> <P> <E T="03">United States</E> means the 50 States of the United States of America.</P> <CITA>[31 FR 16758, Dec. 31, 1966. Redesignated at 56 FR 64472, Dec. 10, 1991]</CITA> </SECTION> <SECTION> <SECTNO>§ 1205.314</SECTNO> <SUBJECT>Cotton-producing State</SUBJECT> <P> <E T="03">Cotton-producing State</E> means each of the following States and combinations of States: </P> <EXTRACT> <FP SOURCE="FP-1">Alabama-Florida; Arizona; Arkansas; California-Nevada; Georgia; Louisiana; Mississippi; Missouri-Illinois; New Mexico; North Carolina-Virginia; Oklahoma; South Carolina; Tennessee-Kentucky; Texas.</FP> </EXTRACT> <CITA>[31 FR 16758, Dec. 31, 1966. Redesignated at 56 FR 64472, Dec. 10, 1991]</CITA> </SECTION> <SECTION> <SECTNO>§ 1205.315</SECTNO> <SUBJECT>Marketing.</SUBJECT> <P> <E T="03">Marketing</E> includes the sale of cotton or the pledging of cotton to the Commodity Credit Corporation as collateral for a price support loan.</P> <CITA>[31 FR 16758, Dec. 31, 1966. Redesignated at 56 FR 64472, Dec. 10, 1991]</CITA> </SECTION> <SECTION> <SECTNO>§ 1205.316</SECTNO> <SUBJECT>Cotton-Producer organization.</SUBJECT> <P> <E T="03">Cotton-Producer organization</E> means any organization which has been certified by the Secretary pursuant to § 1205.341.</P> <CITA>[56 FR 64472, Dec. 10, 1991]</CITA> </SECTION> <SECTION> <SECTNO>§ 1205.317</SECTNO> <SUBJECT>Cotton-Importer organization.</SUBJECT> <P> <E T="03">Cotton-Importer organization</E> means any organization which has been certified by the Secretary pursuant to § 1205.342.</P> <CITA>[56 FR 64472, Dec. 10, 1991]</CITA> </SECTION> <SECTION> <SECTNO>§ 1205.318</SECTNO> <SUBJECT>Contracting organization or association.</SUBJECT> <P> <E T="03">Contracting organization or association</E> means the organization or association with which the Cotton Board has entered into a contract or agreement pursuant to § 1205.328(c).</P> <CITA>[31 FR 16758, Dec. 31, 1966. Redesignated at 56 FR 64472, Dec. 10, 1991]</CITA> </SECTION> <SECTION> <SECTNO>§ 1205.319</SECTNO> <SUBJECT>Cotton-producing region.</SUBJECT> <P> <E T="03">Cotton-producing region</E> means each of the following groups of cotton-producing States:</P> <P>(a) Southeast Region: Alabama-Florida, Georgia, North Carolina-Virginia, and South Carolina;</P> <P>(b) Midsouth Region: Arkansas, Louisiana, Mississippi, Missouri-Illinois, and Tennessee-Kentucky;</P> <P>(c) Southwest Region: Oklahoma and Texas;</P> <P>(d) Western Region: Arizona, California-Nevada, and New Mexico.</P> <CITA>[31 FR 16758, Dec. 31, 1966. Redesignated at 56 FR 64472, Dec. 10, 1991]</CITA> </SECTION> <SECTION> <SECTNO>§ 1205.320</SECTNO> <SUBJECT>Marketing year.</SUBJECT> <P> <E T="03">Marketing year</E> means a consecutive 12-month period ending on July 31.</P> <CITA>[31 FR 16758, Dec. 31, 1966. Redesignated at 56 FR 64472, Dec. 10, 1991]</CITA> </SECTION> <SECTION> <SECTNO>§ 1205.321</SECTNO> <SUBJECT>Part and subpart.</SUBJECT> <P> <E T="03">Part</E> means the cotton research and promotion order and all rules, regulations and supplemental orders issued pursuant to the act and the order, and the aforesaid order shall be a “subpart” of such part.</P> <CITA>[31 FR 16758, Dec. 31, 1966. Redesignated at 56 FR 64472, Dec. 10, 1991]</CITA> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Cotton Board</HD> <SECTION> <SECTNO>§ 1205.322</SECTNO> <SUBJECT>Establishment and membership.</SUBJECT> <P>(a) There is hereby established a Cotton Board composed of:</P> <P>(1) Representatives of cotton producers, each of whom shall have an alternate, selected by the Secretary from nominations submitted by eligible producer organizations within a cotton-producing state, as certified pursuant to § 1205.341, or, if the Secretary determines that a substantial number of producers are not members of or their <PRTPAGE P="23"/>interests are not represented by any such eligible organizations, from nominations made by producers in a manner authorized by the Secretary, and</P> <P>(2) Representatives of cotton importers, each of whom shall have an alternate, selected by the Secretary from nominations submitted by eligible importer organizations, as certified pursuant to § 1205.342, or, if the Secretary determines that a substantial number of importers are not members of or their interests are not represented by any such eligible organization, from nominations made by importers in a manner authorized by the Secretary.</P> <P>(b) Representation on the Cotton Board shall be as follows:</P> <P>(1) Each cotton-producing state shall have at least one member and an additional member for each 1 million bales or major fraction (more than half) thereof of cotton produced in the state and marketed above one million bales during the period specified in the regulations for determining Board membership; and</P> <P>(2) Cotton importers shall be represented by an appropriate number of representatives, as determined by the Secretary, of importers of cotton subject to assessment during the period specified in the regulations for determining Board membership. That number shall not be less than two members. The initial importer representation on the Board shall consist of four representatives. The Secretary may, after consultation with organizations representing importers, reduce or increase the number of importer representatives, in the manner prescribed by the Secretary.</P> <CITA>[56 FR 64472, Dec. 10, 1991]</CITA> </SECTION> <SECTION> <SECTNO>§ 1205.323</SECTNO> <SUBJECT>Term of office.</SUBJECT> <P>All members of the Board and their alternatives shall serve for terms of three years. Each member and alternate shall continue to serve until a successor is selected and has qualified.</P> <CITA>[56 FR 64472, Dec. 10, 1991]</CITA> </SECTION> <SECTION> <SECTNO>§ 1205.324</SECTNO> <SUBJECT>Nominations.</SUBJECT> <P>All nominations authorized under § 1205.322 shall be made within such a period of time and in such a manner as the Secretary shall prescribe. The eligible producer organizations within each cotton-producing state, as certified pursuant to § 1205.341, shall caucus for the purpose of jointly nominating two qualified persons for each member and each alternate member to be selected to represent the cotton producers of such cotton-producing state. The eligible importer organizations, as certified pursuant to § 1205.342, shall caucus for the purpose of jointly nominating two qualified persons for each member and alternate member to be selected to represent cotton importers. If joint agreement is not reached with respect to the nominees for any such position, each such organization may nominate two qualified persons for any position on which there is no agreement.</P> <CITA>[56 FR 64472, Dec. 10, 1991; 56 FR 66670, Dec. 24, 1991]</CITA> </SECTION> <SECTION> <SECTNO>§ 1205.325</SECTNO> <SUBJECT>Selection.</SUBJECT> <P>From the nominations made pursuant to §§ 1205.322 and 1205.324, the Secretary shall select the members of the Board and an alternate for each member on the basis of representation provided for in §§ 1205.322 and 1205.323.</P> <CITA>[56 FR 64473, Dec. 10, 1991]</CITA> </SECTION> <SECTION> <SECTNO>§ 1205.326</SECTNO> <SUBJECT>Acceptance.</SUBJECT> <P>Any person selected by the Secretary as a member or as an alternate member of the Board shall qualify by filing a written acceptance with the Secretary promptly after being notified of such selection.</P> <CITA>[31 FR 16758, Dec. 31, 1966. Redesignated at 56 FR 64472, Dec. 10, 1991]</CITA> </SECTION> <SECTION> <SECTNO>§ 1205.327</SECTNO> <SUBJECT>Vacancies.</SUBJECT> <P>To fill any vacancy occasioned by the failure of any person selected as a member or as an alternate member of the Board to qualify, or in the event of death, removal, resignation or disqualification of any member or alternate member of the Board, a successor for the unexpired term of such member or alternate member of the Board shall be nominated and selected in the manner specified in §§ 1205.322, 1205.324 and 1205.325.</P> <CITA>[56 FR 64473, Dec. 10, 1991]</CITA> </SECTION> <SECTION> <PRTPAGE P="24"/> <SECTNO>§ 1205.328</SECTNO> <SUBJECT>Alternate members.</SUBJECT> <P>An alternate member of the Board, during the absence of the member for whom the person is the alternate, shall act in the place and stead of such member and perform such other duties as assigned. In the event of death, removal, resignation or disqualification of a member, the alternate for the member shall act for the member until a successor for such member is selected and qualified. In the event that both a producer member of the Board and the member's alternate are unable to attend a meeting, the Board may designate any other alternate member from the same cotton-producing state or region to serve in such member's place and stead of such meeting. In the event that both an importer member and the member's alternate are unable to attend a meeting, the Board may designate any other importer alternate member to serve in such member's place and stead at such meeting.</P> <CITA>[56 FR 64473, Dec. 10, 1991]</CITA> </SECTION> <SECTION> <SECTNO>§ 1205.329</SECTNO> <SUBJECT>Procedure.</SUBJECT> <P>A majority of the members of the Board, or alternates acting for members, shall constitute a quorum and any action of the Board shall require the concurring votes of at least a majority of those present and voting. At assembled meetings all votes shall be cast in person. For routine and noncontroversial matters which do not require deliberation and the exchange of views, and in matters of an emergency nature when there is not enough time to call an assembled meeting of the Board, the Board may also take action upon the concurring votes of a majority of its members by mail, telegraph or telephone, but any such action by telephone shall be confirmed promptly in writing.</P> <CITA>[31 FR 16758, Dec. 31, 1966. Redesignated at 56 FR 64472, Dec. 10, 1991]</CITA> </SECTION> <SECTION> <SECTNO>§ 1205.330</SECTNO> <SUBJECT>Compensation and reimbursement.</SUBJECT> <P>The members of the Board, and alternates when acting as members, shall serve without compensation but shall be reimbursed for necessary expenses, as approved by the Board, incurred by them in the performance of their duties under this subpart.</P> <CITA>[31 FR 16758, Dec. 31, 1966. Redesignated at 56 FR 64472, Dec. 10, 1991]</CITA> </SECTION> <SECTION> <SECTNO>§ 1205.331</SECTNO> <SUBJECT>Powers.</SUBJECT> <P>The Board shall have the following powers:</P> <P>(a) To administer the provisions of this subpart in accordance with its terms and provisions;</P> <P>(b) Subject to the approval of the Secretary, to make rules and regulations to effectuate the terms and provisions of this subpart including the designation of the handler, importer, or other person responsible for collecting the assessments authorized by § 1205.335, which designation may be of different handlers, importers, or other persons, or classes of handlers, importers, or other persons, to recognize differences in marketing practices or procedures in any state or area;</P> <P>(c) To receive, investigate, and report to the Secretary complaints of violations of the provisions of this subpart;</P> <P>(d) To recommend to the Secretary amendments to this subpart.</P> <CITA>[31 FR 16758, Dec. 31, 1966, as amended at 42 FR 4813, Jan. 26, 1977. Redesignated and amended at 56 FR 64472, 64473, Dec. 10, 1991]</CITA> </SECTION> <SECTION> <SECTNO>§ 1205.332</SECTNO> <SUBJECT>Duties.</SUBJECT> <P>The Board shall have the following duties:</P> <P>(a) To select from among its members a chairman and such other officers as may be necessary for the conduct of its business, and to define their duties;</P> <P>(b) To appoint or employ such persons as it may deem necessary and to determine the compensation and to define the duties of each;</P> <P>(c) With the approval of the Secretary, to enter into contracts or agreements for the development and submission to it of research and promotion plans or projects authorized by § 1205.333, and for the carrying out of such plans or projects when approved by the Secretary, and for the payment of costs thereof with funds collected pursuant to § 1205.335, with an organization or association whose governing body consists of cotton producers selected by the cotton-producer organizations certified by the Secretary under <PRTPAGE P="25"/>§ 1205.341, in such manner that the producers of each cotton-producing state will, to the extent practicable, have representation on the governing body of such organization in the proportion that the cotton marketed by the producers of such state bears to the total marketed by the producers of all cotton-producing states. Any such contract or agreement shall provide that such contracting organization or association shall develop and submit annually to the Cotton Board, for the purpose of review and making recommendations to the Secretary, a program of research, advertising, and sales promotion projects, together with a budget, or budgets, which shall show the estimated cost to be incurred for such projects, and that any such projects shall become effective upon approval by the Secretary. Any such contract or agreement shall also provide that the contracting organization shall keep accurate records of all its transactions, which shall be available to the Secretary and Board on demand, and make an annual report to the Cotton Board of activities carried out and an accounting for funds received and expended, and such other reports as the Secretary may require;</P> <P>(d) To review and submit to the Secretary any research and promotion plans or projects which have been developed and submitted to it by the contracting organization or association, together with its recommendations with respect to the approval thereof by the Secretary;</P> <P>(e) To submit to the Secretary for his approval budgets on a fiscal period basis of its anticipated expenses and disbursements in the administration of this subpart, including probable costs of advertising and promotion and research and development projects as estimated in the budget or budgets submitted to it by the contracting organization or association, with the Board's recommendations with respect thereto;</P> <P>(f) To maintain such books and rec-ords and prepare and submit such reports from time to time to the Secretary as he may prescribe, and to make appropriate accounting with respect to the receipt and disbursement of all funds entrusted to it;</P> <P>(g) To cause its books to be audited by a competent public accountant at least once each fiscal period and at such other times as the Secretary may request, and to submit a copy of each such audit to the Secretary;</P> <P>(h) To give the Secretary the same notice of meetings of the Board as is given to members in order that his representative may attend such meetings;</P> <P>(i) To act as intermediary between the Secretary and any producer, importer, or handler.</P> <P>(j) To submit to the Secretary such information as he may request.</P> <CITA>[31 FR 16758, Dec. 31, 1966. Redesignated and amended at 56 FR 64472, 64473, Dec. 10, 1991]</CITA> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Research and Promotion</HD> <SECTION> <SECTNO>§ 1205.333</SECTNO> <SUBJECT>Research and promotion.</SUBJECT> <P>The Cotton Board shall in the manner prescribed in § 1205.332(c) establish or provide for:</P> <P>(a) The establishment, issuance, effectuation, and administration of appropriate plans or projects for the advertising and sales promotion of cotton and its products, which plans or projects shall be directed toward increasing the general demand for cotton or its products in accordance with section 6(a) of the act;</P> <P>(b) The establishment and carrying on of research and development projects and studies with respect to the production, ginning, processing, distribution, or utilization of cotton and its products in accordance with section 6(b) of the act, to the end that the marketing and utilization of cotton may be encouraged, expanded, improved, or made more efficient.</P> <CITA>[31 FR 16758, Dec. 31, 1966. Redesignated and amended at 56 FR 64472, 64473, Dec. 10, 1991]</CITA> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Expenses and Assessments</HD> <SECTION> <SECTNO>§ 1205.334</SECTNO> <SUBJECT>Expenses.</SUBJECT> <P>(a) The Board is authorized to incur such expenses as the Secretary finds are reasonable and likely to be incurred by the Board for its maintenance and functioning and to enable it to exercise its powers and perform its duties in accordance with the provisions of this subpart.</P> <P>(b) The Board shall reimburse the Secretary for:<PRTPAGE P="26"/> </P> <P>(1) Expenses up to $300,000 incurred by the Secretary in connection with any referendum conducted under the Act and</P> <P>(2) Expenses incurred by the Department of Agriculture for administrative and supervisory costs up to five employee years annually.</P> <P>(c) The Board shall reimburse any agency of the United States Government that assists in administering the import provisions of the order for a reasonable amount of the expenses incurred by that agency in connection therewith.</P> <P>(d) The funds to cover such expenses incurred under paragraphs (a), (b) and (c) of this section shall be paid from assessments received pursuant to § 1205.335.</P> <CITA>[42 FR 4813, Jan. 26, 1977. Redesignated and amended at 56 FR 64472, 64473, Dec. 10, 1991]</CITA> </SECTION> <SECTION> <SECTNO>§ 1205.335</SECTNO> <SUBJECT>Assessments.</SUBJECT> <P>(a) Each cotton producer or other person for whom cotton is being handled shall pay to the handler thereof designated by the Cotton Board pursuant to regulations issued by the Secretary and such handler shall collect from the producer or other person for whom the cotton, including cotton owned by the handler, is being handled, and shall pay to the Cotton Board, at such times and in such manner as prescribed by regulations issued by the Secretary, assessments as prescribed in paragraphs (a) (1) and (2) of this section:</P> <P>(1) An assessment at the rate of $1 per bale of cotton handled;</P> <P>(2) A supplemental assessment on cotton handled which shall not exceed one percent of the value of such cotton as determined by the Cotton Board and approved by the Secretary and published in the Cotton Board rules and regulations. The rate of the supplemental assessment may be increased or decreased by the Cotton Board with the approval of the Secretary. The Secretary shall prescribe by regulation whether the assessment rate shall be levied on:</P> <P>(i) The current value of the cotton, or</P> <P>(ii) An average value determined from current and/or historical cotton prices and converted to a fixed amount for each bale.</P> <P>(b) Each importer of cotton shall pay to the Cotton Board through the U.S. Customs Service, or in such other manner and at such times as prescribed by regulations issued by the Secretary, assessments as prescribed in paragraphs (b)(1) and (2) of this section:</P> <P>(1) An assessment of $1 per bale of cotton imported or the bale equivalent thereof for cotton products.</P> <P>(2) A supplemental assessment on each bale of cotton imported, or the bale equivalent thereof for cotton products, which shall not exceed one percent of the value of such cotton as determined by the Cotton Board and approved by the Secretary and published in the Cotton Board rules and regulations. The rate of the supplemental assessment on imported cotton shall be the same as that paid on cotton produced in the United States. The rate of the supplemental assessment may be increased or decreased by the Cotton Board with the approval of the Secretary. The Secretary shall prescribe by regulation the value of imported cotton based on an average of current and/or historical cotton prices.</P> <P>(c) The Secretary may designate by regulation exemptions to assessments provided for in this section for the following:</P> <P>(1) Entries of products designated by specific Harmonized Tariff Schedule numbers which the Secretary determines are composed of U.S. cotton or other than Upland cotton, and for;</P> <P>(2) Cotton contained in entries of imported cotton and cotton products that is U.S. produced cotton or is other than Upland cotton.</P> <P>(d) Assessments collected under this section are to be used for such expenses and expenditures, including provision for a reasonable reserve, as the Secretary finds reasonable and likely to be incurred by the Cotton Board and the Secretary under this subpart.</P> <CITA>[56 FR 64473, Dec. 10, 1991]</CITA> </SECTION> <SECTION> <SECTNO>§ 1205.336</SECTNO> <SUBJECT>“Importer Reimbursements”.</SUBJECT> <P>Any cotton importer against whose imports any assessment is made and collected under the authority of the Act who has reason to believe that such assessment or any portion of such assessment was made on U.S. produced <PRTPAGE P="27"/>cotton or cotton other than Upland cotton shall have the right to demand and receive from the Cotton Board a reimbursement of the assessment or portion of the assessment upon submission of proof satisfactory to the Board that the importer paid the assessment and that the cotton was produced in the U.S. or is other than Upland cotton. Any such demand shall be made by the importer in accordance with regulations and on a form and within a time period prescribed by the Board and approved by the Secretary. Such time periods shall provide the importer at least 90 days from the date of collection to submit the reimbursement form to the Board. Any such reimbursement shall be made within 60 days after demand therefor.</P> <CITA>[56 FR 64474, Dec. 10, 1991]</CITA> </SECTION> <SECTION> <SECTNO>§ 1205.337</SECTNO> <SUBJECT>Influencing governmental action.</SUBJECT> <P>No funds collected by the Board under this subpart shall in any manner be used for the purpose of influencing governmental policy or action except in recommending to the Secretary amendments to this subpart.</P> <CITA>[31 FR 16758, Dec. 31, 1966. Redesignated at 56 FR 64472, Dec. 10, 1991]</CITA> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Reports, Books, and Records</HD> <SECTION> <SECTNO>§ 1205.338</SECTNO> <SUBJECT>Reports.</SUBJECT> <P>Each handler and importer subject to this subpart and importers of de minimis amounts of cotton may be required to report to the Cotton Board periodically such information as is required by regulations, which may include but not be limited to the following:</P> <P>(a) Number of bales handled or imported;</P> <P>(b) Number of bales on which an assessment was collected;</P> <P>(c) Name and address of person from whom the handler has collected the assessments on each bale handled or imported;</P> <P>(d) Date collection was made on each bale handled or imported.</P> <CITA>[56 FR 64474, Dec. 10, 1991]</CITA> </SECTION> <SECTION> <SECTNO>§ 1205.339</SECTNO> <SUBJECT>Books and records.</SUBJECT> <P>Each handler and importer subject to this subpart and importers of de minimis amounts of cotton shall maintain and make available for inspection by the Secretary such books and records as are necessary to carry out the provisions of this subpart and the regulations issued thereunder, including such records as are necessary to verify any reports required. Such records shall be retained for at least two years beyond the marketing year of their applicability.</P> <CITA>[56 FR 64474, Dec. 10, 1991]</CITA> </SECTION> <SECTION> <SECTNO>§ 1205.340</SECTNO> <SUBJECT>Confidential treatment.</SUBJECT> <P>All information obtained from such books, records or reports shall be kept confidential by all officers and employees of the Department of Agriculture and of the Cotton Board, and only such information so furnished or acquired as the Secretary deems relevant shall be disclosed by them, and then only in a suit or administrative hearing brought at the direction, or upon the request, of the Secretary of Agriculture, or to which the Secretary or any officer of the United States is a party, and involving this subpart. Nothing in this § 1205.340 shall be deemed to prohibit:</P> <P>(a) The issuance of general statements based upon the reports of a number of handlers or importers subject to this subpart or importers of de minimis amounts of cotton, which statements do not identify the information furnished by any person, or</P> <P>(b) The publication by the direction of the Secretary, of the name of any person violating this subpart, together with a statement of the particular provisions of this subpart violated by such person.</P> <CITA>[56 FR 64474, Dec. 10, 1991]</CITA> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Certification of Cotton Producer Organization</HD> <SECTION> <SECTNO>§ 1205.341</SECTNO> <SUBJECT>Certification of cotton producer organization.</SUBJECT> <P>Any cotton producer organization within a cotton-producing State may request the Secretary for certification of eligibility to participate in nominating members and alternate members to represent such State on the Cotton Board. Such eligibility shall be <PRTPAGE P="28"/>based in addition to other available information upon a factual report submitted by the organization which shall contain information deemed relevant and specified by the Secretary for the making of such determination, including the following:</P> <P>(a) Geographic territory within the State covered by the organization's active membership;</P> <P>(b) Nature and size of the organization's active membership in the State, proportion of total of such active membership accounted for by farmers, a map showing the cotton-producing counties in such State in which the organization has members, the volume of cotton produced in each such county, the number of cotton producers in each such county, and the size of the organization's active cotton producer membership in each such county;</P> <P>(c) The extent to which the cotton producer membership of such organization is represented in setting the organization's policies;</P> <P>(d) Evidence of stability and permanency of the organization;</P> <P>(e) Sources from which the organization's operating funds are derived;</P> <P>(f) Functions of the organization; and</P> <P>(g) The organization's ability and willingness to further the aims and objectives of the act.</P> <FP>The primary consideration in determining the eligibility of an organization shall be whether its cotton producer membership consists of a sufficiently large number of cotton producers who produce a relatively significant volume of cotton to reasonably warrant its participation in the nomination of members for the Cotton Board. Any cotton producer organization found eligible by the Secretary under this § 1205.341 will be certified by the Secretary, and the Secretary's determination as to eligibility is final.</FP> <CITA>[31 FR 16758, Dec. 31, 1966. Redesignated and amended at 56 FR 64472, 64474, Dec. 10, 1991]</CITA> </SECTION> <SECTION> <SECTNO>§ 1205.342</SECTNO> <SUBJECT>Certification of cotton importer organizations.</SUBJECT> <P>Any importer organization may request the Secretary for certification of eligibility to participate in nominating members and alternate members to represent cotton importers on the Cotton Board. Such eligibility shall be based, in addition to other available information, upon a factual report submitted by the organization which shall contain information deemed relevant and specified by the Secretary for the making of such determination, including the following:</P> <P>(a) Nature and size of organization's active membership, proportion of total active membership accounted for by cotton importers and the total amount of cotton imported by the organization's cotton importer members;</P> <P>(b) The extent to which the cotton importer membership of such organization is represented in setting the organization's policies;</P> <P>(c) Evidence of stability and permanency of the organization;</P> <P>(d) Sources from which the organization's operating funds are derived;</P> <P>(e) Functions of the organization; and</P> <P>(f) The organization's ability and willingness to further the aims and objectives of the Act.</P> <P>The primary consideration in determining the eligibility of an organization shall be whether its membership consist of a sufficient large number of cotton importers who import a relatively significant volume of cotton to reasonably warrant its participation in the nomination of members for the Cotton Board. Any importer organization found eligible by the Secretary under this § 1205.342 will be certified by the Secretary, and the Secretary's determination as to eligibility is final.</P> <CITA>[56 FR 64475, Dec. 10, 1991]</CITA> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Miscellaneous</HD> <SECTION> <SECTNO>§ 1205.343</SECTNO> <SUBJECT>Suspension and termination.</SUBJECT> <P>(a) The Secretary will, whenever the Secretary finds that this subpart or any provision thereof obstructs or does not tend to effectuate the declared policy of the Act, terminate or suspend the operation of this subpart or such provision.</P> <P>(b) The Secretary may conduct a referendum at any time, and shall hold a referendum on request of 10 percent or more of the number of cotton producers and importers (if subject to the Order) voting in the most recent referendum, to determine whether cotton <PRTPAGE P="29"/>producers and importers subject to the Order favor the suspension or termination of this subpart, except that in counting such request for a referendum, not more than 20 percent of such request may be from producers from any one state or importers of cotton (if subject to the Order). The Secretary shall suspend or terminate such subpart at the end of the marketing year whenever the Secretary determines that its suspension or termination is approved or favored by a majority of producers and importers subject to the Order voting in such referendum who, during a representative period determined by the Secretary, have been engaged in the production or importation of cotton, and who produced and imported more than 50 percent of the volume of cotton produced and imported by those voting in the referendum.</P> <CITA>[56 FR 64474, Dec. 10, 1991]</CITA> </SECTION> <SECTION> <SECTNO>§ 1205.345</SECTNO> <SUBJECT>Proceedings after termination.</SUBJECT> <P>(a) Upon the termination of this subpart the Cotton Board shall recommend not more than five of its members to the Secretary to serve as trustees, for the purpose of liquidating the affairs of the Cotton Board. Such persons, upon designation by the Secretary, shall become trustees of all of the funds and property then in the possession or under control of the Board, including claims for any funds unpaid or property not delivered or any other claim existing at the time of such termination.</P> <P>(b) The said trustees shall—</P> <P>(1) Continue in such capacity until discharged by the Secretary;</P> <P>(2) Carry out the obligations of the Cotton Board under any contracts or agreements entered into by it pursuant to § 1205.332 (c);</P> <P>(3) From time-to-time account for all receipts and disbursements and deliver all property on hand, together with all books and records of the Board and the trustees, to such person or persons as the Secretary may direct; and</P> <P>(4) Upon request of the Secretary execute such assignments or other instruments necessary or appropriate to vest in such persons full title and right to all funds, property and claims vested in the Board or the trustees pursuant to this § 1205.345.</P> <P>(c) Any person to whom funds, property or claims have been transferred or delivered pursuant to this § 1205.345 shall be subject to the same obligation imposed upon the Cotton Board and upon the trustees.</P> <P>(d) Any residual funds not required to defray the necessary expenses of liquidation shall be turned over to the Secretary to be disposed of, to the extent practicable, in the interest of continuing one or more of the cotton research or promotion programs hitherto authorized.</P> <CITA>[31 FR 16758, Dec. 31, 1966. Redesignated and amended at 56 FR 64472, 64475, Dec. 10, 1991]</CITA> </SECTION> <SECTION> <SECTNO>§ 1205.346</SECTNO> <SUBJECT>Effect of termination or amendment.</SUBJECT> <P>Unless otherwise expressly provided by the Secretary, the termination of this subpart or of any regulation issued pursuant thereto, or the issuance of any amendment to either thereof, shall not (a) affect or waive any right, duty, obligation, or liability which shall have arisen or which may thereafter arise in connection with any provision of this subpart or any regulation issued thereunder, or (b) release or extinguish any violation of this subpart or any regulation issued thereunder, or (c) affect or impair any rights or remedies of the United States, or of the Secretary, or of any other person, with respect to any such violation.</P> <CITA>[31 FR 16758, Dec. 31, 1966. Redesignated at 56 FR 64472, Dec. 10, 1991]</CITA> </SECTION> <SECTION> <SECTNO>§ 1205.347</SECTNO> <SUBJECT>Personal liability.</SUBJECT> <P>No member or alternate member of the Cotton Board shall be held personally responsible, either individually or jointly with others, in any way whatsoever, to any person for errors in judgment, mistakes, or other acts, either of commission or omission, as such member or alternate, except for acts of dishonesty or willful misconduct.</P> <CITA>[31 FR 16758, Dec. 31, 1966. Redesignated at 56 FR 64472, Dec. 10, 1991]</CITA> </SECTION> <SECTION> <SECTNO>§ 1205.348</SECTNO> <SUBJECT>Separability.</SUBJECT> <P>If any provision of this subpart is declared invalid or the applicability thereof to any person or circumstances <PRTPAGE P="30"/>is held invalid, the validity of the remainder of this subpart or the applicability thereof to other persons or circumstances shall not be affected thereby.</P> <CITA>[31 FR 16758, Dec. 31, 1966. Redesignated at 56 FR 64472, Dec. 10, 1991]</CITA> </SECTION> </SUBJGRP> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart—Members of Cotton Board</HD> <SECTION> <SECTNO>§ 1205.401</SECTNO> <SUBJECT>Definitions.</SUBJECT> <P>(a) <E T="03">Cotton Division. Cotton Division</E> means the Cotton Division of the Agricultural Marketing Service of the U.S. Department of Agriculture.</P> <P>(b) <E T="03">Director. Director</E> means the Director of the Cotton Division.</P> <CITA>[32 FR 1084, Jan. 31, 1967, as amended at 41 FR 37092, Sept. 2, 1976]</CITA> </SECTION> <SECTION> <SECTNO>§ 1205.402</SECTNO> <SUBJECT>Determination of Cotton Board membership.</SUBJECT> <P>(a) In determining whether any cotton-producing state is entitled to be represented by more than one member of the Cotton Board as provided in § 1205.322, average annual production of Upland cotton in terms of 480-pound net weight bales for the five most recent marketing years will be used as the criteria for determination of such additional members.</P> <P>(b) In determining whether importers of cotton and cotton-containing products are entitled to be represented by more than a minimum of two members on the Cotton Board as provided in § 1205.322, the average annual volume of imported cotton and the cotton content of imported products on which assessments have been collected will be used as the criteria for determination of such additional members. This volume of cotton will be expressed in terms of 480-pound net weight bales for the five most recent calendar years. The initial importer representation on the Board shall consist of four importer representatives.</P> <P>(c) All members appointed from a state will be entitled to serve a full three-year term even though it is determined in a subsequent year that a state should have fewer additional members by using the average production of the five most recent marketing years as specified in paragraph (a) of this section.</P> <P>(d) All members appointed to represent importers will be entitled to serve a full three-year term even though it is determined in a subsequent year that importers should be represented by fewer additional members by using the average volume of imports of cotton and the cotton content of products on which assessments have been collected as specified in paragraph (b) of this section.</P> <P>(e) Each year the Director shall:</P> <P>(1) Based on the average annual production of Upland cotton in terms of 480-pound net weight bales for the five most recent marketing years, notify all certified cotton producer organizations in each cotton-producing state of the number of vacancies to be filled by cotton producers on the Cotton Board; and</P> <P>(2) Based on the average annual volume of imports of cotton and the cotton content of cotton-containing products on which assessments as provided for in § 1205.335 have been collected in terms of 480-pound net weight bales for the five most recent calendar years, notify all certified cotton importer organizations of the number of vacancies to be filled by cotton importers on the Cotton Board.</P> <CITA>[56 FR 65980, Dec. 20, 1991]</CITA> </SECTION> <SECTION> <SECTNO>§ 1205.403</SECTNO> <SUBJECT>Nomination procedure.</SUBJECT> <P>(a) The Director shall notify all certified producer organizations within each cotton-producing state and all certified importer organizations of the location, date, and time of the caucus for nominating producer and importer representatives for the Cotton Board as specified in § 1205.324. The Director will designate a representative from the Cotton Division to attend the caucus meeting of cotton producer organizations in each state, and of cotton importer organizations. Each eligible cotton producer organization within each cotton-producing state and each importer organization will be entitled to only one representative at the caucus for the purpose of nominating two qualified persons for each member and for each alternate member to be selected. The representative of a cotton producer organization shall be a cotton <PRTPAGE P="31"/>producer and resident of such state, an officer or member of the Board of Directors of such organization, and duly and unqualifiedly authorized in writing by such organization to make nominations on its behalf. The representative of an importer organization shall be an importer of cotton and/or products containing cotton, an officer or member of the Board of Directors of such organization, and duly and unqualifiedly authorized in writing by such organization to make nominations on its behalf. The representative of the Director designated to attend the caucus meeting of cotton producer organizations in each state and of cotton importer organizations will ascertain the qualifications and eligibility of each representative of a cotton producer organization or cotton importer organization to participate in said meeting and to make nominations.</P> <P>(b) Each caucus will be conducted as follows:</P> <P>(1) The representative from the Cotton Division will act as temporary chairperson and will explain the procedure for nominations and the duties of the Cotton Board;</P> <P>(2) The representatives in attendance from the certified organizations will then select a chairperson and secretary;</P> <P>(3) At each caucus there will be presented for nomination and there will be nominated not less than the number of nominees required under the provisions of §§ 1205.322, 1205.324, and 1205.402.</P> <CITA>[56 FR 65981, Dec. 20, 1991]</CITA> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart—Cotton Board Rules and Regulations</HD> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>42 FR 35974, July 13, 1977, unless otherwise noted.</P> </SOURCE> <SUBJGRP> <HD SOURCE="HED">Definitions</HD> <SECTION> <SECTNO>§ 1205.500</SECTNO> <SUBJECT>Terms defined.</SUBJECT> <P>As used throughout this subpart, unless the context otherwise requires, the following terms shall mean:</P> <P>(a) <E T="03">ASCS</E> means the Agricultural Stabilization and Conservation Service of the U.S. Department of Agriculture.</P> <P>(b) <E T="03">Cotton Board</E> means the administrative body established pursuant to the Cotton Research and Promotion Order.</P> <P>(c) <E T="03">CCC</E> means the Commodity Credit Corporation.</P> <P>(d) <E T="03">Current value of Cotton</E> means the gross price per pound of lint cotton received by the producer for cotton as shown on the producers’ settlement document before deductions are made for weight penalties, buyer's commission or brokerage fees, marketing fees, the $1 per bale cotton research and promotion assessment, picking charges, ginning charges, warehouse receiving charges, warehouse storage charges, transportation charges or any other charges, plus any amount received by a producer in the form of a loan deficiency payment with respect to such cotton.</P> <P>(e) <E T="03">Form A</E> means Cotton Producer's Note, Form CCC Cotton A.</P> <P>(f) <E T="03">Gin code number</E> means the identification number assigned to each cotton gin by the Cotton Division, Agricultural Marketing Service, U.S. Department of Agriculture.</P> <P>(g) <E T="03">Handle</E> means to harvest, gin, warehouse, compress, purchase, market, transport, or otherwise acquire ownership or control of cotton.</P> <P>(h) <E T="03">Handler</E> means any person who handles cotton, including CCC.</P> <P>(i) <E T="03">Marketing</E> means any sale of cotton, or the pledging of cotton to CCC as collateral for a price support loan.</P> <P>(j) <E T="03">Marketing year</E> means a consecutive 12-month period ending on July 31.</P> <P>(k) <E T="03">Person</E> means any individual, partnership, corporation, association, or any other entity, whether governmental or private.</P> <P>(l) <E T="03">Producer</E> means any person who owns or shares in a cotton crop (or in the proceeds thereof) as landowner, landlord, tenant, or sharecropper.</P> <P>(m) <E T="03">Secretary</E> means the Secretary of Agriculture of the United States, or any officer or employee of the U.S. Department of Agriculture to whom authority has heretofore been delegated, or to whom authority may hereafter be delegated, to act in the Secretary's stead.</P> <P>(n) <E T="03">Loan deficiency payment</E> means any payment on Upland cotton made by the Commodity Credit Corporation to a producer in accordance with 7 CFR 713.55.<PRTPAGE P="32"/> </P> <P>(o) <E T="03">Importer</E> means any person who enters, or withdraws from warehouse, cotton for consumption in the customs territory of the United States and <E T="03">import</E> means any such entry.</P> <P>(p) <E T="03">Customs Service</E> means the United States Customs Service of the United States Department of Treasury.</P> <P>(q) <E T="03">Cotton</E> means:</P> <P>(1) All Upland cotton harvested in the United States, and, except as used in section 7(e) of the Act, includes cottonseed of such cotton and the products derived from such cotton and its seed, and</P> <P>(2) Imports of Upland cotton, including the Upland cotton content of the products derived thereof. The term <E T="03">cotton</E> shall not, however, include:</P> <P>(i) Any entry of imported cotton by an importer which has a value or weight less than a de minimis amount established in regulations issued by the Secretary and</P> <P>(ii) Industrial products as that term is defined by regulation.</P> <P>(r) <E T="03">Industrial products</E> means cotton-containing products which are classified in the Harmonized Tariff Schedule of the United States under classifications other than textile classifications. Certain cotton-containing textile products under textile classifications shall also be considered to be industrial products, and are therefore not included in the table appearing in these regulations as products subject to assessment. Such products include, but are not limited to textile fabrics coated, impregnated, covered, or laminated, with other materials, textile piping and tubing, and belting materials.</P> <CITA>[42 FR 35974, July 13, 1977, as amended at 50 FR 10932, Mar. 19, 1985; 51 FR 6098, Feb. 20, 1986; 51 FR 37705, Oct. 24, 1986; 57 FR 29185, July 1, 1992]</CITA> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">General</HD> <SECTION> <SECTNO>§ 1205.505</SECTNO> <SUBJECT>Communication.</SUBJECT> <P>All reports, requests, applications for reimbursements, and communications in connection with the Cotton Research and Promotion Order shall be addressed as follows: Cotton Board, Post Office Box 2121, Memphis, Tennessee, 38101-2121.</P> <CITA>[57 FR 29186, July 1, 1992]</CITA> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Assessments</HD> <SECTION> <SECTNO>§ 1205.510</SECTNO> <SUBJECT>Levy of assessments.</SUBJECT> <P>(a) <E T="03">Producer assessments.</E> An assessment of $1 per bale for cotton research and promotion is hereby levied on each bale of Upland cotton that is produced from cotton harvested and ginned except cotton consumed by any governmental agency from its own production. Such assessment shall be payable and collected only once on each bale.</P> <P>(1) A supplemental assessment for cotton research and promotion in addition to the $1 per bale assessment provided for in paragraph (a) of this section, is hereby levied on each bale of Upland cotton harvested and ginned except cotton consumed by any governmental agency from its own production. The supplemental assessment rate shall be levied at the rate of five-tenths of one percent of:</P> <P>(i) The current value of the cotton multiplied by the number of pounds of lint cotton or;</P> <P>(ii) The current value of the cotton converted to a fixed amount per bale as reflected in the following assessment chart:</P> <GPOTABLE CDEF="s20,10" COLS="2" OPTS="L2,i1"> <TTITLE>Assessment Chart <SU>1</SU> </TTITLE> <BOXHD> <CHED H="1">Current value (cents per pound)</CHED> <CHED H="1">Supplemental Assessment, dollars per bale</CHED> </BOXHD> <ROW> <ENT I="01">.00 to 9.99 </ENT> <ENT>0.15</ENT> </ROW> <ROW> <ENT I="01">10.00 to 19.99 </ENT> <ENT>.40</ENT> </ROW> <ROW> <ENT I="01">20.00 to 29.99 </ENT> <ENT>.65</ENT> </ROW> <ROW> <ENT I="01">30.00 to 39.99 </ENT> <ENT>.90</ENT> </ROW> <ROW> <ENT I="01">40.00 to 49.99 </ENT> <ENT>1.15</ENT> </ROW> <ROW> <ENT I="01">50.00 to 59.99 </ENT> <ENT>1.40</ENT> </ROW> <ROW> <ENT I="01">60.00 to 69.99 </ENT> <ENT>1.65</ENT> </ROW> <ROW> <ENT I="01">70.00 to 79.99 </ENT> <ENT>1.90</ENT> </ROW> <ROW> <ENT I="01">80.00 to 89.99 </ENT> <ENT>2.15</ENT> </ROW> <ROW> <ENT I="01">90.00 to 99.99 </ENT> <ENT>2.40</ENT> </ROW> <ROW> <ENT I="01">100.00 to 109.99 </ENT> <ENT>2.65</ENT> </ROW> <ROW> <ENT I="01">110.00 to 119.99 </ENT> <ENT>2.90</ENT> </ROW> <TNOTE> <SU>1</SU> Assessment is calculated on <FR>5/10</FR> of 1 percent of the midpoint of each 10¢ increment, based on a 500 lb. bale and converted to a fixed amount per bale.</TNOTE> </GPOTABLE> <P>(2) Each marketing year the collecting handler must select one of the two options for collecting the supplemental assessment as provided in paragraph (a)(1) of this section. The handler shall notify the Cotton Board as to the method selected at the time the handler files the first handler report each marketing year.<PRTPAGE P="33"/> </P> <P>(b) <E T="03">Importer assessment.</E> An assessment for cotton research and promotion of $1 per bale is hereby levied on each bale of cotton, or the bale equivalent thereof for cotton in cotton-containing products identified in the HTS conversion factor table in paragraph (b)(3) of this section and imported into the United States on or after July 31, 1992. The $1 per bale assessment shall be converted to a fixed amount per kilogram to facilitate the U.S. Customs Service in collecting this assessment.</P> <P>(1) A supplemental assessment for cotton research and promotion in addition to the $1 per bale assessment provided for in paragraph (b) of this section is hereby levied on each bale of cotton or bale equivalent of cotton in cotton-containing products, identified in this subpart, imported into the United States on or after July 31, 1992. The supplemental assessment shall be levied at the rate of five-tenths of one percent of the historical value of cotton as determined by the Secretary and expressed in paragraph (b)(2) of this section. The rate of the supplemental assessment on imported cotton will be the same as that levied on cotton produced within the United States. The supplemental assessment will be calculated as a fixed amount per kilogram and added to the $1 per bale or bale equivalent assessment to facilitate the Customs Service in collecting assessments.</P> <P>(2) The 12-month average of monthly weighted average prices received by U.S. farmers will be calculated annually. Such weighted average will be used as the value of imported cotton for the purpose of levying the supplemental assessment on imported cotton and will be expressed in kilograms. The value of imported cotton for the purpose of levying this supplemental assessment is $0.862 per kilogram.</P> <P>(3) The following table contains Harmonized Tariff Schedule (HTS) classification numbers and corresponding conversion factors and assessments. The left column of the following table indicates the HTS classifications of imported cotton and cotton-containing products subject to assessment. The center column indicates the conversion factor for determining the raw fiber content for each kilogram of the HTS. HTS numbers for raw cotton have no conversion factor in the table. The right column indicates the total assessment per kilogram of the article assessed.</P> <P>(i) Any line item entry of cotton appearing on Customs entry documentation in which the value of the cotton contained therein results in the calculation of an assessment of two dollars ($2.00) or less will not be subject to assessments as described in this section.</P> <P>(ii) In the event that any HTS number subject to assessment is changed and such change is merely a replacement of a previous number and has no impact on the physical properties, description, or cotton content of the product involved, assessments will continue to be collected based on the new number.</P> <GPOTABLE CDEF="11,11,11" COLS="3" OPTS="L2,i1"> <TTITLE>Import Assessment Table</TTITLE> <TDESC>[Raw Cotton Fiber]</TDESC> <BOXHD> <CHED H="1">HTS No.</CHED> <CHED H="1">Conv. fact.</CHED> <CHED H="1">Cents/kg.</CHED> </BOXHD> <ROW> <ENT I="01">5201000500</ENT> <ENT>0</ENT> <ENT>0.8620</ENT> </ROW> <ROW> <ENT I="01">5201001200</ENT> <ENT>0</ENT> <ENT>0.8620</ENT> </ROW> <ROW> <ENT I="01">5201001400</ENT> <ENT>0</ENT> <ENT>0.8620</ENT> </ROW> <ROW> <ENT I="01">5201001800</ENT> <ENT>0</ENT> <ENT>0.8620</ENT> </ROW> <ROW> <ENT I="01">5201002200</ENT> <ENT>0</ENT> <ENT>0.8620</ENT> </ROW> <ROW> <ENT I="01">5201002400</ENT> <ENT>0</ENT> <ENT>0.8620</ENT> </ROW> <ROW> <ENT I="01">5201002800</ENT> <ENT>0</ENT> <ENT>0.8620</ENT> </ROW> <ROW> <ENT I="01">5201003400</ENT> <ENT>0</ENT> <ENT>0.8620</ENT> </ROW> <ROW> <ENT I="01">5201003800</ENT> <ENT>0</ENT> <ENT>0.8620</ENT> </ROW> <ROW> <ENT I="01">5204110000</ENT> <ENT>1.1111</ENT> <ENT>0.9578</ENT> </ROW> <ROW> <ENT I="01">5204200000</ENT> <ENT>1.1111</ENT> <ENT>0.9578</ENT> </ROW> <ROW> <ENT I="01">5205111000</ENT> <ENT>1.1111</ENT> <ENT>0.9578</ENT> </ROW> <ROW> <ENT I="01">5205112000</ENT> <ENT>1.1111</ENT> <ENT>0.9578</ENT> </ROW> <ROW> <ENT I="01">5205121000</ENT> <ENT>1.1111</ENT> <ENT>0.9578</ENT> </ROW> <ROW> <ENT I="01">5205122000</ENT> <ENT>1.1111</ENT> <ENT>0.9578</ENT> </ROW> <ROW> <ENT I="01">5205131000</ENT> <ENT>1.1111</ENT> <ENT>0.9578</ENT> </ROW> <ROW> <ENT I="01">5205132000</ENT> <ENT>1.1111</ENT> <ENT>0.9578</ENT> </ROW> <ROW> <ENT I="01">5205141000</ENT> <ENT>1.1111</ENT> <ENT>0.9578</ENT> </ROW> <ROW> <ENT I="01">5205210020</ENT> <ENT>1.1111</ENT> <ENT>0.9578</ENT> </ROW> <ROW> <ENT I="01">5205210090</ENT> <ENT>1.1111</ENT> <ENT>0.9578</ENT> </ROW> <ROW> <ENT I="01">5205220020</ENT> <ENT>1.1111</ENT> <ENT>0.9578</ENT> </ROW> <ROW> <ENT I="01">5205220090</ENT> <ENT>1.1111</ENT> <ENT>0.9578</ENT> </ROW> <ROW> <ENT I="01">5205230020</ENT> <ENT>1.1111</ENT> <ENT>0.9578</ENT> </ROW> <ROW> <ENT I="01">5205230090</ENT> <ENT>1.1111</ENT> <ENT>0.9578</ENT> </ROW> <ROW> <ENT I="01">5205240020</ENT> <ENT>1.1111</ENT> <ENT>0.9578</ENT> </ROW> <ROW> <ENT I="01">5205240090</ENT> <ENT>1.1111</ENT> <ENT>0.9578</ENT> </ROW> <ROW> <ENT I="01">5205310000</ENT> <ENT>1.1111</ENT> <ENT>0.9578</ENT> </ROW> <ROW> <ENT I="01">5205320000</ENT> <ENT>1.1111</ENT> <ENT>0.9578</ENT> </ROW> <ROW> <ENT I="01">5205330000</ENT> <ENT>1.1111</ENT> <ENT>0.9578</ENT> </ROW> <ROW> <ENT I="01">5205340000</ENT> <ENT>1.1111</ENT> <ENT>0.9578</ENT> </ROW> <ROW> <ENT I="01">5205410020</ENT> <ENT>1.1111</ENT> <ENT>0.9578</ENT> </ROW> <ROW> <ENT I="01">5205410090</ENT> <ENT>1.1111</ENT> <ENT>0.9578</ENT> </ROW> <ROW> <ENT I="01">5205420020</ENT> <ENT>1.1111</ENT> <ENT>0.9578</ENT> </ROW> <ROW> <ENT I="01">5205420090</ENT> <ENT>1.1111</ENT> <ENT>0.9578</ENT> </ROW> <ROW> <ENT I="01">5205440020</ENT> <ENT>1.1111</ENT> <ENT>0.9578</ENT> </ROW> <ROW> <ENT I="01">5205440090</ENT> <ENT>1.1111</ENT> <ENT>0.9578</ENT> </ROW> <ROW> <ENT I="01">5206120000</ENT> <ENT>0.5556</ENT> <ENT>0.4789</ENT> </ROW> <ROW> <ENT I="01">5206130000</ENT> <ENT>0.5556</ENT> <ENT>0.4789</ENT> </ROW> <ROW> <ENT I="01">5206140000</ENT> <ENT>0.5556</ENT> <ENT>0.4789</ENT> </ROW> <ROW> <ENT I="01">5206220000</ENT> <ENT>0.5556</ENT> <ENT>0.4789</ENT> </ROW> <ROW> <PRTPAGE P="34"/> <ENT I="01">5206230000</ENT> <ENT>0.5556</ENT> <ENT>0.4789</ENT> </ROW> <ROW> <ENT I="01">5206240000</ENT> <ENT>0.5556</ENT> <ENT>0.4789</ENT> </ROW> <ROW> <ENT I="01">5206310000</ENT> <ENT>0.5556</ENT> <ENT>0.4789</ENT> </ROW> <ROW> <ENT I="01">5207100000</ENT> <ENT>1.1111</ENT> <ENT>0.9578</ENT> </ROW> <ROW> <ENT I="01">5207900000</ENT> <ENT>0.5556</ENT> <ENT>0.4789</ENT> </ROW> <ROW> <ENT I="01">5208112020</ENT> <ENT>1.1455</ENT> <ENT>0.9874</ENT> </ROW> <ROW> <ENT I="01">5208112040</ENT> <ENT>1.1455</ENT> <ENT>0.9874</ENT> </ROW> <ROW> <ENT I="01">5208112090</ENT> <ENT>1.1455</ENT> <ENT>0.9874</ENT> </ROW> <ROW> <ENT I="01">5208114020</ENT> <ENT>1.1455</ENT> <ENT>0.9874</ENT> </ROW> <ROW> <ENT I="01">5208114060</ENT> <ENT>1.1455</ENT> <ENT>0.9874</ENT> </ROW> <ROW> <ENT I="01">5208114090</ENT> <ENT>1.1455</ENT> <ENT>0.9874</ENT> </ROW> <ROW> <ENT I="01">5208118090</ENT> <ENT>1.1455</ENT> <ENT>0.9874</ENT> </ROW> <ROW> <ENT I="01">5208124020</ENT> <ENT>1.1455</ENT> <ENT>0.9874</ENT> </ROW> <ROW> <ENT I="01">5208124040</ENT> <ENT>1.1455</ENT> <ENT>0.9874</ENT> </ROW> <ROW> <ENT I="01">5208124090</ENT> <ENT>1.1455</ENT> <ENT>0.9874</ENT> </ROW> <ROW> <ENT I="01">5208126020</ENT> <ENT>1.1455</ENT> <ENT>0.9874</ENT> </ROW> <ROW> <ENT I="01">5208126040</ENT> <ENT>1.1455</ENT> <ENT>0.9874</ENT> </ROW> <ROW> <ENT I="01">5208126060</ENT> <ENT>1.1455</ENT> <ENT>0.9874</ENT> </ROW> <ROW> <ENT I="01">5208126090</ENT> <ENT>1.1455</ENT> <ENT>0.9874</ENT> </ROW> <ROW> <ENT I="01">5208128020</ENT> <ENT>1.1455</ENT> <ENT>0.9874</ENT> </ROW> <ROW> <ENT I="01">5208128090</ENT> <ENT>1.1455</ENT> <ENT>0.9874</ENT> </ROW> <ROW> <ENT I="01">5208130000</ENT> <ENT>1.1455</ENT> <ENT>0.9874</ENT> </ROW> <ROW> <ENT I="01">5208192020</ENT> <ENT>1.1455</ENT> <ENT>0.9874</ENT> </ROW> <ROW> <ENT I="01">5208192090</ENT> <ENT>1.1455</ENT> <ENT>0.9874</ENT> </ROW> <ROW> <ENT I="01">5208194020</ENT> <ENT>1.1455</ENT> <ENT>0.9874</ENT> </ROW> <ROW> <ENT I="01">5208194090</ENT> <ENT>1.1455</ENT> <ENT>0.9874</ENT> </ROW> <ROW> <ENT I="01">5208196020</ENT> <ENT>1.1455</ENT> <ENT>0.9874</ENT> </ROW> <ROW> <ENT I="01">5208196090</ENT> <ENT>1.1455</ENT> <ENT>0.9874</ENT> </ROW> <ROW> <ENT I="01">5208224040</ENT> <ENT>1.1455</ENT> <ENT>0.9874</ENT> </ROW> <ROW> <ENT I="01">5208224090</ENT> <ENT>1.1455</ENT> <ENT>0.9874</ENT> </ROW> <ROW> <ENT I="01">5208226020</ENT> <ENT>1.1455</ENT> <ENT>0.9874</ENT> </ROW> <ROW> <ENT I="01">5208226060</ENT> <ENT>1.1455</ENT> <ENT>0.9874</ENT> </ROW> <ROW> <ENT I="01">5208228020</ENT> <ENT>1.1455</ENT> <ENT>0.9874</ENT> </ROW> <ROW> <ENT I="01">5208230000</ENT> <ENT>1.1455</ENT> <ENT>0.9874</ENT> </ROW> <ROW> <ENT I="01">5208292020</ENT> <ENT>1.1455</ENT> <ENT>0.9874</ENT> </ROW> <ROW> <ENT I="01">5208292090</ENT> <ENT>1.1455</ENT> <ENT>0.9874</ENT> </ROW> <ROW> <ENT I="01">5208294090</ENT> <ENT>1.1455</ENT> <ENT>0.9874</ENT> </ROW> <ROW> <ENT I="01">5208296090</ENT> <ENT>1.1455</ENT> <ENT>0.9874</ENT> 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<ENT>0.4165</ENT> <ENT>0.3590</ENT> </ROW> <ROW> <ENT I="01">5211210050</ENT> <ENT>0.6873</ENT> <ENT>0.5925</ENT> </ROW> <ROW> <ENT I="01">5211290090</ENT> <ENT>0.6873</ENT> <ENT>0.5925</ENT> </ROW> <ROW> <ENT I="01">5211320020</ENT> <ENT>0.6873</ENT> <ENT>0.5925</ENT> </ROW> <ROW> <ENT I="01">5211390040</ENT> <ENT>0.6873</ENT> <ENT>0.5925</ENT> </ROW> <ROW> <ENT I="01">5211390060</ENT> <ENT>0.6873</ENT> <ENT>0.5925</ENT> </ROW> <ROW> <ENT I="01">5211490020</ENT> <ENT>0.6873</ENT> <ENT>0.5925</ENT> </ROW> <ROW> <ENT I="01">5211490090</ENT> <ENT>0.6873</ENT> <ENT>0.5925</ENT> </ROW> <ROW> <ENT I="01">5211590025</ENT> <ENT>0.6873</ENT> <ENT>0.5925</ENT> </ROW> <ROW> <ENT I="01">5212146090</ENT> <ENT>0.9164</ENT> <ENT>0.7899</ENT> </ROW> <ROW> <ENT I="01">5212156020</ENT> <ENT>0.9164</ENT> <ENT>0.7899</ENT> </ROW> <ROW> <ENT I="01">5212216090</ENT> <ENT>0.9164</ENT> <ENT>0.7899</ENT> </ROW> <ROW> <ENT I="01">5509530030</ENT> <ENT>0.5556</ENT> <ENT>0.4789</ENT> </ROW> <ROW> <ENT 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<ENT>0.0479</ENT> </ROW> <ROW> <ENT I="01">5701109000</ENT> <ENT>0.1111</ENT> <ENT>0.0958</ENT> </ROW> <ROW> <ENT I="01">5701901010</ENT> <ENT>1.0444</ENT> <ENT>0.9003</ENT> </ROW> <ROW> <ENT I="01">5702109020</ENT> <ENT>1.1</ENT> <ENT>0.9482</ENT> </ROW> <ROW> <ENT I="01">5702312000</ENT> <ENT>0.0778</ENT> <ENT>0.0671</ENT> </ROW> <ROW> <ENT I="01">5702411000</ENT> <ENT>0.0722</ENT> <ENT>0.0622</ENT> </ROW> <ROW> <ENT I="01">5702412000</ENT> <ENT>0.0778</ENT> <ENT>0.0671</ENT> </ROW> <ROW> <ENT I="01">5702421000</ENT> <ENT>0.0778</ENT> <ENT>0.0671</ENT> </ROW> <ROW> <ENT I="01">5702913000</ENT> <ENT>0.0889</ENT> <ENT>0.0766</ENT> </ROW> <ROW> <ENT I="01">5702991010</ENT> <ENT>1.1111</ENT> <ENT>0.9578</ENT> </ROW> <ROW> <ENT I="01">5702991090</ENT> <ENT>1.1111</ENT> <ENT>0.9578</ENT> </ROW> <ROW> <ENT I="01">5703900000</ENT> <ENT>0.4489</ENT> <ENT>0.3870</ENT> </ROW> <ROW> <ENT I="01">5801210000</ENT> <ENT>1.1455</ENT> <ENT>0.9874</ENT> </ROW> <ROW> <ENT I="01">5801230000</ENT> <ENT>1.1455</ENT> <ENT>0.9874</ENT> </ROW> <ROW> <ENT I="01">5801250010</ENT> <ENT>1.1455</ENT> <ENT>0.9874</ENT> </ROW> <ROW> <ENT I="01">5801250020</ENT> <ENT>1.1455</ENT> <ENT>0.9874</ENT> </ROW> <ROW> <ENT I="01">5801260020</ENT> <ENT>1.1455</ENT> <ENT>0.9874</ENT> </ROW> <ROW> <ENT I="01">5802190000</ENT> <ENT>1.1455</ENT> <ENT>0.9874</ENT> </ROW> <ROW> <ENT I="01">5802300030</ENT> <ENT>0.5727</ENT> <ENT>0.4937</ENT> </ROW> <ROW> <ENT I="01">5804291000</ENT> <ENT>1.1455</ENT> <ENT>0.9874</ENT> </ROW> <ROW> <ENT I="01">5806200010</ENT> <ENT>0.3534</ENT> <ENT>0.3046</ENT> </ROW> <ROW> <ENT I="01">5806200090</ENT> <ENT>0.3534</ENT> <ENT>0.3046</ENT> </ROW> <ROW> <ENT I="01">5806310000</ENT> <ENT>1.1455</ENT> <ENT>0.9874</ENT> </ROW> <ROW> <ENT I="01">5806400000</ENT> <ENT>0.4296</ENT> <ENT>0.3703</ENT> </ROW> <ROW> <ENT I="01">5808107000</ENT> <ENT>0.5727</ENT> <ENT>0.4937</ENT> </ROW> <ROW> <ENT I="01">5808900010</ENT> <ENT>0.5727</ENT> <ENT>0.4937</ENT> </ROW> <ROW> <ENT I="01">5811002000</ENT> <ENT>1.1455</ENT> <ENT>0.9874</ENT> </ROW> <ROW> <ENT I="01">6001106000</ENT> <ENT>1.1455</ENT> <ENT>0.9874</ENT> </ROW> <ROW> <ENT I="01">6001210000</ENT> <ENT>0.8591</ENT> <ENT>0.7405</ENT> </ROW> <ROW> <ENT I="01">6001220000</ENT> <ENT>0.2864</ENT> <ENT>0.2469</ENT> </ROW> <ROW> <ENT I="01">6001910010</ENT> <ENT>0.8591</ENT> <ENT>0.7405</ENT> </ROW> <ROW> <ENT I="01">6001910020</ENT> <ENT>0.8591</ENT> <ENT>0.7405</ENT> </ROW> <ROW> <ENT I="01">6001920020</ENT> <ENT>0.2864</ENT> <ENT>0.2469</ENT> </ROW> <ROW> <ENT I="01">6001920030</ENT> <ENT>0.2864</ENT> <ENT>0.2469</ENT> </ROW> <ROW> <ENT I="01">6001920040</ENT> <ENT>0.2864</ENT> <ENT>0.2469</ENT> </ROW> <ROW> <ENT I="01">6003203000</ENT> <ENT>0.8681</ENT> <ENT>0.7483</ENT> </ROW> <ROW> <ENT I="01">6003306000</ENT> <ENT>0.2894</ENT> <ENT>0.2495</ENT> </ROW> <ROW> <ENT I="01">6003406000</ENT> <ENT>0.2894</ENT> <ENT>0.2495</ENT> </ROW> <ROW> <ENT I="01">6005210000</ENT> <ENT>0.8681</ENT> <ENT>0.7483</ENT> 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<ENT>0.2495</ENT> </ROW> <ROW> <ENT I="01">6005330080</ENT> <ENT>0.2894</ENT> <ENT>0.2495</ENT> </ROW> <ROW> <ENT I="01">6005340080</ENT> <ENT>0.2894</ENT> <ENT>0.2495</ENT> </ROW> <ROW> <ENT I="01">6005410080</ENT> <ENT>0.2894</ENT> <ENT>0.2495</ENT> </ROW> <ROW> <ENT I="01">6005420080</ENT> <ENT>0.2894</ENT> <ENT>0.2495</ENT> </ROW> <ROW> <ENT I="01">6005430080</ENT> <ENT>0.2894</ENT> <ENT>0.2495</ENT> </ROW> <ROW> <ENT I="01">6005440080</ENT> <ENT>0.2894</ENT> <ENT>0.2495</ENT> </ROW> <ROW> <ENT I="01">6006211000</ENT> <ENT>1.1574</ENT> <ENT>0.9977</ENT> </ROW> <ROW> <ENT I="01">6006221000</ENT> <ENT>1.1574</ENT> <ENT>0.9977</ENT> </ROW> <ROW> <ENT I="01">6006231000</ENT> <ENT>1.1574</ENT> <ENT>0.9977</ENT> </ROW> <ROW> <ENT I="01">6006241000</ENT> <ENT>1.1574</ENT> <ENT>0.9977</ENT> </ROW> <ROW> <ENT I="01">6006310040</ENT> <ENT>0.1157</ENT> <ENT>0.0997</ENT> </ROW> <ROW> <ENT I="01">6006320040</ENT> <ENT>0.1157</ENT> <ENT>0.0997</ENT> </ROW> <ROW> <ENT I="01">6006330040</ENT> <ENT>0.1157</ENT> <ENT>0.0997</ENT> </ROW> <ROW> <ENT I="01">6006340040</ENT> <ENT>0.1157</ENT> <ENT>0.0997</ENT> </ROW> <ROW> <ENT I="01">6006310080</ENT> <ENT>0.1157</ENT> <ENT>0.0997</ENT> </ROW> <ROW> <ENT I="01">6006320080</ENT> <ENT>0.1157</ENT> <ENT>0.0997</ENT> </ROW> <ROW> <ENT I="01">6006330080</ENT> <ENT>0.1157</ENT> <ENT>0.0997</ENT> </ROW> <ROW> <ENT I="01">6006340080</ENT> <ENT>0.1157</ENT> <ENT>0.0997</ENT> </ROW> <ROW> <ENT I="01">6006410085</ENT> <ENT>0.1157</ENT> <ENT>0.0997</ENT> </ROW> <ROW> <ENT I="01">6006420085</ENT> <ENT>0.1157</ENT> <ENT>0.0997</ENT> </ROW> <ROW> <ENT I="01">6006430085</ENT> <ENT>0.1157</ENT> <ENT>0.0997</ENT> </ROW> <ROW> <ENT I="01">6006440085</ENT> <ENT>0.1157</ENT> <ENT>0.0997</ENT> </ROW> <ROW> <ENT I="01">6101200010</ENT> <ENT>1.0094</ENT> <ENT>0.8701</ENT> </ROW> <ROW> <ENT I="01">6101200020</ENT> <ENT>1.0094</ENT> <ENT>0.8701</ENT> </ROW> <ROW> <ENT I="01">6102200010</ENT> <ENT>1.0094</ENT> <ENT>0.8701</ENT> </ROW> <ROW> <ENT I="01">6102200020</ENT> <ENT>1.0094</ENT> <ENT>0.8701</ENT> </ROW> <ROW> <ENT I="01">6103421020</ENT> <ENT>0.8806</ENT> <ENT>0.7591</ENT> </ROW> <ROW> <ENT I="01">6103421040</ENT> <ENT>0.8806</ENT> <ENT>0.7591</ENT> </ROW> <ROW> <ENT I="01">6103421050</ENT> <ENT>0.8806</ENT> <ENT>0.7591</ENT> </ROW> <ROW> <ENT I="01">6103421070</ENT> <ENT>0.8806</ENT> <ENT>0.7591</ENT> </ROW> <ROW> <ENT I="01">6103431520</ENT> <ENT>0.2516</ENT> <ENT>0.2169</ENT> </ROW> <ROW> <ENT I="01">6103431540</ENT> <ENT>0.2516</ENT> <ENT>0.2169</ENT> </ROW> <ROW> <ENT I="01">6103431550</ENT> <ENT>0.2516</ENT> <ENT>0.2169</ENT> </ROW> <ROW> <ENT I="01">6103431570</ENT> <ENT>0.2516</ENT> <ENT>0.2169</ENT> </ROW> <ROW> <ENT I="01">6104220040</ENT> <ENT>0.9002</ENT> <ENT>0.7760</ENT> </ROW> <ROW> <ENT I="01">6104220060</ENT> <ENT>0.9002</ENT> <ENT>0.7760</ENT> </ROW> <ROW> <ENT I="01">6104320000</ENT> <ENT>0.9207</ENT> <ENT>0.7936</ENT> </ROW> <ROW> <ENT I="01">6104420010</ENT> <ENT>0.9002</ENT> <ENT>0.7760</ENT> </ROW> <ROW> <ENT I="01">6104420020</ENT> <ENT>0.9002</ENT> <ENT>0.7760</ENT> </ROW> <ROW> <ENT I="01">6104520010</ENT> <ENT>0.9312</ENT> <ENT>0.8027</ENT> </ROW> <ROW> <ENT I="01">6104520020</ENT> <ENT>0.9312</ENT> <ENT>0.8027</ENT> </ROW> <ROW> <ENT I="01">6104622006</ENT> <ENT>0.8806</ENT> <ENT>0.7591</ENT> </ROW> <ROW> <PRTPAGE P="36"/> <ENT I="01">6104622011</ENT> <ENT>0.8806</ENT> <ENT>0.7591</ENT> </ROW> <ROW> <ENT I="01">6104622016</ENT> <ENT>0.8806</ENT> <ENT>0.7591</ENT> </ROW> <ROW> <ENT I="01">6104622021</ENT> <ENT>0.8806</ENT> <ENT>0.7591</ENT> </ROW> <ROW> <ENT I="01">6104622026</ENT> <ENT>0.8806</ENT> <ENT>0.7591</ENT> </ROW> <ROW> <ENT I="01">6104622028</ENT> <ENT>0.8806</ENT> <ENT>0.7591</ENT> </ROW> <ROW> <ENT I="01">6104622030</ENT> <ENT>0.8806</ENT> <ENT>0.7591</ENT> </ROW> <ROW> <ENT I="01">6104622060</ENT> <ENT>0.8806</ENT> <ENT>0.7591</ENT> </ROW> <ROW> <ENT I="01">6104632006</ENT> <ENT>0.3774</ENT> <ENT>0.3253</ENT> </ROW> <ROW> <ENT I="01">6104632011</ENT> <ENT>0.3774</ENT> <ENT>0.3253</ENT> </ROW> <ROW> <ENT I="01">6104632026</ENT> <ENT>0.3774</ENT> <ENT>0.3253</ENT> </ROW> <ROW> <ENT I="01">6104632028</ENT> <ENT>0.3774</ENT> <ENT>0.3253</ENT> </ROW> <ROW> <ENT I="01">6104632030</ENT> <ENT>0.3774</ENT> <ENT>0.3253</ENT> </ROW> <ROW> <ENT I="01">6104632060</ENT> <ENT>0.3774</ENT> <ENT>0.3253</ENT> </ROW> <ROW> <ENT I="01">6104692030</ENT> <ENT>0.3858</ENT> <ENT>0.3326</ENT> </ROW> <ROW> <ENT I="01">6105100010</ENT> <ENT>0.985</ENT> <ENT>0.8491</ENT> </ROW> <ROW> <ENT I="01">6105100020</ENT> <ENT>0.985</ENT> <ENT>0.8491</ENT> </ROW> <ROW> <ENT I="01">6105100030</ENT> <ENT>0.985</ENT> <ENT>0.8491</ENT> </ROW> <ROW> <ENT I="01">6105202010</ENT> <ENT>0.3078</ENT> <ENT>0.2653</ENT> </ROW> <ROW> <ENT I="01">6105202030</ENT> <ENT>0.3078</ENT> <ENT>0.2653</ENT> </ROW> <ROW> <ENT I="01">6106100010</ENT> <ENT>0.985</ENT> <ENT>0.8491</ENT> </ROW> <ROW> <ENT I="01">6106100020</ENT> <ENT>0.985</ENT> <ENT>0.8491</ENT> </ROW> <ROW> <ENT I="01">6106100030</ENT> <ENT>0.985</ENT> <ENT>0.8491</ENT> </ROW> <ROW> <ENT I="01">6106202010</ENT> <ENT>0.3078</ENT> <ENT>0.2653</ENT> </ROW> <ROW> <ENT I="01">6106202030</ENT> <ENT>0.3078</ENT> <ENT>0.2653</ENT> </ROW> <ROW> <ENT I="01">6107110010</ENT> <ENT>1.1322</ENT> <ENT>0.9760</ENT> </ROW> <ROW> <ENT I="01">6107110020</ENT> <ENT>1.1322</ENT> <ENT>0.9760</ENT> </ROW> <ROW> <ENT I="01">6107120010</ENT> <ENT>0.5032</ENT> <ENT>0.4338</ENT> </ROW> <ROW> <ENT I="01">6107210010</ENT> <ENT>0.8806</ENT> <ENT>0.7591</ENT> </ROW> <ROW> <ENT I="01">6107220015</ENT> <ENT>0.3774</ENT> <ENT>0.3253</ENT> </ROW> <ROW> <ENT I="01">6107220025</ENT> <ENT>0.3774</ENT> <ENT>0.3253</ENT> </ROW> <ROW> <ENT I="01">6107910040</ENT> <ENT>1.2581</ENT> <ENT>1.0845</ENT> </ROW> <ROW> <ENT I="01">6108210010</ENT> <ENT>1.2445</ENT> <ENT>1.0728</ENT> </ROW> <ROW> <ENT I="01">6108210020</ENT> <ENT>1.2445</ENT> <ENT>1.0728</ENT> </ROW> <ROW> <ENT I="01">6108310010</ENT> <ENT>1.1201</ENT> <ENT>0.9655</ENT> </ROW> <ROW> <ENT I="01">6108310020</ENT> <ENT>1.1201</ENT> <ENT>0.9655</ENT> </ROW> <ROW> <ENT I="01">6108320010</ENT> <ENT>0.2489</ENT> <ENT>0.2146</ENT> </ROW> <ROW> <ENT I="01">6108320015</ENT> <ENT>0.2489</ENT> <ENT>0.2146</ENT> </ROW> <ROW> <ENT I="01">6108320025</ENT> <ENT>0.2489</ENT> <ENT>0.2146</ENT> </ROW> <ROW> <ENT I="01">6108910005</ENT> <ENT>1.2445</ENT> <ENT>1.0728</ENT> </ROW> <ROW> <ENT I="01">6108910015</ENT> <ENT>1.2445</ENT> <ENT>1.0728</ENT> </ROW> <ROW> <ENT I="01">6108910025</ENT> <ENT>1.2445</ENT> <ENT>1.0728</ENT> </ROW> <ROW> <ENT I="01">6108910030</ENT> <ENT>1.2445</ENT> <ENT>1.0728</ENT> </ROW> <ROW> <ENT I="01">6108920030</ENT> <ENT>0.2489</ENT> <ENT>0.2146</ENT> </ROW> <ROW> <ENT I="01">6109100005</ENT> <ENT>0.9956</ENT> <ENT>0.8582</ENT> </ROW> <ROW> <ENT I="01">6109100007</ENT> <ENT>0.9956</ENT> <ENT>0.8582</ENT> </ROW> <ROW> <ENT I="01">6109100009</ENT> <ENT>0.9956</ENT> <ENT>0.8582</ENT> </ROW> <ROW> <ENT I="01">6109100012</ENT> <ENT>0.9956</ENT> <ENT>0.8582</ENT> </ROW> <ROW> <ENT I="01">6109100014</ENT> <ENT>0.9956</ENT> <ENT>0.8582</ENT> </ROW> <ROW> <ENT I="01">6109100018</ENT> <ENT>0.9956</ENT> <ENT>0.8582</ENT> </ROW> <ROW> <ENT I="01">6109100023</ENT> <ENT>0.9956</ENT> <ENT>0.8582</ENT> </ROW> <ROW> <ENT I="01">6109100027</ENT> <ENT>0.9956</ENT> <ENT>0.8582</ENT> </ROW> <ROW> <ENT I="01">6109100037</ENT> <ENT>0.9956</ENT> <ENT>0.8582</ENT> </ROW> <ROW> <ENT I="01">6109100040</ENT> <ENT>0.9956</ENT> <ENT>0.8582</ENT> </ROW> <ROW> <ENT I="01">6109100045</ENT> <ENT>0.9956</ENT> <ENT>0.8582</ENT> </ROW> <ROW> <ENT I="01">6109100060</ENT> <ENT>0.9956</ENT> <ENT>0.8582</ENT> </ROW> <ROW> <ENT I="01">6109100065</ENT> <ENT>0.9956</ENT> <ENT>0.8582</ENT> </ROW> <ROW> <ENT I="01">6109100070</ENT> <ENT>0.9956</ENT> <ENT>0.8582</ENT> </ROW> <ROW> <ENT I="01">6109901007</ENT> <ENT>0.3111</ENT> <ENT>0.2682</ENT> </ROW> <ROW> <ENT I="01">6109901009</ENT> <ENT>0.3111</ENT> <ENT>0.2682</ENT> </ROW> <ROW> <ENT I="01">6109901049</ENT> <ENT>0.3111</ENT> <ENT>0.2682</ENT> </ROW> <ROW> <ENT I="01">6109901050</ENT> <ENT>0.3111</ENT> <ENT>0.2682</ENT> </ROW> <ROW> <ENT I="01">6109901060</ENT> <ENT>0.3111</ENT> <ENT>0.2682</ENT> </ROW> <ROW> <ENT I="01">6109901065</ENT> <ENT>0.3111</ENT> <ENT>0.2682</ENT> </ROW> <ROW> <ENT I="01">6109901090</ENT> <ENT>0.3111</ENT> <ENT>0.2682</ENT> </ROW> <ROW> <ENT I="01">6110202005</ENT> <ENT>1.1837</ENT> <ENT>1.0203</ENT> </ROW> <ROW> <ENT I="01">6110202010</ENT> <ENT>1.1837</ENT> <ENT>1.0203</ENT> </ROW> <ROW> <ENT I="01">6110202015</ENT> <ENT>1.1837</ENT> <ENT>1.0203</ENT> </ROW> <ROW> <ENT I="01">6110202020</ENT> <ENT>1.1837</ENT> <ENT>1.0203</ENT> </ROW> <ROW> <ENT I="01">6110202025</ENT> <ENT>1.1837</ENT> <ENT>1.0203</ENT> </ROW> <ROW> <ENT I="01">6110202030</ENT> <ENT>1.1837</ENT> <ENT>1.0203</ENT> </ROW> <ROW> <ENT I="01">6110202035</ENT> <ENT>1.1837</ENT> <ENT>1.0203</ENT> </ROW> <ROW> <ENT I="01">6110202040</ENT> <ENT>1.1574</ENT> <ENT>0.9977</ENT> </ROW> <ROW> <ENT I="01">6110202045</ENT> <ENT>1.1574</ENT> <ENT>0.9977</ENT> </ROW> <ROW> <ENT I="01">6110202065</ENT> <ENT>1.1574</ENT> <ENT>0.9977</ENT> </ROW> <ROW> <ENT I="01">6110202075</ENT> <ENT>1.1574</ENT> <ENT>0.9977</ENT> </ROW> <ROW> <ENT I="01">6110909022</ENT> <ENT>0.263</ENT> <ENT>0.2267</ENT> </ROW> <ROW> <ENT I="01">6110909024</ENT> <ENT>0.263</ENT> <ENT>0.2267</ENT> </ROW> <ROW> <ENT I="01">6110909030</ENT> <ENT>0.3946</ENT> <ENT>0.3401</ENT> </ROW> <ROW> <ENT I="01">6110909040</ENT> <ENT>0.263</ENT> <ENT>0.2267</ENT> </ROW> <ROW> <ENT I="01">6110909042</ENT> <ENT>0.263</ENT> <ENT>0.2267</ENT> </ROW> <ROW> <ENT I="01">6111201000</ENT> <ENT>1.2581</ENT> <ENT>1.0845</ENT> </ROW> <ROW> <ENT I="01">6111202000</ENT> <ENT>1.2581</ENT> <ENT>1.0845</ENT> </ROW> <ROW> <ENT I="01">6111203000</ENT> <ENT>1.0064</ENT> <ENT>0.8675</ENT> </ROW> <ROW> <ENT I="01">6111205000</ENT> <ENT>1.0064</ENT> <ENT>0.8675</ENT> </ROW> <ROW> <ENT I="01">6111206010</ENT> <ENT>1.0064</ENT> <ENT>0.8675</ENT> </ROW> <ROW> <ENT I="01">6111206020</ENT> <ENT>1.0064</ENT> <ENT>0.8675</ENT> </ROW> <ROW> <ENT I="01">6111206030</ENT> <ENT>1.0064</ENT> <ENT>0.8675</ENT> </ROW> <ROW> <ENT I="01">6111206040</ENT> <ENT>1.0064</ENT> <ENT>0.8675</ENT> </ROW> <ROW> <ENT I="01">6111305020</ENT> <ENT>0.2516</ENT> <ENT>0.2169</ENT> </ROW> <ROW> <ENT I="01">6111305040</ENT> <ENT>0.2516</ENT> <ENT>0.2169</ENT> </ROW> <ROW> <ENT I="01">6112110050</ENT> <ENT>0.7548</ENT> <ENT>0.6506</ENT> </ROW> <ROW> <ENT I="01">6112120010</ENT> <ENT>0.2516</ENT> <ENT>0.2169</ENT> </ROW> <ROW> <ENT I="01">6112120030</ENT> <ENT>0.2516</ENT> <ENT>0.2169</ENT> </ROW> <ROW> <ENT I="01">6112120040</ENT> <ENT>0.2516</ENT> <ENT>0.2169</ENT> </ROW> <ROW> <ENT I="01">6112120050</ENT> <ENT>0.2516</ENT> <ENT>0.2169</ENT> </ROW> <ROW> <ENT I="01">6112120060</ENT> <ENT>0.2516</ENT> <ENT>0.2169</ENT> </ROW> <ROW> <ENT I="01">6112390010</ENT> <ENT>1.1322</ENT> <ENT>0.9760</ENT> </ROW> <ROW> <ENT I="01">6112490010</ENT> <ENT>0.9435</ENT> <ENT>0.8133</ENT> </ROW> <ROW> <ENT I="01">6114200005</ENT> <ENT>0.9002</ENT> <ENT>0.7760</ENT> </ROW> <ROW> <ENT I="01">6114200010</ENT> <ENT>0.9002</ENT> <ENT>0.7760</ENT> </ROW> <ROW> <ENT I="01">6114200015</ENT> <ENT>0.9002</ENT> <ENT>0.7760</ENT> </ROW> <ROW> <ENT I="01">6114200020</ENT> <ENT>1.286</ENT> <ENT>1.1085</ENT> </ROW> <ROW> <ENT I="01">6114200040</ENT> <ENT>0.9002</ENT> <ENT>0.7760</ENT> </ROW> <ROW> <ENT I="01">6114200046</ENT> <ENT>0.9002</ENT> <ENT>0.7760</ENT> </ROW> <ROW> <ENT I="01">6114200052</ENT> <ENT>0.9002</ENT> <ENT>0.7760</ENT> </ROW> <ROW> <ENT I="01">6114200060</ENT> <ENT>0.9002</ENT> <ENT>0.7760</ENT> </ROW> <ROW> <ENT I="01">6114301010</ENT> <ENT>0.2572</ENT> <ENT>0.2217</ENT> </ROW> <ROW> <ENT I="01">6114301020</ENT> <ENT>0.2572</ENT> <ENT>0.2217</ENT> </ROW> <ROW> <ENT I="01">6114303030</ENT> <ENT>0.2572</ENT> <ENT>0.2217</ENT> </ROW> <ROW> <ENT I="01">6115198010</ENT> <ENT>1.0417</ENT> <ENT>0.8979</ENT> </ROW> <ROW> <ENT I="01">6115929000</ENT> <ENT>1.0417</ENT> <ENT>0.8979</ENT> </ROW> <ROW> <ENT I="01">6115936020</ENT> <ENT>0.2315</ENT> <ENT>0.1996</ENT> </ROW> <ROW> <ENT I="01">6116101300</ENT> <ENT>0.3655</ENT> <ENT>0.3151</ENT> </ROW> <ROW> <ENT I="01">6116101720</ENT> <ENT>0.8528</ENT> <ENT>0.7351</ENT> </ROW> <ROW> <ENT I="01">6116926420</ENT> <ENT>1.0965</ENT> <ENT>0.9452</ENT> </ROW> <ROW> <ENT I="01">6116926430</ENT> <ENT>1.2183</ENT> <ENT>1.0502</ENT> </ROW> <ROW> <ENT I="01">6116926440</ENT> <ENT>1.0965</ENT> <ENT>0.9452</ENT> </ROW> <ROW> <ENT I="01">6116928800</ENT> <ENT>1.0965</ENT> <ENT>0.9452</ENT> </ROW> <ROW> <ENT I="01">6117809510</ENT> <ENT>0.9747</ENT> <ENT>0.8402</ENT> </ROW> <ROW> <ENT I="01">6117809540</ENT> <ENT>0.3655</ENT> <ENT>0.3151</ENT> </ROW> <ROW> <ENT I="01">6201121000</ENT> <ENT>0.948</ENT> <ENT>0.8172</ENT> </ROW> <ROW> <ENT I="01">6201122010</ENT> <ENT>0.8953</ENT> <ENT>0.7717</ENT> </ROW> <ROW> <ENT I="01">6201122050</ENT> <ENT>0.6847</ENT> <ENT>0.5902</ENT> </ROW> <ROW> <ENT I="01">6201122060</ENT> <ENT>0.6847</ENT> <ENT>0.5902</ENT> </ROW> <ROW> <ENT I="01">6201134030</ENT> <ENT>0.2633</ENT> <ENT>0.2270</ENT> </ROW> <ROW> <ENT I="01">6201921000</ENT> <ENT>0.9267</ENT> <ENT>0.7988</ENT> </ROW> <ROW> <ENT I="01">6201921500</ENT> <ENT>1.1583</ENT> <ENT>0.9985</ENT> </ROW> <ROW> <ENT I="01">6201922010</ENT> <ENT>1.0296</ENT> <ENT>0.8875</ENT> </ROW> <ROW> <ENT I="01">6201922021</ENT> <ENT>1.2871</ENT> <ENT>1.1095</ENT> </ROW> <ROW> <ENT I="01">6201922031</ENT> <ENT>1.2871</ENT> <ENT>1.1095</ENT> </ROW> <ROW> <ENT I="01">6201922041</ENT> <ENT>1.2871</ENT> <ENT>1.1095</ENT> </ROW> <ROW> <ENT I="01">6201922051</ENT> <ENT>1.0296</ENT> <ENT>0.8875</ENT> </ROW> <ROW> <ENT I="01">6201922061</ENT> <ENT>1.0296</ENT> <ENT>0.8875</ENT> </ROW> <ROW> <ENT I="01">6201931000</ENT> <ENT>0.3089</ENT> <ENT>0.2663</ENT> </ROW> <ROW> <ENT I="01">6201933511</ENT> <ENT>0.2574</ENT> <ENT>0.2219</ENT> </ROW> <ROW> <ENT I="01">6201933521</ENT> <ENT>0.2574</ENT> <ENT>0.2219</ENT> </ROW> <ROW> <ENT I="01">6201999060</ENT> <ENT>0.2574</ENT> <ENT>0.2219</ENT> </ROW> <ROW> <ENT I="01">6202121000</ENT> <ENT>0.9372</ENT> <ENT>0.8079</ENT> </ROW> <ROW> <ENT I="01">6202122010</ENT> <ENT>1.1064</ENT> <ENT>0.9537</ENT> </ROW> <ROW> <ENT I="01">6202122025</ENT> <ENT>1.3017</ENT> <ENT>1.1221</ENT> </ROW> <ROW> <ENT I="01">6202122050</ENT> <ENT>0.8461</ENT> <ENT>0.7293</ENT> </ROW> <ROW> <ENT I="01">6202122060</ENT> <ENT>0.8461</ENT> <ENT>0.7293</ENT> </ROW> <ROW> <PRTPAGE P="37"/> <ENT I="01">6202134005</ENT> <ENT>0.2664</ENT> <ENT>0.2296</ENT> </ROW> <ROW> <ENT I="01">6202134020</ENT> <ENT>0.333</ENT> <ENT>0.2870</ENT> </ROW> <ROW> <ENT I="01">6202921000</ENT> <ENT>1.0413</ENT> <ENT>0.8976</ENT> </ROW> <ROW> <ENT I="01">6202921500</ENT> <ENT>1.0413</ENT> <ENT>0.8976</ENT> </ROW> <ROW> <ENT I="01">6202922026</ENT> <ENT>1.3017</ENT> <ENT>1.1221</ENT> </ROW> <ROW> <ENT I="01">6202922061</ENT> <ENT>1.0413</ENT> <ENT>0.8976</ENT> </ROW> <ROW> <ENT I="01">6202922071</ENT> <ENT>1.0413</ENT> <ENT>0.8976</ENT> </ROW> <ROW> <ENT I="01">6202931000</ENT> <ENT>0.3124</ENT> <ENT>0.2693</ENT> </ROW> <ROW> <ENT I="01">6202935011</ENT> <ENT>0.2603</ENT> <ENT>0.2244</ENT> </ROW> <ROW> <ENT I="01">6202935021</ENT> <ENT>0.2603</ENT> <ENT>0.2244</ENT> </ROW> <ROW> <ENT I="01">6203122010</ENT> <ENT>0.1302</ENT> <ENT>0.1122</ENT> </ROW> <ROW> <ENT I="01">6203221000</ENT> <ENT>1.3017</ENT> <ENT>1.1221</ENT> </ROW> <ROW> <ENT I="01">6203322010</ENT> <ENT>1.2366</ENT> <ENT>1.0659</ENT> </ROW> <ROW> <ENT I="01">6203322040</ENT> <ENT>1.2366</ENT> <ENT>1.0659</ENT> </ROW> <ROW> <ENT I="01">6203332010</ENT> <ENT>0.1302</ENT> <ENT>0.1122</ENT> </ROW> <ROW> <ENT I="01">6203392010</ENT> <ENT>1.1715</ENT> <ENT>1.0098</ENT> </ROW> <ROW> <ENT I="01">6203399060</ENT> <ENT>0.2603</ENT> <ENT>0.2244</ENT> </ROW> <ROW> <ENT I="01">6203422010</ENT> <ENT>0.9961</ENT> <ENT>0.8586</ENT> </ROW> <ROW> <ENT I="01">6203422025</ENT> <ENT>0.9961</ENT> <ENT>0.8586</ENT> </ROW> <ROW> <ENT I="01">6203422050</ENT> <ENT>0.9961</ENT> <ENT>0.8586</ENT> </ROW> <ROW> <ENT I="01">6203422090</ENT> <ENT>0.9961</ENT> <ENT>0.8586</ENT> </ROW> <ROW> <ENT I="01">6203424005</ENT> <ENT>1.2451</ENT> <ENT>1.0733</ENT> </ROW> <ROW> <ENT I="01">6203424010</ENT> <ENT>1.2451</ENT> <ENT>1.0733</ENT> </ROW> <ROW> <ENT I="01">6203424015</ENT> <ENT>0.9961</ENT> <ENT>0.8586</ENT> </ROW> <ROW> <ENT I="01">6203424020</ENT> <ENT>1.2451</ENT> <ENT>1.0733</ENT> </ROW> <ROW> <ENT I="01">6203424025</ENT> <ENT>1.2451</ENT> <ENT>1.0733</ENT> </ROW> <ROW> <ENT I="01">6203424030</ENT> <ENT>1.2451</ENT> <ENT>1.0733</ENT> </ROW> <ROW> <ENT I="01">6203424035</ENT> <ENT>1.2451</ENT> <ENT>1.0733</ENT> </ROW> <ROW> <ENT I="01">6203424040</ENT> <ENT>0.9961</ENT> <ENT>0.8586</ENT> </ROW> <ROW> <ENT I="01">6203424045</ENT> <ENT>0.9961</ENT> <ENT>0.8586</ENT> </ROW> <ROW> <ENT I="01">6203424050</ENT> <ENT>0.9238</ENT> <ENT>0.7963</ENT> </ROW> <ROW> <ENT I="01">6203424055</ENT> <ENT>0.9238</ENT> <ENT>0.7963</ENT> </ROW> <ROW> <ENT I="01">6203424060</ENT> <ENT>0.9238</ENT> <ENT>0.7963</ENT> </ROW> <ROW> <ENT I="01">6203431500</ENT> <ENT>0.1245</ENT> <ENT>0.1073</ENT> </ROW> <ROW> <ENT I="01">6203434010</ENT> <ENT>0.1232</ENT> <ENT>0.1062</ENT> </ROW> <ROW> <ENT I="01">6203434020</ENT> <ENT>0.1232</ENT> <ENT>0.1062</ENT> </ROW> <ROW> <ENT I="01">6203434030</ENT> <ENT>0.1232</ENT> <ENT>0.1062</ENT> </ROW> <ROW> <ENT I="01">6203434040</ENT> <ENT>0.1232</ENT> <ENT>0.1062</ENT> </ROW> <ROW> <ENT I="01">6203498045</ENT> <ENT>0.249</ENT> <ENT>0.2146</ENT> </ROW> <ROW> <ENT I="01">6204132010</ENT> <ENT>0.1302</ENT> <ENT>0.1122</ENT> </ROW> <ROW> <ENT I="01">6204192000</ENT> <ENT>0.1302</ENT> <ENT>0.1122</ENT> </ROW> <ROW> <ENT I="01">6204198090</ENT> <ENT>0.2603</ENT> <ENT>0.2244</ENT> </ROW> <ROW> <ENT I="01">6204221000</ENT> <ENT>1.3017</ENT> <ENT>1.1221</ENT> </ROW> <ROW> <ENT I="01">6204223030</ENT> <ENT>1.0413</ENT> <ENT>0.8976</ENT> </ROW> <ROW> <ENT I="01">6204223040</ENT> <ENT>1.0413</ENT> <ENT>0.8976</ENT> </ROW> <ROW> <ENT I="01">6204223050</ENT> <ENT>1.0413</ENT> <ENT>0.8976</ENT> </ROW> <ROW> <ENT I="01">6204223060</ENT> <ENT>1.0413</ENT> <ENT>0.8976</ENT> </ROW> <ROW> <ENT I="01">6204223065</ENT> <ENT>1.0413</ENT> <ENT>0.8976</ENT> </ROW> <ROW> <ENT I="01">6204292040</ENT> <ENT>0.3254</ENT> <ENT>0.2805</ENT> </ROW> <ROW> <ENT I="01">6204322010</ENT> <ENT>1.2366</ENT> <ENT>1.0659</ENT> </ROW> <ROW> <ENT I="01">6204322030</ENT> <ENT>1.0413</ENT> <ENT>0.8976</ENT> </ROW> <ROW> <ENT I="01">6204322040</ENT> <ENT>1.0413</ENT> <ENT>0.8976</ENT> </ROW> <ROW> <ENT I="01">6204423010</ENT> <ENT>1.2728</ENT> <ENT>1.0972</ENT> </ROW> <ROW> <ENT I="01">6204423030</ENT> <ENT>0.9546</ENT> <ENT>0.8229</ENT> </ROW> <ROW> <ENT I="01">6204423040</ENT> <ENT>0.9546</ENT> <ENT>0.8229</ENT> </ROW> <ROW> <ENT I="01">6204423050</ENT> <ENT>0.9546</ENT> <ENT>0.8229</ENT> </ROW> <ROW> <ENT I="01">6204423060</ENT> <ENT>0.9546</ENT> <ENT>0.8229</ENT> </ROW> <ROW> <ENT I="01">6204522010</ENT> <ENT>1.2654</ENT> <ENT>1.0908</ENT> </ROW> <ROW> <ENT I="01">6204522030</ENT> <ENT>1.2654</ENT> <ENT>1.0908</ENT> </ROW> <ROW> <ENT I="01">6204522040</ENT> <ENT>1.2654</ENT> <ENT>1.0908</ENT> </ROW> <ROW> <ENT I="01">6204522070</ENT> <ENT>1.0656</ENT> <ENT>0.9185</ENT> </ROW> <ROW> <ENT I="01">6204522080</ENT> <ENT>1.0656</ENT> <ENT>0.9185</ENT> </ROW> <ROW> <ENT I="01">6204533010</ENT> <ENT>0.2664</ENT> <ENT>0.2296</ENT> </ROW> <ROW> <ENT I="01">6204594060</ENT> <ENT>0.2664</ENT> <ENT>0.2296</ENT> </ROW> <ROW> <ENT I="01">6204622010</ENT> <ENT>0.9961</ENT> <ENT>0.8586</ENT> </ROW> <ROW> <ENT I="01">6204622025</ENT> <ENT>0.9961</ENT> <ENT>0.8586</ENT> </ROW> <ROW> <ENT I="01">6204622050</ENT> <ENT>0.9961</ENT> <ENT>0.8586</ENT> </ROW> <ROW> <ENT I="01">6204624005</ENT> <ENT>1.2451</ENT> <ENT>1.0733</ENT> </ROW> <ROW> <ENT I="01">6204624010</ENT> <ENT>1.2451</ENT> <ENT>1.0733</ENT> </ROW> <ROW> <ENT I="01">6204624020</ENT> <ENT>0.9961</ENT> <ENT>0.8586</ENT> </ROW> <ROW> <ENT I="01">6204624025</ENT> <ENT>1.2451</ENT> <ENT>1.0733</ENT> </ROW> <ROW> <ENT I="01">6204624030</ENT> <ENT>1.2451</ENT> <ENT>1.0733</ENT> </ROW> <ROW> <ENT I="01">6204624035</ENT> <ENT>1.2451</ENT> <ENT>1.0733</ENT> </ROW> <ROW> <ENT I="01">6204624040</ENT> <ENT>1.2451</ENT> <ENT>1.0733</ENT> </ROW> <ROW> <ENT I="01">6204624045</ENT> <ENT>0.9961</ENT> <ENT>0.8586</ENT> </ROW> <ROW> <ENT I="01">6204624050</ENT> <ENT>0.9961</ENT> <ENT>0.8586</ENT> </ROW> <ROW> <ENT I="01">6204624055</ENT> <ENT>0.9854</ENT> <ENT>0.8494</ENT> </ROW> <ROW> <ENT I="01">6204624060</ENT> <ENT>0.9854</ENT> <ENT>0.8494</ENT> </ROW> <ROW> <ENT I="01">6204624065</ENT> <ENT>0.9854</ENT> <ENT>0.8494</ENT> </ROW> <ROW> <ENT I="01">6204633510</ENT> <ENT>0.2546</ENT> <ENT>0.2195</ENT> </ROW> <ROW> <ENT I="01">6204633530</ENT> <ENT>0.2546</ENT> <ENT>0.2195</ENT> </ROW> <ROW> <ENT I="01">6204633532</ENT> <ENT>0.2437</ENT> <ENT>0.2101</ENT> </ROW> <ROW> <ENT I="01">6204633540</ENT> <ENT>0.2437</ENT> <ENT>0.2101</ENT> </ROW> <ROW> <ENT I="01">6204692510</ENT> <ENT>0.249</ENT> <ENT>0.2146</ENT> </ROW> <ROW> <ENT I="01">6204692540</ENT> <ENT>0.2437</ENT> <ENT>0.2101</ENT> </ROW> <ROW> <ENT I="01">6204699044</ENT> <ENT>0.249</ENT> <ENT>0.2146</ENT> </ROW> <ROW> <ENT I="01">6204699046</ENT> <ENT>0.249</ENT> <ENT>0.2146</ENT> </ROW> <ROW> <ENT I="01">6204699050</ENT> <ENT>0.249</ENT> <ENT>0.2146</ENT> </ROW> <ROW> <ENT I="01">6205202015</ENT> <ENT>0.9961</ENT> <ENT>0.8586</ENT> </ROW> <ROW> <ENT I="01">6205202020</ENT> <ENT>0.9961</ENT> <ENT>0.8586</ENT> </ROW> <ROW> <ENT I="01">6205202025</ENT> <ENT>0.9961</ENT> <ENT>0.8586</ENT> </ROW> <ROW> <ENT I="01">6205202030</ENT> <ENT>0.9961</ENT> <ENT>0.8586</ENT> </ROW> <ROW> <ENT I="01">6205202035</ENT> <ENT>1.1206</ENT> <ENT>0.9660</ENT> </ROW> <ROW> <ENT I="01">6205202046</ENT> <ENT>0.9961</ENT> <ENT>0.8586</ENT> </ROW> <ROW> <ENT I="01">6205202050</ENT> <ENT>0.9961</ENT> <ENT>0.8586</ENT> </ROW> <ROW> <ENT I="01">6205202060</ENT> <ENT>0.9961</ENT> <ENT>0.8586</ENT> </ROW> <ROW> <ENT I="01">6205202065</ENT> <ENT>0.9961</ENT> <ENT>0.8586</ENT> </ROW> <ROW> <ENT I="01">6205202070</ENT> <ENT>0.9961</ENT> <ENT>0.8586</ENT> </ROW> <ROW> <ENT I="01">6205202075</ENT> <ENT>0.9961</ENT> <ENT>0.8586</ENT> </ROW> <ROW> <ENT I="01">6205302010</ENT> <ENT>0.3113</ENT> <ENT>0.2683</ENT> </ROW> <ROW> <ENT I="01">6205302030</ENT> <ENT>0.3113</ENT> <ENT>0.2683</ENT> </ROW> <ROW> <ENT I="01">6205302040</ENT> <ENT>0.3113</ENT> <ENT>0.2683</ENT> </ROW> <ROW> <ENT I="01">6205302050</ENT> <ENT>0.3113</ENT> <ENT>0.2683</ENT> </ROW> <ROW> <ENT I="01">6505302070</ENT> <ENT>0.3113</ENT> <ENT>0.2683</ENT> </ROW> <ROW> <ENT I="01">6205302080</ENT> <ENT>0.3113</ENT> <ENT>0.2683</ENT> </ROW> <ROW> <ENT I="01">6206100040</ENT> <ENT>0.1245</ENT> <ENT>0.1073</ENT> </ROW> <ROW> <ENT I="01">6206303010</ENT> <ENT>0.9961</ENT> <ENT>0.8586</ENT> </ROW> <ROW> <ENT I="01">6206303020</ENT> <ENT>0.9961</ENT> <ENT>0.8586</ENT> </ROW> <ROW> <ENT I="01">6206303030</ENT> <ENT>0.9961</ENT> <ENT>0.8586</ENT> </ROW> <ROW> <ENT I="01">6206303040</ENT> <ENT>0.9961</ENT> <ENT>0.8586</ENT> </ROW> <ROW> <ENT I="01">6206303050</ENT> <ENT>0.9961</ENT> <ENT>0.8586</ENT> </ROW> <ROW> <ENT I="01">6206303060</ENT> <ENT>0.9961</ENT> <ENT>0.8586</ENT> </ROW> <ROW> <ENT I="01">6206403010</ENT> <ENT>0.3113</ENT> <ENT>0.2683</ENT> </ROW> <ROW> <ENT I="01">6206403030</ENT> <ENT>0.3113</ENT> <ENT>0.2683</ENT> </ROW> <ROW> <ENT I="01">6206900040</ENT> <ENT>0.249</ENT> <ENT>0.2146</ENT> </ROW> <ROW> <ENT I="01">6207110000</ENT> <ENT>1.0852</ENT> <ENT>0.9354</ENT> </ROW> <ROW> <ENT I="01">6207199010</ENT> <ENT>0.3617</ENT> <ENT>0.3118</ENT> </ROW> <ROW> <ENT I="01">6207210030</ENT> <ENT>1.1085</ENT> <ENT>0.9555</ENT> </ROW> <ROW> <ENT I="01">6207220000</ENT> <ENT>0.3695</ENT> <ENT>0.3185</ENT> </ROW> <ROW> <ENT I="01">6207911000</ENT> <ENT>1.1455</ENT> <ENT>0.9874</ENT> </ROW> <ROW> <ENT I="01">6207913010</ENT> <ENT>1.1455</ENT> <ENT>0.9874</ENT> </ROW> <ROW> <ENT I="01">6207913020</ENT> <ENT>1.1455</ENT> <ENT>0.9874</ENT> </ROW> <ROW> <ENT I="01">6208210010</ENT> <ENT>1.0583</ENT> <ENT>0.9123</ENT> </ROW> <ROW> <ENT I="01">6208210020</ENT> <ENT>1.0583</ENT> <ENT>0.9123</ENT> </ROW> <ROW> <ENT I="01">6208220000</ENT> <ENT>0.1245</ENT> <ENT>0.1073</ENT> </ROW> <ROW> <ENT I="01">6208911010</ENT> <ENT>1.1455</ENT> <ENT>0.9874</ENT> </ROW> <ROW> <ENT I="01">6208911020</ENT> <ENT>1.1455</ENT> <ENT>0.9874</ENT> </ROW> <ROW> <ENT I="01">6208913010</ENT> <ENT>1.1455</ENT> <ENT>0.9874</ENT> </ROW> <ROW> <ENT I="01">6209201000</ENT> <ENT>1.1577</ENT> <ENT>0.9979</ENT> </ROW> <ROW> <ENT I="01">6209203000</ENT> <ENT>0.9749</ENT> <ENT>0.8404</ENT> </ROW> <ROW> <ENT I="01">6209205030</ENT> <ENT>0.9749</ENT> <ENT>0.8404</ENT> </ROW> <ROW> <ENT I="01">6209205035</ENT> <ENT>0.9749</ENT> <ENT>0.8404</ENT> </ROW> <ROW> <ENT I="01">6209205040</ENT> <ENT>1.2186</ENT> <ENT>1.0504</ENT> </ROW> <ROW> <ENT I="01">6209205045</ENT> <ENT>0.9749</ENT> <ENT>0.8404</ENT> </ROW> <ROW> <ENT I="01">6209205050</ENT> <ENT>0.9749</ENT> <ENT>0.8404</ENT> </ROW> <ROW> <ENT I="01">6209303020</ENT> <ENT>0.2463</ENT> <ENT>0.2123</ENT> </ROW> <ROW> <ENT I="01">6209303040</ENT> <ENT>0.2463</ENT> <ENT>0.2123</ENT> </ROW> <ROW> <ENT I="01">6210109010</ENT> <ENT>0.2291</ENT> <ENT>0.1975</ENT> </ROW> <ROW> <ENT I="01">6210403000</ENT> <ENT>0.0391</ENT> <ENT>0.0337</ENT> </ROW> <ROW> <ENT I="01">6210405020</ENT> <ENT>0.4556</ENT> <ENT>0.3927</ENT> </ROW> <ROW> <ENT I="01">6211111010</ENT> <ENT>0.1273</ENT> <ENT>0.1097</ENT> </ROW> <ROW> <ENT I="01">6211111020</ENT> <ENT>0.1273</ENT> <ENT>0.1097</ENT> </ROW> <ROW> <PRTPAGE P="38"/> <ENT I="01">6211118010</ENT> <ENT>1.1455</ENT> <ENT>0.9874</ENT> </ROW> <ROW> <ENT I="01">6211118020</ENT> <ENT>1.1455</ENT> <ENT>0.9874</ENT> </ROW> <ROW> <ENT I="01">6211320007</ENT> <ENT>0.8461</ENT> <ENT>0.7293</ENT> </ROW> <ROW> <ENT I="01">6211320010</ENT> <ENT>1.0413</ENT> <ENT>0.8976</ENT> </ROW> <ROW> <ENT I="01">6211320015</ENT> <ENT>1.0413</ENT> <ENT>0.8976</ENT> </ROW> <ROW> <ENT I="01">6211320030</ENT> <ENT>0.9763</ENT> <ENT>0.8416</ENT> </ROW> <ROW> <ENT I="01">6211320060</ENT> <ENT>0.9763</ENT> <ENT>0.8416</ENT> </ROW> <ROW> <ENT I="01">6211320070</ENT> <ENT>0.9763</ENT> <ENT>0.8416</ENT> </ROW> <ROW> <ENT I="01">6211330010</ENT> <ENT>0.3254</ENT> <ENT>0.2805</ENT> </ROW> <ROW> <ENT I="01">6211330030</ENT> <ENT>0.3905</ENT> <ENT>0.3366</ENT> </ROW> <ROW> <ENT I="01">6211330035</ENT> <ENT>0.3905</ENT> <ENT>0.3366</ENT> </ROW> <ROW> <ENT I="01">6211330040</ENT> <ENT>0.3905</ENT> <ENT>0.3366</ENT> </ROW> <ROW> <ENT I="01">6211420010</ENT> <ENT>1.0413</ENT> <ENT>0.8976</ENT> </ROW> <ROW> <ENT I="01">6211420020</ENT> <ENT>1.0413</ENT> <ENT>0.8976</ENT> </ROW> <ROW> <ENT I="01">6211420025</ENT> <ENT>1.1715</ENT> <ENT>1.0098</ENT> </ROW> <ROW> <ENT I="01">6211420060</ENT> <ENT>1.0413</ENT> <ENT>0.8976</ENT> </ROW> <ROW> <ENT I="01">6211420070</ENT> <ENT>1.1715</ENT> <ENT>1.0098</ENT> </ROW> <ROW> <ENT I="01">6211430010</ENT> <ENT>0.2603</ENT> <ENT>0.2244</ENT> </ROW> <ROW> <ENT I="01">6211430030</ENT> <ENT>0.2603</ENT> <ENT>0.2244</ENT> </ROW> <ROW> <ENT I="01">6211430040</ENT> <ENT>0.2603</ENT> <ENT>0.2244</ENT> </ROW> <ROW> <ENT I="01">6211430050</ENT> <ENT>0.2603</ENT> <ENT>0.2244</ENT> </ROW> <ROW> <ENT I="01">6211430060</ENT> <ENT>0.2603</ENT> <ENT>0.2244</ENT> </ROW> <ROW> <ENT I="01">6211430066</ENT> <ENT>0.2603</ENT> <ENT>0.2244</ENT> </ROW> <ROW> <ENT I="01">6212105020</ENT> <ENT>0.2412</ENT> <ENT>0.2079</ENT> </ROW> <ROW> <ENT I="01">6212109010</ENT> <ENT>0.9646</ENT> <ENT>0.8315</ENT> </ROW> <ROW> <ENT I="01">6212109020</ENT> <ENT>0.2412</ENT> <ENT>0.2079</ENT> </ROW> <ROW> <ENT I="01">6212200020</ENT> <ENT>0.3014</ENT> <ENT>0.2598</ENT> </ROW> <ROW> <ENT I="01">6212900030</ENT> <ENT>0.1929</ENT> <ENT>0.1663</ENT> </ROW> <ROW> <ENT I="01">6213201000</ENT> <ENT>1.1809</ENT> <ENT>1.0179</ENT> </ROW> <ROW> <ENT I="01">6213202000</ENT> <ENT>1.0628</ENT> <ENT>0.9161</ENT> </ROW> <ROW> <ENT I="01">6213901000</ENT> <ENT>0.4724</ENT> <ENT>0.4072</ENT> </ROW> <ROW> <ENT I="01">6214900010</ENT> <ENT>0.9043</ENT> <ENT>0.7795</ENT> </ROW> <ROW> <ENT I="01">6216000800</ENT> <ENT>0.2351</ENT> <ENT>0.2027</ENT> </ROW> <ROW> <ENT I="01">6216001720</ENT> <ENT>0.6752</ENT> <ENT>0.5820</ENT> </ROW> <ROW> <ENT I="01">6216003800</ENT> <ENT>1.2058</ENT> <ENT>1.0394</ENT> </ROW> <ROW> <ENT I="01">6216004100</ENT> <ENT>1.2058</ENT> <ENT>1.0394</ENT> </ROW> <ROW> <ENT I="01">6217109510</ENT> <ENT>1.0182</ENT> <ENT>0.8777</ENT> </ROW> <ROW> <ENT I="01">6217109530</ENT> <ENT>0.2546</ENT> <ENT>0.2195</ENT> </ROW> <ROW> <ENT I="01">6301300010</ENT> <ENT>0.8766</ENT> <ENT>0.7556</ENT> </ROW> <ROW> <ENT I="01">6301300020</ENT> <ENT>0.8766</ENT> <ENT>0.7556</ENT> </ROW> <ROW> <ENT I="01">6302100005</ENT> <ENT>1.1689</ENT> <ENT>1.0076</ENT> </ROW> <ROW> <ENT I="01">6302100008</ENT> <ENT>1.1689</ENT> <ENT>1.0076</ENT> </ROW> <ROW> <ENT I="01">6302100015</ENT> <ENT>1.1689</ENT> <ENT>1.0076</ENT> </ROW> <ROW> <ENT I="01">6302215010</ENT> <ENT>0.8182</ENT> <ENT>0.7053</ENT> </ROW> <ROW> <ENT I="01">6302215020</ENT> <ENT>0.8182</ENT> <ENT>0.7053</ENT> </ROW> <ROW> <ENT I="01">6302217010</ENT> <ENT>1.1689</ENT> <ENT>1.0076</ENT> </ROW> <ROW> <ENT I="01">6302217020</ENT> <ENT>1.1689</ENT> <ENT>1.0076</ENT> </ROW> <ROW> <ENT I="01">6302217050</ENT> <ENT>1.1689</ENT> <ENT>1.0076</ENT> </ROW> <ROW> <ENT I="01">6302219010</ENT> <ENT>0.8182</ENT> <ENT>0.7053</ENT> </ROW> <ROW> <ENT I="01">6302219020</ENT> <ENT>0.8182</ENT> <ENT>0.7053</ENT> </ROW> <ROW> <ENT I="01">6302219050</ENT> <ENT>0.8182</ENT> <ENT>0.7053</ENT> </ROW> <ROW> <ENT I="01">6302222010</ENT> <ENT>0.4091</ENT> <ENT>0.3526</ENT> </ROW> <ROW> <ENT I="01">6302222020</ENT> <ENT>0.4091</ENT> <ENT>0.3526</ENT> </ROW> <ROW> <ENT I="01">6302313010</ENT> <ENT>0.8182</ENT> <ENT>0.7053</ENT> </ROW> <ROW> <ENT I="01">6302313050</ENT> <ENT>1.1689</ENT> <ENT>1.0076</ENT> </ROW> <ROW> <ENT I="01">6302315050</ENT> <ENT>0.8182</ENT> <ENT>0.7053</ENT> </ROW> <ROW> <ENT I="01">6302317010</ENT> <ENT>1.1689</ENT> <ENT>1.0076</ENT> </ROW> <ROW> <ENT I="01">6302317020</ENT> <ENT>1.1689</ENT> <ENT>1.0076</ENT> </ROW> <ROW> <ENT I="01">6302317040</ENT> <ENT>1.1689</ENT> <ENT>1.0076</ENT> </ROW> <ROW> <ENT I="01">6302317050</ENT> <ENT>1.1689</ENT> <ENT>1.0076</ENT> </ROW> <ROW> <ENT I="01">6302319010</ENT> <ENT>0.8182</ENT> <ENT>0.7053</ENT> </ROW> <ROW> <ENT I="01">6302319040</ENT> <ENT>0.8182</ENT> <ENT>0.7053</ENT> </ROW> <ROW> <ENT I="01">6302319050</ENT> <ENT>0.8182</ENT> <ENT>0.7053</ENT> </ROW> <ROW> <ENT I="01">6302322020</ENT> <ENT>0.4091</ENT> <ENT>0.3526</ENT> </ROW> <ROW> <ENT I="01">6302322040</ENT> <ENT>0.4091</ENT> <ENT>0.3526</ENT> </ROW> <ROW> <ENT I="01">6302402010</ENT> <ENT>0.9935</ENT> <ENT>0.8564</ENT> </ROW> <ROW> <ENT I="01">6302511000</ENT> <ENT>0.5844</ENT> <ENT>0.5038</ENT> </ROW> <ROW> <ENT I="01">6302512000</ENT> <ENT>0.8766</ENT> <ENT>0.7556</ENT> </ROW> <ROW> <ENT I="01">6302513000</ENT> <ENT>0.5844</ENT> <ENT>0.5038</ENT> </ROW> <ROW> <ENT I="01">6302514000</ENT> <ENT>0.8182</ENT> <ENT>0.7053</ENT> </ROW> <ROW> <ENT I="01">6302600010</ENT> <ENT>1.1689</ENT> <ENT>1.0076</ENT> </ROW> <ROW> <ENT I="01">6302600020</ENT> <ENT>1.052</ENT> <ENT>0.9068</ENT> </ROW> <ROW> <ENT I="01">6302600030</ENT> <ENT>1.052</ENT> <ENT>0.9068</ENT> </ROW> <ROW> <ENT I="01">6302910005</ENT> <ENT>1.052</ENT> <ENT>0.9068</ENT> </ROW> <ROW> <ENT I="01">6302910015</ENT> <ENT>1.1689</ENT> <ENT>1.0076</ENT> </ROW> <ROW> <ENT I="01">6302910025</ENT> <ENT>1.052</ENT> <ENT>0.9068</ENT> </ROW> <ROW> <ENT I="01">6302910035</ENT> <ENT>1.052</ENT> <ENT>0.9068</ENT> </ROW> <ROW> <ENT I="01">6302910045</ENT> <ENT>1.052</ENT> <ENT>0.9068</ENT> </ROW> <ROW> <ENT I="01">6302910050</ENT> <ENT>1.052</ENT> <ENT>0.9068</ENT> </ROW> <ROW> <ENT I="01">6302910060</ENT> <ENT>1.052</ENT> <ENT>0.9068</ENT> </ROW> <ROW> <ENT I="01">6303110000</ENT> <ENT>0.9448</ENT> <ENT>0.8144</ENT> </ROW> <ROW> <ENT I="01">6303910010</ENT> <ENT>0.6429</ENT> <ENT>0.5542</ENT> </ROW> <ROW> <ENT I="01">6303910020</ENT> <ENT>0.6429</ENT> <ENT>0.5542</ENT> </ROW> <ROW> <ENT I="01">6304111000</ENT> <ENT>1.0629</ENT> <ENT>0.9162</ENT> </ROW> <ROW> <ENT I="01">6304190500</ENT> <ENT>1.052</ENT> <ENT>0.9068</ENT> </ROW> <ROW> <ENT I="01">6304191000</ENT> <ENT>1.1689</ENT> <ENT>1.0076</ENT> </ROW> <ROW> <ENT I="01">6304191500</ENT> <ENT>0.4091</ENT> <ENT>0.3526</ENT> </ROW> <ROW> <ENT I="01">6304192000</ENT> <ENT>0.4091</ENT> <ENT>0.3526</ENT> </ROW> <ROW> <ENT I="01">6304910020</ENT> <ENT>0.9351</ENT> <ENT>0.8061</ENT> </ROW> <ROW> <ENT I="01">6304920000</ENT> <ENT>0.9351</ENT> <ENT>0.8061</ENT> </ROW> <ROW> <ENT I="01">6505901540</ENT> <ENT>0.181</ENT> <ENT>0.1560</ENT> </ROW> <ROW> <ENT I="01">6505902060</ENT> <ENT>0.9935</ENT> <ENT>0.8564</ENT> </ROW> <ROW> <ENT I="01">6505902545</ENT> <ENT>0.5844</ENT> <ENT>0.5038</ENT> </ROW> </GPOTABLE> <P>(4) Any entry of cotton that qualifies for informal entry according to regulations issued by the Customs Service will not be subject to the assessment.</P> <P>(5) Imported textile and apparel articles assembled of components formed from cotton produced in the Unites States and identified by HTS numbers 9819.11.03, 9819.11.06, 9820.11.03, 9820.11.06, 9820.11.09, 9820.11.12, 9820.11.18, 9820.11.21, 9802.00.8015, 9802.00.9000, 9802.00.8044, or 9802.00.8046 shall not subject to assessment.</P> <P>(6) Imported cotton and products may be exempted by the Cotton Board from assessment under this paragraph. Such imported cotton and products may include, but are not limited to cotton and the cotton content of products which is U.S. produced cotton, or cotton other than Upland cotton.</P> <P>(i) A request for such exemption must be submitted to the Cotton Board by the importer, prior to the importation of the cotton product. The Cotton Board will then issue, if deemed appropriate, a numbered exemption certificate valid for 1 year from the date of issue. The exemption number should be entered by the importer on the Customs entry documentation in the appropriate location as determined by the U.S. Customs Service.</P> <P>(ii) The request for exemption should include:</P> <P>(A) the name, address, and importer identification number for the importer;<PRTPAGE P="39"/> </P> <P>(B) the HTS classification of the imported product;</P> <P>(C) weight of the product for which the exemption is sought;</P> <P>(D) estimated date of entry;</P> <P>(E) commercial invoices of other such documentation indicating the origin or production or type of the cotton fiber used to produce the imported product;</P> <P>(F) manufacture's description of the imported product.</P> <P>(7) The exemption number “999999999” shall be entered on the Customs entry summary document, in the appropriate location as determined by the U.S. Customs Service, by the importer when, based on the importer's own determination, the imported product is identified by a Harmonized Tariff Schedule classification number which is subject to assessment but the particular article contains no cotton.</P> <P>(8) Articles imported into the United States temporarily and under bond which are classified by the Harmonized Tariff Schedule heading which begins with “9813” shall not be subject to assessment.</P> <P>(9) Articles imported into the U.S. after being exported from the U.S. for alterations and which are classified by the Harmonized Tariff Schedule subheadings 9802.00.40 and 9802.00.50 shall not be subject to assessment.</P> <CITA>[57 FR 29432, July 2, 1992, as amended at 58 FR 52216, Oct. 7, 1993; 59 FR 59111, Nov. 16, 1994; 60 FR 36034, July 13, 1995; 61 FR 31819, 31822, June 21, 1996; 62 FR 22878, Apr. 28, 1997; 62 FR 46414, Sept. 2, 1997; 62 FR 50244, Sept. 25, 1997; 63 FR 27819, May 21, 1998; 64 FR 30238, June 7, 1999; 65 FR 25237, May 1, 2000; 65 FR 70644, Nov. 27, 2000; 66 FR 58052, Nov. 20, 2001; 67 FR 36795, May 28, 2002]</CITA> </SECTION> <SECTION> <SECTNO>§ 1205.511</SECTNO> <SUBJECT>Payment and collection.</SUBJECT> <P>(a) The $1 per bale assessment shall be paid by:</P> <P>(1) The producer of the cotton to the collecting handler designated in § 1205.512, and</P> <P>(2) The importer of cotton to the Customs Service as provided in § 1205.514.</P> <P>(b) The supplemental assessment shall be paid by:</P> <P>(1) The producer of the cotton to the collecting handler designated in § 1205.513, and</P> <P>(2) The importer of cotton to the Customs Service as described in § 1205.515.</P> <P>(c) If more than one person subject to assessment shares in the proceeds received from a bale or bale equivalent, each such person is obligated to pay that portion of the assessment that is equivalent to that person's proportionate share of the proceeds.</P> <P>(d) Failure of the handler to collect the assessments on each bale shall not relieve the handler of the handler's obligation to remit the assessments to the Cotton Board as required in §§ 1205.512, 1205.513 and 1205.516.</P> <CITA>[57 FR 29190, July 1, 1992]</CITA> </SECTION> <SECTION> <SECTNO>§ 1205.512</SECTNO> <SUBJECT>Collecting handlers and time of collection of $1 per bale assessment.</SUBJECT> <P>Collecting handlers and the time of collecting the $1 per bale assessment shall be as follows:</P> <P>(a) Except as provided in paragraph (b) of this section, any person who purchases a bale of cotton from the producer of the cotton shall be the collecting handler for such cotton. The handler shall collect the assessment at the time the handler first makes any payment or any credit to the producer's account for the cotton. The handler shall give the producer a receipt indicating payment of the assessment.</P> <P>(b) Any cooperative marketing association or other person that accepts a bale of cotton from the producer of the cotton under an oral or written contract or agreement providing for the marketing of the cotton shall be the collecting handler for such cotton. Such association or person shall collect the assessment regardless of whether the cotton is marketed or tendered to CCC for price support loan. The handler shall collect the assessment at the time the handler first makes any cash advance, any payment, or any credit to the producer's account for the cotton. The handler shall give the producer a receipt indicating payment of the assessment.</P> <P>(c) For bales of cotton tendered to CCC for Form A loan, except bales tendered pursuant to paragraph (b) of this section:</P> <P>(1) The ASCS County Office shall be the collecting handler except as provided in paragraph (c)(2) of this section. The ASCS County Office shall <PRTPAGE P="40"/>collect the assessment when it makes disbursement based on the Form A loan documents. The producer's copy of the Cotton Producer's Note (Form CCC Cotton A) shall show payment of the assessment and shall constitute the producer's receipt for payment of the assessment.</P> <P>(2) Any person (other than an ASCS County Office) who advances to the producer the loan value of the cotton as shown on a Cotton Producer's Note (Form CCC Cotton A) shall be the collecting handler for such cotton. The handler shall collect the $1 per bale assessment at the time the handler makes any advance to the producer on the loan value of the cotton. The handler shall give the producer a receipt indicating payment of the assessment.</P> <P>(d) Any person who purchases cotton in the cotton field where produced or who purchases seed cotton or unbaled lint cotton from the producer of the cotton shall be the collecting handler. The handler shall collect the assessment at the time such cotton is ginned and shall give the producer a receipt indicating payment of the assessment. When a bale is ginned that contains any such cotton purchased from more than one producer, the handler shall collect each producer's proportionate share of the assessment and shall give each producer a receipt indicating the producer's proportionate share of the assessment payment.</P> <P>(e) Any person who purchases cotton from a producer whereby the producer agrees to deliver a certain quantity of cotton but retains the right to establish the price at some future date shall be the collecting handler for such cotton. The handler shall collect the $1 per bale assessment at the time final settlement is made on the cotton. The handler shall give the producer a receipt indicating payment of the $1 per bale assessment.</P> <P>(f) Any person who consumes domestically or exports cotton of that person's own production shall be the collecting handler for such cotton. Such handler shall pay the assessment to the Cotton Board at the time the cotton is consumed or exported.</P> <P>(g) Any person who obtains ownership of a bale of cotton from the producer of the cotton by transfer of any kind or by any means, under conditions other than those described in paragraph (a), (b), (c), (d) or (e) of this section shall be the collecting handler for such cotton. Such handler shall collect the assessment at the time such handler takes ownership of the cotton. The handler shall give the producer a receipt indicating payment of the assessment.</P> <P>(h) In the event of a producer's death, bankruptcy, receivership, or incapacity to act, the representative of such producer, or the producer's estate, or the person acting on behalf of creditors, shall be considered the producer for the purposes of this section.</P> <CITA>[42 FR 35974, July 31, 1977, as amended at 50 FR 10932, Mar. 19, 1985; 57 FR 29190, July 1, 1992]</CITA> </SECTION> <SECTION> <SECTNO>§ 1205.513</SECTNO> <SUBJECT>Collecting handlers and time of collection of the supplemental assessment.</SUBJECT> <P>Collecting handlers and the time of collecting the supplemental assessment shall be as follows:</P> <P>(a) Except as provided in paragraph (b) of this section, any person who purchases a bale of cotton from the producer of the cotton shall be the collecting handler for such cotton. The handler shall collect the supplemental assessment at the time the handler first makes any payment or any credit to the producer's account for the cotton. The handler shall give the producer a receipt indicating payment of the supplemental assessment.</P> <P>(b) Any cooperative marketing association or other person that accepts a bale of cotton from the producer of the cotton under an oral or written contract or agreement providing for the marketing of the cotton shall be the collecting handler for such cotton. Such association or person shall collect the supplemental assessment regardless of whether the cotton is marketed or tendered to CCC for price support loan. The handler shall collect the supplemental assessment at the time the handler first makes any cash advance, any payment, or any credit to the producer's account for the cotton. Supplemental assessments due on any subsequent cash advances, payments, or credits to the producer's account shall be collected by the handler at the time <PRTPAGE P="41"/>final settlement is made on the cotton. The handler shall give the producer a receipt each time a supplemental assessment is collected.</P> <P>(c) For bales of cotton tendered to CCC for Form A loan, except bales tendered pursuant to paragraph (b) of this section:</P> <P>(1) The ASCS County Office shall be the collecting handler except as provided in paragraph (c)(2) of this section. The ASCS County Office shall collect the supplemental assessment when it makes disbursement based on the Form A loan value of cotton. The producer's copy of the Cotton Producer's Note (Form CCC Cotton A) shall show payment of the supplemental assessment and shall constitute the producer's receipt for payment of the supplemental assessment.</P> <P>(2) Any person (other than an ASCS County Office) who advances to the producer the loan value of the cotton as shown on a Cotton Producer's Note (Form CCC Cotton A) shall be the collecting handler for such cotton. The handler shall collect the supplemental assessment at the time the handler makes any advance to the producer on the loan value of the cotton. The handler shall give the producer a receipt indicating payment of the supplemental assessment.</P> <P>(d) With respect to any Upland cotton on which the producer or a cooperative marketing association acting on behalf of a producer receives a loan deficiency payment, the ASCS County Office or the cooperative marketing association shall be the collecting handler of the supplemental assessment on the value of the cotton represented by the loan deficiency payment at the time such payment is made to the producer or the cooperative marketing association. A copy of a document reflecting this transaction issued by the ASCS County Office or cooperative marketing association shall show the amount collected as the supplemental assessment and shall constitute the producer's receipt for payment of the supplemental assessment.</P> <P>(e) Any person who (1) purchases a producer's equity in cotton tendered to CCC for Form A loan or (2) purchases cotton that a producer has redeemed from the Form A loan, shall be the collecting handler for the portion of the total supplemental assessment not collected under paragraph (c) of this section. The handler shall give the producer a receipt indicating payment of that portion of the supplemental assessment.</P> <P>(f) Any person who purchases cotton in the cotton field where produced or who purchases seed cotton or unbaled lint cotton from the producer of the cotton shall be the collecting handler. The handler shall collect the supplemental assessment at the time such cotton is ginned and shall give the producer a receipt indicating payment of the supplemental assessment. When a bale is ginned and baled that contains any such cotton purchased from more than one producer, the handler shall collect each producer's proportionate share of the supplemental assessment and shall give each producer a receipt indicating the producer's proportionate share of the supplemental assessment payment.</P> <P>(g) Any person who purchases cotton from a producer whereby the producer agrees to deliver a certain quantity of cotton but retains the right to establish the price at some future date shall be the collecting handler for such cotton. The handler shall collect the supplemental assessment at the time final settlement is made on the cotton. The handler shall give the producer a receipt indicating payment of the supplemental assessment.</P> <P>(h) Any person who consumes domestically cotton of that person's own production shall be the collecting handler for such cotton. The handler shall pay the supplemental assessment at the time of consumption on the basis of a market value determined in consultation with the Cotton Board.</P> <P>(i) Any person who exports cotton of that person's own production shall be the collecting handler for such cotton. Such handler shall pay the supplemental assessment on the basis of the current value of cotton as reflected on the export settlement document.</P> <P>(j) Any person who obtains ownership of a bale of cotton from the producer of the cotton by transfer of any kind or by any means, under conditions other than those described in paragraph (a), (b), (c), (d), (e), or (f) of this section <PRTPAGE P="42"/>shall be the collecting handler for such cotton. Such handler shall collect the supplemental assessment at the time the handler takes ownership of the cotton. The handler shall give the producer a receipt indicating payment of the supplemental assessment.</P> <P>(k) In the event of a producer's death, bankruptcy, receivership, or incapacity to act, the representative of such producer or the producer's estate, or the person acting on behalf of creditors, shall be considered the producer for the purposes of this section.</P> <CITA>[42 FR 35974, July 31, 1977, as amended at 50 FR 10932, Mar. 19, 1985; 51 FR 37705, Oct. 24, 1986; 57 FR 29190, July 1, 1992]</CITA> </SECTION> <SECTION> <SECTNO>§ 1205.514</SECTNO> <SUBJECT>Customs Service and the Collection of the $1 per bale assessment.</SUBJECT> <P>The Collection of the $1 per bale assessment by the Customs Service shall be as follows:</P> <P>(a) The Customs Service will collect the assessment from the importer or from any person acting as principal, agent, broker or consignee for cotton or cotton-containing products produced outside the United States and imported into the United States. The Customs Service will collect the assessment on cotton and cotton-containing products identified by Harmonized Tariff Schedule heading numbers in § 1205.510(b)(2) at the time of importation and forward such assessment as per the agreement between the United States Customs Service and the U.S. Department of Agriculture.</P> <P>(b) In the event of an importer's death, bankruptcy, receivership, or incapacity to act, the representative of such importer, or the importer's estate, or the person acting on behalf of creditors, shall be considered the importer for the purposes of this section.</P> <CITA>[57 FR 29191, July 1, 1992]</CITA> </SECTION> <SECTION> <SECTNO>§ 1205.515</SECTNO> <SUBJECT>Customs Service and the collection of the supplemental assessment.</SUBJECT> <P>The collection of the supplemental assessment by the Customs Service shall be as follows:</P> <P>(a) The Customs Service will collect the supplemental assessment from any person acting as principal, agent, broker or consignee for cotton or cotton-containing products produced outside the United States and imported into the United States. Customs Service will collect the assessment on all cotton and cotton-containing products identified by Harmonized Tariff Schedule heading numbers in § 1205.510(b)(2) at the time of importation and forward such assessment as per the agreement between the United States Customs Service and the U.S. Department of Agriculture.</P> <P>(b) In the event of an importer's death, bankruptcy, receivership, or incapacity to act, the representative of such importer, or the importer's estate, or the person acting on behalf of creditors, shall be considered the importer for the purposes of this section.</P> <CITA>[57 FR 29191, July 1, 1992]</CITA> </SECTION> <SECTION> <SECTNO>§ 1205.516</SECTNO> <SUBJECT>Reports and remittance to the Cotton Board.</SUBJECT> <P>(a) <E T="03">Handler reports and remittances</E>. Each collecting handler shall transmit assessments to the Cotton Board as follows:</P> <P>(1) <E T="03">Reporting periods.</E> Each calendar month shall be a reporting period and the period shall end on the close of business on the last day of the month.</P> <P>(2) <E T="03">Reports</E>. Each collecting handler shall make reports on forms made available or approved by the Cotton Board. Each report shall be mailed to the Cotton Board and postmarked within ten days after the close of the reporting period.</P> <P>(i) <E T="03">Collecting handler report</E>. Each collecting handler shall prepare a separate report form each reporting period for each gin from which such handler handles cotton on which the handler is required to collect the assessments during the reporting period. Each report shall be mailed in duplicate to the Cotton Board and shall contain the following information:</P> <P>(A) Date of report;</P> <P>(B) Reporting period covered by report;</P> <P>(C) Gin code number;</P> <P>(D) Name and address of handler;</P> <P>(E) Listing of all producers from whom the handler was required to collect the assessments, their addresses, total number of bales, and total assessment collected and remitted for each producer;<PRTPAGE P="43"/> </P> <P>(F) Date of last report remitting assessments to the Cotton Board.</P> <P>(ii) <E T="03">No cotton purchased report.</E> Each collecting handler shall submit a no cotton purchased report form for each reporting period in which no cotton was handled for which the handler is required to collect assessments during the reporting period. A collecting handler who handles cotton only during certain months shall file a final no cotton purchased report at the conclusion of such handlers marketing season. If a collecting handler handles cotton during any month following submission of the final report for the handlers marketing season, such handler shall send a collecting handler report and remittance to the Cotton Board by the 10th day of the month following the month in which cotton was handled. The no cotton purchased report shall be signed and dated by the handler of the handler's agent.</P> <P>(3) <E T="03">Remittances.</E> The collecting handler shall remit all assessments to the Cotton Board with the report required in paragraph (a)(2) of this section. All remittances sent to the Cotton Board by collecting handlers shall be made by check, draft, or money order payable to the order of the “Cotton Board”. All remittances shall be received subject to collection and payment at par.</P> <P>(4) <E T="03">Interest and late payment charges.</E> (i) There shall be an interest charge, at rates prescribed by the Cotton Board with the approval of the Secretary, on any handler who is sent a second certified mail notice of past-due assessments from the Cotton Board in any one marketing year (August 1-July 31).</P> <P>(ii) In addition to the interest charge specified in paragraph (a)(4)(i) of this section, there shall be a late payment charge on any handler whose remittance is not received by the Cotton Board within 10 days after the close of the reporting period in which interest charges were first accrued. The late payment charge shall be 5 percent of the unpaid balance before interest charges have accrued.</P> <P>(iii) The interest and late payment charges on the unremitted assessments for a particular reporting period will be applied from the first working day on or following the 20th day of the month in which the assessments were due.</P> <P>(b) <E T="03">Importer reports and remittance.</E> The United States Customs Service will transmit reports and assessments collected on imported cotton to the Agricultural Marketing Service according to the agreement between the Customs Service and the Agricultural Marketing Service. Upon the request of the Cotton Board, an importer shall file with the Board a report, for a period of time specified in the request, that includes the following information:</P> <P>(1) The importer's name and address;</P> <P>(2) The quantity of cotton and cotton products imported;</P> <P>(3) The amount of the assessment paid on imported cotton and cotton products;</P> <P>(4) The amount of imported cotton and cotton products on which the assessment was not paid to the Customs Service.</P> <CITA>[57 FR 29190, July 1, 1992]</CITA> </SECTION> <SECTION> <SECTNO>§ 1205.517</SECTNO> <SUBJECT>Failure to report and remit.</SUBJECT> <P>(a) Any collecting handler who fails to submit reports and remittances according to reporting periods and time schedules required in § 1205.516 shall be subject to appropriate action by the Cotton Board which may include one or more of the following actions:</P> <P>(1) Audits of the collecting handler's books and records to determine the amount owed the Cotton Board;</P> <P>(2) Requirement that an escrow account for the deposit of assessments collected be established. Frequency and schedule of deposits and withdrawals from the escrow account shall be determined by the Cotton Board with the Approval of the Secretary;</P> <P>(3) Referral to the Secretary for appropriate enforcement action;</P> <P>(4) Publication of a collecting handler's name in accordance with the following provisions:</P> <P>(i) The name of any collecting handler will be subject to publication if the collecting handler:</P> <P>(A) is sent two certified mail notices of past due assessments and/or collecting handler reports from the Cotton Board in any one marketing year (August 1-July 31), or</P> <P>(B) is required by the Cotton Board to establish an escrow account for depositing assessments, in accordance with paragraph (a)(2) of this section, <PRTPAGE P="44"/>and does not comply with the deposit procedures established by the Cotton Board with approval of the Secretary.</P> <P>(ii) The name of any collecting handler who is subject to publication will be published by the Cotton Board with the approval of the Secretary in a monthly listing during the primary cotton marketing season (September through March) and a bi-monthly listing during the remainder of the year. The published listing will be distributed by the Cotton Board.</P> <P>(iii) The Cotton Board, with approval of the Secretary, may notify individual producers that the assessments collected by such producer's collecting handler, whose name is subject to publication in accordance with the provisions of paragraph (a)(4)(i) of this section, have not been remitted to the Cotton Board as required.</P> <P>(b) Any importer who fails to submit reports to the Cotton Board pursuant to request made according to § 1205.516 or assessments to the Customs Service, shall be subject to one or more of the following actions:</P> <P>(1) Audits of the importer's books and records to determine the amount owed the Cotton Board.</P> <P>(2) A deduction for the amount of any unpaid assessment by the Customs Service from the importers surety bond.</P> <P>(3) Referral to the Secretary for appropriate enforcement action.</P> <CITA>[57 FR 29191, July 1, 1992]</CITA> </SECTION> <SECTION> <SECTNO>§ 1205.518</SECTNO> <SUBJECT>Receipts for payment of assessments.</SUBJECT> <P>Each collecting handler who is required by § 1205.512 and § 1205.513 to give the producer a receipt showing payment of cotton research and promotion assessments shall provide the producer with an invoice or settlement sheet for the cotton. Such document shall serve as a receipt shall contain the following information:</P> <P>(a) Name and address of collecting handler.</P> <P>(b) Gin code number of gin at which cotton was ginned.</P> <P>(c) Name and address of producer who paid assessment.</P> <P>(d) Number of bales on which assessment was paid.</P> <P>(e) Gross price per pound received by the producer.</P> <P>(f) Total assessments paid by the producer.</P> <P>(g) Date on which assessment was paid by producer.</P> <APPRO>(Approved by the Office of Management and Budget under control number 0581-0115)</APPRO> <CITA>[42 FR 35974, July 13, 1977, as amended at 49 FR 8420, Mar. 7, 1984. Redesignated and amended at 51 FR 6099, Feb. 20, 1986. Further redesignated at 57 FR 29190, July 1, 1992]</CITA> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Reimbursements</HD> <SECTION> <SECTNO>§ 1205.520</SECTNO> <SUBJECT>Procedure for obtaining reimbursement.</SUBJECT> <P>Each importer against whose imports of cotton or cotton-containing products any assessments are made and collected may obtain a reimbursement on that portion of the assessment that was collected on cotton produced in the United States or cotton other than Upland cotton by following the procedures prescribed in this section.</P> <P>(a) <E T="03">Application form.</E> An importer shall obtain a reimbursement application form from the Cotton Board. Such form may be obtained by written request to the Cotton Board and the request shall bear the importer's signature or the importer's properly-witnessed mark.</P> <P>(b) <E T="03">Submission of reimbursement application to Cotton Board.</E> Any importer requesting a reimbursement shall mail the application on the prescribed form to the Cotton Board. The application shall be postmarked within 180 days from the date the assessments were paid on the cotton by such importer. The reimbursement application shall show:</P> <P>(1) The importer's name, address, phone number and Customs Service identification number;</P> <P>(2) Weight of the cotton in each HTS category for which the reimbursement is requested;</P> <P>(3) Subtotal amounts to be reimbursed for each HTS number and grand total to be reimbursed;</P> <P>(4) Date or inclusive dates on which the assessments were paid;</P> <P>(5) The name of the port of entry; and</P> <P>(6) Certification by the importer that the cotton was grown in the U.S. or is other than Upland cotton.<PRTPAGE P="45"/> </P> <P>(c) Where more than one importer shared in the assessment payment on cotton, joint or separate reimbursement application forms may be filed. In any such case, the reimbursement application shall show the names, addresses and proportionate shares of assessments paid by all importers. The reimbursement application shall bear the signature of each importer seeking reimbursement.</P> <P>(d) <E T="03">Proof of payment of the assessment on U.S. produced or other than Upland cotton.</E> A copy of the Customs entry form and the commercial invoice filed with the Customs Service shall accompany the importer's reimbursement application. Within 60 days from the date the properly executed application for reimbursement is received by the Cotton Board, the Cotton Board shall make reimbursement to the importer. For joint applications, the reimbursement shall be made payable to all eligible importers signing the reimbursement application. Documentation submitted with reimbursement applications shall not be returned to the importer.</P> <CITA>[57 FR 29192, July 1, 1992, as amended at 62 FR 22879, Apr. 28, 1997]</CITA> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Warehouse Receipts</HD> <SECTION> <SECTNO>§ 1205.525</SECTNO> <SUBJECT>Entry of gin code number.</SUBJECT> <P>The warehouse that first receives a bale for storage after ginning shall enter the gin code number of the gin at which the bale was ginned on the warehouse receipt issued for the bale.</P> <CITA>[57 FR 29192, July 1, 1992]</CITA> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Reports and Records</HD> <SECTION> <SECTNO>§ 1205.530</SECTNO> <SUBJECT>Gin reports and reporting schedule.</SUBJECT> <P>(a) <E T="03">Gin reports.</E> Each year each cotton gin in the United States shall submit reports to the Cotton Board on forms or certificates made available or approved by the Cotton Board as follows:</P> <P>(1) <E T="03">End-of-season report.</E> Except as provided in paragraph (a)(2) of this section, each gin shall report to the Cotton Board an alphabetical listing of producer names, their addresses, and the number of bales ginned for each such producer during its ginning season.</P> <P>(2) <E T="03">Certificate in Lieu of End-of-Season Report.</E> If a gin is the collecting handler on every bale ginned at such gin and collecting handler reports and remittances of assessments have been made in accordance with § 1205.516, a certification to that effect may be made to the Cotton Board in lieu of an end-of-season report.</P> <P>(b) <E T="03">Reporting schedule.</E> The schedule for submitting gin reports is as follows:</P> <P>(1) Each gin that completes ginning operations prior to January 16 shall make a report to the Cotton Board within 10 days after completion of ginning.</P> <P>(2) Each gin that operates on or after January 16 will make a report to the Cotton Board not later than January 25 covering bales ginned through January 15.</P> <P>(3) Each gin that operates after January 15 shall make a supplemental report to the Cotton Board within 10 days after the close of ginning operations covering bales ginned after January 15.</P> <CITA>[42 FR 35974, July 13, 1977, as amended at 57 FR 29192, July 1, 1992]</CITA> </SECTION> <SECTION> <SECTNO>§ 1205.531</SECTNO> <SUBJECT>Records.</SUBJECT> <P>Each handler or importer required to make reports pursuant to this subpart shall maintain such books and records as are necessary to verify the reports.</P> <CITA>[57 FR 29192, July 1, 1992]</CITA> </SECTION> <SECTION> <SECTNO>§ 1205.532</SECTNO> <SUBJECT>Retention period for reports and records.</SUBJECT> <P>Each handler and importer required to make reports pursuant to this subpart shall retain for at least 2 years beyond the marketing year of their applicability:</P> <P>(a) One copy of the report made to the Cotton Board; and</P> <P>(b) Such books and records as are necessary to verify such reports.</P> <CITA>[57 FR 29192, July 1, 1992]</CITA> </SECTION> <SECTION> <SECTNO>§ 1205.533</SECTNO> <SUBJECT>Availability of reports and records.</SUBJECT> <P>Each handler and importer required to make reports pursuant to this subpart shall make available for inspection by the Cotton Board, including its <PRTPAGE P="46"/>designated employees, and the Secretary any reports, books, or records required under this subpart.</P> <CITA>[57 FR 29192, July 1, 1992]</CITA> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Confidential Information</HD> <SECTION> <SECTNO>§ 1205.540</SECTNO> <SUBJECT>Confidential books, records, and reports.</SUBJECT> <P>All information obtained from the books, records, and reports of handlers and importers shall be kept confidential in the manner and to the extent provided for in § 1205.340.</P> <CITA>[57 FR 29192, July 1, 1992]</CITA> </SECTION> <SECTION> <SECTNO>§ 1205.541</SECTNO> <SUBJECT>OMB control numbers.</SUBJECT> <P>The control number assigned to the information collection requirements by the Office of Management and Budget pursuant to the Paperwork Reduction Act of 1980, Public Law 96-511, is OMB number 0581-0093, except Board member nominee information sheets are assigned OMB number 0505-0001.</P> <CITA>[57 FR 29192, July 1, 1992]</CITA> </SECTION> </SUBJGRP> </SUBPART> <SUBPART> <RESERVED>Subpart—Fiscal Period [Reserved]</RESERVED> </SUBPART> </PART> <PART> <EAR>Pt. 1207</EAR> <HD SOURCE="HED">PART 1207—POTATO RESEARCH AND PROMOTION PLAN</HD> <CONTENTS> <SUBPART> <HD SOURCE="HED">Subpart—Potato Research and Promotion Plan</HD> <SUBJGRP> <HD SOURCE="HED">Definitions</HD> <SECHD>Sec.</SECHD> <SECTNO>1207.301</SECTNO> <SUBJECT>Secretary.</SUBJECT> <SECTNO>1207.302</SECTNO> <SUBJECT>Act.</SUBJECT> <SECTNO>1207.303</SECTNO> <SUBJECT>Plan.</SUBJECT> <SECTNO>1207.304</SECTNO> <SUBJECT>Person.</SUBJECT> <SECTNO>1207.305</SECTNO> <SUBJECT>Producer.</SUBJECT> <SECTNO>1207.306</SECTNO> <SUBJECT>Potatoes.</SUBJECT> <SECTNO>1207.307</SECTNO> <SUBJECT>Handle.</SUBJECT> <SECTNO>1207.308</SECTNO> <SUBJECT>Handler.</SUBJECT> <SECTNO>1207.309</SECTNO> <SUBJECT>Board.</SUBJECT> <SECTNO>1207.310</SECTNO> <SUBJECT>Fiscal period and marketing year.</SUBJECT> <SECTNO>1207.311</SECTNO> <SUBJECT>Programs and projects.</SUBJECT> <SECTNO>1207.312</SECTNO> <SUBJECT>Importer.</SUBJECT> <SECTNO>1207.313</SECTNO> <SUBJECT>Customs Service.</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">National Potato Promotion Board</HD> <SECTNO>1207.320</SECTNO> <SUBJECT>Establishment and membership.</SUBJECT> <SECTNO>1207.321</SECTNO> <SUBJECT>Term of office.</SUBJECT> <SECTNO>1207.322</SECTNO> <SUBJECT>Nominations and appointment.</SUBJECT> <SECTNO>1207.323</SECTNO> <SUBJECT>Acceptance.</SUBJECT> <SECTNO>1207.324</SECTNO> <SUBJECT>Vacancies.</SUBJECT> <SECTNO>1207.325</SECTNO> <SUBJECT>Procedure.</SUBJECT> <SECTNO>1207.326</SECTNO> <SUBJECT>Compensation and reimbursement.</SUBJECT> <SECTNO>1207.327</SECTNO> <SUBJECT>Powers.</SUBJECT> <SECTNO>1207.328</SECTNO> <SUBJECT>Duties.</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Research and Promotion</HD> <SECTNO>1207.335</SECTNO> <SUBJECT>Research and promotion.</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Expenses and Assessments</HD> <SECTNO>1207.341</SECTNO> <SUBJECT>Budget and expenses.</SUBJECT> <SECTNO>1207.342</SECTNO> <SUBJECT>Assessments.</SUBJECT> <SECTNO>1207.343</SECTNO> <SUBJECT>[Reserved]</SUBJECT> <SECTNO>1207.344</SECTNO> <SUBJECT>Operating reserve.</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Reports, Books, and Records</HD> <SECTNO>1207.350</SECTNO> <SUBJECT>Reports.</SUBJECT> <SECTNO>1207.351</SECTNO> <SUBJECT>Books and records.</SUBJECT> <SECTNO>1207.352</SECTNO> <SUBJECT>Confidential treatment.</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Miscellaneous</HD> <SECTNO>1207.360</SECTNO> <SUBJECT>Influencing governmental action.</SUBJECT> <SECTNO>1207.361</SECTNO> <SUBJECT>Right of the Secretary.</SUBJECT> <SECTNO>1207.362</SECTNO> <SUBJECT>Suspension or termination.</SUBJECT> <SECTNO>1207.363</SECTNO> <SUBJECT>Proceedings after termination.</SUBJECT> <SECTNO>1207.364</SECTNO> <SUBJECT>Effect of termination or amendment.</SUBJECT> <SECTNO>1207.365</SECTNO> <SUBJECT>Personal liability.</SUBJECT> <SECTNO>1207.366</SECTNO> <SUBJECT>Separability.</SUBJECT> </SUBJGRP> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart—Rules and Regulations</HD> <SUBJGRP> <HD SOURCE="HED">Definitions</HD> <SECTNO>1207.500</SECTNO> <SUBJECT>Definitions.</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">General</HD> <SECTNO>1207.501</SECTNO> <SUBJECT>Communications.</SUBJECT> <SECTNO>1207.502</SECTNO> <SUBJECT>Determination of membership.</SUBJECT> <SECTNO>1207.503</SECTNO> <SUBJECT>Nominations.</SUBJECT> <SECTNO>1207.504</SECTNO> <SUBJECT>Term of office.</SUBJECT> <SECTNO>1207.505</SECTNO> <SUBJECT>Procedure.</SUBJECT> <SECTNO>1207.506</SECTNO> <SUBJECT>Policy.</SUBJECT> <SECTNO>1207.507</SECTNO> <SUBJECT>Administrative Committee.</SUBJECT> <SECTNO>1207.508</SECTNO> <SUBJECT>USDA costs.</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Assessments</HD> <SECTNO>1207.510</SECTNO> <SUBJECT>Levy of assessments.</SUBJECT> <SECTNO>1207.511</SECTNO> <SUBJECT>Determination of assessable quantity.</SUBJECT> <SECTNO>1207.512</SECTNO> <SUBJECT>Designated handler.</SUBJECT> <SECTNO>1207.513</SECTNO> <SUBJECT>Payment of assessments.</SUBJECT> <SECTNO>1207.514</SECTNO> <SUBJECT>[Reserved]</SUBJECT> <SECTNO>1207.515</SECTNO> <SUBJECT>Safeguards.</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Records</HD> <SECTNO>1207.532</SECTNO> <SUBJECT>Retention period for records.</SUBJECT> <SECTNO>1207.533</SECTNO> <SUBJECT>Availability of records.</SUBJECT> <SECTNO>1207.534</SECTNO> <SUBJECT>OMB control number assigned pursuant to the Paperwork Reduction Act.</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Confidential Information</HD> <SECTNO>1207.540</SECTNO> <SUBJECT>Confidential books, records, and reports.</SUBJECT> <SECTNO>1207.545</SECTNO> <SUBJECT>Right of the Secretary.</SUBJECT> <SECTNO>1207.546</SECTNO> <SUBJECT>Personal liability.</SUBJECT> </SUBJGRP> </SUBPART> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>7 U.S.C. 2611-2627.</P> </AUTH> <SUBPART> <PRTPAGE P="47"/> <HD SOURCE="HED">Subpart—Potato Research and Promotion Plan</HD> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>37 FR 5008, Mar. 9, 1972, unless otherwise noted.</P> </SOURCE> <SUBJGRP> <HD SOURCE="HED">Definitions</HD> <SECTION> <SECTNO>§ 1207.301</SECTNO> <SUBJECT>Secretary.</SUBJECT> <P> <E T="03">Secretary</E> means the Secretary of Agriculture of the United States, or any officer or employee of the Department to whom authority has heretofore been delegated, or to whom authority may hereafter be delegated, to act in his stead.</P> </SECTION> <SECTION> <SECTNO>§ 1207.302</SECTNO> <SUBJECT>Act.</SUBJECT> <P> <E T="03">Act</E> means the Potato Research and Promotion Act, <E T="03">Title III of Public Law 91-670, 91st Congress, approved January 11, 1971, 84 Stat. 2041,</E> as amended.</P> <CITA>[56 FR 40229, Aug. 14, 1991]</CITA> </SECTION> <SECTION> <SECTNO>§ 1207.303</SECTNO> <SUBJECT>Plan.</SUBJECT> <P> <E T="03">Plan</E> means this potato research and promotion plan issued by the Secretary pursuant to the act.</P> </SECTION> <SECTION> <SECTNO>§ 1207.304</SECTNO> <SUBJECT>Person.</SUBJECT> <P> <E T="03">Person</E> means any individual, partnership, corporation, association, or other entity.</P> </SECTION> <SECTION> <SECTNO>§ 1207.305</SECTNO> <SUBJECT>Producer.</SUBJECT> <P> <E T="03">Producer</E> means any person engaged in the growing of 5 or more acres of potatoes who owns or shares the ownership and risk of loss of such potato crop.</P> </SECTION> <SECTION> <SECTNO>§ 1207.306</SECTNO> <SUBJECT>Potatoes.</SUBJECT> <P> <E T="03">Potatoes</E> means any or all varieties of Irish potatoes grown by producers in the 50 states of the United States and grown in foreign countries and imported into the United States.</P> <CITA>[56 FR 40229, Aug. 14, 1991]</CITA> </SECTION> <SECTION> <SECTNO>§ 1207.307</SECTNO> <SUBJECT>Handle.</SUBJECT> <P> <E T="03">Handle</E> means to grade, pack, process, sell, transport, purchase, or in any other way to place potatoes or cause potatoes to be placed in the current of commerce. Such term shall not include the transportation or delivery of field-run potatoes by the producer thereof to a handler for grading, storage, or processing.</P> </SECTION> <SECTION> <SECTNO>§ 1207.308</SECTNO> <SUBJECT>Handler.</SUBJECT> <P> <E T="03">Handler</E> means any person (except a common or contract carrier of potatoes owned by another person) who handles potatoes, including a producer who handles potatoes of his own production.</P> </SECTION> <SECTION> <SECTNO>§ 1207.309</SECTNO> <SUBJECT>Board.</SUBJECT> <P> <E T="03">Board</E> means the National Potato Promotion Board, hereinafter established pursuant to § 1207.320.</P> </SECTION> <SECTION> <SECTNO>§ 1207.310</SECTNO> <SUBJECT>Fiscal period and marketing year.</SUBJECT> <P> <E T="03">Fiscal period</E> and <E T="03">marketing year</E> mean the 12-month period from July 1 through June 30 of the following year or such other period which may be approved by the Secretary.</P> </SECTION> <SECTION> <SECTNO>§ 1207.311</SECTNO> <SUBJECT>Programs and projects.</SUBJECT> <P> <E T="03">Programs</E> and <E T="03">projects</E> mean those research, development, advertising or promotion programs or projects developed by the Board pursuant to § 1207.335.</P> </SECTION> <SECTION> <SECTNO>§ 1207.312</SECTNO> <SUBJECT>Importer.</SUBJECT> <P> <E T="03">Importer</E> means any person who imports tablestock, frozen or processed potatoes for ultimate consumption by humans, or seed potatoes into the United States.</P> <CITA>[56 FR 40229, Aug. 14, 1991]</CITA> </SECTION> <SECTION> <SECTNO>§ 1207.313</SECTNO> <SUBJECT>Customs Service.</SUBJECT> <P> <E T="03">Customs Service</E> means the United States Customs Service of the United States Department of the Treasury.</P> <CITA>[56 FR 40229, Aug. 14, 1991]</CITA> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">National Potato Promotion Board</HD> <SECTION> <SECTNO>§ 1207.320</SECTNO> <SUBJECT>Establishment and membership.</SUBJECT> <P>(a) There is hereby established a National Potato Promotion Board, hereinafter called the “Board”, composed of producers, importers, and a public member appointed by the Secretary. Producer members shall be appointed from nominations submitted by producers in the various States or groups of States pursuant to § 1207.322. Importer members shall be appointed <PRTPAGE P="48"/>from nominations submitted by importers pursuant to § 1207.322. The public member shall be nominated by Board members in such manner as recommended by the Board and approved by the Secretary, and shall be appointed by the Secretary.</P> <P>(b) Producer membership upon the Board shall be determined on the basis of the potato production reported in the latest Crop Production Annual Summary Report issued by the Crop Reporting Board, U.S. Department of Agriculture. Unless the Secretary, upon recommendation of the Board, determines an alternate basis, for each five million hundredweight of such production, or major fraction thereof, produced within each State, such State shall be entitled to one member. However, each State shall initially be entitled to at least one member.</P> <P>(c) The number of importer member positions on the Board shall be based on the hundredweights of potatoes, potato products equivalent to fresh potatoes, and seed potatoes imported into the United States but shall not exceed five importer members. Unless the Secretary, upon recommendation of the Board, determines an alternate basis, there shall be one importer member position for each 5 million hundredweight, or major fraction thereof, of potatoes, potato product equivalents, and seed potatoes imported into the United States.</P> <P>(d) Any State in which the potato producers fail to respond to an officially called nomination meeting may be combined with an adjacent State for the purpose of representation on the Board, in which case the Board's producer member selected by the Secretary will represent both States, but such member's voting power under § 1207.325 shall not be increased.</P> <P>(e) The Secretary, upon recommendation of the Board, may establish, through rule making procedure, districts or groups of States in order to change the representation requirements for membership on the Board. In such event the voting power of members under § 1207.325 would be based upon the total production within the new district or group of States.</P> <P>(f) Should the Board fail to nominate a public member, the Secretary may appoint such member.</P> <CITA>[37 FR 5008, Mar. 9, 1972, as amended at 49 FR 20806, May 17, 1984; 49 FR 31390, Aug. 7, 1984; 56 FR 40229, Aug. 14, 1991]</CITA> </SECTION> <SECTION> <SECTNO>§ 1207.321</SECTNO> <SUBJECT>Term of office.</SUBJECT> <P>(a) The term of office of Board members shall be 3 years, beginning July 1, or such other beginning date as may be approved pursuant to regulations.</P> <P>(b) The terms of office of the Board's producer members shall be so determined that approximately one-third of the terms will expire each year. Importer and public member terms shall run concurrently. All members serving on the Board on the effective date of this amendment to the Plan shall continue serving the term to which they were appointed.</P> <P>(c) Board members shall serve during the term of office for which they are selected and have qualified, and until their successors are selected and have qualified.</P> <P>(d) No member shall serve for more than two full successive terms of office.</P> <CITA>[37 FR 5008, Mar. 9, 1972, as amended at 56 FR 40229, Aug. 14, 1991]</CITA> </SECTION> <SECTION> <SECTNO>§ 1207.322</SECTNO> <SUBJECT>Nominations and appointment.</SUBJECT> <P>The Secretary shall select the producer, importer, and public members of the Board from nominations which may be made in the following manner.</P> <P>(a) A meeting or meetings of producers shall be held in each State to nominate producer members for the Board. For nominations to the initial Board the meetings shall be announced by the U.S. Department of Agriculture. The Department may call upon other organizations to assist in conducting the meetings such as State and national organizations of potato producers. Such nomination meetings shall be held not later than 60 days after the issuance of this subpart. Any organization designated to hold such nomination meetings shall give adequate notice of such meetings to the potato producers affected; also to the Secretary so that a representative of <PRTPAGE P="49"/>the Secretary, if available, may conduct such meetings or act as secretary of such nomination meetings.</P> <P>(b) After the establishment of the initial Board, the nominations for subsequent Board producer members shall be made by producers at meetings in the producing sections or States. The Board shall hold such meetings, or cause them to be held, in accordance with rules established pursuant to recommendation of the Board.</P> <P>(c) Only producers may participate in designating producer nominees. Each producer is entitled to one vote only on behalf of himself, his partners, agents, subsidiaries, affiliates, and representatives for each position for which nominations are being held. If a producer is engaged in producing potatoes in more than one State, he shall elect the State in which he shall vote. In no event shall he vote in nominations in more than one meeting.</P> <P>(d) The importer members shall be nominated by importers of potatoes, potato products and/or seed potatoes. The number of importer members on the Board shall be announced by the Secretary and shall not exceed five members. The Board may call upon organizations of potato, potato products and/or seed potato importers to assist in nominating importers for membership on the Board. If such organizations fail to submit nominees or are determined by the Board to not adequately represent importers, then the Board may conduct meetings of importers to nominate eligible importers for Board member positions. In determining if importer organizations adequately represent importers, the Board shall consider:</P> <P>(1) How many importers belong to the association;</P> <P>(2) What percentage of the total number of importers is represented by the association;</P> <P>(3) Is the association representative of the potato, potato product, and seed potato import industry;</P> <P>(4) Does the association speak for potato, potato product, and seed potato importers; and</P> <P>(5) Other relevant information as may be warranted.</P> <P>(e) The public member shall be nominated by the producer and importer members of the Board. The public member shall have no direct financial interest in the commercial production or marketing of potatoes except as a consumer and shall not be a director, stockholder, officer or employee of any firm so engaged. The Board shall prescribe such additional qualifications, administrative rules and procedures for selection and voting for each candidate as it deems necessary and the Secretary approves.</P> <CITA>[37 FR 5008, Mar. 9, 1972, as amended at 49 FR 20806, May 17, 1984; 56 FR 40229, Aug. 14, 1991]</CITA> <EFFDNOT> <HD SOURCE="HED">Effective Date Note:</HD> <P>At 62 FR 46179, Sept. 2, 1997, in § 1207.322, paragraphs (a) and (d)(1) through (d)(5); in paragraph (b), the words “at meetings” in the first sentence and the entire last sentence; in paragraph (c), the last sentence; and in paragraph (d), the last two sentences of the introductory text are suspended, effective Sept. 3, 1997.</P> </EFFDNOT> </SECTION> <SECTION> <SECTNO>§ 1207.323</SECTNO> <SUBJECT>Acceptance.</SUBJECT> <P>Each person selected by the Secretary as a member of the Board shall qualify by filing a written acceptance with the Secretary promptly after being notified of such selection.</P> </SECTION> <SECTION> <SECTNO>§ 1207.324</SECTNO> <SUBJECT>Vacancies.</SUBJECT> <P>To fill any vacancy caused by the failure of any person selected as a member of the Board to qualify, or in the event of the death, removal, resignation, or disqualification of any member, a successor shall be nominated and selected in the manner specified in § 1207.322. In the event of failure to provide nominees for such vacancies, the Secretary may select other eligible persons.</P> </SECTION> <SECTION> <SECTNO>§ 1207.325</SECTNO> <SUBJECT>Procedure.</SUBJECT> <P>(a) Each State (or district or group of States established pursuant to § 1207.320) which has a member on the Board shall be entitled to not less than one vote for any production up to 1 million hundredweight, plus one additional vote for each additional 1 million hundredweight of production, or major fraction thereof, as determined by the latest crop production annual summary report issued by the Crop Reporting Board, U.S. Department of Agriculture. The casting of the votes for each State shall be determined by the members of the Board from that State.<PRTPAGE P="50"/> </P> <P>(b) A majority of the Board members shall constitute a quorum and any action of the Board shall require a majority of concurring votes of those present and voting. At assembled meetings all votes shall be cast in person or by duly authorized proxy.</P> <P>(c) For routine and noncontroversial matters which do not require deliberation and the exchange of views, and for matters of an emergency nature when there is not enough time to call an assembled meeting, the Board may act upon a majority of concurring votes of its members cast by mail, telegraph, or telephone. Any vote cast by telephone shall be confirmed promptly in writing.</P> <CITA>[37 FR 5008, Mar. 9, 1972, as amended at 57 FR 40083, Sept. 2, 1992]</CITA> </SECTION> <SECTION> <SECTNO>§ 1207.326</SECTNO> <SUBJECT>Compensation and reimbursement.</SUBJECT> <P>Members of the Board shall serve without compensation but shall be reimbursed for reasonable expenses incurred by them in the performance of their duties as members of the Board.</P> </SECTION> <SECTION> <SECTNO>§ 1207.327</SECTNO> <SUBJECT>Powers.</SUBJECT> <P>The Board shall have the following powers subject to § 1207.361:</P> <P>(a) To administer the provisions of this plan in accordance with its terms and conditions;</P> <P>(b) To make rules and regulations to effectuate the terms and conditions of this plan;</P> <P>(c) To receive, investigate, and report to the Secretary complaints of violations of this plan; and</P> <P>(d) To recommend to the Secretary amendments to this plan.</P> </SECTION> <SECTION> <SECTNO>§ 1207.328</SECTNO> <SUBJECT>Duties.</SUBJECT> <P>The Board shall, among other things, have the following duties:</P> <P>(a) To meet and organize and to select from among its members a president and such other officers as may be necessary; to select committees and subcommittees of Board members to nominate the public member; to adopt such rules for the conduct of its business as it may deem advisable; and it may establish advisory committees of persons other than Board members;</P> <P>(b) To employ such persons as it may deem necessary and to determine the compensation and define the duties of each; and to protect the handling of Board funds through fidelity bonds;</P> <P>(c) At the beginning of each fiscal period, to prepare and submit to the Secretary for his approval a budget on a fiscal period basis of the anticipated expenses in the administration of this plan including the probable costs of all programs or projects and to recommend a rate of assessment with respect thereto;</P> <P>(d) To develop programs and proj-ects and to enter into contracts or agreements for the development and carrying out of programs or projects of research, development, advertising or promotion, and the payment of the costs thereof with funds collected pursuant to this plan;</P> <P>(e) To keep minutes, books, and rec-ords which clearly reflect all of the acts and transactions of the Board. Minutes of each Board meeting shall be promptly reported to the Secretary;</P> <P>(f) To cause the books of the Board to be audited by a certified public accountant at least once each fiscal period, and at such other time as the Board may deem necessary. The report of such audit shall show the receipt and expenditure of funds collected pursuant to this part. Two copies of each such report shall be furnished to the Secretary and a copy of each such report shall be made available at the principal office of the Board for inspection by producers, handlers, and importers;</P> <P>(g) To give the Secretary the same notice of meetings of the Board and its subcommittees as is given to its members;</P> <P>(h) To act as intermediary between the Secretary and any producer, handler, or importer;</P> <P>(i) To furnish the Secretary such information as he may request.</P> <P>(j) To prepare and submit to the Secretary such reports from time to time as may be prescribed by the Secretary for appropriate accounting with respect to the receipt and disbursement of funds entrusted to the Board; and</P> <CITA>[37 FR 5008, Mar. 9, 1972, as amended at 49 FR 20806, May 17, 1984; 56 FR 40230, Aug. 14, 1991; 57 FR 40083, Sept. 2, 1992]</CITA> </SECTION> </SUBJGRP> <SUBJGRP> <PRTPAGE P="51"/> <HD SOURCE="HED">Research and Promotion</HD> <SECTION> <SECTNO>§ 1207.335</SECTNO> <SUBJECT>Research and promotion.</SUBJECT> <P>The Board shall develop and submit to the Secretary for approval any programs or projects authorized in this section. Such programs or projects shall provide for:</P> <P>(a) The establishment, issuance, effectuation and administration of appropriate programs or projects for the advertising and promotion of potatoes and potato products: <E T="03">Provided, however,</E> That any such program or project shall be directed toward increasing the general demand for potatoes and potato products;</P> <P>(b) Establishing and carrying on research and development projects and studies to the end that the marketing and utilization of potatoes may be encouraged, expanded, improved, or made more efficient: <E T="03">Provided,</E> That quality control, grade standards and supply management programs shall not be conducted under, or as a part of, this plan; and</P> <P>(c) The development and expansion of potato and potato product sales in foreign markets.</P> <P>(d) No advertising or promotion program shall make any reference to private brand names or use false or unwarranted claims in behalf of potatoes or their products or false or unwarranted statements with respect to the attributes or use of any competing products.</P> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Expenses and Assessments</HD> <SECTION> <SECTNO>§ 1207.341</SECTNO> <SUBJECT>Budget and expenses.</SUBJECT> <P>(a) At the beginning of each fiscal period, or as may be necessary thereafter, the Board shall prepare and recommend a budget on a fiscal period basis of its anticipated expenses and disbursements in the administration of this plan, including probable costs of research, development, advertising, and promotion. The Board shall also recommend a rate of assessment calculated to provide adequate funds to defray its proposed expenditures and to provide for a reserve as set forth in § 1207.344.</P> <P>(b) The Board is authorized to incur such expenses for research, development, advertising, or promotion of potatoes and potato products, such other expenses for the administration, maintenance, and functioning of the Board, and any referendum and administrative costs incurred by the Department of Agriculture as are approved pursuant to § 1207.361.</P> <CITA>[37 FR 5008, Mar. 9, 1972, as amended at 49 FR 20806, May 17, 1984]</CITA> </SECTION> <SECTION> <SECTNO>§ 1207.342</SECTNO> <SUBJECT>Assessments.</SUBJECT> <P>(a) The funds to cover the Board's expenses shall be acquired by the levying of assessments upon handlers and importers as designated in regulations recommended by the Board and issued by the Secretary. Such assessments shall be levied at a rate fixed by the Secretary which shall not exceed one-half of one per centum of the immediate past ten calendar years United States average price received for potatoes by growers as reported by the Department of Agriculture and not more than one such assessment may be collected on any potatoes.</P> <P>(b) Each designated handler, as specified in regulations, shall pay assessments to the Board on all potatoes handled by him, including potatoes he produced. Assessments shall be paid to the Board at such time and in such manner as the Board shall direct pursuant to regulations issued hereunder. The designated handler may collect the assessments from the producer, or deduct such assessments from the proceeds paid to the producer on whose potatoes the assessments are made, provided he furnishes the producer with evidence of such payment.</P> <P>(c) The importer of imported potatoes, potato products, or seed potatoes shall pay the assessment to the Board at the time of entry, or withdrawal, for consumption of such potatoes and potato products into the United States.</P> <P>(d) The assessment on imported tablestock potatoes and frozen or processed potato products for ultimate consumption by humans and on seed potatoes shall be established by the Board so that the effective assessment shall be equal to that on domestic production.</P> <P>(e) The Board may authorize other organizations to collect assessments in its behalf.<PRTPAGE P="52"/> </P> <P>(f) The Board may exempt potatoes used for nonfood purposes, other than seed, from the provisions of this plan and shall establish adequate safeguards against improper use of such exemptions.</P> <CITA>[37 FR 5008, Mar. 9, 1972, as amended at 49 FR 20806, May 17, 1984; 56 FR 40230, Aug. 14, 1991]</CITA> </SECTION> <SECTION> <SECTNO>§ 1207.343</SECTNO> <RESERVED>[Reserved]</RESERVED> </SECTION> <SECTION> <SECTNO>§ 1207.344</SECTNO> <SUBJECT>Operating reserve.</SUBJECT> <P>The Board may establish an operating monetary reserve and may carry over to subsequent fiscal periods excess funds in a reserve so established: <E T="03">Provided,</E> That funds in the reserve shall not exceed approximately two fiscal periods’ expenses. Such reserve funds may be used to defray any expenses authorized under this part.</P> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Reports, Books, and Records</HD> <SECTION> <SECTNO>§ 1207.350</SECTNO> <SUBJECT>Reports.</SUBJECT> <P>(a) Each designated handler shall maintain a record with respect to each producer for whom he handled potatoes and for potatoes handled which he himself produced. He shall report to the Board at such times and in such manner as it may prescribe by regulations such information as may be necessary for the Board to perform its duties under this part. Such reports may include, but shall not be limited to, the following:</P> <P>(1) Total quantity of potatoes handled for each producer and for himself, including those which are exempt under the plan;</P> <P>(2) Total quantity of potatoes handled for each producer and for himself subject to the plan and assessments, and</P> <P>(3) Name and address of each person from whom he collected an assessment, the amount collected from each person, and the date such collection was made.</P> <P>(b) Each importer shall report to the Board at such times and in such manner as it may prescribe such information as may be necessary for the Board to perform its duties under this part.</P> <CITA>[37 FR 5008, Mar. 9, 1972, as amended at 56 FR 40230, Aug. 14, 1991]</CITA> </SECTION> <SECTION> <SECTNO>§ 1207.351</SECTNO> <SUBJECT>Books and records.</SUBJECT> <P>Each handler or importer subject to this part shall maintain and make available for inspection by authorized employees of the Board and the Secretary such books and records as are appropriate and necessary to carry out the provisions of this Plan and the regulations issued thereunder, including such records as are necessary to verify any reports required. Such records shall be maintained for at least 2 years beyond the marketing year of their applicability.</P> <CITA>[37 FR 5008, Mar. 9, 1972, as amended at 56 FR 40230, Aug. 14, 1991]</CITA> </SECTION> <SECTION> <SECTNO>§ 1207.352</SECTNO> <SUBJECT>Confidential treatment.</SUBJECT> <P>All information obtained from books, records, or reports required pursuant to this part shall be kept confidential by all employees of the Department of Agriculture and of the Board, and by all contractors and agents retained by the Board, and only such information so furnished or acquired as the Secretary deems relevant shall be disclosed by them, and then only in a suit or administrative hearing brought at the direction, or upon the request, of the Secretary, or to which the Secretary or any officer of the United States is a party, and involving this Plan. Nothing in this section shall be deemed to prohibit:</P> <P>(a) The issuance of general statements based upon the reports of a number of handlers or importers subject to this Plan, which statements do not identify the information furnished by any person; or</P> <P>(b) The publication by direction of the Secretary of the name of any person violating this Plan, together with a statement of the particular provisions of this Plan violated by such person.</P> <CITA>[56 FR 40230, Aug. 14, 1991]</CITA> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Miscellaneous</HD> <SECTION> <SECTNO>§ 1207.360</SECTNO> <SUBJECT>Influencing governmental action.</SUBJECT> <P>No funds collected by the Board under this plan shall in any matter be used for the purpose of influencing governmental policy or action except in recommending to the Secretary amendments to this subpart.</P> </SECTION> <SECTION> <PRTPAGE P="53"/> <SECTNO>§ 1207.361</SECTNO> <SUBJECT>Right of the Secretary.</SUBJECT> <P>All fiscal matters, programs or proj-ects, rules or regulations, reports, or other substantive action proposed and prepared by the Board shall be submitted to the Secretary for his approval.</P> </SECTION> <SECTION> <SECTNO>§ 1207.362</SECTNO> <SUBJECT>Suspension or termination.</SUBJECT> <P>(a) The Secretary shall, whenever he finds that this plan or any provision thereof obstructs or does not tend to effectuate the declared policy of the act, terminate or suspend the operation of this plan or such provision thereof.</P> <P>(b) The Secretary may conduct a referendum at any time, and shall hold a referendum on request of the Board or of 10 percent or more of the potato producers and importers to determine whether potato producers and importers favor termination or suspension of this plan. The Secretary shall suspend or terminate such plan at the end of the marketing year whenever the Secretary determines that its suspension or termination is favored by a majority of the potato producers and importers voting in such referendum who, during a representative period determined by the Secretary, have been engaged in the production or importation of potatoes or potato products, and who produced or imported more than 50 percent of the volume of the potatoes or potato products produced or imported by the producers and importers voting in the referendum.</P> <CITA>[37 FR 5008, Mar. 9, 1972, as amended at 56 FR 40230, Aug. 14, 1991]</CITA> </SECTION> <SECTION> <SECTNO>§ 1207.363</SECTNO> <SUBJECT>Proceedings after termination.</SUBJECT> <P>(a) Upon the termination of this plan, the Board shall recommend not more than five of its members to the Secretary to serve as trustees for the purpose of liquidating the affairs of the Board. Such persons, upon designation by the Secretary, shall become trustees of all funds and property then in the possession or under control of the Board including claims for any funds unpaid or property not delivered or any other claim existing at the time of such termination.</P> <P>(b) The said trustees shall (1) continue in such capacity until discharged by the Secretary; (2) carry out the obligations of the Board under any contracts or agreements entered into by it pursuant to this plan; (3) account for all receipts and disbursements and deliver all property on hand, together with all books and records of the Board and of the trustees, to such person or persons as the Secretary may direct; and (4) upon the request of the Secretary execute such assignments or other instruments necessary or appropriate to vest in such person or persons full title and right to all of the funds, property, and claims vested in the Board of the trustees pursuant to this section.</P> <P>(c) Any person to whom funds, property, or claims have been transferred or delivered pursuant to this section shall be subject to the same obligation imposed upon the Board and upon the trustee.</P> <P>(d) A reasonable effort shall be made by the Board or its trustees to return to producers and importers any residual funds not required to defray the necessary expenses of liquidation. If it is found impractical to return such remaining funds to producers and importers, such funds shall be disposed of in such manner as the Secretary may determine to be appropriate.</P> <CITA>[37 FR 5008, Mar. 9, 1972, as amended at 56 FR 40231, Aug. 14, 1991]</CITA> </SECTION> <SECTION> <SECTNO>§ 1207.364</SECTNO> <SUBJECT>Effect of termination or amendment.</SUBJECT> <P>Unless otherwise expressly provided by the Secretary, the termination of this plan or of any regulation issued pursuant thereto, or the issuance of any amendment to either thereof, shall not (a) affect or waive any right, duty, obligation, or liability which shall have arisen or which may thereafter arise in connection with any provision of this plan or any regulation issued thereunder, or (b) release or extinguish any violation of this plan or any regulation issued thereunder, or (c) affect or impair any rights or remedies of the United States, or of the Secretary, or of any other person, with respect to any such violation.</P> </SECTION> <SECTION> <PRTPAGE P="54"/> <SECTNO>§ 1207.365</SECTNO> <SUBJECT>Personal liability.</SUBJECT> <P>No member of the Board shall be held personally responsible, either individually or jointly with others, in any way whatsoever to any person for errors in judgments, mistakes, or other acts, either of commission or omission, as such member except for acts of willful misconduct, gross negligence, or those which are criminal in nature.</P> </SECTION> <SECTION> <SECTNO>§ 1207.366</SECTNO> <SUBJECT>Separability.</SUBJECT> <P>If any provision of this plan is declared invalid or the applicability thereof to any person or circumstance is held invalid, the validity of the remainder of this plan or applicability thereof to other persons or circumstances shall not be affected thereby.</P> </SECTION> </SUBJGRP> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart—Rules and Regulations</HD> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>37 FR 17379, Aug. 26, 1972, unless otherwise noted.</P> </SOURCE> <SUBJGRP> <HD SOURCE="HED">Definitions</HD> <SECTION> <SECTNO>§ 1207.500</SECTNO> <SUBJECT>Definitions.</SUBJECT> <P>(a) Unless otherwise defined in this subpart, definitions of terms used in this subpart shall have the same meaning as the definitions of such terms which appear in Subpart—Potato Research and Promotion Plan.</P> <P>(b) <E T="03">Processor.</E> <E T="03">Processor</E> means any person who commercially processes potatoes into potato products, including, but not restricted to, frozen, dehydrated, or canned potato products, potato chips and shoestrings, and flour.</P> <P>(c) <E T="03">Imported frozen or processed potatoes for ultimate consumption by humans. Imported frozen or processed potatoes for ultimate consumption by humans</E> means products which are imported into the United States which the Secretary determines contain a substantial amount of potato.</P> <CITA>[37 FR 17379, Aug. 26, 1972, as amended at 56 FR 40231, Aug. 14, 1991; 57 FR 40083, Sept. 2, 1992]</CITA> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">General</HD> <SECTION> <SECTNO>§ 1207.501</SECTNO> <SUBJECT>Communications.</SUBJECT> <P>All communications in connection with the Potato Research and Promotion Plan shall be addressed to: National Potato Promotion Board, 7555 East Hampden Avenue, Suite 412, Denver, Colorado 80231.</P> <CITA>[59 FR 44036, Aug. 26, 1994]</CITA> </SECTION> <SECTION> <SECTNO>§ 1207.502</SECTNO> <SUBJECT>Determination of membership.</SUBJECT> <P>(a) Pursuant to § 1207.320 and the recommendation of the Board, annual producer memberships on the Board shall be determined on the basis of the average potato production of the 3 preceding years in each State as set forth in the Crop Production Annual Summary Reports issued by the Crop Reporting Board of the U.S. Department of Agriculture.</P> <P>(b) Pursuant to § 1207.320 and the recommendation of the Board, annual importer memberships on the Board shall be determined on the basis of the average potato, potato product, and seed potato importation of the 3 preceding years as determined by the Board's records.</P> <CITA>[56 FR 40231, Aug. 14, 1991]</CITA> </SECTION> <SECTION> <SECTNO>§ 1207.503</SECTNO> <SUBJECT>Nominations.</SUBJECT> <P>(a) Pursuant to § 1207.322 of the plan, the Board shall assist producers in producing sections or States each year to nominate producer members for the Board. Such nominations may be conducted at meetings or by mail ballots. One individual shall be nominated for each position to become vacant. A list of nominees shall be submitted to the Secretary for consideration by November 1 of each year.</P> <P>(b) Pursuant to § 1207.322 of the plan, the Board shall assist importers each year to nominate importer members for the Board. Such nominations may be conducted at meetings or by mail ballots.</P> <P>(c) Nomination meetings or mail balloting shall be well publicized with notice given to producers, importers, and the Secretary at least 10 days prior to each meeting or mailing of ballots.</P> <P>(d) The public member shall be nominated by the producer and importer members of the Board.</P> <CITA>[37 FR 17379, Aug. 26, 1972, as amended at 49 FR 2093, Jan. 18, 1984; 56 FR 40231, Aug. 14, 1991; 62 FR 46179, Sept. 2, 1997]</CITA> </SECTION> <SECTION> <PRTPAGE P="55"/> <SECTNO>§ 1207.504</SECTNO> <SUBJECT>Term of office.</SUBJECT> <P>(a) The term of office of Board members shall be for three years and shall begin March 1 and end on the last day of February.</P> <P>(b) Board members shall serve during the term of office for which they are selected and have qualified and until their successors are selected and have qualified.</P> <CITA>[38 FR 7123, Mar. 16, 1973, as amended at 49 FR 2093, Jan. 18, 1984]</CITA> </SECTION> <SECTION> <SECTNO>§ 1207.505</SECTNO> <SUBJECT>Procedure.</SUBJECT> <P>(a) The procedure for conducting the Board's meetings shall be in accordance with the bylaws adopted by the Board on June 7, 1972, and approved by the Secretary and any subsequent amendments adopted by the Board and approved by the Secretary.</P> <P>(b) Each importer member shall be entitled to not less than one vote. Importer members shall also be entitled to one additional vote for each 1 million hundredweight, or major fraction thereof, on a fresh-weight basis, of imported tablestock potatoes, potato products, or seed potatoes, as determined by data on imports provided by the U.S. Department of Agriculture. The casting of such votes shall be determined by the importer members.</P> <CITA>[62 FR 46179, Sept. 2, 1997]</CITA> </SECTION> <SECTION> <SECTNO>§ 1207.506</SECTNO> <SUBJECT>Policy.</SUBJECT> <P>(a) It shall be the policy of the Board to carry out an effective and continuous coordinated program of marketing research, development, advertising, and promotion in order to help maintain and expand existing domestic and foreign markets for potatoes and to develop new or improved markets.</P> <P>(b) It shall be the objective of the Board to carry out programs and proj-ects which will provide maximum benefit to the potato industry and no undue preference shall be given to any of the various industry segments.</P> </SECTION> <SECTION> <SECTNO>§ 1207.507</SECTNO> <SUBJECT>Administrative Committee.</SUBJECT> <P>(a) The Board shall annually select from among its members an Administrative Committee composed of producer members as provided for in the Board's bylaws, one or more importer members, and the public member. Selection shall be made in such manner as the Board may prescribe: Except that such committee shall include the Chairperson and six Vice-Chairpersons, one of whom shall also serve as the Secretary and Treasurer of the Board.</P> <P>(b) The Administrative Committee shall act for the Board in implementing such marketing research, development, advertising, and/or promotion activities as directed by the Board, and shall, subject to such direction, be charged with developing and submitting to the Secretary for his approval specific programs or projects in the name of the Board. The Administrative Committee shall further act for the Board in authorizing contracts or agreements for the development and carrying out of such programs or projects and the payment of the costs thereof with funds collected pursuant to § 1207.342 of the plan.</P> <P>(1) The Administrative Committee also shall act for the Board in contracting with cooperating agencies for the collection of assessments pursuant to § 1207.513(d).</P> <P>(2) [Reserved]</P> <P>(c) The Board may assign such other administrative powers and duties to the Administrative Committee as it shall determine, and the Administrative Committee shall act on behalf of and in the name of the Board in all administrative matters.</P> <CITA>[37 FR 17379, Aug. 26, 1972, as amended by Amdt. 6, 42 FR 55879, Oct. 20, 1977; 44 FR 25621, May 2, 1979; 50 FR 25199, June 18, 1985; 56 FR 40231, Aug. 14, 1991; 59 FR 44036, Aug. 26, 1994]</CITA> </SECTION> <SECTION> <SECTNO>§ 1207.508</SECTNO> <SUBJECT>USDA costs.</SUBJECT> <P>Pursuant to § 1207.341 of the Plan the Board shall pay those administrative costs incurred by the U.S. Department of Agriculture for the conduct of its duties under the Plan as are determined periodically by the Secretary. Payment shall be due promptly after billing for such costs.</P> <CITA>[49 FR 26202, June 27, 1984]</CITA> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Assessments</HD> <SECTION> <SECTNO>§ 1207.510</SECTNO> <SUBJECT>Levy of assessments.</SUBJECT> <P>(a) <E T="03">Domestic assessments.</E> (1) An assessment rate of 2 cents per hundredweight shall be levied on all potatoes produced <PRTPAGE P="56"/>within the 50 States of the United States.</P> <P>(2) No assessment shall be levied on potatoes grown in the 50 States of the United States by producers of less than 5 acres of potatoes.</P> <P>(b) <E T="03">Assessments on imports.</E> (1) An assessment rate of 2 cents per hundredweight shall be levied on all tablestock potatoes imported into the United States for ultimate consumption by humans and all seed potatoes imported into the United States. An assessment rate of 2 cents per hundredweight shall be levied on the fresh weight equivalents of imported frozen or processed potatoes for ultimate consumption by humans. The importer of imported tablestock potatoes, potato products, or seed potatoes shall pay the assessment to the Board through the U.S. Customs Service at the time of entry or withdrawal for consumption of such potatoes and potato products into the United States.</P> <P>(2) The following conversion factors shall be used to determine the fresh weight equivalents of frozen and processed potato products:</P> <GPOTABLE CDEF="s50,1.4" COLS="2" OPTS="L0,7/8,g1,t1,i1"> <ROW> <ENT I="01">Frozen potato products </ENT> <ENT>.50</ENT> </ROW> <ROW> <ENT I="01">Canned potatoes </ENT> <ENT>.636</ENT> </ROW> <ROW> <ENT I="01">Potato chips and shoestring potatoes </ENT> <ENT>.245</ENT> </ROW> <ROW> <ENT I="01">Dehydrated potato products </ENT> <ENT>.14</ENT> </ROW> <ROW> <ENT I="01">Potato starch </ENT> <ENT>.1111</ENT> </ROW> </GPOTABLE> <P>(3) The Harmonized Tariff Schedule (HTS) categories and assessment rates on imported tablestock potatoes and frozen or processed potatoes for ultimate consumption by humans and on imported seed potatoes are as follows:</P> <GPOTABLE CDEF="s10,8,8" COLS="3" OPTS="L2,i1"> <BOXHD> <CHED H="1">Tablestock potatoes, processed potato products, and seed potatoes</CHED> <CHED H="1">Assessment</CHED> <CHED H="2">Cents/cwt</CHED> <CHED H="2">Cents/kg</CHED> </BOXHD> <ROW> <ENT I="01">0701.10.0020</ENT> <ENT>2.00</ENT> <ENT>0.0441</ENT> </ROW> <ROW> <ENT I="01">0701.10.0040</ENT> <ENT>2.00</ENT> <ENT>0.0441</ENT> </ROW> <ROW> <ENT I="01">0701.90.1000</ENT> <ENT>2.00</ENT> <ENT>0.0441</ENT> </ROW> <ROW> <ENT I="01">0701.90.5010</ENT> <ENT>2.00</ENT> <ENT>0.0441</ENT> </ROW> <ROW> <ENT I="01">0701.90.5020</ENT> <ENT>2.00</ENT> <ENT>0.0441</ENT> </ROW> <ROW> <ENT I="01">0701.90.5030</ENT> <ENT>2.00</ENT> <ENT>0.0441</ENT> </ROW> <ROW> <ENT I="01">0701.90.5040</ENT> <ENT>2.00</ENT> <ENT>0.0441</ENT> </ROW> <ROW> <ENT I="01">0710.10.0000</ENT> <ENT>4.00</ENT> <ENT>0.0882</ENT> </ROW> <ROW> <ENT I="01">2004.10.4000</ENT> <ENT>4.00</ENT> <ENT>0.0882</ENT> </ROW> <ROW> <ENT I="01">2004.10.8020</ENT> <ENT>4.00</ENT> <ENT>0.0882</ENT> </ROW> <ROW> <ENT I="01">2004.10.8040</ENT> <ENT>4.00</ENT> <ENT>0.0882</ENT> </ROW> <ROW> <ENT I="01">2005.20.6060</ENT> <ENT>3.1446</ENT> <ENT>0.0693</ENT> </ROW> <ROW> <ENT I="01">0712.10.0000</ENT> <ENT>14.2857</ENT> <ENT>0.3149</ENT> </ROW> <ROW> <ENT I="01">1105.10.0000</ENT> <ENT>14.2857</ENT> <ENT>0.3149</ENT> </ROW> <ROW> <ENT I="01">1105.20.0000</ENT> <ENT>14.2857</ENT> <ENT>0.3149</ENT> </ROW> <ROW> <ENT I="01">2005.20.6040</ENT> <ENT>14.2857</ENT> <ENT>0.3149</ENT> </ROW> <ROW> <ENT I="01">2005.20.2000</ENT> <ENT>8.1633</ENT> <ENT>0.1800</ENT> </ROW> <ROW> <ENT I="01">1108.13.0010</ENT> <ENT>18.0018</ENT> <ENT>0.3969</ENT> </ROW> </GPOTABLE> <P>(4) No assessments shall be levied on otherwise assessable potatoes which are contained in imported products wherein potatoes are not a principal ingredient.</P> <P>(c) Potatoes and potato products used for nonhuman food purposes, other than seed, are exempt from assessment but are subject to the disposition of exempted potatoes provisions of § 1207.515 of this subpart.</P> <P>(d) No more than one such assessment shall be made on any potatoes or potato products.</P> <CITA>[57 FR 40083, Sept. 2, 1992, as amended at 58 FR 3359, Jan. 8, 1993; 59 FR 44036, Aug. 26, 1994]</CITA> </SECTION> <SECTION> <SECTNO>§ 1207.511</SECTNO> <SUBJECT>Determination of assessable quantity.</SUBJECT> <P>The assessable quantity of potatoes in any lot shall be determined on the basis of utilization. Assessments shall be due on the entire lot handled for human consumption, seed, or unspecified purposes if there is no accounting made on the basis of the utilization of such lot. However, if the accounting identifies all or portions of such lot on the basis of utilization, assessments shall be due only on that portion utilized for human consumption and seed.</P> </SECTION> <SECTION> <SECTNO>§ 1207.512</SECTNO> <SUBJECT>Designated handler.</SUBJECT> <P>The assessment on each lot of potatoes produced in the 50 States of the United States and handled shall be paid by the designated handler as hereafter set forth.</P> <P>(a) Unless otherwise provided in paragraphs (a)(8), (b), and (c) of this section, the designated handler shall be the first handler of such potatoes. The first handler is the person who initially performs a handler function as heretofore defined. Such person may be a fresh shipper, processor, or other person who first places the potatoes in the channels of commerce. A producer who grades, packs, or otherwise performs handler functions thereby becomes a handler and as such assumes first handler responsibilities under this part. The following examples are provided to aid in identification of first handlers who are designated handlers:</P> <P>(1) Producer delivers field-run potatoes of his own production to a handler <PRTPAGE P="57"/>for preparation for market. The handler in this instance is the designated handler, regardless of whether he subsequently handles such potatoes for his own account or for the account of the producer.</P> <P>(2) Producer delivers field-run potatoes of his own production to a handler who takes title to such potatoes and places them in storage for subsequent handling. The handler who purchases such potatoes from the producer is the designated handler.</P> <P>(3) Producer delivers field-run potatoes to a commercial storage facility for the purpose of holding such potatoes under his own account for later sale. There is no designated handler in this instance since such potatoes have not been handled as heretofore defined and no assessment is due. The designated handler of such potatoes would be identified on the basis of subsequent handling of such potatoes.</P> <P>(4) Fresh shipper purchases a lot of potatoes from a producer, packs a portion of such potatoes for fresh market, and delivers the balance to a processor. The fresh shipper is the designated handler for all potatoes in the lot.</P> <P>(5) Handler purchases potatoes from a producer's field or storage for the purpose of preparing such potatoes for market or for transporting such potatoes to storage for subsequent handling. The handler who purchases such potatoes from the producer is the designated handler.</P> <P>(6) Producer packs and sells potatoes of his own production from the field, roadside stand, or storage to a consumer, itinerant trucker, or other buyer. In performing such handler functions the producer assumes the responsibility of designated handler.</P> <P>(7) Processor utilizes potatoes of his own production in the manufacture of potato chips, frozen, dehydrated, or canned products for human consumption. In so handling potatoes, the proc-essor assumes the responsibility of designated handler.</P> <P>(8) Producer utilizes potatoes of his own production for seed in planting his subsequent crop. Such seed potatoes do not enter the current of commerce; there is no designated handler in this instance since the potatoes have not been handled as heretofore defined and no assessment is due. However, seed potatoes sold or shipped to other producers for planting or to other persons for subsequent disposition enter the current of commerce and are subject to assessment. The producer of seed potatoes shall be the designated handler of such potatoes shipped to other producers for planting and the assessment is due when he first sells or otherwise handles such potatoes. The first person who acquires seed potatoes from the producer thereof for subsequent disposition other than planting by said person shall be the designated handler of such potatoes. However, the seed producer will be the designated handler responsible for filing reports and making payments, unless he can show that the first person who obtained the potatoes from him disposed of them other than by planting. To show this the seed producer must submit to the Potato Board the name and address of the first person who obtained the potatoes from him and an invoice of sale or settlement sheet on which it is indicated that such person will be the designated handler and therefore will be responsible for the payment of the assessments. Only by showing this is the seed producer no longer considered the designated handler and therefore not liable for the assessments.</P> <P>(b) Any person who handles potatoes for a producer thereof under oral or written contract or agreement providing for the sale thereof shall be the designated handler for such potatoes, notwithstanding the fact that the producer may have graded, packed, or otherwise handled such potatoes and thereby became the first handler of such potatoes.</P> <EXAMPLE> <HD SOURCE="HED">Examples.</HD> <P>A cooperative marketing association, or other person, who makes an accounting to the producer, or pay the proceeds of the sale to the producer would be the designated handler responsible for the assessment.</P> </EXAMPLE> <P>(c) Any processor who purchases potatoes from the producer thereof shall be the designated handler even though the producer may have graded, packed, or otherwise handled such potatoes and <PRTPAGE P="58"/>thereby became the first handler of such potatoes.</P> <CITA>[37 FR 17379, Aug. 26, 1972, as amended by Amdt. 4, 40 FR 7893, Feb. 24, 1975; Amdt. 7, 43 FR 9133, Mar. 6, 1978; Amdt. 8, 43 FR 51001, Nov. 2, 1978; 56 FR 40231, Aug. 14, 1991]</CITA> </SECTION> <SECTION> <SECTNO>§ 1207.513</SECTNO> <SUBJECT>Payment of assessments.</SUBJECT> <P>(a) <E T="03">Time of payment.</E> The assessment on domestically produced potatoes shall become due at the time a determination of assessable potatoes is made in the normal handling process, pursuant to § 1207.511. If no determination is made of the utilization of a lot, assessments shall be due on the entire lot when it enters the current of commerce. The assessment on imported potatoes, potato products, and seed potatoes shall become due at the time of entry, or withdrawal, for consumption into the United States.</P> <P>(b) <E T="03">Responsibility for payment.</E> (1) The designated handler is responsible for payment of the assessment on domestically produced potatoes. He may pay with no reimbursement from the producer. In the alternative, he may collect the assessment from the producer, or deduct such assessment from the proceeds paid to the producer on whose potatoes the assessment is made, provided he furnishes the producer with evidence of such payment. Any such collection or deduction of assessment shall be made not later than the time when the assessment becomes payable by the handler to the Board. Failure of the handler to collect or deduct such assessment does not relieve the handler of his obligation to remit the assessment to the Board.</P> <P>(2) The Customs Service shall collect payment of assessment on imported potatoes, potato products, and seed potatoes from importers and forward such assessment per agreement between the Customs Service and the U.S. Department of Agriculture. Importers shall be responsible for payment of assessment directly to the Board of any assessment due but not collected by the Customs Service at the time of entry, or withdrawal, for consumption into the United States. An importer may apply to the Board for reimbursement of assessments paid on exempted products.</P> <P>(c) <E T="03">Payment directly to the Board.</E> (1) Except as provided in paragraphs (b) and (d) of this section, each designated handler or importer shall remit assessments directly to the Board by check, draft, or money order payable to the National Potato Promotion Board, or NPPB, not later than 10 days after the end of the month such assessment is due together with a report (preferably on Board forms) thereon.</P> <P>(2) All designated handlers, including a designated handler whose own production is handled and assessments to the Board paid by another designated handler, shall report to the Board:</P> <P>(i) Date of report (which is also date of payment to the Board).</P> <P>(ii) The name and address of the designated handler;</P> <P>(iii) The period potatoes were handled;</P> <P>(iv) The total quantity of potatoes determined to be assessable during the period potatoes were handled, pursuant to § 1207.511.</P> <P>(3) Designated handlers who collect assessments from producers or withhold assessments from their accounts or pay the assessment themselves shall also include a list of all such producers whose potatoes were handled during the period, their addresses and the total assessable quantities handled for each such producer.</P> <P>(i) In lieu of such a list, the designated handler may substitute authentic copies of settlement sheets given to each producer provided such settlement sheets contain all the information listed above.</P> <P>(ii) The words “final report” shall be shown on the last report at the close of his marketing season or at the end of each fiscal period if such handler markets potatoes on a year-round basis.</P> <P>(4) Prepayment of assessment: (i) In lieu of the monthly assessment and reporting requirements of paragraph (b) of this section, the Board may permit designated handlers to make advance payments of their total estimated assessments for the season to the Board prior to their actual determination of assessable potatoes. Such procedure may be permitted when it is considered by the designated handler to be the more practical method of payment.</P> <P>(ii) Persons using such procedure shall provide a final annual accounting of actual handling and assessments.<PRTPAGE P="59"/> </P> <P>(iii) Specific requirements, instructions, and forms for making such advance payments shall be provided by the Board upon request.</P> <P>(d) <E T="03">Payment through cooperating agency.</E> The Board may authorize other organizations to collect assessments in its behalf. In any State or area in which the Board has negotiated an agreement to collect assessments with an agency such as a State Potato Commission or a Potato Association approved by the Secretary, the designated handler shall pay the assessment to such agency in the time and manner, and with such identifying information as specified in such agreement. Such an agreement shall not provide any cooperating agency with authority to collect confidential information from handlers; to qualify, the cooperating agency must on its own accord have access to all information required by the Board for collection purposes. If the Board requires further evidence of payment than provided, it may acquire such evidence from individual designated handlers.</P> <P>(1) All such agreements are subject to the requirement of § 1207.352 <E T="03">Confidential treatment,</E> of the plan, the provisions of section 310(c) of the Act, and all applicable rules and regulations and financial safeguards in effect under the Act and the plan; and all affected persons shall agree to, and conduct their operations and activities in accordance with, such requirements.</P> <P>(2) [Reserved]</P> <CITA>[37 FR 17379, Aug. 26, 1972, as amended by Amdt. 6, 42 FR 55879, Oct. 20, 1977; 56 FR 40231, Aug. 14, 1991; 62 FR 46179, Sept. 2, 1997]</CITA> </SECTION> <SECTION> <SECTNO>§ 1207.514</SECTNO> <RESERVED>[Reserved]</RESERVED> </SECTION> <SECTION> <SECTNO>§ 1207.515</SECTNO> <SUBJECT>Safeguards.</SUBJECT> <P>The Board may require reports by designated handlers and importers on the handling, importation, and disposition of exempted potatoes. Also, authorized employees of the Board or the Secretary, may inspect such books and records as are appropriate and necessary to verify the reports on such disposition.</P> <CITA>[37 FR 17379, Aug. 26, 1972, as amended at 56 FR 40232, Aug. 14, 1991]</CITA> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Records</HD> <SECTION> <SECTNO>§ 1207.532</SECTNO> <SUBJECT>Retention period for records.</SUBJECT> <P>Each handler and importer required to make reports pursuant to this subpart shall maintain and retain such records for at least 2 years beyond the end of the marketing year of their applicability:</P> <P>(a) One copy of each report made to the Board; and</P> <P>(b) Such records as are necessary to verify such reports.</P> <CITA>[37 FR 17379, Aug. 26, 1972, as amended at 56 FR 40232, Aug. 14, 1991]</CITA> </SECTION> <SECTION> <SECTNO>§ 1207.533</SECTNO> <SUBJECT>Availability of records.</SUBJECT> <P>(a) Each handler and importer required to make reports pursuant to this subpart shall make available for inspection by authorized employees of the Board or the Secretary during regular business hours, such records as are appropriate and necessary to verify reports required under this subpart.</P> <P>(b) Importers shall also maintain for 2 years records on the total quantities of potatoes imported and on the total quantities of potato products imported, and a record of each importation of potatoes, potato products, and seed potatoes including quantity, date, and port of entry, and shall make such records available for inspection by authorized employees of the Board or the Secretary during regular business hours.</P> <CITA>[56 FR 40232, Aug. 14, 1991]</CITA> </SECTION> <SECTION> <SECTNO>§ 1207.534</SECTNO> <SUBJECT>OMB control number assigned pursuant to the Paperwork Reduction Act.</SUBJECT> <P>The information collection requirements contained in this part have been approved by the Office of Management and Budget (OMB) under the provisions of 44 U.S.C. Chapter 35 and have been assigned OMB Control number 0581-0093.</P> <CITA>[49 FR 23826, June 8, 1984]</CITA> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Confidential Information</HD> <SECTION> <SECTNO>§ 1207.540</SECTNO> <SUBJECT>Confidential books, records, and reports.</SUBJECT> <P>All information obtained from the books, records, and reports of handler and importers and all information with <PRTPAGE P="60"/>respect to refunds of assessments made to individual producers and importers shall be kept confidential in the manner and to the extent provided for in § 1207.352 of the Plan.</P> <CITA>[56 FR 40232, Aug. 14, 1991]</CITA> </SECTION> <SECTION> <SECTNO>§ 1207.545</SECTNO> <SUBJECT>Right of the Secretary.</SUBJECT> <P>All fiscal matters, programs or proj-ects, rules or regulations, reports, or other substantive action proposed and prepared by the Board shall be submitted to the Secretary for his approval.</P> </SECTION> <SECTION> <SECTNO>§ 1207.546</SECTNO> <SUBJECT>Personal liability.</SUBJECT> <P>No member of the Board shall be held personally responsible, either individually or jointly with others, in any way whatsoever to any person for errors in judgment, mistakes, or other acts, either of commission or omission, as such member, except for acts of willful misconduct, gross negligence, or those which are criminal in nature.</P> </SECTION> </SUBJGRP> </SUBPART> </PART> <PART> <EAR>Pt. 1208</EAR> <HD SOURCE="HED">PART 1208—FRESH CUT FLOWERS AND FRESH CUT GREENS PROMOTION AND INFORMATION</HD> <CONTENTS> <SUBPART> <HD SOURCE="HED">Subpart A—Fresh Cut Flowers and Fresh Cut Greens Promotion and Information Order</HD> <SUBJGRP> <HD SOURCE="HED">Definitions</HD> <SECHD>Sec.</SECHD> <SECTNO>1208.1</SECTNO> <SUBJECT>Act.</SUBJECT> <SECTNO>1208.2</SECTNO> <SUBJECT>Consumer information.</SUBJECT> <SECTNO>1208.3</SECTNO> <SUBJECT>Council.</SUBJECT> <SECTNO>1208.4</SECTNO> <SUBJECT>Cut flowers.</SUBJECT> <SECTNO>1208.5</SECTNO> <SUBJECT>Cut greens.</SUBJECT> <SECTNO>1208.6</SECTNO> <SUBJECT>Cut flowers and greens.</SUBJECT> <SECTNO>1208.7</SECTNO> <SUBJECT>Department.</SUBJECT> <SECTNO>1208.8</SECTNO> <SUBJECT>Exempt handler.</SUBJECT> <SECTNO>1208.9</SECTNO> <SUBJECT>Fiscal year.</SUBJECT> <SECTNO>1208.10</SECTNO> <SUBJECT>Gross sales price.</SUBJECT> <SECTNO>1208.11</SECTNO> <SUBJECT>Order.</SUBJECT> <SECTNO>1208.12</SECTNO> <SUBJECT>Part and subpart.</SUBJECT> <SECTNO>1208.13</SECTNO> <SUBJECT>Person.</SUBJECT> <SECTNO>1208.14</SECTNO> <SUBJECT>Promotion.</SUBJECT> <SECTNO>1208.15</SECTNO> <SUBJECT>Producer that is a qualified handler.</SUBJECT> <SECTNO>1208.16</SECTNO> <SUBJECT>Qualified handler.</SUBJECT> <SECTNO>1208.17</SECTNO> <SUBJECT>Research.</SUBJECT> <SECTNO>1208.18</SECTNO> <SUBJECT>Retailer.</SUBJECT> <SECTNO>1208.19</SECTNO> <SUBJECT>Secretary.</SUBJECT> <SECTNO>1208.20</SECTNO> <SUBJECT>Substantial portion.</SUBJECT> <SECTNO>1208.21</SECTNO> <SUBJECT>State.</SUBJECT> <SECTNO>1208.22</SECTNO> <SUBJECT>Traditional retailer.</SUBJECT> <SECTNO>1208.23</SECTNO> <SUBJECT>Traditional retail florist organization.</SUBJECT> <SECTNO>1208.24</SECTNO> <SUBJECT>United States.</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Establishment of the Council</HD> <SECTNO>1208.30</SECTNO> <SUBJECT>Establishment and membership of the Council.</SUBJECT> <SECTNO>1208.31</SECTNO> <SUBJECT>Election and appointment of members and alternates other than retailers.</SUBJECT> <SECTNO>1208.32</SECTNO> <SUBJECT>Designation and appointment of retailer members and alternates.</SUBJECT> <SECTNO>1208.33</SECTNO> <SUBJECT>Failure to nominate.</SUBJECT> <SECTNO>1208.34</SECTNO> <SUBJECT>Terms of office and compensation.</SUBJECT> <SECTNO>1208.35</SECTNO> <SUBJECT>Vacancies.</SUBJECT> <SECTNO>1208.36</SECTNO> <SUBJECT>Procedure.</SUBJECT> <SECTNO>1208.37</SECTNO> <SUBJECT>Executive committee.</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Activities of the Council</HD> <SECTNO>1208.40</SECTNO> <SUBJECT>Duties of the Council.</SUBJECT> <SECTNO>1208.41</SECTNO> <SUBJECT>Budgets and expenses.</SUBJECT> <SECTNO>1208.42</SECTNO> <SUBJECT>Plans, projects, budgets, and contracts.</SUBJECT> <SECTNO>1208.43</SECTNO> <SUBJECT>Other contracts and agreements.</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Assessments</HD> <SECTNO>1208.50</SECTNO> <SUBJECT>Assessments.</SUBJECT> <SECTNO>1208.51</SECTNO> <SUBJECT>Influencing governmental action.</SUBJECT> <SECTNO>1208.52</SECTNO> <SUBJECT>Charges for late payments.</SUBJECT> <SECTNO>1208.53</SECTNO> <SUBJECT>Adjustment of accounts.</SUBJECT> <SECTNO>1208.54</SECTNO> <SUBJECT>Refunds of assessments and escrow account.</SUBJECT> <SECTNO>1208.55</SECTNO> <SUBJECT>Postponement of collections.</SUBJECT> <SECTNO>1208.56</SECTNO> <SUBJECT>Determinations.</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Suspension or Termination</HD> <SECTNO>1208.60</SECTNO> <SUBJECT>Suspension and termination.</SUBJECT> <SECTNO>1208.61</SECTNO> <SUBJECT>Proceedings after termination.</SUBJECT> <SECTNO>1208.62</SECTNO> <SUBJECT>Effect of termination or amendment.</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Reports, Books, and Records</HD> <SECTNO>1208.70</SECTNO> <SUBJECT>Books, records, reports, cost control, and audits of the Council.</SUBJECT> <SECTNO>1208.71</SECTNO> <SUBJECT>Reports, books, and records of persons subject to this subpart.</SUBJECT> <SECTNO>1208.72</SECTNO> <SUBJECT>Confidential treatment.</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Miscellaneous</HD> <SECTNO>1208.80</SECTNO> <SUBJECT>Right of the Secretary.</SUBJECT> <SECTNO>1208.81</SECTNO> <SUBJECT>Personal liability.</SUBJECT> <SECTNO>1208.82</SECTNO> <SUBJECT>Patents, copyrights, inventions, publications, and product formulations.</SUBJECT> <SECTNO>1208.83</SECTNO> <SUBJECT>Amendments.</SUBJECT> <SECTNO>1208.84</SECTNO> <SUBJECT>Separability.</SUBJECT> <SECTNO>1208.85</SECTNO> <SUBJECT>OMB control numbers.</SUBJECT> </SUBJGRP> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart B—Rules and Regulations</HD> <SUBJGRP> <HD SOURCE="HED">Definitions</HD> <SECTNO>1208.100</SECTNO> <SUBJECT>Terms defined.</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Assessments</HD> <SECTNO>1208.150</SECTNO> <SUBJECT>Procedures for postponement of collections.</SUBJECT> </SUBJGRP> </SUBPART> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>The Fresh Cut Flowers and Fresh Cut Greens Promotion and Information Act of 1993, 7 U.S.C. 6801 <E T="03">et seq.</E> </P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>59 FR 67143, Dec. 29, 1994, unless otherwise noted.</P> </SOURCE> <SUBPART> <PRTPAGE P="61"/> <HD SOURCE="HED">Subpart A—Fresh Cut Flowers and Fresh Cut Greens Promotion and Information Order</HD> <SUBJGRP> <HD SOURCE="HED">Definitions</HD> <SECTION> <SECTNO>§ 1208.1</SECTNO> <SUBJECT>Act.</SUBJECT> <P> <E T="03">Act</E> means the Fresh Cut Flowers and Fresh Cut Greens Promotion and Information Act of 1993, Pub. L. 103-190, 7 U.S.C. §§ 6801 <E T="03">et seq.,</E> and any amendments thereto.</P> </SECTION> <SECTION> <SECTNO>§ 1208.2</SECTNO> <SUBJECT>Consumer information.</SUBJECT> <P> <E T="03">Consumer information</E> means any action or program that provides information to consumers and other persons on appropriate uses for cut flowers and greens under varied circumstances, or on the care and handling of cut flowers and greens.</P> </SECTION> <SECTION> <SECTNO>§ 1208.3</SECTNO> <SUBJECT>Council.</SUBJECT> <P> <E T="03">Council</E> means the Fresh Cut Flowers and Fresh Cut Greens Promotion Council established pursuant to § 1208.30 of this subpart and which shall be referred to as the National PromoFlor Council.</P> </SECTION> <SECTION> <SECTNO>§ 1208.4</SECTNO> <SUBJECT>Cut flowers.</SUBJECT> <P> <E T="03">Cut flowers</E> include all flowers cut from growing plants that are used as fresh-cut flowers and that are produced under cover or in field operations, but not including foliage plants, floral supplies, or flowering plants.</P> </SECTION> <SECTION> <SECTNO>§ 1208.5</SECTNO> <SUBJECT>Cut greens.</SUBJECT> <P> <E T="03">Cut greens</E> include all cultivated or noncultivated decorative foliage cut from growing plants that are used as fresh-cut decorative foliage (except Christmas trees) and that are produced under cover or in field operations, but not including foliage plants, floral supplies, or flowering plants.</P> </SECTION> <SECTION> <SECTNO>§ 1208.6</SECTNO> <SUBJECT>Cut flowers and greens.</SUBJECT> <P>The term <E T="03">cut flowers and greens</E> means either cut flowers or cut greens, even though the cut flowers or cut greens are sold as separate commodities by a person in the floral marketing system, or cut flowers and cut greens collectively when both commodities are sold by a person in the floral marketing system.</P> </SECTION> <SECTION> <SECTNO>§ 1208.7</SECTNO> <SUBJECT>Department.</SUBJECT> <P> <E T="03">Department</E> means the United States Department of Agriculture.</P> </SECTION> <SECTION> <SECTNO>§ 1208.8</SECTNO> <SUBJECT>Exempt handler.</SUBJECT> <P> <E T="03">Exempt handler</E> means a person who would otherwise be considered to be a qualified handler except that the person's annual sales of cut flowers and greens to retailers and other exempt handlers is less than $750,000.</P> </SECTION> <SECTION> <SECTNO>§ 1208.9</SECTNO> <SUBJECT>Fiscal year.</SUBJECT> <P> <E T="03">Fiscal year</E> means a 12-month period recommended by the Council and approved by the Secretary.</P> </SECTION> <SECTION> <SECTNO>§ 1208.10</SECTNO> <SUBJECT>Gross sales price.</SUBJECT> <P> <E T="03">Gross sales price</E> means the total amount of the transaction in a sale of cut flowers and greens from a handler to a retailer or exempt handler including but not limited to charges such as containers, pre-cooling, packing, sleeving, delivery, freight, shipping, or other charges necessary to the protection and preservation of the cut flowers and greens.</P> </SECTION> <SECTION> <SECTNO>§ 1208.11</SECTNO> <SUBJECT>Order.</SUBJECT> <P> <E T="03">Order</E> means this subpart.</P> </SECTION> <SECTION> <SECTNO>§ 1208.12</SECTNO> <SUBJECT>Part and subpart.</SUBJECT> <P> <E T="03">Part</E> means the Fresh Cut Flowers and Fresh Cut Greens Promotion and Information Order and all rules and regulations issued pursuant to the Act. The order itself shall be a subpart of such part.</P> </SECTION> <SECTION> <SECTNO>§ 1208.13</SECTNO> <SUBJECT>Person.</SUBJECT> <P> <E T="03">Person</E> means any individual, group of individuals, firm, partnership, corporation, joint stock company, association, society, cooperative, or other legal entity.</P> </SECTION> <SECTION> <SECTNO>§ 1208.14</SECTNO> <SUBJECT>Promotion.</SUBJECT> <P> <E T="03">Promotion</E> means any action determined by the Secretary to advance the image, desirability, or marketability of cut flowers and greens, including paid advertising.</P> </SECTION> <SECTION> <SECTNO>§ 1208.15</SECTNO> <SUBJECT>Producer that is a qualified handler.</SUBJECT> <P> <E T="03">Producer that is a qualified handler</E> means an entity that is engaged: In the <PRTPAGE P="62"/>domestic production, for sale in commerce, of cut flowers and greens and that owns or shares in the ownership and risk of loss of the cut flowers and greens; or as a first processor of noncultivated greens, in receiving the greens from a person who gathers the greens for handling; and is subject to assessments as a qualified handler under the order.</P> </SECTION> <SECTION> <SECTNO>§ 1208.16</SECTNO> <SUBJECT>Qualified handler.</SUBJECT> <P> <E T="03">Qualified handler</E> means a person operating in the cut flowers and greens marketing system that sells domestic or imported cut flowers and greens to retailers and exempt handlers and whose annual sales of cut flowers and greens to retailers and exempt handlers are $750,000 or more. The term does not include a person who only physically transports or delivers cut flowers and greens. However, the term does include, but is not limited to, the following entities when they have the requisite volume of sales of cut flowers and greens as provided in §§ 1208.50 and 1208.57:</P> <P>(a) A qualified wholesale handler—a person in business as a floral wholesale jobber (<E T="03">i.e.</E>, a person who conducts a commission or other wholesale business in buying and selling cut flowers and greens) or as a floral supplier (<E T="03">i.e.</E>, a person engaged in acquiring cut flowers and greens to be manufactured into floral articles or otherwise processed for resale) if the annual value of the qualified wholesale handlers sale of cut flowers and greens to retailers and exempt handlers is $750,000 or more;</P> <P>(b) A manufacturer of bouquets for sale to retailers if the cut flowers and greens used in such articles are a substantial portion of the value of the manufactured floral articles;</P> <P>(c) A manufacturer of floral articles (other than bouquets) for sale to retailers if the cut flowers and greens used in such articles are a substantial portion of the value of the manufactured floral articles;</P> <P>(d) An auction house that clears the sale of cut flowers and greens to retailers and exempt handlers through a central clearinghouse;</P> <P>(e) A distribution center that is owned or controlled by a retailer if the predominant retail business activity of the retailer is floral sales. In addition to sales, non-sale transfers of cut flowers and greens by the distribution center to retail outlets, shall be counted for the purpose of applying the $750,000 minimum volume rule to the center and the value of such transfers shall be determined as provided in §§ 1208.50 and 1208.57;</P> <P>(f) An importer that is a qualified handler—a person whose principal activity is the importation of cut flowers and greens into the United States (either directly or as an agent, broker, or consignee of any person or nation that produces or handles cut flowers and greens outside of the United States for sale in the United States) and who sells such cut flowers and greens to retailers and exempt handlers or directly to consumers, if the annual combined value of such sales determined as provided in §§ 1208.50 and 1208.57 totals $750,000 or more;</P> <P>(g) A producer that is a qualified handler, <E T="03">e.g.,</E> a person who produces cut flowers and greens and who sells such cut flowers and greens directly to retailers or consumers if the annual combined value of such sales determined as provided in §§ 1208.50 and 1208.57 totals $750,000 or more.</P> </SECTION> <SECTION> <SECTNO>§ 1208.17</SECTNO> <SUBJECT>Research.</SUBJECT> <P> <E T="03">Research</E> means market research and studies limited to the support of advertising, market development, and other promotion efforts and consumer information efforts relating to cut flowers and greens, including educational activities.</P> </SECTION> <SECTION> <SECTNO>§ 1208.18</SECTNO> <SUBJECT>Retailer.</SUBJECT> <P> <E T="03">Retailer</E> means a person who sells cut flowers and greens to consumers. The term includes:</P> <P>(a) All retail outlets that sell cut flowers and greens to consumers including retail florists, supermarkets, and other mass market retail outlets that sell such cut flowers or greens, except distribution centers defined in § 1208.16(e) (<E T="03">i.e.,</E> centers that are owned or controlled by a retailer if the predominant retail business activity of the retailer is floral sales and whose sales and non-sale transfers of cut flowers and greens to retail outlets total <PRTPAGE P="63"/>$750,000 or more, determined as provided in this subpart) even though such centers may also make direct sales to consumers.</P> <P>(b) Distribution centers owned or controlled by a retailer (or distribution centers owned or controlled cooperatively by a group of such retailers) when the predominant business activity of the retailer or retailers is not the sale of cut flowers and greens to consumers; and</P> <P>(c) Distribution centers independently owned but operated primarily to provide food products to retail stores.</P> </SECTION> <SECTION> <SECTNO>§ 1208.19</SECTNO> <SUBJECT>Secretary.</SUBJECT> <P> <E T="03">Secretary</E> means the Secretary of Agriculture of the United States or any officer or employee of the Department to whom authority has heretofore been delegated, or to whom authority may hereafter be delegated, to act in the Secretary's stead.</P> </SECTION> <SECTION> <SECTNO>§ 1208.20</SECTNO> <SUBJECT>Substantial portion.</SUBJECT> <P> <E T="03">Substantial portion</E> means that portion of the total value of manufactured floral articles that represents the value of the cut flowers and greens in such articles (expressed as a percentage factor) which the Council, with the approval of the Secretary, finds to be great enough to cause such articles to be classed as cut flowers and greens under this subpart.</P> </SECTION> <SECTION> <SECTNO>§ 1208.21</SECTNO> <SUBJECT>State.</SUBJECT> <P> <E T="03">State</E> means each of the several States of the United States, the District of Columbia, the Commonwealth of Puerto Rico, the Commonwealth of the Northern Mariana Islands, the United States Virgin Islands, Guam, American Samoa, the Republic of the Marshall Islands, the Federated States of Micronesia, and the Republic of Palau (until such time as the Compact of Free Association is ratified).</P> </SECTION> <SECTION> <SECTNO>§ 1208.22</SECTNO> <SUBJECT>Traditional retailer.</SUBJECT> <P> <E T="03">Traditional retailer</E> means any retailer, as defined in § 1208.18, whose primary business is the sale of floral products, including fresh cut flowers and cut greens, or who has a specific department dedicated to the sale of floral products, including fresh cut flowers and cut greens.</P> </SECTION> <SECTION> <SECTNO>§ 1208.23</SECTNO> <SUBJECT>Traditional retail florist organization.</SUBJECT> <P> <E T="03">Traditional florist organization</E> means membership organizations of traditional retailers with activities and membership which are nationwide in scope.</P> </SECTION> <SECTION> <SECTNO>§ 1208.24</SECTNO> <SUBJECT>United States.</SUBJECT> <P> <E T="03">United States</E> means the States collectively.</P> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Establishment of the Council</HD> <SECTION> <SECTNO>§ 1208.30</SECTNO> <SUBJECT>Establishment and membership of the Council.</SUBJECT> <P>(a) A Fresh Cut Flowers and Fresh Cut Greens Promotion Council which shall be named the National PromoFlor Council is hereby established to administer the terms and provisions of this subpart. The Council shall consist of 25 members nominated by the floral industry and appointed by the Secretary, as provided in this subpart, each of whom shall have an alternate nominated and appointed in the same manner as members of the Council are nominated and appointed.</P> <P>(b) The membership of the Council shall be divided as follows:</P> <P>(1) 14 members and their alternates shall represent qualified wholesale handlers of domestic or imported cut flowers and greens;</P> <P>(2) Three members and their alternates shall represent producers that are qualified handlers of cut flowers and greens;</P> <P>(3) Three members and their alternates shall represent importers that are qualified handlers of cut flowers and greens;</P> <P>(4) Three members and their alternates shall represent traditional retailers of cut flowers and greens;</P> <P>(5) One member and alternate shall represent persons who produce cut flowers and greens in locations east of the Mississippi River; and</P> <P>(6) One member and alternate shall represent persons who produce cut flowers and greens in locations west of the Mississippi River.</P> </SECTION> <SECTION> <PRTPAGE P="64"/> <SECTNO>§ 1208.31</SECTNO> <SUBJECT>Election and appointment of members and alternates other than retailers.</SUBJECT> <P>(a) PromoFlor Organizing Group, Inc., an industry organizing committee, is designated as an election committee for the purpose of receiving the names of individuals who are engaged in the industry and who are prepared to serve as members (other than retailer members) of the Council or as alternates if elected as nominees and if selected by the Secretary for such positions.</P> <P>(b) The election committee shall, within five (5) days of the issuance of this subpart and with the assistance of the Secretary, request the submission of names of candidates for nominees from those segments of the industry for which nominees must be selected by an election process. These segments are: qualified wholesale handlers; importers who are qualified handlers; producers of cut flowers and greens who are qualified handlers; and producers of cut flowers and greens without regard to whether they are qualified handlers. Notification of the industry of the selection process by the election committee shall be by a news release to industry publications and where appropriate, newspapers of general circulation. In order to be assured of a place on the slate of candidates, the names of candidates must be received by the election committee not later than fifteen (15) days after the date of the first such news release.</P> <P>(c) Names of candidates shall be sought for the following seats on the Council:</P> <P>(1) 14 members and their respective alternates to represent qualified wholesale handlers of domestic or imported cut flowers and greens. Two such members and their respective alternates to represent the United States at large and two such members and their respective alternates to represent each of the following regions: </P> <EXTRACT> <FP SOURCE="FP-1"> <E T="03">Region 1 (Pacific):</E> Alaska, California, Hawaii, Oregon, Washington, the Commonwealth of the Northern Mariana Islands, Guam, the Federated States of Micronesia, American Samoa, the Republic of the Marshall Islands, and the Republic of Palau.</FP> <FP SOURCE="FP-1"> <E T="03">Region 2 (Inter-Mountain):</E> Arizona, Arkansas, Colorado, Idaho, Kansas, Louisiana, Montana, Nebraska, Nevada, New Mexico, North Dakota, Oklahoma, South Dakota, Texas, Utah, and Wyoming.</FP> <FP SOURCE="FP-1"> <E T="03">Region 3 (North Central):</E> Illinois, Indiana, Iowa, Michigan, Minnesota, Missouri, and Wisconsin.</FP> <FP SOURCE="FP-1"> <E T="03">Region 4 (Northeast):</E> Connecticut, Maine, Massachusetts, New Hampshire, New Jersey, New York, Rhode Island, and Vermont.</FP> <FP SOURCE="FP-1"> <E T="03">Region 5 (Mid-Atlantic):</E> Delaware, District of Columbia, Kentucky, Maryland, Ohio, Pennsylvania, Virginia, and West Virginia.</FP> <FP SOURCE="FP-1"> <E T="03">Region 6 (Southeast):</E> Alabama, Florida, Georgia, Mississippi, North Carolina, Puerto Rico, South Carolina, Tennessee, and the United States Virgin Islands.</FP> </EXTRACT> <P>(2) Three at-large members and their alternates to represent importers that are qualified handlers of cut flowers and greens.</P> <P>(3) Three members and their alternates to represent producers of cut flowers and greens that are qualified handlers of cut flowers and greens. There shall be one such member and alternate from each of the following production areas: </P> <EXTRACT> <FP SOURCE="FP-1"> <E T="03">Production Area 1:</E> California.</FP> <FP SOURCE="FP-1"> <E T="03">Production Area 2:</E> Alaska, Arizona, Arkansas, Colorado, Hawaii, Idaho, Illinois, Indiana, Iowa, Kansas, Louisiana, Michigan, Minnesota, Missouri, Montana, Nebraska, Nevada, New Mexico, North Dakota, Oklahoma, Oregon, South Dakota, Texas, Utah, Washington, Wisconsin, and Wyoming.</FP> <FP SOURCE="FP-1"> <E T="03">Production Area 3:</E> Alabama, Connecticut, Delaware, Florida, Georgia, Kentucky, Maine, Maryland, Massachusetts, Mississippi, New Hampshire, New Jersey, New York, North Carolina, Ohio, Pennsylvania, Rhode Island, South Carolina, Tennessee, Vermont, Virginia, and West Virginia.</FP> </EXTRACT> <P>(4) Two members and their respective alternates to represent persons who produce cut flowers and greens in locations east and west of the Mississippi River, respectively. There shall be one such member and alternate from the east, and one such member and alternate from the west.</P> <P>(d) Names of candidates for nominees may be submitted by state, regional (either regions within a state or regions that include more than one state as appropriate), or national industry organizations, provided that the organization has members engaged in the appropriate segment of the industry and from the region or production area if applicable, or by petition. The names <PRTPAGE P="65"/>of candidates submitted by an industry organization shall be accompanied by statements showing the role of the organization in the industry and general information about the membership it represents. No industry organization may submit more than two names of candidates for each seat on the Council. The names of candidates submitted by petition shall be accompanied by petitions in support of such candidate, signed by not less than ten (10) persons engaged in the appropriate segment of the industry and from the region or production area, if applicable, that the candidate will represent if ultimately selected by the Secretary. Submission of names of all candidates, whether by organizations or by petition, must include a certification by the candidate that the candidate is within the segment of the industry and the region or production area for which the candidate is nominated and, if elected as a nominee and if subsequently appointed by the Secretary, the candidate is willing to serve as a member or alternate member on the Council.</P> <P>(e) The names of candidates so submitted shall be reviewed and organized by the election committee for the preparation of slates of candidates. Separate slates for each segment and region of the industry shall be prepared as appropriate. There must be at least four candidates for each position on the Council for which nominees must be selected by election. No candidate may seek nomination for more than one seat on the Council. In a case where a candidate is nominated more than once, the election committee will decide which place on the ballot the candidate's name will appear. If insufficient candidates have been proposed for any seat, the election committee shall select additional candidates as required. The slates shall be prepared not later than 5 days after the date for receiving names of candidates by the election committee.</P> <P>(f) After all candidates have been listed on the slates of candidates, the slates shall be supplied to an independent certified public accounting (CPA) firm contracted by the election committee. The ballots shall be printed and distributed by the CPA firm by U.S. mail, or other means selected by the election committee, not later than 15 days after the slates of candidates are received from the election committee. To the maximum extent practicable, ballots will be distributed to all persons who are eligible to vote for candidates under this subpart in the segment of the industry, the region, or in the United States as a whole, as applicable, to which the ballot pertains. Ballots that are not returned to the CPA firm within 20 days shall be declared invalid. The votes for each candidate on the ballots shall be tallied by the CPA firm at the end of the voting period and the results furnished to the election committee. The election committee shall issue a news release setting forth the names of the candidates and the number of votes received by each candidate within 5 days after the voting period has ended. Those candidates on each of the ballots who rank first, second, third, and fourth in the number of votes received for each seat on the Council shall be declared the nominees for each such seat.</P> <P>(g) The names of those declared the nominees for each of the seats on the Council representing the various segments of the industry and the designated regions or production areas, where applicable, shall be submitted to the Secretary in order of rank with the number of votes received by each such nominee shown after the nominee's name and with the recommendation that the nominee with the most votes for each of such seats be declared the member of the Council and the nominee with the next greatest number of votes for each of such seats be declared the alternate member. The Secretary shall then appoint from the nominees so provided the members and their alternates for each of such seats on the Council.</P> <P>(h) Subsequent elections of nominees and appointment of members and alternates as terms expire shall be conducted by the Council or the Council staff in the manner similar to that described above except that the Council shall act as the election committee for which provision is made in this section. The nomination and election process shall be completed at least 90 days before the beginning of each nominee's term of office.<PRTPAGE P="66"/> </P> <P>(i) The Council shall periodically review the cut flower and greens market in the United States for changes in the geographic distribution of importing, producing, and marketing facilities and shall, if appropriate, recommend changes in the regions and production areas described in this section to the Secretary for approval.</P> </SECTION> <SECTION> <SECTNO>§ 1208.32</SECTNO> <SUBJECT>Designation and appointment of retailer members and alternates.</SUBJECT> <P>(a) Four nominations for one of the traditional retailer members of the Council and that member's alternate shall be received from the American Floral Marketing Council (AFMC) or a successor entity.</P> <P>(b) Four nominations for each of two members of the Council and their alternates shall be received from national traditional retail florist organizations other than the AFMC. In order to be eligible to submit nominations for members and alternates to serve on the Council, such organizations must certify that their activities and membership are nationwide in scope. No more than four nominations for each seat may be submitted by each organization.</P> <P>(c) The Secretary shall choose from among the names submitted by the AFMC the names of the member and alternate who shall fill the seat on the Council representing the AFMC. The Secretary shall choose from among the names submitted by national traditional retail florist organizations other than the AFMC the two members and their alternates who shall fill the other two seats on the Council representing traditional retailers.</P> </SECTION> <SECTION> <SECTNO>§ 1208.33</SECTNO> <SUBJECT>Failure to nominate.</SUBJECT> <P>If any group of qualified wholesale handlers, producers that are qualified handlers, importers that are qualified handlers, persons who produce cut flowers and greens, or traditional retailers fails to nominate individuals for appointments as members or alternates of the Council, the Secretary may appoint individual(s) from the appropriate segment(s), region(s), or area(s) of the industry to fill the vacancy or vacancies. The failure of any nominee to promptly indicate the nominee's willingness to serve in such manner as may be prescribed by the Secretary shall be treated as a failure to nominate.</P> </SECTION> <SECTION> <SECTNO>§ 1208.34</SECTNO> <SUBJECT>Term of office and compensation.</SUBJECT> <P>(a) The term of office for each member or alternate member of the Council shall be three years. As provided in the Act, the initial appointments on the Council shall be as follows: nine of the member appointments shall be for two-year terms, eight of the appointments shall be for three-year terms, and eight of the appointments shall be for four-year terms. Alternate members shall have the same terms of office as their respective members. The term of office on the initial Council shall be apportioned as follows:</P> <P>(1) One of the two qualified wholesale handler members representing each of Regions 1, 2, 4, and 5 shall serve two-year terms of office; one of the two qualified wholesale handler members representing each of Regions 3, 4, and 6 shall serve three-year terms of office; and one of the two qualified wholesale handler members representing each of Regions 1, 2, 3, 5, and 6 shall serve four-year terms of office.</P> <P>(2) The two qualified wholesale handler members representing the United States at large shall serve terms of office of two years and three years respectively.</P> <P>(3) The members representing producers that are qualified handlers from Production Areas 1 and 2 shall serve three-year terms of office, and the member representing producers that are qualified handlers from Production Area 3 shall serve a four-year term of office.</P> <P>(4) The three members representing importers that are qualified handlers shall serve terms of office of two, three, and four years respectively.</P> <P>(5) The members representing producers that produce cut flowers and greens east and west of the Mississippi River shall each serve two-year terms of office.</P> <P>(6) The member representing retailers nominated by the AFMC shall serve a two-year term of office. The two members representing retailers not nominated by the AFMC shall serve <PRTPAGE P="67"/>three-year and four-year terms of office respectively.</P> <P>(b) No member of the Council may serve more than two consecutive terms of three years, except that any member serving an initial term of four years or two years may serve an additional term of three years.</P> <P>(c) The term of office for the initial Council shall begin immediately following appointment by the Secretary. Should the term of office of the initial Council begin before January 1, 1995, the time between appointment and January 1, 1995, shall not count towards the initial term of office. Should the term of office of the initial Council begin later than January 1, 1995, all time until the following January will count as a full year toward the terms of office set out in this section. In subsequent years, the term of office shall begin on January 1 or such other period which may be recommended by the Council and approved by the Secretary.</P> <P>(d) Members of the Council shall serve without compensation, but each member or alternate member acting in place of a member shall be reimbursed for the expenses incurred in performing duties as a member of the Council.</P> </SECTION> <SECTION> <SECTNO>§ 1208.35</SECTNO> <SUBJECT>Vacancies.</SUBJECT> <P>(a) Should any Council member position become vacant, the alternate of that member shall automatically assume the position of said member. Candidates for the vacant alternate member position which resulted from the alternate filling the vacant member position shall be nominated in the manner specified in §§ 1208.31 and 1208.32. <E T="03">Provided,</E> That a vacancy will not be required to be filled if the unexpired term is less than six months.</P> <P>(b) Should the positions of both a member and such member's alternate become vacant, Candidates to serve the unexpired terms of office for such member and alternate shall be nominated in the manner specified in §§ 1208.31 and 1208.32. <E T="03">Provided,</E> That a vacancy will not be required to be filled if the unexpired term is less than six months.</P> <P>(c) If a member of the Council consistently refuses to perform the duties of a member of the Council, if a member of the Council fails to submit reports and remit assessments required under this part, or if a member of the Council is known to be engaged in acts of dishonesty or willful misconduct, the Council may recommend to the Secretary that the member be removed from office. If the Secretary finds that the recommendation of the Council shows adequate cause, the Secretary shall remove such member from office. Further, without recommendation of the Council, a member may be removed by the Secretary upon a showing of adequate cause, if the Secretary determines that the person's continued service would be detrimental to the achievement of the purposes of the Act.</P> </SECTION> <SECTION> <SECTNO>§ 1208.36</SECTNO> <SUBJECT>Procedure.</SUBJECT> <P>(a) Thirteen (13) Council members, including alternates acting in place of members of the Council, shall constitute a quorum: Provided, That such alternates shall serve only when the member is absent from a meeting or is disqualified. Any action of the Council shall require the concurring votes of a majority of those present and voting. At assembled meetings, all votes shall be cast in person.</P> <P>(b) In lieu of voting at an assembled meeting, and, when in the opinion of the chairperson of the Council such action is considered necessary, or for matters of an emergency nature when there is not enough time to call an assembled meeting, the Council may act upon a majority of concurring votes of its members cast by mail, telegraph, telephone, facsimile, or by other means of communication: <E T="03">Provided,</E> That each member or alternate acting for a member receives an accurate, full, and substantially identical explanation of each proposition. Telephone votes shall be promptly confirmed in writing. All votes shall be recorded in the Council minutes.</P> </SECTION> <SECTION> <SECTNO>§ 1208.37</SECTNO> <SUBJECT>Executive committee.</SUBJECT> <P>(a) The Council is authorized to appoint an executive committee of not more than nine persons from among its members. Initially, the executive committee shall be composed of the following:</P> <P>(1) Four members representing qualified wholesale handlers;<PRTPAGE P="68"/> </P> <P>(2) Two members representing producers that are qualified handlers;</P> <P>(3) Two members representing importers that are qualified handlers; and</P> <P>(4) One member representing traditional retailers.</P> <P>(b) After the initial appointments, each appointment to the executive committee shall be made so as to ensure that the committee reflects, to the maximum extent practicable, the membership composition of the Council as a whole.</P> <P>(c) Each initial appointment to the executive committee shall be for a term of two years. After the initial appointments, each appointment to the executive committee shall be for a term of one year.</P> <P>(d) The Council may delegate to the executive committee the authority of the Council under this subpart to hire and manage staff and conduct the routine business of the Council consistent with such policies as are determined by the Council.</P> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Activities of the Council</HD> <SECTION> <SECTNO>§ 1208.40</SECTNO> <SUBJECT>Duties of the Council.</SUBJECT> <P>The Council shall have the following duties, in addition to the duties specified in other sections of this subpart:</P> <P>(a) Administer this subpart in accordance with the terms and provisions of this subpart;</P> <P>(b) Make rules and regulations to effectuate the terms and provisions of this subpart;</P> <P>(c) Appoint members of the Council to serve on the executive committee, as provided in § 1208.37;</P> <P>(d) Employ such persons as the Council determines are necessary, and set the compensation and define the duties of the persons;</P> <P>(e) Develop budgets for the implementation of this subpart and submit the budgets to the Secretary for approval, and propose and develop (or receive and evaluate), approve, and submit to the Secretary for approval plans and projects for cut flowers and greens promotion, consumer information, or related research;</P> <P>(f) Implement plans and projects for cut flowers and greens promotion, consumer information, or related research, or contract or enter into agreements with appropriate persons to implement the plans and projects and pay the costs of the implementation of contracts and agreements with funds received under this subpart;</P> <P>(g) Keep minutes, books, and records which clearly reflect all of the acts and transactions of the Council. Minutes of all meetings shall be promptly provided to the Secretary;</P> <P>(h) Evaluate ongoing and completed plans and projects for cut flowers and greens promotion, consumer information, or related research;</P> <P>(i) Receive, investigate, and report to the Secretary complaints of violations of this subpart and direct that the staff of the Council periodically review the list of importers of cut flowers and greens provided by the Customs Service to determine whether persons on the list are subject to this subpart;</P> <P>(j) Recommend to the Secretary amendments to this subpart;</P> <P>(k) Invest, pending disbursement under a plan or project, funds collected through assessments only in: Obligations of the United States or any agency of the United States, general obligations of any State or any political subdivision of a State, any interest-bearing account or certificate of deposit of a bank that is a member of the Federal Reserve System, or obligations fully guaranteed as to principal and interest by the United States. Income from any such invested funds may be used only for a purpose for which the invested funds may be used.</P> <P>(l) Prepare and submit to the Secretary such reports as may be prescribed for appropriate accounting with respect to the receipt and disbursement of funds entrusted to the Council monthly, or at such times as prescribed by the Secretary. Monthly financial statements shall be submitted to the Department and shall include at least:</P> <P>(1) A balance sheet, and</P> <P>(2) An expense budget comparison showing expenditures during the month, year-to-date expenditures, and an unexpended budget. Upon request, a summary of checks issued by the Council is to be made available. Reports shall be submitted within 30 days after the end of each month.<PRTPAGE P="69"/> </P> <P>(m) To cause the books of the Council to be audited by an independent certified public accountant at the end of each fiscal period, and at such other times as the Council or the Secretary may deem necessary. The report of each audit shall show the receipt and expenditure of funds collected pursuant to this part, and shall be submitted to the Secretary.</P> <P>(n) To give the Secretary the same notification, written or oral, as provided to Council members concerning all conference calls and meetings, including executive, advisory, subcommittee, and other meetings related to Council matters, and to grant the Secretary access to all such calls and meetings;</P> <P>(o) To follow the Department's equal opportunity/civil rights policies; and</P> <P>(p) Provide the Secretary such information as the Secretary may require.</P> </SECTION> <SECTION> <SECTNO>§ 1208.41</SECTNO> <SUBJECT>Budgets and expenses</SUBJECT> <P>(a) The Council shall promptly adopt and forward to the Secretary for approval its determination of the beginning and ending dates of an annual fiscal period to be used by the Council for budgeting and accounting purposes.</P> <P>(b) The Council shall submit annual budgets of its anticipated expenses and disbursement in the administration of this subpart, including the projected costs for the promotion of cut flowers and greens, consumer information, and related research plans and projects to the Secretary for approval. The first budget, which shall be submitted promptly after the effective date of this subpart, shall cover such period as may remain before the beginning of the next fiscal year. If such fiscal period is 90 days or less, the first budget shall cover such period, as well as the next fiscal year. Thereafter, the Council shall submit budgets for each succeeding fiscal year not less than 30 days before the beginning of such fiscal year.</P> <P>(c) The Council is authorized to incur such expenses (including provision for a reasonable reserve for operating contingencies) as the Secretary finds are reasonable and likely to be incurred by the Council for its maintenance and functioning and to enable it to exercise its powers and perform its duties in accordance with this subpart. Expenses authorized in this paragraph shall be paid from assessments collected pursuant to § 1208.50, or other funds available to the Council.</P> <P>(d) The Council shall reimburse the Secretary, from assessments collected pursuant to § 1208.50, or from other funds available to the Council, for administrative costs incurred by the Department to carry out its responsibilities pursuant to this subpart after December 29, 1994.</P> <P>(e) The Council shall establish an interest-bearing escrow account with a bank that is a member of the Federal Reserve System and shall deposit in such account an amount equal to the percentage determined by the Council to be held in reserve for the payment of refunds pursuant to § 1208.54.</P> <P>(f) The Council may, with the approval of the Secretary, borrow money for the payment of administrative expenses, subject to the same fiscal, budget, and audit controls as other funds of the Council.</P> </SECTION> <SECTION> <SECTNO>§ 1208.42</SECTNO> <SUBJECT>Plans, projects, budgets, and contracts.</SUBJECT> <P>The Council shall develop and implement plans and projects for the promotion of, and the dissemination of information about, cut flowers and greens, as well as for research related to cut flowers and greens in accordance with the following:</P> <P>(a) The Council shall develop, or contract for the development of, plans and projects for advertising, sales promotion, other promotion, and for dissemination of consumer information, with respect to cut flowers and greens, and may disburse such funds as necessary for these purposes after such plans or projects have been submitted to, and approved by, the Secretary. Any such plan or project shall be directed toward increasing the general demand for cut flowers and greens and shall not make reference to a private brand or trade name, point of origin, or source of supply, except that the Council may offer such plans and projects of the Council for use by commercial parties such as local, regional, State, or national floral industry organizations, <PRTPAGE P="70"/>and then only under terms and conditions prescribed by the Council and approved by the Secretary. No plan or project may make use of unfair or deceptive acts or practices with respect to quality or value.</P> <P>(b) The Council shall develop, or contract for the development of, plans and projects for research on the development of both established and new markets for cut flowers and greens and for research with respect to postharvest physiology, distribution, sale, marketing, use, and promotion of cut flowers and greens, as well as the dissemination of consumer information concerning cut flowers and greens. The Council is authorized to develop, or contract for the development of, such plans and projects for other research with respect to the marketing, promotion, and dissemination of information about cut flowers and greens as it finds appropriate. The Council may disburse such funds as necessary for these purposes after such plans or projects have been submitted to, and approved by, the Secretary.</P> <P>(c) The Council shall submit to the Secretary, for approval before implementation, any contracts for development of plans and projects, as well as such plans and projects as may be developed by or approved by the Council for advertising, promotion, dissemination of information, and research. All such submissions to the Secretary shall be accompanied by a proposed budget showing the estimated expense to be incurred and the availability of revenue from which such expense may be paid. On approval of any such submission, the Council may proceed with the contract, plan or project and incur the expenses necessary to carry it out. Contracts or agreements to be submitted to the Secretary and entered into if approved by the Secretary shall, among such other matters as may be required, provide that:</P> <P>(1) The contracting or agreeing party shall develop and submit to the Council a plan or project, together with a budget that includes the estimated costs to be incurred for the plan or project;</P> <P>(2) The plan or project shall become effective on the approval of the Secretary; and</P> <P>(3) The contracting or agreeing party shall:</P> <P>(i) Keep accurate records of all of the transactions of the party;</P> <P>(ii) Account for funds received and expenses;</P> <P>(iii) Make periodic reports to the Council of activities conducted; and</P> <P>(iv) Make such other reports as the Council or the Secretary may require.</P> <P>(d) The Council, from time to time, may seek advice from and consult with experts from the production, import, wholesale, and retail segments of the cut flowers and greens industry to assist in the development of promotion, consumer information, and related research plans and projects. For these purposes, the Council may appoint special committees composed of persons other than Council members. A committee so appointed may not provide advice or recommendations to a representative of an agency, or an officer, of the Federal Government, and shall consult directly with the Council.</P> </SECTION> <SECTION> <SECTNO>§ 1208.43</SECTNO> <SUBJECT>Other contracts and agreements.</SUBJECT> <P>The Council may enter into contracts or agreements for administrative services, including contracts of employment, as may be required to conduct its business in accordance with such fiscal period budgets as may have been approved by the Secretary. To the extent appropriate to the contract involved, contracts entered into by the Council under the authority of this section shall contain provisions comparable to those described in § 1208.42(c).</P> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Assessments</HD> <SECTION> <SECTNO>§ 1208.50</SECTNO> <SUBJECT>Assessments.</SUBJECT> <P>(a) Each qualified handler, as defined in § 1208.16, shall pay to the Council an assessment in an amount determined in accordance with this subpart, on each sale of cut flowers and greens to a retailer or an exempt handler (as defined in § 1208.8) and on each non-sale transfer of cut flowers and greens to a retailer by a qualified handler that is a distribution center; as well as each direct sale of cut flowers and greens to a consumer by a producer that is a qualified handler, or by an importer that is <PRTPAGE P="71"/>a qualified handler. Such assessments shall be remitted by each qualified handler to the Council or its agent within 60 days after the end of the month in which the sale or non-sale transfer subject to assessment under this subpart took place. Such assessments shall be paid at the following rates:</P> <P>(1) During the first three years after December 29, 1994.</P> <P>(i) Except as provided in paragraph (a)(1)(ii) of this section, the rate shall be one-half of 1 (0.5) percent of the gross sales price of the cut flowers and greens sold;</P> <P>(ii) In the case of non-sale transfers to a retailer by a qualified handler that is a distribution center and in the case of direct sales by importers or producers, the rate shall be one-half of 1 (0.5) percent of the amount of each transaction's valuation for assessment as provided in paragraph (b);</P> <P>(2) After the first three years from December 29, 1994, the uniform assessment rate may be increased or decreased annually by not more than one-quarter of 1 (0.25) percent of the gross sales price of a product sold; or in the case of other transactions the amount of such transactions, except that the assessment rate may not exceed 1 percent of the gross sales price or the transaction amount. Changes in the rate of assessment may only be made if such changes are adopted by a two-thirds majority vote of the Council and approved by the Secretary (after public notice and opportunity for comment as provided in the Act) as being necessary to carry out the objectives of the Act. Any such change so approved by the Secretary may be put into effect without a referendum but shall be announced not less than 30 days prior to the beginning of a fiscal year.</P> <P>(b) Each non-sale transfer of cut flowers and greens to a retailer from a qualified handler that is a distribution center shall be treated as a sale of cut flowers and greens to a retailer and shall be assessable. Each direct sale of cut flowers and greens to a consumer by a producer who is a qualified handler or an importer who is a qualified handler shall be assessable. These transactions shall be determined to have the following valuations for assessment purposes:</P> <P>(1) In the case of a non-sale transfer of cut flowers and greens from a distribution center that is a qualified handler and each direct sale of cut flowers and greens to a consumer by an importer that is a qualified handler, the amount of the valuation of the cut flowers and greens for assessment purposes shall be the price paid by the distribution center or importer to acquire the cut flowers and greens, and determined by multiplying the acquisition price by a uniform factor of 1.43 to represent the markup of a wholesale handler on a sale to a retailer.</P> <P>(2) In the case of a direct sale to a consumer by a producer who is a qualified handler, the valuation of the cut flowers and greens for assessment purposes shall be equal to an amount determined by multiplying the price paid by the consumer by a uniform factor of 0.50 to represent the cost of producing the article and the markup of a wholesale handler on a sale to a retailer.</P> <P>(3) The Council may consider and adopt changes in the uniform factors specified in paragraphs (b) (1) and (2) of this section. Any such change shall not become effective until it has been adopted by a majority vote of the Council and approved by the Secretary after public notice and opportunity to comment on such change as provided in the Act. Changes so adopted and approved shall become effective at the beginning of the next fiscal year.</P> <P>(c) The collection of assessments shall commence on or after a date established by the Secretary, and shall continue until terminated by the Secretary. If the Council is not constituted on the date the first assessments are to be remitted, the Secretary shall have the authority to receive assessments on behalf of the Council and may hold such assessments in an interest bearing account until the Council is constituted, and the funds may be transferred to the Council.</P> <P>(d) Assessments shall be determined on the basis of the gross sales price. The Council, with the approval of the Secretary, may make uniform adjustments in determining the gross sales price when such adjustments reflect <PRTPAGE P="72"/>changes in trade practices or ensure equitable treatment of all qualified handlers paying assessments.</P> <P>(e) No assessments may be levied on any sale of cut flowers and greens for export from the United States. The Council is authorized to establish procedures for the verification of exports.</P> <P>(f) In general, assessment funds (less refunds, if any) shall be used:</P> <P>(1) For payment of costs incurred in implementing and administering this subpart;</P> <P>(2) To provide for a reasonable reserve to be maintained from assessments to be available for contingencies; and</P> <P>(3) To cover the administrative costs incurred by the Secretary in implementing and administering this Act. </P> <NOTE> <HD SOURCE="HED">Note to § 1208.50:</HD> <P>The requirement to pay assessments is terminated as of July 29, 1997.</P> </NOTE> <CITA>[59 FR 67143, Dec. 29, 1994, as amended at 62 FR 40257, July 28, 1997]</CITA> </SECTION> <SECTION> <SECTNO>§ 1208.51</SECTNO> <SUBJECT>Influencing governmental action.</SUBJECT> <P>No funds collected by the Council shall in any manner be used for the purpose of influencing legislation or government action or policy, except to develop and recommend to the Secretary amendments to this subpart.</P> </SECTION> <SECTION> <SECTNO>§ 1208.52</SECTNO> <SUBJECT>Charges for late payments.</SUBJECT> <P>Any assessment due the Council pursuant to § 1208.50 that is not paid on time shall be increased 1.5 percent each month it remains unpaid beginning with the day following the date such assessment was due. If not paid in full, any remaining amount due, which shall include any unpaid charges previously made pursuant to this section, shall be increased at the same rate on the corresponding day of each month thereafter until paid. For the purpose of this section, any assessment that was determined at a date later than prescribed by this subpart because of a failure to submit a report when due shall be considered to have been payable by the date it would have been due if the report had been filed when due. The timeliness of a payment to the Council shall be based on the applicable postmark date or the date actually received by the Council, whichever is earlier.</P> </SECTION> <SECTION> <SECTNO>§ 1208.53</SECTNO> <SUBJECT>Adjustment of accounts.</SUBJECT> <P>Whenever the Council or the Secretary determines through an audit of a person's reports, records, books, or accounts or through some other means that additional money is due the Council or that money is due such person from the Council, such person shall be notified of the amount due. The person shall then remit any amount due the Council by the next date for remitting assessments. Overpayments shall be credited to the account of the person remitting the overpayment and shall be applied against amounts due in succeeding months.</P> </SECTION> <SECTION> <SECTNO>§ 1208.54</SECTNO> <SUBJECT>Refunds of assessments and escrow account.</SUBJECT> <P>(a) Any qualified handler may demand and receive from the escrow account, subject to the limitation on such payments provided in paragraph (c), a one-time refund of any assessments paid by or on behalf of the handler if the handler requests the refund before the initial referendum on this subpart is held and this subpart is rejected by the voters when it is submitted to the referendum. Such a refund will be paid only if all of the following conditions are met:</P> <P>(1) The handler has paid the assessments sought to be refunded and has submitted proof of such payment;</P> <P>(2) The handler does not support the program established under this subpart and so states in the handler's demand for a refund;</P> <P>(3) The handler's demand for a refund is made on a form specified by the Council and filed not less than 10 days prior to the date when the initial referendum, conducted pursuant to § 1208.60(a) to ascertain whether this subpart shall remain in effect, is scheduled to begin; and</P> <P>(4) This subpart is not approved by a simple majority of the votes cast by qualified handlers in the initial referendum.</P> <P>(b) The Council shall establish an escrow account to be used for assessment refunds, as needed, and shall place into <PRTPAGE P="73"/>the account an amount equal to 10 percent of the total amount of assessments collected during the period beginning on December 29, 1994 and ending on the date the results of the initial referendum are issued and the initial referendum is completed.</P> <P>(c) If the amount in the escrow account is not sufficient to refund the total amount of assessments demanded by all qualified handlers determined eligible for refunds and this subpart is not approved in the referendum, the Council shall prorate the amount of all such refunds among all eligible qualified handlers that demand the refund. If there is any amount in excess of the amount needed to pay refunds and expenses, it shall be returned pro rata to those who paid assessments. If this subpart is approved in the referendum, there shall be no refunds made, and all funds in the escrow account shall be returned to the Council for use by the Council in accordance with the other provisions of this subpart.</P> </SECTION> <SECTION> <SECTNO>§ 1208.55</SECTNO> <SUBJECT>Postponement of collections.</SUBJECT> <P>(a) The Council may grant a postponement of the payment of an assessment under this subpart for any qualified handler that establishes that it is financially unable to make the payment. In order that a qualified handler that is financially unable to pay an assessment may have the opportunity to petition the Council to postpone payment of such an assessment, as provided in the Act, the Council shall develop forms and procedures for this purpose as expeditiously as possible and submit them to the Secretary for approval and issuance after notice and an opportunity for public comment thereon. Such procedures shall, among other things, require that the handler demonstrate the handler's inability to pay through the submission of an opinion prepared by an independent certified public accountant (at the handler's expense) and any other documentation specified therein to the effect that the handler is insolvent or will be unable to continue to operate if the handler is required to pay the assessment when due.</P> <P>(b) The procedures for obtaining a postponement of payment to be developed by the Council for submission to the Secretary shall also include provisions with respect to the period of postponement, the conditions of payment that may be imposed and the basis, if any, on which further extensions of the time for payment will be granted so as to appropriately reflect the demonstrated needs of the qualified handler.</P> </SECTION> <SECTION> <SECTNO>§ 1208.56</SECTNO> <SUBJECT>Determinations.</SUBJECT> <P>(a) The Council is authorized to make the determinations required by this subpart as to the status of persons as qualified handlers and exempt handlers including determinations of the status of persons as qualified wholesale handlers, distribution centers that are qualified handlers, producers that are qualified handlers, importers that are qualified handlers, as well as such other determinations of status and facts as may be required for the effective administration of this subpart. Based on such determinations, the Council from time to time shall publish lists of exempt handlers who are not required to pay assessments, and lists of qualified handlers who are required to pay assessments under this subpart.</P> <P>(b) For the purpose of applying the $750,000 annual sales limitation to a specific person in order to determine the status of the person as a qualified handler or an exempt handler or to a specific facility in order to determine the status of the facility as an eligible separate facility for the purpose of referenda, the Council is authorized to determine the annual sales volume of a person or facility.</P> <P>(c) Any such determination shall be based on the sales of cut flowers and greens by the person or facility during the most recently-completed calendar year, except that in the case of a new business or other operation for which complete data on sales during all or part of the most recently-completed calendar year are not available to the Council, the determination may be made using an alternative time period or other alternative procedures as the Council may find appropriate. In making such determinations, the Council is authorized to make attributions in accordance with paragraphs (c) (1) through (4) of this section and for the <PRTPAGE P="74"/>purpose of determining the annual sales volume of a person or a separate facility of a person, sales attributable to a person shall include:</P> <P>(1) In the case of an individual, sales attributable to the spouse, children, grandchildren, parents, and grandparents of the person;</P> <P>(2) In the case of a partnership or member of a partnership, sales attributable to the partnership and other partners of the partnership;</P> <P>(3) In the case of an individual or a partnership, sales attributable to any corporation or other entity in which the individual or partnership owns more than 50 percent of the stock or (if the entity is not a corporation) that the individual or partnership controls; and</P> <P>(4) In the case of a corporation, sales attributable to any corporate subsidiary or other corporation or entity in which the corporation owns more than 50 percent of the stock or (if the entity is not a corporation) that the corporation controls.</P> <P>(d) The Council is also authorized to attribute any stock ownership interest as may be required to carry out this subpart. In doing so a stock ownership interest in the entity that is owned by the spouse, children, grandchildren, parents, grandparents, or partners of an individual, or by a partnership in which a person is a partner, or by a corporation more than 50 percent of the stock of which is owned by a person, shall be treated as owned by the individual or person.</P> <P>(e) For the purpose of this subpart, the Council, with the approval of the Secretary, may require a person who sells cut flowers and greens to retailers to submit reports to the Council on annual sales by the person and on stock ownership.</P> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Suspension or Termination</HD> <SECTION> <SECTNO>§ 1208.60</SECTNO> <SUBJECT>Suspension and termination.</SUBJECT> <P>If the Secretary finds that this subpart, or any provision of this subpart, obstructs or does not tend to effectuate the policy of the Act, the Secretary shall terminate or suspend the operation of this subpart or the provision of this subpart under such terms as the Secretary determines are appropriate. Such termination or suspension shall not be considered an order within the meaning of such term in the Act.</P> </SECTION> <SECTION> <SECTNO>§ 1208.61</SECTNO> <SUBJECT>Proceedings after termination.</SUBJECT> <P>(a) Upon the termination of this subpart, the Council shall recommend not more than five of its members to the Secretary to serve as trustees for the purpose of liquidating the assets of the Council. Such persons, upon designation by the Secretary, shall become trustees of all the funds and property owned, in the possession of, or under the control of the Council, including any claims unpaid or property not delivered, or any other claim existing at the time of such termination.</P> <P>(b) The trustees shall:</P> <P>(1) Continue in such capacity until discharged by the Secretary;</P> <P>(2) Carry out the obligations of the Council under any contract or agreement entered into by it under this subpart;</P> <P>(3) Make refunds from the escrow account to those persons who applied for refunds of assessments paid and who are eligible to receive such refunds. Such refunds shall be made within 30 days after the referendum results are issued.</P> <P>(4) From time to time account for all receipts and disbursements, and deliver all property on hand, together with all books and records of the Council and of the trustees, to such persons as the Secretary may direct; and</P> <P>(5) Upon the request of the Secretary, execute such assignments or other instruments necessary or appropriate to vest in such persons full title and right to all of the funds, property, and claims vested in the Council or the trustees under this subpart.</P> <P>(c) Any person to whom funds, property, or claims have been transferred or delivered under this subpart shall be subject to the same obligations imposed upon the Council and upon the trustees.</P> <P>(d) Any residual funds not required to defray the necessary expenses of liquidation shall be turned over to the Secretary to be used, to the extent practicable, in the interest of continuing one or more of the promotion, <PRTPAGE P="75"/>research, consumer information, or industry information programs, plans, or projects authorized under this subpart.</P> </SECTION> <SECTION> <SECTNO>§ 1208.62</SECTNO> <SUBJECT>Effect of termination or amendment.</SUBJECT> <P>Unless otherwise expressly provided by the Secretary, the termination of this subpart or of any regulation or rule issued under this subpart, or the issuance of any amendment to such provisions, shall not:</P> <P>(a) Affect or waive any right, duty, obligation, or liability that shall have arisen or may hereafter arise in connection with any provision of this subpart or any such regulation or rule;</P> <P>(b) Release or extinguish any violation of this subpart or any such regulation or rule; or</P> <P>(c) Affect or impair any rights or remedies of the United States, the Secretary, or any person with respect to any such violation.</P> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Reports, Books, and Records</HD> <SECTION> <SECTNO>§ 1208.70</SECTNO> <SUBJECT>Books, records, reports, cost control, and audits of the Council.</SUBJECT> <P>(a) The Council shall maintain the books and records that the Secretary may require to account for the receipt and disbursement of all funds entrusted to the Council in accordance with the provisions of this subpart, and shall prepare and submit to the Secretary, from time to time as prescribed by the Secretary, all reports that the Secretary may require.</P> <P>(b) The Council shall, as soon as practicable after December 29, 1994 and after consultation with the Secretary and other appropriate persons, implement a system of cost controls based on normally accepted business practices that will ensure that the annual budgets of the Council include only amounts for administrative expenses that cover the minimum administrative activities and personnel needed to properly administer and enforce this subpart, and conduct, supervise, and evaluate plans and projects under this subpart.</P> <P>(c) The Council shall cause the books and records of the Council to be audited by an independent certified public accountant at the end of each fiscal year. All audits must be performed in accordance with either standards issued by the American Institute of Certified Public Accountants or by the General Accounting Office. A report of each audit shall be submitted to the Secretary.</P> </SECTION> <SECTION> <SECTNO>§ 1208.71</SECTNO> <SUBJECT>Reports, books, and records of persons subject to this subpart.</SUBJECT> <P>(a) Each qualified handler shall prepare and file reports containing such information as may be required by the Council with the approval of the Secretary. Such information shall include:</P> <P>(1) Data showing the volume of sales and non-sale transfers of cut flowers and greens made during the reporting period;</P> <P>(2) The amount of the assessment on such sales or non-sale transfers; and</P> <P>(3) Any other data that may be required by the Council with the approval of the Secretary.</P> <P>(b) Each person subject to this subpart shall maintain and make available for inspection by agents of the Council and the Secretary such books and records as are determined by the Council with the approval of the Secretary, as necessary to carry out the provisions of this subpart and the regulations issued hereunder, including such records as are necessary to verify any reports required. Such records shall be retained for at least two years beyond the fiscal period of their applicability.</P> </SECTION> <SECTION> <SECTNO>§ 1208.72</SECTNO> <SUBJECT>Confidential treatment.</SUBJECT> <P>(a) Information obtained from books, records, or reports required to be maintained or filed under the Act and this subpart shall be kept confidential by all persons, including agents and former agents of the Council, all officers and employees and all former officers and employees of the Department, and by all officers and employees and all former officers and employees of contracting agencies having access to such information, and shall not be available to Council members. Only those persons having a specific need for such information to effectively administer the provisions of this subpart shall have access to such information. In addition, only such information so furnished or acquired as the Secretary deems relevant shall be disclosed by <PRTPAGE P="76"/>them, and then only in a suit or administrative hearing brought at the discretion, or upon the request, of the Secretary, or to which the Secretary or any officer of the United States is a party, and involving this subpart. Nothing in this paragraph shall be deemed to prohibit:</P> <P>(1) The issuance of general statements, based upon the reports, of the number of persons subject to this subpart or statistical data collected from such reports, which statements do not identify the information furnished by any such persons, and</P> <P>(2) The publication, by direction of the Secretary, of the name of any individual, group of individuals, partnership, corporation, association, cooperative, or other entity that has been adjudged to have violated this subpart, together with a statement of the particular provisions of the subpart so violated.</P> <P>(b) No information on how a person voted in a referendum conducted under the Act shall be made public.</P> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Miscellaneous</HD> <SECTION> <SECTNO>§ 1208.80</SECTNO> <SUBJECT>Right of the Secretary.</SUBJECT> <P>All fiscal matters, programs or projects, by-laws, rules or regulations, reports, or other substantive actions proposed and prepared by the Council shall be submitted to the Secretary for approval.</P> </SECTION> <SECTION> <SECTNO>§ 1208.81</SECTNO> <SUBJECT>Personal liability.</SUBJECT> <P>No member or employee of the Council shall be held personally responsible, either individually or jointly, in any way whatsoever, to any person for errors in judgement, mistakes, or other acts of either commission or omission of such member or employee under this subpart, except for acts of dishonesty or willful misconduct.</P> </SECTION> <SECTION> <SECTNO>§ 1208.82</SECTNO> <SUBJECT>Patents, copyrights, inventions, publications, and product formulations.</SUBJECT> <P>Any patents, copyrights, inventions, publications, or product formulations developed through the use of funds received by the Council under this subpart shall be the property of the United States Government as represented by the Council and shall, along with any rents, royalties, residual payments, or other income from the rental, sale, leasing, franchising, or other uses of such patents, copyrights, inventions, publications, or product formulations, inure to the benefit of the Council. Upon termination of this subpart, § 1208.61 shall apply to determine disposition of all such property.</P> </SECTION> <SECTION> <SECTNO>§ 1208.83</SECTNO> <SUBJECT>Amendments.</SUBJECT> <P>Amendments to this subpart may be proposed, from time to time, by the Council or by any interested person affected by the provisions of the Act, including the Secretary.</P> </SECTION> <SECTION> <SECTNO>§ 1208.84</SECTNO> <SUBJECT>Separability.</SUBJECT> <P>If any provision of this subpart is declared invalid, or the applicability thereof to any person or circumstances is held invalid, the validity of the remainder of this subpart or the applicability thereof to other persons or circumstances shall not be affected thereby.</P> </SECTION> <SECTION> <SECTNO>§ 1208.85</SECTNO> <SUBJECT>OMB control numbers.</SUBJECT> <P>The control number assigned to the information collection requirements by the Office of Management and Budget pursuant to the Paperwork Reduction Act of 1980, Public Law 96-511, is OMB number 0581-0096, except Council member nominee information sheets are assigned OMB number 0505-0001.</P> </SECTION> </SUBJGRP> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart B—Rules and Regulations</HD> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>61 FR 30501, June 17, 1996, unless otherwise noted.</P> </SOURCE> <SUBJGRP> <HD SOURCE="HED">Definitions</HD> <SECTION> <SECTNO>§ 1208.100</SECTNO> <SUBJECT>Terms defined.</SUBJECT> <P>Unless otherwise defined in this subpart, definitions or terms used in this subpart shall have the same meaning as the definitions of such terms which appear in Subpart A—Fresh Cut Flowers and Fresh Cut Greens Promotion and Information Order of this part.</P> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Assessments</HD> <SECTION> <SECTNO>§ 1208.150</SECTNO> <SUBJECT>Procedures for postponement of collections.</SUBJECT> <P>(a) For a request for postponement of the payment of assessments to be <PRTPAGE P="77"/>granted, the qualified handler requesting such postponement must: Submit a written opinion from a Certified Public Accountant stating that the handler making the request is insolvent or will be unable to continue to operate if the handler is required to pay the assessments when due; and submit copies of the handler's last three (3) years’ federal tax returns. The request must be in writing no later than 30 days after the assessment for the first month of the requested postponement period is due. Applications postmarked after the 30-day due date will not be considered by the Council. The qualified handler must file handler reports with the Council for each month during the postponement period. The postponement period may not exceed six (6) months unless an extension is requested and granted by the Council. Only one extension of up to six (6) months may be granted. Within the postponement period, the qualified handler will be exempt from paying assessments beginning with the first month for which the request for postponement is filed with the Council and for no more than six (6) months unless an extension is granted. The same procedures used for the initial request will be used to grant any extension. The written request must specify:</P> <P>(1) A reason for the request;</P> <P>(2) Detailed information concerning the qualified handler's name, address, and telephone and fax numbers;</P> <P>(3) The month(s) for which the request is made;</P> <P>(4) Assessments due per month or gross sales per month;</P> <P>(5) Total assessments due;</P> <P>(6) The percent or amount of the outstanding assessment to be paid each month after the postponement of payment is granted; and</P> <P>(7) The starting and ending date for the payment of assessments due.</P> <P>(b) At the end of the postponement period, the qualified handler must pay the percent or amount outstanding of assessments agreed upon each month as well as any other assessments which are due. An extension of time for payment of postponed assessments, if granted, will be for the same months previously requested and granted. The extension must not exceed six (6) months. If a qualified handler requests that another period be postponed, that handler must file another application for the postponement of the assessment for the second period using the same procedure which was followed in requesting the first postponement. A qualified handler may request the postponement of the payment of assessments for a maximum of two periods of up to six (6) months each. The payment applicable to the second postponement period, if granted, may not be extended, and the payment period must not exceed the length of the postponement period. Payment of the total assessments due, when an extension and a second period are granted, must begin within one (1) year after the first postponed month's assessments were originally due. No additional postponements would be considered by the Council until the assessments owed for the first two periods have been paid. The Council may conduct an audit of the qualified handler's records at any time to determine whether the qualified handler will be unable to continue to operate if the handler is required to pay the assessments due. In the event that postponed assessments are not paid when due, the Council can demand that all such assessments due be paid in their entirety.</P> <P>(c) Charges for late payment of assessments as described in § 1208.52 will not be imposed on assessments for which postponement of payment has been granted.</P> </SECTION> </SUBJGRP> </SUBPART> </PART> <PART> <EAR>Pt. 1209</EAR> <HD SOURCE="HED">PART 1209—MUSHROOM PROMOTION, RESEARCH, AND CONSUMER INFORMATION ORDER</HD> <CONTENTS> <SUBPART> <HD SOURCE="HED">Subpart A—Mushroom Promotion, Research, and Consumer Information Order</HD> <SUBJGRP> <HD SOURCE="HED">Definitions</HD> <SECHD>Sec.</SECHD> <SECTNO>1209.1</SECTNO> <SUBJECT>Act.</SUBJECT> <SECTNO>1209.2</SECTNO> <SUBJECT>Commerce.</SUBJECT> <SECTNO>1209.3</SECTNO> <SUBJECT>Consumer information.</SUBJECT> <SECTNO>1209.4</SECTNO> <SUBJECT>Council.</SUBJECT> <SECTNO>1209.5</SECTNO> <SUBJECT>Department.</SUBJECT> <SECTNO>1209.6</SECTNO> <SUBJECT>First handler.</SUBJECT> <SECTNO>1209.7</SECTNO> <SUBJECT>Fiscal year.</SUBJECT> <SECTNO>1209.8</SECTNO> <SUBJECT>Importer.</SUBJECT> <SECTNO>1209.9</SECTNO> <SUBJECT>Industry information.</SUBJECT> <SECTNO>1209.10</SECTNO> <SUBJECT>Marketing.<PRTPAGE P="78"/> </SUBJECT> <SECTNO>1209.11</SECTNO> <SUBJECT>Mushrooms.</SUBJECT> <SECTNO>1209.12</SECTNO> <SUBJECT>On average.</SUBJECT> <SECTNO>1209.13</SECTNO> <SUBJECT>Part and subpart.</SUBJECT> <SECTNO>1209.14</SECTNO> <SUBJECT>Person.</SUBJECT> <SECTNO>1209.15</SECTNO> <SUBJECT>Producer.</SUBJECT> <SECTNO>1209.16</SECTNO> <SUBJECT>Programs, plans, and projects.</SUBJECT> <SECTNO>1209.17</SECTNO> <SUBJECT>Promotion.</SUBJECT> <SECTNO>1209.18</SECTNO> <SUBJECT>Region.</SUBJECT> <SECTNO>1209.19</SECTNO> <SUBJECT>Research.</SUBJECT> <SECTNO>1209.20</SECTNO> <SUBJECT>Secretary.</SUBJECT> <SECTNO>1209.21</SECTNO> <SUBJECT>State and United States.</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Mushroom Council</HD> <SECTNO>1209.30</SECTNO> <SUBJECT>Establishment and membership.</SUBJECT> <SECTNO>1209.31</SECTNO> <SUBJECT>Nominations.</SUBJECT> <SECTNO>1209.32</SECTNO> <SUBJECT>Acceptance.</SUBJECT> <SECTNO>1209.33</SECTNO> <SUBJECT>Appointment.</SUBJECT> <SECTNO>1209.34</SECTNO> <SUBJECT>Term of office.</SUBJECT> <SECTNO>1209.35</SECTNO> <SUBJECT>Vacancies.</SUBJECT> <SECTNO>1209.36</SECTNO> <SUBJECT>Procedure.</SUBJECT> <SECTNO>1209.37</SECTNO> <SUBJECT>Compensation and reimbursement.</SUBJECT> <SECTNO>1209.38</SECTNO> <SUBJECT>Powers.</SUBJECT> <SECTNO>1209.39</SECTNO> <SUBJECT>Duties.</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Promotion, Research, Consumer Information, and Industry Information</HD> <SECTNO>1209.40</SECTNO> <SUBJECT>Programs, plans, and projects.</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Expenses and Assessments</HD> <SECTNO>1209.50</SECTNO> <SUBJECT>Budget and expenses.</SUBJECT> <SECTNO>1209.51</SECTNO> <SUBJECT>Assessments.</SUBJECT> <SECTNO>1209.52</SECTNO> <SUBJECT>Exemption from assessment.</SUBJECT> <SECTNO>1209.53</SECTNO> <SUBJECT>Influencing governmental action.</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Reports, Books, and Records</HD> <SECTNO>1209.60</SECTNO> <SUBJECT>Reports.</SUBJECT> <SECTNO>1209.61</SECTNO> <SUBJECT>Books and records.</SUBJECT> <SECTNO>1209.62</SECTNO> <SUBJECT>Confidential treatment.</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Miscellaneous</HD> <SECTNO>1209.70</SECTNO> <SUBJECT>Right of the Secretary.</SUBJECT> <SECTNO>1209.71</SECTNO> <SUBJECT>Suspension or termination.</SUBJECT> <SECTNO>1209.72</SECTNO> <SUBJECT>Proceedings after termination.</SUBJECT> <SECTNO>1209.73</SECTNO> <SUBJECT>Effect of termination or amendment.</SUBJECT> <SECTNO>1209.74</SECTNO> <SUBJECT>Personal liability.</SUBJECT> <SECTNO>1209.75</SECTNO> <SUBJECT>Patents, copyrights, inventions, publications, and product formulations.</SUBJECT> <SECTNO>1209.76</SECTNO> <SUBJECT>Amendments.</SUBJECT> <SECTNO>1209.77</SECTNO> <SUBJECT>Separability.</SUBJECT> </SUBJGRP> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart B—Rules and Regulations</HD> <SUBJGRP> <HD SOURCE="HED">Definitions</HD> <SECTNO>1209.200</SECTNO> <SUBJECT>Terms defined.</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Nomination Procedures</HD> <SECTNO>1209.230</SECTNO> <SUBJECT>Reallocation of council members.</SUBJECT> <SECTNO>1209.231</SECTNO> <SUBJECT>Nominations.</SUBJECT> <SECTNO>1209.233</SECTNO> <SUBJECT>Regional caucus chairpersons.</SUBJECT> <SECTNO>1209.235</SECTNO> <SUBJECT>Mail balloting.</SUBJECT> <SECTNO>1209.237</SECTNO> <SUBJECT>Appointment.</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">General</HD> <SECTNO>1209.239</SECTNO> <SUBJECT>Financial statements.</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Assessments</HD> <SECTNO>1209.251</SECTNO> <SUBJECT>Payment of assessments.</SUBJECT> <SECTNO>1209.252</SECTNO> <SUBJECT>Exemption procedures.</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Reports</HD> <SECTNO>1209.260</SECTNO> <SUBJECT>Reports.</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Miscellaneous</HD> <SECTNO>1209.280</SECTNO> <SUBJECT>OMB control numbers.</SUBJECT> </SUBJGRP> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart C—Procedure for the Conduct of Referenda in Connection With the Mushroom Promotion, Research, and Consumer Information Order</HD> <SECTNO>1209.300</SECTNO> <SUBJECT>General.</SUBJECT> <SECTNO>1209.301</SECTNO> <SUBJECT>Definitions.</SUBJECT> <SECTNO>1209.302</SECTNO> <SUBJECT>Voting.</SUBJECT> <SECTNO>1209.303</SECTNO> <SUBJECT>Instructions.</SUBJECT> <SECTNO>1209.304</SECTNO> <SUBJECT>Subagents.</SUBJECT> <SECTNO>1209.305</SECTNO> <SUBJECT>Ballots.</SUBJECT> <SECTNO>1209.306</SECTNO> <SUBJECT>Referendum report.</SUBJECT> <SECTNO>1209.307</SECTNO> <SUBJECT>Confidential information.</SUBJECT> </SUBPART> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>7 U.S.C. 6101-6112.</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>57 FR 31951, July 20, 1992, unless otherwise noted.</P> </SOURCE> <SUBPART> <HD SOURCE="HED">Subpart A—Mushroom Promotion, Research, and Consumer Information Order</HD> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>58 FR 3449, Jan. 8, 1993, unless otherwise noted.</P> </SOURCE> <SUBJGRP> <HD SOURCE="HED">Definitions</HD> <SECTION> <SECTNO>§ 1209.1</SECTNO> <SUBJECT>Act.</SUBJECT> <P> <E T="03">Act</E> means the Mushroom Promotion, Research, and Consumer Information Act of 1990, subtitle B of title XIX of the Food, Agriculture, Conservation, and Trade Act of 1990, Pub. L. 101-624, 7 U.S.C. 6101-6112, and any amendments thereto.</P> </SECTION> <SECTION> <SECTNO>§ 1209.2</SECTNO> <SUBJECT>Commerce.</SUBJECT> <P> <E T="03">Commerce</E> means interstate, foreign, or intrastate commerce.</P> </SECTION> <SECTION> <SECTNO>§ 1209.3</SECTNO> <SUBJECT>Consumer information.</SUBJECT> <P> <E T="03">Consumer information</E> means information and programs that will assist consumers and other persons in making evaluations and decisions regarding the purchase, preparation, and use of mushrooms.</P> </SECTION> <SECTION> <SECTNO>§ 1209.4</SECTNO> <SUBJECT>Council.</SUBJECT> <P> <E T="03">Council</E> means the administrative body referred to as the Mushroom <PRTPAGE P="79"/>Council established under § 1209.30 of this subpart.</P> </SECTION> <SECTION> <SECTNO>§ 1209.5</SECTNO> <SUBJECT>Department.</SUBJECT> <P> <E T="03">Department</E> means the United States Department of Agriculture.</P> </SECTION> <SECTION> <SECTNO>§ 1209.6</SECTNO> <SUBJECT>First handler.</SUBJECT> <P> <E T="03">First handler</E> means any person who receives or otherwise acquires mushrooms from a producer and prepares for marketing or markets such mushrooms, or who prepares for marketing or markets mushrooms of that person's own production.</P> </SECTION> <SECTION> <SECTNO>§ 1209.7</SECTNO> <SUBJECT>Fiscal year.</SUBJECT> <P> <E T="03">Fiscal year</E> means the 12-month period from January 1 to December 31 each year, or such other period as recommended by the Council and approved by the Secretary.</P> </SECTION> <SECTION> <SECTNO>§ 1209.8</SECTNO> <SUBJECT>Importer.</SUBJECT> <P> <E T="03">Importer</E> means any person who imports, on average, over 500,000 pounds of mushrooms annually from outside the United States.</P> </SECTION> <SECTION> <SECTNO>§ 1209.9</SECTNO> <SUBJECT>Industry information.</SUBJECT> <P> <E T="03">Industry information</E> means information and programs that will lead to the development of new markets and marketing strategies, increased efficiency, and activities to enhance the image of the mushroom industry.</P> </SECTION> <SECTION> <SECTNO>§ 1209.10</SECTNO> <SUBJECT>Marketing.</SUBJECT> <P>(a) <E T="03">Marketing</E> means the sale or other disposition of mushrooms in any channel of commerce.</P> <P>(b) <E T="03">To market</E> means to sell or otherwise dispose of mushrooms in any channel of commerce.</P> </SECTION> <SECTION> <SECTNO>§ 1209.11</SECTNO> <SUBJECT>Mushrooms.</SUBJECT> <P> <E T="03">Mushrooms</E> means all varieties of cultivated mushrooms grown within the United States and marketed for the fresh market, or imported into the United States and marketed for the fresh market, except such term shall not include mushrooms that are commercially marinated, canned, frozen, cooked, blanched, dried, packaged in brine, or otherwise processed in such manner as the Council, with the approval of the Secretary, may determine.</P> </SECTION> <SECTION> <SECTNO>§ 1209.12</SECTNO> <SUBJECT>On average.</SUBJECT> <P> <E T="03">On average</E> means a rolling average of production or imports during the last two fiscal years, or such other period as may be determined by the Secretary.</P> </SECTION> <SECTION> <SECTNO>§ 1209.13</SECTNO> <SUBJECT>Part and subpart.</SUBJECT> <P> <E T="03">Part</E> means this mushroom promotion and research order and all rules and regulations and supplemental orders issued thereunder, and the term <E T="03">subpart</E> means the mushroom promotion and research order.</P> </SECTION> <SECTION> <SECTNO>§ 1209.14</SECTNO> <SUBJECT>Person.</SUBJECT> <P> <E T="03">Person</E> means any individual, group of individuals, partnership, corporation, association, cooperative, or any other legal entity.</P> </SECTION> <SECTION> <SECTNO>§ 1209.15</SECTNO> <SUBJECT>Producer.</SUBJECT> <P> <E T="03">Producer</E> means any person engaged in the production of mushrooms who owns or shares the ownership and risk of loss of such mushrooms and who produces, on average, over 500,000 pounds of mushrooms per year.</P> </SECTION> <SECTION> <SECTNO>§ 1209.16</SECTNO> <SUBJECT>Programs, plans, and projects.</SUBJECT> <P> <E T="03">Programs, plans, and projects</E> means promotion, research, consumer information, and industry information plans, studies, projects, or programs conducted pursuant to this part.</P> </SECTION> <SECTION> <SECTNO>§ 1209.17</SECTNO> <SUBJECT>Promotion.</SUBJECT> <P> <E T="03">Promotion</E> means any action determined by the Secretary to enhance the image or desirability of mushrooms, including paid advertising.</P> </SECTION> <SECTION> <SECTNO>§ 1209.18</SECTNO> <SUBJECT>Region.</SUBJECT> <P> <E T="03">Region</E> means one of the described geographic subdivisions of the production areas described in § 1209.30 (b) or as later realigned or reapportioned pursuant thereto, or the import region described in § 1209.30(c).</P> </SECTION> <SECTION> <SECTNO>§ 1209.19</SECTNO> <SUBJECT>Research.</SUBJECT> <P> <E T="03">Research</E> means any type of study to advance the image, desirability, safety, <PRTPAGE P="80"/>marketability, production, product development, quality, or nutritional value of mushrooms.</P> </SECTION> <SECTION> <SECTNO>§ 1209.20</SECTNO> <SUBJECT>Secretary.</SUBJECT> <P> <E T="03">Secretary</E> means the Secretary of Agriculture of the United States or any officer or employee of the Department to whom authority has heretofore been delegated, or to whom authority may hereafter be delegated, to act in the Secretary's stead.</P> </SECTION> <SECTION> <SECTNO>§ 1209.21</SECTNO> <SUBJECT>State and United States.</SUBJECT> <P>(a) <E T="03">State</E> means any of the several States, the District of Columbia, and the Commonwealth of Puerto Rico.</P> <P>(b) <E T="03">United States</E> means collectively the several States of the United States of America, the District of Columbia, and the Commonwealth of Puerto Rico.</P> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Mushroom Council</HD> <SECTION> <SECTNO>§ 1209.30</SECTNO> <SUBJECT>Establishment and membership.</SUBJECT> <P>(a) There is hereby established a Mushroom Council of not less than four or more than nine members. The Council shall be composed of producers appointed by the Secretary under § 1209.33, except that, as provided in paragraph (c), importers shall be appointed by the Secretary to the Council under § 1209.33 once imports, on average, reach at least 35,000,000 pounds of mushrooms annually.</P> <P>(b) For purposes of nominating and appointing producers to the Council, the United States shall be divided into four geographic regions and the number of Council members from each region shall be as follows:</P> <P>(1) <E T="03">Region 1:</E> including Maine, Vermont, New Hampshire, Massachusetts, Rhode Island, Connecticut, New York, Ohio, Kentucky, Indiana, Michigan, Wisconsin, Illinois, Missouri, Iowa, Nebraska, Kansas, Minnesota, North Dakota, South Dakota, Montana, Colorado, and Wyoming—2 Members.</P> <P>(2) <E T="03">Region 2:</E> including Pennsylvania, Delaware, New Jersey, the District of Columbia, West Virginia, Virginia, and Maryland—3 Members.</P> <P>(3) <E T="03">Region 3:</E> including Washington, Oregon, Idaho, Utah, Arizona, California, Nevada, Alaska, and Hawaii—3 Members.</P> <P>(4) <E T="03">Region 4:</E> including New Mexico, Texas, Oklahoma, Arkansas, Louisiana, Alabama, Mississippi, Georgia, Tennessee, North Carolina, South Carolina, Florida, and the Commonwealth of Puerto Rico—1 Member.</P> <P>(c) Importers shall be represented by a single, separate region, referred to as Region 5, consisting of the United States as defined in § 1209.21(b) when imports, on average, equal or exceed 35,000,000 pounds of mushrooms annually.</P> <P>(d) At least every five years, and not more than every three years, the Council shall review changes in the geographic distribution of mushroom production volume throughout the United States and import volume, using the average annual mushroom production and imports over the preceding four years, and, based on such review, shall recommend to the Secretary reapportionment of the regions established in paragraph (b), or modification of the number of members from such regions, as determined under the rules established in paragraph (e), or both, as necessary to best reflect the geographic distribution of mushroom production volume in the United States and representation of imports, if applicable.</P> <P>(e) Subject to the nine-member maximum limitation, the following procedure will be used to determine the number of members for each region to serve on the Council under paragraph (d):</P> <P>(1) Each region that produces, on average, at least 35,000,000 pounds of mushrooms annually shall be entitled to one representative on the Council.</P> <P>(2) As provided in paragraph (c), importers shall be represented by a single, separate region, which shall be entitled to one representative, if such region imports, on average, at least 35,000,000 pounds of mushrooms annually.</P> <P>(3) Each region shall be entitled to representation by an additional Council member for each 50,000,000 pounds of annual production or imports, on average, in excess of the initial 35,000,000 pounds required to qualify the region for representation.<PRTPAGE P="81"/> </P> <P>(4) Should, in the aggregate, regions be entitled to levels of representation under paragraphs (e) (1), (2) and (3) that would exceed the nine-member limit on the Council under the Act, the regions shall be entitled to representation on the Council as follows:</P> <P>(i) Each region first shall be assigned one representative on the Council pursuant to paragraphs (e) (1) and (2).</P> <P>(ii) Then, each region with 50,000,000 pounds of annual production or imports, on average, in excess of the initial 35,000,000 pounds required to qualify the region for representation shall be assigned one additional representative on the Council, except that if under such assignments all five regions, counting importers as a region, if applicable, would be entitled to additional representatives, that region with the smallest on-average volume, in terms of production or imports, will not be assigned an additional representative.</P> <P>(iii) After members are assigned to regions under paragraphs (e)(4) (i) and (ii), if less than the entire nine seats on the Council have been assigned to regions, the remaining seats on the Council shall be assigned to each region for each 50,000,000 pound increment of annual production or import volume, on average, in excess of 85,000,000 pounds until all the seats are filled. It for any such 50,000,000 pound increment, more regions are eligible for seats than there are seats available, the seat or seats assigned for such increment shall be assigned to that region or those regions with greater on-average production or import volume than the other regions otherwise eligible at that increment level.</P> <P>(f) In determining the volume of mushrooms produced in the United States or imported into the United States for purposes of this section, the Council and the Secretary shall:</P> <P>(1) Only consider mushrooms produced or imported by producers and importers, respectively, as those terms are defined in §§ 1209.8 and 1209.15; and</P> <P>(2) Use the information received by the Council under § 1209.60, and data published by the Department.</P> <P>(g) For purposes of the provisions of this section relating to the appointment of producers and importers to serve on the Council, the term <E T="03">producer</E> or <E T="03">importer</E> refers to any individual who is a producer or importer, respectively, or if the producer or importer is an entity other than an individual, an individual who is an officer or employee of such producer or importer.</P> </SECTION> <SECTION> <SECTNO>§ 1209.31</SECTNO> <SUBJECT>Nominations.</SUBJECT> <P>All nominations for appointments to the Council under § 1209.33 shall be made as follows:</P> <P>(a) As soon as practicable after this subpart becomes effective, nominations for appointment to the initial Council shall be obtained from producers by the Secretary. In any subsequent year in which an appointment to the Council is to be made, nominations for positions whose terms will expire at the end of that year shall be obtained from producers, and as appropriate, importers, and certified by the Council and submitted to the Secretary by August 1 of such year, or such other date as approved by the Secretary.</P> <P>(b) Nominations shall be made at regional caucuses of producers or importers, or by mail ballot as provided in paragraph (e), in accordance with procedures prescribed in this section.</P> <P>(c) Except for initial Council members, whose nomination process will be initiated by the Secretary, the Council shall issue a call for nominations by February 1 of each year in which nominations for an appointment to the Council is to be made. The call shall include, at a minimum, the following information:</P> <P>(1) A list by region of the vacancies for which nominees may be submitted and qualifications as to producers and importers.</P> <P>(2) The date by which the names of nominees shall be submitted to the Secretary for consideration to be in compliance with paragraph (a) of this section.</P> <P>(3) A list of those States, by region, entitled to participate in the nomination process.</P> <P>(4) The date, time, and location of any next scheduled meeting of the Council, and national and State producer or importer associations, if known, and of the regional caucuses, if any.<PRTPAGE P="82"/> </P> <P>(d)(1) Except as provided in paragraph (e), nominations for each position shall be made by regional caucus in the region entitled to nominate for such position. Notice of such caucus shall be publicized to all producers or importers within the region, and to the Secretary, at least 30 days prior to the caucus. The notice shall have attached to it the call for nominations from the Council and the Department's equal opportunity policy. Except with respect to nominations for the initial appointments to the Council, the responsibility for convening and publicizing the regional caucus shall be that of the Council.</P> <P>(2) All producers or importers within the region may participate in the caucus. However, if a producer is engaged in the production of mushrooms in more than one region or is also an importer, such person's participation within a region shall be limited to one vote and shall only reflect the volume of such person's production or imports within the applicable region.</P> <P>(3) The regional caucus shall conduct the selection process for the nominees in accordance with procedures to be adopted at the caucus subject to the following requirements:</P> <P>(i) There shall be two individuals nominated for each open position.</P> <P>(ii) Each nominee shall meet the qualifications set forth in the call.</P> <P>(iii) If a producer nominee is engaged in the production of mushrooms in more than one region or is also an importer, such individual shall participate within the region that such individual so elects in writing to the Council and such election shall remain controlling until revoked in writing to the Council.</P> <P>(e) After the regional caucuses for the initial Council, the Council may conduct the selection of nominees by mail ballot in lieu of a regional caucus.</P> <P>(f) When producers or importers are voting for nominees to the Council, whether through a regional caucus or a mail ballot, the following conditions shall apply:</P> <P>(1) Voting for any open position shall be on the basis of:</P> <P>(i) One vote per eligible voter; and</P> <P>(ii) Volume of on-average production or imports of the eligible voter within that region.</P> <P>(2) Whenever the producers or importers in a region are choosing nominees for one open position on the Council, the proposed nominee with the highest number of votes cast and the proposed nominee with the highest volume of production or importers voted shall be the nominees submitted to the Secretary. If a proposed nominee receives both the highest number of votes cast and the highest volume of production or imports voted, then the proposed nominee with the second highest number of votes cast shall be a nominee submitted to the Secretary along with such proposed nominee receiving both the highest number of votes cast and the highest volume of production or imports voted.</P> <P>(3) Whenever the producers or importers in a region are choosing nominees for more than one open position on the Council at the same time, the number of the nominations submitted to the Secretary shall equal twice the number of such open positions, and for each open position shall consist of the proposed nominee with the highest number of votes cast and the proposed nominee with the highest volume of production or imports voted with respect to that position, subject to the rule set out in paragraph (f)(2). An individual shall only be nominated for one such open position.</P> <P>(4) Voters shall certify on their ballots as to their on-average production or import volume within the region involved. Such certification may be subject to verification.</P> <P>(g)(1) The Secretary may reject any nominee submitted. If there are insufficient nominees from which to appoint members to the Council as a result of the Secretary's rejecting such nominees, additional nominees shall be submitted to the Secretary under the procedures set out in this section.</P> <P>(2) Whenever producers or importers in a region cannot agree on nominees for an open position on the Council under the preceding provisions of this section, or whenever they fail to nominate individuals for appointment to the Council, the Secretary may appoint <PRTPAGE P="83"/>members in such manner as the Secretary, by regulation, determines appropriate.</P> </SECTION> <SECTION> <SECTNO>§ 1209.32</SECTNO> <SUBJECT>Acceptance.</SUBJECT> <P>Each individual nominated for membership on the Council shall qualify by filing a written acceptance with the Secretary at the time of nomination.</P> </SECTION> <SECTION> <SECTNO>§ 1209.33</SECTNO> <SUBJECT>Appointment.</SUBJECT> <P>From the nominations made pursuant to § 1209.31, the Secretary shall appoint the members of the Council on the basis of representation provided for in § 1209.30, except that no more than one member may be appointed to the Council from nominations submitted by any one producer or importer.</P> </SECTION> <SECTION> <SECTNO>§ 1209.34</SECTNO> <SUBJECT>Term of office.</SUBJECT> <P>(a) The members of the Council shall serve for terms of three years, except that the members appointed to the initial Council shall serve, proportionately, for terms of one, two, and three years.</P> <P>(b) Members of the initial Council shall be designated for, and shall serve, terms as follows: One producer member each from regions 1, 2 and 3 shall be appointed for an initial term of one year; one producer member each from regions 1, 2, and 3 shall be appointed for an initial term of two years; and one producer member each from regions 2, 3, and 4 shall be appointed for an initial term of three years. Because current imports of fresh mushrooms are less than 35,000,000 pounds, the minimum established for representation on the Council, importers will not initially have a member appointed to the Council.</P> <P>(c)(1) Except with respect to terms of office of the initial Council, the term of office for each member of the Council shall begin on January 1 or such other date that may be approved by the Secretary.</P> <P>(2) The term of office for the initial Council shall begin immediately following appointment by the Secretary, except that time in the interim period from appointment until the following January 1, or such other date that is the generally applicable beginning date for terms under paragraph (c)(1) approved by the Secretary, shall not count toward the initial term of office.</P> <P>(d) Council members shall serve during the term of office for which they are appointed and have qualified, and until their successors are appointed and have qualified.</P> <P>(e)(1) No member shall serve more than two successive three-year terms, except as provided in paragraph (e)(2)(ii).</P> <P>(2)(i) Those members serving initial terms of two or three years may serve one successive three-year term.</P> <P>(ii) Those members serving initial terms of one year may serve two successive three-year terms.</P> </SECTION> <SECTION> <SECTNO>§ 1209.35</SECTNO> <SUBJECT>Vacancies.</SUBJECT> <P>(a) To fill any vacancy occasioned by the death, removal, resignation, or disqualification of any member of the Council, the Secretary may appoint a successor from the most recent nominations submitted for open positions on the Council assigned to the region that the vacant position represents, or the Secretary may obtain nominees to fill such vacancy in such manner as the Secretary, by regulation, deems appropriate. Each such successor appointment shall be for the remainder of the term vacated. A vacancy will not be required to be filled if the unexpired term is less than six months.</P> <P>(b)(1) No successor appointed to a vacated term of office shall serve more than two successive three-year terms on the Council, except as provided in paragraph (b)(2)(ii).</P> <P>(2)(i) Any successor serving longer than one year may serve one successive three-year term.</P> <P>(ii) Any successor serving one year or less may serve two successive three-year terms.</P> <P>(c) If a member of the Council consistently refuses to perform the duties of a member of the Council, or if a member of the Council is known to be engaged in acts of dishonesty or willful misconduct, the Council may recommend to the Secretary that the member be removed from office. If the Secretary finds the recommendation of the Council shows adequate cause, the Secretary shall remove such member from office. Further, without recommendation of the Council, a member <PRTPAGE P="84"/>may be removed by the Secretary upon showing of adequate cause, including the failure by a member to submit reports or remit assessments required under this part, if the Secretary determines that such member's continued service would be detrimental to the achievement of the purposes of the Act.</P> </SECTION> <SECTION> <SECTNO>§ 1209.36</SECTNO> <SUBJECT>Procedure.</SUBJECT> <P>(a) At a properly convened meeting of the Council, a majority of the members shall constitute a quorum.</P> <P>(b) Each member of the Council will be entitled to one vote on any matter put to the Council, and the motion will carry if supported by a simple majority of those voting. At assembled meetings of the Council, all votes will be cast in person.</P> <P>(c) In lieu of voting at a properly convened meeting and, when in the opinion of the chairperson of the Council such action is considered necessary, the Council may take action upon the concurring votes of a majority of its members by mail, telephone, telegraph, or any other means of communication, but any such action shall be confirmed promptly in writing. In that event, all members must be notified and provided the opportunity to vote. Any action so taken shall have the same force and effect as though such action had been taken at a properly convened meeting of the Council. All votes shall be recorded in Council minutes.</P> <P>(d) Meetings of the Council may be conducted by electronic communications, provided that each member is given prior notice of the meeting and has an opportunity to be present either physically or by electronic connection.</P> <P>(e) The organization of the Council and the procedures for conducting meetings of the Council shall be in accordance with its bylaws,which shall be established by the Council and approved by the Secretary.</P> </SECTION> <SECTION> <SECTNO>§ 1209.37</SECTNO> <SUBJECT>Compensation and reimbursement.</SUBJECT> <P>The members of the Council shall serve without compensation but shall be reimbursed for necessary and reasonable expenses, including a reasonable per diem allowance, as approved by the Council and the Secretary, incurred by such members in the performance of their responsibilities under this subpart.</P> </SECTION> <SECTION> <SECTNO>§ 1209.38</SECTNO> <SUBJECT>Powers.</SUBJECT> <P>The Council shall have the following powers:</P> <P>(a) To receive and evaluate or, on its own initiative, develop and budget for proposed programs, plans, or projects to promote the use of mushrooms, as well as proposed programs, plans, or projects for research, consumer information, or industry information, and to make recommendations to the Secretary regarding such proposals;</P> <P>(b) To administer the provisions of this subpart in accordance with its terms and provisions;</P> <P>(c) To appoint or employ such individuals as it may deem necessary, define the duties, and determine the compensation of such individuals;</P> <P>(d) To make rules and regulations to effectuate the terms and provisions of this subpart;</P> <P>(e) To receive, investigate, and report to the Secretary for action complaints of violations of the provisions of this subpart;</P> <P>(f) To disseminate information to producers, importers, first handlers, or industry organizations through programs or by direct contact using the public postal system or other systems;</P> <P>(g) To select committees and subcommittees of Council members, including an executive committee whose powers and membership shall be determined by the Council, subject to the approval of the Secretary, and to adopt such bylaws and other rules for the conduct of its business as it may deem advisable;</P> <P>(h) To establish committees which may include individuals other than Council members, and pay the necessary and reasonable expenses and fees for the members of such committees;</P> <P>(i) To recommend to the Secretary amendments to this subpart;</P> <P>(j) With the approval of the Secretary, to enter into contracts or agreements with national, regional, or State mushroom producer organizations, or other organizations or entities, for the development and conduct <PRTPAGE P="85"/>of programs, plans, or projects authorized under § 1209.40 and with such producer organizations for other services necessary for the implementation of this subpart, and for the payment of the cost thereof with funds collected and received pursuant to this subpart. The Council shall not contract with any producer or importer for the purpose of mushroom promotion or research. The Council may lease physical facilities from a producer or importer for such promotion or research, if such an arrangement is determined to be cost effective by the Council and approved by the Secretary. Any contract or agreement shall provide that:</P> <P>(1) The contractor or agreeing party shall develop and submit to the Council a program, plan, or project together with a budget or budgets that shall show the estimated cost to be incurred for such program, plan, or project;</P> <P>(2) Any such program, plan, or project shall become effective upon approval of the Secretary;</P> <P>(3) The contracting or agreeing party shall keep accurate records of all of its transactions and make periodic reports to the Council of activities conducted, submit accountings for funds received and expended, and make such other reports as the Secretary or the Council may require; and the Secretary may audit the records of the contracting or agreeing party periodically; and</P> <P>(4) Any subcontractor who enters into a contract with a Council contractor and who receives or otherwise uses funds allocated by the Council shall be subject to the same provisions as the contractor;</P> <P>(k) With the approval of the Secretary, to invest, pending disbursement pursuant to a program, plan, or project, funds collected through assessments provided for in § 1209.51, and any other funds received by the Council in, and only in, obligations of the United States or any agency thereof, in general obligations of any State or any political subdivision thereof, in any interest-bearing account or certificate of deposit of a bank that is a member of the Federal Reserve System, or in obligations fully guaranteed as to principal and interest by the United States;</P> <P>(l) Such other powers as may be approved by the Secretary; and</P> <P>(m) To develop and propose to the Secretary voluntary quality and grade standards for mushrooms, if the Council determines that such quality and grade standards would benefit the promotion of mushrooms.</P> </SECTION> <SECTION> <SECTNO>§ 1209.39</SECTNO> <SUBJECT>Duties.</SUBJECT> <P>The Council shall have the following duties:</P> <P>(a) To meet not less than annually, and to organize and select from among its members a chairperson and such other officers as may be necessary;</P> <P>(b) To evaluate or develop, and submit to the Secretary for approval, promotion, research, consumer information, and industry information programs, plans, or projects;</P> <P>(c) To prepare for each fiscal year, and submit to the Secretary for approval at least 60 days prior to the beginning of each fiscal year, a budget of its anticipated expenses and disbursements in the administration of this subpart, as provided in § 2109.50.</P> <P>(d) To maintain such books and records, which shall be available to the Secretary for inspection and audit, and to prepare and submit such reports from time to time to the Secretary, as the Secretary may prescribe, and to make appropriate accounting with respect to the receipt and disbursement of all funds entrusted to it;</P> <P>(e) To prepare and make public, at least annually, a report of its activities carried out, and an accounting for funds received and expended;</P> <P>(f) To cause its financial statements to be prepared in conformity with generally accepted accounting principles and to be audited by an independent certified public accountant in accordance with generally accepted auditing standards at least once each fiscal year and at such other times as the Secretary may request, and submit a copy of each such audit to the Secretary;</P> <P>(g) To give the Secretary the same notice of meetings of the Council as is given to members in order that the Secretary, or a representative of the Secretary, may attend such meetings;</P> <P>(h) To submit to the Secretary such information as may be requested pursuant to this subpart;</P> <P>(i) To keep minutes, books, and records that clearly reflect all the acts <PRTPAGE P="86"/>and transactions of the Council. Minutes of each Council meeting shall be promptly reported to the Secretary;</P> <P>(j) To act as intermediary between the Secretary and any producer or importer;</P> <P>(k) To follow the Department's equal opportunity/civil rights policies; and</P> <P>(l) To work to achieve an effective, continuous, and coordinated program of promotion, research, consumer information, and industry information designed to strengthen the mushroom industry's position in the marketplace, maintain and expand existing markets and uses for mushrooms, develop new markets and uses for mushrooms, and to carry out programs, plans, and projects designed to provide maximum benefits to the mushroom industry.</P> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Promotion, Research, Consumer Information, and Industry Information</HD> <SECTION> <SECTNO>§ 1209.40</SECTNO> <SUBJECT>Programs, plans, and projects.</SUBJECT> <P>(a) The Council shall receive and evaluate, or on its own initiative develop, and submit to the Secretary for approval any program, plan, or project authorized under this subpart. Such programs, plans, or projects shall provide for:</P> <P>(1) The establishment, issuance, effectuation, and administration of appropriate programs for promotion, research, consumer information, and industry information with respect to mushrooms; and</P> <P>(2) The establishment and conduct of research with respect to the sale, distribution, marketing, and use of mushrooms and mushroom products, and the creation of new products thereof, to the end that marketing and use of mushrooms may be encouraged, expanded, improved or made more acceptable. However, as prescribed by the Act, nothing in this subpart may be construed to authorize mandatory requirements for quality control, grade standards, supply management programs, or other programs that would control production or otherwise limit the right of individual producers to produce mushrooms.</P> <P>(b) No program, plan, or project shall be implemented prior to its approval by the Secretary. Once a program, plan, or project is so approved, the Council shall take appropriate steps to implement it.</P> <P>(c) Each programs, plan, or project implemented under this subpart shall be reviewed or evaluated periodically by the Council to ensure that it contributes to an effective program of promotion, research, consumer information, or industry information. If it is found by the Council that any such program, plan, or project does not contribute to an effective program of promotion, research, consumer information, or industry information, then the Council shall terminate such program, plan, or project.</P> <P>(d) In carrying out any program, plan, or project, no reference to a brand name, trade name, or State or regional identification of any mushrooms or mushroom product shall be made. In addition, no program, plan, or project shall make use of unfair or deceptive acts or practices with respect to the quality, value, or use of any competing product.</P> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Expenses and Assessments</HD> <SECTION> <SECTNO>§ 1209.50</SECTNO> <SUBJECT>Budget and expenses.</SUBJECT> <P>(a)(1) At least 60 days prior to the beginning of each fiscal year, and as may be necessary thereafter, the Council shall prepare and submit to the Secretary a budget for the fiscal year covering its anticipated expenses and disbursements in administering this subpart. Each such budget shall include:</P> <P>(i) A statement of objectives and strategy for each program, plan, or project;</P> <P>(ii) A summary of anticipated revenue, with comparative data for at least one preceding year;</P> <P>(iii) A summary of proposed expenditures for each program, plan, or project; and</P> <P>(iv) Staff and administrative expense breakdowns, with comparative data for at least one preceding year.</P> <FP>Each budget shall include a rate of assessment for such fiscal year calculated, subject to § 1209.51(b), to provide adequate funds to defray its proposed expenditures and to provide for a reserve as set forth in paragraph (f). <PRTPAGE P="87"/>The Council may change such rate at any time, as provided in § 1209.51(b)(5).</FP> <P>(2)(i) Subject to paragraph (a)(2)(ii), any amendment or addition to an approved budget must be approved by the Secretary, including shifting of funds from one program, plan, or project to another.</P> <P>(ii) Shifts of funds which do not cause an increase in the Council's approved budget and which are consistent with governing bylaws need not have prior approval by the Secretary.</P> <P>(b) The Council is authorized to incur such expenses, including provision for a reasonable reserve, as the Secretary finds are reasonable and likely to be incurred by the Council for its maintenance and functioning, and to enable it to exercise its powers and perform its duties in accordance with the provisions of this subpart. Such expenses shall be paid from funds received by the Council.</P> <P>(c) The Council shall not use funds collected or received under this subpart to reimburse, defray, or make payment of expenditures incurred in developing, drafting, studying, lobbying on or promoting the legislation authorizing this subpart. Such prohibition includes reimbursement, defrayment, or payment to mushroom industry associations or organizations, producers or importers, lawyers, law firms, or consultants.</P> <P>(d) The Council may accept voluntary contributions, but these shall only be used to pay expenses incurred in the conduct of programs, plans, and projects. Such contributions shall be free from any encumbrance by the donor and the Council shall retain complete control of their use. The donor may recommend that the whole or a portion of the contribution be applied to an ongoing program, plan, or project.</P> <P>(e) The Council shall reimburse the Secretary, from funds received by the Council, for administrative costs incurred by the Secretary in implementing and administering this subpart, except for the salaries of Department employees incurred in conducting referenda.</P> <P>(f) The Council may establish an operating monetary reserve and may carry over to subsequent fiscal periods excess funds in any reserve so established, except that the funds in the reserve shall not exceed approximately one fiscal year's expenses. Such reserve funds may be used to defray any expenses authorized under this subpart.</P> <P>(g) With the approval of the Secretary, the Council may borrow money for the payment of administrative expenses, subject to the same fiscal, budget, and audit controls as other funds of the Council.</P> </SECTION> <SECTION> <SECTNO>§ 1209.51</SECTNO> <SUBJECT>Assessments.</SUBJECT> <P>(a) Any first handler initially purchasing, or otherwise placing into the current of commerce, mushrooms produced in the United States shall, in the manner as prescribed by the Council and approved by the Secretary, collect an assessment based upon the number of pounds of mushrooms marketed in the United States for the account of the producer, and remit the assessment to the Council.</P> <P>(b) The rate of assessment effective during any fiscal year shall be the rate specified in the budget for such fiscal year approved by the Secretary, except that:</P> <P>(1) The rate of assessment during the first year this subpart is in effect shall be one-quarter of one cent per pound of mushrooms marketed, or the equivalent thereof.</P> <P>(2) The rate of assessment during the second year this subpart is in effect shall not exceed one-third of one cent per pound of mushrooms marketed, or the equivalent thereof.</P> <P>(3) The rate of assessment during the third year this subpart is in effect shall not exceed one-half of one cent per pound of mushrooms marketed, or the equivalent thereof.</P> <P>(4) The rate of assessment during each of the fourth and following years this subpart is in effect shall not exceed one cent per pound of mushrooms marketed, or the equivalent thereof.</P> <P>(5) The Council may change the rate of assessment for a fiscal year at any time with the approval of the Secretary as necessary to reflect changed circumstances, except that any such changed rate may not exceed the level of assessment specified in paragraphs (b)(1), (2), (3), or (4), whichever is applicable.<PRTPAGE P="88"/> </P> <P>(c) Any person marketing mushrooms of that person's own production to consumers in the United States, either directly or through retail or wholesale outlets, shall be considered a first handler and shall remit to the Council an assessment on such mushrooms at the rate per-pound then in effect, and in such form and manner prescribed by the Council.</P> <P>(d) Only one assessment shall be paid on each unit of mushrooms marketed.</P> <P>(e)(1) Each importer of mushrooms shall pay an assessment to the Council on mushrooms imported for marketing in the United States, through the U.S. Customs Service or in such other manner as may be established by rules and regulations approved by the Secretary.</P> <P>(2) The per-pound assessment rate for imported mushrooms shall be the same as the rate provided for mushrooms produced in the United States.</P> <P>(3) The import assessment shall be uniformly applied to imported mushrooms that are identified by the number, 0709.51.0000, in the Harmonized Tariff Schedule of the United States or any other number used to identify fresh mushrooms.</P> <P>(4) The assessments due on imported mushrooms shall be paid when the mushrooms are entered or withdrawn for consumption in the United States, or at such other time as may be established by rules and regulations prescribed by the Council and approved by the Secretary and under such procedures as are provided in such rules and regulations.</P> <P>(5) Only one assessment shall be paid on each unit of mushrooms imported.</P> <P>(f) The collection of assessments under this section shall commence on all mushrooms marketed in or imported into the United States on or after the date established by the Secretary, and shall continue until terminated by the Secretary. If the Council is not constituted on the date the first assessments are to be collected, the Secretary shall have the authority to receive assessments on behalf of the Council and may hold such assessments until the Council is constituted, then remit such assessments to the Council.</P> <P>(g)(1) Each person responsible for remitting assessments under paragraphs (a), (c), or (e) shall remit the amounts due from assessments to the Council on a monthly basis no later than the fifteenth day of the month following the month in which the mushrooms were marketed, in such manner as prescribed by the Council.</P> <P>(2)(i) A late payment charge shall be imposed on any person that fails to remit to the Council the total amount for which the person is liable on or before the payment due date established under this section. The amount of the late payment charge shall be prescribed in rules and regulations as approved by the Secretary.</P> <P>(ii) An additional charge shall be imposed on any person subject to a late payment charge, in the form of interest on the outstanding portion of any amount for which the person is liable. The rate of interest shall be prescribed in rules and regulations as approved by the Secretary.</P> <P>(3) Any assessment that is determined to be owing at a date later than the payment due established under this section, due to a person's failure to submit a report to the Council by the payment due date, shall be considered to have been payable on the payment due date. Under such a situation, paragraphs (g)(2)(i) and (g)(2)(ii) of this section shall be applicable.</P> <P>(h) The Council, with the approval of the Secretary, may enter into agreements authorizing other organizations to collect assessments in its behalf. Any such organization shall be required to maintain the confidentiality of such information as is required by the Council for collection purposes. Any reimbursement by the Council for such services shall be based on reasonable charges for services rendered.</P> <P>(i) The Council is hereby authorized to accept advance payment of assessments for the fiscal year by any person, that shall be credited toward any amount for which such person may become liable. The Council shall not be obligated to pay interest on any advance payment.</P> </SECTION> <SECTION> <SECTNO>§ 1209.52</SECTNO> <SUBJECT>Exemption from assessment.</SUBJECT> <P>(a) Persons that produce or import, on average, 500,000 pounds or less of mushrooms annually shall be exempted from assessment.<PRTPAGE P="89"/> </P> <P>(b) To claim such exemption, such persons shall apply to the Council, in the form and manner prescribed in the rules and regulations.</P> <P>(c) Mushrooms produced in the United States that are exported are exempt from assessment and are subject to such safeguards as prescribed in rules and regulations to prevent improper use of this exemption.</P> <P>(d) Domestic and imported mushrooms used for processing are exempt from assessment and are subject to such safeguards as prescribed in rules and regulations to prevent improper use of this exemption.</P> </SECTION> <SECTION> <SECTNO>§ 1209.53</SECTNO> <SUBJECT>Influencing governmental action.</SUBJECT> <P>No funds received by the Council under this subpart shall in any manner be used for the purpose of influencing legislation or governmental policy or action, except to develop and recommend to the Secretary amendments to this subpart, and to submit to the Secretary proposed voluntary grade and quality standards for mushrooms.</P> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Reports, Books and Records</HD> <SECTION> <SECTNO>§ 1209.60</SECTNO> <SUBJECT>Reports.</SUBJECT> <P>(a) Each producer marketing mushrooms of that person's own production directly to consumers, and each first handler responsible for the collection of assessments under § 1209.51(a) shall be required to report monthly to the Council, on a form provided by the Council, such information as may be required under this subpart or any rules and regulations issued thereunder. Such information shall include, but not be limited to, the following:</P> <P>(1) The first handler's name, address, and telephone number;</P> <P>(2) Date of report, which is also the date of payment to the Council;</P> <P>(3) Period covered by the report;</P> <P>(4) The number of pounds of mushrooms purchased, initially transferred, or that in any other manner are subject to the collection of assessments, and a copy of a certificate of exemption, claiming exemption under § 1209.52 from those who claim such exemptions;</P> <P>(5) The amount of assessments remitted; and</P> <P>(6) The basis, if necessary, to show why the remittance is less than the number of pounds of mushrooms determined under paragraph (a)(4) multiplied by the applicable assessment rate.</P> <P>(b) If determined necessary by the Council and approved by the Secretary, each importer shall file with the Council periodic reports, on a form provided by the Council, containing at least the following information:</P> <P>(1) The importer's name, address, and telephone number;</P> <P>(2) The quantity of mushrooms entered or withdrawn for consumption in the United States during the period covered by the report; and</P> <P>(3) The amount of assessments paid to the U.S. Customs Service at the time of such entry or withdrawal.</P> <P>(c) The words <E T="03">final report</E> shall be shown on the last report at the end of each fiscal year.</P> </SECTION> <SECTION> <SECTNO>§ 1209.61</SECTNO> <SUBJECT>Books and records.</SUBJECT> <P>Each persons who is subject to this subpart shall maintain and make available for inspection by the Council or the Secretary such books and records as are deemed necessary by the Council, with the approval of the Secretary, to carry out the provisions of this subpart and any rules and regulations issued hereunder, including such books and records as are necessary to verify any reports required. Such books and records shall be retained for at least two years beyond the fiscal year of their applicability.</P> </SECTION> <SECTION> <SECTNO>§ 1209.62</SECTNO> <SUBJECT>Confidential treatment.</SUBJECT> <P>All information obtained from books, records, or reports under the Act, this subpart, and the rules and regulations issued thereunder shall be kept confidential by all persons, including all employees and former employees of the Council, all officers and employees and former officers and employees of the Department, and all officers and employees and former officers and employees of contracting and subcontracting agencies or agreeing parties having access to such information. Such information shall not be available to Council members, producers, importers, or first handlers. Only those persons having a specific need for such <PRTPAGE P="90"/>information to effectively administer the provisions of this subpart shall have access to such information. Only such information so obtained as the Secretary deems relevant shall be disclosed by them, and then only in a suit or administrative hearing brought at the direction, or on the request, of the Secretary, or to which the Secretary or any officer of the United States is a party, and involving this subpart. Nothing in this section shall be deemed to prohibit:</P> <P>(a) The issuance of general statements based upon the reports of the number of persons subject to this subpart or statistical data collected therefrom, which statements do not identify the information furnished by any person; and</P> <P>(b) The publication, by direction of the Secretary, of the name of any person who has been adjudged to have violated this subpart, together with a statement of the particular provisions of this subpart violated by such person.</P> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Miscellaneous</HD> <SECTION> <SECTNO>§ 1209.70</SECTNO> <SUBJECT>Right of the Secretary.</SUBJECT> <P>All fiscal matters, programs, plans, or projects, rules or regulations, reports, or other substantive actions proposed and prepared by the Council shall be submitted to the Secretary for approval.</P> </SECTION> <SECTION> <SECTNO>§ 1209.71</SECTNO> <SUBJECT>Suspension or termination.</SUBJECT> <P>(a) Whenever the Secretary finds that this subpart or any provision thereof obstructs or does not tend to effectuate the declared policy of the Act, the Secretary shall terminate or suspend the operation of this subpart or such provision thereof.</P> <P>(b)(1) Five years after the date on which this subpart becomes effective, the Secretary shall conduct a referendum among producers and importers to determine whether they favor continuation, termination, or suspension of this subpart.</P> <P>(2) Effective beginning three years after the date on which this subpart becomes effective, the Secretary, on request of a representative group comprising 30 percent or more of the number of mushroom producers and importers, may conduct a referendum to determine whether producers and importers favor termination or suspension of this subpart.</P> <P>(3) Whenever the Secretary determines that suspension or termination of this subpart is favored by a majority of the mushroom producers and importers voting in a referendum under paragraphs (b) (1) or (2) who, during a representative period determined by the Secretary, have been engaged in producing and importing mushrooms and who, on average, annually produced and imported more than 50 percent of the volume of mushrooms produced and imported by all those producers and importers voting in the referendum, the Secretary shall:</P> <P>(i) Suspend or terminate, as appropriate, collection of assessments within six months after making such determination; and</P> <P>(ii) Suspend or terminate, as appropriate, all activities under this subpart in an orderly manner as soon as practicable.</P> <P>(4) Referenda conducted under this subsection shall be conducted in such manner as the Secretary may prescribe.</P> </SECTION> <SECTION> <SECTNO>§ 1209.72</SECTNO> <SUBJECT>Proceedings after termination.</SUBJECT> <P>(a) Upon the termination of this subpart, the Council shall recommend not more than five of its members to the Secretary to serve as trustees for the purpose of liquidating the affairs of the Council. Such persons, upon designation by the Secretary, shall become trustees of all the funds and property owned, in the possession of, or under the control of the Council, including any claims unpaid or property not delivered, or any other claim existing at the time of such termination.</P> <P>(b) The trustees shall:</P> <P>(1) Continue in such capacity until discharged by the Secretary;</P> <P>(2) Carry out the obligations of the Council under any contract or agreement entered into by it under this subpart;</P> <P>(3) From time to time account for all receipts and disbursements, and deliver all property on hand, together with all books and records of the Council and of the trustees, to such persons as the Secretary may direct; and<PRTPAGE P="91"/> </P> <P>(4) Upon the request of the Secretary, execute such assignments or other instruments necessary or appropriate to vest in such persons full title and right to all of the funds, property, and claims vested in the Council or the trustees under this subpart.</P> <P>(c) Any person to whom funds, property, or claims have been transferred or delivered under this subpart shall be subject to the same obligations imposed upon the Council and upon the trustees.</P> <P>(d) Any residual funds not required to defray the necessary expenses of liquidation shall be turned over to the Secretary to be used, to the extent practicable, in the interest of continuing one or more of the promotion, research, consumer information, or industry information programs, plans, or projects authorized under this subpart.</P> </SECTION> <SECTION> <SECTNO>§ 1209.73</SECTNO> <SUBJECT>Effect of termination or amendment.</SUBJECT> <P>Unless otherwise expressly provided by the Secretary, the termination of this subpart or of any rule and regulation issued under this subpart, or the issuance of any amendment to such provisions, shall not:</P> <P>(a) Affect or waive any right, duty, obligation, or liability that shall have arisen or may hereafter arise in connection with any provision of this subpart or any such rules or regulations;</P> <P>(b) Release or extinguish any violation of this subpart or any such rules or regulations; or</P> <P>(c) Affect or impair any rights or remedies of the United States, the Secretary, or any person with respect to any such violation.</P> </SECTION> <SECTION> <SECTNO>§ 1209.74</SECTNO> <SUBJECT>Personal liability.</SUBJECT> <P>No member or employee of the Council shall be held personally responsible, either individually or jointly, in any way whatsoever, to any person for errors in judgment, mistakes, or other acts of either commission or omission of such member or employee under this subpart, except for acts of dishonesty or willful misconduct.</P> </SECTION> <SECTION> <SECTNO>§ 1209.75</SECTNO> <SUBJECT>Patents, copyrights, inventions, publications, and product formulations.</SUBJECT> <P>Any patents, copyrights, inventions, publications, or product formulations developed through the use of funds received by the Council under this subpart shall be the property of the United States Government as represented by the Council and shall, along with any rents, royalties, residual payments, or other income from the rental, sale, leasing, franchising, or other uses of such patents, copyrights, inventions, publications, or product formulations inure to the benefit of the Council and be considered income subject to the same fiscal, budget, and audit controls as other funds of the Council. Upon termination of this subpart, § 1209.72 shall apply to determine disposition of all such property.</P> </SECTION> <SECTION> <SECTNO>§ 1209.76</SECTNO> <SUBJECT>Amendments.</SUBJECT> <P>Amendments to this subpart may be proposed, from time to time, by the Council or by any interested person affected by the provisions of the Act, including the Secretary.</P> </SECTION> <SECTION> <SECTNO>§ 1209.77</SECTNO> <SUBJECT>Separability.</SUBJECT> <P>If any provision of this subpart is declared invalid, or the applicability thereof to any person or circumstances is held invalid, the validity of the remainder of this subpart or the applicability thereof to other persons or circumstances shall not be affected thereby.</P> </SECTION> </SUBJGRP> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart B—Rules and Regulations</HD> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>58 FR 8197, Feb. 11, 1993, unless otherwise noted.</P> </SOURCE> <SUBJGRP> <HD SOURCE="HED">Definitions</HD> <SECTION> <SECTNO>§ 1209.200</SECTNO> <SUBJECT>Terms defined.</SUBJECT> <P>Unless otherwise defined in this subpart, the definitions of terms used in this subpart shall have the same meaning as the definitions in Subpart A—Mushroom Promotion, Research, and Consumer Information Order of this part.</P> </SECTION> </SUBJGRP> <SUBJGRP> <PRTPAGE P="92"/> <HD SOURCE="HED">Nomination Procedures</HD> <SECTION> <SECTNO>§ 1209.230</SECTNO> <SUBJECT>Reallocation of council members.</SUBJECT> <P>Pursuant to § 1209.30 of the Order, the regions and their number of members on the Council shall be as follows:</P> <P> <E T="03">Region 1:</E> Colorado, Connecticut, Illinois, Indiana, Iowa, Kansas, Kentucky, Maine, Massachusetts, Michigan, Minnesota, Missouri, Montana, Nebraska, New York, New Hampshire, North Dakota, Ohio, Rhode Island, South Dakota, Vermont, Wisconsin, and Wyoming—1 Producer Member.</P> <P> <E T="03">Region 2:</E> Delaware, Maryland, New Jersey, Pennsylvania, the District of Columbia, West Virginia, and Virginia—3 Producer Members.</P> <P> <E T="03">Region 3:</E> Alaska, Arizona, California, Hawaii, Idaho, Nevada, Oregon, Utah, and Washington—2 Producer Members.</P> <P> <E T="03">Region 4:</E> Alabama, Arkansas, Florida, Georgia, Louisiana, Mississippi, New Mexico, North Carolina, Oklahoma, the Commonwealth of Puerto Rico, South Carolina, Tennessee, and Texas—2 Producer Members.</P> <P> <E T="03">Region 5:</E>—1 Importer Member.</P> <CITA>[67 FR 46579, July 16, 2002]</CITA> </SECTION> <SECTION> <SECTNO>§ 1209.231</SECTNO> <SUBJECT>Nominations.</SUBJECT> <P>Nominations shall be made at regional caucuses of producers or importers, or by mail ballot in accordance with the procedures prescribed in § 1209.31 of this part. Proxy voting by producers and importers shall not be permitted at a regional caucus or in a mail ballot. Each regional caucus and mail ballot shall be scheduled so as to ensure that the nominations for each position that will be open at the beginning of the following year are received by the Secretary by August 1, or such other date approved by the Secretary.</P> </SECTION> <SECTION> <SECTNO>§ 1209.233</SECTNO> <SUBJECT>Regional caucus chairpersons.</SUBJECT> <P>(a) Regional caucus chairpersons shall be elected by a simple majority vote of eligible voters in attendance. Such elections shall be coordinated by the Council, except for the initial elections, which shall be coordinated by a representative of the Secretary.</P> <P>(b) Regional caucus chairpersons will coordinate the entire nomination process. In conducting the nominations process, each regional caucus chairperson shall ensure that:</P> <P>(1) Voting for producer nominees is limited to producers, and voting for importer nominees is limited to importers; and</P> <P>(2) Producer candidates for nomination are producers, and importer candidates for nomination are importers.</P> <P>(c) Within 14 days after completion of each regional caucus, each chairperson shall provide the Secretary with the following information:</P> <P>(1) The identification of that region's two nominees for each open position on the Council; and</P> <P>(2) A typed copy of the regional caucus's minutes.</P> <P>(d) The chairperson of each regional caucus shall provide nominees with qualification statements and other specified information. Each nominee will be contacted by the chairperson and asked to forward such completed documentation to the Council within 14 days after completion of the regional caucus, except for the initial nominees, which shall be asked to forward such completed documentation to the Secretary.</P> <P>(e) The tenure of the chairperson shall only be for the duration of the regional caucus and the preparation of required documentation.</P> </SECTION> <SECTION> <SECTNO>§ 1209.235</SECTNO> <SUBJECT>Mail balloting.</SUBJECT> <P>(a) After the initial regional caucuses, the Council may conduct nominations of individuals as candidates for appointment to the Council by mail ballot in lieu of a regional caucus.</P> <P>(b)(1) In the event of a mail ballot, all qualified individuals in a region interested in serving as a member on the Council or persons who are interested in nominating an individual to serve on the Council shall submit to the Council in writing such information as name, mailing address, number of pounds of mushrooms produced or imported, or such other information as may be required, in order to place such individual on the ballot.</P> <P>(2) Notice of mail balloting to nominate candidates for a position on the Council shall be publicized by the Council to producers or importers in <PRTPAGE P="93"/>the region involved, and to the Secretary, at least 120 days before the region's nominee ballot is issued.</P> <P>(3) In proposing nominees for inclusion on a mail ballot, proposed nominations must be received by the Council at least 30 days before the region's nominee ballot is issued.</P> <P>(c) Once proposed nominations have been submitted from the applicable region, the Council shall cause each proposed nomination, if the individual qualifies, to be placed on the region's nominee ballot. The Council then shall mail a ballot to each known producer or importer within the region.</P> <P>(d) Distribution of ballots shall be announced by press releases, furnishing pertinent information on balloting, issued by the Council through newspapers and other publications having general circulation among producers in the mushroom producing areas involved or among mushroom importers.</P> <P>(e) Each producer or importer shall cast a ballot for each open position on the Council assigned to the region in accordance with the procedures prescribed in § 1209.31 of this part. The completed ballot must be returned to the Council or its designee within 30 days after the ballot is issued.</P> <P>(f) Within 45 days after a mail ballot is issued, the Council shall validate the ballots cast, tabulate the votes, and provide the Secretary with the results of the vote and the identification of the region's two nominees for each open position on the Council.</P> <P>(g) The Council shall provide nominees with qualification statements and other specified information. Each nominee selected in the mail ballot will be contacted by the Council and asked to forward such completed documentation to the Council within 14 days of such notification.</P> </SECTION> <SECTION> <SECTNO>§ 1209.237</SECTNO> <SUBJECT>Appointment.</SUBJECT> <P>If an employee, partner, officer, or shareholder of a producer or importer is a current member of the Council, no nominee who is also an employee, partner, officer, or shareholder of such producer or importer shall be appointed to the Council. A Council member shall be disqualified from serving on the Council if such individual ceases to be affiliated with a producer or importer within the region the Council member represents.</P> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">General</HD> <SECTION> <SECTNO>§ 1209.239</SECTNO> <SUBJECT>Financial statements.</SUBJECT> <P>(a) As requested by the Secretary, the Council shall prepare and submit financial statements to the Secretary on a periodic basis. Each such financial statement shall include, but not be limited to, a balance sheet, income statement, and expense budget. The expense budget shall show expenditures during the time period covered by the report, year-to-date expenditures, and the unexpended budget.</P> <P>(b) Each financial statement shall be submitted to the Secretary within 30 days after the end of the time period to which it applies.</P> <P>(c) The Council shall submit annually to the Secretary an annual financial statement within 90 days after the end of the fiscal year to which it applies.</P> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Assessments</HD> <SECTION> <SECTNO>§ 1209.251</SECTNO> <SUBJECT>Payment of assessments.</SUBJECT> <P>(a) Each first handler responsible for collecting assessments on domestic mushrooms shall collect the amounts assessed and remit such amounts to the Council on a monthly basis not later than the fifteenth day of the month following the month in which the mushrooms were marketed to or through the first handler.</P> <P>(b) Each producer responsible for paying any assessment amount on the producer's own mushrooms shall remit such amount to the Council on a monthly basis not later than the fifteenth day of the month following the month in which the mushrooms were marketed by the producer.</P> <P>(c) Each importer shall be responsible for remittance to the Council of any assessment amount not collected by the U.S. Customs Service at the time of entry or withdrawal for consumption into the United States. Any such assessment amount shall be remitted to the Council on a monthly basis not later than the fifteenth day of the month following the month of entry or withdrawal for consumption into the United States. Any person who imports mushrooms, as principal or as <PRTPAGE P="94"/>an agent, broker, or consignee for any person who produces mushrooms outside the United States for marketing in the United States shall be considered an importer.</P> <P>(d) Remittance shall be by check, draft, or money order payable to the Mushroom Council, and shall be accompanied by a report, on a form provided by the Council.</P> <P>(e) A late payment charge shall be imposed on any first handler or importer who fails to make timely remittance to the Council of the total assessment amount for which the person is liable. Such late payment charge shall be imposed on any assessments not received by the last day of the month following the month in which the mushrooms involved were marketed or, in the case of imports, not collected by the U.S. Customs Service at the time of entry or withdrawal for consumption into the United States. This one-time late payment charge shall be 10 percent of the assessments due before interest charges have accrued. The late payment charge will not be applied to any late payments postmarked within 15 days after the end of the month such assessments are due.</P> <P>(f) In addition to the late payment charge, interest shall be charged at a rate of one and one-half percent per month on the outstanding balance, including the late payment charge and any accrued interest, of any account that remains delinquent beyond the last day of the second month following the month the mushrooms involved were marketed. However, first handlers paying their assessments, in accordance with paragraph (h)(2) of this section, will not be subject to the one and one-half percent per month interest under this paragraph until the last day of the second month after such assessments are due under paragraph (h)(2) of this section. In the case of imports, such a rate of interest will be charged to any account that remains delinquent on any assessments not collected by the U.S. Customs Service at the time of entry or withdrawal for consumption into the United States. Such a rate of interest will continue to be charged monthly until the outstanding balance is paid to the Council.</P> <P>(g) Any assessment determined by the Council at a date later than prescribed by this section, because of a person's failure to submit a report to the Council when due, shall be considered to have been payable by the date it would have been due if the report had been filed on time. A late payment charge and monthly interest charges on the outstanding balance shall be applicable to such unpaid assessment in accordance with paragraphs (e) and (f) of this section.</P> <P>(h) In lieu of the monthly assessment payment and reporting requirements of § 1209.260 of this subpart and § 1209.60 of this part, the Council may permit a first handler to make advance payment of the total estimated assessment amount due to the Council for the ensuing fiscal year, or portion thereof, prior to the actual determination of assessable mushrooms.</P> <P>(1) Each person shall provide an initial report estimating assessable mushrooms. The Council may request additional information on such estimate.</P> <P>(2) Each person shall provide a final report of actual marketings during the period involved and remit any unpaid assessments not later than the fifteenth day of the month following the end of the period covered.</P> <P>(3) Any person whose prepayment exceeds the amount paid shall be reimbursed for the amount of overpayment. The Council shall not, in any case, be obligated to pay interest on any advance payment.</P> </SECTION> <SECTION> <SECTNO>§ 1209.252</SECTNO> <SUBJECT>Exemption procedures.</SUBJECT> <P>(a) Any person who produces or imports, on average, 500,000 pounds or less of mushrooms annually and who desires to claim an exemption from assessments during a fiscal year as provided in § 1209.52 of this part shall apply to the Council, on a form provided by the Council, for a certificate of exemption. Such persons shall certify that their production or importation of mushrooms shall not exceed 500,000 pounds, on average, for the fiscal year for which the exemption is claimed. Pursuant to this section, the term <E T="03">on average</E> shall be calculated by averaging a person's estimated production or importation for the fiscal year for which an exemption is claimed with <PRTPAGE P="95"/>such person's production or importation in the preceding fiscal year.</P> <P>(b) On receipt of an application, the Council shall determine whether an exemption may be granted. The Council then will issue, if deemed appropriate, a certificate of exemption to each person that is eligible to receive one. Each person who is exempt from assessment must provide an exemption number to the first handler in order not to be subject to collection of an assessment on mushrooms. First handlers and importers, except as otherwise authorized by the Council, shall maintain records showing the exemptee's name and address along with the exemption number assigned by the Council. Importers who are exempt from assessment shall be eligible for reimbursement of assessments collected by the U.S. Customs Service and shall apply to the Council for reimbursement of such assessments paid.</P> <P>(c) Any person who desires to renew the exemption from assessments for a subsequent fiscal year shall reapply to the Council, on a form provided by the Council, for a certificate of exemption.</P> <P>(d) The Council may require persons receiving an exemption from assessments to provide to the Council reports on the disposition of exempt mushrooms.</P> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Reports</HD> <SECTION> <SECTNO>§ 1209.260</SECTNO> <SUBJECT>Reports.</SUBJECT> <P>Each first handler shall be required to report monthly to the Council such information as may be required under § 1209.60(a) of this part. In addition, each first handler shall be required to provide the tax identification number or social security number of each producer the first handler has dealt with during the time period covered by the report.</P> <CITA>[58 FR 8197, Feb. 11, 1993, as amended at 60 FR 13614, Mar. 14, 1995]</CITA> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Miscellaneous</HD> <SECTION> <SECTNO>§ 1209.280</SECTNO> <SUBJECT>OMB control numbers.</SUBJECT> <P>The control number assigned to the information collection requirements by the Office of Management and Budget pursuant to the Paperwork Reduction Act of 1980, 44 U.S.C. 3501 <E T="03">et seq.</E> is OMB control number 0581-0093, except for the Council nominee background statement form which is assigned OMB control number 0505-0001.</P> </SECTION> </SUBJGRP> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart C—Procedure for the Conduct of Referenda in Connection With the Mushroom Promotion, Research, and Consumer Information Order</HD> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>62 FR 66975, Dec. 23, 1997, unless otherwise noted.</P> </SOURCE> <SECTION> <SECTNO>§ 1209.300</SECTNO> <SUBJECT>General.</SUBJECT> <P>A referendum to determine whether eligible producers and importers favor continuation of the Mushroom Promotion, Research, and Consumer Information Order shall be conducted in accordance with these procedures.</P> </SECTION> <SECTION> <SECTNO>§ 1209.301</SECTNO> <SUBJECT>Definitions.</SUBJECT> <P>Unless otherwise defined below, the definition of terms used in these procedures shall have the same meaning as the definitions in the Order.</P> <P>(a) <E T="03">Administrator</E> means the Administrator of the Agricultural Marketing Service, with power to redelegate, or any officer or employee of the Department to whom authority has been delegated or may hereafter be delegated to act in the Administrator's stead.</P> <P>(b) <E T="03">Order</E> means the Mushroom Promotion, Research, and Consumer Information Order, including an amendment to the Order.</P> <P>(c) <E T="03">Referendum agent</E> or agent means the individual or individuals designated by the Secretary to conduct the referendum.</P> <P>(d) <E T="03">Representative period</E> means the period designated by the Secretary.</P> <P>(e) <E T="03">Person</E> means any individual, group of individuals, partnership, corporation, association, cooperative, or any other legal entity. For the purpose of this definition, the term “partnership” includes, but is not limited to:</P> <P>(1) A husband and wife who have title to, or leasehold interest in, mushroom production facilities and equipment as tenants in common, joint tenants, tenants by the entirety, or, under community property laws, as community property, and<PRTPAGE P="96"/> </P> <P>(2) So-called “joint ventures”, wherein one or more parties to the agreement, informal or otherwise, contributed capital and others contributed labor, management, equipment, or other services, or any variation of such contributions by two or more parties so that it results in the production or importation of fresh mushrooms and the authority to transfer title to the mushrooms so produced or imported.</P> <P>(f) <E T="03">Eligible producer</E> means any person or entity defined as a producer who produces, on average, over 500,000 pounds annually of fresh mushrooms during the representative period and who:</P> <P>(1) Owns or shares in the ownership of mushroom production facilities and equipment resulting in the ownership of the mushrooms produced;</P> <P>(2) Rents mushroom production facilities and equipment resulting in the ownership of all or a portion of the mushrooms produced;</P> <P>(3) Owns mushroom production facilities and equipment but does not manage them and, as compensation, obtains the ownership of a portion of the mushrooms produced; or</P> <P>(4) Is a party in a landlord-tenant relationship or a divided ownership arrangement involving totally independent entities cooperating only to produce mushrooms who share the risk of loss and receive a share of the mushrooms produced. No other acquisition of legal title to mushrooms shall be deemed to result in persons becoming eligible producers.</P> <P>(g) <E T="03">Eligible importer</E> means any person or entity defined as an importer who imports, on average, over 500,000 pounds annually of fresh mushrooms during the representative period. Importation occurs when commodities originating outside the United States are entered or withdrawn from the U.S. Customs Service for consumption in the United States. Included are persons who hold title to foreign-produced mushrooms immediately upon release by the U.S. Customs Service, as well as any persons who act on behalf of others, as agents or brokers, to secure the release of mushrooms from the U.S. Customs Service when such mushrooms are entered or withdrawn for consumption in the United States.</P> </SECTION> <SECTION> <SECTNO>§ 1209.302</SECTNO> <SUBJECT>Voting.</SUBJECT> <P>(a) Each person who is an eligible producer or importer, as defined in this subpart, at the time of the referendum and during the representative period, shall be entitled to cast only one ballot in the referendum. However, each producer in a landlord-tenant relationship or a divided ownership arrangement involving totally independent entities cooperating only to produce mushrooms, in which more than one of the parties is a producer, shall be entitled to cast one ballot in the referendum covering only such producer's share of the ownership.</P> <P>(b) Proxy voting is not authorized, but an officer or employee of an eligible corporate producer or importer, or an administrator, executor, or trustee of an eligible producing or importing entity may cast a ballot on behalf of such producer or importer entity. Any individual so voting in a referendum shall certify that such individual is an officer or employee of the eligible producer or importer, or an administrator, executor, or trustee of an eligible producing or importing entity, and that such individual has the authority to take such action. Upon request of the referendum agent, the individual shall submit adequate evidence of such authority.</P> <P>(c) Ballots are to be cast by mail or fax.</P> </SECTION> <SECTION> <SECTNO>§ 1209.303</SECTNO> <SUBJECT>Instructions.</SUBJECT> <P>The referendum agent shall conduct the referendum, in the manner herein provided, under the supervision of the Administrator. The Administrator may prescribe additional instructions, not inconsistent with the provisions hereof, to govern the procedure to be followed by the referendum agent. Such agent shall:</P> <P>(a) Determine the time of commencement and termination of the period during which ballots may be cast.</P> <P>(b) Provide ballots and related material to be used in the referendum. Ballot material shall provide for recording essential information including that needed for ascertaining:</P> <P>(1) Whether the person voting, or on whose behalf the vote is cast, is an eligible voter;<PRTPAGE P="97"/> </P> <P>(2) The total volume of mushrooms produced by the voting producer during the representative period; and</P> <P>(3) The total volume of mushrooms imported by the voting importer during the representative period.</P> <P>(c) Give reasonable advance public notice of the referendum:</P> <P>(1) By utilizing available media or public information sources, without incurring advertising expense, to publicize the dates, places, method of voting, eligibility requirements, and other pertinent information. Such sources of publicity may include, but are not limited to, print and radio; and</P> <P>(2) By such other means as the agent may deem advisable.</P> <P>(d) Mail to eligible producers and importers, whose names and addresses are known to the referendum agent, the instructions on voting, a ballot, and a summary of the terms and conditions of the Order. No person who claims to be eligible to vote shall be refused a ballot.</P> <P>(e) Collect and safeguard ballots received by fax.</P> <P>(f) At the end of the voting period, collect, open, number, and review the ballots and tabulate the results.</P> <P>(g) Prepare a report on the referendum.</P> <P>(h) Prepare an announcement of the results for the public.</P> </SECTION> <SECTION> <SECTNO>§ 1209.304</SECTNO> <SUBJECT>Subagents.</SUBJECT> <P>The referendum agent may appoint any individual or individuals deemed necessary or desirable to assist the agent in performing such agent's functions hereunder. Each individual so appointed may be authorized by the agent to perform any or all of the functions which, in the absence of such appointment, shall be performed by the agent.</P> </SECTION> <SECTION> <SECTNO>§ 1209.305</SECTNO> <SUBJECT>Ballots.</SUBJECT> <P>The referendum agent and subagents shall accept all ballots cast; but, should they, or any of them, deem that a ballot should be challenged for any reason, the agent or subagent shall endorse above their signature, on the ballot, a statement to the effect that such ballot was challenged, by whom challenged, the reasons therefore, the results of any investigations made with respect thereto, and the disposition thereof. Ballots invalid under this subpart shall not be counted.</P> </SECTION> <SECTION> <SECTNO>§ 1209.306</SECTNO> <SUBJECT>Referendum report.</SUBJECT> <P>Except as otherwise directed, the referendum agent shall prepare and submit to the Administrator a report on results of the referendum, the manner in which it was conducted, the extent and kind of public notice given, and other information pertinent to analysis of the referendum and its results.</P> </SECTION> <SECTION> <SECTNO>§ 1209.307</SECTNO> <SUBJECT>Confidential information.</SUBJECT> <P>The ballots and other information or reports that reveal, or tend to reveal, the identity or vote of any person covered under the Act shall be held confidential and shall not be disclosed.</P> </SECTION> </SUBPART> </PART> <PART> <EAR>Pt. 1210</EAR> <HD SOURCE="HED">PART 1210—WATERMELON RESEARCH AND PROMOTION PLAN</HD> <CONTENTS> <SUBPART> <HD SOURCE="HED">Subpart A—Watermelon Research and Promotion Plan</HD> <SUBJGRP> <HD SOURCE="HED">Definitions</HD> <SECHD>Sec.</SECHD> <SECTNO>1210.301</SECTNO> <SUBJECT>Secretary.</SUBJECT> <SECTNO>1210.302</SECTNO> <SUBJECT>Act.</SUBJECT> <SECTNO>1210.303</SECTNO> <SUBJECT>Plan.</SUBJECT> <SECTNO>1210.304</SECTNO> <SUBJECT>Board.</SUBJECT> <SECTNO>1210.305</SECTNO> <SUBJECT>Watermelon.</SUBJECT> <SECTNO>1210.306</SECTNO> <SUBJECT>Producer.</SUBJECT> <SECTNO>1210.307</SECTNO> <SUBJECT>Handle.</SUBJECT> <SECTNO>1210.308</SECTNO> <SUBJECT>Handler.</SUBJECT> <SECTNO>1210.309</SECTNO> <SUBJECT>Person.</SUBJECT> <SECTNO>1210.310</SECTNO> <SUBJECT>Fiscal period and marketing year.</SUBJECT> <SECTNO>1210.311</SECTNO> <SUBJECT>Programs and projects.</SUBJECT> <SECTNO>1210.312</SECTNO> <SUBJECT>Promotion.</SUBJECT> <SECTNO>1210.313</SECTNO> <SUBJECT>Research.</SUBJECT> <SECTNO>1210.314</SECTNO> <SUBJECT>Importer.</SUBJECT> <SECTNO>1210.315</SECTNO> <SUBJECT>United States.</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">National Watermelon Promotion Board</HD> <SECTNO>1210.320</SECTNO> <SUBJECT>Establishment and membership.</SUBJECT> <SECTNO>1210.321</SECTNO> <SUBJECT>Nominations and selection.</SUBJECT> <SECTNO>1210.322</SECTNO> <SUBJECT>Term of office.</SUBJECT> <SECTNO>1210.323</SECTNO> <SUBJECT>Acceptance.</SUBJECT> <SECTNO>1210.324</SECTNO> <SUBJECT>Vacancies.</SUBJECT> <SECTNO>1210.325</SECTNO> <SUBJECT>Procedure.</SUBJECT> <SECTNO>1210.326</SECTNO> <SUBJECT>Compensation and reimbursement.</SUBJECT> <SECTNO>1210.327</SECTNO> <SUBJECT>Powers.</SUBJECT> <SECTNO>1210.328</SECTNO> <SUBJECT>Duties.</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Research and Promotion</HD> <SECTNO>1210.330</SECTNO> <SUBJECT>Policy and objective.</SUBJECT> <SECTNO>1210.331</SECTNO> <SUBJECT>Programs and projects.</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Expenses and Assessments</HD> <SECTNO>1210.340</SECTNO> <SUBJECT>Budget and expenses.<PRTPAGE P="98"/> </SUBJECT> <SECTNO>1210.341</SECTNO> <SUBJECT>Assessments.</SUBJECT> <SECTNO>1210.342</SECTNO> <SUBJECT>Exemption from assessment.</SUBJECT> <SECTNO>1210.343</SECTNO> <SUBJECT>[Reserved]</SUBJECT> <SECTNO>1210.344</SECTNO> <SUBJECT>Operating reserve.</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Reports, Books, and Records</HD> <SECTNO>1210.350</SECTNO> <SUBJECT>Reports.</SUBJECT> <SECTNO>1210.351</SECTNO> <SUBJECT>Books and records.</SUBJECT> <SECTNO>1210.352</SECTNO> <SUBJECT>Confidential treatment.</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Miscellaneous</HD> <SECTNO>1210.360</SECTNO> <SUBJECT>Right of the Secretary.</SUBJECT> <SECTNO>1210.361</SECTNO> <SUBJECT>Personal liability.</SUBJECT> <SECTNO>1210.362</SECTNO> <SUBJECT>Influencing government action.</SUBJECT> <SECTNO>1210.363</SECTNO> <SUBJECT>Suspension or termination.</SUBJECT> <SECTNO>1210.364</SECTNO> <SUBJECT>Proceedings after termination.</SUBJECT> <SECTNO>1210.365</SECTNO> <SUBJECT>Effect of termination or amendment.</SUBJECT> <SECTNO>1210.366</SECTNO> <SUBJECT>Separability.</SUBJECT> <SECTNO>1210.367</SECTNO> <SUBJECT>Patents, copyrights, inventions, and publications.</SUBJECT> </SUBJGRP> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart B—Nominating Procedures</HD> <SUBJGRP> <HD SOURCE="HED">Producer and Handler Members</HD> <SECTNO>1210.400</SECTNO> <SUBJECT>Terms defined.</SUBJECT> <SECTNO>1210.401</SECTNO> <SUBJECT>District conventions.</SUBJECT> <SECTNO>1210.402</SECTNO> <SUBJECT>Voter and board member nominee eligibility.</SUBJECT> <SECTNO>1210.403</SECTNO> <SUBJECT>Voting procedures.</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Importer Members</HD> <SECTNO>1210.404</SECTNO> <SUBJECT>Importer member nomination and selection.</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Public Member</HD> <SECTNO>1210.405</SECTNO> <SUBJECT>Public member nominations and selection.</SUBJECT> </SUBJGRP> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart C—Rules and Regulations</HD> <SUBJGRP> <HD SOURCE="HED">Definitions</HD> <SECTNO>1210.500</SECTNO> <SUBJECT>Terms defined.</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">General</HD> <SECTNO>1210.501</SECTNO> <SUBJECT>Realignment of districts.</SUBJECT> <SECTNO>1210.502</SECTNO> <SUBJECT>[Reserved]</SUBJECT> <SECTNO>1210.504</SECTNO> <SUBJECT>Contracts.</SUBJECT> <SECTNO>1210.505</SECTNO> <SUBJECT>Department of Agriculture costs.</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Assessments</HD> <SECTNO>1210.515</SECTNO> <SUBJECT>Levy of assessments.</SUBJECT> <SECTNO>1210.516</SECTNO> <SUBJECT>[Reserved]</SUBJECT> <SECTNO>1210.517</SECTNO> <SUBJECT>Determination of handler.</SUBJECT> <SECTNO>1210.518</SECTNO> <SUBJECT>Payment of assessments.</SUBJECT> <SECTNO>1210.519</SECTNO> <SUBJECT>Failure to report and remit.</SUBJECT> <SECTNO>1210.520</SECTNO> <SUBJECT>Refunds.</SUBJECT> <SECTNO>1210.521</SECTNO> <SUBJECT>Reports of disposition of exempted watermelons.</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Records</HD> <SECTNO>1210.530</SECTNO> <SUBJECT>Retention period for records.</SUBJECT> <SECTNO>1210.531</SECTNO> <SUBJECT>Availability of records.</SUBJECT> <SECTNO>1210.532</SECTNO> <SUBJECT>Confidential books, records, and reports.</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Miscellaneous</HD> <SECTNO>1210.540</SECTNO> <SUBJECT>OMB assigned numbers.</SUBJECT> </SUBJGRP> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart D—Referendum Procedures</HD> <SECTNO>1210.600</SECTNO> <SUBJECT>General.</SUBJECT> <SECTNO>1210.601</SECTNO> <SUBJECT>Definitions.</SUBJECT> <SECTNO>1210.602</SECTNO> <SUBJECT>Voting.</SUBJECT> <SECTNO>1210.603</SECTNO> <SUBJECT>Instructions.</SUBJECT> <SECTNO>1210.604</SECTNO> <SUBJECT>Subagents.</SUBJECT> <SECTNO>1210.605</SECTNO> <SUBJECT>Ballots.</SUBJECT> <SECTNO>1210.606</SECTNO> <SUBJECT>Referendum report.</SUBJECT> <SECTNO>1210.607</SECTNO> <SUBJECT>Confidential information.</SUBJECT> </SUBPART> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>7 U.S.C. 4901-4916.</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>53 FR 51091, Dec. 20, 1988, unless otherwise noted.</P> </SOURCE> <SUBPART> <HD SOURCE="HED">Subpart A—Watermelon Research and Promotion Plan</HD> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>54 FR 24545, June 8, 1989, unless otherwise noted.</P> </SOURCE> <SUBJGRP> <HD SOURCE="HED">Definitions</HD> <SECTION> <SECTNO>§ 1210.301</SECTNO> <SUBJECT>Secretary.</SUBJECT> <P> <E T="03">Secretary</E> means the Secretary of Agriculture of the United States or any officer or employee of the Department to whom authority has heretofore been delegated, or to whom authority may hereafter be delegated, to act in the Secretary's stead.</P> </SECTION> <SECTION> <SECTNO>§ 1210.302</SECTNO> <SUBJECT>Act.</SUBJECT> <P> <E T="03">Act</E> means the Watermelon Research and Promotion Act of 1985 (Title XVI, Subtitle C of Pub. L. 99-198, 99th Congress, effective January 1, 1986, 99 Stat. 1622), as amended.</P> <CITA>[54 FR 24545, June 8, 1989, as amended at 60 FR 10797, Feb. 28, 1995]</CITA> </SECTION> <SECTION> <SECTNO>§ 1210.303</SECTNO> <SUBJECT>Plan.</SUBJECT> <P> <E T="03">Plan</E> means this watermelon research and promotion Plan issued by the Secretary pursuant to the Act.</P> </SECTION> <SECTION> <SECTNO>§ 1210.304</SECTNO> <SUBJECT>Board.</SUBJECT> <P> <E T="03">Board</E> means the National Watermelon Promotion Board, hereinafter established pursuant to § 1210.320.</P> </SECTION> <SECTION> <PRTPAGE P="99"/> <SECTNO>§ 1210.305</SECTNO> <SUBJECT>Watermelon.</SUBJECT> <P> <E T="03">Watermelon</E> means all varieties of the Family Curcubitaceae; Genus and Species; Citrullus Lanatus, popularly referred to as watermelon grown by producers in the United States or imported into the United States.</P> <CITA>[60 FR 10797, Feb. 28, 1995]</CITA> </SECTION> <SECTION> <SECTNO>§ 1210.306</SECTNO> <SUBJECT>Producer.</SUBJECT> <P> <E T="03">Producer</E> means any person engaged in the growing of 10 acres or more of watermelons including any person who owns or shares the ownership and risk of loss of such watermelon crop.</P> <CITA>[54 FR 24545, June 8, 1989, as amended at 60 FR 10797, Feb. 28, 1995]</CITA> </SECTION> <SECTION> <SECTNO>§ 1210.307</SECTNO> <SUBJECT>Handle.</SUBJECT> <P> <E T="03">Handle</E> means to grade, pack, process, sell, transport, purchase, or in any other way to place or cause watermelons to which one has title or possession to be placed in the current of commerce. Such term shall not include the transportation or delivery of field run watermelons by the producer thereof to a handler for grading, sizing or processing.</P> </SECTION> <SECTION> <SECTNO>§ 1210.308</SECTNO> <SUBJECT>Handler.</SUBJECT> <P> <E T="03">Handler</E> means any person (except a common or contract carrier of watermelons owned by another person) who handles watermelons, including a producer who handles watermelons of the producer's own production. For the purposes of this subpart, the term “handler” means the “first” person who performs the handling functions.</P> </SECTION> <SECTION> <SECTNO>§ 1210.309</SECTNO> <SUBJECT>Person.</SUBJECT> <P> <E T="03">Person</E> means any individual, group of individuals, partnership, corporation, association, cooperative, or other entity.</P> </SECTION> <SECTION> <SECTNO>§ 1210.310</SECTNO> <SUBJECT>Fiscal period and marketing year.</SUBJECT> <P> <E T="03">Fiscal period</E> and <E T="03">marketing year</E> mean the 12 month period from January 1 to December 31 or such other period which may be approved by the Secretary.</P> </SECTION> <SECTION> <SECTNO>§ 1210.311</SECTNO> <SUBJECT>Programs and projects.</SUBJECT> <P> <E T="03">Programs</E> and <E T="03">projects</E> mean those research, development, advertising, or promotion programs or projects developed by the Board pursuant to § 1210.331.</P> </SECTION> <SECTION> <SECTNO>§ 1210.312</SECTNO> <SUBJECT>Promotion.</SUBJECT> <P> <E T="03">Promotion</E> means any action taken by the Board, pursuant to the Act, to present a favorable image for watermelons to the public with the express intent of improving the competitive position of watermelons in the marketplace and stimulating sales of watermelons, and shall include, but not be limited to, paid advertising.</P> </SECTION> <SECTION> <SECTNO>§ 1210.313</SECTNO> <SUBJECT>Research.</SUBJECT> <P> <E T="03">Research</E> means any type of systematic study or investigation, and/or the evaluation of any study or investigation designed to advance the image, desirability, usage, marketability, production, or quality of watermelons.</P> </SECTION> <SECTION> <SECTNO>§ 1210.314</SECTNO> <SUBJECT>Importer.</SUBJECT> <P> <E T="03">Importer</E> means any person who imports watermelons into the United States as a principal or as an agent, broker, or consignee for any person who produces watermelons outside of the United States for sale in the United States.</P> <CITA>[60 FR 10797, Feb. 28, 1995]</CITA> </SECTION> <SECTION> <SECTNO>§ 1210.315</SECTNO> <SUBJECT>United States.</SUBJECT> <P> <E T="03">United States</E> means each of the several States and the District of Columbia.</P> <CITA>[60 FR 10797, Feb. 28, 1995]</CITA> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">National Watermelon Promotion Board</HD> <SECTION> <SECTNO>§ 1210.320</SECTNO> <SUBJECT>Establishment and membership.</SUBJECT> <P>(a) There is hereby established a National Watermelon Promotion Board, hereinafter called the “Board.” The Board shall be composed of producers, handlers, importers, and one public representative appointed by the Secretary. An equal number of producer and handler representatives shall be nominated by producers and handlers pursuant to § 1210.321. The Board shall also include one or more representatives of importers, who shall be nominated in such manner as may be prescribed by the Secretary. The public <PRTPAGE P="100"/>representative shall be nominated by the Board members in such manner as may be prescribed by the Secretary. If producers, handlers, and importers fail to select nominees for appointment to the Board, the Secretary may appoint persons on the basis of representation as provided in § 1210.324. If the Board fails to adhere to procedures prescribed by the Secretary for nominating a public representative, the Secretary shall appoint such representative.</P> <P>(b) Membership on the Board shall be determined on the basis of two handler and two producer representatives for each of seven districts in the contiguous States of the United States. Such districts as hereby established have approximately equal production volume according to the three-year average production as set forth in the USDA Crop Production Annual Summary Reports for 1979, 1980, and 1981. They are: </P> <EXTRACT> <FP SOURCE="FP-1"> <E T="03">District #1</E>—South Florida including all areas south of State Highway 50.</FP> <FP SOURCE="FP-1"> <E T="03">District #2</E>—North Florida including all areas north of State Highway 50.</FP> <FP SOURCE="FP-1"> <E T="03">District #3</E>—The States of Alabama and Georgia.</FP> <FP SOURCE="FP-1"> <E T="03">District #4</E>—The States of South Carolina, North Carolina, Virginia, Delaware, Maryland, West Virginia, Pennsylvania, New Jersey, New York, Ohio, Michigan, Connecticut, Rhode Island, Massachusetts, Vermont, New Hampshire, and Maine.</FP> <FP SOURCE="FP-1"> <E T="03">District #5</E>—The States of Mississippi, Kentucky, Tennessee, Louisiana, Arkansas, Missouri, Illinois, Indiana, Iowa, Kansas, Nebraska, Oklahoma, Wisconsin, Minnesota, North Dakota, South Dakota, Colorado, and New Mexico.</FP> <FP SOURCE="FP-1"> <E T="03">District #6</E>—The State of Texas.</FP> <FP SOURCE="FP-1"> <E T="03">District #7</E>—The States of Arizona, California, Nevada, Utah, Oregon, Idaho, Wyoming, Washington, and Montana.</FP> </EXTRACT> <P>(c) After two years, the Board shall review the districts to determine whether realignment of the districts is necessary and at least every five years thereafter the Board shall make such a review. In making such review, it shall give consideration to:</P> <P>(1) The most recent three years USDA production reports or Board assessment reports if USDA production reports are unavailable;</P> <P>(2) Shifts and trends in quantities of watermelon produced, and</P> <P>(3) Other relevant factors.</P> <FP>As a result of this review, the Board may realign the districts subject to the approval of the Secretary. Any such realignment shall be recommended by the Board to the Secretary at least six months prior to the date of the call for nominations and shall become effective at least 30 days prior to such date.</FP> <P>(d) Importer representation on the Board shall be proportionate to the percentage of assessments paid by importers to the Board, except that at least one representative of importers shall serve on the Board.</P> <P>(e) Not later than 5 years after the date that importers are subject to the Plan, and every 5 years thereafter, the Secretary shall evaluate the average annual percentage of assessments paid by importers during the 3-year period preceding the date of the evaluation and adjust, to the extent practicable, the number of importer representatives on the Board.</P> <P>(f) The Board consists of 14 producers, 14 handlers, at least one importer, and one public member appointed by the Secretary.</P> <CITA>[54 FR 24545, June 8, 1989, as amended at 60 FR 10797, Feb. 28, 1995]</CITA> </SECTION> <SECTION> <SECTNO>§ 1210.321</SECTNO> <SUBJECT>Nominations and selection.</SUBJECT> <P>The Secretary shall appoint the members of the Board from nominations to be made in the following manner:</P> <P>(a) There shall be two individuals nominated for each vacant position.</P> <P>(b) The Board shall issue a call for nominations by February first of each year in which an election is to be held. The call shall include at a minimum, the following information:</P> <P>(1) A list of the vacancies and qualifications as to producers and handlers by district and to importers nationally for which nominees may be submitted.</P> <P>(2) The date by which the nominees shall be submitted to the Secretary for consideration to be in compliance with § 1210.323 of this subpart.</P> <P>(3) A list of those States, by district, entitled to participate in the nomination process.</P> <P>(4) The date, time, and location of any next scheduled meeting of the Board, national and State producer or handler associations, importers, and district conventions, if any.<PRTPAGE P="101"/> </P> <P>(c) Nominations for producer and handler positions that will become vacant shall be made by district convention in the district entitled to nominate. Notice of such convention shall be publicized to all producers and handlers within such district, and the Secretary at least ten days prior to said event. The notice shall have attached to it the call for nominations from the Board. The responsibility for convening and publicizing the district convention shall be that of the then members of the Board from that district.</P> <P>(d) Nominations for importers positions that become vacant may be made by mail ballot, nomination conventions, or by other means prescribed by the Secretary. The Board shall provide notice of such vacancies and the nomination process to all importers through press releases and any other available means as well as direct mailing to known importers. All importers may participate in the nomination process: <E T="03">Provided,</E> That a person who both imports and handles watermelons may vote for importer members and serve as an importer member if that person imports 50 percent or more of the combined total volume of watermelons handled and imported by that person.</P> <P>(e) All producers and handlers within the district may participate in the convention: <E T="03">Provided,</E> That a person that produces and handles watermelons may vote for handler members only if the producer purchased watermelons from other producers, in a combined total volume that is equal to 25 percent or more of the producer's own production; or the combined total volume of watermelon handled by the producer from the producer's own production and purchases from other producer's production is more than 50 percent of the producer's own production; and <E T="03">provided further,</E> That if a producer or handler is engaged in the production or handling of watermelons in more than one State or district, the producer or handler shall participate within the State or district in which the producer or handler so elects in writing to the Board and such election shall remain controlling until revoked in writing to the Board.</P> <P>(f) The district convention chairperson shall conduct the selection process for the nominees in accordance with procedures to be adopted at each such convention, subject to requirements set in § 1210.321(e).</P> <P>(1) No State in Districts 3, 4, 5, and 7 as currently constituted shall have more than three producers and handlers representatives concurrently on the Board.</P> <P>(2) Each State represented at the district convention shall have one vote for each producer position and one vote for each handler position from the District on the Board, which vote shall be determined by the producers and handlers from that State by majority vote. Each State shall further have an additional vote for each five hundred thousand hundredweight volume as determined by the three year average annual crop production summary reports of the USDA, or if such reports are not published, then the three year average of the Board assessment reports; <E T="03">Provided</E>, That for the first two calls for nominees, the USDA Crop Production Annual Summary Reports for 1979, 1980, and 1981 will be controlling as to any additional production volume votes.</P> <CITA>[54 FR 24545, June 8, 1989, as amended at 60 FR 10798, Feb. 28, 1995]</CITA> </SECTION> <SECTION> <SECTNO>§ 1210.322</SECTNO> <SUBJECT>Term of office.</SUBJECT> <P>(a) The term of office of Board members shall be three years.</P> <P>(b) Except in the case of mid-term vacancies, the term of office shall begin on January 1, or such other date as may be recommended by the Board and approved by the Secretary.</P> <P>(c) Board members shall serve during the term of office for which they are selected and have qualified, and until their successors are selected and have qualified.</P> <P>(d) No person shall serve more than two successive terms of office.</P> <CITA>[54 FR 24545, June 8, 1989, as amended at 60 FR 10798, Feb. 28, 1995; 60 FR 13515, Mar. 13, 1995]</CITA> </SECTION> <SECTION> <SECTNO>§ 1210.323</SECTNO> <SUBJECT>Acceptance.</SUBJECT> <P>Each person nominated for membership on the Board shall qualify by filing a written acceptance with the Secretary. Such written acceptance shall accompany the nominations list required by § 1210.321.</P> </SECTION> <SECTION> <PRTPAGE P="102"/> <SECTNO>§ 1210.324</SECTNO> <SUBJECT>Vacancies.</SUBJECT> <P>(a) In the event any member of the Board ceases to be a member of the category of members from which the member was appointed to the Board, such position shall automatically become vacant.</P> <P>(b) If a member of the Board consistently refuses to perform the duties of a member of the Board, or if a member of the Board engages in acts of dishonesty or willful misconduct, the Board may recommend to the Secretary that the member be removed from office. If the Secretary finds the recommendation of the Board shows adequate cause, the Secretary shall remove such member from office. Further, without recommendation of the Board, a member may be removed by the Secretary upon showing of adequate cause, if the Secretary determines that the person's continual services would be detrimental to the purposes of the Act.</P> <P>(c) To fill any vacancy caused by the failure of any person selected as a member of the Board to qualify, or in the event of the death, removal, resignation, or disqualification of any member, a successor shall be nominated and selected in the manner specified in § 1210.321, except that said nomination and replacement shall not be required if the unexpired term of office is less than six months. In the event of failure to provide nominees for such vacancies, the Secretary may appoint other eligible persons.</P> </SECTION> <SECTION> <SECTNO>§ 1210.325</SECTNO> <SUBJECT>Procedure.</SUBJECT> <P>(a) A simple majority of Board members shall constitute a quorum and any action of the Board shall require the concurring votes of a majority of those present and voting. At assembled meetings all votes shall be cast in person.</P> <P>(b) For routine and noncontroversial matters which do not require deliberation and the exchange of views, and for matters of an emergency nature when there is not enough time to call an assembled meeting, the Board may act upon a majority of concurring votes of its members cast by mail, telegraph, telephone, or by other means of communication; <E T="03">Provided</E>, That each member receives an accurate, full, and substantially identical explanation of each proposition. Telephone votes shall be promptly confirmed in writing. All votes shall be recorded in the Board minutes.</P> <CITA>[54 FR 24545, June 8, 1989, as amended at 60 FR 10798, Feb. 28, 1995]</CITA> </SECTION> <SECTION> <SECTNO>§ 1210.326</SECTNO> <SUBJECT>Compensation and reimbursement.</SUBJECT> <P>Board members shall serve without compensation but shall be reimbursed for reasonable expenses incurred by them in the performance of their duties as Board members.</P> </SECTION> <SECTION> <SECTNO>§ 1210.327</SECTNO> <SUBJECT>Powers.</SUBJECT> <P>The Board shall have the following powers subject to § 1210.363:</P> <P>(a) To administer the provisions of this Plan in accordance with its terms and conditions;</P> <P>(b) To make rules and regulations to effectuate the terms and conditions of this Plan;</P> <P>(c) To require its employees to receive, investigate, and report to the Secretary complaints of violations of this Plan; and</P> <P>(d) To recommend to the Secretary amendments to this Plan.</P> </SECTION> <SECTION> <SECTNO>§ 1210.328</SECTNO> <SUBJECT>Duties.</SUBJECT> <P>The Board shall, among other things, have the following duties:</P> <P>(a) To meet, organize, and select from among its members a president and such other officers as may be necessary; to select committees and subcommittees of board members; to adopt such rules for the conduct of its business as it may deem advisable; and it may establish working committees of persons other than Board members.</P> <P>(b) To employ such persons as it may deem necessary and to determine the compensation and define the duties of each; and to protect the handling of Board funds through fidelity bonds;</P> <P>(c) To prepare and submit for the Secretary's approval, prior to the beginning of each fiscal period, a recommended rate of assessment and a fiscal period budget of the anticipated expenses in the administration of this Plan, including the probable costs of all programs and projects;</P> <P>(d) To develop programs and projects, which must be approved by the Secretary before becoming effective, and enter into contracts or agreements, <PRTPAGE P="103"/>with the approval of the Secretary, for the development and carrying out of programs or projects of research, development, advertising or promotion, and the payment of the costs thereof with funds received pursuant to this Plan;</P> <P>(e) To keep minutes, books, and records which clearly reflect all of the acts and transactions of the Board. Minutes of each Board meeting shall be promptly reported to the Secretary;</P> <P>(f) To prepare and submit to the Secretary such reports from time to time as may be prescribed for appropriate accounting with respect to the receipt and disbursement of funds entrusted to the Board;</P> <P>(g) To cause the books of the Board to be audited by a certified public accountant at least once each fiscal period, and at such other time as the Board may deem necessary. The report of such audit shall show the receipt and expenditure of funds received pursuant to this part. Two copies of each such report shall be furnished to the Secretary and a copy of each such report shall be made available at the principal office of the Board for inspection by producers, handlers, and importers;</P> <P>(h) To investigate violations of the Plan and report the results of such investigations to the Secretary for appropriate action to enforce the provisions of the Plan;</P> <P>(i) To periodically prepare, make public, and make available to producers, handlers, and importers reports of its activities carried out.</P> <P>(j) To give the Secretary the same notice of meetings of the Board and its subcommittees as is given to its members;</P> <P>(k) To act as intermediary between the Secretary and any producer, handler, or importer;</P> <P>(l) To furnish the Secretary such information as the Secretary may request;</P> <P>(m) To notify watermelon producers, handlers, and importers of all Board meetings through press releases or other means;</P> <P>(n) To appoint and convene, from time to time, working committees drawn from producers, handlers, importers, and the public to assist in the development of research and promotion programs for watermelons; and</P> <P>(o) To develop and recommend such rules and regulations to the Secretary for approval as may be necessary for the development and execution of programs or projects to effectuate the declared purpose of the Act.</P> <CITA>[54 FR 24545, June 8, 1989, as amended at 60 FR 10798, Feb. 28, 1995]</CITA> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Research and Promotion</HD> <SECTION> <SECTNO>§ 1210.330</SECTNO> <SUBJECT>Policy and objective.</SUBJECT> <P>It shall be the policy of the Board to carry out an effective, continuous, and coordinated program of research, development, advertising, and promotion in order to:</P> <P>(a) Strengthen watermelons’ competitive position in the marketplace,</P> <P>(b) Maintain and expand existing domestic and foreign markets, and</P> <P>(c) Develop new or improved markets.</P> <FP>It shall be the objective of the Board to carry out programs and projects which will provide maximum benefit to the watermelon industry.</FP> </SECTION> <SECTION> <SECTNO>§ 1210.331</SECTNO> <SUBJECT>Programs and projects.</SUBJECT> <P>The Board shall develop and submit to the Secretary for approval any programs or projects authorized in this section. Such programs or projects shall provide for:</P> <P>(a) The establishment, issuance, effectuation and administration of appropriate programs or projects for advertising and other sales promotion of watermelons designed to strengthen the position of the watermelon industry in the marketplace and to maintain, develop, and expand markets for watermelon;</P> <P>(b) Establishing and carrying out research and development projects and studies to the end that the acquisition of knowledge pertaining to watermelons or their consumption and use may be encouraged or expanded, or to the end that the marketing and use of watermelons may be encouraged, expanded, improved, or made more efficient: <E T="03">Provided,</E> That quality control, grade standards, supply management programs or other programs that would otherwise limit the right of the individual watermelon producer to produce <PRTPAGE P="104"/>watermelons shall not be conducted under, or as a part of, this Plan;</P> <P>(c) The development and expansion of watermelon sales in foreign markets;</P> <P>(d) A prohibition on advertising or other promotion programs that make any reference to private brand names or use false or unwarranted claims on behalf of watermelons or false or unwarranted statements with respect to the attributes or use of any competing product;</P> <P>(e) Periodic evaluation by the Board of each program or project authorized under this Plan to insure that each program or project contributes to an effective and coordinated program of research and promotion and submission of such evaluation to the Secretary. If the Board or the Secretary finds that a program or project does not further the purposes of the Act, then the Board or the Secretary shall terminate such program or project; and</P> <P>(f) The Board to enter into contracts or make agreements for the development and carrying out of research and promotion and pay for the costs of such contracts or agreements with funds collected pursuant to § 1210.341.</P> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Expenses and Assessments</HD> <SECTION> <SECTNO>§ 1210.340</SECTNO> <SUBJECT>Budget and expenses.</SUBJECT> <P>(a) Prior to the beginning of each fiscal period, or as may be necessary thereafter, the Board shall prepare and recommend a budget on a fiscal period basis of its anticipated expenses and disbursements in the administration of this Plan, including probable costs of research, development, advertising, and promotion. The Board shall also recommend a rate of assessment calculated to provide adequate funds to defray its proposed expenditures and to provide for a reserve as set forth in § 1210.344.</P> <P>(b) The Board is authorized to incur such expenses for research, development, advertising, or promotion of watermelons, such other expenses for the administration, maintenance, and functioning of the Board as may be authorized by the Secretary, and any referendum and administrative costs incurred by the Department of Agriculture. The funds to cover such expenses shall be paid from assessments received pursuant to § 1210.341.</P> <CITA>[54 FR 24545, June 8, 1989, as amended at 60 FR 10798, Feb. 28, 1995]</CITA> </SECTION> <SECTION> <SECTNO>§ 1210.341</SECTNO> <SUBJECT>Assessments.</SUBJECT> <P>(a) During the effective period of this subpart, assessments shall be levied on all watermelons produced and first handled in the United States and all watermelons imported into the United States for consumption as human food. No more than one assessment on a producer, handler, or importer shall be made on any lot of watermelons. The handler shall be assessed an equal amount on a per unit basis as the producer. If a person performs both producing and handling functions on any same lot of watermelons, both assessments shall be paid by such person. In the case of an importer, the assessment shall be equal to the combined rate for domestic producers and handlers and shall be paid by the importer at the time of entry of the watermelons into the United States.</P> <P>(b) Assessment rates shall be fixed by the Secretary in accordance with section 1647(f) of the Act. No assessments shall be levied on watermelons grown by producers of less than 10 acres of watermelons.</P> <P>(c) Each handler, as defined, is responsible for payment to the Board of both the producer's and the handler's assessment pursuant to regulations issued hereunder. The handler may collect producer assessments from the producer or deduct such assessments from the proceeds paid to the producer on whose watermelons the assessments are made. The handler shall maintain separate records for each producer's watermelons handled, including watermelons produced by said handler. In addition, the handler shall indicate the total quantity of watermelons handled by the handler, including those that are exempt under this Plan, and such other information as may be prescribed by the Board.</P> <P>(d) Each importer shall be responsible for payment of the assessment to the Board on watermelons imported into the United States through the U.S. Customs Service or in such other manner as may be established by rules <PRTPAGE P="105"/>and regulations approved by the Secretary.</P> <P>(e) Producer-handlers and handlers shall pay assessments to the Board at such time and in such manner as the Board, with the Secretary's approval, directs, pursuant to regulations issued under this part. Such regulations may provide for different handlers or classes of handlers and different handler payment and reporting schedules to recognize differences in marketing practices or procedures used in any State or production area.</P> <P>(f) There shall be a late payment charge imposed on any handler or importer who fails to remit to the Board the total amount for which any such handler or importer is liable on or before the payment due date established by the Board under paragraph (e) of this section. The amount of the late payment charge shall be set by the Board subject to approval by the Secretary.</P> <P>(g) There shall also be imposed on any handler or importer subject to a late payment charge, an additional charge in the form of interest on the outstanding portion of any amount for which the handler or importer is liable. The rate of such interest shall be prescribed by the Board subject to approval by the Secretary.</P> <P>(h) The Board is hereby authorized to accept advance payment of assessments by handlers and importers that shall be credited toward any amount for which the handlers and importers may become liable. The Board shall not be obligated to pay interest on any advance payment.</P> <P>(i) The Board is hereby authorized to borrow money for the payment of administrative expenses subject to the same fiscal, budget, and audit controls as other funds of the Board.</P> <P>(j) The Board may authorize other organizations to collect assessments in its behalf with the approval of the Secretary. Any reimbursement by the Board for such services shall be based on reasonable charges for services rendered.</P> <CITA>[54 FR 24545, June 8, 1989, as amended at 60 FR 10798, Feb. 28, 1995]</CITA> </SECTION> <SECTION> <SECTNO>§ 1210.342</SECTNO> <SUBJECT>Exemption from assessment.</SUBJECT> <P>(a) The Board may exempt watermelons used for nonfood purposes from the provisions of this Plan and shall establish adequate safeguards against improper use of such exemptions.</P> <P>(b) Importers of less than 150,000 pounds of watermelons per year shall be entitled to apply for a refund that is equal to the rate of assessment paid by domestic producers.</P> <P>(c) The Secretary may adjust the quantity of the weight exemption specified in paragraph (b) of this section on the recommendation of the Board after an opportunity for public notice and comment to reflect significant changes in the 5-year average yield per acre of watermelons produced in the United States.</P> <P>(d) The Board shall have the authority to establish rules, with the approval of the Secretary, for certifying whether a person meets the definition of a producer under section 1210.306.</P> <CITA>[54 FR 24545, June 8, 1989, as amended at 60 FR 10799, Feb. 28, 1995]</CITA> </SECTION> <SECTION> <SECTNO>§ 1210.343</SECTNO> <RESERVED>[Reserved]</RESERVED> </SECTION> <SECTION> <SECTNO>§ 1210.344</SECTNO> <SUBJECT>Operating reserve.</SUBJECT> <P>The Board may establish an operating monetary reserve and may carry over to subsequent fiscal periods excess funds in a reserve so established; <E T="03">Provided,</E> That funds in the reserve shall not exceed approximately two fiscal periods’ expenses. Such reserve funds may be used to defray any expenses authorized under this subpart.</P> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Reports, Books, and Records</HD> <SECTION> <SECTNO>§ 1210.350</SECTNO> <SUBJECT>Reports.</SUBJECT> <P>(a) Each handler shall maintain a record with respect to each producer for whom watermelons were handled and for watermelons produced and handled by the handler. Handlers shall report to the Board at such times and in such manner as the Board may prescribe by regulations whatever information as may be necessary in order for the Board to perform its duties. Such reports may include, but shall not be limited to, the following information:</P> <P>(1) Total quantity of watermelons handled for each producer and by the <PRTPAGE P="106"/>handler, including those which are exempt under this Plan;</P> <P>(2) Total quantity of watermelons handled for each producer and by the handler, on which the producer assessment was collected;</P> <P>(3) Name and address of each person from whom an assessment was collected, the amount collected from each person, and the date such collection was made; and</P> <P>(4) Name and address of each person claiming exemption from assessment and a copy of each such person's claim of exemption.</P> <P>(b) Each importer of watermelons shall maintain a separate record that includes a record of:</P> <P>(1) The total quantity of watermelons imported into the United States that are included under the terms of this Plan;</P> <P>(2) The total quantity of watermelons that are exempt from the Plan; and</P> <P>(3) Such other information as may be prescribed by the Board.</P> <P>(c) Each importer shall report to the Board at such times and in such manner as it may prescribe such information as may be necessary for the Board to perform its duties under this part.</P> <CITA>[54 FR 24545, June 8, 1989, as amended at 60 FR 10799, Feb. 28, 1995]</CITA> </SECTION> <SECTION> <SECTNO>§ 1210.351</SECTNO> <SUBJECT>Books and records.</SUBJECT> <P>Each handler and importer subject to this Plan shall maintain, and during normal business hours make available for inspection by employees of the Board or Secretary, such books and records as are necessary to carry out the provisions of this Plan and the regulations issued thereunder, including such records as are necessary to verify any required reports. Such records shall be maintained for 2 years beyond the fiscal period of their applicability.</P> <CITA>[54 FR 24545, June 8, 1989, as amended at 60 FR 10799, Feb. 28, 1995]</CITA> </SECTION> <SECTION> <SECTNO>§ 1210.352</SECTNO> <SUBJECT>Confidential treatment.</SUBJECT> <P>(a) All information obtained from the books, records, or reports required to be maintained under §§ 1210.350 and 1210.351 shall be kept confidential and shall not be disclosed to the public by any person. Only such information as the Secretary deems relevant shall be disclosed to the public and then only in a suit or administrative hearing brought at the direction, or on the request, of the Secretary, or to which the Secretary or any officer of the United States is a party, and involving this Plan: Except that nothing in this subpart shall be deemed to prohibit:</P> <P>(1) The issuance of general statements based on the reports of a number of handlers or importers subject to this Plan if such statements do not identify the information furnished by any person; or</P> <P>(2) The publication by direction of the Secretary of the name of any person violating this Plan together with a statement of the particular provisions of this Plan violated by such person.</P> <P>(b) Any disclosure of confidential information by any employee of the Board, except as required by law, shall be considered willful misconduct.</P> <CITA>[54 FR 24545, June 8, 1989, as amended at 60 FR 10799, Feb. 28, 1995]</CITA> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Miscellaneous</HD> <SECTION> <SECTNO>§ 1210.360</SECTNO> <SUBJECT>Right of the Secretary.</SUBJECT> <P>All fiscal matters, programs or projects, rules or regulations, reports, or other substantive actions proposed and prepared by the Board shall be submitted to the Secretary for approval.</P> </SECTION> <SECTION> <SECTNO>§ 1210.361</SECTNO> <SUBJECT>Personal liability.</SUBJECT> <P>No member or employee of the Board shall be held personally responsible, either individually or jointly with others, in any way whatsoever to any person for errors in judgment, mistakes, or other acts, either of commission or omission, as such member or employee, except for acts of dishonesty or willful misconduct.</P> </SECTION> <SECTION> <SECTNO>§ 1210.362</SECTNO> <SUBJECT>Influencing government action.</SUBJECT> <P>No funds received by the Board under this Plan shall in any manner be used for the purpose of influencing governmental policy or action, except for making recommendations to the Secretary as provided in this subpart.</P> <CITA>[54 FR 24545, June 8, 1989, as amended at 60 FR 10799, Feb. 28, 1995]</CITA> </SECTION> <SECTION> <PRTPAGE P="107"/> <SECTNO>§ 1210.363</SECTNO> <SUBJECT>Suspension or termination.</SUBJECT> <P>(a) Whenever the Secretary finds that this Plan or any provision thereof obstructs or does not tend to effectuate the declared policy of the Act, the Secretary shall terminate or suspend the operation of this Plan or such provision thereof.</P> <P>(b) The Secretary may conduct a referendum at any time and shall hold a referendum on request of the Board or at least 10 percent of the combined total of the watermelon producers, handlers, and importers to determine if watermelon producers, handlers, and importers favor termination or suspension of this Plan. The Secretary shall suspend or terminate this Plan at the end of the marketing year whenever the Secretary determines that the suspension or termination is favored by a majority of the watermelon producers, handlers, and importers voting in such referendum who, during a representative period determined by the Secretary, have been engaged in the production, handling, or importing of watermelons and who produced, handled, or imported more than 50 percent of the combined total of the volume of watermelons produced, handled, or imported by those producers, handlers, and importers voting in the referendum. For purposes of this section, the vote of a person who both produces and handles watermelons will be counted as a handler vote if the producer purchased watermelons from other producers, in a combined total volume that is equal to 25 percent or more of the producer's own production; or the combined total volume of watermelon handled by the producer from the producer's own production and purchases from other producer's production is more than 50 percent of the producer's own production. <E T="03">Provided,</E> That the vote of a person who both imports and handles watermelons will be counted as an importer vote if that person imports 50 percent or more of the combined total volume of watermelons handled and imported by that person. Any such referendum shall be conducted by mail ballot.</P> <CITA>[54 FR 24545, June 8, 1989, as amended at 60 FR 10799, Feb. 28, 1995]</CITA> </SECTION> <SECTION> <SECTNO>§ 1210.364</SECTNO> <SUBJECT>Proceedings after termination.</SUBJECT> <P>(a) Upon the termination of this Plan, the Board shall recommend not more than five of its members to the Secretary to serve as trustees for the purpose of liquidating the affairs of the Board. Such persons, upon designation by the Secretary, shall become trustees of all funds and property then in possession or under control of the Board, including claims for any funds unpaid or property not delivered or any other claim existing at the time of such termination.</P> <P>(b) The said trustees shall:</P> <P>(1) Continue in such capacity until discharged by the Secretary;</P> <P>(2) Carry out the obligations of the Board under any contracts or agreements entered into by it pursuant to § 1210.328(d);</P> <P>(3) From time-to-time account for all receipts and disbursements and deliver all property on hand, together with all books and records of the Board and of the trustees, to person or persons as the Secretary may direct; and</P> <P>(4) Upon the request of the Secretary execute such assignments or other instruments necessary or appropriate to vest in such person or persons full title and right to all the funds, property, and claims vested in the Board or the trustees pursuant to this section.</P> <P>(c) Any person to whom funds, property, or claims have been transferred or delivered pursuant to this section shall be subject to the same obligation imposed upon the Board and upon the trustees.</P> <P>(d) A reasonable effort shall be made by the Board or its trustees to return to producers, handlers and importers any residual funds not required to defray the necessary expenses of liquidation. If it is found impractical to return such remaining funds to producers, handlers and importers such funds shall be disposed of in such manner as the Secretary may determine to be appropriate.</P> <CITA>[54 FR 24545, June 8, 1989, as amended at 60 FR 10799, Feb. 28, 1995]</CITA> </SECTION> <SECTION> <SECTNO>§ 1210.365</SECTNO> <SUBJECT>Effect of termination or amendment.</SUBJECT> <P>Unless otherwise expressly provided by the Secretary, the termination of <PRTPAGE P="108"/>this Plan or any regulation issued pursuant thereto, or the issuance of any amendment to either thereof, shall not:</P> <P>(a) Affect or waive any right, duty, obligation, or liability which shall have arisen or which may thereafter arise in connection with any provision of this Plan or any regulation issued thereunder; or</P> <P>(b) Release or extinguish any violation of this Plan or any regulation issued thereunder; or</P> <P>(c) Affect or impair any rights or remedies of the United States, or of the Secretary, or of any other person with respect to any such violation.</P> </SECTION> <SECTION> <SECTNO>§ 1210.366</SECTNO> <SUBJECT>Separability.</SUBJECT> <P>If any provision of this Plan is declared invalid or the applicability thereof to any person or circumstance is held invalid, the validity of the remainder of this Plan or applicability thereof to other persons or circumstances shall not be affected thereby.</P> </SECTION> <SECTION> <SECTNO>§ 1210.367</SECTNO> <SUBJECT>Patents, copyrights, inventions, and publications.</SUBJECT> <P>Any patents, copyrights, inventions, product formulations, or publications developed through the use of funds collected under the provisions of this Plan shall be the property of the United States government as represented by the Board. Funds generated by such patents, copyrights, inventions, product formulations, or publications shall be considered income subject to the same fiscal, budget, and audit controls as other funds of the Board. Upon termination of this part, § 1210.364 shall apply to determine the disposition of all such property.</P> </SECTION> </SUBJGRP> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart B—Nominating Procedures</HD> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>54 FR 38205, Sept. 15, 1989, unless otherwise noted.</P> </SOURCE> <SUBJGRP> <HD SOURCE="HED">Producer and Handler Members</HD> <SECTION> <SECTNO>§ 1210.400</SECTNO> <SUBJECT>Terms defined.</SUBJECT> <P>Unless otherwise defined in this subpart, definitions of terms used in this subpart shall have the same meaning as the definitions of such terms which appear in Subpart—Watermelon Research and Promotion Plan.</P> </SECTION> <SECTION> <SECTNO>§ 1210.401</SECTNO> <SUBJECT>District conventions.</SUBJECT> <P>(a) Except for the initial district convention in each district, which will be called and opened by a representative of the Secretary, the Board shall call and open all district conventions.</P> <P>(b) District conventions are to be held to nominate producers and handlers as candidates for membership on the National Watermelon Promotion Board. Each district, as defined in § 1210.501, is entitled to two producer and two handler members on the Board.</P> <P>(c) There shall be two individuals nominated for each vacant position. In multi-State districts, no one State shall have nominees for more than three of the four district positions on the Board.</P> <P>(d) All producers and handlers within each district may participate in that district's convention: <E T="03">Provided,</E> That they meet the eligibility provisions set forth in § 1210.402 of this subpart.</P> <P>(e) The convention chairperson shall be elected as provided in § 1210.403(b) of this subpart.</P> <P>(f) The Board member nomination process shall be conducted by the chairperson in conformance with the provisions of § 1210.321 of the Plan and § 1210.403 of this subpart. At the conclusion of the district convention for the initial term of office, the chairperson will provide the Secretary with:</P> <P>(1) The identification of that district's two nominees for each producer and handler position on the Board, and</P> <P>(2) A typed copy of the district convention's minutes.</P> <FP>This information must be provided by the chairperson to the Board staff in a manner that will ensure receipt, at the address specified in the call for the district convention, within 14 calendar days of the district convention's completion, but not later than July 8 for appointments to become effective on the following January 1. The Board staff must forward such information to the Secretary, in a manner that will ensure receipt, within 21 calendar days of completion of the district convention, but not later than July 15 for appointments to become effective on the <PRTPAGE P="109"/>following January 1. Further, the chairperson will immediately arrange for completion of qualification statements and other specified information by each nominee, and each nominee shall qualify by forwarding such information to the Board's office within 14 calendar days of completion of the district convention, but not later than July 8 for appointments to become effective on the following January 1. The Board staff must forward the completed qualification statements and other specified information to the Secretary, in a manner that will ensure receipt within 21 calendar days of completion of the district convention, but not later than July 15 for appointments to become effective on the following January 1.</FP> <CITA>[54 FR 38205, Sept. 15, 1989, as amended at 58 FR 3355, Jan. 8, 1993; 59 FR 18948, Apr. 21, 1994; 60 FR 10799, Feb. 28, 1995]</CITA> </SECTION> <SECTION> <SECTNO>§ 1210.402</SECTNO> <SUBJECT>Voter and board member nominee eligibility.</SUBJECT> <P>(a) All producers and handlers within a district may participate in their district convention for the purpose of nominating candidates for appointment to the Board: <E T="03">Provided</E>, That a producer who both produces and handles watermelons may vote for handler member nominees and serve as a handler member nominee only if the producer purchased watermelons from other producers, in a combined total volume that is equal to 25 percent or more of the producer's own production or the combined total volume of watermelons handled by the producer from the producer's own production and purchases from other producer's production is more than 50 percent of the producer's own production; and <E T="03">Provided further,</E> That if a producer or handler is engaged in the production or handling of watermelons in more than one State or district, the producer or handler shall participate within the State or district in which the producer or handler so elects in writing to the Board and such election shall remain controlling until revoked in writing to the Board. For the purpose of participation in initial nominating conventions, such election shall be made in writing, at the address provided, to the Department official identified in the call for a district convention.</P> <P>(b) Any individual, group of individuals, partnership, corporation, association, cooperative or any other entity which is engaged in the production, first handling or importing of watermelons is considered a person and as such is entitled to only one vote, except that such person may cast proxy votes as provided in § 1210.403 and § 1210.404 of this subpart.</P> <P>(c) All producers and handlers attending their district conventions may be candidates for one or more of the positions of State spokesperson, district convention chairperson, and producer or handler nominee.</P> <CITA>[54 FR 38205, Sept. 15, 1989, as amended at 60 FR 10799, Feb. 28, 1995]</CITA> </SECTION> <SECTION> <SECTNO>§ 1210.403</SECTNO> <SUBJECT>Voting procedures.</SUBJECT> <P>(a) Proxy voting by producers and handlers for producer and handler nominees shall be permitted at all district conventions: <E T="03">Provided,</E> That producers may cast proxy votes for producers only, and handlers may cast proxy votes for handlers only. In non-multi-State districts, proxy voting shall be permitted for all producer and handler nominee balloting to determine the districts’ nominees. In multi-State districts, proxy voting shall be permitted for all producers and handlers participating in a State's balloting to determine the State's nominees. No other proxy voting, such as for district convention chairperson, shall be allowed. Any person wanting to cast proxy votes must demonstrate authorization to do so. Authority to cast a proxy vote on behalf of another person shall be demonstrated through documentation containing:</P> <P>(1) The proxy voter's name, address, and telephone number;</P> <P>(2) Signature and date signed;</P> <P>(3) A certification identifying the proxy voter as a producer or a handler; and</P> <P>(4) A statement identifying the person being given authority by the proxy voter to cast the proxy vote.</P> <FP>All proxy documentation must be received by the Board at its headquarters address at least two weeks before the <PRTPAGE P="110"/>district convention is scheduled to convene. For the purpose of the initial district convention, all proxy documentation must be forwarded to the Department representative identified in the call for the district convention in a manner that will ensure receipt, at the address specified in the call, at least 72 hours before the district convention is scheduled to convene. The Board, or in the case of the initial conventions the Department representative identified in the call or other representative of the Department, may challenge any proxy vote and disqualify any challenged vote for cause. In the case of duplicate proxy authorizations by any person, only the first authorization, determined by date will be allowed. In the case of duplicate dates, the proxy which is received first will be allowed.</FP> <P>(b) In non-multi-State districts, convention chairpersons shall be elected by a majority vote of the eligible voters in attendance. In multi-State districts, the election shall be by majority vote of all States present with each State's vote(s) determined by a majority vote of the eligible voters of that State in attendance. Each such State is entitled to one vote, plus one additional vote for each 500,000 hundredweight volume of production in the State as determined by the three-year average annual crop production summary reports of the Department or, if such reports are not published, then the three-year average of the Board's assessment reports: <E T="03">Provided,</E> That for the first two conventions, the Department's Crop Production Annual Summary Reports for 1979, 1980, and 1981 will be controlling as to any additional production volume votes.</P> <P>(c) In multi-State districts 3, 4, 5 and 7, the convention chairperson will direct the eligible producer voters and handler voters from each State to caucus separately for the purpose of electing a State spokesperson for each group. Election of each State spokesperson shall be by simple majority of all individual voters in attendance. In lieu of written ballots, a State spokesperson may be elected by voice vote or a show of hands. The role of the State spokesperson is to coordinate State voting and to cast all State votes.</P> <P>(d) Convention chairpersons will coordinate the entire producer and handler nomination process. In conducting the nomination process, each convention chairperson will ensure that:</P> <P>(1) Voting for producer nominees is limited to producers, and voting for handler nominees is limited to handlers; and</P> <P>(2) Producer candidates for nomination are producers, and handler candidates for nomination are handlers.</P> <P>(e) Voting, for producer and handler nominees, in non-multi-State districts shall be on the basis of one vote per person, except that persons authorized to cast proxy votes shall be allowed to cast all proxy votes not disallowed by the Board or the Department. Election of nominees shall be on the basis of a simple majority of all eligible votes cast.</P> <P>(f) Voting for producer and handler nominees in multi-State districts shall be on a State by State basis. Producers and handlers from each State shall caucus separately, at the district convention, for the purpose of determining which nominees shall receive their State's vote(s) for membership on the Board. Each State's vote(s) shall be based on a simple majority of all votes (including proxy votes) cast by producers or handlers voting in their State's caucus. Each State represented at a multi-State district convention shall have one vote for each producer position and one vote for each handler position from the district on the Board. Each State shall further have an additional vote toward each position for each 500,000 hundredweight volume of production in the State as determined by the three-year average annual crop production summary reports of the Department or, if such reports are not published, then the three-year average of the Board's assessment reports: <E T="03">Provided,</E> That for the first two calls for nominees, the Department's Crop Production Annual Summary Reports for 1979, 1980, and 1981 will be controlling as to any additional production volume votes. Each State spokesperson will cast the State's vote(s) for each nominee position. Election of nominees shall be on the basis of a simple majority of all State votes cast.<PRTPAGE P="111"/> </P> <P>(g) During the voting for convention chairperson, State spokesperson, and Board member nominee, should no candidate receive the required simple majority on the first ballot, the number of candidates may be reduced by dropping one or more of the lowest vote recipients from the list of candidates. The balloting will be repeated until the position is filled.</P> <P>(h) Two nominees shall be elected for each of the producer and handler positions from each district on the Board. The two nominees for each position shall be elected simultaneously. The convention chairperson will open the floor to the nomination of candidates for possible election as a Board member nominee for each available position. Each position will be dealt with separately (i.e., candidates for one position will be nominated and then elected before the convention moves on to the next available position). Each eligible voter may vote for two of the nominees on one ballot. The two nominees receiving the greatest number of votes and at least a simple majority of the votes cast will be elected as the district's Board member nominees for the position. No individual elected as a nominee for Board membership may be a candidate on subsequent Board member nominee ballots (i.e., two different producer names and two different handler names must be submitted as nominees for each producer and handler position from each district to the Secretary of Agriculture). There shall be no designation of first and second choice nominees.</P> <CITA>[54 FR 38205, Sept. 15, 1989, as amended at 58 FR 3355, Jan. 8, 1993]</CITA> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Importer Members</HD> <SECTION> <SECTNO>§ 1210.404</SECTNO> <SUBJECT>Importer member nomination and selection.</SUBJECT> <P>(a) The Board shall include one or more representatives of importers, who shall be appointed by the Secretary from nominations submitted by watermelon importers. Importers’ representation on the Board shall be proportionate to the percentage of assessments paid by importers to the Board, except that at least one representative of importers shall serve on the Board if importers are subject to the Plan. Nominations for importer positions that become vacant shall be made by importers at nomination conventions or by mail ballot.</P> <P>(b) The initial nomination of importer members shall be made not later than 90 days after the Plan is amended.</P> <P>(c) There shall be two individuals nominated for each vacant position. The importer receiving the highest number of votes for a vacancy shall be the first choice nominee, and the importer receiving the second highest number of votes shall be the second choice nominee submitted to the Secretary.</P> <P>(d) Any individual, group of individuals, partnership, corporation, association, cooperative or any other entity which is engaged in the production, first handling or importing of watermelons is considered a person and as such is entitled to only one vote, except that such person may cast proxy votes as provided in paragraph (e)(1) of this section.</P> <P>(e) <E T="03">Nomination Conventions.</E> If nominations are made by nomination conventions, the Board shall widely publicize such conventions and provide importers and the Secretary at least 10 days notice prior to each convention.</P> <P>(1) Proxy voting by importers shall be permitted at all conventions. Any person wanting to cast proxy votes must demonstrate authorization to do so. Authority to cast a proxy vote on behalf of another person shall be demonstrated through documentation containing:</P> <P>(i) The proxy voter's name, address, and telephone number;</P> <P>(ii) Signature and date signed;</P> <P>(iii) A certification identifying the proxy voter as an importer; and</P> <P>(iv) A statement identifying the person being given authority by the proxy voter to cast the proxy vote.</P> <P>(2) The Board shall provide to the Secretary a typed copy of each convention's minutes and shall arrange for completion of qualification statements and other specified information by each nominee and forward such to the Secretary within 14 calendar days of completion of a convention.</P> <P>(f) <E T="03">Mail balloting.</E> If nominations are conducted by mail ballot, the Board shall request importers to submit <PRTPAGE P="112"/>nominations of eligible importers. It is the importer's responsibility to prove the individual's eligibility. After the names of nominees are received, the Board shall print ballots and ask eligible importers to vote to nominate their candidates. After the vote is received, the Board shall tabulate the results and shall send to the Department the nominees in order of preference. The Board shall provide the Secretary with a report on the results, number of importers participating in the vote, and the volume of imports, and shall arrange for completion of qualification statements and other specified information by each nominee and forward such to the Secretary within 14 calendar days of receiving the ballots.</P> <P>(g) Any individual who both imports and handles watermelons will be considered an importer if that person imports 50 percent or more of the combined total volume of watermelons handled and imported by that person.</P> <CITA>[60 FR 10800, Feb. 28, 1995]</CITA> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Public Member</HD> <SECTION> <SECTNO>§ 1210.405</SECTNO> <SUBJECT>Public member nominations and selection.</SUBJECT> <P>(a) The public member shall be nominated by the other members of the Board. The public member shall have no direct financial interest in the commercial production or marketing of watermelons except as a consumer and shall not be a director, stockholder, officer or employee of any firm so engaged. The Board shall nominate two individuals for the public member position. Voting for public member nominees shall require a quorum of the Board and shall be on the basis of one vote per Board member. Election of nominees shall be on the basis of a simple majority of those present and voting. Such election shall be held prior to August 1, 1990, and every third August first thereafter. The Board may prescribe such additional qualifications, administrative rules and procedures for selection and voting for public member nominees as it deems necessary and the Secretary approves.</P> <P>(b) Each person nominated for the position of public member on the Board shall qualify by filing a written acceptance with the Secretary within 14 calendar days of completion of the Board meeting at which public member nominees were selected.</P> <CITA>[55 FR 13256, Apr. 10, 1990. Redesignated and amended at 60 FR 10800, Feb. 28, 1995]</CITA> </SECTION> </SUBJGRP> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart C—Rules and Regulations</HD> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>55 FR 13256, Apr. 10, 1990, unless otherwise noted.</P> </SOURCE> <SUBJGRP> <HD SOURCE="HED">Definitions</HD> <SECTION> <SECTNO>§ 1210.500</SECTNO> <SUBJECT>Terms defined.</SUBJECT> <P>Unless otherwise defined in this subpart, definitions of terms used in this subpart shall have the same meaning as the definitions of such terms which appear in subpart—Watermelon Research and Promotion Plan.</P> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">General</HD> <SECTION> <SECTNO>§ 1210.501</SECTNO> <SUBJECT>Realignment of districts.</SUBJECT> <P>Pursuant to § 1210.320(c) of the Plan, the districts shall be as follows:</P> <P> <E T="03">District 1</E>—The Florida counties of Brevard, Broward, Collier, Dade, Glades, Hardee, Hendry, Highlands, Indian River, Lee, Martin, Monroe, Okeechobee, Osceola, Palm Beach, Polk, and St. Lucie.</P> <P> <E T="03">District 2</E>—The Florida counties of Alachula, Baker, Bay, Bradford, Calhoun, Charlotte, Citrus, Clay, Columbia, Desoto, Dixie, Duval, Escambia, Flagler, Franklin, Gadsden, Gilchrist, Gulf, Hamilton, Hernando, Hillsborough, Holmes, Jackson, Jefferson, Lafayette, Lake, Leon, Levy, Liberty, Madison, Manatee, Marion, Nassau, Okaloosa, Orange, Pasco, Pinnellas, Putnam, Santa Rosa, Sarasota, Seminole, St. Johns, Sumter, Suwannee, Taylor, Union, Volusia, Wakulla, Walton, and Washington.</P> <P> <E T="03">District 3</E>—Alabama, Arkansas, Georgia, Louisiana, Mississippi, South Carolina, and Tennessee.</P> <P> <E T="03">District 4</E>—Connecticut, Delaware, Illinois, Indiana, Iowa, Kansas, Kentucky, Massachusetts, Maryland, Maine, Michigan, Minnesota, Missouri, Nebraska, New Hampshire, New Jersey, New York, North Carolina, North Dakota, Ohio, Oklahoma, Pennsylvania, Rhode Island, South Dakota, Vermont, Virginia, Washington, D.C., West Virginia, and Wisconsin.<PRTPAGE P="113"/> </P> <P> <E T="03">District 5</E>—Alaska, Colorado, Hawaii, Idaho, Montana, Nevada, Oregon, Utah, Washington, Wyoming, and the California counties of Alameda, Alpine, Amador, Butte, Calaveras, Colusa, Contra Costa, Del Norte, El Dorado, Fresno, Glenn, Humboldt, Inyo, Kern, Kings, Lake, Lassen, Madera, Marin, Mariposa, Mendocino, Merced, Modoc, Mono, Monterey, Napa, Nevada, Placer, Plumas, Sacramento, San Benito, San Francisco, San Joaquin, San Luis Obispo, San Mateo, Santa Barbara, Santa Clara, Santa Cruz, Shasta, Sierra, Siskiyou, Solano, Sonoma, Stanislaus, Sutter, Tehama, Trinity, Tulare, Toulumne, Venture, Yolo, and Yuba.</P> <P> <E T="03">District 6</E>—Texas.</P> <P> <E T="03">District 7</E>—Arizona, New Mexico, and the California counties of Imperial, Los Angeles, Orange, Riverside, San Bernardino and San Diego.</P> <CITA>[66 FR 13402, Mar. 6, 2001]</CITA> </SECTION> <SECTION> <SECTNO>§1210.502</SECTNO> <RESERVED>[Reserved]</RESERVED> </SECTION> <SECTION> <SECTNO>§ 1210.504</SECTNO> <SUBJECT>Contracts.</SUBJECT> <P>The Board, with the approval of the Secretary, may enter into contracts or make agreements with persons for the development and submission to it of programs or projects authorized by the Plan and for carrying out such programs or projects. Contractors shall agree to comply with the provisions of this part. Subcontractors who enter into contracts or agreements with a Board contractor and who receive or otherwise utilize funds allocated by the Board shall be subject to the provisions of this part. All records of contractors and subcontractors applicable to contracts entered into by the Board are subject to audit by the Secretary.</P> </SECTION> <SECTION> <SECTNO>§ 1210.505</SECTNO> <SUBJECT>Department of Agriculture costs.</SUBJECT> <P>Pursuant to § 1210.340, the Board shall reimburse the Department of Agriculture for referendum and administrative costs incurred by the Department with respect to the Plan. The Board shall pay those costs incurred by the Department for the conduct of Department duties under the Plan as determined periodically by the Secretary. The Department will bill the Board monthly and payment shall be due promptly after the billing of such costs. Funds to cover such expenses shall be paid from assessments collected pursuant to § 1210.341.</P> <CITA>[55 FR 13256, Apr. 10, 1990, as amended at 60 FR 10800 Feb. 28, 1995]</CITA> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Assessments</HD> <SECTION> <SECTNO>§ 1210.515</SECTNO> <SUBJECT>Levy of assessments.</SUBJECT> <P>(a) An assessment of two cents per hundredweight shall be levied on all watermelons produced for ultimate consumption as human food, and an assessment of two cents per hundredweight shall be levied on all watermelons first handled for ultimate consumption as human food. An assessment of four cents per hundredweight shall be levied on all watermelons imported into the United States for ultimate consumption as human food at the time of entry in the United States.</P> <P>(b) The import assessment shall be uniformly applied to imported watermelons that are identified by the numbers 0807.10.30007 and 0807.10.40005 in the Harmonized Tariff Schedule of the United States or any other number used to identify fresh watermelons for consumption as human food. The U.S. Customs Service (USCS) will collect assessments on such watermelons at the time of entry and will forward such assessment as per the agreement between USCS and USDA. Any importer or agent who is exempt from payment of assessments may submit the Board adequate proof of the volume handled by such importer for the exemption to be granted.</P> <P>(c) Watermelons used for non-human food purposes are exempt from assessment requirements but are subject to the safeguard provisions of § 1210.521.</P> <CITA>[55 FR 13256, Apr. 10, 1990, as amended at 60 FR 10800, Feb. 28, 1995]</CITA> </SECTION> <SECTION> <SECTNO>§ 1210.516</SECTNO> <RESERVED>[Reserved]</RESERVED> </SECTION> <SECTION> <SECTNO>§ 1210.517</SECTNO> <SUBJECT>Determination of handler.</SUBJECT> <P>The producer and handler assessments on each lot of watermelons handled shall be paid by the handler. Unless otherwise provided in this section, the handler responsible for payment of assessments shall be the first handler of such watermelons. The first handler is the person who initially performs a <PRTPAGE P="114"/>handling function as heretofore defined. Such person may be a fresh shipper, processor, or other person who first places the watermelons in the current of commerce.</P> <P>(a) The following examples are provided to aid in the identification of first handlers:</P> <P>(1) Producer grades, packs, and sells watermelons of own production to a handler. In this instance, it is the handler, not the producer, who places the watermelons in the current of commerce. The handler is responsible for payment of the assessments.</P> <P>(2) Producer packs and sells watermelons of that producer's own production from the field, roadside stand, or storage to a consumer, trucker, retail or wholesales outlet, or other buyer who is not a handler of watermelons. The producer places the watermelons in the current of commerce and is the first handler.</P> <P>(3) Producer purchases watermelons from another producer. The producer purchasing the watermelons is the first handler.</P> <P>(4) Producer delivers field-run watermelons of own production to a handler for preparation for market and entry into the current of commerce. The handler, in this instance, is the first handler, regardless of whether the handler subsequently handles such watermelons for the account of the handler or for the account of the producer.</P> <P>(5) Producer delivers field-run watermelons of own production to a handler for preparation for market and return to the producer for sale. The producer in this instance, is the first handler, except when the producer subsequently sells such watermelons to a handler.</P> <P>(6) Producer delivers watermelons of own production to a handler who takes title to such watermelons. The handler who purchases such watermelons from the producer is the first handler.</P> <P>(7) Producer supplies watermelons to a cooperative marketing association which sells or markets the watermelons and makes an accounting to the producer, or pays the proceeds of the sale to the producer. In this instance, the cooperative marketing association becomes the first handler upon physical delivery to such cooperative.</P> <P>(8) Handler purchases watermelons from a producer's field for the purpose of preparing such watermelons for market or for transporting such watermelons to storage for subsequent handling. The handler who purchases such watermelons from the producer is the first handler.</P> <P>(9) Broker/Commission House receives watermelons from a producer and sells such watermelons in the Broker's/Commission House's name. In this instance, the Broker/Commission House is the first handler, regardless of whether the Broker/ Commission House took title to such watermelons.</P> <P>(10) Broker/Commission House, without taking title or possession of watermelons, sells such watermelons in the name of the producer. In this instance, the producer is the first handler.</P> <P>(11) Processor utilizes watermelons of own production in the manufacture of rind pickles, frozen, dehydrated, extracted, or canned products for human consumption. In so handling watermelons the processor is the first handler.</P> <P>(12) Processor purchases watermelons from the producer thereof. In this instance, the processor is the first handler even though the producer may have graded, packed, or otherwise handled such watermelons.</P> <P>(b) In the event of a handler's death, bankruptcy, receivership, or incapacity to act, the representative of the handler or the handler's estate shall be considered the handler of the watermelons for the purpose of this subpart.</P> <CITA>[55 FR 13256, Apr. 10, 1990, as amended at 58 FR 3356, Jan. 8, 1993]</CITA> </SECTION> <SECTION> <SECTNO>§ 1210.518</SECTNO> <SUBJECT>Payment of assessments.</SUBJECT> <P>(a) <E T="03">Time of payment.</E> The assessment on domestically produced watermelons shall become due at the time the first handler handles the watermelons for non-exempt purposes. The assessment on imported watermelons shall become due at the time of entry, or withdrawal, into the United States.</P> <P>(b) <E T="03">Responsibility for payment.</E> (1) The first handler is responsible for payment of both the producer's and the handler's assessment. The handler may collect the producer's assessment from the producer or deduct such producer's assessment from the proceeds paid to <PRTPAGE P="115"/>the producer on whose watermelons the producer assessment is made. Any such collection or deduction of producer assessment shall be made not later than the time when the first handler handles the watermelons.</P> <P>(2) The U.S. Customs Service shall collect assessments on imported watermelons from importers and forward such assessments under an agreement between the U.S. Customs Service and the U.S. Department of Agriculture. Importers shall be responsible for payment of assessments directly to the Board of any assessments due but not collected by the U.S. Customs Service at the time of entry, or withdrawal, on watermelons imported into the United States for human consumption.</P> <P>(c) <E T="03">Payment direct to the Board.</E> (1) Except as provided in paragraph (b) and (e) of this section, each handler and importer shall remit the required producer and handler assessments, pursuant to § 1210.341 of the Plan, directly to the Board not later than 30 days after the end of the month such assessments are due. Remittance shall be by check, draft, or money order payable to the National Watermelon Promotion Board, or NWPB, and shall be accompanied by a report, preferably on Board forms, pursuant to § 1210.350. To avoid late payment charges, the assessments must be mailed to the Board and postmarked within 30 days after the end of the month such assessments are due.</P> <P>(2) Pursuant to § 1210.350 of the Plan, each handler shall file with the Board a report for each month that assessable watermelons were handled. All handler reports shall contain at least the following information:</P> <P>(i) The handler's name, address, and telephone number;</P> <P>(ii) Date of report (which is also the date of payment to the Board);</P> <P>(iii) Period covered by the report;</P> <P>(iv) Total quantity of watermelons handled during the reporting period;</P> <P>(v) Date of last report remitting assessments to the Board; and</P> <P>(vi) Listing of all persons for whom the handler handled watermelons, their addresses, hundredweight handled, and total assessments remitted for each producer. In lieu of such a list, the handler may substitute copies of settlement sheets given to each person or computer generated reports, provided such settlement sheets or computer reports contain all the information listed above.</P> <P>(vii) Name, address, and hundredweight handled for each person claiming exemption for assessment.</P> <P>(viii) If the handler handled watermelons for persons engaged in the growing of less than 10 acres of watermelons, the report shall indicate the name and address of such person and the quantity of watermelons handled for such person.</P> <P>(3) The words “final report” shall be shown on the last report at the close of the handler's marketing season or at the end of each fiscal period if such handler markets assessable watermelons on a year-round basis.</P> <P>(4) <E T="03">Prepayment of assessments.</E> (i) In lieu of the monthly assessment and reporting requirements of paragraph (b) of this section, the Board may permit handlers to make an advance payment of their total estimated assessments for the crop year to the Board prior to their actual determination of assessable watermelons. The Board shall not be obligated to pay interest on any advance payment.</P> <P>(ii) Handlers using such procedures shall provide a final annual report of actual handling and remit any unpaid assessments not later than 30 days after the end of the last month of the designated handler's marketing season or at the end of each fiscal period if such handler markets assessable watermelons on a year-round basis.</P> <P>(iii) Handlers using such procedures shall, after filing a final annual report, receive a reimbursement of any overpayment of assessments.</P> <P>(iv) Handlers using such procedures shall, at the request of the Board to verify a producer's refund claim, provide the Board with a handling report on any and all producers for whom the handler has provided handling services but has not yet filed a handling report with the Board.</P> <P>(v) Specific requirements, instructions, and forms for making such advance payments shall be provided by the Board on request.</P> <P>(d) <E T="03">Late payment charges and interest.</E> (1) A late payment charge shall be imposed on any handler and importer who <PRTPAGE P="116"/>fails to make timely remittance to the Board of the total producer and handler and importer assessments for which any such handler and importer is liable. Such late payment shall be imposed on any assessments not received before the fortieth day after the end of the month such assessments are due. This one-time late payment charge shall be 10 percent of the assessments due before interest charges have accrued. The late payment charge will not be applied to any late payments postmarked within 30 days after the end of the month such assessments are due.</P> <P>(2) In addition to the late payment charge, one and one-half percent per month interest on the outstanding balance, including the late payment charge and any accrued interest, will be added to any accounts for which payment has not been received by the last day of the second month following the month of handling; <E T="03">Provided</E>, that, handlers paying their assessments in accordance with paragraph (c)(4)(ii), will not be subject to the one and one-half percent per month interest under this paragraph until the last day of the second month after such assessments are due under paragraph (c)(4)(ii). Such interest will continue monthly until the outstanding balance is paid to the Board.</P> <P>(e) <E T="03">Payment through cooperating agency.</E> The Board may enter into agreements, subject to approval of the Secretary, authorizing other organizations, such as a regional watermelon association or State watermelon board, to collect assessments in its behalf. In any State or area in which the Board has entered into such an agreement, the designated handler shall pay the assessment to such agency in the time and manner, and with such identifying information as specified in such agreement. Such an agreement shall not provide any cooperating agency with authority to collect confidential information from handlers or producers. To qualify, the cooperating agency must on its own accord have access to all information required by the Board for collection purposes. If the Board requires further evidence of payment than provided by the cooperating agency, it may acquire such evidence from individual handlers. All such agreements are subject to the requirements of the Act, Plan, and all applicable rules and regulations under the Act and the Plan.</P> <CITA>[55 FR 13256, Apr. 10, 1990; 55 FR 20443, May 17, 1990, as amended at 56 FR 15808, Apr. 18, 1991; 60 FR 10801, Feb. 28, 1995]</CITA> </SECTION> <SECTION> <SECTNO>§ 1210.519</SECTNO> <SUBJECT>Failure to report and remit.</SUBJECT> <P>Any handler and importer who fails to submit reports and remittances according to the provisions of § 1210.518 shall be subject to appropriate action by the Board which may include one or more of the following actions:</P> <P>(a) Audit of the handler's and importer's books and records to determine the amount owed the Board.</P> <P>(b) Establishment of an escrow account for the deposit of assessments collected. Frequency and schedule of deposits and withdrawals from the escrow account shall be determined by the Board with the approval of the Secretary.</P> <P>(c) Referral to the Secretary for appropriate enforcement action.</P> <CITA>[55 FR 13256, Apr. 10, 1990, as amended at 60 FR 10801, Feb. 28, 1995]</CITA> </SECTION> <SECTION> <SECTNO>§ 1210.520</SECTNO> <SUBJECT>Refunds.</SUBJECT> <P>Each importer of less than 150,000 pounds of watermelons during any calendar year shall be entitled to apply for a refund of the assessments paid in an amount equal to the amount paid by domestic producers.</P> <P>(a) <E T="03">Application form.</E> The Board shall make available to all importers a refund application form.</P> <P>(b) <E T="03">Submission of refund application to the Board.</E> The refund application form shall be submitted to the Board within 90 days of the last day of the year the watermelons were actually imported. The refund application form shall contain the following information:</P> <P>(1) Importer's name and address;</P> <P>(2) Number of hundredweight of watermelon on which refund is requested;</P> <P>(3) Total amount to be refunded;</P> <P>(4) Proof of payment as described below; and</P> <P>(5) Importer's signature.</P> <P>(c) <E T="03">Proof of payment of assessment.</E> Evidence of payment of assessments satisfactory to the Board shall accompany the importer's refund application. <PRTPAGE P="117"/>An importer must submit a copy of the importer's report or a cancelled check. Evidence submitted with a refund application shall not be returned to the applicant.</P> <P>(d) <E T="03">Payment of refund.</E> Immediately after receiving the properly executed application for refund, the Board shall make remittance to the applicant.</P> <CITA>[60 FR 10801, Feb. 28, 1995]</CITA> </SECTION> <SECTION> <SECTNO>§ 1210.521</SECTNO> <SUBJECT>Reports of disposition of exempted watermelons.</SUBJECT> <P>The Board may require reports by handlers or importers on the handling/importing and disposition of exempted watermelons and/or on the handling of watermelons for persons engaged in growing less than 10 acres of watermelons or in the case of importers, the importing of less than 150,000 pounds per year. Authorized employees of the Board or the Secretary may inspect such books and records as are appropriate and necessary to verify the reports on such disposition.</P> <CITA>[60 FR 10801, Feb. 28, 1995]</CITA> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Records</HD> <SECTION> <SECTNO>§ 1210.530</SECTNO> <SUBJECT>Retention period for records.</SUBJECT> <P>Each handler and importer required to make reports pursuant to this subpart shall maintain and retain for at least 2 years beyond the marketing year of their applicability:</P> <P>(a) One copy of each report made to the Board; and</P> <P>(b) Such records as are necessary to verify such reports.</P> <CITA>[55 FR 13256, Apr. 10, 1990, as amended at 60 FR 10801, Feb. 28, 1995]</CITA> </SECTION> <SECTION> <SECTNO>§ 1210.531</SECTNO> <SUBJECT>Availability of records.</SUBJECT> <P>Each handler and importer required to make reports pursuant to this subpart shall make available for inspection and copying by authorized employees of the Board or the Secretary during regular business hours, such records as are appropriate and necessary to verify reports required under this subpart.</P> <CITA>[55 FR 13256, Apr. 10, 1990, as amended at 60 FR 10801, Feb. 28, 1995]</CITA> </SECTION> <SECTION> <SECTNO>§ 1210.532</SECTNO> <SUBJECT>Confidential books, records, and reports.</SUBJECT> <P>All information obtained from the books, records, and reports of handlers and importers and all information with respect to refunds of assessments made to importers shall be kept confidential in the manner and to the extent provided for in § 1210.352.</P> <CITA>[60 FR 10801, Feb. 28, 1995]</CITA> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Miscellaneous</HD> <SECTION> <SECTNO>§ 1210.540</SECTNO> <SUBJECT>OMB assigned numbers.</SUBJECT> <P>The information collection and recordkeeping requirements contained in this part have been approved by the Office of Management and Budget (OMB) under the provisions of 44 U.S.C. chapter 35 and have been assigned OMB Control Number 0581-0093, except that Board member nominee background information sheets are assigned OMB Control Number 0505-0001.</P> <CITA>[58 FR 3356, Jan. 8, 1993]</CITA> </SECTION> </SUBJGRP> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart D—Referendum Procedures</HD> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>66 FR 56388, Nov. 7, 2001; 67 FR 17907, Apr. 12, 2002, unless otherwise noted.</P> </SOURCE> <SECTION> <SECTNO>§ 1210.600</SECTNO> <SUBJECT>General.</SUBJECT> <P>Referenda to determine whether eligible producers, handlers, and importers favor the continuation, suspension, termination, or amendment of the Watermelon Research and Promotion Plan shall be conducted in accordance with this subpart.</P> </SECTION> <SECTION> <SECTNO>§ 1210.601</SECTNO> <SUBJECT>Definitions.</SUBJECT> <P>Unless otherwise defined in this section, the definition of terms used in these procedures shall have the same meaning as the definitions in the Plan.</P> <P>(a) <E T="03">Administrator</E> means the Administrator of the Agricultural Marketing Service, with power to redelegate, or any officer or employee of the Department to whom authority has been delegated or may hereafter be delegated to act in the Administrator's stead.</P> <P>(b) <E T="03">Department</E> means the United States Department of Agriculture.</P> <P>(c) <E T="03">Eligible handler</E> means any person (except a common contract carrier of <PRTPAGE P="118"/>watermelons owned by another person) who handles watermelons, including a producer who handles watermelons of the producer's own production, subject to the provisions of § 1210.602(a) of this chapter, who handles watermelons as a person performing a handling function and either:</P> <P>(1) Takes title or possession of watermelons from a producer and directs the grading, packing, transporting, and selling of the watermelons in the current of commerce;</P> <P>(2) Purchases watermelons from producers;</P> <P>(3) Purchases watermelons from handlers;</P> <P>(4) Purchases watermelons from importers; or</P> <P>(5) Arranges the sale or transfer of watermelons from one party to another and takes title or possesssion of the watermelons: <E T="03">Provided</E>, That harvest crews and common carriers who collect and transport watermelons from the field to a handler are not handlers and that retailers, wholesale retailers, foodservice distributors, and foodservice operators are not handlers.</P> <P>(d) <E T="03">Eligible importer</E> means any person who imports 150,000 pounds or more watermelons annually into the United States as principal or as an agent, broker, or consignee for any person who produces watermelons outside the United States for sale in the United States. An importer who imports less than 150,000 pounds of watermelons annually and did not apply for and receive reimbursement of assessments is also an eligible importer.</P> <P>(e) <E T="03">Eligible producer</E> means any person who is engaged in the growing of 10 or more acres of watermelons, including any person who owns or shares the ownership and risk of loss of such watermelon crop. A person who shares the ownership and risk of loss includes a person who:</P> <P>(1) Owns and farms land, resulting in ownership, by said producer, of the watermelons produced thereon;</P> <P>(2) Rents and farms land, resulting in ownership, by said producer, of all or a portion of the watermelons produced thereon; or</P> <P>(3) Owns land which said producer does not farm and, as rental for such land, obtains the ownership of a portion of the watermelons produced thereon. Ownership of, or leasehold interest in land, and the acquisition, in any manner other than set forth in this subpart, of legal title to the watermelons grown on said land, shall not be deemed to result in such owners or lessees becoming producers. Persons who produce watermelons for non-food uses are not producers for the purposes of this subpart.</P> <P>(f) <E T="03">Person</E> means any individual, group of individuals, partnership, corporation, association, cooperative, or any other entity. For the purpose of this definition, the term partnership includes, but is not limited to:</P> <P>(1) A husband and wife who have title to, or leasehold interest in, land as tenants in common, joint tenants, tenants by the entirety, or, under community property laws, as community property, and</P> <P>(2) So-called <E T="03">joint ventures</E> wherein one or more parties to the agreement, informal or otherwise, contributed land and others contributed capital, labor, management, equipment, or other services, or any variation of such contributions by two or more parties, so that it results in the production, handling, or importation of watermelons for market and the authority to transfer title to the watermelons so produced, handled, or imported.</P> <P>(g) <E T="03">Referendum agent</E> or <E T="03">agent</E> means the individual or individuals designated by the Secretary to conduct the referendum.</P> <P>(h) <E T="03">Representative period</E> means the period designated by the Secretary pursuant to the Act.</P> </SECTION> <SECTION> <SECTNO>§ 1210.602</SECTNO> <SUBJECT>Voting.</SUBJECT> <P>(a) Each person who is an eligible producer, handler, or importer as defined in this subpart, at the time of the referendum and who also was a producer, handler, or importer during the representative period, shall be entitled to one vote in the referendum: <E T="03">Provided,</E> That each producer in a landlord-tenant relationship or a divided ownership arrangement involving totally independent entities cooperating only to produce watermelons in which more than one of the parties is a producer, shall be entitled to one vote in <PRTPAGE P="119"/>the referendum covering only that producer's share of the ownership: <E T="03">Provided further</E>, That the vote of a person who both produces and handles watermelons will be counted as a handler vote if the producer purchased watermelons from other producers, in a combined total volume that is equal to 25 percent or more of the producer's own production; or the combined total volume of watermelon handled by the producer from the producer's own production and purchased from other producer's production is more than 50 percent of the producer's own production: <E T="03">Provided further</E>, That the vote of a person who both imports and handles watermelons will be counted as an importer vote if that person imports 50 percent or more of the combined total volume of watermelons handled and imported by that person.</P> <P>(b) Proxy voting is not authorized, but an officer or employee of a corporate producer, handler, or importer, or an administrator, executor, or trustee of a producing, handling, or importing entity may cast a ballot on behalf of such entity. Any individual so voting in a referendum shall certify that the individual is an officer, employee of the producer, handler, or importer, or an administrator, executor, or trustee of a producing, handling, or importing entity and that the individual has the authority to take such action. Upon request of the referendum agent, the individual shall submit adequate evidence of such authority.</P> <P>(c) <E T="03">Casting of ballots</E>. All ballots are to be cast as instructed by the Secretary.</P> </SECTION> <SECTION> <SECTNO>§ 1210.603</SECTNO> <SUBJECT>Instructions.</SUBJECT> <P>The referendum agent shall conduct the referendum, in the manner provided in this section, under the supervision of the Administrator. The Administrator may prescribe additional instructions, not inconsistent with the provisions in this section, to govern the procedure to be followed by the referendum agent. Such agent shall:</P> <P>(a) Determine the period during which ballots may be cast.</P> <P>(b) Provide ballots and related material to be used in the referendum. The ballot shall provide for recording essential information, including that needed for ascertaining whether the person voting, or on whose behalf the vote is cast, is an eligible voter.</P> <P>(c) Give reasonable public notice of the referendum:</P> <P>(1) By utilizing available media or public information sources, without incurring advertising expense, to publicize the voting period, method of voting, eligibility requirements, and other pertinent information. Such sources of publicity may include, but are not limited to, print and radio; and</P> <P>(2) By such other means as said agent may deem advisable.</P> <P>(d) Mail to eligible producers; importers; and in the case of an order assessing handlers, handlers whose names and addresses are known to the referendum agent; the instructions on voting; a ballot; and a summary of the terms and conditions to be voted upon. No person who claims to be eligible to vote shall be refused a ballot. However, such persons may be required to submit evidence of their eligibility.</P> <P>(e) At the end of the voting period, collect, open, number, and review the ballots and tabulate the results in the presence of an agent of a third party authorized to monitor the referendum process.</P> <P>(f) Prepare a report on the referendum.</P> <P>(g) Announce the results to the public.</P> </SECTION> <SECTION> <SECTNO>§ 1210.604</SECTNO> <SUBJECT>Subagents.</SUBJECT> <P>The referendum agent may appoint any individual or individuals necessary to assist the agent in performing such agent's functions hereunder. Each individual so appointed may be authorized by the agent to perform any or all of the functions which, in the absence of such appointment, shall be performed by the agent.</P> </SECTION> <SECTION> <SECTNO>§ 1210.605</SECTNO> <SUBJECT>Ballots.</SUBJECT> <P>The referendum agent and subagents shall accept all ballots cast. However, if an agent or subagent deems that a ballot should be questioned for any reason, the agent or subagent shall endorse above their signature, on the ballot, a statement to the effect that such ballot was questioned, by whom questioned, why the ballot was questioned, the results of any investigation made <PRTPAGE P="120"/>with respect to the questionable ballot, and the disposition of the questionable ballot. Ballots invalid under this subpart shall not be counted.</P> </SECTION> <SECTION> <SECTNO>§ 1210.606</SECTNO> <SUBJECT>Referendum report.</SUBJECT> <P>Except as otherwise directed, the referendum agent shall prepare and submit to the Administrator a report on the results of the referendum, the manner in which it was conducted, the extent and kind of public notice given, and other information pertinent to analysis of the referendum and its results.</P> </SECTION> <SECTION> <SECTNO>§ 1210.607</SECTNO> <SUBJECT>Confidential information.</SUBJECT> <P>All ballots cast and their contents and all other information or reports furnished to, compiled by, or in possession of, the referendum agent or subagents that reveal, or tend to reveal, the identity or vote of any producer, handler, or importer of watermelons shall be held strictly confidential and shall not be disclosed.</P> </SECTION> </SUBPART> </PART> <PART> <EAR>Pt. 1214</EAR> <HD SOURCE="HED">PART 1214—KIWIFRUIT RESEARCH, PROMOTION, AND CONSUMER INFORMATION ORDER</HD> <CONTENTS> <SUBPART> <RESERVED>Subparts A-B [Reserved]</RESERVED> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart C—Procedure for the Conduct of Referenda in Connection With the Kiwifruit Research, Promotion, and Consumer Information Order</HD> <SECHD>Sec.</SECHD> <SECTNO>1214.200</SECTNO> <SUBJECT>General.</SUBJECT> <SECTNO>1214.201</SECTNO> <SUBJECT>Definitions.</SUBJECT> <SECTNO>1214.202</SECTNO> <SUBJECT>Voting.</SUBJECT> <SECTNO>1214.203</SECTNO> <SUBJECT>Instructions.</SUBJECT> <SECTNO>1214.204</SECTNO> <SUBJECT>Subagents.</SUBJECT> <SECTNO>1214.205</SECTNO> <SUBJECT>Ballots.</SUBJECT> <SECTNO>1214.206</SECTNO> <SUBJECT>Referendum report.</SUBJECT> <SECTNO>1214.207</SECTNO> <SUBJECT>Confidential information.</SUBJECT> </SUBPART> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>7 U.S.C. 7461-7473.</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>62 FR 54312, Oct. 17, 1997, unless otherwise noted.</P> </SOURCE> <SUBPART> <RESERVED>Subparts A-B [Reserved]</RESERVED> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart C—Procedure for the Conduct of Referenda in Connection With the Kiwifruit Research, Promotion, and Consumer Information Order</HD> <SECTION> <SECTNO>§ 1214.200</SECTNO> <SUBJECT>General.</SUBJECT> <P>A referendum to determine whether eligible producers and importers favor the issuance of a proposed Kiwifruit Research, Promotion, and Consumer Information Order shall be conducted in accordance with this subpart.</P> </SECTION> <SECTION> <SECTNO>§ 1214.201</SECTNO> <SUBJECT>Definitions.</SUBJECT> <P>Unless otherwise defined in this section, the definition of terms used in this subpart shall have the same meaning as the definitions in the Order.</P> <P>(a) <E T="03">Administrator</E> means the Administrator of the Agricultural Marketing Service, with power to redelegate, or any officer or employee of the Department to whom authority has been delegated or may hereafter be delegated to act in the Administrator's stead.</P> <P>(b) <E T="03">Order</E> means the Kiwifruit Research, Promotion, and Consumer Information Order.</P> <P>(c) <E T="03">Referendum agent</E> or agent means the individual or individuals designated by the Secretary to conduct the referendum.</P> <P>(d) <E T="03">Representative period</E> means the period designated by the Secretary.</P> <P>(e) <E T="03">Person</E> means any individual, group of individuals, partnership, corporation, association, cooperative, or any other legal entity. For the purpose of this definition, the term “partnership” includes, but is not limited to:</P> <P>(1) A husband and wife who has title to, or leasehold interest in, kiwifruit production facilities and equipment as tenants in common, joint tenants, tenants by the entirety, or, under community property laws, as community property, and</P> <P>(2) So-called “joint ventures,” wherein one or more parties to the agreement, informal or otherwise, contributed capital and others contributed labor, management, equipment, or other services, or any variation of such <PRTPAGE P="121"/>contributions by two or more parties so that it results in the production or importation of kiwifruit and the authority to transfer title to the kiwifruit so produced or imported.</P> <P>(f) <E T="03">Eligible producer</E> means any person or entity defined as a producer who produced 500 pounds or more of kiwifruit during the representative period and who:</P> <P>(1) Owns or shares in the ownership of kiwifruit production facilities and equipment resulting in the ownership of the kiwifruit produced;</P> <P>(2) Rents kiwifruit production facilities and equipment resulting in the ownership of all or a portion of the kiwifruit produced;</P> <P>(3) Owns kiwifruit production facilities and equipment but does not manage them and, as compensation, obtains the ownership of a portion of the kiwifruit produced; or</P> <P>(4) Is a party in a landlord-tenant relationship or a divided ownership arrangement involving totally independent entities cooperating only to produce kiwifruit who share the risk of loss and receive a share of the kiwifruit produced. No other acquisition of legal title to kiwifruit shall be deemed to result in persons becoming eligible producers.</P> <P>(g) <E T="03">Eligible importer</E> means any person or entity defined as an importer who imported 10,000 pounds or more during the representative period. Importation occurs when commodities originating outside the United States are entered or withdrawn from the U.S. Customs Service for consumption in the United States. Included are persons who hold title to foreign-produced kiwifruit immediately upon release by the U.S. Customs Service, as well as any persons who act on behalf of others, as agents or broker, to secure the release of kiwifruit from the U.S. Customs Service when such kiwifruit are entered or withdrawn for consumption in the United States.</P> <P>(h) <E T="03">Kiwifruit</E> means all varieties of fresh kiwifruit classified under the species <E T="03">Actinidia deliciosa</E> or the genus <E T="03">Actinidia,</E> whose fruit is a large berry, oval in shape, with a brown skin covered in hairs, which are grown in or imported into the United States.</P> </SECTION> <SECTION> <SECTNO>§ 1214.202</SECTNO> <SUBJECT>Voting.</SUBJECT> <P>(a) Each person who is an eligible producer or importer, as defined in this subpart, at the time of the referendum and during the representative period, shall be entitled to cast only one ballot in the referendum. However, each producer in a landlord-tenant relationship or a divided ownership arrangement involving totally independent entities cooperating only to produce kiwifruit, in which more than one of the parties is a producer, shall be entitled to cast one ballot in the referendum covering only such producer's share of the ownership.</P> <P>(b) Proxy voting is not authorized, but an officer or employee of an eligible corporate producer or importer, or an administrator, executor, or trustee of an eligible producing or importing entity may cast a ballot on behalf of such producer or importer entity. Any individual so voting in a referendum shall certify that such individual is an officer or employee of the eligible producer or importer, or an administrator, executor, or trustee of an eligible producing or importing entity, and that such individual has the authority to take such action. Upon request of the referendum agent, the individual shall submit adequate evidence of such authority.</P> <P>(c) All ballots are to be cast by mail.</P> </SECTION> <SECTION> <SECTNO>§ 1214.203</SECTNO> <SUBJECT>Instructions.</SUBJECT> <P>The referendum agent shall conduct the referendum, in the manner provided in this subpart, under the supervision of the Administrator. The Administrator may prescribe additional instructions, not inconsistent with the provisions of this section, to govern the procedure to be followed by the referendum agent. Such agent shall:</P> <P>(a) Determine the time of commencement and termination of the period during which ballots may be cast.</P> <P>(b) Provide ballots and related material to be used in the referendum. Ballot material shall provide for recording essential information including that needed for ascertaining:</P> <P>(1) Whether the person voting, or on whose behalf the vote is cast, is an eligible voter;<PRTPAGE P="122"/> </P> <P>(2) The total volume of kiwifruit produced by the voting producer during the representative period; and</P> <P>(3) The total volume of kiwifruit imported by the voting importer during the representative period.</P> <P>(c) Give reasonable advance public notice of the referendum:</P> <P>(1) By utilizing available media or public information sources, without incurring advertising expense, to publicize the dates, places, method of voting, eligibility requirements, and other pertinent information. Such sources of publicity may include, but are not limited to, print and radio; and</P> <P>(2) By such other means as the agent may deem advisable.</P> <P>(d) Mail to eligible producers and importers, whose names and addresses are known to the referendum agent, the instructions on voting, a ballot, and a summary of the terms and conditions of the proposed Order. No person who claims to be eligible to vote shall be refused a ballot.</P> <P>(e) At the end of the voting period, collect, open, number, and review the ballots and tabulate the results in presence of an agent of the Office of Inspector General.</P> <P>(f) Prepare a report on the referendum.</P> <P>(g) Announce the results to the public.</P> </SECTION> <SECTION> <SECTNO>§ 1214.204</SECTNO> <SUBJECT>Subagents.</SUBJECT> <P>The referendum agent may appoint any individual or individuals deemed necessary or desirable to assist the agent in performing such agent's functions in this subpart. Each individual so appointed may be authorized by the agent to perform any or all of the functions which, in the absence of such appointment, shall be performed by the agent.</P> </SECTION> <SECTION> <SECTNO>§ 1214.205</SECTNO> <SUBJECT>Ballots.</SUBJECT> <P>The referendum agent and subagents shall accept all ballots cast; but, should they, or any of them, deem that a ballot should be challenged for any reason, the agent or subagent shall endorse above their signature, on the ballot, a statement to the effect that such ballot was challenged, by whom challenged, the reasons therefore, the results of any investigations made with respect thereto, and the disposition thereof. Ballots invalid under this subpart shall not be counted.</P> </SECTION> <SECTION> <SECTNO>§ 1214.206</SECTNO> <SUBJECT>Referendum report.</SUBJECT> <P>Except as otherwise directed, the referendum agent shall prepare and submit to the Administrator a report on results of the referendum, the manner in which it was conducted, the extent and kind of public notice given, and other information pertinent to analysis of the referendum and its results.</P> </SECTION> <SECTION> <SECTNO>§ 1214.207</SECTNO> <SUBJECT>Confidential information.</SUBJECT> <P>The ballots and other information or reports that reveal, or tend to reveal, the vote of any person covered under the Act and the voting list shall be held confidential and shall not be disclosed.</P> </SECTION> </SUBPART> </PART> <PART> <EAR>Pt. 1215</EAR> <HD SOURCE="HED">PART 1215—POPCORN PROMOTION, RESEARCH, AND CONSUMER INFORMATION</HD> <CONTENTS> <SUBPART> <HD SOURCE="HED">Subpart A—Popcorn Promotion, Research, and Consumer Information Order</HD> <SUBJGRP> <HD SOURCE="HED">Definitions</HD> <SECHD>Sec.</SECHD> <SECTNO>1215.1</SECTNO> <SUBJECT>Act.</SUBJECT> <SECTNO>1215.2</SECTNO> <SUBJECT>Board.</SUBJECT> <SECTNO>1215.3</SECTNO> <SUBJECT>Board member.</SUBJECT> <SECTNO>1215.4</SECTNO> <SUBJECT>Commerce.</SUBJECT> <SECTNO>1215.5</SECTNO> <SUBJECT>Consumer information.</SUBJECT> <SECTNO>1215.6</SECTNO> <SUBJECT>Department.</SUBJECT> <SECTNO>1215.7</SECTNO> <SUBJECT>Fiscal year.</SUBJECT> <SECTNO>1215.8</SECTNO> <SUBJECT>Industry information.</SUBJECT> <SECTNO>1215.9</SECTNO> <SUBJECT>Marketing.</SUBJECT> <SECTNO>1215.10</SECTNO> <SUBJECT>Part and subpart.</SUBJECT> <SECTNO>1215.11</SECTNO> <SUBJECT>Person.</SUBJECT> <SECTNO>1215.12</SECTNO> <SUBJECT>Popcorn.</SUBJECT> <SECTNO>1215.13</SECTNO> <SUBJECT>Process.</SUBJECT> <SECTNO>1215.14</SECTNO> <SUBJECT>Processor.</SUBJECT> <SECTNO>1215.15</SECTNO> <SUBJECT>Programs, plans, and projects.</SUBJECT> <SECTNO>1215.16</SECTNO> <SUBJECT>Promotion.</SUBJECT> <SECTNO>1215.17</SECTNO> <SUBJECT>Research.</SUBJECT> <SECTNO>1215.18</SECTNO> <SUBJECT>Secretary.</SUBJECT> <SECTNO>1215.19</SECTNO> <SUBJECT>State.</SUBJECT> <SECTNO>1215.20</SECTNO> <SUBJECT>United States.</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Popcorn Board</HD> <SECTNO>1215.21</SECTNO> <SUBJECT>Establishment and membership.</SUBJECT> <SECTNO>1215.22</SECTNO> <SUBJECT>Nominations and appointment.</SUBJECT> <SECTNO>1215.23</SECTNO> <SUBJECT>Acceptance.</SUBJECT> <SECTNO>1215.24</SECTNO> <SUBJECT>Term of office.</SUBJECT> <SECTNO>1215.25</SECTNO> <SUBJECT>Vacancies.</SUBJECT> <SECTNO>1215.26</SECTNO> <SUBJECT>Removal.</SUBJECT> <SECTNO>1215.27</SECTNO> <SUBJECT>Procedure.</SUBJECT> <SECTNO>1215.28</SECTNO> <SUBJECT>Compensation and reimbursement.</SUBJECT> <SECTNO>1215.29</SECTNO> <SUBJECT>Powers.<PRTPAGE P="123"/> </SUBJECT> <SECTNO>1215.30</SECTNO> <SUBJECT>Duties.</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Promotion, Research, Consumer Information, and Industry Information</HD> <SECTNO>1215.40</SECTNO> <SUBJECT>Programs, plans, and projects.</SUBJECT> <SECTNO>1215.41</SECTNO> <SUBJECT>Contracts.</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Expenses and Assessments</HD> <SECTNO>1215.50</SECTNO> <SUBJECT>Budget and expenses.</SUBJECT> <SECTNO>1215.51</SECTNO> <SUBJECT>Assessments.</SUBJECT> <SECTNO>1215.52</SECTNO> <SUBJECT>Exemption from assessment.</SUBJECT> <SECTNO>1215.53</SECTNO> <SUBJECT>Influencing governmental action.</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Reports, Books, and Records</HD> <SECTNO>1215.60</SECTNO> <SUBJECT>Reports.</SUBJECT> <SECTNO>1215.61</SECTNO> <SUBJECT>Books and records.</SUBJECT> <SECTNO>1215.62</SECTNO> <SUBJECT>Confidential treatment.</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Miscellaneous</HD> <SECTNO>1215.70</SECTNO> <SUBJECT>Right of the Secretary.</SUBJECT> <SECTNO>1215.71</SECTNO> <SUBJECT>Suspension or termination.</SUBJECT> <SECTNO>1215.72</SECTNO> <SUBJECT>Proceedings after termination.</SUBJECT> <SECTNO>1215.73</SECTNO> <SUBJECT>Effect of termination or amendment.</SUBJECT> <SECTNO>1215.74</SECTNO> <SUBJECT>Personal liability.</SUBJECT> <SECTNO>1215.75</SECTNO> <SUBJECT>Patents, copyrights, inventions, publications, and product formulations.</SUBJECT> <SECTNO>1215.76</SECTNO> <SUBJECT>Amendments.</SUBJECT> <SECTNO>1215.77</SECTNO> <SUBJECT>Separability.</SUBJECT> </SUBJGRP> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart B—Rules and Regulations</HD> <SUBJGRP> <HD SOURCE="HED">Definitions</HD> <SECTNO>1215.100</SECTNO> <SUBJECT> Terms defined.</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Exemption Procedures</HD> <SECTNO>1215.300</SECTNO> <SUBJECT>Exemption procedures.</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Miscellaneous</HD> <SECTNO>1215.400</SECTNO> <SUBJECT>OMB control numbers.</SUBJECT> </SUBJGRP> </SUBPART> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>7 U.S.C. 7481-7491.</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>62 FR 39389, July 22, 1997, unless otherwise noted.</P> </SOURCE> <SUBPART> <HD SOURCE="HED">Subpart A—Popcorn Promotion, Research, and Consumer Information Order</HD> <SUBJGRP> <HD SOURCE="HED">Definitions</HD> <SECTION> <SECTNO>§ 1215.1</SECTNO> <SUBJECT>Act.</SUBJECT> <P> <E T="03">Act</E> means the Popcorn Promotion, Research, and Consumer Information Act of 1995, Subtitle E of Title V of the Federal Agriculture Improvement and Reform Act of 1996, Pub. L. 104-127, 7 U.S.C. 7481-7491, and any amendments thereto.</P> </SECTION> <SECTION> <SECTNO>§ 1215.2</SECTNO> <SUBJECT>Board.</SUBJECT> <P> <E T="03">Board</E> means the Popcorn Board established under section 575(b) of the Act.</P> </SECTION> <SECTION> <SECTNO>§ 1215.3</SECTNO> <SUBJECT>Board member.</SUBJECT> <P> <E T="03">Board member</E> means an officer or employee of a processor appointed by the Secretary to serve on the Popcorn Board as a representative of that processor.</P> </SECTION> <SECTION> <SECTNO>§ 1215.4</SECTNO> <SUBJECT>Commerce.</SUBJECT> <P> <E T="03">Commerce</E> means interstate, foreign, or intrastate commerce.</P> </SECTION> <SECTION> <SECTNO>§ 1215.5</SECTNO> <SUBJECT>Consumer information.</SUBJECT> <P> <E T="03">Consumer information</E> means information and programs that will assist consumers and other persons in making evaluations and decisions regarding the purchasing, preparing, and use of popcorn.</P> </SECTION> <SECTION> <SECTNO>§ 1215.6</SECTNO> <SUBJECT>Department.</SUBJECT> <P> <E T="03">Department</E> means the United States Department of Agriculture.</P> </SECTION> <SECTION> <SECTNO>§ 1215.7</SECTNO> <SUBJECT>Fiscal year.</SUBJECT> <P> <E T="03">Fiscal year</E> means the 12-month period from January 1 through December 31 each year, or such other period as recommended by the Board and approved by the Secretary.</P> </SECTION> <SECTION> <SECTNO>§ 1215.8</SECTNO> <SUBJECT>Industry information.</SUBJECT> <P> <E T="03">Industry information</E> means information and programs that will lead to the development of new markets, new marketing strategies, or increased efficiency for the popcorn industry, or activities to enhance the image of the popcorn industry.</P> </SECTION> <SECTION> <SECTNO>§ 1215.9</SECTNO> <SUBJECT>Marketing.</SUBJECT> <P> <E T="03">Marketing</E> means the sale or other disposition of unpopped popcorn for human consumption in a channel of commerce but shall not include sales or disposition to or between processors.</P> </SECTION> <SECTION> <SECTNO>§ 1215.10</SECTNO> <SUBJECT>Part and subpart.</SUBJECT> <P> <E T="03">Part</E> means the Popcorn Promotion, Research, and Consumer Information Order and all rules and regulations and supplemental orders issued thereunder, <PRTPAGE P="124"/>and the term <E T="03">subpart</E> means the Popcorn Promotion, Research, and Consumer Information Order.</P> </SECTION> <SECTION> <SECTNO>§ 1215.11</SECTNO> <SUBJECT>Person.</SUBJECT> <P> <E T="03">Person</E> means any individual, group of individuals, partnership, corporation, association, cooperative, or any other legal entity.</P> </SECTION> <SECTION> <SECTNO>§ 1215.12</SECTNO> <SUBJECT>Popcorn.</SUBJECT> <P> <E T="03">Popcorn</E> means unpopped popcorn (Zea Mays L) that is commercially grown, processed in the United States by shelling, cleaning, or drying, and introduced into a channel of commerce.</P> </SECTION> <SECTION> <SECTNO>§ 1215.13</SECTNO> <SUBJECT>Process.</SUBJECT> <P> <E T="03">Process</E> means to shell, clean, dry, and prepare popcorn for the market, but does not include packaging popcorn for the market without also engaging in another activity described in this paragraph.</P> </SECTION> <SECTION> <SECTNO>§ 1215.14</SECTNO> <SUBJECT>Processor.</SUBJECT> <P> <E T="03">Processor</E> means a person engaged in the preparation of unpopped popcorn for the market who owns or who shares the ownership and risk of loss of such popcorn and who processes and distributes over 4 million pounds of popcorn in the market per year.</P> </SECTION> <SECTION> <SECTNO>§ 1215.15</SECTNO> <SUBJECT>Programs, plans, and projects.</SUBJECT> <P> <E T="03">Programs, plans, and projects</E> means promotion, research, consumer information, and industry information plans, studies, projects, or programs conducted pursuant to this part.</P> </SECTION> <SECTION> <SECTNO>§ 1215.16</SECTNO> <SUBJECT>Promotion.</SUBJECT> <P> <E T="03">Promotion</E> means any action, including paid advertising, to enhance the image or desirability of popcorn.</P> </SECTION> <SECTION> <SECTNO>§ 1215.17</SECTNO> <SUBJECT>Research.</SUBJECT> <P> <E T="03">Research</E> means any type of study to advance the image, desirability, marketability, production, product development, quality, or nutritional value of popcorn.</P> </SECTION> <SECTION> <SECTNO>§ 1215.18</SECTNO> <SUBJECT>Secretary.</SUBJECT> <P> <E T="03">Secretary</E> means the Secretary of Agriculture of the United States or any officer or employee of the Department to whom authority has heretofore been delegated, or to whom authority may hereafter be delegated, to act in the Secretary's stead.</P> </SECTION> <SECTION> <SECTNO>§ 1215.19</SECTNO> <SUBJECT>State.</SUBJECT> <P> <E T="03">State</E> means each of the 50 States and the District of Columbia.</P> </SECTION> <SECTION> <SECTNO>§ 1215.20</SECTNO> <SUBJECT>United States.</SUBJECT> <P> <E T="03">United States</E> means all of the States.</P> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Popcorn Board</HD> <SECTION> <SECTNO>§ 1215.21</SECTNO> <SUBJECT>Establishment and membership.</SUBJECT> <P>(a) There is hereby established a Popcorn Board of nine members. The number of members on the Board may be changed by regulation: <E T="03">Provided,</E> That the Board consist of not fewer than four members and not more than nine members. The Board shall be composed of popcorn processors appointed by the Secretary under § 1215.24.</P> <P>(b) For purposes of nominating and appointing processors to the Board, the Secretary shall, to the extent practicable, take into account the geographic distribution of popcorn production.</P> <P>(c) No more than one officer or employee of a processor may serve as a Board member at the same time.</P> </SECTION> <SECTION> <SECTNO>§ 1215.22</SECTNO> <SUBJECT>Nominations and appointment.</SUBJECT> <P>(a) All nominations for appointments to the Board established under § 1215.21 shall be made as follows:</P> <P>(1) As soon as practicable after the effective date of this subpart, nominations for appointment to the initial Board shall be obtained from processors by the Secretary. In any subsequent year in which an appointment to the Board is to be made, nominations for positions for which the term will expire at the end of that year shall be obtained from processors at least six months prior to the expiration of terms.</P> <P>(2) Except for initial Board members, whose nomination process will be initiated by the Secretary, the Board shall issue a call for nominations in each year for which an appointment to the <PRTPAGE P="125"/>Board is to be made. The call shall include, at a minimum, the following information:</P> <P>(i) A list of the vacancies for which nominees may be submitted and qualifications for nomination; and</P> <P>(ii) The date by which the names of nominees shall be submitted to the Secretary for consideration to be in compliance with paragraph (a) of this section.</P> <P>(3)(i) Nominations for each position shall be made by processors. Notice shall be publicized to all processors.</P> <P>(ii) All processors may participate in submitting nominations.</P> <P>(4) Two nominees must be submitted for each vacancy. If processors fail to nominate a sufficient number of nominees, additional nominees shall be obtained in a manner prescribed by the Secretary.</P> <P>(b) The Secretary shall appoint the members of the Board from nominations made in accordance with paragraph (a).</P> <P>(1) The Secretary may reject any nominee submitted. If there is an insufficient number of nominees from whom to appoint members to the Board as a result of the Secretary's rejecting such nominees, additional nominees shall be submitted to the Secretary in a manner prescribed by the Secretary.</P> <P>(2) Whenever processors cannot agree on nominees for a position on the Board under the preceding provisions of this section, or whenever they fail to nominate individuals for appointment to the Board, the Secretary may appoint members in such a manner as the Secretary determines appropriate.</P> <P>(3) If a processor nominates more than one officer or employee, only one may be appointed to the Board by the Secretary.</P> </SECTION> <SECTION> <SECTNO>§ 1215.23</SECTNO> <SUBJECT>Acceptance.</SUBJECT> <P>Each individual nominated for membership of the Board shall qualify by filing a written acceptance with the Secretary at the time of nomination.</P> </SECTION> <SECTION> <SECTNO>§ 1215.24</SECTNO> <SUBJECT>Term of office.</SUBJECT> <P>(a) The members of the Board shall serve for terms of three years, except that members appointed to the initial Board shall serve, to the extent practicable, proportionately for terms of two, three, and four years.</P> <P>(b)(1) Except with respect to terms of office of the initial Board, the term of office for each Board member shall begin on the date the member is seated at the Board's annual meeting or such other date that may be approved by the Secretary.</P> <P>(2) The term of office for the initial Board member shall begin immediately following the appointment by the Secretary.</P> <P>(c) Board members shall serve during the term of office for which they are appointed and have qualified, and until their successors are appointed and have qualified.</P> <P>(d) No Board member may serve more than two consecutive three-year terms, except as provided in § 1215.25(d). Initial members serving two- or four-year terms may serve one successive three-year term.</P> </SECTION> <SECTION> <SECTNO>§ 1215.25</SECTNO> <SUBJECT>Vacancies.</SUBJECT> <P>(a) To fill any vacancy occasioned by the death, removal, resignation, or disqualification of any member of the Board, the Secretary may appoint a successor from the most recent nominations submitted for positions on the Board or the Secretary may obtain nominees to fill such vacancy in such a manner as the Secretary deems appropriate.</P> <P>(b) Each such successor appointment shall be for the remainder of the term vacated.</P> <P>(c) A vacancy will not be required to be filled if the unexpired term is less than six months.</P> <P>(d) If an unexpired term is less than 1.5 years, serving the term shall not prevent the appointee from serving two successive three-year terms.</P> <P>(e) A Board member shall be disqualified from serving on the Board if such individual ceases to be affiliated with the processor the member represents.</P> </SECTION> <SECTION> <SECTNO>§ 1215.26</SECTNO> <SUBJECT>Removal.</SUBJECT> <P>If a member of the Board consistently refuses to perform the duties of a member of the Board, or if a member of the Board is known to be engaged in acts of dishonesty or willful misconduct, the Board may recommend to <PRTPAGE P="126"/>the Secretary that the member be removed from office. Further, without recommendation of the Board, a member may be removed by the Secretary upon showing of adequate cause, including the failure by a member to submit reports or remit assessments required under this part, if the Secretary determines that such member's continued service will be detrimental to the achievement of the purposes of the Act.</P> </SECTION> <SECTION> <SECTNO>§ 1215.27</SECTNO> <SUBJECT>Procedure.</SUBJECT> <P>(a) At a properly convened meeting of the Board, a majority of the members shall constitute a quorum.</P> <P>(b) Each member of the Board will be entitled to one vote on any matter put to the Board, and the motion will carry if supported by a simple majority of those voting. At assembled meetings of the Board, all votes will be cast in person.</P> <P>(c) In lieu of voting at a properly convened meeting and, when in the opinion of the chairperson of the Board such action is considered necessary, the Board may take action upon the concurring votes by a majority of its members by mail, telephone, facsimile, or any other means of communication. If appropriate, any such action shall be confirmed promptly in writing. In that event, all members must be given prior notice and provided the opportunity to vote. Any action so taken shall have the same force and effect as though such action had been taken at a properly convened meeting of the Board. All votes shall be recorded in Board minutes.</P> <P>(d) Meetings of the Board may be conducted by electronic communications, provided that each member is given prior notice of the meeting and has the opportunity to be present either physically or by electronic connection.</P> <P>(e) The organization of the Board and the procedures for conducting meetings of the Board shall be in accordance with its bylaws, which shall be established by the Board and approved by the Secretary.</P> </SECTION> <SECTION> <SECTNO>§ 1215.28</SECTNO> <SUBJECT>Compensation and reimbursement.</SUBJECT> <P>The members of the Board shall serve without compensation but shall be reimbursed for necessary and reasonable expenses incurred by such members in the performance of their responsibilities under this subpart.</P> </SECTION> <SECTION> <SECTNO>§ 1215.29</SECTNO> <SUBJECT>Powers.</SUBJECT> <P>The Board shall have the following powers:</P> <P>(a) To administer the Order in accordance with its terms and provisions;</P> <P>(b) To make rules and regulations to effectuate the terms and provisions of the Order;</P> <P>(c) To select committees and subcommittees of Board members, including an executive committee, and to adopt such bylaws and other rules for the conduct of its business as it may deem advisable;</P> <P>(d) To appoint or employ such individuals as it may deem necessary, define the duties, and determine the compensation of such individuals;</P> <P>(e) To disseminate information to processors or industry organizations through programs or by direct contact using the public postal system or other systems;</P> <P>(f) To propose, receive, evaluate and approve budgets, plans and projects of popcorn promotion, research, consumer information and industry information, as well as to contract with the approval of the Secretary with appropriate persons to implement plans and projects;</P> <P>(g) To receive, investigate, and report to the Secretary for action any complaints of violations of the Order;</P> <P>(h) To recommend to the Secretary amendments to the order;</P> <P>(i) To accept or receive voluntary contributions;</P> <P>(j) To invest, pending disbursement pursuant to a program, plan or project, funds collected through assessments authorized under this Act provided for in § 1215.51, and any other funds received by the Board in, and only in, obligations of the United States or any agency thereof, in general obligations of any State or any political subdivision thereof, in any interest bearing account or certificate of deposit or a bank that is a member of the Federal Reserve System, or in obligations fully guaranteed as to principal and interest by the United States;<PRTPAGE P="127"/> </P> <P>(k) With the approval of the Secretary, to enter into contracts or agreements with national, regional, or State popcorn processor organizations, or other organizations or entities, for the development and conduct of programs, plans or projects authorized under § 1215.40 and for the payment of the cost of such programs with assessments received pursuant to this subpart; and</P> <P>(l) Such other powers as may be approved by the Secretary.</P> </SECTION> <SECTION> <SECTNO>§ 1215.30</SECTNO> <SUBJECT>Duties.</SUBJECT> <P>The Board shall have the following duties:</P> <P>(a) To meet not less than annually, and to organize and select from among its members a chairperson and such other officers as may be necessary;</P> <P>(b) To evaluate or develop, and submit to the Secretary for approval, promotion, research, consumer information, and industry information programs, plans or projects;</P> <P>(c) To prepare for each fiscal year, and submit to the Secretary for approval at least 60 days prior to the beginning of each fiscal year, a budget of its anticipated expenses and disbursements in the administration of this subpart, as provided in § 1215.50;</P> <P>(d) To maintain such books and records, which shall be available to the Secretary for inspection and audit, and to prepare and submit such reports from time to time to the Secretary, as the Secretary may prescribe, and to make appropriate accounting with respect to the receipt and disbursement of all funds entrusted to it;</P> <P>(e) To prepare and make public, at least annually, a report of its activities carried out, and an accounting for funds received and expended;</P> <P>(f) To cause its financial statements to be prepared in conformity with generally accepted accounting principles and to be audited by an independent certified public accountant in accordance with generally accepted auditing standards at least once each fiscal year and at such other times as the Secretary may request, and submit a copy of each such audit to the Secretary;</P> <P>(g) To give the Secretary the same notice of meetings of the Board as is given to members in order that the Secretary, or a representative of the Secretary, may attend such meetings;</P> <P>(h) To submit to the Secretary such information as may be requested pursuant to this subpart;</P> <P>(i) To keep minutes, books and records that clearly reflect all the acts and transactions of the Board. Minutes of each Board meeting shall be promptly reported to the Secretary;</P> <P>(j) To act as intermediary between the Secretary and any processor;</P> <P>(k) To investigate violations of the Act, order, and regulations issued under the order, conduct audits, and report the results of such investigations and audits to the Secretary for appropriate action to enforce the provisions of the Act, order, and regulations; and</P> <P>(l) To work to achieve an effective, continuous, and coordinated program of promotion, research, consumer information, and industry information designed to strengthen the popcorn industry's position in the marketplace, maintain and expand existing markets and uses for popcorn, develop new markets and uses for popcorn, and to carry out programs, plans, and projects designed to provide maximum benefits to the popcorn industry.</P> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Promotion, Research, Consumer Information, and Industry Information</HD> <SECTION> <SECTNO>§ 1215.40</SECTNO> <SUBJECT>Programs, plans, and projects.</SUBJECT> <P>(a) The Board shall receive and evaluate, or on its own initiative develop, and submit to the Secretary for approval any program, plan or project authorized under this subpart. Such programs, plans or projects shall provide for:</P> <P>(1) The establishment, issuance, effectuation, and administration of appropriate programs for promotion, research, consumer information, and industry information with respect to popcorn; and</P> <P>(2) The establishment and conduct of research with respect to the sale, distribution, marketing, and use of popcorn, and the creation of new uses thereof, to the end that the marketing and use of popcorn may be encouraged, <PRTPAGE P="128"/>expanded, improved, or made more acceptable.</P> <P>(b) No program, plan, or project shall be implemented prior to its approval by the Secretary. Once a program, plan, or project is so approved, the Board may take appropriate steps to implement it.</P> <P>(c) Each program, plan, or project implemented under this subpart shall be reviewed or evaluated periodically by the Board to ensure that it contributes to an effective program of promotion, research, consumer information, or industry information. If it is found by the Board that any such program, plan, or project does not contribute to an effective program of promotion, research, consumer information, or industry information, then the Board shall terminate such program, plan, or project.</P> <P>(d) In carrying out any program, plan, or project, no reference to a brand name, trade name, or State or regional identification of any popcorn will be made. In addition, no program, plan, or project shall make use of unfair or deceptive acts or practices with respect to the quality, value, or use of any competing product.</P> </SECTION> <SECTION> <SECTNO>§ 1215.41</SECTNO> <SUBJECT>Contracts.</SUBJECT> <P>The Board shall not contract with any processor for the purpose of promotion or research. The Board may lease physical facilities from a processor for such promotion or research, if such an arrangement is determined to be cost effective by the Board and approved by the Secretary. Any contract or agreement shall provide that:</P> <P>(a) The contractor or agreeing party shall develop and submit to the Board a program, plan or project together with a budget or budgets that shall show the estimated cost to be incurred for such program, plan, or project;</P> <P>(b) Any such program, plan, or project shall become effective upon approval by the Secretary;</P> <P>(c) The contracting or agreeing party shall keep accurate records of all of its transactions and make periodic reports to the Board of activities conducted, submit accountings for funds received and expended, and make such other reports as the Secretary or the Board may require; and the Secretary may audit the records of the contracting or agreeing party periodically; and</P> <P>(d) Any subcontractor who enters into a contract with a Board contractor and who receives or otherwise uses funds allocated by the Board shall be subject to the same provisions as the contractor.</P> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Expenses and Assessments</HD> <SECTION> <SECTNO>§ 1215.50</SECTNO> <SUBJECT>Budget and expenses.</SUBJECT> <P>(a) At least 60 days prior to the beginning of each fiscal year, and as may be necessary thereafter, the Board shall prepare and submit to the Secretary a budget for the fiscal year covering its anticipated expenses and disbursements in administering this subpart.</P> <P>(b) Each budget shall include:</P> <P>(1) A rate of assessment for such fiscal year calculated, subject to § 1215.51(b), to provide adequate funds to defray its proposed expenditures and to provide for a reserve as set forth in paragraph (g) of this section;</P> <P>(2) A statement of the objectives and strategy for each program, plan, or project;</P> <P>(3) A summary of anticipated revenue, with comparative data for at least one preceding year;</P> <P>(4) A summary of proposed expenditures for each program, plan, or project; and</P> <P>(5) Staff and administrative expense breakdowns, with comparative data for at least one preceding year.</P> <P>(c) In budgeting plans and projects of promotion, research, consumer information, and industry information, the Board shall expend assessment and contribution funds on:</P> <P>(1) Plans and projects for popcorn marketed in the United States or Canada in proportion to the amount of assessments projected to be collected on domestically marketed popcorn (including Canada); and</P> <P>(2) Plans and projects for exported popcorn in proportion to the amount of assessments projected to be collected on exported popcorn (excluding Canada).</P> <P>(d) The Board is authorized to incur such reasonable expenses, including provision for a reasonable reserve, as the Secretary finds are reasonable and <PRTPAGE P="129"/>likely to be incurred by the Board for its maintenance and functioning, and to enable it to exercise its powers and perform its duties in accordance with the provisions of this subpart. Such expenses shall be paid from funds received by the Board.</P> <P>(e) The Board may accept voluntary contributions, but these shall only be used to pay expenses incurred in the conduct of programs, plans, and projects approved by the Secretary. Such contributions shall be free from any encumbrances by the donor and the Board shall retain complete control of their use. The Board may also receive funds provided through the Foreign Agricultural Service of the United States Department of Agriculture for foreign marketing activities.</P> <P>(f) As stated in section 75(f)(4)(A)(ii) of the Act, the Board shall reimburse the Secretary, from funds received by the Board, for costs incurred by the Secretary in implementing and administering this subpart: <E T="03">Provided,</E> That the costs incurred by the Secretary to be reimbursed by the Board, excluding legal costs to defend and enforce the order, shall not exceed 15 percent of the projected annual revenues of the Board.</P> <P>(g) The Board may establish an operating monetary reserve and may carry over to subsequent fiscal periods excess funds in any reserve so established, except that the funds in this reserve shall not exceed approximately one fiscal year's expenses. Such reserve funds may be used to defray any expenses authorized under this subpart.</P> <P>(h) With the approval of the Secretary, the Board may borrow money for the payment of administrative expenses, subject to the same fiscal, budget, and audit controls as other funds of the Board during its first year of operation only.</P> </SECTION> <SECTION> <SECTNO>§ 1215.51</SECTNO> <SUBJECT>Assessments.</SUBJECT> <P>(a) Any processor marketing popcorn in the United States or for export shall pay an assessment on such popcorn at the time of introduction to market at a rate as established in § 1215.51(c) and shall remit such assessment to the Board in such form and manner as prescribed by the Board.</P> <P>(b) Any person marketing popcorn of that person's own production to consumers in the United States either directly or through retail or wholesale outlets, shall remit to the Board an assessment on such popcorn at the rate set forth in paragraph § 1215.51(c), and in such form and manner as prescribed by the Board.</P> <P>(c) Except as otherwise provided, the rate of assessment shall be 5 cents per hundredweight of popcorn. The rate of assessment may be raised or lowered as recommended by the Board and approved by the Secretary, but shall not exceed 8 cents per hundredweight in any fiscal year.</P> <P>(d) The collection of assessments under this section shall commence on all popcorn processed in the United States on or after the date established by the Secretary, and shall continue until terminated by the Secretary. If the Board is not constituted on the date the first assessments are to be collected, the Secretary shall have the authority to receive assessments on behalf of the Board and may hold such assessments until the Board is constituted, then remit such assessments to the Board.</P> <P>(e) Each person responsible for remitting assessments under paragraphs (a) and (b) of this section shall remit the amounts due from assessments to the Board on a quarterly basis no later than the last day of the month following the last month in the previous quarter in which the popcorn was marketed, in such manner as prescribed by the Board.</P> <P>(f) The Board shall impose a late payment charge on any person who fails to remit to the Board the total amount for which the person is liable on or before the payment due date established under this section. The amount of the late payment charge shall be prescribed in rules and regulations as approved by the Secretary.</P> <P>(g) The Board shall impose an additional charge on any person subject to a late payment charge, in the form of interest on the outstanding portion of any amount for which the person is liable. The rate of interest shall be prescribed in rules and regulations as approved by the Secretary.<PRTPAGE P="130"/> </P> <P>(h) In addition, persons failing to remit total assessments due in a timely manner may also be subject to penalties and actions under federal debt collection procedures as set forth in 7 CFR 3.1 through 3.36.</P> <P>(i) Any assessment that is determined to be owing at a date later than the payment due established under this section, due to a person's failure to submit a report to the Board by the payment due date, shall be considered to have been payable on the payment due date. Under such a situation, paragraphs (f), (g), and (h) of this section shall be applicable.</P> <P>(j) The Board, with the approval of the Secretary, may enter into agreements authorizing other organizations or entities to collect assessments on its behalf. Any such organization or entity shall be required to maintain the confidentiality of such information as is required by the Board for collection purposes. Any reimbursement by the Board for such services shall be based on reasonable charges for services rendered.</P> <P>(k) The Board is hereby authorized to accept advance payment of assessments for the fiscal year by any person, that shall be credited toward any amount for which such person may become liable. The Board shall not be obligated to pay interest on any advance payment.</P> </SECTION> <SECTION> <SECTNO>§ 1215.52</SECTNO> <SUBJECT>Exemption from assessment.</SUBJECT> <P>(a) Persons that process and distribute 4 million pounds or less of popcorn annually, based on the previous year, shall be exempted from assessment.</P> <P>(b) To claim such exemption, such persons shall apply to the Board, in the form and manner prescribed in the rules and regulations.</P> </SECTION> <SECTION> <SECTNO>§ 1215.53</SECTNO> <SUBJECT>Influencing governmental action.</SUBJECT> <P>No funds received by the Board under this subpart shall in any manner be used for the purpose of influencing legislation or governmental policy or action, except to develop and recommend to the Secretary amendments to this subpart.</P> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Reports, Books, and Records</HD> <SECTION> <SECTNO>§ 1215.60</SECTNO> <SUBJECT>Reports.</SUBJECT> <P>(a) Each processor marketing popcorn directly to consumers, and each processor responsible for the remittance of assessments under § 1215.51, shall be required to report quarterly to the Board, on a form provided by the Board, such information as may be required under this subpart or any rule and regulations issued thereunder. Such information shall be subject to § 1215.62 and include, but not be limited to, the following:</P> <P>(1) The processor's name, address, telephone number, and Social Security Number or Employer Identification Number;</P> <P>(2) The date of report, which is also the date of payment to the Board;</P> <P>(3) The period covered by the report;</P> <P>(4) The number of pounds of popcorn marketed or in any other manner are subject to the collection of assessments;</P> <P>(5) The amount of assessments remitted;</P> <P>(6) The basis, if necessary, to show why the remittance is less than the number of pounds of popcorn divided by 100 and multiplied by the applicable assessment rate; and</P> <P>(7) The amount of assessments remitted on exports (not including Canada).</P> <P>(b) The words “final report” shall be shown on the last report at the end of each fiscal year.</P> </SECTION> <SECTION> <SECTNO>§ 1215.61</SECTNO> <SUBJECT>Books and records.</SUBJECT> <P>Each person who is subject to this subpart shall maintain and make available for inspection by the Board or the Secretary such books and records as are deemed necessary by the Board, with the approval of the Secretary, to carry out the provisions of this subpart and any rules and regulations issued hereunder, including such books and records as are necessary to verify any reports required. Such books and records shall be retained for at least two years beyond the fiscal year of their applicability.</P> </SECTION> <SECTION> <SECTNO>§ 1215.62</SECTNO> <SUBJECT>Confidential treatment.</SUBJECT> <P>(a) All information obtained from books, records, or reports under the <PRTPAGE P="131"/>Act, this subpart, and the rule and regulations issued thereunder shall be kept confidential by all persons, including all employees, agents, and former employees and agents of the Board; all officers, employees, agents, and former officers, employees, and agents of the Department; and all officers, employees, agents, and former officers, employees, and agents of contracting and subcontracting agencies or agreeing parties having access to such information. Such information shall not be available to Board members or processors. Only those persons having a specific need for such information to administer effectively the provisions of this part shall have access to such information. Only such information so obtained as the Secretary deems relevant shall be disclosed by them, and then only in a suit or administrative hearing brought at the direction, or on the request, of the Secretary, or to which the Secretary or any officer of the United States is a party, and involving this part.</P> <P>(b) No information obtained under the authority of this part may be made available to any agency or officer of the Federal Government for any purpose other than the implementation of the Act and any investigatory or enforcement action necessary for the implementation of the Act.</P> <P>(c) Nothing in paragraph (a) of this section may be deemed to prohibit:</P> <P>(1) The issuance of general statements based upon the reports of the number of persons subject to this part or statistical data collected therefrom, which statements do not identify the information furnished by any person;</P> <P>(2) The publication, by direction of the Secretary, of the name of any person who has violated this part, together with a statement of the particular provisions of this part violated by such person.</P> <P>(d) Any person who knowingly violated the provisions of this section, on conviction, shall be subject to a fine of not more than $1,000 or to imprisonment for not more than 1 year, or both, or if the person is an officer, employee, or agent of the Board or the Department, that person shall be removed from office or terminated from employment as applicable.</P> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Miscellaneous</HD> <SECTION> <SECTNO>§ 1215.70</SECTNO> <SUBJECT>Right of the Secretary.</SUBJECT> <P>All fiscal matters, programs, plans, or projects, contracts, rules or regulations, reports, or other substantive actions proposed and prepared by the Board shall be submitted to the Secretary for approval.</P> </SECTION> <SECTION> <SECTNO>§ 1215.71</SECTNO> <SUBJECT>Suspension or termination.</SUBJECT> <P>(a) Whenever the Secretary finds that this subpart or any provision thereof obstructs or does not tend to effectuate the declared policy of the Act, the Secretary shall terminate or suspend the operation of this subpart or such provision thereof.</P> <P>(b) The Secretary may conduct additional referenda to determine whether processors favor termination or suspension of this subpart three years after the effective date, on the request of a representative group comprising 30 percent or more of the number of processors who have been engaged in processing during a representative period as determined by the Secretary.</P> <P>(c) Whenever the Secretary determines that suspension or termination of this subpart is favored by two-thirds or more of the popcorn processors voting in a referendum under paragraph (b) of this section who, during a representative period determined by the Secretary, have been engaged in the processing, the Secretary shall:</P> <P>(1) Suspend or terminate, as appropriate, collection of assessments within six months after making such determination; and</P> <P>(2) Suspend or terminate, as appropriate, all activities under this subpart in an orderly manner as soon as practicable.</P> <P>(d) Referenda conducted under this subsection shall be conducted in such manner as the Secretary may prescribe.</P> </SECTION> <SECTION> <SECTNO>§ 1215.72</SECTNO> <SUBJECT>Proceedings after termination.</SUBJECT> <P>(a) Upon the termination of this subpart, the Board shall recommend not more than five of its members to the Secretary to serve as trustees for the purpose of liquidating the affairs of the Board. Such persons, upon designation by the Secretary, shall become trustees <PRTPAGE P="132"/>of all the funds and property owned, in the possession of, or under the control of the Board, including any claims unpaid or property not delivered, or any other claim existing at the time of such termination.</P> <P>(b) The trustees shall:</P> <P>(1) Continue in such capacity until discharged by the Secretary;</P> <P>(2) Carry out the obligations of the Board under any contract or agreement entered into by it under this subpart;</P> <P>(3) From time to time account for all receipts and disbursements, and deliver all property on hand, together with all books and records of the Board and of the trustees, to such persons as the Secretary may direct; and</P> <P>(4) Upon the request of the Secretary, execute such assignments or other instruments necessary or appropriate to vest in such other persons full title and right to all of the funds, property, and claims vested in the Board or the trustees under this subpart.</P> <P>(c) Any person to whom funds, property, or claims have been transferred or delivered under this subpart shall be subject to the same obligations imposed upon the Board and upon the trustees.</P> <P>(d) Any residual funds not required to defray the necessary expenses of liquidation shall be turned over to the Secretary to be used, to the extent practicable, in the interest of continuing one or more of the promotion, research, consumer information or industry information programs, plans, or projects authorized under this subpart.</P> </SECTION> <SECTION> <SECTNO>§ 1215.73</SECTNO> <SUBJECT>Effect of termination or amendment.</SUBJECT> <P>Unless otherwise expressly provided by the Secretary, the termination of this subpart or of any rule and regulation issued under this subpart, or the issuance of any amendment to such provisions, shall not:</P> <P>(a) Affect or waive any right, duty, obligation, or liability that shall have arisen or may hereafter arise in connection with any provision of this subpart or any such rules or regulations;</P> <P>(b) Release or extinguish any violation of this subpart or any such rules or regulations; or</P> <P>(c) Affect or impair any rights or remedies of the United States, the Secretary, or any person with respect to any such violation.</P> </SECTION> <SECTION> <SECTNO>§ 1215.74</SECTNO> <SUBJECT>Personal liability.</SUBJECT> <P>No member or employee of the Board shall be held personally responsible, either individually or jointly, in any way whatsoever, to any person for errors in judgment, mistakes, or other acts of either commission or omission of such member or employee under this subpart, except for acts of dishonesty or willful misconduct.</P> </SECTION> <SECTION> <SECTNO>§ 1215.75</SECTNO> <SUBJECT> Patents, copyrights, inventions, publications, and product formulations.</SUBJECT> <P>Any patents, copyrights, inventions, publications, or product formulations developed through the use of funds received by the Board under this subpart shall be the property of the United States Government as represented by the Board and shall, along with any rents, royalties, residual payments, or other income from the rental, sale, leasing, franchising, or other uses of such patents, copyrights, inventions, publications, or product formulations inure to the benefit of the Board and be considered income subject to the same fiscal, budget, and audit controls as other funds of the Board. Upon termination of this subpart, § 1215.72 shall apply to determine disposition of all such property.</P> </SECTION> <SECTION> <SECTNO>§ 1215.76</SECTNO> <SUBJECT>Amendments.</SUBJECT> <P>Amendments to this subpart may be proposed, from time to time, by the Board or by any interested persons affected by the provisions of the Act, including the Secretary.</P> </SECTION> <SECTION> <SECTNO>§ 1215.77</SECTNO> <SUBJECT>Separability.</SUBJECT> <P>If any provision of this subpart is declared invalid, or the applicability thereof to any person or circumstances is held invalid, the validity of the remainder of this subpart or the applicability thereof to other persons or circumstances shall not be affected thereby.</P> </SECTION> </SUBJGRP> </SUBPART> <SUBPART> <PRTPAGE P="133"/> <HD SOURCE="HED">Subpart B—Rules and Regulations</HD> <SUBJGRP> <HD SOURCE="HED">Definitions</HD> <SECTION> <SECTNO>§ 1215.100</SECTNO> <SUBJECT>Terms defined.</SUBJECT> <P>Unless otherwise defined in this subpart, the definitions of terms used in this subpart shall have the same meaning as the definitions in Subpart A—Popcorn Promotion, Research, and Consumer Information Order of this part.</P> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Exemption Procedures</HD> <SECTION> <SECTNO>§ 1215.300</SECTNO> <SUBJECT>Exemption procedures.</SUBJECT> <P>(a) Any processor who markets 4 million pounds or less of popcorn annually and who desires to claim an exemption from assessments during a fiscal year as provided in § 1214.52 of this part shall apply to the Board, on a form provided by the Board, for a certificate of exemption. Such processor shall certify that the processor's marketing of popcorn during the previous fiscal year was 4 million pounds or less.</P> <P>(b) Upon receipt of an application, the Board shall determine whether an exemption may be granted. The Board then will issue, if deemed appropriate, a certificate of exemption to each person that is eligible to receive one.</P> <P>(c) Any person who desires to renew the exemption from assessments for a subsequent fiscal year shall reapply to the Board, on a form provided by the Board, for a certificate of exemption.</P> <P>(d) The Board may require persons receiving an exemption from assessments to provide to the Board reports on the disposition of exempt popcorn.</P> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Miscellaneous</HD> <SECTION> <SECTNO>§ 1215.400</SECTNO> <SUBJECT>OMB control numbers.</SUBJECT> <P>The control number assigned to the information collection requirements by the Office of Management and Budget pursuant to the Paperwork Reduction Act of 1995, 44 U.S.C. Chapter 35, is OMB control number 0581-0093, except for the Promotion Board nominee background statement form which is assigned OMB control number 0505-0001.</P> </SECTION> </SUBJGRP> </SUBPART> </PART> <PART> <EAR>Pt. 1216</EAR> <HD SOURCE="HED">PART 1216—PEANUT PROMOTION, RESEARCH, AND INFORMATION ORDER</HD> <CONTENTS> <SUBPART> <HD SOURCE="HED">Subpart A—Peanut Promotion, Research, and Information Order</HD> <SUBJGRP> <HD SOURCE="HED">Definitions</HD> <SECHD>Sec.</SECHD> <SECTNO>1216.1</SECTNO> <SUBJECT>Act.</SUBJECT> <SECTNO>1216.2</SECTNO> <SUBJECT>Additional peanuts.</SUBJECT> <SECTNO>1216.3</SECTNO> <SUBJECT>Area marketing association.</SUBJECT> <SECTNO>1216.4</SECTNO> <SUBJECT>Board.</SUBJECT> <SECTNO>1216.5</SECTNO> <SUBJECT>Conflict of interest.</SUBJECT> <SECTNO>1216.6</SECTNO> <SUBJECT>Contract export additional peanuts.</SUBJECT> <SECTNO>1216.7</SECTNO> <SUBJECT>Department.</SUBJECT> <SECTNO>1216.8</SECTNO> <SUBJECT>Farm Service Agency.</SUBJECT> <SECTNO>1216.9</SECTNO> <SUBJECT>Farmers stock peanuts.</SUBJECT> <SECTNO>1216.10</SECTNO> <SUBJECT>First handler.</SUBJECT> <SECTNO>1216.11</SECTNO> <SUBJECT>Fiscal year.</SUBJECT> <SECTNO>1216.12</SECTNO> <SUBJECT>Handle.</SUBJECT> <SECTNO>1216.13</SECTNO> <SUBJECT>Information.</SUBJECT> <SECTNO>1216.14</SECTNO> <SUBJECT>Market.</SUBJECT> <SECTNO>1216.15</SECTNO> <SUBJECT>Minor peanut-producing states.</SUBJECT> <SECTNO>1216.16</SECTNO> <SUBJECT>Order.</SUBJECT> <SECTNO>1216.17</SECTNO> <SUBJECT>Part and subpart.</SUBJECT> <SECTNO>1216.18</SECTNO> <SUBJECT>Peanuts.</SUBJECT> <SECTNO>1216.19</SECTNO> <SUBJECT>Peanut producer organization.</SUBJECT> <SECTNO>1216.20</SECTNO> <SUBJECT>Person.</SUBJECT> <SECTNO>1216.21</SECTNO> <SUBJECT>Primary peanut-producing states.</SUBJECT> <SECTNO>1216.22</SECTNO> <SUBJECT>Producer.</SUBJECT> <SECTNO>1216.23</SECTNO> <SUBJECT>Promotion.</SUBJECT> <SECTNO>1216.24</SECTNO> <SUBJECT>Quota peanuts.</SUBJECT> <SECTNO>1216.25</SECTNO> <SUBJECT>Research.</SUBJECT> <SECTNO>1216.26</SECTNO> <SUBJECT>Secretary.</SUBJECT> <SECTNO>1216.27</SECTNO> <SUBJECT>Suspend.</SUBJECT> <SECTNO>1216.28</SECTNO> <SUBJECT>State.</SUBJECT> <SECTNO>1216.29</SECTNO> <SUBJECT>Terminate.</SUBJECT> <SECTNO>1216.30</SECTNO> <SUBJECT>United States.</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">National Peanut Board</HD> <SECTNO>1216.40</SECTNO> <SUBJECT>Establishment and membership.</SUBJECT> <SECTNO>1216.41</SECTNO> <SUBJECT>Nominations.</SUBJECT> <SECTNO>1216.42</SECTNO> <SUBJECT>Selection.</SUBJECT> <SECTNO>1216.43</SECTNO> <SUBJECT>Term of office.</SUBJECT> <SECTNO>1216.44</SECTNO> <SUBJECT>Vacancies.</SUBJECT> <SECTNO>1216.45</SECTNO> <SUBJECT>Alternate members.</SUBJECT> <SECTNO>1216.46</SECTNO> <SUBJECT>Procedure.</SUBJECT> <SECTNO>1216.47</SECTNO> <SUBJECT>Compensation and reimbursement.</SUBJECT> <SECTNO>1216.48</SECTNO> <SUBJECT>Powers and duties.</SUBJECT> <SECTNO>1216.49</SECTNO> <SUBJECT>Prohibited activities.</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Expenses and Assessments</HD> <SECTNO>1216.50</SECTNO> <SUBJECT>Budget and expenses.</SUBJECT> <SECTNO>1216.51</SECTNO> <SUBJECT>Assessments.</SUBJECT> <SECTNO>1216.52</SECTNO> <SUBJECT>Programs, plans, and projects.</SUBJECT> <SECTNO>1216.53</SECTNO> <SUBJECT>Independent evaluation.</SUBJECT> <SECTNO>1216.54</SECTNO> <SUBJECT>Operating reserve.</SUBJECT> <SECTNO>1216.55</SECTNO> <SUBJECT>Investment of funds.</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Reports, Books, and Records</HD> <SECTNO>1216.60</SECTNO> <SUBJECT>Reports.</SUBJECT> <SECTNO>1216.61</SECTNO> <SUBJECT>Books and records.</SUBJECT> <SECTNO>1216.62</SECTNO> <SUBJECT>Confidential treatment.</SUBJECT> </SUBJGRP> <SUBJGRP> <PRTPAGE P="134"/> <HD SOURCE="HED">Certification of Peanut Producer Organizations</HD> <SECTNO>1216.70</SECTNO> <SUBJECT>Certification.</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Miscellaneous</HD> <SECTNO>1216.80</SECTNO> <SUBJECT>Right of the Secretary.</SUBJECT> <SECTNO>1216.81</SECTNO> <SUBJECT>Implementation of the Order.</SUBJECT> <SECTNO>1216.82</SECTNO> <SUBJECT>Suspension and termination.</SUBJECT> <SECTNO>1216.83</SECTNO> <SUBJECT>Proceedings after termination.</SUBJECT> <SECTNO>1216.84</SECTNO> <SUBJECT>Effect of termination or amendment.</SUBJECT> <SECTNO>1216.85</SECTNO> <SUBJECT>Personal liability.</SUBJECT> <SECTNO>1216.86</SECTNO> <SUBJECT>Separability.</SUBJECT> <SECTNO>1216.87</SECTNO> <SUBJECT>Amendments.</SUBJECT> <SECTNO>1216.88</SECTNO> <SUBJECT>Patents, copyrights, trademarks, information, publications, and product formulations.</SUBJECT> </SUBJGRP> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart B—Procedure for the Conduct of Referenda in Connection With the Peanut Promotion, Research, and Information Order</HD> <SECTNO>1216.100</SECTNO> <SUBJECT>General.</SUBJECT> <SECTNO>1216.101</SECTNO> <SUBJECT>Definitions.</SUBJECT> <SECTNO>1216.102</SECTNO> <SUBJECT>Voting.</SUBJECT> <SECTNO>1216.103</SECTNO> <SUBJECT>Instructions.</SUBJECT> <SECTNO>1216.104</SECTNO> <SUBJECT>Subagents.</SUBJECT> <SECTNO>1216.105</SECTNO> <SUBJECT>Ballots.</SUBJECT> <SECTNO>1216.106</SECTNO> <SUBJECT>Referendum report.</SUBJECT> <SECTNO>1216.107</SECTNO> <SUBJECT>Confidential information.</SUBJECT> </SUBPART> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>7 U.S.C. 7401-7425.</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>64 FR 20105, Apr. 23, 1999, unless otherwise noted.</P> </SOURCE> <SUBPART> <HD SOURCE="HED">Subpart A—Peanut Promotion, Research, and Information Order</HD> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>64 FR 41256, July 29, 1999, unless otherwise noted.</P> </SOURCE> <SUBJGRP> <HD SOURCE="HED">Definitions</HD> <SECTION> <SECTNO>§ 1216.1</SECTNO> <SUBJECT>Act.</SUBJECT> <P> <E T="03">Act</E> means the Commodity Promotion, Research, and Information Act of 1996 (7 U.S.C. 7401-7425; Public Law 104-127, 110 Stat. 1029), or any amendments thereto.</P> </SECTION> <SECTION> <SECTNO>§ 1216.2</SECTNO> <SUBJECT>Additional peanuts.</SUBJECT> <P> <E T="03">Additional peanuts</E> means peanuts which are marketed from a farm other than peanuts marketed or considered marketed as quota peanuts.</P> </SECTION> <SECTION> <SECTNO>§ 1216.3</SECTNO> <SUBJECT>Area marketing association.</SUBJECT> <P> <E T="03">Area marketing association</E> means an association selected and approved by the Secretary to conduct activities under regulations of the Department's Farm Service Agency. Under an interagency agreement, area marketing associations may assist in the collection of assessments under this subpart. The approved area marketing associations and the areas served by such associations are as follows:</P> <P>(a) <E T="03">GFA Peanut Association of Camilla, Georgia (GFA).</E> GFA serves the southeastern area consisting of Puerto Rico, the U.S. Virgin Islands, and the states of Alabama, Florida, Georgia, Mississippi, and that part of South Carolina south and west of the Santee-Congaree-Broad Rivers;</P> <P>(b) <E T="03">Peanut Growers Cooperative Marketing Association of Franklin, Virginia (PGCMA).</E> PGCMA serves the Virginia-Carolina area consisting of the District of Columbia, and the states of Connecticut, Delaware, Illinois, Indiana, Iowa, Kentucky, Maine, Maryland, Massachusetts, Michigan, Minnesota, Missouri, New Hampshire, New Jersey, New York, North Carolina, Ohio, Pennsylvania, Rhode Island, Tennessee, Vermont, Virginia, West Virginia, Wisconsin, and that part of South Carolina north and east of the Santee-Congaree-Broad Rivers; and</P> <P>(c) <E T="03">Southwestern Peanut Growers Association of Gorman, Texas (SWPGA).</E> SWPGA serves the southwestern area consisting of the states of Alaska, Arizona, Arkansas, California, Colorado, Hawaii, Idaho, Kansas, Louisiana, Montana, Nebraska, New Mexico, Nevada, North Dakota, Oklahoma, Oregon, South Dakota, Texas, Utah, Washington, and Wyoming, and all other territories of the United States not listed in paragraph (a) or (b) of this section.</P> </SECTION> <SECTION> <SECTNO>§ 1216.4</SECTNO> <SUBJECT>Board.</SUBJECT> <P> <E T="03">Board</E> means the administrative body referred to as the National Peanut Board established pursuant to § 1216.40.</P> </SECTION> <SECTION> <SECTNO>§ 1216.5</SECTNO> <SUBJECT>Conflict of interest.</SUBJECT> <P> <E T="03">Conflict of interest</E> means a situation in which a member or employee of the Board has a direct or indirect financial interest in a person who performs a service for, or enters into a contract with, the Board for anything of economic value.</P> </SECTION> <SECTION> <PRTPAGE P="135"/> <SECTNO>§ 1216.6</SECTNO> <SUBJECT>Contract export additional peanuts.</SUBJECT> <P> <E T="03">Contract export additional peanuts</E> are additional peanuts for exportation, including peanuts for crushing for exportation, for which a contract has been entered into between a first handler and a producer.</P> </SECTION> <SECTION> <SECTNO>§ 1216.7</SECTNO> <SUBJECT>Department.</SUBJECT> <P> <E T="03">Department</E> means the U.S. Department of Agriculture.</P> </SECTION> <SECTION> <SECTNO>§ 1216.8</SECTNO> <SUBJECT>Farm Service Agency.</SUBJECT> <P> <E T="03">Farm Service Agency or FSA</E> means the U.S. Department of Agriculture's Farm Service Agency.</P> </SECTION> <SECTION> <SECTNO>§ 1216.9</SECTNO> <SUBJECT>Farmers stock peanuts.</SUBJECT> <P> <E T="03">Farmers stock peanuts</E> means picked or threshed peanuts produced in the United States which have not been changed (except for removal of foreign material, loose shelled kernels and excess moisture) from the condition in which picked or threshed peanuts are customarily marketed by producers, plus any loose shelled kernels that are removed from farmers stock peanuts before such farmers stock peanuts are marketed.</P> </SECTION> <SECTION> <SECTNO>§ 1216.10</SECTNO> <SUBJECT>First handler.</SUBJECT> <P> <E T="03">First handler</E> means any person who handles peanuts in a capacity other than that of a custom cleaner or dryer, an assembler, a warehouseman, or other intermediary between the producer and the person handling.</P> </SECTION> <SECTION> <SECTNO>§ 1216.11</SECTNO> <SUBJECT>Fiscal year.</SUBJECT> <P> <E T="03">Fiscal year</E> is synonymous with crop year and means the 12-month period beginning with August 1 of any year and ending with July 31 of the following year, or such other period as determined by the Board and approved by the Secretary.</P> </SECTION> <SECTION> <SECTNO>§ 1216.12</SECTNO> <SUBJECT>Handle.</SUBJECT> <P> <E T="03">Handle</E> means to engage in the receiving or acquiring, cleaning and shelling, cleaning in-shell, or crushing of peanuts and in the shipment (except as a common or contract carrier of peanuts owned by another) or sale of cleaned in-shell or shelled peanuts, or other activity causing peanuts to enter the current of commerce: <E T="03">Provided,</E> that this term does not include sales or deliveries of peanuts by a producer to a handler or to an intermediary person engaged in delivering peanuts to handler(s) and: <E T="03">Provided further,</E> that this term does not include sales or deliveries of peanuts by such intermediary person(s) to a handler.</P> </SECTION> <SECTION> <SECTNO>§ 1216.13</SECTNO> <SUBJECT>Information.</SUBJECT> <P> <E T="03">Information</E> means information and programs that are designed to increase efficiency in processing and to develop new markets, marketing strategies, increased market efficiency, and activities that are designed to enhance the image of peanuts on a national or international basis. These include:</P> <P>(a) <E T="03">Consumer information,</E> which means any action taken to provide information to, and broaden the understanding of, the general public regarding the consumption, use, nutritional attributes, and care of peanuts; and</P> <P>(b) <E T="03">Producer information,</E> which means information and programs that will lead to the development of new markets, new marketing strategies, or increased efficiency for the peanut industry, and activities to enhance the image of the peanut industry.</P> </SECTION> <SECTION> <SECTNO>§ 1216.14</SECTNO> <SUBJECT>Market.</SUBJECT> <P> <E T="03">Market</E> means to sell or otherwise dispose of peanuts into interstate, foreign, or intrastate commerce by buying, marketing, distributing, or otherwise placing peanuts into commerce.</P> </SECTION> <SECTION> <SECTNO>§ 1216.15</SECTNO> <SUBJECT>Minor peanut-producing states.</SUBJECT> <P> <E T="03">Minor peanut-producing states</E> means all peanut-producing states with the exception of Alabama, Florida, Georgia, New Mexico, North Carolina, Oklahoma, South Carolina, Texas, and Virginia.</P> </SECTION> <SECTION> <SECTNO>§ 1216.16</SECTNO> <SUBJECT>Order.</SUBJECT> <P> <E T="03">Order</E> means an Order issued by the Secretary under section 514 of the Act that provides for a program of generic promotion, research, and information regarding agricultural commodities authorized under the Act.</P> </SECTION> <SECTION> <PRTPAGE P="136"/> <SECTNO>§ 1216.17</SECTNO> <SUBJECT>Part and subpart.</SUBJECT> <P> <E T="03">Part</E> means the Peanut Promotion, Research, and Information Order and all rules, regulations, and supplemental Orders issued pursuant to the Act and the Order. The Order shall be a “subpart” of such part.</P> </SECTION> <SECTION> <SECTNO>§ 1216.18</SECTNO> <SUBJECT>Peanuts.</SUBJECT> <P> <E T="03">Peanuts</E> means the seeds of the legume <E T="03">arachis hypogaea</E> and includes both in-shell and shelled peanuts other than those marketed by the producer in green form for consumption as boiled peanuts.</P> </SECTION> <SECTION> <SECTNO>§ 1216.19</SECTNO> <SUBJECT>Peanut producer organization.</SUBJECT> <P> <E T="03">Peanut producer organization</E> means a state-legislated peanut promotion, research, and education commission or organization. For states without a state-legislated peanut promotion, research, and education commission or organization, “peanut producer organization” means any organization which has the primary purpose of representing peanut producers and has peanut producers as members.</P> </SECTION> <SECTION> <SECTNO>§ 1216.20</SECTNO> <SUBJECT>Person.</SUBJECT> <P> <E T="03">Person</E> means any individual, group of individuals, partnership, corporation, association, cooperative, or any other legal entity.</P> </SECTION> <SECTION> <SECTNO>§ 1216.21</SECTNO> <SUBJECT>Primary peanut-producing states.</SUBJECT> <P> <E T="03">Primary peanut-producing states</E> means Alabama, Florida, Georgia, New Mexico, North Carolina, Oklahoma, South Carolina, Texas, and Virginia, <E T="03">Provided,</E> these states maintain three-year average production of at least 10,000 tons of peanuts.</P> </SECTION> <SECTION> <SECTNO>§ 1216.22</SECTNO> <SUBJECT>Producer.</SUBJECT> <P> <E T="03">Producer</E> means any person engaged in the production and sale of peanuts and who owns, or shares the ownership and risk of loss of the crop. This does not include quota holders who do not share in the risk of loss of the crop.</P> </SECTION> <SECTION> <SECTNO>§ 1216.23</SECTNO> <SUBJECT>Promotion.</SUBJECT> <P> <E T="03">Promotion</E> means any action taken by the Board under this Order, including paid advertising, to present a favorable image of peanuts to the public to improve the competitive position of peanuts in the marketplace, including domestic and international markets, and to stimulate sales of peanuts.</P> </SECTION> <SECTION> <SECTNO>§ 1216.24</SECTNO> <SUBJECT>Quota peanuts.</SUBJECT> <P> <E T="03">Quota peanuts</E> means peanuts which are:</P> <P>(a) Eligible for domestic edible uses; and</P> <P>(b) Marketed or considered marketed from a farm as quota peanuts pursuant to the provisions of 7 CFR Part 729 and are not in excess of the effective farm poundage quota established for the farm on which such peanuts were produced.</P> </SECTION> <SECTION> <SECTNO>§ 1216.25</SECTNO> <SUBJECT>Research.</SUBJECT> <P> <E T="03">Research</E> means any type of test, study, or analysis designed to advance the image, desirability, use, marketability, production, product development, or quality of peanuts, including research relating to nutritional value and cost of production.</P> </SECTION> <SECTION> <SECTNO>§ 1216.26</SECTNO> <SUBJECT>Secretary.</SUBJECT> <P> <E T="03">Secretary</E> means the Secretary of Agriculture of the United States, or any officer or employee of the U.S. Department of Agriculture to whom authority has heretofore been delegated, or to whom authority may hereafter be delegated, to act in the Secretary's stead.</P> </SECTION> <SECTION> <SECTNO>§ 1216.27</SECTNO> <SUBJECT>Suspend.</SUBJECT> <P> <E T="03">Suspend</E> means to issue a rule under section 553 of title 5, United States Code, to temporarily prevent the operation of an Order, or part thereof, during a particular period of time specified in the rule.</P> </SECTION> <SECTION> <SECTNO>§ 1216.28</SECTNO> <SUBJECT>State.</SUBJECT> <P> <E T="03">State</E> means any of the 50 states, the District of Columbia, the Commonwealth of Puerto Rico, or any territory or possession of the United States.</P> </SECTION> <SECTION> <SECTNO>§ 1216.29</SECTNO> <SUBJECT>Terminate.</SUBJECT> <P> <E T="03">Terminate</E> means to issue a rule under section 553 of title 5, United States Code, to cancel permanently the operation of an Order, or part thereof, beginning on a date certain specified in the rule.</P> </SECTION> <SECTION> <PRTPAGE P="137"/> <SECTNO>§ 1216.30</SECTNO> <SUBJECT>United States.</SUBJECT> <P> <E T="03">United States</E> means collectively the 50 states, the District of Columbia, the Commonwealth of Puerto Rico, and the territories and possessions of the United States.</P> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">National Peanut Board</HD> <SECTION> <SECTNO>§ 1216.40</SECTNO> <SUBJECT>Establishment and membership.</SUBJECT> <P>(a) <E T="03">Establishment of a National Peanut Board.</E> There is hereby established a National Peanut Board, hereinafter called the Board, composed of no more than 10 peanut producers and alternates, appointed by the Secretary from nominations as follows:</P> <P>(1) <E T="03">Nine members and alternates.</E> One member and one alternate shall be appointed from each primary peanut-producing state, who are producers and whose nominations have been submitted by certified peanut producer organizations within a primary peanut-producing state.</P> <P>(2) The minor peanut-producing states shall collectively have one at-large member and one alternate, who are producers, to be appointed by the Secretary from nominations submitted by certified peanut producer organizations within minor peanut-producing states or from other certified farm organizations that include peanut producers as part of their membership.</P> <P>(b) <E T="03">Adjustment of membership.</E> At least once in each five-year period, but not more frequently than once in each three-year period, the Board, or a person or agency designated by the Board, shall review the geographical distribution of peanuts in the United States and make recommendation(s) to the Secretary to continue without change, or whether changes should be made in the number of representatives on the Board to reflect changes in the geographical distribution of the production of peanuts.</P> </SECTION> <SECTION> <SECTNO>§ 1216.41</SECTNO> <SUBJECT>Nominations.</SUBJECT> <P>(a) All nominations authorized under § 1216.40 shall be made within such a period of time as the Secretary shall prescribe. Eligible peanut producer organizations within each state as certified pursuant to § 1216.70 shall nominate two qualified persons for each member and each alternate member. The nominees shall be elected at an open meeting among peanut producers eligible to serve on the Board. Any certified peanut producer organization representing a minor peanut-producing state may nominate two eligible persons for each member and two eligible persons for each alternate member.</P> <P>(b) As soon as practicable after this subpart becomes effective, the Secretary shall obtain nominations for appointment to the initial promotion Board from certified nominating organizations. In any subsequent year in which an appointment to the Board is to be made, nominations for positions whose terms will expire shall be obtained from certified nominating organizations by the Board's staff and submitted to the Secretary by May 1 of such year, or other such date as approved by the Secretary.</P> <P>(c) Except for initial Board members, whose nomination process will be initiated by the Secretary, the Board shall issue the call for nominations by March 1 of each year.</P> <P>(d) The nomination meeting shall be announced 30 days in advance:</P> <P>(1) By utilizing available media or public information sources, without incurring advertising expense, to publicize the dates, places, method of voting, eligibility requirements, and other pertinent information. Such sources of publicity may include, but are not limited to, print and radio; and</P> <P>(2) By such other means as deemed advisable.</P> <P>(e) At nominations meetings, Department personnel will be present to oversee and to verify eligibility and count ballots.</P> </SECTION> <SECTION> <SECTNO>§ 1216.42</SECTNO> <SUBJECT>Selection.</SUBJECT> <P>From the nominations, the Secretary shall select the members of the Board and alternates for each primary peanut-producing state. The Secretary shall select one member and one alternate from all nominations submitted by certified peanut producer organizations representing minor peanut-producing states.</P> </SECTION> <SECTION> <SECTNO>§ 1216.43</SECTNO> <SUBJECT>Term of office.</SUBJECT> <P>All members and alternates of the Board shall each serve for terms of <PRTPAGE P="138"/>three years, except that the members and alternates appointed to the initial Board shall serve proportionately for two-, three-, and four-year terms, with the length of the terms determined at random. No member or alternate may serve more than two consecutive three-year terms. An alternate, after serving two consecutive three-year terms, may serve as a member for an additional two consecutive three-year terms. A member, after serving two consecutive three-year terms, may serve as an alternate for an additional two consecutive three-year terms. Each member and alternate shall continue to serve until a successor is selected and has qualified.</P> <P>(a) Those members serving initial terms of two or four years may serve one successive three-year term.</P> <P>(b) Any successor serving one year or less may serve two consecutive three-year terms.</P> </SECTION> <SECTION> <SECTNO>§ 1216.44</SECTNO> <SUBJECT>Vacancies.</SUBJECT> <P>To fill any vacancy resulting from the failure to qualify of any person selected as a member or as an alternate member of the Board, or in the event of death, removal, resignation, or disqualification of any member or alternate member of the Board, a successor for the unexpired term of such member or alternate member of the Board shall be nominated and selected in the manner specified in § 1216.40.</P> </SECTION> <SECTION> <SECTNO>§ 1216.45</SECTNO> <SUBJECT>Alternate members.</SUBJECT> <P>An alternate member of the Board, during the absence of the member for the primary peanut-producing state or at-large member for whom the person is the alternate, shall act in the place and stead of such member and perform such duties as assigned. In the event of death, removal, resignation, or disqualification of any member, the alternate for that state or at-large member shall act for the member until a successor for such member is selected and qualified. In the event that both a producer member of the Board and the alternate are unable to attend a meeting, the Board may not designate any other alternate to serve in such member's or alternate's place and stead for such a meeting.</P> </SECTION> <SECTION> <SECTNO>§ 1216.46</SECTNO> <SUBJECT>Procedure.</SUBJECT> <P>(a) A majority of the members of the Board, including alternate members acting for members, shall constitute a quorum.</P> <P>(b) At assembled meetings, all votes shall be cast in person. Board actions shall be weighted by value of production as determined by a primary peanut-producing state's three-year running average of total gross farm income derived from all peanut sales. The at-large Board member's vote shall be weighted by the collective value of production from all minor peanut-producing states’ three-year running average of total gross farm income derived from all peanut sales. Any Board action shall require the concurring votes of members or alternates from states representing more than 50 percent of total U.S. gross farm income derived from all peanut sales, plus an additional two votes from any other Board members, provided a minimum of five votes concur.</P> <P>(c) For routine and noncontroversial matters which do not require deliberation and the exchange of views, and in matters of an emergency nature when there is not time to call an assembled meeting of the Board, the Board may also take action as prescribed in this section by mail, facsimile, telephone, or any telecommunication method appropriate for the conduct of business, but any such action shall be confirmed in writing within 30 days.</P> <P>(d) There shall be no voting by proxy.</P> <P>(e) The chairperson shall be a voting member.</P> </SECTION> <SECTION> <SECTNO>§ 1216.47</SECTNO> <SUBJECT>Compensation and reimbursement.</SUBJECT> <P>The members of the Board, and alternates when acting as members, shall serve without compensation but shall be reimbursed for reasonable travel expenses, as approved by the Board, incurred by them in the performance of their duties as Board members.</P> </SECTION> <SECTION> <SECTNO>§ 1216.48</SECTNO> <SUBJECT>Powers and duties.</SUBJECT> <P>The Board shall have the following powers and duties:</P> <P>(a) To administer the Order in accordance with its terms and conditions and to collect assessments;<PRTPAGE P="139"/> </P> <P>(b) To develop and recommend to the Secretary for approval such bylaws as may be necessary for the functioning of the Board, and such rules as may be necessary to administer the Order, including activities authorized to be carried out under the Order;</P> <P>(c) To meet, organize, and select from among the members of the Board a chairperson, other officers, committees, and subcommittees, as the Board determines to be appropriate;</P> <P>(d) To employ persons, other than the members, as the Board considers necessary to assist the Board in carrying out its duties and to determine the compensation and specify the duties of such persons;</P> <P>(e) To develop programs and projects, and enter into contracts or agreements, which must be approved by the Secretary before becoming effective, for the development and carrying out of programs or projects of research, information, or promotion, and the payment of costs thereof with funds collected pursuant to this subpart. Each contract or agreement shall provide that any person who enters into a contract or agreement with the Board shall develop and submit to the Board a proposed activity; keep accurate records of all of its transactions relating to the contract or agreement; account for funds received and expended in connection with the contract or agreement; make periodic reports to the Board of activities conducted under the contract or agreement; and make such other reports available as the Board or the Secretary considers relevant. Any contract or agreement shall provide that:</P> <P>(1) The contractor or agreeing party shall develop and submit to the Board a program, plan, or project together with a budget or budgets that show the estimated cost to be incurred for such program, plan, or project;</P> <P>(2) The contractor or agreeing party shall keep accurate records of all its transactions and make periodic reports to the Board of activities conducted, submit accounting for funds received and expended, and make such other reports as the Secretary or the Board may require;</P> <P>(3) The Secretary may audit the records of the contracting or agreeing party periodically; and</P> <P>(4) Any subcontractor who enters into a contract with a Board contractor and who receives or otherwise uses funds allocated by the Board shall be subject to the same provisions as the contractor;</P> <P>(f) To prepare and submit for approval of the Secretary fiscal year budgets in accordance with § 1216.50;</P> <P>(g) To maintain such records and books and prepare and submit such reports and records from time to time to the Secretary as the Secretary may prescribe; to make appropriate accounting with respect to the receipt and disbursement of all funds entrusted to it; and to keep records that accurately reflect the actions and transactions of the Board;</P> <P>(h) To cause its books to be audited by a competent auditor at the end of each fiscal year and at such other times as the Secretary may request, and to submit a report of the audit directly to the Secretary;</P> <P>(i) To give the Secretary the same notice of meetings of the Board as is given to members in order that the Secretary's representative(s) may attend such meetings, and to keep and report minutes of each meeting of the Board to the Secretary;</P> <P>(j) To act as intermediary between the Secretary and any producer or first handler;</P> <P>(k) To furnish to the Secretary any information or records that the Secretary may request;</P> <P>(l) To receive, investigate, and report to the Secretary complaints of violations of the Order;</P> <P>(m) To recommend to the Secretary such amendments to the Order as the Board considers appropriate; and</P> <P>(n) To work to achieve an effective, continuous, and coordinated program of promotion, research, consumer information, evaluation, and industry information designed to strengthen the peanut industry's position in the marketplace; maintain and expand existing markets and uses for peanuts; and to carry out programs, plans, and projects designed to provide maximum benefits to the peanut industry.</P> </SECTION> <SECTION> <PRTPAGE P="140"/> <SECTNO>§ 1216.49</SECTNO> <SUBJECT>Prohibited activities.</SUBJECT> <P>The Board may not engage in, and shall prohibit the employees and agents of the Board from engaging in:</P> <P>(a) Any action that would be a conflict of interest;</P> <P>(b) Using funds collected by the Board under the Order to undertake any action for the purpose of influencing legislation or governmental action or policy, including local, state, national, and international, other than recommending to the Secretary amendments to the Order; and</P> <P>(c) Any advertising, including promotion, research, and information activities authorized to be carried out under the Order, that is false or misleading or disparaging to another agricultural commodity.</P> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Expenses and Assessments</HD> <SECTION> <SECTNO>§ 1216.50</SECTNO> <SUBJECT>Budget and expenses.</SUBJECT> <P>(a) At least 60 days prior to the beginning of each fiscal year, and as may be necessary thereafter, the Board shall prepare and submit to the Secretary a budget for the fiscal year covering its anticipated expenses and disbursements in administering this subpart. Each such budget shall include:</P> <P>(1) A statement of objectives and strategy for each program, plan, or project;</P> <P>(2) A summary of anticipated revenue, with comparative data for at least one preceding year (except for the initial budget);</P> <P>(3) A summary of proposed expenditures for each program, plan, or project; and</P> <P>(4) Staff and administrative expense breakdowns, with comparative data for at least one preceding year (except for the initial budget).</P> <P>(b) Each budget shall provide adequate funds to defray its proposed expenditures and to provide for a reserve as set forth in this subpart.</P> <P>(c) Subject to this section, any amendment or addition to an approved budget must be approved by the Secretary, including shifting funds from one program, plan, or project to another. Shifts of funds which do not cause an increase in the Board's approved budget and which are consistent with governing bylaws need not have prior approval by the Secretary.</P> <P>(d) The Board is authorized to incur such expenses, including provision for a reasonable reserve, as the Secretary finds are reasonable and likely to be incurred by the Board for its maintenance and functioning, and to enable it to exercise its powers and perform its duties in accordance with the provisions of this subpart. Such expenses shall be paid from funds received by the Board.</P> <P>(e) With approval of the Secretary, the Board may borrow money for the payment of administrative expenses, subject to the same fiscal, budget, and audit controls as other funds of the Board. Any funds borrowed by the Board shall be expended only for startup costs and capital outlays and are limited to the first year of operation of the Board.</P> <P>(f) The Board may accept voluntary contributions, but these shall only be used to pay expenses incurred in the conduct of programs, plans, and projects. Such contributions shall be free from any encumbrance by the donor and the Board shall retain complete control of their use.</P> <P>(g) The Board shall reimburse the Secretary for all expenses incurred by the Secretary in the implementation, administration, and supervision of the Order, including all referendum costs in connection with the Order.</P> <P>(h) The Board may not expend for administration, maintenance, and functioning of the Board in any fiscal year an amount that exceeds 10 percent of the assessments and other income received by the Board for that fiscal year. Reimbursements to the Secretary required under paragraph (g) of this section are excluded from this limitation on spending.</P> <P>(i) The Board shall allocate, to the extent practicable, no less than 80 percent of the assessments collected on all peanuts available for any fiscal year on national and regional promotion, research, and information activities. The Board shall allocate, to the extent practicable, no more than 20 percent of assessments collected on all peanuts available for any fiscal year for use in state or regional research programs. Specific percentages and amounts shall <PRTPAGE P="141"/>be determined annually by the Board, with the approval of the Secretary.</P> <P>(j) Certified peanut producer organizations may submit requests for funding for research and/or generic promotion projects. Amounts approved for each state shall not exceed the pro rata Share of funds available for that State as determined by the Board and approved by the Secretary. Amounts allocated by the Board for state research or promotion activities will be based on requests submitted to the Board when it is determined that they meet the goals and objectives stated in the Order.</P> <P>(k) Assessments collected, less pro rata administrative expenses, from the gross sales of contract export additional peanuts shall be allocated by the Board for the promotion and related research of export peanuts.</P> <P>(l) The Board shall determine annually how total funds shall be allocated pursuant to paragraphs (i), (j), and (k) of this section, with the approval of the Secretary.</P> </SECTION> <SECTION> <SECTNO>§ 1216.51</SECTNO> <SUBJECT>Assessments.</SUBJECT> <P>(a) The funds to cover the Board's expenses shall be acquired by the levying of assessments upon producers in a manner prescribed by the Secretary.</P> <P>(b) Each first handler, at such times and in such manner as prescribed by the Secretary, shall collect from each producer and pay assessments to the Board on all peanuts handled, including peanuts produced by the first handler, no later than 60 days after the last day of the month in which the peanuts were marketed.</P> <P>(c) Such assessments shall be levied at a rate of 1 percent of the price paid for all farmers stock peanuts sold. Price paid is the value of segment entry on the FSA 1007 form.</P> <P>(d) For peanuts placed under loan with the Department's Commodity Credit Corporation, each area marketing association shall remit to the Board the following:</P> <P>(1) One (1) percent of the initial price paid for either quota or additional peanuts no more than 60 days after the last day of the month in which the peanuts were placed under loan; and</P> <P>(2) One (1) percent of the profit from the sale of the peanuts within 60 days after the final day of the area association's fiscal year.</P> <P>(e) All assessments collected under this section are to be used for expenses and expenditures pursuant to this Order and for the establishment of an operating reserve as prescribed in the Order.</P> <P>(f) The Board shall impose a late payment charge on any person who fails to remit to the Board the total amount for which the person is liable on or before the payment due date established under this section. The late payment charge will be in the form of interest on the outstanding portion of any amount for which the person is liable. The rate of interest shall be prescribed in regulations issued by the Secretary.</P> <P>(g) Persons failing to remit total assessments due in a timely manner may also be subject to actions under federal debt collection procedures.</P> <P>(h) The Board may authorize other organizations to collect assessments on its behalf with the approval of the Secretary.</P> <P>(i) The assessment rate may not be increased unless the new rate is approved by a referendum among eligible producers.</P> </SECTION> <SECTION> <SECTNO>§ 1216.52</SECTNO> <SUBJECT>Programs, plans, and projects.</SUBJECT> <P>(a) The Board shall receive and evaluate, or on its own initiative develop, and submit to the Secretary for approval any program, plan, or project authorized under this subpart. Such programs, plans, or projects shall provide for:</P> <P>(1) The establishment, issuance, effectuation, and administration of appropriate programs for promotion, research, and information, including producer and consumer information, with respect to peanuts; and</P> <P>(2) The establishment and conduct of research with respect to the use, nutritional value, sale, distribution, and marketing of peanuts and peanut products, and the creation of new products thereof, to the end that marketing and use of peanuts may be encouraged, expanded, improved, or made more acceptable and to advance the image, desirability, or quality of peanuts.</P> <P>(b) No program, plan, or project shall be implemented prior to its approval <PRTPAGE P="142"/>by the Secretary. Once a program, plan, or project is so approved, the Board shall take appropriate steps to implement it.</P> <P>(c) Each program, plan, or project implemented under this subpart shall be reviewed or evaluated periodically by the Board to ensure that it contributes to an effective program of promotion, research, or consumer information. If it is found by the Board that any such program, plan, or project does not contribute to an effective program of promotion, research, or consumer information, then the Board shall terminate such program, plan, or project.</P> <P>(d) No program, plan, or project shall make any false claims on behalf of peanuts or use unfair or deceptive acts or practices with respect to the quality, value, or use of any competing product. Peanuts of all domestic origins shall be treated equally.</P> </SECTION> <SECTION> <SECTNO>§ 1216.53</SECTNO> <SUBJECT>Independent evaluation.</SUBJECT> <P>The Board shall, not less often than every five years, authorize and fund, from funds otherwise available to the Board, an independent evaluation of the effectiveness of the Order and other programs conducted by the Board pursuant to the Act. The Board shall submit to the Secretary, and make available to the public, the results of each periodic independent evaluation conducted under this section.</P> </SECTION> <SECTION> <SECTNO>§ 1216.54</SECTNO> <SUBJECT>Operating reserve.</SUBJECT> <P>The Board shall establish an operating monetary reserve and may carry over to subsequent fiscal years excess funds in a reserve so established; <E T="03">Provided,</E> that funds in the reserve shall not exceed any fiscal year's anticipated expenses.</P> </SECTION> <SECTION> <SECTNO>§ 1216.55</SECTNO> <SUBJECT>Investment of funds.</SUBJECT> <P>The Board may invest, pending disbursement, funds it receives under this subpart, only in obligations of the United States or any agency of the United States; general obligations of any state or any political subdivision of a state; interest bearing accounts or certificates of deposit of financial institutions that are members of the Federal Reserve system; or obligations that are fully guaranteed as to principal and interest by the United States.</P> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Reports, Books, and Records</HD> <SECTION> <SECTNO>§ 1216.60</SECTNO> <SUBJECT>Reports.</SUBJECT> <P>(a) Each producer and first handler subject to this part shall be required to report to the employees of the Board, at such times and in such manner as it may prescribe, such information as may be necessary for the Board to perform its duties. Such reports shall include, but shall not be limited to the following:</P> <P>(1) Number of pounds of peanuts produced or handled;</P> <P>(2) Price paid to producers (entry in value of segment section on the FSA 1007 form); and</P> <P>(3) Total assessments collected.</P> <P>(b) First Handlers shall submit monthly reports to the Board. These reports shall accompany the payment of the collected assessments and shall be due 60 days after the last day of the month in which the peanuts were marketed.</P> </SECTION> <SECTION> <SECTNO>§ 1216.61</SECTNO> <SUBJECT>Books and records.</SUBJECT> <P>Each first handler and producer subject to this subpart shall maintain and make available for inspection by the Secretary and employees and agents of the Board such books and records as are necessary to carry out the provisions of this subpart and the regulations issued thereunder, including such records as are necessary to verify any reports required. Such records shall include but are not limited to the following: copies of FSA 1007 forms, the names and address of producers, and the date the assessments were collected. Such records shall be retained for at least two years beyond the marketing year of their applicability.</P> </SECTION> <SECTION> <SECTNO>§ 1216.62</SECTNO> <SUBJECT>Confidential treatment.</SUBJECT> <P>All information obtained from books, records, or reports under the Act, this subpart, and the regulations issued thereunder shall be kept confidential by all persons, including all employees and former employees of the Board, all officers and employees and former officers and employees of contracting and subcontracting agencies or agreeing parties having access to such information. Such information shall not be available to Board members, producers, importers, exporters, or handlers. Only <PRTPAGE P="143"/>those persons having a specific need for such information to effectively administer the provisions of this subpart shall have access to such information. Only such information so obtained as the Secretary deems relevant shall be disclosed by them, and then only in a judicial proceeding or administrative hearing brought at the direction, or on the request, of the Secretary, or to which the Secretary or any officer of the United States is a party, and involving this subpart. Nothing in this section shall be deemed to prohibit:</P> <P>(a) The issuance of general statements based upon the reports of the number of persons subject to this subpart or statistical data collected therefrom, which statements do not identify the information furnished by any person; and</P> <P>(b) The publication, by direction of the Secretary, of the name of any person who has been adjudged to have violated this subpart, together with a statement of the particular provisions of this subpart violated by such person.</P> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Certification of Peanut Producer Organizations</HD> <SECTION> <SECTNO>§ 1216.70</SECTNO> <SUBJECT>Certification.</SUBJECT> <P>(a) Organizations receiving certification from the Secretary will be entitled to submit nominations for Board membership to the Secretary for appointment and to submit requests for funding to the Board.</P> <P>(b) For major peanut-producing states, state-legislated peanut promotion, research, and information organizations may request certification, provided the state-legislated promotion program submits a factual report that shall contain information deemed relevant and specified by the Secretary for the making of such determination pursuant to paragraph (e) of this section.</P> <P>(c) If a state-legislated peanut promotion, research and information organization in a major peanut-producing state does not elect to seek certification from the Secretary within a specified time period as determined by the Secretary, or does not meet eligibility requirements as specified by the Secretary, then any peanut producer organization whose primary purpose is to represent peanut producers within a primary peanut-producing state, or any other organization which has peanut producers as part of its membership, may request certification. Certification shall be based, in addition to other available information, upon a factual report submitted by the organization that shall contain information deemed relevant and specified by the Secretary for the making of such determination pursuant to paragraph (e) of this section.</P> <P>(d) For minor peanut-producing states, any organization that has peanut producers as part of its membership may request certification.</P> <P>(e) The information required for certification by the Secretary may include, but is not limited to, the following:</P> <P>(1) The geographic distribution within the state covered by the organization's active membership;</P> <P>(2) The nature and size of the organization's active membership in the state, proportion of the organization's active membership accounted for by producers, a map showing the peanut-producing counties in the state in which the organization has members, the volume of peanuts produced in each county, the number of peanut producers in each county, and the size of the organization's active peanut producer membership in each county;</P> <P>(3) The extent to which the peanut producer membership of such organization is represented in setting the organization's policies;</P> <P>(4) Evidence of stability and permanency of the organization;</P> <P>(5) Sources from which the organization's operating funds are derived;</P> <P>(6) Functions of the organization;</P> <P>(7) The organization's ability and willingness to further the aims and objectives of the Act and Order; and,</P> <P>(8) Demonstrated experience administering generic state promotion and research programs.</P> <P>(f) The Secretary's determination as to eligibility or certification of an organization shall be final.</P> </SECTION> </SUBJGRP> <SUBJGRP> <PRTPAGE P="144"/> <HD SOURCE="HED">Miscellaneous</HD> <SECTION> <SECTNO>§ 1216.80</SECTNO> <SUBJECT>Right of the Secretary.</SUBJECT> <P>All fiscal matters, programs, plans, or projects, rules or regulations, reports, or other substantive actions proposed and prepared by the Board shall be submitted to the Secretary for approval.</P> </SECTION> <SECTION> <SECTNO>§ 1216.81</SECTNO> <SUBJECT>Implementation of the Order.</SUBJECT> <P>The Order shall not become effective unless:</P> <P>(a) The Secretary determines that the Order is consistent with and will effectuate the purposes of the Act; and</P> <P>(b) The Order is approved by a simple majority of the peanut producers as defined in § 1216.21 voting in a referendum who, during a representative period determined by the Secretary, have been engaged in the production of peanuts.</P> </SECTION> <SECTION> <SECTNO>§ 1216.82</SECTNO> <SUBJECT>Suspension and termination.</SUBJECT> <P>(a) The Secretary shall suspend or terminate this subpart or a provision thereof if the Secretary finds that this subpart or a provision thereof obstructs or does not tend to effectuate the purposes of the Act, or if the Secretary determines that this subpart or a provision thereof is not favored by persons voting in a referendum conducted pursuant to the Act.</P> <P>(b) Every five years, the Secretary shall hold a referendum to determine whether peanut producers favor the continuation of the Order. The Secretary will also conduct a referendum if 10 percent or more of all eligible peanut producers request the Secretary to hold a referendum. In addition, the Secretary may hold a referendum at any time.</P> <P>(c) The Secretary shall suspend or terminate this subpart at the end of the marketing year whenever the Secretary determines that its suspension or termination is approved or favored by a simple majority of the producers voting in a referendum who, during a representative period determined by the Secretary, have been engaged in the production of peanuts.</P> <P>(d) If, as a result of the referendum conducted under paragraph (b) of this section, the Secretary determines that this subpart is not approved, the Secretary shall:</P> <P>(1) Not later than 180 days after making the determination, suspend or terminate, as the case may be, collection of assessments under this subpart; and</P> <P>(2) As soon as practical, suspend or terminate, as the case may be, activities under this subpart in an Orderly manner.</P> </SECTION> <SECTION> <SECTNO>§ 1216.83</SECTNO> <SUBJECT>Proceedings after termination.</SUBJECT> <P>(a) Upon the termination of this subpart, the Board shall recommend not more than three of its members to the Secretary to serve as trustees for the purpose of liquidating the affairs of the Board. Such persons, upon designation by the Secretary, shall become trustees of all the funds and property then in the possession or under control of the Board, including claims for any funds unpaid or property not delivered, or any other claim existing at the time of such termination.</P> <P>(b) The said trustees shall:</P> <P>(1) Continue in such capacity until discharged by the Secretary;</P> <P>(2) Carry out the obligations of the Board under any contracts or agreements entered into pursuant to the Order;</P> <P>(3) From time to time, account for all receipts and disbursements and deliver all property on hand, together with all books and records of the Board and the trustees, to such person or persons as the Secretary may direct; and</P> <P>(4) Upon request of the Secretary execute such assignments or other instruments necessary and appropriate to vest in such persons title and right to all funds, property and claims vested in the Board or the trustees pursuant to the Order.</P> <P>(c) Any person to whom funds, property or claims have been transferred or delivered pursuant to the Order shall be subject to the same obligations imposed upon the Board and upon the trustees.</P> <P>(d) Any residual funds not required to defray the necessary expenses of liquidation shall be turned over to the Secretary to be disposed of, to the extent practical, to the peanut producer organizations, certified pursuant to § 1216.70, in the interest of continuing peanut promotion, research, and information programs.</P> </SECTION> <SECTION> <PRTPAGE P="145"/> <SECTNO>§ 1216.84</SECTNO> <SUBJECT>Effect of termination or amendment.</SUBJECT> <P>Unless otherwise expressly provided by the Secretary, the termination of this subpart or of any regulation issued pursuant thereto, or the issuance of any amendment to either thereof, shall not:</P> <P>(a) Affect or waive any right, duty, obligation or liability which shall have arisen or which may thereafter arise in connection with any provision of this subpart or any regulation issued thereunder; or</P> <P>(b) Release or extinguish any violation of this subpart or any regulation issued thereunder; or</P> <P>(c) Affect or impair any rights or remedies of the United States, or of the Secretary or of any other persons, with respect to any such violation.</P> </SECTION> <SECTION> <SECTNO>§ 1216.85</SECTNO> <SUBJECT>Personal liability.</SUBJECT> <P>No member or alternate member of the Board shall be held personally responsible, either individually or jointly with others, in any way whatsoever, to any person for errors in judgment, mistakes, or other acts, either of commission or omission, as such member or alternate, except for acts of dishonesty or willful misconduct.</P> </SECTION> <SECTION> <SECTNO>§ 1216.86</SECTNO> <SUBJECT>Separability.</SUBJECT> <P>If any provision of this subpart is declared invalid or the applicability thereof to any person or circumstances is held invalid, the validity of the remainder of this subpart or the applicability thereof to other persons or circumstances shall not be affected thereby.</P> </SECTION> <SECTION> <SECTNO>§ 1216.87</SECTNO> <SUBJECT>Amendments.</SUBJECT> <P>Amendments to this subpart may be proposed, from time to time, by the Board or by any interested person affected by the provisions of the Act, including the Secretary.</P> </SECTION> <SECTION> <SECTNO>§ 1216.88</SECTNO> <SUBJECT>Patents, copyrights, trademarks, information, publications, and product formulations.</SUBJECT> <P>Patents, copyrights, trademarks, information, publications, and product formulations developed through the use of funds received by the Board under this subpart shall be the property of the U.S. Government as represented by the Board and shall, along with any rents, royalties, residual payments, or other income from the rental, sales, leasing, franchising, or other uses of such patents, copyrights, trademarks, information, publications, or product formulations, inure to the benefit of the Board; shall be considered income subject to the same fiscal, budget, and audit controls as other funds of the Board; and may be licensed subject to approval by the Secretary. Upon termination of this subpart, § 1216.82 shall apply to determine disposition of all such property.</P> </SECTION> </SUBJGRP> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart B—Procedure for the Conduct of Referenda in Connection With the Peanut Promotion, Research, and Information Order</HD> <SECTION> <SECTNO>§ 1216.100</SECTNO> <SUBJECT>General.</SUBJECT> <P>Referenda to determine whether eligible peanut producers favor the issuance, amendment, suspension, or termination of a Peanut Promotion, Research, and Information Order shall be conducted in accordance with this subpart.</P> </SECTION> <SECTION> <SECTNO>§ 1216.101</SECTNO> <SUBJECT>Definitions.</SUBJECT> <P>The following definitions apply to this subpart:</P> <P>(a) <E T="03">Administrator</E> means the Administrator of the Agricultural Marketing Service, with power to redelegate, or any officer or employee of the Department to whom authority has been delegated or may hereafter be delegated to act in the Administrator's stead.</P> <P>(b) <E T="03">Order</E> means the Peanut Promotion, Research, and Information Order.</P> <P>(c) <E T="03">Referendum agent</E> or <E T="03">agent</E> means the individual or individuals designated by the Secretary to conduct the referendum.</P> <P>(d) <E T="03">Representative period</E> means the period designated by the Secretary.</P> <P>(e) <E T="03">Person</E> means any individual, group of individuals, partnership, corporation, association, cooperative, or any other legal entity. For the purpose of this definition, the term “partnership” includes, but is not limited to:<PRTPAGE P="146"/> </P> <P>(1) A husband and a wife who have title to, or leasehold interest in, a peanut farm as tenants in common, joint tenants, tenants by the entirety, or, under community property laws, as community property; and</P> <P>(2) So-called “joint ventures” wherein one or more parties to an agreement, informal or otherwise, contributed land and others contributed capital, labor, management, or other services, or any variation of such contributions by two or more parties.</P> <P>(f) <E T="03">Eligible producer</E> means any person who is engaged in the production and sale of peanuts in the United States and who:</P> <P>(1) Owns, or shares the ownership and risk of loss of, the crop. This does not include quota holders who do not share in the risk of loss of the crop;</P> <P>(2) Rents peanut production facilities and equipment resulting in the ownership of all or a portion of the peanuts produced;</P> <P>(3) Owns peanut production facilities and equipment but does not manage them and, as compensation, obtains the ownership of a portion of the peanuts produced; or</P> <P>(4) Is a party in a landlord-tenant relationship or a divided ownership arrangement involving totally independent entities cooperating only to produce peanuts who share the risk of loss and receive a share of the peanuts produced. No other acquisition of legal title to peanuts shall be deemed to result in persons becoming eligible producers.</P> </SECTION> <SECTION> <SECTNO>§ 1216.102</SECTNO> <SUBJECT>Voting.</SUBJECT> <P>(a) Each person who is an eligible producer, as defined in this subpart, at the time of the referendum and during the representative period, shall be entitled to cast only one ballot in the referendum. However, each producer in a landlord-tenant relationship or a divided ownership arrangement involving totally independent entities cooperating only to produce peanuts, in which more than one of the parties is a producer, shall be entitled to cast one ballot in the referendum covering only such producer's share of the ownership.</P> <P>(b) Proxy voting is not authorized, but an officer or employee of an eligible corporate producer, or an administrator, executor, or trustee or an eligible producing entity may cast a ballot on behalf of such producer. Any individual so voting in a referendum shall certify that such individual is an officer or employee of the eligible producer, or an administrator, executive, or trustee of an eligible producing entity and that such individual has the authority to take such action. Upon request of the referendum agent, the individual shall submit adequate evidence of such authority.</P> <P>(c) All ballots are to be cast by mail or by facsimile, as instructed by the Secretary.</P> </SECTION> <SECTION> <SECTNO>§ 1216.103</SECTNO> <SUBJECT>Instructions.</SUBJECT> <P>The referendum agent shall conduct the referendum, in the manner provided in this subpart, under the supervision of the Administrator. The Administrator may prescribe additional instructions, not inconsistent with the provisions hereof, to govern the procedure to be followed by the referendum agent. Such agent shall:</P> <P>(a) Determine the period during which ballots may be cast.</P> <P>(b) Provide ballots and related material to be used in the referendum. The ballot shall provide for recording essential information, including that needed for ascertaining whether the person voting, or on whose behalf the vote is cast, is an eligible voter.</P> <P>(c) Give reasonable public notice of the referendum:</P> <P>(1) By utilizing available media or public information sources, without incurring advertising expense, to publicize the dates, places, method of voting, eligibility requirements, and other pertinent information. Such sources of publicity may include, but are not limited to, print and radio; and</P> <P>(2) By such other means as the agent may deem advisable.</P> <P>(d) Mail to eligible producers whose names and addresses are known to the referendum agent, the instructions on voting, a ballot, and a summary of the terms and conditions of the Peanut Promotion, Research, and Information Order. No person who claims to be eligible to vote shall be refused a ballot.</P> <P>(e) At the end of the voting period, collect, open, number, and review the ballots and tabulate the results in the <PRTPAGE P="147"/>presence of an agent of a third party authorized to monitor the referendum process.</P> <P>(f) Prepare a report on the referendum.</P> <P>(g) Announce the results to the public.</P> </SECTION> <SECTION> <SECTNO>§ 1216.104</SECTNO> <SUBJECT>Subagents.</SUBJECT> <P>The referendum agent may appoint any individual or individuals necessary or desirable to assist the agent in performing such agent's functions under this subpart. Each individual so appointed may be authorized by the agent to perform any or all of the functions which, in the absence of such appointment, shall be performed by the agent.</P> </SECTION> <SECTION> <SECTNO>§ 1216.105</SECTNO> <SUBJECT>Ballots.</SUBJECT> <P>The referendum agent and subagents shall accept all ballots cast. However, if an agent or subagent deems that a ballot should be challenged for any reason, the agent or subagent shall endorse above their signature, on the ballot, a statement to the effect that such ballot was challenged, by whom challenged, the reasons therefor, the results of any investigations made with respect thereto, and the disposition thereof. Ballots invalid under this subpart shall not be counted.</P> </SECTION> <SECTION> <SECTNO>§ 1216.106</SECTNO> <SUBJECT>Referendum report.</SUBJECT> <P>Except as otherwise directed, the referendum agent shall prepare and submit to the Administrator a report on results of the referendum, the manner in which it was conducted, the extent and kind of public notice given, and other information pertinent to analysis of the referendum and its results.</P> </SECTION> <SECTION> <SECTNO>§ 1216.107</SECTNO> <SUBJECT>Confidential information.</SUBJECT> <P>The ballots and other information or reports that reveal, or tend to reveal, the vote of any person covered under the Act and the voting list shall be held confidential and shall not be disclosed.</P> </SECTION> </SUBPART> </PART> <PART> <EAR>Pt. 1218</EAR> <HD SOURCE="HED">PART 1218—BLUEBERRY PROMOTION, RESEARCH, AND INFORMATION ORDER</HD> <CONTENTS> <SUBPART> <HD SOURCE="HED">Subpart A—Blueberry Promotion, Research, and Information Order</HD> <SUBJGRP> <HD SOURCE="HED">Definitions</HD> <SECHD>Sec.</SECHD> <SECTNO>1218.1</SECTNO> <SUBJECT>Act.</SUBJECT> <SECTNO>1218.2</SECTNO> <SUBJECT>Blueberries.</SUBJECT> <SECTNO>1218.3</SECTNO> <SUBJECT>Conflict of interest.</SUBJECT> <SECTNO>1218.4</SECTNO> <SUBJECT>Crop year.</SUBJECT> <SECTNO>1218.5</SECTNO> <SUBJECT>Department.</SUBJECT> <SECTNO>1218.6</SECTNO> <SUBJECT>Exporter.</SUBJECT> <SECTNO>1218.7</SECTNO> <SUBJECT>First handler.</SUBJECT> <SECTNO>1218.8</SECTNO> <SUBJECT>Fiscal period.</SUBJECT> <SECTNO>1218.9</SECTNO> <SUBJECT>Importer.</SUBJECT> <SECTNO>1218.10</SECTNO> <SUBJECT>Information.</SUBJECT> <SECTNO>1218.11</SECTNO> <SUBJECT>Market or marketing.</SUBJECT> <SECTNO>1218.12</SECTNO> <SUBJECT>Order.</SUBJECT> <SECTNO>1218.13</SECTNO> <SUBJECT>Part and subpart.</SUBJECT> <SECTNO>1218.14</SECTNO> <SUBJECT>Person.</SUBJECT> <SECTNO>1218.15</SECTNO> <SUBJECT>Processed blueberries.</SUBJECT> <SECTNO>1218.16</SECTNO> <SUBJECT>Producer.</SUBJECT> <SECTNO>1218.17</SECTNO> <SUBJECT>Promotion.</SUBJECT> <SECTNO>1218.18</SECTNO> <SUBJECT>Research.</SUBJECT> <SECTNO>1218.19</SECTNO> <SUBJECT>Secretary.</SUBJECT> <SECTNO>1218.20</SECTNO> <SUBJECT>Suspend.</SUBJECT> <SECTNO>1218.21</SECTNO> <SUBJECT>Terminate.</SUBJECT> <SECTNO>1218.22</SECTNO> <SUBJECT>United States.</SUBJECT> <SECTNO>1218.23</SECTNO> <SUBJECT>USACBC.</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">U.S.A. Cultivated Blueberry Council</HD> <SECTNO>1218.40</SECTNO> <SUBJECT>Establishment and membership.</SUBJECT> <SECTNO>1218.41</SECTNO> <SUBJECT>Nominations and appointments.</SUBJECT> <SECTNO>1218.42</SECTNO> <SUBJECT>Term of office.</SUBJECT> <SECTNO>1218.43</SECTNO> <SUBJECT>Vacancies.</SUBJECT> <SECTNO>1218.44</SECTNO> <SUBJECT>Alternate members.</SUBJECT> <SECTNO>1218.45</SECTNO> <SUBJECT>Procedure.</SUBJECT> <SECTNO>1218.46</SECTNO> <SUBJECT>Compensation and reimbursement.</SUBJECT> <SECTNO>1218.47</SECTNO> <SUBJECT>Powers and duties.</SUBJECT> <SECTNO>1218.48</SECTNO> <SUBJECT>Prohibited activities.</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Expenses and Assessments</HD> <SECTNO>1218.50</SECTNO> <SUBJECT>Budget and expenses.</SUBJECT> <SECTNO>1218.51</SECTNO> <SUBJECT>Financial statements.</SUBJECT> <SECTNO>1218.52</SECTNO> <SUBJECT>Assessments.</SUBJECT> <SECTNO>1218.53</SECTNO> <SUBJECT>Exemption procedures.</SUBJECT> <SECTNO>1218.54</SECTNO> <SUBJECT>Programs, plans, and projects.</SUBJECT> <SECTNO>1218.55</SECTNO> <SUBJECT>Independent evaluation.</SUBJECT> <SECTNO>1218.56</SECTNO> <SUBJECT>Patents, copyrights, trademarks, information, publications, and product formulations.</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Reports, Books, and Records</HD> <SECTNO>1218.60</SECTNO> <SUBJECT>Reports.</SUBJECT> <SECTNO>1218.61</SECTNO> <SUBJECT>Books and records.</SUBJECT> <SECTNO>1218.62</SECTNO> <SUBJECT>Confidential treatment.</SUBJECT> </SUBJGRP> <SUBJGRP> <PRTPAGE P="148"/> <HD SOURCE="HED">Miscellaneous</HD> <SECTNO>1218.70</SECTNO> <SUBJECT>Right of the Secretary.</SUBJECT> <SECTNO>1218.71</SECTNO> <SUBJECT>Referenda.</SUBJECT> <SECTNO>1218.72</SECTNO> <SUBJECT>Suspension and termination.</SUBJECT> <SECTNO>1218.73</SECTNO> <SUBJECT>Proceedings after termination.</SUBJECT> <SECTNO>1218.74</SECTNO> <SUBJECT>Effect of termination or amendment.</SUBJECT> <SECTNO>1218.75</SECTNO> <SUBJECT>Personal liability.</SUBJECT> <SECTNO>1218.76</SECTNO> <SUBJECT>Separability.</SUBJECT> <SECTNO>1218.77</SECTNO> <SUBJECT>Amendments.</SUBJECT> <SECTNO>1218.78</SECTNO> <SUBJECT>OMB control numbers.</SUBJECT> </SUBJGRP> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart B—Procedure for the Conduct of Referenda in Connection with the Blueberry Promotion, Research, and Information Order</HD> <SECTNO>1218.100</SECTNO> <SUBJECT>General.</SUBJECT> <SECTNO>1218.101</SECTNO> <SUBJECT>Definitions.</SUBJECT> <SECTNO>1218.102</SECTNO> <SUBJECT>Voting.</SUBJECT> <SECTNO>1218.103</SECTNO> <SUBJECT>Instructions.</SUBJECT> <SECTNO>1218.104</SECTNO> <SUBJECT>Subagents.</SUBJECT> <SECTNO>1218.105</SECTNO> <SUBJECT>Ballots.</SUBJECT> <SECTNO>1218.106</SECTNO> <SUBJECT>Referendum report.</SUBJECT> <SECTNO>1218.107</SECTNO> <SUBJECT>Confidential information.</SUBJECT> </SUBPART> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>U.S.C. 7401—7425.</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>65 FR 7654, Feb. 15, 2000, unless otherwise noted.</P> </SOURCE> <SUBPART> <HD SOURCE="HED">Subpart A—Blueberry Promotion, Research, and Information Order</HD> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>65 FR 43963, July 17, 2000, unless otherwise noted.</P> </SOURCE> <EDNOTE> <HD SOURCE="HED">Editorial Note:</HD> <P>Nomenclature changes appear at 66 FR 37118, 37119, July 17, 2001.</P> </EDNOTE> <SUBJGRP> <HD SOURCE="HED">Definitions</HD> <SECTION> <SECTNO>§ 1218.1</SECTNO> <SUBJECT>Act.</SUBJECT> <P> <E T="03">Act</E> means the Commodity Promotion, Research, and Information Act of 1996 (7 U.S.C. 7401-7425; Pub. L. 104-127; 110 Stat. 1029), or any amendments thereto.</P> </SECTION> <SECTION> <SECTNO>§ 1218.2</SECTNO> <SUBJECT>Blueberries.</SUBJECT> <P> <E T="03">Blueberries</E> means cultivated blueberries grown in or imported into the United States of the genus Vaccinium <E T="03">Corymbosum</E> and <E T="03">Ashei,</E> including the northern highbush, southern highbush, rabbit eye varieties, and any hybrid, and excluding the lowbush (native) blueberry Vaccinium <E T="03">Angustifolium</E>.</P> </SECTION> <SECTION> <SECTNO>§ 1218.3</SECTNO> <SUBJECT>Conflict of interest.</SUBJECT> <P> <E T="03">Conflict of interest</E> means a situation in which a member or employee of the U.S.A. Cultivated Blueberry Council has a direct or indirect financial interest in a person who performs a service for, or enters into a contract with, the USACBC for anything of economic value.</P> <CITA>[65 FR 43963, July 17, 2000, as amended at 66 FR 37118, July 17, 2001]</CITA> </SECTION> <SECTION> <SECTNO>§ 1218.4</SECTNO> <SUBJECT>Crop year.</SUBJECT> <P> <E T="03">Crop year</E> means the 12-month period from November 1 through October 31 of the following year or such other period approved by the Secretary.</P> </SECTION> <SECTION> <SECTNO>§ 1218.5</SECTNO> <SUBJECT>Department.</SUBJECT> <P> <E T="03">Department</E> means the U.S. Department of Agriculture.</P> </SECTION> <SECTION> <SECTNO>§ 1218.6</SECTNO> <SUBJECT>Exporter.</SUBJECT> <P> <E T="03">Exporter</E> means a person involved in exporting blueberries from another country to the United States.</P> </SECTION> <SECTION> <SECTNO>§ 1218.7</SECTNO> <SUBJECT>First handler.</SUBJECT> <P> <E T="03">First handler</E> means any person, (excluding a common or contract carrier), receiving blueberries from producers and who as owner, agent, or otherwise ships or causes blueberries to be shipped as specified in the Order. This definition includes those engaged in the business of buying, selling and/or offering for sale; receiving; packing; grading; marketing; or distributing blueberries in commercial quantities. This definition includes a retailer, except a retailer who purchases or acquires from, or handles on behalf of any producer, blueberries. The term first handler includes a producer who handles or markets blueberries of the producer's own production.</P> </SECTION> <SECTION> <SECTNO>§ 1218.8</SECTNO> <SUBJECT>Fiscal period.</SUBJECT> <P> <E T="03">Fiscal period</E> means a calendar year from January 1 through December 31, or such other period as approved by the Secretary.</P> </SECTION> <SECTION> <SECTNO>§ 1218.9</SECTNO> <SUBJECT>Importer.</SUBJECT> <P> <E T="03">Importer</E> means any person who imports fresh or processed blueberries into the United States as a principal or as an agent, broker, or consignee of any person who produces or handles fresh or processed blueberries outside of the United States for sale in the United States, and who is listed in the <PRTPAGE P="149"/>import records as the importer of record for such blueberries.</P> </SECTION> <SECTION> <SECTNO>§ 1218.10</SECTNO> <SUBJECT>Information.</SUBJECT> <P> <E T="03">Information</E> means information and programs that are designed to increase efficiency in processing and to develop new markets, marketing strategies, increase market efficiency, and activities that are designed to enhance the image of blueberries on a national or international basis. These include:</P> <P>(a) <E T="03">Consumer information,</E> which means any action taken to provide information to, and broaden the understanding of, the general public regarding the consumption, use, nutritional attributes, and care of blueberries; and</P> <P>(b) <E T="03">Industry information,</E> which means information and programs that will lead to the development of new markets, new marketing strategies, or increased efficiency for the blueberry industry, and activities to enhance the image of the blueberry industry.</P> </SECTION> <SECTION> <SECTNO>§ 1218.11</SECTNO> <SUBJECT>Market or marketing.</SUBJECT> <P>(a) <E T="03">Marketing</E> means the sale or other disposition of blueberries in any channel of commerce.</P> <P>(b) To <E T="03">market</E> means to sell or otherwise dispose of blueberries in interstate, foreign, or intrastate commerce.</P> </SECTION> <SECTION> <SECTNO>§ 1218.12</SECTNO> <SUBJECT>Order.</SUBJECT> <P> <E T="03">Order</E> means an order issued by the Secretary under section 514 of the Act that provides for a program of generic promotion, research, and information regarding agricultural commodities authorized under the Act.</P> </SECTION> <SECTION> <SECTNO>§ 1218.13</SECTNO> <SUBJECT>Part and subpart.</SUBJECT> <P> <E T="03">Part</E> means the Blueberry Promotion, Research, and Information Order and all rules, regulations, and supplemental orders issued pursuant to the Act and the Order. The Order shall be a <E T="03">subpart</E> of such part.</P> </SECTION> <SECTION> <SECTNO>§ 1218.14</SECTNO> <SUBJECT>Person.</SUBJECT> <P> <E T="03">Person</E> means any individual, group of individuals, partnership, corporation, association, cooperative, or any other legal entity.</P> </SECTION> <SECTION> <SECTNO>§ 1218.15</SECTNO> <SUBJECT>Processed blueberries.</SUBJECT> <P> <E T="03">Processed blueberries</E> means blueberries which have been frozen, dried, pureed, or made into juice.</P> </SECTION> <SECTION> <SECTNO>§ 1218.16</SECTNO> <SUBJECT>Producer.</SUBJECT> <P> <E T="03">Producer</E> means any person who grows blueberries in the United States for sale in commerce, or a person who is engaged in the business of producing, or causing to be produced for any market, blueberries beyond the person's own family use and having value at first point of sale.</P> </SECTION> <SECTION> <SECTNO>§ 1218.17</SECTNO> <SUBJECT>Promotion.</SUBJECT> <P> <E T="03">Promotion</E> means any action taken to present a favorable image of blueberries to the general public and the food industry for the purpose of improving the competitive position of blueberries both in the United States and abroad and stimulating the sale of blueberries. This includes paid advertising and public relations.</P> </SECTION> <SECTION> <SECTNO>§ 1218.18</SECTNO> <SUBJECT>Research.</SUBJECT> <P> <E T="03">Research</E> means any type of test, study, or analysis designed to advance the image, desirability, use, marketability, production, product development, or quality of blueberries, including research relating to nutritional value, cost of production, new product development, varietal development, nutritional value, health research, and marketing of blueberries.</P> </SECTION> <SECTION> <SECTNO>§ 1218.19</SECTNO> <SUBJECT>Secretary.</SUBJECT> <P> <E T="03">Secretary</E> means the Secretary of Agriculture of the United States, or any officer or employee of the Department to whom authority has heretofore been delegated, or to whom authority may hereafter be delegated, to act in the Secretary's stead.</P> </SECTION> <SECTION> <SECTNO>§ 1218.20</SECTNO> <SUBJECT>Suspend.</SUBJECT> <P> <E T="03">Suspend</E> means to issue a rule under section 553 of title 5, U.S.C., to temporarily prevent the operation of an order or part thereof during a particular period of time specified in the rule.</P> </SECTION> <SECTION> <SECTNO>§ 1218.21</SECTNO> <SUBJECT>Terminate.</SUBJECT> <P> <E T="03">Terminate</E> means to issue a rule under section 553 of title 5, U.S.C., to cancel permanently the operation of an order <PRTPAGE P="150"/>or part thereof beginning on a date certain specified in the rule.</P> </SECTION> <SECTION> <SECTNO>§ 1218.22</SECTNO> <SUBJECT>United States.</SUBJECT> <P> <E T="03">United States</E> means collectively the 50 states, the District of Columbia, the Commonwealth of Puerto Rico, and the territories and possessions of the United States.</P> </SECTION> <SECTION> <SECTNO>§ 1218.23</SECTNO> <SUBJECT>USACBC.</SUBJECT> <P> <E T="03">USACBC,</E> or U.S.A. Cultivated Blueberry Council, means the administrative body established pursuant to § 1218.40.</P> <CITA>[65 FR 43963, July 17, 2000, as amended at 66 FR 37118, July 17, 2001]</CITA> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">U.S.A. Cultivated Blueberry Council</HD> <SECTION> <SECTNO>§ 1218.40</SECTNO> <SUBJECT>Establishment and membership.</SUBJECT> <P>(a) <E T="03">Establishment of the U.S.A. Cultivated Blueberry Council.</E> There is hereby established a U.S.A. Cultivated Blueberry Council, hereinafter called the USACBC, composed of no more than 13 members and alternates, appointed by the Secretary from the nominations as follows:</P> <P>(1) One producer member and alternate from each of the following regions:</P> <P>(i) Region #1 Western Region (all states from the Pacific east to the Rockies): Alaska, Arizona, California, Colorado, Hawaii, Idaho, Montana, Nevada, New Mexico, Oregon, Utah, Washington, and Wyoming.</P> <P>(ii) Region #2 Midwest Region (all states east of the Rockies to the Great Lakes and south to the Kansas/Missouri/Kentucky state line): Illinois, Indiana, Iowa, Kansas, Kentucky, Michigan, Minnesota, Missouri, Nebraska, North Dakota, Ohio, South Dakota, and Wisconsin.</P> <P>(iii) Region #3 Northeast Region (all states east of the Great Lakes and North of the North Carolina/Tennessee state line): Connecticut, Delaware, New York, Maine, Maryland, Massachusetts, New Hampshire, New Jersey, Pennsylvania, Rhode Island, Virginia, Vermont, Washington, D.C., and West Virginia.</P> <P>(iv) Region #4 Southern Region (all states south of the Virginia/Kentucky/Missouri/Kansas state line and east of the Rockies): Alabama, Arkansas, Florida, Georgia, Louisiana, Mississippi, North Carolina, Oklahoma, Puerto Rico, South Carolina, Tennessee, and Texas.</P> <P>(2) One producer member and alternate from each of the top five blueberry producing states, based upon the average of the total tons produced over the previous three years. Average tonnage will be based upon North American Blueberry Council production figures for the initial election and production and assessment figures generated by the USACBC thereafter.</P> <P>(3) One importer and alternate.</P> <P>(4) One exporter and alternate shall be filled by foreign blueberry producers currently shipping blueberries into the United States from the largest foreign blueberry production area, based on a three-year average.</P> <P>(5) One first handler member and alternate shall be filled by a United States based independent or cooperative organization which is a producer/shipper of domestic blueberries.</P> <P>(6) One public member and alternate.</P> <P>(b) <E T="03">Adjustment of membership.</E> At least once every five years, the USACBC will review the geographical distribution of United States production of blueberries and the quantity of imports. The review will be conducted through an audit of state crop production figures and USACBC assessment receipts. If warranted, the USACBC will recommend to the Secretary that membership on the USACBC be altered to reflect any changes in geographical distribution of domestic blueberry production and the quantity of imports. If the level of imports increases, importer members and alternates may be added to the USACBC.</P> <CITA>[65 FR 43963, July 17, 2000, as amended at 66 FR 37119, July 17, 2001]</CITA> </SECTION> <SECTION> <SECTNO>§ 1218.41</SECTNO> <SUBJECT>Nominations and appointments.</SUBJECT> <P>(a) Voting for regional and state representatives will be made by mail ballot.</P> <P>(b) In a case where a state has a state blueberry commission or marketing order in place, the state commission or committee will nominate members and alternates to serve on the USACBC. At least two nominees shall be submitted <PRTPAGE P="151"/>to the Secretary for each member and for each alternate.</P> <P>(c) Nomination and election of regional, and state representatives where no commission or order is in place will be handled by the USACBC, provided that the initial nominations will be handled by the North American Blueberry Council. The USACBC will seek nominations for members and alternates from the specific states and/or regions. Nominations will be returned to the USACBC and placed on a ballot which will then be sent to producers in the state and/or region for vote. The final nominee for member will have received the highest number of votes cast. The person with the second highest number of votes cast will be the final nominee for alternate. The persons with the third and fourth place highest number of votes cast will be designated as additional nominees for consideration by the Secretary.</P> <P>(d) Nominations for the importer, exporter, first handler, and public member positions will be made by the USACBC. Two nominees for each member and each alternate position will be submitted to the Secretary for consideration.</P> <P>(e) From the nominations, the Secretary shall select the members of the USACBC and alternates for each position on the USACBC.</P> <CITA>[65 FR 43963, July 17, 2000, as amended at 66 FR 37119, July 17, 2001]</CITA> </SECTION> <SECTION> <SECTNO>§ 1218.42</SECTNO> <SUBJECT>Term of office.</SUBJECT> <P>USACBC members and alternates will serve for a term of three years and be able to serve a maximum of two consecutive terms. A USACBC member may serve as an alternate during the years the member is ineligible for a member position. When the USACBC is first established, the state representatives, first handler member, and their respected alternates will be assigned initial terms of three years. Regional representatives, the importer member, the exporter member, public member, and their alternates will serve an initial term of two years. Thereafter, each of these positions will carry a full three-year term. USACBC nominations and appointments will take place in two out of every three years. Each term of office will end on December 31, with new terms of office beginning on January 1.</P> <CITA>[65 FR 43963, July 17, 2000, as amended at 66 FR 37119, July 17, 2001]</CITA> </SECTION> <SECTION> <SECTNO>§ 1218.43</SECTNO> <SUBJECT>Vacancies.</SUBJECT> <P>(a) In the event that any member of the USACBC ceases to be a member of the category of members from which the member was appointed to the USACBC, such position shall automatically become vacant.</P> <P>(b) If a member of the USACBC consistently refuses to perform the duties of a member of the USACBC, or if a member of the USACBC engages in acts of dishonesty or willful misconduct, the USACBC may recommend to the Secretary that the member be removed from office. If the Secretary finds the recommendation of the USACBC shows adequate cause, the Secretary shall remove such member from office.</P> <P>(c) Should any member position become vacant, the alternate of that member shall automatically assume the position of said member. Should the positions of both a member and such member's alternate become vacant, successors for the unexpired terms of such member and alternate shall be appointed in the manner specified in § 1218.40 and § 1218.41, except that said nomination and replacement shall not be required if said unexpired terms are less than six months.</P> <CITA>[65 FR 43963, July 17, 2000, as amended at 66 FR 37119, July 17, 2001]</CITA> </SECTION> <SECTION> <SECTNO>§ 1218.44</SECTNO> <SUBJECT>Alternate members.</SUBJECT> <P>An alternate member of the USACBC, during the absence of the member for whom the person is the alternate, shall act in the place and stead of such member and perform such duties as assigned. In the event of death, removal, resignation, or disqualification of any member, the alternate for that member shall automatically assume the position of said member. In the event that both a producer member of the USACBC and the alternate are unable to attend a meeting, the USACBC may not designate any <PRTPAGE P="152"/>other alternate to serve in such member's or alternate's place and stead for such a meeting.</P> <CITA>[65 FR 43963, July 17, 2000, as amended at 66 FR 37119, July 17, 2001]</CITA> </SECTION> <SECTION> <SECTNO>§ 1218.45</SECTNO> <SUBJECT>Procedure.</SUBJECT> <P>(a) At a USACBC meeting, it will be considered a quorum when a minimum of seven members, or their alternates serving in the absence, are present.</P> <P>(b) At the start of each fiscal period, the USACBC will select a chairperson and vice chairperson who will conduct meetings throughout that period.</P> <P>(c) All USACBC members and alternates will receive a minimum of 10 days advance notice of all USACBC and committee meetings.</P> <P>(d) Each member of the USACBC will be entitled to one vote on any matter put to the USACBC, and the motion will carry if supported by one vote more than 50 percent of the total votes represented by the USACBC members present.</P> <P>(e) It will be considered a quorum at a committee meeting when at least one more than half of those assigned to the committee are present. Alternates may also be assigned to committees as necessary. Committees may also consist of individuals other than USACBC members and such individuals may vote in committee meetings. These committee members shall serve without compensation but shall be reimbursed for reasonable travel expenses, as approved by the USACBC.</P> <P>(f) In lieu of voting at a properly convened meeting and, when in the opinion of the chairperson of the USACBC such action is considered necessary, the USACBC may take action if supported by one vote more than 50 percent of the members by mail, telephone, electronic mail, facsimile, or any other means of communication, and all telephone votes shall be confirmed promptly in writing. In that event, all members must be notified and provided the opportunity to vote. Any action so taken shall have the same force and effect as though such action had been taken at a properly convened meeting of the USACBC. All votes shall be recorded in USACBC minutes.</P> <P>(g) There shall be no voting by proxy.</P> <P>(h) The chairperson shall be a voting member.</P> <P>(i) The organization of the USACBC and the procedures for the conducting of meetings of the USACBC shall be in accordance with its bylaws, which shall be established by the USACBC and approved by the Secretary.</P> <CITA>[65 FR 43963, July 17, 2000, as amended at 66 FR 37119, July 17, 2001]</CITA> </SECTION> <SECTION> <SECTNO>§ 1218.46</SECTNO> <SUBJECT>Compensation and reimbursement.</SUBJECT> <P>The members of the USACBC, and alternates when acting as members, shall serve without compensation but shall be reimbursed for reasonable travel expenses, as approved by the USACBC, incurred by them in the performance of their duties as USACBC members.</P> <CITA>[65 FR 43963, July 17, 2000, as amended at 66 FR 37119, July 17, 2001]</CITA> </SECTION> <SECTION> <SECTNO>§ 1218.47</SECTNO> <SUBJECT>Powers and duties.</SUBJECT> <P>The USACBC shall have the following powers and duties:</P> <P>(a) To administer the Order in accordance with its terms and conditions and to collect assessments;</P> <P>(b) To develop and recommend to the Secretary for approval such bylaws as may be necessary for the functioning of the USACBC, and such rules as may be necessary to administer the Order, including activities authorized to be carried out under the Order;</P> <P>(c) To meet, organize, and select from among the members of the USACBC a chairperson, other officers, committees, and subcommittees, as the USACBC determines to be appropriate;</P> <P>(d) To employ persons, other than the members, as the USACBC considers necessary to assist the USACBC in carrying out its duties and to determine the compensation and specify the duties of such persons;</P> <P>(e) To develop programs and projects, and enter into contracts or agreements, which must be approved by the Secretary before becoming effective, for the development and carrying out of programs or projects of research, information, or promotion, and the payment of costs thereof with funds collected pursuant to this subpart. Each contract or agreement shall provide <PRTPAGE P="153"/>that any person who enters into a contract or agreement with the USACBC shall develop and submit to the USACBC a proposed activity; keep accurate records of all of its transactions relating to the contract or agreement; account for funds received and expended in connection with the contract or agreement; make periodic reports to the USACBC of activities conducted under the contract or agreement; and make such other reports available as the USACBC or the Secretary considers relevant. Any contract or agreement shall provide that:</P> <P>(1) The contractor or agreeing party shall develop and submit to the USACBC a program, plan, or project together with a budget or budgets that shall show the estimated cost to be incurred for such program, plan, or project;</P> <P>(2) The contractor or agreeing party shall keep accurate records of all its transactions and make periodic reports to the USACBC of activities conducted, submit accounting for funds received and expended, and make such other reports as the Secretary or the USACBC may require;</P> <P>(3) The Secretary may audit the records of the contracting or agreeing party periodically; and</P> <P>(4) Any subcontractor who enters into a contract with a USACBC contractor and who receives or otherwise uses funds allocated by the USACBC shall be subject to the same provisions as the contractor.</P> <P>(f) To prepare and submit for approval of the Secretary fiscal year budgets in accordance with § 1218.50;</P> <P>(g) To maintain such records and books and prepare and submit such reports and records from time to time to the Secretary as the Secretary may prescribe; to make appropriate accounting with respect to the receipt and disbursement of all funds entrusted to it; and to keep records that accurately reflect the actions and transactions of the USACBC;</P> <P>(h) To cause its books to be audited by a competent auditor at the end of each fiscal year and at such other times as the Secretary may request, and to submit a report of the audit directly to the Secretary;</P> <P>(i) To give the Secretary the same notice of meetings of the USACBC as is given to members in order that the Secretary's representative(s) may attend such meetings, and to keep and report minutes of each meeting of the USACBC to the Secretary;</P> <P>(j) To act as intermediary between the Secretary and any producer, first handler, importer, or exporter;</P> <P>(k) To furnish to the Secretary any information or records that the Secretary may request;</P> <P>(l) To receive, investigate, and report to the Secretary complaints of violations of the Order;</P> <P>(m) To recommend to the Secretary such amendments to the Order as the USACBC considers appropriate; and</P> <P>(n) To work to achieve an effective, continuous, and coordinated program of promotion, research, consumer information, evaluation, and industry information designed to strengthen the blueberry industry's position in the marketplace; maintain and expand existing markets and uses for blueberries; and to carry out programs, plans, and projects designed to provide maximum benefits to the blueberry industry.</P> <CITA>[65 FR 43963, July 17, 2000, as amended at 66 FR 37119, July 17, 2001]</CITA> </SECTION> <SECTION> <SECTNO>§ 1218.48</SECTNO> <SUBJECT>Prohibited activities.</SUBJECT> <P>The USACBC may not engage in, and shall prohibit the employees and agents of the USACBC from engaging in:</P> <P>(a) Any action that would be a conflict of interest; and</P> <P>(b) Using funds collected by the USACBC under the Order to undertake any action for the purpose of influencing legislation or governmental action or policy, by local, state, national, and foreign governments, other than recommending to the Secretary amendments to the Order.</P> <CITA>[65 FR 43963, July 17, 2000, as amended at 66 FR 37119, July 17, 2001]</CITA> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Expenses and Assessments</HD> <SECTION> <SECTNO>§ 1218.50</SECTNO> <SUBJECT>Budget and expenses.</SUBJECT> <P>(a) At least 60 days prior to the beginning of each fiscal year, and as may be necessary thereafter, the USACBC <PRTPAGE P="154"/>shall prepare and submit to the Secretary a budget for the fiscal year covering its anticipated expenses and disbursements in administering this subpart. Each such budget shall include:</P> <P>(1) A statement of objectives and strategy for each program, plan, or project;</P> <P>(2) A summary of anticipated revenue, with comparative data or at least one preceding year (except for the initial budget);</P> <P>(3) A summary of proposed expenditures for each program, plan, or project; and</P> <P>(4) Staff and administrative expense breakdowns, with comparative data for at least on preceding year (except for the initial budget).</P> <P>(b) Each budget shall provide adequate funds to defray its proposed expenditures and to provide for a reserve as set forth in this subpart.</P> <P>(c) Subject to this section, any amendment or addition to an approved budget must be approved by the Secretary, including shifting funds from one program, plan, or project to another. Shifts of funds which do not cause an increase in the USACBC's approved budget and which are consistent with governing bylaws need not have prior approval by the Secretary.</P> <P>(d) The USACBC is authorized to incur such expenses, including provision for a reasonable reserve, as the Secretary finds are reasonable and likely to be incurred by the USACBC for its maintenance and functioning, and to enable it to exercise its powers and perform its duties in accordance with the provisions of this subpart. Such expenses shall be paid from funds received by the USACBC.</P> <P>(e) With approval of the Secretary, the USACBC may borrow money for the payment of administrative expenses, subject to the same fiscal, budget, and audit controls as other funds of the USACBC. Any funds borrowed by the USACBC shall be expended only for startup costs and capital outlays and are limited to the first year of operation of the USACBC.</P> <P>(f) The USACBC may accept voluntary contributions, but these shall only be used to pay expenses incurred in the conduct of programs, plans, and projects. Such contributions shall be free from any encumbrance by the donor and the USACBC shall retain complete control of their use.</P> <P>(g) The USACBC may also receive funds provided through the Department's Foreign Agricultural Service or from other sources, with the approval of the Secretary, for authorized activities.</P> <P>(h) The USACBC shall reimburse the Secretary for all expenses incurred by the Secretary in the implementation, administration, and supervision of the Order, including all referendum costs in connection with the Order.</P> <P>(i) The USACBC may not expend for administration, maintenance, and functioning of the USACBC in any fiscal year an amount that exceeds 15 percent of the assessments and other income received by the USACBC for that fiscal year. Reimbursements to the Secretary required under paragraph (h) are excluded from this limitation on spending.</P> <P>(j) The USACBC may establish an operating monetary reserve and may carry over to subsequent fiscal periods excess funds in any reserve so established: <E T="03">Provided</E> that the funds in the reserve do not exceed one fiscal period's budget. Subject to approval by the Secretary, such reserve funds may be used to defray any expenses authorized under this part.</P> <CITA>[65 FR 43963, July 17, 2000, as amended at 66 FR 37119, July 17, 2001]</CITA> </SECTION> <SECTION> <SECTNO>§ 1218.51</SECTNO> <SUBJECT>Financial statements.</SUBJECT> <P>(a) As requested by the Secretary, the USACBC shall prepare and submit financial statements to the Secretary on a periodic basis. Each such financial statement shall include, but not be limited to, a balance sheet, income statement, and expense budget. The expense budget shall show expenditures during the time period covered by the report, year-to-date expenditures, and the unexpended budget.</P> <P>(b) Each financial statement shall be submitted to the Secretary within 30 days after the end of the time period to which it applies.</P> <P>(c) The USACBC shall submit annually to the Secretary an annual financial statement within 90 days after the <PRTPAGE P="155"/>end of the fiscal year to which it applies.</P> <CITA>[65 FR 43963, July 17, 2000, as amended at 66 FR 37119, July 17, 2001]</CITA> </SECTION> <SECTION> <SECTNO>§ 1218.52</SECTNO> <SUBJECT>Assessments.</SUBJECT> <P>(a) The funds to cover the Council's expenses shall be paid from assessments on producers and importers, donations from any person not subject to assessments under this Order, and other funds available to the Board including those collected pursuant to § 1218.56 and subject to the limitations contained therein.</P> <P>(b) The collection of assessments on domestic blueberries will be the responsibility of the first handler receiving the blueberries. In the case of the producer acting as its own first handler, the producer will be required to collect and remit its individual assessments.</P> <P>(c) Such assessments shall be levied at a rate of $12 per ton on all blueberries. The assessment rate will be reviewed, and may be modified with the approval of the Secretary, after the first referendum is conducted as stated in § 1218.71(b).</P> <P>(d) Each importer of fresh and processed blueberries shall pay an assessment to the USACBC on blueberries imported for marketing in the United States, through the U.S. Customs Service.</P> <P>(1) The assessment rate for imported fresh and processed blueberries shall be the same or equivalent to the rate for fresh blueberries produced in the United States.</P> <P>(2) The import assessment shall be uniformly applied to imported fresh and frozen blueberries that are identified by the numbers 0810.40.0028 and 0811.90.2028, respectively, in the Harmonized Tariff Schedule of the United States or any other numbers used to identify fresh and frozen blueberries. Assessments on other types of imported processed blueberries, such as dried blueberries, puree, and juice, may be added at the recommendation of the USACBC with the approval of the Secretary.</P> <P>(3) The assessments due on imported fresh and processed blueberries shall be paid when they enter or are withdrawn for consumption in the United States.</P> <P>(e) All assessment payments and reports will be submitted to the office of the USACBC. All final payments for a crop year are to be received no later than November 30 of that year. A late payment charge shall be imposed on any handler who fails to remit to the USACBC, the total amount for which any such handler is liable on or before the due date established by the USACBC. In addition to the late payment charge, an interest charge shall be imposed on the outstanding amount for which the handler is liable. The rate of interest shall be prescribed in regulations issued by the Secretary.</P> <P>(f) Persons failing to remit total assessments due in a timely manner may also be subject to actions under federal debt collection procedures.</P> <P>(g) The USACBC may authorize other organizations to collect assessments on its behalf with the approval of the Secretary.</P> <CITA>[65 FR 43963, July 17, 2000, as amended at 66 FR 37119, July 17, 2001]</CITA> </SECTION> <SECTION> <SECTNO>§ 1218.53</SECTNO> <SUBJECT>Exemption procedures.</SUBJECT> <P>(a) Any producer who produces less than 2,000 pounds of blueberries annually who desires to claim an exemption from assessments during a fiscal year as provided in § 1218.42 shall apply to the USACBC, on a form provided by the USACBC, for a certificate of exemption. Such producer shall certify that the producer's production of blueberries shall be less than 2,000 pounds for the fiscal year for which the exemption is claimed. Any importer who imports less than 2,000 pounds of fresh and processed blueberries annually who desires to claim an exemption from assessments during a fiscal year as provided in § 1218.52 shall apply to the USACBC, on a form provided by the USACBC, for a certificate of exemption. Such importer shall certify that the importer's importation of fresh and processed blueberries shall not exceed 2,000 pounds, for the fiscal year for which the exemption is claimed.</P> <P>(b) On receipt of an application, the USACBC shall determine whether an exemption may be granted. The USACBC then will issue, if deemed appropriate, a certificate of exemption to each person who is eligible to receive one. Each producer who is exempt from <PRTPAGE P="156"/>assessment must provide an exemption number to the first handler in order to be exempt from the collection of an assessment on blueberries. First handlers and importers, except as otherwise authorized by the USACBC, shall maintain records showing the exemptee's name and address along with the exemption number assigned by the USACBC.</P> <P>(c) Importers who are exempt from assessment shall be eligible for reimbursement of assessments collected by the U.S. Customs Service and shall apply to the USACBC for reimbursement of such assessments paid. No interest will be paid on assessments collected by the U.S. Customs Service. Requests for reimbursement shall be submitted to the USACBC within 90 days of the last day of the year the blueberries were actually imported.</P> <P>(d) Any person who desires an exemption from assessments for a subsequent fiscal year shall reapply to the USACBC, on a form provided by the USACBC, for a certificate of exemption.</P> <P>(e) The USACBC may require persons receiving an exemption from assessments to provide to the USACBC reports on the disposition of exempt blueberries and, in the case of importers, proof of payment of assessments.</P> <CITA>[65 FR 43963, July 17, 2000, as amended at 66 FR 37119, July 17, 2001]</CITA> </SECTION> <SECTION> <SECTNO>§ 1218.54</SECTNO> <SUBJECT>Programs, plans, and projects.</SUBJECT> <P>(a) The USACBC shall receive and evaluate, or on its own initiative develop, and submit to the Secretary for approval any program, plan, or project authorized under this subpart. Such programs, plans, or projects shall provide for:</P> <P>(1) The establishment, issuance, effectuation, and administration of appropriate programs for promotion, research, and information, including producer and consumer information, with respect to fresh and processed blueberries; and</P> <P>(2) The establishment and conduct of research with respect to the use, nutritional value, sale, distribution, and marketing of fresh and processed blueberries, and the creation of new products thereof, to the end that the marketing and use of blueberries may be encouraged, expanded, improved, or made more acceptable and to advance the image, desirability, or quality of fresh and processed blueberries.</P> <P>(b) No program, plan, or project shall be implemented prior to its approval by the Secretary. Once a program, plan, or project is so approved, the USACBC shall take appropriate steps to implement it.</P> <P>(c) Each program, plan, or project implemented under this subpart shall be reviewed or evaluated periodically by the USACBC to ensure that it contributes to an effective program of promotion, research, or information. If it is found by the USACBC that any such program, plan, or project does not contribute to an effective program of promotion, research, or information, then the USACBC shall terminate such program, plan, or project.</P> <P>(d) No program, plan, or project including advertising shall be false or misleading or disparaging another agricultural commodity. Blueberries of all origins shall be treated equally.</P> <CITA>[65 FR 43963, July 17, 2000, as amended at 66 FR 37119, July 17, 2001]</CITA> </SECTION> <SECTION> <SECTNO>§ 1218.55</SECTNO> <SUBJECT>Independent evaluation.</SUBJECT> <P>The USACBC shall, not less often than every five years, authorize and fund, from funds otherwise available to the USACBC, an independent evaluation of the effectiveness of the Order and other programs conducted by the USACBC pursuant to the Act. The USACBC shall submit to the Secretary, and make available to the public, the results of each periodic independent evaluation conducted under this paragraph.</P> <CITA>[65 FR 43963, July 17, 2000, as amended at 66 FR 37119, July 17, 2001]</CITA> </SECTION> <SECTION> <SECTNO>§ 1218.56</SECTNO> <SUBJECT>Patents, copyrights, trademarks, information, publications, and product formulations.</SUBJECT> <P>Patents, copyrights, trademarks, information, publications, and product formulations developed through the use of funds received by the USACBC under this subpart shall be the property of the U.S. Government as represented by the USACBC and shall, along with any rents, royalties, residual payments, or other income from <PRTPAGE P="157"/>the rental, sales, leasing, franchising, or other uses of such patents, copyrights, trademarks, information, publications, or product formulations, inure to the benefit of the USACBC; shall be considered income subject to the same fiscal, budget, and audit controls as other funds of the USACBC; and may be licensed subject to approval by the Secretary. Upon termination of this subpart, § 1218.73 shall apply to determine disposition of all such property.</P> <CITA>[65 FR 43963, July 17, 2000, as amended at 66 FR 37119, July 17, 2001]</CITA> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Reports, Books, and Records</HD> <SECTION> <SECTNO>§ 1218.60</SECTNO> <SUBJECT>Reports.</SUBJECT> <P>(a) Each first handler subject to this subpart may be required to provide to the USACBC periodically such information as may be required by the USACBC, with the approval of the Secretary, which may include but not be limited to the following:</P> <P>(1) Number of pounds handled;</P> <P>(2) Number of pounds on which an assessment was collected;</P> <P>(3) Name and address of person from whom the first handler has collected the assessments on each pound handled; and</P> <P>(4) Date collection was made on each pound handled. All reports are due to the USACBC 30 days after the end of the crop year.</P> <P>(b) Each producer and importer subject to this subpart may be required to provide to the USACBC periodically such information as may be required by the USACBC, with the approval of the Secretary, which may include but not be limited to the following:</P> <P>(1) Number of pounds produced;</P> <P>(2) Number of pounds on which an assessment was paid;</P> <P>(3) Name and address of the producer;</P> <P>(4) Date collection was made on each pound produced. All reports are due to the USACBC 30 days after the end of the crop year.</P> <CITA>[65 FR 43963, July 17, 2000, as amended at 66 FR 37119, July 17, 2001]</CITA> </SECTION> <SECTION> <SECTNO>§ 1218.61</SECTNO> <SUBJECT>Books and records.</SUBJECT> <P>Each first handler, producer, and importer subject to this subpart shall maintain and make available for inspection by the Secretary such books and records as are necessary to carry out the provisions of this subpart and the regulations issued thereunder, including such records as are necessary to verify any reports required. Such records shall be retained for at least 2 years beyond the fiscal period of their applicability.</P> </SECTION> <SECTION> <SECTNO>§ 1218.62</SECTNO> <SUBJECT>Confidential treatment.</SUBJECT> <P>All information obtained from books, records, or reports under the Act, this subpart, and the regulations issued thereunder shall be kept confidential by all persons, including all employees and former employees of the USACBC, all officers and employees and former officers and employees of contracting and subcontracting agencies or agreeing parties having access to such information. Such information shall not be available to USACBC members, producers, importers, exporters, or first handlers. Only those persons having a specific need for such information to effectively administer the provisions of this subpart shall have access to such information. Only such information so obtained as the Secretary deems relevant shall be disclosed by them, and then only in a judicial proceeding or administrative hearing brought at the direction, or on the request, of the Secretary, or to which the Secretary or any officer of the United States is a party, and involving this subpart. Nothing in this section shall be deemed to prohibit:</P> <P>(a) The issuance of general statements based upon the reports of the number of persons subject to this subpart or statistical data collected therefrom, which statements do not identify the information furnished by any person; and</P> <P>(b) The publication, by direction of the Secretary, of the name of any person who has been adjudged to have violated this subpart, together with a statement of the particular provisions of this subpart violated by such person.</P> <CITA>[65 FR 43963, July 17, 2000, as amended at 66 FR 37119, July 17, 2001]</CITA> </SECTION> </SUBJGRP> <SUBJGRP> <PRTPAGE P="158"/> <HD SOURCE="HED">Miscellaneous</HD> <SECTION> <SECTNO>§ 1218.70</SECTNO> <SUBJECT>Right of the Secretary.</SUBJECT> <P>All fiscal matters, programs, plans, or projects, rules or regulations, reports, or other substantive actions proposed and prepared by the USACBC shall be submitted to the Secretary for approval.</P> <CITA>[65 FR 43963, July 17, 2000, as amended at 66 FR 37119, July 17, 2001]</CITA> </SECTION> <SECTION> <SECTNO>§ 1218.71</SECTNO> <SUBJECT>Referenda.</SUBJECT> <P>(a) <E T="03">Initial referendum</E>. The Order shall not become effective unless:</P> <P>(1) The Secretary determines that the Order is consistent with and will effectuate the purposes of the Act; and</P> <P>(2) The Order is approved by a majority of producers and importers voting for approval who also represent a majority of the volume of blueberries represented in the referendum who, during a representative period determined by the Secretary, have been engaged in the production or importation of blueberries.</P> <P>(b) <E T="03">Subsequent referenda</E>. Every five years, the Secretary shall hold a referendum to determine whether blueberry producers and importers favor the continuation of the Order. The Order shall continue if it is favored by a majority of producers and importers voting for approval who also represent a majority of the volume of blueberries represented in the referendum who, during a representative period determined by the Secretary, have been engaged in the production or importation of blueberries. The Secretary will also conduct a referendum if 10 percent or more of all eligible blueberry producers and importers request the Secretary to hold a referendum. In addition, the Secretary may hold a referendum at any time.</P> </SECTION> <SECTION> <SECTNO>§ 1218.72</SECTNO> <SUBJECT>Suspension and termination.</SUBJECT> <P>(a) The Secretary shall suspend or terminate this part or subpart or a provision thereof if the Secretary finds that the subpart or a provision thereof obstructs or does not tend to effectuate the purposes of the Act, or if the Secretary determines that this subpart or a provision thereof is not favored by persons voting in a referendum conducted pursuant to the Act.</P> <P>(b) The Secretary shall suspend or terminate this subpart at the end of the marketing year whenever the Secretary determines that its suspension or termination is approved or favored by a majority of producers and importers voting for approval who also represent a majority of the volume of blueberries represented in the referendum who, during a representative period determined by the Secretary, have been engaged in the production or importation of blueberries.</P> <P>(c) If, as a result of a referendum the Secretary determines that this subpart is not approved, the Secretary shall:</P> <P>(1) Not later than 180 days after making the determination, suspend or terminate, as the case may be, collection of assessments under this subpart; and</P> <P>(2) As soon as practical, suspend or terminate, as the case may be, activities under this subpart in an orderly manner.</P> </SECTION> <SECTION> <SECTNO>§ 1218.73</SECTNO> <SUBJECT>Proceedings after termination.</SUBJECT> <P>(a) Upon the termination of this subpart, the USACBC shall recommend not more than three of its members to the Secretary to serve as trustees for the purpose of liquidating the affairs of the USACBC. Such persons, upon designation by the Secretary, shall become trustees of all of the funds and property then in the possession or under control of the USACBC, including claims for any funds unpaid or property not delivered, or any other claim existing at the time of such termination.</P> <P>(b) The said trustees shall:</P> <P>(1) Continue in such capacity until discharged by the Secretary;</P> <P>(2) Carry out the obligations of the USACBC under any contracts or agreements entered into pursuant to the Order;</P> <P>(3) From time to time account for all receipts and disbursements and deliver all property on hand, together with all books and records of the USACBC and the trustees, to such person or persons as the Secretary may direct; and</P> <P>(4) Upon request of the Secretary execute such assignments or other instruments necessary and appropriate to vest in such persons title and right to all funds, property and claims vested in <PRTPAGE P="159"/>the USACBC or the trustees pursuant to the Order.</P> <P>(c) Any person to whom funds, property or claims have been transferred or delivered pursuant to the Order shall be subject to the same obligations imposed upon the USACBC and upon the trustees.</P> <P>(d) Any residual funds not required to defray the necessary expenses of liquidation shall be turned over to the Secretary to be disposed of, to the extent practical, to the blueberry producer organizations in the interest of continuing blueberry promotion, research, and information programs.</P> <CITA>[65 FR 43963, July 17, 2000, as amended at 66 FR 37119, July 17, 2001]</CITA> </SECTION> <SECTION> <SECTNO>§ 1218.74</SECTNO> <SUBJECT>Effect of termination or amendment.</SUBJECT> <P>Unless otherwise expressly provided by the Secretary, the termination of this subpart or of any regulation issued pursuant thereto, or the issuance of any amendment to either thereof, shall not:</P> <P>(a) Affect or waive any right, duty, obligation or liability which shall have arisen or which may thereafter arise in connection with any provision of this subpart or any regulation issued thereunder; or</P> <P>(b) Release or extinguish any violation of this subpart or any regulation issued thereunder; or</P> <P>(c) Affect or impair any rights or remedies of the United States, or of the Secretary or of any other persons, with respect to any such violation.</P> </SECTION> <SECTION> <SECTNO>§ 1218.75</SECTNO> <SUBJECT>Personal liability.</SUBJECT> <P>No member, alternate member, or employee of the USACBC shall be held personally responsible, either individually or jointly with others, in any way whatsoever, to any person for errors in judgment, mistakes, or other acts, either of commission or omission, as such member, alternate, or employee, except for acts of dishonesty or willful misconduct.</P> <CITA>[65 FR 43963, July 17, 2000, as amended at 66 FR 37119, July 17, 2001]</CITA> </SECTION> <SECTION> <SECTNO>§ 1218.76</SECTNO> <SUBJECT>Separability.</SUBJECT> <P>If any provision of this subpart is declared invalid or the applicability thereof to any person or circumstances is held invalid, the validity of the remainder of this subpart or the applicability thereof to other persons or circumstances shall not be affected thereby.</P> </SECTION> <SECTION> <SECTNO>§ 1218.77</SECTNO> <SUBJECT>Amendments.</SUBJECT> <P>Amendments to this subpart may be proposed from time to time by the USACBC or by any interested person affected by the provisions of the Act, including the Secretary.</P> <CITA>[65 FR 43963, July 17, 2000, as amended at 66 FR 37119, July 17, 2001]</CITA> </SECTION> <SECTION> <SECTNO>§ 1218.78</SECTNO> <SUBJECT>OMB control numbers.</SUBJECT> <P>The control number assigned to the information collection requirements by the Office of Management and Budget pursuant to the Paperwork Reduction Act of 1995, 44 U.S.C. Chapter 35, is OMB control number 0581-0093, except for the USABC nominee background statement form which is assigned OMB control number 0505-001.</P> </SECTION> </SUBJGRP> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart B—Procedure for the Conduct of Referenda in Connection with the Blueberry Promotion, Research, and Information Order</HD> <SECTION> <SECTNO>§ 1218.100</SECTNO> <SUBJECT>General.</SUBJECT> <P>Referenda to determine whether eligible blueberry producers and importers favor the issuance, amendment, suspension, or termination of the Blueberry Promotion, Research, and Information Order shall be conducted in accordance with this subpart.</P> </SECTION> <SECTION> <SECTNO>§ 1218.101</SECTNO> <SUBJECT>Definitions.</SUBJECT> <P>(a) <E T="03">Administrator</E> means the Administrator of the Agricultural Marketing Service, with power to redelegate, or any officer or employee of the U.S. Department of Agriculture to whom authority has been delegated or may hereafter be delegated to act in the Administrator's stead.</P> <P>(b) <E T="03">Blueberries</E> means cultivated blueberries grown in or imported into the United States of the genus Vaccinium <E T="03">Corymbosum</E> and <E T="03">Ashei,</E> including the northern highbush, southern highbush, rabbit eye varieties, and any hybrid, <PRTPAGE P="160"/>and excluding the lowbush (native) blueberry Vaccinium <E T="03">Angustifolium.</E> </P> <P>(c) <E T="03">Eligible importer</E> means any person who imported 2,000 pounds or more of fresh or processed blueberries, that are identified by the numbers 0810.40.0028 and 0811.90.2028, respectively, in the Harmonized Tariff Schedule of the United States or any other numbers used to identify fresh and frozen blueberries. Importation occurs when commodities originating outside the United States are entered or withdrawn from the U.S. Customs Service for consumption in the United States. Included are persons who hold title to foreign-produced blueberries immediately upon release by the U.S. Customs Service, as well as any persons who act on behalf of others, as agents or brokers, to secure the release of blueberries from the U.S. Customs Service when such blueberries are entered or withdrawn for consumption in the United States.</P> <P>(d) <E T="03">Eligible producer</E> means any person who produced 2,000 pounds or more of blueberries in the United States during the representative period who:</P> <P>(1) Owns, or shares the ownership and risk of loss of, the crop;</P> <P>(2) Rents blueberry production facilities and equipment resulting in the ownership of all or a portion of the blueberries produced;</P> <P>(3) Owns blueberry production facilities and equipment but does not manage them and, as compensation, obtains the ownership of a portion of the blueberries produced; or</P> <P>(4) Is a party in a landlord-tenant relationship or a divided ownership arrangement involving totally independent entities cooperating only to produce blueberries who share the risk of loss and receive a share of the blueberries produced. No other acquisition of legal title to blueberries shall be deemed to result in persons becoming eligible producers.</P> <P>(e) <E T="03">Order</E> means the Blueberry Promotion, Research, and Information Order.</P> <P>(f) <E T="03">Person</E> means any individual, group of individuals, partnership, corporation, association, cooperative, or any other legal entity. For the purpose of this definition, the term “partnership” includes, but is not limited to:</P> <P>(1) A husband and a wife who have title to, or leasehold interest in, a blueberry farm as tenants in common, joint tenants, tenants by the entirety, or, under community property laws, as community property; and</P> <P>(2) So-called “joint ventures” wherein one or more parties to an agreement, informal or otherwise, contributed land and others contributed capital, labor, management, or other services, or any variation of such contributions by two or more parties.</P> <P>(g) <E T="03">Processed blueberries</E> means blueberries which have been frozen, dried, pureed, or made into juice.</P> <P>(h) <E T="03">Referendum agent</E> or <E T="03">agent</E> means the individual or individuals designated by the Secretary to conduct the referendum.</P> <P>(i) <E T="03">Representative period</E> means the period designated by the Secretary.</P> <P>(j) <E T="03">United States</E> means collectively the 50 states, the District of Columbia, the Commonwealth of Puerto Rico, and the territories and possessions of the United States.</P> </SECTION> <SECTION> <SECTNO>§ 1218.102</SECTNO> <SUBJECT>Voting.</SUBJECT> <P>(a) Each person who is an eligible producer or an eligible importer, as defined in this subpart, at the time of the referendum and during the representative period, shall be entitled to cast only one ballot in the referendum. However, each producer in a landlord-tenant relationship or a divided ownership arrangement involving totally independent entities cooperating only to produce blueberries, in which more than one of the parties is a producer, shall be entitled to cast one ballot in the referendum covering only such producer's share of the ownership.</P> <P>(b) Proxy voting is not authorized, but an officer or employee of an eligible corporate producer or importer, or an administrator, executor, or trustee or an eligible entity may cast a ballot on behalf of such entity. Any individual so voting in a referendum shall certify that such individual is an officer or employee of the eligible entity, or an administrator, executive, or trustee of an eligible entity and that such individual has the authority to take such action. Upon request of the referendum agent, the individual shall <PRTPAGE P="161"/>submit adequate evidence of such authority.</P> <P>(c) All ballots are to be cast by mail or by facsimile, as instructed by the Secretary.</P> </SECTION> <SECTION> <SECTNO>§ 1218.103</SECTNO> <SUBJECT>Instructions.</SUBJECT> <P>The referendum agent shall conduct the referendum, in the manner herein provided, under the supervision of the Administrator. The Administrator may prescribe additional instructions, not inconsistent with the provisions hereof, to govern the procedure to be followed by the referendum agent. Such agent shall:</P> <P>(a) Determine the period during which ballots may be cast.</P> <P>(b) Provide ballots and related material to be used in the referendum. The ballot shall provide for recording essential information, including that needed for ascertaining whether the person voting, or on whose behalf the vote is cast, is an eligible voter.</P> <P>(c) Give reasonable public notice of the referendum:</P> <P>(1) By utilizing available media or public information sources, without incurring advertising expense, to publicize the dates, places, method of voting, eligibility requirements, and other pertinent information. Such sources of publicity may include, but are not limited to, print and radio; and</P> <P>(2) By such other means as the agent may deem advisable.</P> <P>(d) Mail to eligible producers and importers whose names and addresses are known to the referendum agent, the instructions on voting, a ballot, and a summary of the terms and conditions of the proposed Order. No person who claims to be eligible to vote shall be refused a ballot.</P> <P>(e) At the end of the voting period, collect, open, number, and review the ballots and tabulate the results in the presence of an agent of a third party authorized to monitor the referendum process.</P> <P>(f) Prepare a report on the referendum.</P> <P>(g) Announce the results to the public.</P> </SECTION> <SECTION> <SECTNO>§ 1218.104</SECTNO> <SUBJECT>Subagents.</SUBJECT> <P>The referendum agent may appoint any individual or individuals necessary or desirable to assist the agent in performing such agent's functions hereunder. Each individual so appointed may be authorized by the agent to perform any or all of the functions which, in the absence of such appointment, shall be performed by the agent.</P> </SECTION> <SECTION> <SECTNO>§ 1218.105</SECTNO> <SUBJECT>Ballots.</SUBJECT> <P>The referendum agent and subagents shall accept all ballots cast. However, if an agent or subagent deems that a ballot should be challenged for any reason, the agent or subagent shall endorse above their signature, on the ballot, a statement to the effect that such ballot was challenged, by whom challenged, the reasons therefore, the results of any investigations made with respect thereto, and the disposition thereof. Ballots invalid under this subpart shall not be counted.</P> </SECTION> <SECTION> <SECTNO>§ 1218.106</SECTNO> <SUBJECT>Referendum report.</SUBJECT> <P>Except as otherwise directed, the referendum agent shall prepare and submit to the Administrator a report on the results of the referendum, the manner in which it was conducted, the extent and kind of public notice given, and other information pertinent to the analysis of the referendum and its results.</P> </SECTION> <SECTION> <SECTNO>§ 1218.107</SECTNO> <SUBJECT>Confidential information.</SUBJECT> <P>The ballots and other information or reports that reveal, or tend to reveal, the vote of any person covered under the Act and the voting list shall be held confidential and shall not be disclosed.</P> </SECTION> </SUBPART> </PART> <PART> <EAR>Pt. 1219</EAR> <HD SOURCE="HED"> PART 1219—HASS AVOCADO PROMOTION, RESEARCH, AND INFORMATION</HD> <CONTENTS> <SUBPART> <HD SOURCE="HED">Subpart A—Hass Avocado Promotion, Research, and Information Order</HD> <SUBJGRP> <HD SOURCE="HED">Definitions</HD> <SECHD>Sec.</SECHD> <SECTNO>1219.1</SECTNO> <SUBJECT>Act.</SUBJECT> <SECTNO>1219.2</SECTNO> <SUBJECT>Association.</SUBJECT> <SECTNO>1219.3</SECTNO> <SUBJECT>Conflict of interest.</SUBJECT> <SECTNO>1219.4</SECTNO> <SUBJECT>Consumer information.</SUBJECT> <SECTNO>1219.5</SECTNO> <SUBJECT>Crop year.</SUBJECT> <SECTNO>1219.6</SECTNO> <SUBJECT>Customs.</SUBJECT> <SECTNO>1219.7</SECTNO> <SUBJECT>Department.</SUBJECT> <SECTNO>1219.8</SECTNO> <SUBJECT>Exempt handler.</SUBJECT> <SECTNO>1219.9</SECTNO> <SUBJECT>First handler.<PRTPAGE P="162"/> </SUBJECT> <SECTNO>1219.10</SECTNO> <SUBJECT>Fiscal period or marketing year.</SUBJECT> <SECTNO>1219.11</SECTNO> <SUBJECT>Handle.</SUBJECT> <SECTNO>1219.12</SECTNO> <SUBJECT>Hass avocado.</SUBJECT> <SECTNO>1219.13</SECTNO> <SUBJECT>Hass Avocado Board.</SUBJECT> <SECTNO>1219.14</SECTNO> <SUBJECT>Importer.</SUBJECT> <SECTNO>1219.15</SECTNO> <SUBJECT>Industry information.</SUBJECT> <SECTNO>1219.16</SECTNO> <SUBJECT>Marketing.</SUBJECT> <SECTNO>1219.17</SECTNO> <SUBJECT>Order.</SUBJECT> <SECTNO>1219.18</SECTNO> <SUBJECT>Part and subpart.</SUBJECT> <SECTNO>1219.19</SECTNO> <SUBJECT>Person.</SUBJECT> <SECTNO>1219.20</SECTNO> <SUBJECT>Producer.</SUBJECT> <SECTNO>1219.21</SECTNO> <SUBJECT>Programs, plans, and projects.</SUBJECT> <SECTNO>1219.22</SECTNO> <SUBJECT>Promotion.</SUBJECT> <SECTNO>1219.23</SECTNO> <SUBJECT>Research.</SUBJECT> <SECTNO>1219.24</SECTNO> <SUBJECT>Secretary.</SUBJECT> <SECTNO>1219.25</SECTNO> <SUBJECT>State.</SUBJECT> <SECTNO>1219.26</SECTNO> <SUBJECT>United States.</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">The Hass Avocado Board</HD> <SECTNO>1219.30</SECTNO> <SUBJECT>Establishment and membership.</SUBJECT> <SECTNO>1219.31</SECTNO> <SUBJECT>Initial nomination and appointment of producer members and alternates.</SUBJECT> <SECTNO>1219.32</SECTNO> <SUBJECT>Initial nomination and appointment of importer members and alternates.</SUBJECT> <SECTNO>1219.33</SECTNO> <SUBJECT>Subsequent nomination and appointment of Board members and alternates.</SUBJECT> <SECTNO>1219.34</SECTNO> <SUBJECT>Failure to nominate.</SUBJECT> <SECTNO>1219.35</SECTNO> <SUBJECT>Term of office.</SUBJECT> <SECTNO>1219.36</SECTNO> <SUBJECT>Vacancies.</SUBJECT> <SECTNO>1219.37</SECTNO> <SUBJECT>Alternate members.</SUBJECT> <SECTNO>1219.38</SECTNO> <SUBJECT>Powers and duties.</SUBJECT> <SECTNO>1219.39</SECTNO> <SUBJECT>Board procedure.</SUBJECT> <SECTNO>1219.40</SECTNO> <SUBJECT>Committee procedure.</SUBJECT> <SECTNO>1219.41</SECTNO> <SUBJECT>Compensation and expenses.</SUBJECT> <SECTNO>1219.42</SECTNO> <SUBJECT>Prohibited activities.</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Budgets, Expenses, and Assessments</HD> <SECTNO>1219.50</SECTNO> <SUBJECT>Budgets, programs, plans, and projects.</SUBJECT> <SECTNO>1219.51</SECTNO> <SUBJECT>Contracts and agreements.</SUBJECT> <SECTNO>1219.52</SECTNO> <SUBJECT>Control of administrative costs.</SUBJECT> <SECTNO>1219.53</SECTNO> <SUBJECT>Budget and expenses.</SUBJECT> <SECTNO>1219.54</SECTNO> <SUBJECT>Assessments.</SUBJECT> <SECTNO>1219.55</SECTNO> <SUBJECT>Exemption from assessment.</SUBJECT> <SECTNO>1219.56</SECTNO> <SUBJECT>Adjustment of accounts.</SUBJECT> <SECTNO>1219.57</SECTNO> <SUBJECT>Patents, copyrights, trademarks, publications, and product formulations.</SUBJECT> <SECTNO>1219.58</SECTNO> <SUBJECT>Importer associations.</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Books, Records, and Reports</HD> <SECTNO>1219.60</SECTNO> <SUBJECT>Reports.</SUBJECT> <SECTNO>1219.61</SECTNO> <SUBJECT>Books and records.</SUBJECT> <SECTNO>1219.62</SECTNO> <SUBJECT>Books and records of the Board.</SUBJECT> <SECTNO>1219.63</SECTNO> <SUBJECT>Confidential treatment.</SUBJECT> <SECTNO>1219.64</SECTNO> <SUBJECT>List of importers.</SUBJECT> <SECTNO>1219.65</SECTNO> <SUBJECT>List of producers.</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Miscellaneous</HD> <SECTNO>1219.70</SECTNO> <SUBJECT>Right of the Secretary.</SUBJECT> <SECTNO>1219.71</SECTNO> <SUBJECT>Suspension or termination.</SUBJECT> <SECTNO>1210.72</SECTNO> <SUBJECT>Proceedings after termination.</SUBJECT> <SECTNO>1219.73</SECTNO> <SUBJECT>Effect of termination or amendment.</SUBJECT> <SECTNO>1219.74</SECTNO> <SUBJECT>Personal liability.</SUBJECT> <SECTNO>1219.75</SECTNO> <SUBJECT>Separability.</SUBJECT> <SECTNO>1219.76</SECTNO> <SUBJECT>Amendments.</SUBJECT> <SECTNO>1219.77</SECTNO> <SUBJECT>OMB control numbers.</SUBJECT> </SUBJGRP> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart B—Referendum Procedures</HD> <SECTNO>1219.100</SECTNO> <SUBJECT>General.</SUBJECT> <SECTNO>1219.101</SECTNO> <SUBJECT>Definitions.</SUBJECT> <SECTNO>1219.102</SECTNO> <SUBJECT>Registration.</SUBJECT> <SECTNO>1219.103</SECTNO> <SUBJECT>Voting.</SUBJECT> <SECTNO>1219.104</SECTNO> <SUBJECT>Instructions.</SUBJECT> <SECTNO>1219.105</SECTNO> <SUBJECT>Subagents.</SUBJECT> <SECTNO>1219.106</SECTNO> <SUBJECT>Ballots.</SUBJECT> <SECTNO>1219.107</SECTNO> <SUBJECT>Referendum report.</SUBJECT> <SECTNO>1219.108</SECTNO> <SUBJECT>Confidential information.</SUBJECT> <SECTNO>1219.109</SECTNO> <SUBJECT>OMB control number.</SUBJECT> </SUBPART> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>7 U.S.C. 7801-7813.</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>67 FR 7264, Feb. 19, 2002, unless otherwise noted.</P> </SOURCE> <SUBPART> <HD SOURCE="HED">Subpart A—Hass Avocado Promotion, Research, and Information Order</HD> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>67 FR 56897, Sept. 6, 2002, unless otherwise noted.</P> </SOURCE> <SUBJGRP> <HD SOURCE="HED">Definitions</HD> <SECTION> <SECTNO>§ 1219.1</SECTNO> <SUBJECT>Act.</SUBJECT> <P> <E T="03">Act</E> means the Hass Avocado Promotion, Research, and Information Act of 2000, Public Law 106-387, 7 U.S.C. 7801-7813, and any amendments thereto.</P> </SECTION> <SECTION> <SECTNO>§ 1219.2</SECTNO> <SUBJECT>Association.</SUBJECT> <P> <E T="03">Association</E> means an avocado organization established by State statute in a State with the majority of Hass avocado production in the United States.</P> </SECTION> <SECTION> <SECTNO>§ 1219.3</SECTNO> <SUBJECT>Conflict of interest.</SUBJECT> <P> <E T="03">Conflict of interest</E> means a situation in which a Board member or employee has a direct or indirect financial interest in a person who performs a service for, or enters into a contract with, the Board for anything of economic value.</P> </SECTION> <SECTION> <SECTNO>§ 1219.4</SECTNO> <SUBJECT>Consumer information.</SUBJECT> <P> <E T="03">Consumer information</E> means any action or program that disseminates or otherwise provides information to consumers and other persons, on the use, nutritional attributes, and other information that will assist consumers and other persons in the United States in making evaluations and decisions regarding the purchase, preparation, and use of Hass avocados.</P> </SECTION> <SECTION> <PRTPAGE P="163"/> <SECTNO>§ 1219.5</SECTNO> <SUBJECT>Crop year.</SUBJECT> <P> <E T="03">Crop year</E> means the period from November 1 of one year through October 31 of the following year, or such other one-year period recommended by the Board and approved by the Secretary.</P> </SECTION> <SECTION> <SECTNO>§ 1219.6</SECTNO> <SUBJECT>Customs.</SUBJECT> <P> <E T="03">Customs</E> means the United States Customs Service.</P> </SECTION> <SECTION> <SECTNO>§ 1219.7</SECTNO> <SUBJECT>Department.</SUBJECT> <P> <E T="03">Department</E> means the United States Department of Agriculture.</P> </SECTION> <SECTION> <SECTNO>§ 1219.8</SECTNO> <SUBJECT>Exempt handler.</SUBJECT> <P> <E T="03">Exempt handler</E> means a person who would otherwise be considered a first handler, except that all Hass avocados purchased by the person have already been subject to assessments under the Order. A person who handles both Hass avocados that have already been subject to assessments under the Order and Hass avocados that have not been subject to assessments under the Order is a first handler.</P> </SECTION> <SECTION> <SECTNO>§ 1219.9</SECTNO> <SUBJECT>First handler.</SUBJECT> <P> <E T="03">First handler</E> means a person operating in the Hass avocado marketing system that sells domestic or imported Hass avocados for consumption in the United States and who is responsible for remitting assessments to the Board. For the purposes of the Order, the term means the first person who handles Hass avocados for sale (except a common or contract carrier of Hass avocados owned by another person), including a producer who handles Hass avocados for sale of the producer's own production.</P> </SECTION> <SECTION> <SECTNO>§ 1219.10</SECTNO> <SUBJECT>Fiscal period or marketing year.</SUBJECT> <P> <E T="03">Fiscal period</E> or <E T="03">marketing year</E> means the period beginning on November 1 of any year and extending through the last day of October of the following year, or such other consecutive 12-month period as shall be recommended by the Board and approved by the Secretary.</P> </SECTION> <SECTION> <SECTNO>§ 1219.11</SECTNO> <SUBJECT>Handle.</SUBJECT> <P> <E T="03">Handle</E> means to pack, process, transport, purchase, or in any other way to place or cause Hass avocados to which one has title or possession to be placed in the current of commerce. Such term shall not include the transportation or delivery of Hass avocados by the producer thereof to a handler.</P> </SECTION> <SECTION> <SECTNO>§ 1219.12</SECTNO> <SUBJECT>Hass avocado.</SUBJECT> <P> <E T="03">Hass avocado</E> means the fruit grown in or imported into the United States of the species <E T="03">Persea americana</E> Mill., or other type of avocados that, in the determination of the Board, with approval of the Secretary, is so similar to the Hass variety avocado as to be indistinguishable to consumers in fresh form. The term shall include all fruit in fresh, frozen, or any other processed form.</P> </SECTION> <SECTION> <SECTNO>§ 1219.13</SECTNO> <SUBJECT>Hass Avocado Board.</SUBJECT> <P> <E T="03">Hass Avocado Board</E> or <E T="03">the Board</E> means the administrative body established pursuant to § 1219.40.</P> </SECTION> <SECTION> <SECTNO>§ 1219.14</SECTNO> <SUBJECT>Importer.</SUBJECT> <P> <E T="03">Importer</E> means any person who imports Hass avocados into the United States. The term includes a person who holds title to Hass avocados produced outside of the United States immediately upon release by Customs, as well as any person who acts on behalf of others, as an agent, broker, or consignee, to secure the release of Hass avocados from Customs and the introduction of the released Hass avocados into the current of commerce and who is listed in the import records of Customs as the importer of record for such Hass avocados.</P> </SECTION> <SECTION> <SECTNO>§ 1219.15</SECTNO> <SUBJECT>Industry information.</SUBJECT> <P> <E T="03">Industry information</E> means information, programs, and activities that are designed to increase efficiency in processing, enhance the development of new markets and marketing strategies, increase marketing efficiency, and enhance the image of Hass avocados and the Hass avocado industry in the United States.</P> </SECTION> <SECTION> <SECTNO>§ 1219.16</SECTNO> <SUBJECT>Marketing.</SUBJECT> <P> <E T="03">Marketing</E> means any activity related to the sale or other disposition of Hass avocados in any channel of commerce.</P> </SECTION> <SECTION> <PRTPAGE P="164"/> <SECTNO>§ 1219.17</SECTNO> <SUBJECT>Order.</SUBJECT> <P> <E T="03">Order</E> means this subpart.</P> </SECTION> <SECTION> <SECTNO>§ 1219.18</SECTNO> <SUBJECT>Part and subpart.</SUBJECT> <P> <E T="03">Part</E> means the Order and all rules, regulations, and supplemental orders issued pursuant to the Act and the Order. The Order itself shall be a <E T="03">subpart</E> of such part.</P> </SECTION> <SECTION> <SECTNO>§ 1219.19</SECTNO> <SUBJECT>Person.</SUBJECT> <P> <E T="03">Person</E> means any individual, group of individuals, firm, partnership, corporation, joint stock company, association, cooperative, or any other legal entity.</P> </SECTION> <SECTION> <SECTNO>§ 1219.20</SECTNO> <SUBJECT>Producer.</SUBJECT> <P> <E T="03">Producer</E> means any person who is engaged in the business of producing Hass avocados in the United States for commercial use, who owns, or shares the ownership and risk of loss, of such Hass avocados.</P> </SECTION> <SECTION> <SECTNO>§ 1219.21</SECTNO> <SUBJECT>Programs, plans, and projects.</SUBJECT> <P> <E T="03">Programs, plans, and projects</E> means those research, promotion, and information programs, plans, studies, or projects established pursuant to § 1219.50.</P> </SECTION> <SECTION> <SECTNO>§ 1219.22</SECTNO> <SUBJECT>Promotion.</SUBJECT> <P> <E T="03">Promotion</E> means any action to advance the image, desirability, or marketability of Hass avocados in the United States, including paid advertising, sales promotion, and publicity. Promotion activities are designed to improve the competitive position and stimulate sales of Hass avocados in the domestic marketplace.</P> </SECTION> <SECTION> <SECTNO>§ 1219.23</SECTNO> <SUBJECT>Research.</SUBJECT> <P> <E T="03">Research</E> means any type of test, study, or analysis relating to market research, market development, and market efforts, or relating to the use, quality, or nutritional value of Hass avocados, other related food science research, or research designed to advance the knowledge, image, desirability, usage, or marketability of Hass avocados in the United States.</P> </SECTION> <SECTION> <SECTNO>§ 1219.24</SECTNO> <SUBJECT>Secretary.</SUBJECT> <P> <E T="03">Secretary</E> means the Secretary of Agriculture of the United States or any other officer or employee of the Department to whom authority has heretofore been delegated, or to whom authority may hereafter be delegated, to act in the Secretary's stead.</P> </SECTION> <SECTION> <SECTNO>§ 1219.25</SECTNO> <SUBJECT>State.</SUBJECT> <P> <E T="03">State</E> means any of the several 50 States of the United States, the District of Columbia, the Commonwealth of Puerto Rico, the Commonwealth of the Northern Mariana Islands, the United States Virgin Islands, Guam, American Samoa, the Republic of the Marshall Islands, and the Federated States of Micronesia.</P> </SECTION> <SECTION> <SECTNO>§ 1219.26</SECTNO> <SUBJECT>United States.</SUBJECT> <P> <E T="03">United States</E> means collectively the several 50 States of the United States, the District of Columbia, the Commonwealth of Puerto Rico, the Commonwealth of the Northern Mariana Islands, the United States Virgin Islands, Guam, American Samoa, the Republic of the Marshall Islands, and the Federated States of Micronesia.</P> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">The Hass Avocado Board</HD> <SECTION> <SECTNO>§ 1219.30</SECTNO> <SUBJECT>Establishment and membership.</SUBJECT> <P>(a) A Hass Avocado Board, called the Board elsewhere in this part, is hereby established to administer the terms and provisions of this subpart. The Board shall consist of 12 members nominated by the Hass avocado industry and appointed by the Secretary as provided in this subpart, each of whom shall have an alternate nominated and appointed in the same manner as members of the Board are nominated and appointed. Board members and alternates shall be domiciled in the United States.</P> <P>(b) The membership of the Board shall be divided as follows:</P> <P>(1) Seven members and their alternates shall be producers of Hass avocados that are subject to assessments under this subpart;</P> <P>(2) Two members and their alternates shall be importers of Hass avocados that are subject to assessments under this subpart; and<PRTPAGE P="165"/> </P> <P>(3) Three members shall be producers of Hass avocados that are subject to assessments under this subpart or importers of Hass avocados that are subject to assessments under this subpart. Producers and importers shall be allocated to these positions so as to assure as nearly as possible that the composition of the 12-member Board reflects the proportion of domestic production and imports supplying the United States market. Such proportion shall be based on the Secretary's determination of the average volume of domestic production and the average volume of imports into the United States market over the previous three years, based on all information available to the Secretary.</P> <P>(c) Three years after the assessment of funds commences pursuant to this subpart, and at the end of each three-year period thereafter, the Board shall review the production of domestic Hass avocados in the United States and the volume of imported Hass avocados on the basis of the amount of assessments collected from producers and importers over the immediately preceding three-year period and, if warranted, recommend to the Secretary the reapportionment of the positions authorized in paragraph (b)(3) of this section to reflect changes in the proportion of domestic Hass avocado production to the volume of imported Hass avocados, to the extent possible in the Act. Any adjustment under this paragraph shall be subject to the review and approval of the Secretary.</P> <P>(d) For purposes of this section, <E T="03">importer</E> means a person who is involved in, as a substantial activity, the importation of Hass avocados for sale or marketing in the United States (either directly or as an agent, broker, or consignee of any person that produces Hass avocados outside of the United States for sale in the United States), who is subject to assessments under the Order, and who is listed by Customs as the importer of record for such Hass avocados. A substantial activity means that the volume of a person's Hass avocado imports must exceed the volume of the person's production or handling of domestic Hass avocados.</P> </SECTION> <SECTION> <SECTNO>§ 1219.31</SECTNO> <SUBJECT>Initial nomination and appointment of producer members and alternates.</SUBJECT> <P>(a) The Association will nominate producer members and alternates to serve on the Board in accordance with the following procedures.</P> <P>(1) The Association shall establish a list of producers in the United States who are eligible to serve on the Board and notify all producers that they may nominate persons to serve as members and alternates on the Board.</P> <P>(2) After names are received from the producers, the Association shall prepare a ballot with the names of all persons nominated and mail it to all producers to allow them the opportunity to vote for the persons who will represent their interests on the Board.</P> <P>(3) After tabulating the vote, the Association shall announce the results and submit two names for each producer member and two names for each alternate producer member to the Secretary from the persons receiving the highest number of votes.</P> <P>(b) The Secretary shall select the producer members and alternates of the Board from the names submitted by the Association. Following the selection of the producer members, the Secretary shall select the alternate producer members. In selecting the alternate members, the Secretary shall consider the names submitted by the Association for each alternate member position along with the individuals whose names were submitted by the Association for each Board member position but were not selected for that position.</P> </SECTION> <SECTION> <SECTNO>§ 1219.32</SECTNO> <SUBJECT>Initial nomination and appointment of importer members and alternates.</SUBJECT> <P>(a) The Department will conduct the nomination process for the initial importer members and alternates on the Board in accordance with the following procedures.</P> <P>(1) The Department shall notify all known importers and importer organizations that they may nominate persons to serve as importer members and alternates on the Board.</P> <P>(2) After names are received from the importers and importer organizations, the Department shall prepare a ballot <PRTPAGE P="166"/>with the names of all persons nominated and mail it to all known importers to allow them the opportunity to vote for the persons who will represent their interests on the Board.</P> <P>(3) After tabulating the vote, the Department shall announce the results and submit two names for each importer member and two names for each alternate importer member to the Secretary from the persons receiving the highest number of votes.</P> <P>(b) The Secretary shall select the importer members and alternates of the Board from the nominees elected by importers. Following the selection of the importer members, the Secretary shall select the alternate importer members. In selecting the alternate members, the Secretary shall consider the names for each alternate member position along with the individuals who were elected by importers for each Board member position but were not selected for that position.</P> </SECTION> <SECTION> <SECTNO>§ 1219.33</SECTNO> <SUBJECT>Subsequent nomination and appointment of Board members and alternates.</SUBJECT> <P>The Board's staff shall announce at least 150 days in advance of the expiration of members' and alternates' terms that such terms are expiring and shall solicit nominations in accordance with procedures recommended by the Board and approved by the Secretary. Nominations for such positions should be submitted to the Secretary no less than 90 days prior to the expiration of the terms.</P> </SECTION> <SECTION> <SECTNO>§ 1219.34</SECTNO> <SUBJECT>Failure to nominate.</SUBJECT> <P>In any case in which producers or importers fail to nominate individuals for appointment to the Board, the Secretary may appoint individuals to fill vacancies from the appropriate segments of the industry.</P> </SECTION> <SECTION> <SECTNO>§ 1219.35</SECTNO> <SUBJECT>Term of office.</SUBJECT> <P>The members and alternate members of the Board shall serve for terms of three years, except the members of the initial Board shall serve terms as follows: Four members and four alternates shall serve for two-year terms; four members and four alternates shall serve for three-year terms; and four members and four alternates shall serve for four-year terms. No member shall serve more than two consecutive three-year terms. Members and alternates serving initial two-year or four-year terms may serve for one additional three-year term. A Board member may serve as an alternate during the years the member is ineligible for a member position. Each term of office will end on October 31, with new terms of office beginning on November 1.</P> </SECTION> <SECTION> <SECTNO>§ 1219.36</SECTNO> <SUBJECT>Vacancies.</SUBJECT> <P>(a) In the event any member or alternate of the Board ceases to be a member of the category of members from which the member was appointed to the Board, such member or alternate shall be disqualified from serving on the Board and the position shall automatically become vacant.</P> <P>(b) If a member of the Board consistently refuses to perform the duties of a member of the Board, or if a member of the Board engages in acts of dishonesty or willful misconduct, the Board may recommend to the Secretary that the member be removed from office. If the Secretary finds that the recommendation of the Board shows adequate cause, the member shall be removed from office.</P> <P>(c) Should any Board member position become vacant in the event of the death, removal, resignation, or disqualification, the alternate of that member shall automatically assume the position of said member. The alternate shall serve until the end of the member's normal term. If there is no alternate member to assume the position of member, the successor member and alternate shall be nominated and selected in the manner specified in §§ 1219.31, 1219.32, or 1219.33.</P> <P>(d) Should any alternate member become vacant in the event of death, removal, resignation, or disqualification, the Board may nominate persons to serve for the unexpired term of such alternate member. The nomination shall be conducted at a regularly scheduled Board meeting as soon as practicable after the vacancy occurs. The Board may solicit the names of nominees from producers and importers prior to the meeting and from the floor of the meeting. All nominees must meet the qualifications for nomination. The <PRTPAGE P="167"/>Board shall submit two nominees for each vacancy to the Secretary. A vacancy will not be required to be filled if the unexpired term is less than six months.</P> </SECTION> <SECTION> <SECTNO>§ 1219.37</SECTNO> <SUBJECT>Alternate members.</SUBJECT> <P>An alternate member of the Board, during the absence of the member for whom the person is the alternate, shall act in the place and stead of such member and perform such duties as assigned. In the event of the death, removal, resignation, or disqualification of any member, the alternate for that member shall automatically assume the position of said member. In the event that both a member of the Board and the alternate are unable to attend a meeting, the Board may not designate any other alternate to serve in such member's or alternate's place and stead for the meeting.</P> </SECTION> <SECTION> <SECTNO>§ 1219.38</SECTNO> <SUBJECT>Powers and duties.</SUBJECT> <P>The Board shall have the following powers and duties in addition to the responsibilities and authorities specified in other sections of this subpart:</P> <P>(a) To administer the Order in accordance with its terms and conditions and to collect assessments;</P> <P>(b) To develop and recommend to the Secretary for approval such bylaws as may be necessary for the functioning of the Board and such rules as may be necessary to administer the Order, including activities authorized to be carried out under the Order;</P> <P>(c) To meet, organize, and select from among the members of the Board a chairperson, other officers, committees, and subcommittees, at the start of each fiscal period, and at such other times as the Board determines to be appropriate;</P> <P>(d) To recommend to the Secretary rules and regulations to effectuate the terms and conditions of this subpart;</P> <P>(e) To employ such persons, other than the members, as the Board considers necessary to assist the Board in carrying out its duties and to determine the compensation and specify the duties of such persons;</P> <P>(f) To appoint from its members an executive committee and to delegate to the committee authority to administer the terms and provisions of this subpart under the direction of the Board and within the policies determined by the Board and approved by the Secretary;</P> <P>(g) To develop budgets for the implementation of this subpart and submit the budgets to the Secretary for approval and to propose and develop (or receive and evaluate), approve, and submit to the Secretary for approval programs, plans, and projects for Hass avocado promotion, industry information, consumer information, or related research;</P> <P>(h) To develop and implement after the approval by the Secretary programs, plans, and projects for Hass avocado promotion, industry information, consumer information, or related research, to contract or enter into agreements with appropriate persons to implement the programs, plans, and projects, and to pay the costs of the implementation of contracts and agreements with funds collected under this subpart.</P> <P>(i) To maintain such records and books and prepare and submit such reports and records from time to time to the Secretary as the Secretary may prescribe; to make appropriate accounting with respect to the receipt and disbursement of all funds entrusted to it; and to keep records that accurately reflect the actions and transactions of the Board;</P> <P>(j) To work to achieve an effective, continuous, and coordinated program of promotion, research, consumer information, and industry information designed to strengthen the Hass avocado industry's position in the domestic marketplace; to maintain and expand existing domestic markets and uses for Hass avocados; to create new domestic markets; and to carry out programs, plans, and projects designed to provide maximum benefits to the Hass avocado industry;</P> <P>(k) To evaluate on-going and completed programs, plans, and projects for Hass avocado promotion, industry information, consumer information, or related research and to comply with the independent evaluation provisions of the Federal Agricultural Improvement and Reform Act of 1996 [7 U.S.C. 7401 <E T="03">et seq.</E>];<PRTPAGE P="168"/> </P> <P>(l) To receive, investigate, and report to the Secretary complaints of violations of the Order;</P> <P>(m) To recommend to the Secretary amendments to this Order;</P> <P>(n) To invest, pending disbursement under a program, plan, or project, funds collected through assessments authorized under this Act only in:</P> <P>(1) Obligations of the United States or any agency of the United States;</P> <P>(2) General obligations of any State or any political subdivision of a State;</P> <P>(3) Any interest-bearing account or certificate of deposit of a bank that is a member of the Federal Reserve System; or</P> <P>(4) Obligations fully guaranteed as to principal and interest by the United States, except that income from any such invested funds may be used only for a purpose for which the invested funds may be used;</P> <P>(o) To borrow funds necessary for the startup expenses of the Order;</P> <P>(p) To cause the books of the Board to be audited by a qualified independent auditor at the end of each fiscal period and to submit a report of the audit directly to the Secretary;</P> <P>(q) To give the Secretary the same notice of meetings and teleconferences of the Board and its committees as is given to members in order that the Secretary's representative(s) may attend or participate in the meetings;</P> <P>(r) To act as intermediary between the Secretary and any producer, first handler, or importer;</P> <P>(s) To periodically prepare and make public reports of its activities carried out, and at least once each fiscal period, to make public an accounting of funds received and expended; and</P> <P>(t) To notify Hass avocado producers, first handlers, and importers of all Board meetings through news releases or other means.</P> </SECTION> <SECTION> <SECTNO>§ 1219.39</SECTNO> <SUBJECT>Board procedure.</SUBJECT> <P>(a) At a properly convened meeting of the Board, seven (7) members, including alternates acting in place of members of the Board, shall constitute a quorum: <E T="03">Provided,</E> that such alternates shall serve only when the member is absent from a meeting. Any action of the Board shall require the concurring votes of a majority of those present and voting. At assembled meetings, all votes shall be cast in person.</P> <P>(b) In lieu of voting at a properly convened meeting and, when in the opinion of the chairperson of the Board such action is considered necessary, the Board may take action if supported by one vote more than 50 percent of the members by mail, telephone, electronic mail, facsimile, or other means of communication. Such alternative means for the Board taking action may be undertaken for various reasons. These reasons include the need to address matters of an emergency nature when there is not enough time to call an assembled meeting of the Board. All telephone votes shall be confirmed promptly in writing. In that event, all members must be notified and provided an opportunity to vote. Any action so taken shall have the same force and effect as though such action had been taken at a properly convened meeting of the Board. All votes shall be recorded in the Board minutes.</P> <P>(c) All Board members and alternates and the Secretary will be notified at least 10 days in advance of all Board meetings, except the chairperson of the Board can waive the 10-day requirement in matters of an emergency nature.</P> <P>(d) Each member of the Board will be entitled to one vote on any matter put to the Board, and the motion will carry if supported by one vote more than 50 percent of the total votes represented by the Board members present.</P> <P>(e) There shall be no voting by proxy.</P> <P>(f) The chairperson shall be a voting member of the Board.</P> </SECTION> <SECTION> <SECTNO>§ 1219.40</SECTNO> <SUBJECT>Committee procedure.</SUBJECT> <P>(a) The Board may establish committees as deemed necessary to carry out the purposes and objectives of the Order.</P> <P>(b) The chairperson of the Board shall appoint all committee chairpersons and shall appoint all members of each committee after consultation with the committee chairperson affected. Appointments are subject to approval by the Board and may be changed from time to time as determined by the chairperson of the Board with the concurrence of the Board.<PRTPAGE P="169"/> </P> <P>(c) The chairperson of the Board may appoint committee members from among the Board members and alternates and from the industry in general.</P> <P>(d) The rules and procedures under which committees conduct their activities shall be prescribed in the Board's bylaws.</P> <P>(e) Committee members and the Secretary will be notified at least 10 days in advance of all committee meetings.</P> <P>(f) It will be considered a quorum at a committee meeting when at least one more than half of those assigned to the committee are present.</P> <P>(g) There shall be no voting by proxy on committees.</P> <P>(h) The chairperson of the Board shall be an ex-officio member of all committees.</P> </SECTION> <SECTION> <SECTNO>§ 1219.41</SECTNO> <SUBJECT>Compensation and expenses.</SUBJECT> <P>(a) The members and alternates of the Board and committee members shall serve without compensation but shall be reimbursed for reasonable out-of-pocket expenses, as approved by the Board, incurred by them in the performance of their duties.</P> <P>(b) The Board shall have in place sufficient internal controls to prevent reimbursements or expenditures for unreasonable or otherwise controversial travel and meeting expenses.</P> </SECTION> <SECTION> <SECTNO>§ 1219.42</SECTNO> <SUBJECT>Prohibited activities.</SUBJECT> <P>The Board may not engage in and shall prohibit its employees and agents from engaging in:</P> <P>(a) Any action that would be a conflict of interest. For the purposes of this subpart, Board members and employees thereof must disclose any relationship with any organization or company that has a contract with the Board or operates a State promotion program. No member may vote on any matter in which the member or member's business entity has a financial interest.</P> <P>(b) Using funds collected under this subpart for the purpose of influencing legislation or governmental action or policy, by local, national, and foreign governments, except to develop and make recommendations to the Secretary as provided for in this subpart.</P> <P>(c) In a program, plan, or project conducted under this subpart:</P> <P>(1) Making any reference to private brand names or making false, misleading, disparaging, or unwarranted claims on behalf of Hass avocados or</P> <P>(2) Making any false, misleading, or disparaging statements with respect to the attributes or use of any agricultural product. This section shall not preclude the Board from offering its programs, plans, and projects for use by commercial parties under such terms and conditions as the Board may prescribe as approved by the Secretary.</P> <P>(d) For the purposes of this section, a reference to State of origin or country of origin does not constitute a reference to a private brand name with regard to any funds credited to or disbursed by the Board to the Association or to any importer association established in accordance with § 1219.54.</P> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Budgets, Expenses, and Assessments</HD> <SECTION> <SECTNO>§ 1219.50</SECTNO> <SUBJECT>Budgets, programs, plans, and projects.</SUBJECT> <P>(a) The Board shall submit to the Secretary, on a fiscal period basis, annual budgets of its anticipated expenses and disbursements of the Board in the administration of this subpart, including the projected costs of Hass avocado promotion, industry information, consumer information, and related research programs, plans, and projects. The first budget shall cover such period as may remain before the beginning of the next fiscal period. If such fiscal period is 90 days or less, the first budget shall cover such period, as well as the next fiscal period. Thereafter, the Board shall submit budgets for each succeeding fiscal period not less than 60 days before the beginning of such fiscal period.</P> <P>(b) The Board shall receive and evaluate, or on its own initiative develop programs, plans and projects for Hass avocado promotion, industry information, consumer information as well as related research. The Board shall submit to the Secretary for approval any program, plan, or project authorized in this subpart. Such programs, plans or projects shall provide for:</P> <P>(1) The establishment, implementation, issuance, effectuation, administration, and evaluation of appropriate <PRTPAGE P="170"/>programs, plans, or projects for advertising, sales promotion, other promotion, and consumer information with respect to Hass avocados directed toward increasing the general demand for Hass avocados in the United States. Funds shall be available as necessary to carry out this section;</P> <P>(2) The establishment, implementation, issuance, effectuation, administration, and evaluation of appropriate programs, plans, and projects designed to strengthen the position of the Hass avocado industry in the domestic marketplace; to maintain, develop, and expand markets for Hass avocados in the United States; to lead to the development of new marketing strategies; to advance the image and desirability of, increase the efficiency of, and encourage further development of the Hass avocado industry; and to provide for the disbursement of necessary funds for the purposes described in this section;</P> <P>(3) The establishment, implementation, issuance, effectuation, administration, and evaluation of programs, plans, and projects for marketing development research; research on the sale, distribution, marketing, use, quality, and nutritional value of Hass avocados; and other research with respect to Hass avocado marketing, promotion, industry information, or consumer information, including the creation of new products thereof. Information acquired from such plans and projects shall be disseminated as appropriate. Funds shall be available as necessary to carry out this section; and</P> <P>(4) The Board to enter into contracts or make agreements for the development and carrying out of research, promotion, and information, and pay for the costs of such contracts or agreements with funds collected pursuant to § 1219.54.</P> <P>(c) A budget, program, plan, or project for Hass avocados promotion, industry information, consumer information, or related research may not be implemented prior to approval of the budget, program, plan, or project by the Secretary. If the Secretary fails to provide notice to the Board or approval or disapproval of a budget, program, plan, or project within 45 days after receipt, such budget, program, plan, or project shall be deemed approved by the Secretary and may be implemented by the Board.</P> <P>(d) The Board, from time to time, may seek advice and consult with experts from the production, import, wholesale, and retail segments of the Hass avocado industry to assist in the development of promotion, industry information, consumer information, and related research programs, plans, and projects. For these purposes, the Board may appoint special committees composed of persons other than Board members. A committee so appointed shall consult directly with the Board.</P> <P>(e) Programs must be conducted throughout the year to reflect the periods when imported and domestic Hass avocados are in the U.S. marketplace.</P> <P>(f) The Board shall consult with both the Association and importer associations on programs, plans, and projects for generic promotions.</P> </SECTION> <SECTION> <SECTNO>§ 1219.51</SECTNO> <SUBJECT>Contracts and agreements.</SUBJECT> <P>(a) The Board shall enter into a contract or an agreement with the Association for the implementation of programs, plans, or projects for promotion, industry information, consumer information, or related research with respect to Hass avocados and for the payment of the cost of the contract or agreement with funds received by the Board under this subpart. The Board may disburse such funds as necessary for these purposes after such programs, plans, or projects have been submitted to and approved by the Secretary.</P> <P>(b) Any contract or agreement entered into shall provide that the contracting or agreeing party shall develop and submit to the Board a program, plan or project, together with a budget that includes the estimated costs to be incurred for the program, plan or project, and such program, plan or project shall become effective on the approval of the Secretary. For such contract or agreement, the contracting or agreeing party shall:</P> <P>(1) Keep accurate records of all transactions of the party;</P> <P>(2) Account for funds received and expended;</P> <P>(3) Make periodic reports to the Board of activities conducted; and<PRTPAGE P="171"/> </P> <P>(4) Make such other reports as the Board or the Secretary shall require.</P> <P>(c) The Secretary may audit the records of the contracting or agreeing party periodically.</P> <P>(d) Contractors and subcontractors are subject to the provisions of § 1219.42.</P> <P>(e) The Board may enter into contracts or agreements for administrative services, including contracts for employment, as may be required to conduct its business. To the extent appropriate to the contract involved, contracts or agreements entered into by the Board under the authority of this section shall conform to the provisions described in paragraph (b) of this section.</P> </SECTION> <SECTION> <SECTNO>§ 1219.52</SECTNO> <SUBJECT>Control of administrative costs.</SUBJECT> <P>(a) As soon as practicable after September 9, 2002, and after consultation with the Secretary and other appropriate persons, the Board shall implement a system of cost controls based on normally accepted business practices to:</P> <P>(1) Ensure that the costs incurred by the Board in administering this part in any fiscal period shall not exceed 10 percent of the projected level of assessments and other income received by the Board for generic promotion and research programs for that fiscal period; and</P> <P>(2) Cover the minimum administrative activities and personnel needed to properly administer and enforce this subpart, and conduct, supervise, and evaluate programs, plans, and projects under this subpart.</P> <P>(b) Reimbursements to the Secretary required under § 1219.53(b) are excluded from the limitation on spending.</P> <P>(c) To the extent possible, the Board shall use the resources, staffs, and facilities of existing avocado organizations as provided in § 1219.54(a).</P> </SECTION> <SECTION> <SECTNO>§ 1219.53</SECTNO> <SUBJECT>Budget and expenses.</SUBJECT> <P>(a) The Board is authorized to incur such expenses, including provision for a reasonable reserve for operating contingencies, as the Secretary finds are reasonable and likely to be incurred by the Board for its maintenance and functioning and to enable it to exercise its powers and perform its duties in accordance with the provisions of this subpart. Such expenses shall be paid from funds received by the Board, including assessments, contributions from any person not subject to assessments under this subpart, and other funds available to the Board.</P> <P>(b) The Board shall reimburse the Department:</P> <P>(1) For expenses not to exceed $25,000 incurred by the Secretary in connection with any referendum conducted under the Act;</P> <P>(2) For administrative costs incurred by the Secretary for supervisory work of up to two employee years annually after the Order or amendment to the Order has been issued and made effective; and</P> <P>(3) For costs incurred by the Secretary in implementation of the Order, for enforcement of the Act and the order, for subsequent referenda conducted under the Act, and in defending the Board in litigation arising out of action taken by the Board or otherwise in defense of the Order.</P> <P>(c) The Board shall establish and maintain the minimum level of annual administrative expenses necessary to efficiently and effectively carry out the programs authorized by the Act. The Board shall include its annual administrative expenses as a separate item in its annual report. The Board shall adhere to its fiduciary responsibilities and ensure that all monies are spent in accordance with the Act and the Order.</P> <P>(d) With the approval of the Secretary, the Board may borrow money for the payment of administrative expenses, subject to the same fiscal, budget, and audit controls as other funds of the Board. Any funds borrowed by the Board shall be expended only for startup costs and capital outlays and are limited to the first period of operation of the Board.</P> <P>(e) The Board may accept voluntary contributions, but these shall only be used to pay expenses incurred in the conduct of programs, plans, and projects. The contributions shall be free from any encumbrance by the donor, and the Board shall retain complete control of their use.</P> </SECTION> <SECTION> <PRTPAGE P="172"/> <SECTNO>§ 1219.54</SECTNO> <SUBJECT>Assessments.</SUBJECT> <P>(a) Except as provided in § 1219.55, the initial rate of assessment shall be 2.5 cents per pound on fresh Hass avocados produced and handled in the United States and on fresh Hass avocados imported into the United States. An equivalent rate shall be assessed on processed and frozen Hass avocados on which an assessment has not been paid. Such equivalent rate will be assessed on processed or frozen Hass avocados upon the recommendation of the Board with the approval of the Secretary. The rate of assessment may be increased or decreased as recommended by the Board and approved by the Secretary. Such an increase or decrease may occur not more than once annually. Any change in the assessment rate shall be announced by the Board at least 30 days prior to going into effect and shall not be subject to a vote in a referendum. The maximum assessment rate authorized is 5 cents per pound. No more than one assessment shall be made on any Hass avocados.</P> <P>(b) <E T="03">Domestic assessments.</E> The collection of assessments on domestic Hass avocados will be the responsibility of the first handler.</P> <P>(1) In the case of a producer acting as the producer's own first handler, the producer will be required to collect and remit the assessments due to the Board.</P> <P>(2) Each first handler shall collect from the producer and pay to the Board an assessment of 2.5 cents per pound in accordance with this subpart. Assessments shall be remitted by each first handler to the Board or its agent within 30 days after the end of the month in which the sale or non-sale transfer subject to assessment under this subpart took place.</P> <P>(3) The first handler shall maintain a separate record of the domestic Hass avocados of each producer whose domestic Hass avocados are handled, including the domestic Hass avocados owned by the handler and domestic Hass avocados that are exported.</P> <P>(4) Assessment of other types of fresh avocados may be added at the recommendation of the Board with the approval of the Secretary.</P> <P>(c) <E T="03">Import assessments.</E> Each importer of fresh Hass avocados shall pay an assessment to the Board through Customs on fresh Hass avocados imported for marketing in the United States.</P> <P>(1) The assessment rate for imported fresh Hass avocados shall be the same or equivalent to the rate for fresh Hass avocados produced and handled in the United States.</P> <P>(2) The import assessment shall be uniformly applied to imported fresh Hass avocados that are identified by the number 0804.40.00.10 in the Harmonized Tariff Schedule of the United States or any other numbers to identify fresh Hass avocados. Assessments on other types of imported fresh avocados or on processed Hass avocados, such as prepared, preserved, or frozen Hass avocados or Hass avocado paste, puree, and oil will be added at the recommendation of the Board with the approval of the Secretary.</P> <P>(3) The assessments due on imported Hass avocados shall be paid when they are released from custody by Customs and introduced into the stream of commerce in the United States.</P> <P>(d) All assessment payments and reports will be submitted to the Board's office. All final payments for a crop year are to be received no later than November 30 of that year, unless the Board determines that assessments due from the first handler shall be paid to the Board at a different time and manner, with approval of the Secretary.</P> <P>(e) A late payment charge prescribed by the Secretary shall be imposed on any first handler who fails to remit to the Board the total amount for which any such handler is liable on or before the due date. In addition to the late payment charge, an interest charge shall be imposed on the outstanding amount for which the handler is liable. The rate of interest shall be prescribed by the Secretary. The timeliness of a payment to the Board shall be based on the date the payment is actually received by the Board.</P> <P>(f) Regulations issued by the Secretary may provide for different first handler payment schedules of assessments on domestic Hass avocados, so as to recognize differences in marketing or purchasing practices and procedures.</P> <P>(g) Persons failing to remit total assessments due in a timely manner may <PRTPAGE P="173"/>also be subject to actions under federal debt collection procedures.</P> <P>(h) The Board may authorize other organizations to collect assessments on its behalf with approval of the Secretary.</P> <P>(i) The collection of assessments shall commence on or after a date established by the Secretary and shall continue until terminated by the Secretary. If the Board is not constituted on the date the first assessments are to be remitted, the Secretary shall have the authority to receive assessments on behalf of the Board and may hold such assessments in an interest-bearing account until the Board is constituted and the funds are transferred to the Board.</P> <P>(j) To facilitate the payment of assessments under this section, the Board shall publish lists of first handlers required to remit assessments under this subpart and exempt handlers.</P> <P>(k) The Association shall receive an amount of assessment funds equal to 85 percent of the assessments paid on Hass avocados produced in such State. Such funds shall be remitted to such State organization no later than 30 days after such funds are received by the Board. In addition, such funds and any proceeds from the investment of such funds shall be used by the Association to finance promotion, research, consumer information, and industry information programs, plans, and projects in the United States. However, no such funds shall be used for any administrative expenses incurred by the Association.</P> <P>(l) An association of Hass avocado importers established pursuant to § 1219.58 shall receive an amount of assessment funds equal to 85 percent of the assessments paid on Hass avocados imported by its members. Such funds shall be remitted to such importer association no later than 30 days after such funds are received by the Board. In addition, such funds and any proceeds from the investment of such funds shall be used by the importer association to finance promotion, research, consumer information, and industry information programs, plans, and projects in the United States. However, no such funds shall be used for any administrative expenses incurred by the importer association.</P> <P>(m) In general, assessment funds received by the Board shall be used:</P> <P>(1) For payment of costs incurred in implementing and administering this subpart;</P> <P>(2) To provide for a reasonable reserve to be maintained from assessments to be available for contingencies; and</P> <P>(3) To cover the administrative costs incurred by the Secretary in implementing and administering this Act, as set forth in § 1219.53(b).</P> <P>(n) The Board may establish an operating monetary reserve which may carry over to subsequent fiscal periods: <E T="03">Provided that</E>, the funds in the reserve do not exceed one fiscal period's budget. Subject to approval by the Secretary, reserve funds may be used to defray any expenses authorized under this part.</P> </SECTION> <SECTION> <SECTNO>§ 1219.55</SECTNO> <SUBJECT>Exemption from assessment.</SUBJECT> <P>(a) Any sale of Hass avocados for export from the United States is exempt from assessment.</P> <P>(b) The Board may require persons receiving an exemption from assessments to provide to the Board reports on the disposition of exempt Hass avocados.</P> </SECTION> <SECTION> <SECTNO>§ 1219.56</SECTNO> <SUBJECT>Adjustment of accounts.</SUBJECT> <P>Whenever the Board or the Secretary determines through an audit of a person's reports, records, books, or accounts or by some other means that additional money is due to the Board, the person shall be notified of the amount due. The person shall then remit any amount due the Board by the next date for remitting assessments. Overpayments shall be credited to the account of the person remitting the overpayment and shall be applied against any amounts due in succeeding months unless the person requests a refund of the overpayment.</P> </SECTION> <SECTION> <PRTPAGE P="174"/> <SECTNO>§ 1219.57</SECTNO> <SUBJECT>Patents, copyrights, trademarks, publications, and product formulations.</SUBJECT> <P>(a) Any patents, copyrights, trademarks, inventions, information, publications, and product formulations developed through the use of funds received by the Board under this subpart shall be the property of the U.S. Government as represented by the Board, and shall, along with any rents, royalties, residual payments, or other income from the rental, sale, leasing, franchising, or other uses of such patents, copyrights, trademarks, inventions, information, publications, or product formulations, inure to the benefit of the Board; shall be considered income subject to the same fiscal, budget, and audit controls as other funds of the Board; and may be licensed subject to approval of the Secretary. Section 1219.72 describes the procedures for termination.</P> <P>(b) Should patents, copyrights, trademarks, inventions, publications, or product formulations be developed through the use of funds collected by the Board under this subpart and funds contributed by another organization or person, ownership and related rights to such patents, copyrights, trademarks, inventions, publications, or product formulations shall be determined by agreement between the Board and the party contributing funds towards the development of such patent, copyright, trademark, invention, publication, or product formulation in a manner consistent with paragraph (a) of this section.</P> </SECTION> <SECTION> <SECTNO>§ 1219.58</SECTNO> <SUBJECT>Importer associations.</SUBJECT> <P>(a) An association of avocado importers is eligible to receive assessment funds and any proceeds from the investment of such funds only if such importer association is:</P> <P>(1) Established pursuant to State law that requires detailed State regulation comparable to that applicable to the State organization of domestic avocado producers, as determined by the Secretary; or</P> <P>(2) Certified by the Secretary as meeting the requirements applicable to the Board as to its operations and obligations, including budgets, programs, plans, projects, audits, conflicts of interest, and reimbursements for administrative costs incurred by the Secretary.</P> <P>(b) An importer association may represent any importers of Hass avocados including importers of Hass avocados from a particular foreign country. An importer association may be composed of importers as well as representatives of foreign avocado exporting industries. An importer association should establish it own bylaws and may use existing organizations for the establishment of the association and coordination of the association's promotion and research efforts.</P> <P>(c) For the purposes of the Order, the information required for certification of the importer associations by the Secretary may include, but is not limited to, the following:</P> <P>(1) Evidence of incorporation under any state law with all appropriate legal requirements;</P> <P>(2) Evidence that the association is composed of importers that are located in any state and subject to assessments under the Order, no matter where the association has been incorporated or in which state the importers reside;</P> <P>(3) Certification of the association's ability and willingness to further the aims and objectives of the Order;</P> <P>(4) Evidence of stability and permanency; and</P> <P>(5) A description of the functions of the association.</P> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Books, Records, and Reports</HD> <SECTION> <SECTNO>§ 1219.60</SECTNO> <SUBJECT>Reports.</SUBJECT> <P>(a) Each first handler of domestic Hass avocados, producer, and importer subject to this subpart shall report to the administrative staff of the Board, at such times and in such manner as the Board may prescribe, such information as may be necessary for the Board to perform its duties.</P> <P>(b) First handler reports shall include, but shall not be limited to, the following:</P> <P>(1) Number of pounds of domestic Hass avocados received during the reporting period;</P> <P>(2) Number of pounds on which assessments were collected;</P> <P>(3) Assessments collected during the reporting period;<PRTPAGE P="175"/> </P> <P>(4) Name and address of person(s) from whom the first handler collected the assessments on each pound handled;</P> <P>(5) Date collection was made on each pound handled;</P> <P>(6) Record of assessments paid, including a statement from the handler that assessments have been paid on all domestic Hass avocados handled during the reporting period; and</P> <P>(7) Number of pounds exported.</P> <P>(c) Each importer subject to this subpart may be required to report the following:</P> <P>(1) Number of pounds of Hass avocados imported during the reporting period;</P> <P>(2) Number of pounds on which an assessment was paid;</P> <P>(3) Name and address of the importer;</P> <P>(4) Date collection was made on each pound imported and to whom payment was made; and</P> <P>(5) Record of each importation of Hass avocados during such period, giving quantity, variety, date, and port of entry.</P> </SECTION> <SECTION> <SECTNO>§ 1219.61</SECTNO> <SUBJECT>Books and records.</SUBJECT> <P>Each producer, first handler, and importer subject to this subpart shall maintain and make available for inspection by the employees and agents of the Board and the Secretary, such books and records as are necessary to carry out the provisions of this subpart, and the regulations issued thereunder, including such records as are necessary to verify any reports required. Books and records shall be retained for at least two years beyond the fiscal period of their applicability.</P> </SECTION> <SECTION> <SECTNO>§ 1219.62</SECTNO> <SUBJECT>Books and records of the Board.</SUBJECT> <P>(a) The Board shall maintain such books and records as the Secretary may require. Such books and records shall be made available upon request by the Secretary for inspection and audit.</P> <P>(b) The Board shall prepare and submit to the Secretary, from time to time, such reports as the Secretary may require.</P> <P>(c) The Board shall account for the receipt and disbursement of all the funds entrusted to the Board.</P> <P>(d) The Board shall cause the books and records of the Board to be audited by an independent auditor at the end of each fiscal period. A report of each audit shall be submitted to the Secretary.</P> </SECTION> <SECTION> <SECTNO>§ 1219.63</SECTNO> <SUBJECT>Confidential treatment.</SUBJECT> <P>(a) All information obtained from the books, records, or reports under the Act, this subpart, and the regulations issued thereunder shall be kept confidential and shall not be disclosed to the public by any person, including all current and former officers, employees, staff and agents of the Department, the Board, and contracting and subcontracting agencies or agreeing parties having access to such information. Only those persons having a specific need for such information to effectively administer the provisions of this subpart shall have access to such information. Only such information so obtained as the Secretary deems relevant shall be disclosed, and then only in a judicial proceeding or administrative hearing brought at the direction, or upon the request, of the Secretary, or to which the Secretary or any officer of the United States is a party, and involving this subpart. Nothing in this subpart shall be deemed to prohibit:</P> <P>(1) The issuance of general statements based upon the reports of the number of persons subject to this subpart or statistical data collected from such reports, if such statements do not identify the information furnished by any person; or</P> <P>(2) The publication, by direction of the Secretary, of the name of any person who has been adjudged to have violated this subpart, together with a statement of the particular provisions of this subpart violated by such person.</P> <P>(b) Any disclosure of any confidential information by any employee or agent of the Board shall be considered willful misconduct.</P> <P>(c) No information on how a person voted in a referendum conducted under the Act shall be made public.</P> </SECTION> <SECTION> <SECTNO>§ 1219.64</SECTNO> <SUBJECT>List of importers.</SUBJECT> <P>The administrative staff of the Board shall periodically review the list of importers of Hass avocados to determine <PRTPAGE P="176"/>whether persons on the list are subject to this subpart.</P> </SECTION> <SECTION> <SECTNO>§ 1219.65</SECTNO> <SUBJECT>List of producers.</SUBJECT> <P>The administrative staff of the Board shall periodically review the list of producers of Hass avocados to determine whether the persons on the list of subject to this subpart. On the request of the Secretary or the Board, the Association shall provide to the Secretary or the administrative staff of the Board the list of producers of Hass avocados.</P> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Miscellaneous</HD> <SECTION> <SECTNO>§ 1219.70</SECTNO> <SUBJECT>Right of the Secretary.</SUBJECT> <P>All fiscal matters, programs, plans, and projects, contracts, rules or regulations, reports, or other substantive actions proposed and prepared by the Board shall be submitted to the Secretary for approval.</P> </SECTION> <SECTION> <SECTNO>§ 1219.71</SECTNO> <SUBJECT>Suspension or termination.</SUBJECT> <P>(a) The Secretary shall suspend or terminate this part or subpart or a provision thereof if the Secretary finds that the part or subpart or a provision thereof obstructs or does not tend to effectuate the purposes of the Act, or if the Secretary determines that this part or subpart or a provision thereof is not favored by persons voting in a referendum conducted pursuant to the Order or the Act.</P> <P>(b) The Secretary shall suspend or terminate this subpart at the end of the marketing year whenever the Secretary determines that its suspension or termination is approved or favored by a majority of the producers and importers voting who, during a representative period determined by the Secretary, have been engaged in the production or importation of Hass avocados.</P> <P>(c) If, as a result of a referendum, the Secretary determines that this subpart is not approved, the Secretary shall:</P> <P>(1) Suspend or terminate, as appropriate, the collection of assessments not later than 180 days after making such determination; and</P> <P>(2) Suspend or terminate, as appropriate, all activities under this subpart in an orderly manner as soon as practicable.</P> </SECTION> <SECTION> <SECTNO>§ 1219.72</SECTNO> <SUBJECT>Proceedings after termination.</SUBJECT> <P>(a) Upon the termination of this subpart, the Board shall recommend to the Secretary not more than five of its members to serve as trustees for the purpose of liquidating the affairs of the Board. Such persons, upon designation by the Secretary, shall become trustees of all of the funds and property owned, in possession of or under control of the Board, including claims for any funds unpaid or property not delivered or any other claim existing at the time of such termination.</P> <P>(b) The said trustees shall:</P> <P>(1) Continue in such capacity until discharged by the Secretary;</P> <P>(2) Carry out the obligations of the Board under any contracts or agreements entered into by it pursuant to the Order;</P> <P>(3) From time to time account for all receipts and disbursements and deliver all property on hand, together with all books and records of the Board and of the trustees, to such person or persons as the Secretary may direct; and</P> <P>(4) Upon the request of the Secretary, execute such assignments or other instruments necessary and appropriate to vest in such persons title and right to all of the funds, property, and claims vested in the Board or the trustees pursuant to the Order.</P> <P>(c) Any person to whom funds, property, or claims have been transferred or delivered pursuant to the Order shall be subject to the same obligations imposed upon the Board and the trustees.</P> <P>(d) Any residual funds not required to defray the necessary expenses of liquidation shall be returned to the persons who contributed such funds, or paid assessments, or, if not practicable, shall be turned over to the Secretary to be distributed to authorized Hass avocado producer and importer organizations in the interest of continuing Hass avocado promotion, research, and information programs.</P> </SECTION> <SECTION> <SECTNO>§ 1219.73</SECTNO> <SUBJECT>Effect of termination or amendment.</SUBJECT> <P>Unless otherwise expressly provided by the Secretary, the termination of this subpart or any regulation issued <PRTPAGE P="177"/>thereunder, or the issuance of any amendment to either thereof, shall not:</P> <P>(a) Affect or waive any right, duty, obligation, or liability which shall have arisen or which may thereafter arise in connection with any provision of this subpart or any such rule or regulation issued thereunder; or</P> <P>(b) Release or extinguish any violation of this subpart or of any rule or regulation issued thereunder; or</P> <P>(c) Affect or impair any rights or remedies of the United States, or of the Secretary or of any person, with respect to any such violation.</P> </SECTION> <SECTION> <SECTNO>§ 1219.74</SECTNO> <SUBJECT>Personal liability.</SUBJECT> <P>No member, alternate member, employee, or agent of the Board shall be held personally responsible, either individually or jointly with others, in any way whatsoever, to any person for errors in judgment, mistakes, or other acts, either of Association or omission, as such member, alternate, employee, or agent, except for acts of dishonesty or willful misconduct.</P> </SECTION> <SECTION> <SECTNO>§ 1219.75</SECTNO> <SUBJECT>Separability.</SUBJECT> <P>If any provision of this subpart is declared invalid or the applicability thereof to any person or circumstance is held invalid, the validity of the remainder of this subpart, or the applicability thereof to other persons or circumstances shall not be affected thereby.</P> </SECTION> <SECTION> <SECTNO>§ 1219.76</SECTNO> <SUBJECT>Amendments.</SUBJECT> <P>Amendments to this subpart may be proposed, from time to time, by the Board or by any interested persons affected by the provisions of the Act, including the Secretary. Except for changes in the assessment rate, the provisions of the Act applicable to the Order are applicable to any amendment of the Order.</P> </SECTION> <SECTION> <SECTNO>§ 1219.77</SECTNO> <SUBJECT>OMB control numbers.</SUBJECT> <P>The control numbers assigned to the information collection requirements in this part by the Office of Management and Budget pursuant to the Paperwork Reduction Act of 1995, 44 U.S.C. Chapter 35, are OMB control numbers 0581-0197 and 0505-0001.</P> </SECTION> </SUBJGRP> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart B—Referendum Procedures</HD> <SECTION> <SECTNO>§ 1219.100</SECTNO> <SUBJECT>General.</SUBJECT> <P>Referenda to determine whether eligible producers and importers of Hass avocados favor the issuance, amendment, suspension, or termination of the Hass Avocado Promotion, Research, and Information Order shall be conducted in accordance with this subpart.</P> </SECTION> <SECTION> <SECTNO>§ 1219.101</SECTNO> <SUBJECT>Definitions.</SUBJECT> <P>(a) <E T="03">Administrator</E> means the Administrator of the Agricultural Marketing Service, with power to redelegate, or any officer or employee of the U.S. Department of Agriculture to whom authority has been delegated or may hereafter be delegated to act in the Administrator's stead.</P> <P>(b) <E T="03">Eligible importer</E> means any person who imported Hass avocados that are identified by the number 0804.40.00.10 in the Harmonized Tariff Schedule of the United States for at least one year prior to the referendum. Importation occurs when Hass avocados originating outside of the United States are released from custody by the U.S. Customs Service and introduced into the stream of commerce in the United States. Included are persons who hold title to foreign-produced Hass avocados immediately upon release by the U.S. Customs Service, as well as any persons who act on behalf of others, as agents or brokers, to secure the release of Hass avocados from the U.S. Customs Service when such Hass avocados are entered or withdrawn for consumption in the United States.</P> <P>(c) <E T="03">Eligible producer</E> means any person who produced Hass avocados in the United States for at least one year prior to the referendum who:</P> <P>(1) Owns, or shares the ownership and risk of loss of, the crop;</P> <P>(2) Rents Hass avocado production facilities and equipment resulting in the ownership of all or a portion of the Hass avocados produced;</P> <P>(3) Owns Hass avocado production facilities and equipment but does not manage them and, as compensation, obtains the ownership of a portion of the Hass avocados produced; or<PRTPAGE P="178"/> </P> <P>(4) Is a party in a landlord-tenant relationship or a divided ownership arrangement involving totally independent entities cooperating only to produce Hass avocados who share the risk of loss and receive a share of the Hass avocados produced. No other acquisition of legal title to Hass avocados shall be deemed to result in persons becoming eligible producers.</P> <P>(d) <E T="03">Hass avocados</E> means the fruit grown in or imported into the United States of the species <E T="03">Persea americana</E> Mill. For the purposes of the initial referendum, the term shall include fresh fruit only.</P> <P>(e) <E T="03">Order</E> means the Hass Avocado Promotion, Research, and Information Order.</P> <P>(f) <E T="03">Person</E> means any individual, group of individuals, partnership, corporation, association, cooperative, or any other legal entity. For the purpose of this definition, the term “partnership” includes, but is not limited to:</P> <P>(1) A husband and a wife who have title to, or leasehold interest in, a Hass avocado farm as tenants in common, joint tenants, tenants by the entirety, or, under community property laws, as community property; and</P> <P>(2) So-called “joint ventures” wherein one or more parties to an agreement, informal or otherwise, contributed land and others contributed capital, labor, management, or other services, or any variation of such contributions by two or more parties.</P> <P>(g) <E T="03">Referendum agent</E> or <E T="03">agent</E> means the individual or individuals designated by the Administrator to conduct the referendum.</P> <P>(h) <E T="03">Representative period</E> means the period designated by the Administrator.</P> <P>(i) <E T="03">United States.</E> The term “United States” means collectively of the several 50 States of the United States, the District of Columbia, the Commonwealth of Puerto Rico, the Commonwealth of the Northern Mariana Islands, the United States Virgin Islands, Guam, American Samoa, the Republic of the Marshall Islands, and the Federated States of Micronesia.</P> <CITA>[67 FR 7264, Feb. 19, 2002; 67 FR 13563, Mar. 25, 2002]</CITA> </SECTION> <SECTION> <SECTNO>§ 1219.102</SECTNO> <SUBJECT>Registration.</SUBJECT> <P>An eligible producer or importer of Hass avocados, as defined in this subpart, at the time of the referendum and during a representative period, who chooses to vote in any referendum conducted under this subpart, shall register with the referendum agent prior to the voting period, after receiving notice from the referendum agent concerning the referendum under § 1219.104(b). Registration information shall be confidential under § 1219.108.</P> </SECTION> <SECTION> <SECTNO>§ 1219.103</SECTNO> <SUBJECT>Voting.</SUBJECT> <P>(a) Each eligible producer and eligible importer who registers to vote in the referendum shall be entitled to cast only one ballot in the referendum. However, each producer in a landlord-tenant relationship or a divided ownership arrangement involving totally independent entities cooperating only to produce Hass avocados, in which more than one of the parties is a producer, shall be entitled to cast one ballot in the referendum covering only such producer's share of the ownership.</P> <P>(b) Proxy voting is not authorized, but an officer or employee of an eligible corporate producer or importer, or an administrator, executor, or trustee or an eligible entity may cast a ballot on behalf of such entity. Any individual so voting in a referendum shall certify that such individual is an officer or employee of the eligible entity, or an administrator, executive, or trustee of an eligible entity and that such individual has the authority to take such action. Upon request of the referendum agent, the individual shall submit adequate evidence of such authority.</P> <P>(c) All ballots are to be cast by mail or fax, as instructed by the referendum agent.</P> </SECTION> <SECTION> <SECTNO>§ 1219.104</SECTNO> <SUBJECT>Instructions.</SUBJECT> <P>The referendum agent shall conduct the referendum, in the manner herein provided, under the supervision of the Administrator. The Administrator may prescribe additional instructions, not inconsistent with the provisions hereof, to govern the procedure to be followed by the referendum agent. Such agent shall:<PRTPAGE P="179"/> </P> <P>(a) Determine the period during which ballots may be cast (voting period).</P> <P>(b) Notify producers and importers of the voting period for the referendum and the requirement to register to vote in the referendum at least 30 days in advance by utilizing available media or public information sources, without incurring advertising expense, to publicize the dates, places, method of voting, eligibility requirements, and other pertinent information. Such sources of publicity may include, but are not limited to, print and radio.</P> <P>(c) Develop the ballots and related material to be used in the referendum. The ballot shall provide for recording essential information, including that needed for ascertaining whether the person voting, or on whose behalf the vote is cast, is an eligible voter.</P> <P>(d) Develop a list of producers and importers who register to vote.</P> <P>(e) Mail to registered voters the instructions on voting, a ballot, and a summary of the terms and conditions of the proposed Order.</P> <P>(f) At the end of the voting period, collect, open, number, and review the ballots and tabulate the results in the presence of an agent of a third party authorized to monitor the referendum process.</P> <P>(g) Prepare a report on the referendum.</P> <P>(h) Announce the results to the public.</P> </SECTION> <SECTION> <SECTNO>§ 1219.105</SECTNO> <SUBJECT>Subagents.</SUBJECT> <P>The referendum agent may appoint any individual or individuals necessary or desirable to assist the agent in performing such agent's functions hereunder. Each individual so appointed may be authorized by the agent to perform any or all of the functions which, in the absence of such appointment, shall be performed by the agent.</P> </SECTION> <SECTION> <SECTNO>§ 1219.106</SECTNO> <SUBJECT>Ballots.</SUBJECT> <P>The referendum agent and subagents shall accept all ballots cast. However, if an agent or subagent deems that a ballot should be challenged for any reason, the agent or subagent shall endorse above their signature, on the ballot, a statement to the effect that such ballot was challenged, by whom challenged, the reasons therefore, the results of any investigations made with respect thereto, and the disposition thereof. Ballots invalid under this subpart shall not be counted.</P> </SECTION> <SECTION> <SECTNO>§ 1219.107</SECTNO> <SUBJECT>Referendum report.</SUBJECT> <P>Except as otherwise directed, the referendum agent shall prepare and submit to the Administrator a report on the results of the referendum, the manner in which it was conducted, the extent and kind of public notice given, and other information pertinent to the analysis of the referendum and its results.</P> </SECTION> <SECTION> <SECTNO>§ 1219.108</SECTNO> <SUBJECT>Confidential information.</SUBJECT> <P>The list of registered voters, ballots, and all other information or reports that reveal, or tend to reveal, the identity or vote of voters in the referendum shall be strictly confidential and shall not be disclosed.</P> </SECTION> <SECTION> <SECTNO>§ 1219.109</SECTNO> <SUBJECT>OMB control number.</SUBJECT> <P>The control number assigned to the information collection requirement in this subpart by the Office of Management and Budget pursuant to the Paperwork Reduction Act of 1995, 44 U.S.C. Chapter 35 is OMB control number 0581-0197.</P> </SECTION> </SUBPART> </PART> <PART> <EAR>Pt. 1220</EAR> <HD SOURCE="HED">PART 1220—SOYBEAN PROMOTION, RESEARCH, AND CONSUMER INFORMATION</HD> <CONTENTS> <SUBPART> <HD SOURCE="HED">Subpart A—Soybean Promotion and Research Order</HD> <SUBJGRP> <HD SOURCE="HED">Definitions</HD> <SECHD>Sec.</SECHD> <SECTNO>1220.101</SECTNO> <SUBJECT>Act.</SUBJECT> <SECTNO>1220.102</SECTNO> <SUBJECT>Board.</SUBJECT> <SECTNO>1220.103</SECTNO> <SUBJECT>Commerce.</SUBJECT> <SECTNO>1220.104</SECTNO> <SUBJECT>Committee.</SUBJECT> <SECTNO>1220.105</SECTNO> <SUBJECT>Consumer information.</SUBJECT> <SECTNO>1220.106</SECTNO> <SUBJECT>[Reserved]</SUBJECT> <SECTNO>1220.107</SECTNO> <SUBJECT>Cooperator organization.</SUBJECT> <SECTNO>1220.108</SECTNO> <SUBJECT>Department.</SUBJECT> <SECTNO>1220.109</SECTNO> <SUBJECT>Eligible organization.</SUBJECT> <SECTNO>1220.110</SECTNO> <SUBJECT>First purchaser.</SUBJECT> <SECTNO>1220.111</SECTNO> <SUBJECT>Fiscal period.</SUBJECT> <SECTNO>1220.112</SECTNO> <SUBJECT>Industry information.</SUBJECT> <SECTNO>1220.113</SECTNO> <SUBJECT>Marketing.</SUBJECT> <SECTNO>1220.114</SECTNO> <SUBJECT>National nonprofit producer-governed organization.</SUBJECT> <SECTNO>1220.115</SECTNO> <SUBJECT>Net market price.</SUBJECT> <SECTNO>1220.116</SECTNO> <SUBJECT>Part and subpart.</SUBJECT> <SECTNO>1220.117</SECTNO> <SUBJECT>Plans and projects.<PRTPAGE P="180"/> </SUBJECT> <SECTNO>1220.118</SECTNO> <SUBJECT>Person.</SUBJECT> <SECTNO>1220.119</SECTNO> <SUBJECT>Producer.</SUBJECT> <SECTNO>1220.120</SECTNO> <SUBJECT>[Reserved]</SUBJECT> <SECTNO>1220.121</SECTNO> <SUBJECT>Promotion.</SUBJECT> <SECTNO>1220.122</SECTNO> <SUBJECT>Qualified State Soybean Board.</SUBJECT> <SECTNO>1220.123</SECTNO> <SUBJECT>Referendum.</SUBJECT> <SECTNO>1220.124</SECTNO> <SUBJECT>[Reserved]</SUBJECT> <SECTNO>1220.125</SECTNO> <SUBJECT>Research.</SUBJECT> <SECTNO>1220.126</SECTNO> <SUBJECT>Secretary.</SUBJECT> <SECTNO>1220.127</SECTNO> <SUBJECT>Soybean products.</SUBJECT> <SECTNO>1220.128</SECTNO> <SUBJECT>Soybeans.</SUBJECT> <SECTNO>1220.129</SECTNO> <SUBJECT>State and United States.</SUBJECT> <SECTNO>1220.130</SECTNO> <SUBJECT>Unit.</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">United Soybean Board</HD> <SECTNO>1220.201</SECTNO> <SUBJECT>Membership of board.</SUBJECT> <SECTNO>1220.202</SECTNO> <SUBJECT>Term of office.</SUBJECT> <SECTNO>1220.203</SECTNO> <SUBJECT>Nominations.</SUBJECT> <SECTNO>1220.204</SECTNO> <SUBJECT>Appointment.</SUBJECT> <SECTNO>1220.205</SECTNO> <SUBJECT>Nominee's agreement to serve.</SUBJECT> <SECTNO>1220.206</SECTNO> <SUBJECT>Vacancies.</SUBJECT> <SECTNO>1220.207</SECTNO> <SUBJECT>Alternate members.</SUBJECT> <SECTNO>1220.208</SECTNO> <SUBJECT>Removal.</SUBJECT> <SECTNO>1220.209</SECTNO> <SUBJECT>Procedure.</SUBJECT> <SECTNO>1220.210</SECTNO> <SUBJECT>Compensation and reimbursement.</SUBJECT> <SECTNO>1220.211</SECTNO> <SUBJECT>Powers of the Board.</SUBJECT> <SECTNO>1220.212</SECTNO> <SUBJECT>Duties.</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Soybean Program Coordinating Committee</HD> <SECTNO>1220.213</SECTNO> <SUBJECT>Establishment and membership.</SUBJECT> <SECTNO>1220.214</SECTNO> <SUBJECT>Term of office.</SUBJECT> <SECTNO>1220.215</SECTNO> <SUBJECT>Vacancies.</SUBJECT> <SECTNO>1220.216</SECTNO> <SUBJECT>Procedure.</SUBJECT> <SECTNO>1220.217</SECTNO> <SUBJECT>Compensation and reimbursement.</SUBJECT> <SECTNO>1220.218</SECTNO> <SUBJECT>Officers of the Committee.</SUBJECT> <SECTNO>1220.219</SECTNO> <SUBJECT>Powers of the Committee.</SUBJECT> <SECTNO>1220.220</SECTNO> <SUBJECT>Duties of the Committee.</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Expenses and Assessments</HD> <SECTNO>1220.222</SECTNO> <SUBJECT>Expenses.</SUBJECT> <SECTNO>1220.223</SECTNO> <SUBJECT>Assessments.</SUBJECT> <SECTNO>1220.224-1220.227</SECTNO> <SUBJECT>[Reserved]</SUBJECT> <SECTNO>1220.228</SECTNO> <SUBJECT>Qualified State Soybean Boards.</SUBJECT> <SECTNO>1220.229</SECTNO> <SUBJECT>Influencing governmental action.</SUBJECT> <SECTNO>1220.230</SECTNO> <SUBJECT>Promotion, research, consumer information, and industry information.</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Reports, Books, and Records</HD> <SECTNO>1220.241</SECTNO> <SUBJECT>Reports.</SUBJECT> <SECTNO>1220.242</SECTNO> <SUBJECT>Books and records.</SUBJECT> <SECTNO>1220.243</SECTNO> <SUBJECT>Confidential treatment.</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Miscellaneous</HD> <SECTNO>1220.251</SECTNO> <SUBJECT>Proceedings after termination.</SUBJECT> <SECTNO>1220.252</SECTNO> <SUBJECT>Effect of termination or amendment.</SUBJECT> <SECTNO>1220.253</SECTNO> <SUBJECT>Personal liability.</SUBJECT> <SECTNO>1220.254</SECTNO> <SUBJECT>Patents, copyrights, inventions, and publications.</SUBJECT> <SECTNO>1220.255</SECTNO> <SUBJECT>Amendments.</SUBJECT> <SECTNO>1220.256</SECTNO> <SUBJECT>Separability.</SUBJECT> <SECTNO>1220.257</SECTNO> <SUBJECT>OMB control numbers.</SUBJECT> </SUBJGRP> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart B—Rules and Regulations</HD> <SUBJGRP> <HD SOURCE="HED">Definitions</HD> <SECTNO>1220.301</SECTNO> <SUBJECT>Terms defined.</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Assessments</HD> <SECTNO>1220.310</SECTNO> <SUBJECT>Assessments.</SUBJECT> <SECTNO>1220.311</SECTNO> <SUBJECT>Collection and remittance of assessments.</SUBJECT> <SECTNO>1220.312</SECTNO> <SUBJECT>Remittance of assessments and submission of reports to United Soybean Board or Qualified State Soybean Board.</SUBJECT> <SECTNO>1220.313</SECTNO> <SUBJECT>Qualified State Soybean Boards.</SUBJECT> <SECTNO>1220.314</SECTNO> <SUBJECT>Document evidencing payment of assessments.</SUBJECT> <SECTNO>1220.330—120.332</SECTNO> <SUBJECT>[Reserved]</SUBJECT> </SUBJGRP> </SUBPART> <SUBPART> <RESERVED>Subparts C-E[Reserved]</RESERVED> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart F—Procedures To Request a Referendum</HD> <SUBJGRP> <HD SOURCE="HED">Definitions</HD> <SECTNO>1220.600</SECTNO> <SUBJECT>Act.</SUBJECT> <SECTNO>1220.601</SECTNO> <SUBJECT>Administrator, AMS.</SUBJECT> <SECTNO>1220.602</SECTNO> <SUBJECT>Administrator, FSA.</SUBJECT> <SECTNO>1220.603</SECTNO> <SUBJECT>Department.</SUBJECT> <SECTNO>1220.604</SECTNO> <SUBJECT>Farm Service Agency.</SUBJECT> <SECTNO>1220.605</SECTNO> <SUBJECT>Farm Service Agency County Committee.</SUBJECT> <SECTNO>1220.606</SECTNO> <SUBJECT>Farm Service Agency County Executive Director.</SUBJECT> <SECTNO>1220.607</SECTNO> <SUBJECT>Order.</SUBJECT> <SECTNO>1220.608</SECTNO> <SUBJECT>Person.</SUBJECT> <SECTNO>1220.609</SECTNO> <SUBJECT>Producer.</SUBJECT> <SECTNO>1220.610</SECTNO> <SUBJECT>Public notice.</SUBJECT> <SECTNO>1220.611</SECTNO> <SUBJECT>Representative period.</SUBJECT> <SECTNO>1220.612</SECTNO> <SUBJECT>Secretary.</SUBJECT> <SECTNO>1220.613</SECTNO> <SUBJECT>Soybeans.</SUBJECT> <SECTNO>1220.614</SECTNO> <SUBJECT>State and United States.</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Procedures</HD> <SECTNO>1220.615</SECTNO> <SUBJECT>General.</SUBJECT> <SECTNO>1220.616</SECTNO> <SUBJECT>Supervision of the process for requesting a referendum.</SUBJECT> <SECTNO>1220.617</SECTNO> <SUBJECT>Eligibility.</SUBJECT> <SECTNO>1220.618</SECTNO> <SUBJECT>Time and place for requesting a referendum.</SUBJECT> <SECTNO>1220.619</SECTNO> <SUBJECT>Facilities.</SUBJECT> <SECTNO>1220.620</SECTNO> <SUBJECT>Certification and request form.</SUBJECT> <SECTNO>1220.621</SECTNO> <SUBJECT>Certification and request procedure.</SUBJECT> <SECTNO>1220.622</SECTNO> <SUBJECT>List of producers requesting a referendum.</SUBJECT> <SECTNO>1220.623</SECTNO> <SUBJECT>Challenge of eligibility.</SUBJECT> <SECTNO>1220.624</SECTNO> <SUBJECT>Canvassing.</SUBJECT> <SECTNO>1220.625</SECTNO> <SUBJECT>Counting requests.</SUBJECT> <SECTNO>1220.626</SECTNO> <SUBJECT>Public review.</SUBJECT> <SECTNO>1220.627</SECTNO> <SUBJECT>FSA county office report.</SUBJECT> <SECTNO>1220.628</SECTNO> <SUBJECT>FSA State office report.</SUBJECT> <SECTNO>1220.629</SECTNO> <SUBJECT>Reporting results.</SUBJECT> <SECTNO>1220.630</SECTNO> <SUBJECT>Disposition of records.</SUBJECT> <SECTNO>1220.631</SECTNO> <SUBJECT>Instructions and forms.</SUBJECT> </SUBJGRP> </SUBPART> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>7 U.S.C. 6301-6311.</P> </AUTH> <SUBPART> <PRTPAGE P="181"/> <HD SOURCE="HED">Subpart A—Soybean Promotion and Research Order</HD> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>56 FR 31049, July 9, 1991, unless otherwise noted.</P> </SOURCE> <SUBJGRP> <HD SOURCE="HED">Definitions</HD> <SECTION> <SECTNO>§ 1220.101</SECTNO> <SUBJECT>Act.</SUBJECT> <P>The term <E T="03">Act</E> means the Soybean Promotion, Research, and Consumer Information Act, subtitle E of title XIX, of the Food, Agriculture, Conservation and Trade Act of 1990, Public Law No. 101-624, and any amendments thereto.</P> </SECTION> <SECTION> <SECTNO>§ 1220.102</SECTNO> <SUBJECT>Board.</SUBJECT> <P>The term <E T="03">Board</E> means the United Soybean Board established under § 1220.201 of this subpart.</P> </SECTION> <SECTION> <SECTNO>§ 1220.103</SECTNO> <SUBJECT>Commerce.</SUBJECT> <P>The term <E T="03">commerce</E> means interstate, foreign, or intrastate commerce.</P> </SECTION> <SECTION> <SECTNO>§ 1220.104</SECTNO> <SUBJECT>Committee.</SUBJECT> <P>The term <E T="03">Committee</E> means the Soybean Program Coordinating Committee established under § 1220.213 of this subpart.</P> </SECTION> <SECTION> <SECTNO>§ 1220.105</SECTNO> <SUBJECT>Consumer information.</SUBJECT> <P>The term <E T="03">consumer information</E> means information that will assist consumers and other persons in making evaluations and decisions regarding the purchase, preparation, and use of soybeans or soybean products.</P> </SECTION> <SECTION> <SECTNO>§ 1220.106</SECTNO> <RESERVED>[Reserved]</RESERVED> </SECTION> <SECTION> <SECTNO>§ 1220.107</SECTNO> <SUBJECT>Cooperator organization.</SUBJECT> <P>The term <E T="03">Cooperator Organization</E> means the American Soybean Association, or any successor organization to the American Soybean Association, which conducts foreign market development activities on behalf of soybean producers.</P> </SECTION> <SECTION> <SECTNO>§ 1220.108</SECTNO> <SUBJECT>Department.</SUBJECT> <P> <E T="03">Department</E> means the United States Department of Agriculture.</P> </SECTION> <SECTION> <SECTNO>§ 1220.109</SECTNO> <SUBJECT>Eligible organization.</SUBJECT> <P>The term <E T="03">eligible organization</E> means any organization which has been certified by the Secretary pursuant to § 1220.203 of this subpart as being eligible to submit nominations for initial membership on the Board.</P> </SECTION> <SECTION> <SECTNO>§ 1220.110</SECTNO> <SUBJECT>First purchaser.</SUBJECT> <P>The term <E T="03">first purchaser</E> means—</P> <P>(a) except as provided in paragraph (b) of this section, any person buying or otherwise acquiring from a producer soybeans produced by such producer; or</P> <P>(b) In any case in which soybeans are pledged as collateral for a loan issued under any Commodity Credit Corporation price support loan program and the soybeans are forfeited by the producer in lieu of loan repayment, the Commodity Credit Corporation.</P> <CITA>[56 FR 31049, July 9, 1991, as amended at 56 FR 42923, Aug. 30, 1991; 57 FR 31095, July 14, 1992]</CITA> </SECTION> <SECTION> <SECTNO>§ 1220.111</SECTNO> <SUBJECT>Fiscal period.</SUBJECT> <P>The term <E T="03">fiscal period</E> means the calendar year or such other annual period as the Board may determine with the approval of the Secretary.</P> </SECTION> <SECTION> <SECTNO>§ 1220.112</SECTNO> <SUBJECT>Industry information.</SUBJECT> <P>The term <E T="03">industry information</E> means information and programs that will lead to the development of new markets, new marketing strategies, or increased efficiency for the soybean industry, and activities to enhance the image of the soybean industry.</P> </SECTION> <SECTION> <SECTNO>§ 1220.113</SECTNO> <SUBJECT>Marketing.</SUBJECT> <P>The term <E T="03">marketing</E> means the sale or other disposition of soybeans or soybean products in any channel of commerce.</P> </SECTION> <SECTION> <SECTNO>§ 1220.114</SECTNO> <SUBJECT>National nonprofit producer-governed organization.</SUBJECT> <P>The term <E T="03">national nonprofit producer-governed organization</E> means an organization that—</P> <P>(a) Is a nonprofit organization pursuant to section 501(c) (3), (5) or (6) of the Internal Revenue Code (26 U.S.C. 501(c) (3), (5) and (6)); and</P> <P>(b) Is governed by a Board of directors of agricultural producers representing soybean producers on a national basis;</P> </SECTION> <SECTION> <PRTPAGE P="182"/> <SECTNO>§ 1220.115</SECTNO> <SUBJECT>Net market price.</SUBJECT> <P>The term <E T="03">net market price</E> means—</P> <P>(a) except as provided in paragraph (b) of this section, the sales price, or other value received by a producer for soybeans after adjustments for any premium or discount based on grading or quality factors, as determined by the Secretary; or</P> <P>(b) For soybeans pledged as collateral for a loan issued under any Commodity Credit Corporation price support loan program, and where the soybeans are forfeited by the producer in lieu of loan repayment, the principal amount of the loan.</P> <CITA>[56 FR 31049, July 9, 1991, as amended at 56 FR 42923, Aug. 30, 1991; 57 FR 31095, July 14, 1992]</CITA> </SECTION> <SECTION> <SECTNO>§ 1220.116</SECTNO> <SUBJECT>Part and subpart.</SUBJECT> <P> <E T="03">Part</E> means the Soybean Promotion and Research Order and all rules and regulations issued pursuant to the Act and the Order, and the Order itself shall be a “Subpart” of such part.</P> </SECTION> <SECTION> <SECTNO>§ 1220.117</SECTNO> <SUBJECT>Plans and projects.</SUBJECT> <P> <E T="03">Plans and Projects</E> means promotion, research, consumer information, and industry information plans, studies, or projects pursuant to § 1220.230.</P> </SECTION> <SECTION> <SECTNO>§ 1220.118</SECTNO> <SUBJECT>Person.</SUBJECT> <P>The term <E T="03">person</E> means any individual, group of individuals, partnership, corporation, association, cooperative, or any other legal entity.</P> </SECTION> <SECTION> <SECTNO>§ 1220.119</SECTNO> <SUBJECT>Producer.</SUBJECT> <P>The term <E T="03">producer</E> means any person engaged in the growing of soybeans in the United States who owns, or who shares the ownership and risk of loss of, such soybeans.</P> </SECTION> <SECTION> <SECTNO>§ 1220.120</SECTNO> <RESERVED>[Reserved]</RESERVED> </SECTION> <SECTION> <SECTNO>§ 1220.121</SECTNO> <SUBJECT>Promotion.</SUBJECT> <P>The term <E T="03">promotion</E> means any action, including paid advertising, technical assistance, and trade servicing activities, to enhance the image or desirability of soybeans or soybean products in domestic and foreign markets, and any activity designed to communicate to consumers, importers, processors, wholesalers, retailers, government officials, or other information relating to the positive attributes of soybeans or soybean products or the benefits of importation, use, or distribution of soybeans and soybean products.</P> </SECTION> <SECTION> <SECTNO>§ 1220.122</SECTNO> <SUBJECT>Qualified State Soybean Board.</SUBJECT> <P>The term <E T="03">Qualified State Soybean Board</E> means a State soybean promotion entity that is authorized by State law and elects to be the Qualified State Soybean Board for the State in which it operates pursuant to § 1220.228(a)(1). If no such entity exists in a State, the term <E T="03">Qualified State Soybean Board</E> means a soybean producer-governed entity—</P> <P>(a) That is organized and operating within a State;</P> <P>(b) That receives voluntary contributions and conducts soybean promotion, research, consumer information, or industry information programs; and</P> <P>(c) That meets the criteria, established by the Board and approved by the Secretary, relating to the qualifications of such entity to perform its duties under this part as determined by the Board, and is certified by the Board under § 1220.228(a)(2), with the approval of the Secretary.</P> </SECTION> <SECTION> <SECTNO>§ 1220.123</SECTNO> <SUBJECT>Referendum.</SUBJECT> <P>The term <E T="03">Referendum</E> means a referendum, other than referenda defined in § 1220.106 and § 1220.124, to be conducted by the Secretary pursuant to the Act whereby producers shall be given the opportunity to vote to determine whether the continuance of this subpart is favored by a majority of producers voting.</P> </SECTION> <SECTION> <SECTNO>§ 1220.124</SECTNO> <RESERVED>[Reserved]</RESERVED> </SECTION> <SECTION> <SECTNO>§ 1220.125</SECTNO> <SUBJECT>Research.</SUBJECT> <P>The term <E T="03">research</E> means any type of study to advance the image, desirability, marketability, production, product development, quality, or functional or nutritional value of soybeans or soybean products, including any research activity designed to identify and analyze barriers to export sales of soybeans and soybean products.</P> </SECTION> <SECTION> <PRTPAGE P="183"/> <SECTNO>§ 1220.126</SECTNO> <SUBJECT>Secretary.</SUBJECT> <P>The term <E T="03">Secretary</E> means the Secretary of Agriculture of the United States or any other officer or employee of the Department to whom there has been delegated, the authority to act in the Secretary's stead.</P> </SECTION> <SECTION> <SECTNO>§ 1220.127</SECTNO> <SUBJECT>Soybean products.</SUBJECT> <P>The term <E T="03">soybean products</E> means products produced in whole or in part from soybeans or soybean byproducts.</P> </SECTION> <SECTION> <SECTNO>§ 1220.128</SECTNO> <SUBJECT>Soybeans.</SUBJECT> <P>The term <E T="03">soybeans</E> means all varieties of Glycine max or Glycine soja.</P> </SECTION> <SECTION> <SECTNO>§ 1220.129</SECTNO> <SUBJECT>State and United States.</SUBJECT> <P>The terms <E T="03">State</E> and <E T="03">United States</E> include the 50 States of the United States of America, the District of Columbia, and the Commonwealth of Puerto Rico.</P> </SECTION> <SECTION> <SECTNO>§ 1220.130</SECTNO> <SUBJECT>Unit.</SUBJECT> <P>The term <E T="03">unit</E> shall mean each State, or group of States, which is represented on the Board.</P> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">United Soybean Board</HD> <SECTION> <SECTNO>§ 1220.201</SECTNO> <SUBJECT>Membership of board.</SUBJECT> <P>(a) For the purposes of nominating and appointing producers to the Board, the United States shall be divided into 30 geographic units and the number of Board members from each unit, subject to paragraphs (d) and (e) of this section shall be as follows:</P> <GPOTABLE CDEF="s50,4" COLS="2" OPTS="L2,i1"> <BOXHD> <CHED H="1">Unit</CHED> <CHED H="1">Number of members</CHED> </BOXHD> <ROW> <ENT I="01">Illinois</ENT> <ENT>4</ENT> </ROW> <ROW> <ENT I="01">Iowa</ENT> <ENT>4</ENT> </ROW> <ROW> <ENT I="01">Minnesota</ENT> <ENT>4</ENT> </ROW> <ROW> <ENT I="01">Indiana</ENT> <ENT>4</ENT> </ROW> <ROW> <ENT I="01">Missouri</ENT> <ENT>3</ENT> </ROW> <ROW> <ENT I="01">Ohio</ENT> <ENT>3</ENT> </ROW> <ROW> <ENT I="01">Arkansas</ENT> <ENT>3</ENT> </ROW> <ROW> <ENT I="01">Nebraska</ENT> <ENT>3</ENT> </ROW> <ROW> <ENT I="01">South Dakota</ENT> <ENT>3</ENT> </ROW> <ROW> <ENT I="01">Kansas</ENT> <ENT>3</ENT> </ROW> <ROW> <ENT I="01">Mississippi</ENT> <ENT>2</ENT> </ROW> <ROW> <ENT I="01">Louisiana</ENT> <ENT>2</ENT> </ROW> <ROW> <ENT I="01">Tennessee</ENT> <ENT>2</ENT> </ROW> <ROW> <ENT I="01">North Carolina</ENT> <ENT>2</ENT> </ROW> <ROW> <ENT I="01">Kentucky</ENT> <ENT>2</ENT> </ROW> <ROW> <ENT I="01">Michigan</ENT> <ENT>2</ENT> </ROW> <ROW> <ENT I="01">North Dakota</ENT> <ENT>2</ENT> </ROW> <ROW> <ENT I="01">Wisconsin</ENT> <ENT>2</ENT> </ROW> <ROW> <ENT I="01">Maryland</ENT> <ENT>1</ENT> </ROW> <ROW> <ENT I="01">Virginia</ENT> <ENT>1</ENT> </ROW> <ROW> <ENT I="01">Georgia</ENT> <ENT>1</ENT> </ROW> <ROW> <ENT I="01">South Carolina</ENT> <ENT>1</ENT> </ROW> <ROW> <ENT I="01">Alabama</ENT> <ENT>1</ENT> </ROW> <ROW> <ENT I="01">Delaware</ENT> <ENT>1</ENT> </ROW> <ROW> <ENT I="01">Texas</ENT> <ENT>1</ENT> </ROW> <ROW> <ENT I="01">Pennsylvania</ENT> <ENT>1</ENT> </ROW> <ROW> <ENT I="01">Oklahoma</ENT> <ENT>1</ENT> </ROW> <ROW> <ENT I="01">New Jersey</ENT> <ENT>1</ENT> </ROW> <ROW> <ENT I="01">Eastern Region (New York, Massachusetts, Connecticut, Florida, Rhode Island, Vermont, New Hampshire, Maine, West Virginia, District of Columbia, and Puerto Rico</ENT> <ENT>1</ENT> </ROW> <ROW> <ENT I="01">Western Region (Montana, Wy-oming, Colorado, New Mexico, Idaho, Utah, Arizona, Wash-ington, Oregon, Nevada, California, Hawaii, and Alaska)</ENT> <ENT>1</ENT> </ROW> </GPOTABLE> <P>(b) The Board shall be composed of soybean producers appointed by the Secretary from nominations submitted pursuant to § 1220.203. A soybean producer may only be nominated by the unit in which that soybean producer is a resident or producer.</P> <P>(c) At the end of each three (3) year period, the Board shall review the geographic distribution of soybean production volume throughout the United States and may recommend to the Secretary a modification of paragraph (e) of this section, to best reflect the geographic distribution of soybean production volume in the United States. The Secretary may amend this subpart to make the changes recommended by the Board in levels of productions used to determine per unit representation. A unit may not, as a result of any modifications under this subsection, lose Board seats to which it is entitled at the time this subpart is initially issued unless its average annual production, as determined under paragraph (e)(6) of this section, declines below the levels required for representation, as specified in paragraphs (e) (1) through (5) of this section.</P> <P>(d) At the end of each three (3) year period, the Secretary shall review the volume of production (minus the volume of production for which refunds have been paid) of each unit provided representation under paragraph (a) of this section, and shall adjust the boundaries of any unit and the number of Board members from each such unit to conform with the criteria set out in paragraphs (e) (1) through (5) of this section.<PRTPAGE P="184"/> </P> <P>(e) The following formula will be used to determine the number of directors for each unit who shall serve on the Board:</P> <P>(1)(i) Except as provided in paragraph (e)(1)(ii) of this section, each State will be considered as a separate unit.</P> <P>(ii) States which do not have annual average soybean production equal to or greater than three million (3,000,000) bushels shall be grouped, to the extent practicable, into geographically contiguous units each of which, to the extent practicable, have a combined annual soybean production level which is equal to or greater than three million (3,000,000) bushels and each such unit shall be entitled to at least one representative on the Board.</P> <P>(2) Each unit that has an annual average soybean production of less than fifteen million (15,000,000) bushels shall be entitled to one representative on the Board.</P> <P>(3) Each unit which has an annual average soybean production of fifteen million (15,000,000) or more bushels but less than seventy million (70,000,000) bushels shall be entitled to two (2) representatives on the Board.</P> <P>(4) Each unit which has an annual average soybean production of seventy million (70,000,000) or more bushels but less than two hundred million (200,000,000) bushels shall be entitled to three (3) representatives on the Board.</P> <P>(5) Each unit which has an annual average soybean production of two hundred million (200,000,000) bushels or more shall be entitled to four (4) representatives on the Board.</P> <P>(6) For the purposes of this section, average annual soybean production shall be determined by using the average of the production for the State or unit over the five previous years, excluding the year in which production was the highest and the year in which production was the lowest.</P> <P>(f) [Reserved]</P> <CITA>[56 FR 31049, July 9, 1991, as amended at 60 FR 29962, June 7, 1995; 60 FR 58500, Nov. 28, 1995; 62 FR 37489, July 14, 1997; 62 FR 41485, Aug. 1, 1997; 65 FR 63768, Oct. 25, 2000]</CITA> </SECTION> <SECTION> <SECTNO>§ 1220.202</SECTNO> <SUBJECT>Term of office.</SUBJECT> <P>(a) The members of the Board shall serve for terms of 3 years, except that the members appointed to the initial Board shall serve, proportionately, for terms of 1, 2, and 3 years.</P> <P>(b) Each member shall continue to serve until a successor is appointed by the Secretary and has accepted the position.</P> <P>(c) No member shall serve more than three consecutive 3-year terms in such capacity.</P> </SECTION> <SECTION> <SECTNO>§ 1220.203</SECTNO> <SUBJECT>Nominations.</SUBJECT> <P>All nominations for appointments to the Board under § 1220.204 shall be made in the following manner:</P> <P>(a) After the issuance of this subpart by the Secretary, nominations shall be obtained by the Secretary as specified in paragraphs (a), (b), and (c) of this section from Qualified State Soybean Boards or for initial Board nominations, eligible organizations deemed qualified to nominate pursuant to paragraph (f) of the section. A Qualified State Soybean Board, or for initial Board nominations, an eligible organization shall only submit nominations for positions on the Board representing the unit, as established under § 1220.201, in which such Qualified State Soybean Board operates.</P> <P>(b) If the Secretary determines that a unit is not represented by a Qualified State Soybean Board or for initial Board nominations, an eligible organization, then the Secretary may solicit nominations from organizations which represent producers in that unit and from producers residing in that unit. A caucus may be held in such units for the purpose of collectively submitting nominations to the Secretary.</P> <P>(c) Where there is more than one State comprising a unit, the Secretary shall take into consideration the nominations submitted by Qualified State Soybean Boards or for initial Board nominations, eligible organizations, within the unit. A caucus may be held in such units for the purpose of collectively submitting nominations to the Secretary. The Secretary shall consider the proportional levels of production in each State comprising the unit when appointing members to the Board representing that unit.</P> <P>(d) At least two nominations shall be submitted for each position to be filled.</P> <P>(e) Nominations may be submitted in order of preference and for the initial <PRTPAGE P="185"/>Board, in order of preference for staggered terms. Should the Secretary reject any nomination submitted and there are insufficient nominations submitted from which appointments can be made, the Secretary may request additional nominations under paragraph (a) or (b) of this section, whichever provision is applicable for such unit.</P> <P>(f) Any organization authorized pursuant to State law to collect assessments from producers may notify the Secretary of the organization's intent to nominate members to the initial Board for the State or unit, as established under § 1220.201, in which such organization operates and is authorized by State law. Such eligibility shall be based only upon the criteria established pursuant to § 1220.228(a)(1). There shall only be one organization authorized per State pursuant to this section to submit nominations to the initial Board. If no such entity exists in a State, any organization meeting those requirements of § 1220.228(a)(2) may request eligibility to submit nominations.</P> </SECTION> <SECTION> <SECTNO>§ 1220.204</SECTNO> <SUBJECT>Appointment.</SUBJECT> <P>From the nominations made pursuant to § 1220.203, the Secretary shall appoint the members of the Board on the basis of representation provided for in § 1220.201.</P> </SECTION> <SECTION> <SECTNO>§ 1220.205</SECTNO> <SUBJECT>Nominee's agreement to serve.</SUBJECT> <P>Any producer nominated to serve on the Board shall file with the Secretary at the time of nomination a written agreement to:</P> <P>(a) Serve on the Board if appointed; and</P> <P>(b) Agree to disclose any relationship with any soybean promotion entity or with any organization that has or is being considered for a contractual relationship with the Board.</P> </SECTION> <SECTION> <SECTNO>§ 1220.206</SECTNO> <SUBJECT>Vacancies.</SUBJECT> <P>To fill any vacancy occasioned by the death, removal, resignation, or disqualification of any member of the Board, the Secretary shall request nominations for a successor pursuant to § 1220.203, and such successor shall be appointed pursuant to § 1220.204.</P> </SECTION> <SECTION> <SECTNO>§ 1220.207</SECTNO> <SUBJECT>Alternate members.</SUBJECT> <P>(a) The Secretary shall solicit, pursuant to the procedures of § 1220.203, nominations for alternate members of the Board.</P> <P>(b) The Secretary shall appoint one alternate member of the Board for each unit which has only one member pursuant to § 1220.204 and § 1220.205.</P> <P>(c) Alternate members of the Board may attend meetings of the Board as a voting member upon the following circumstances:</P> <P>(1) A member of the Board for the unit which the alternate member represents is absent; and</P> <P>(2) Such member, or in the case of incapacitation or death of the member, a relative, has contacted the appropriate officer of the Board to inform such officer of such absence;</P> <P>(d) An alternate member of the Board, when attending Board meetings in an official capacity, shall have the rights, duties and obligations of a Board member.</P> </SECTION> <SECTION> <SECTNO>§ 1220.208</SECTNO> <SUBJECT>Removal.</SUBJECT> <P>If the Secretary determines that any person appointed under this part fails or refuses to perform his or her duties properly or engages in acts of dishonesty or willful misconduct, the Secretary shall remove the person from office. A person appointed or certified under this part or any employee of the Board or Committee may be removed by the Secretary if the Secretary determines that the person's continued service would be detrimental to the purposes of the Act.</P> </SECTION> <SECTION> <SECTNO>§ 1220.209</SECTNO> <SUBJECT>Procedure.</SUBJECT> <P>(a) At a properly convened meeting of the Board, a majority of the members shall constitute a quorum.</P> <P>(b)(1) Except for roll call votes, each member of the Board will be entitled to one vote on any matter put to the Board and the motion will carry if supported by a simple majority of those voting.</P> <P>(2)(i) If a member requests a roll call vote, except as provided in paragraph (b)(2)(ii) of this section, each unit as established under § 1220.201, shall cast one vote for each percent, or portion of a percent, of the average total amount of assessments remitted to the Board <PRTPAGE P="186"/>that was remitted from the unit (minus refunds) during each of the three previous fiscal years of the Board under § 1220.223.</P> <P>(ii)(A) During the first fiscal year of the Board, the percentage used to determine the votes given to a unit will be based on annual average soybean production of the three previous years. If a unit is represented by more than one member, each member representing the unit shall receive an equal percentage of the votes allocated to the unit.</P> <P>(B) During the second and third year this subpart is in effect, the percentage used to determine the votes given to a unit will be based upon averaging the unit's percentage of annual assessments remitted to the Board (minus refunds).</P> <P>(iii) Should a member representing a unit not be present, then the other members representing such unit shall vote, on an equal basis if there is more than one member representing the unit present, the number of votes which the absent member would have been entitled to vote.</P> <P>(iv) A motion will carry on a roll call vote if approved by both a simple majority of all votes cast and a simple majority of all units voting (with the vote of each unit determined by a simple majority of all votes cast by members in that unit).</P> <P>(3) A member may not cast votes by proxy.</P> <P>(c) In lieu of a properly convened meeting and, when in the opinion of the chairperson of the Board such action is considered necessary, the Board may take action upon the concurring votes of a majority of its members, or if a roll call vote is requested, a simple majority of all votes cast and a simple majority of all units voting by mail, telephone, facsimile, or telegraph, but any such action by telephone shall be confirmed promptly in writing. In the event that such action is taken, all members must be notified and provided the opportunity to vote. Any action so taken shall have the same force and effect as though such action had been taken at a regular or special meeting of the Board.</P> <P>(d) On or after the end of the three-year period beginning on the effective date of this subpart, the Board may recommend to the Secretary changes in the voting procedures of the Board described in paragraph (b) of this section.</P> </SECTION> <SECTION> <SECTNO>§ 1220.210</SECTNO> <SUBJECT>Compensation and reimbursement.</SUBJECT> <P>The members of the Board shall serve without compensation but shall be reimbursed for necessary and reasonable expenses incurred by them in the performance of their responsibilities under this subpart.</P> </SECTION> <SECTION> <SECTNO>§ 1220.211</SECTNO> <SUBJECT>Powers of the Board.</SUBJECT> <P>The Board shall have the following powers:</P> <P>(a) To receive and evaluate, or on its own initiative develop, and budget for plans or projects for promotion, research, consumer information, and industry information and to make recommendations to the Secretary regarding such proposals;</P> <P>(b) To administer the provisions of this subpart in accordance with its terms and provisions;</P> <P>(c) To make rules to effectuate the terms and provisions of this subpart;</P> <P>(d) To receive, investigate, and report to the Secretary complaints of violations of the provisions of this subpart;</P> <P>(e) To disseminate information to producers or producer organizations through programs or by direct contact utilizing the public postage system or other systems;</P> <P>(f) To assign responsibilities relating to budget and program development to the Committee as provided in § 1220.219.</P> <P>(g) To select committees and subcommittees of Board members, and to adopt such rules for the conduct of its business as it may deem advisable;</P> <P>(h) To contract with Qualified State Soybean Boards to implement plans or projects;</P> <P>(i) To recommend to the Secretary amendments to this subpart; and</P> <P>(j) With the approval of the Secretary, to invest, pending disbursement pursuant to a plan or project, funds collected through assessments authorized under § 1220.223 in, and only in, obligations of the United States or any agency thereof, in general obligations of any State or any political subdivision thereof, in any interest-bearing <PRTPAGE P="187"/>account or certificate of deposit of a bank which is a member of the Federal Reserve System, or in obligations fully guaranteed as to principal and interest by the United States.</P> </SECTION> <SECTION> <SECTNO>§ 1220.212</SECTNO> <SUBJECT>Duties.</SUBJECT> <P>The Board shall have the following duties:</P> <P>(a) To meet not less than three times annually, or more often if required for the Board to carry out its responsibilities pursuant to this subpart.</P> <P>(b) To organize and select from among its members a chairperson, vice chairperson, a treasurer and such other officers as may be necessary.</P> <P>(c) To appoint from its members an executive committee and to delegate to the committee authority to administer the terms and provisions of this subpart under the direction of the Board and within the policies determined by the Board.</P> <P>(d) To employ or contract for such persons to perform administrative functions as it may deem necessary and define the duties and determine the compensation of each.</P> <P>(e) To develop and submit to the Secretary for approval, promotion, research, consumer information, and industry information plans or projects.</P> <P>(f) To prepare, and submit to the Secretary for approval, budgets on a fiscal period basis of its anticipated expenses and disbursements in the administration of this subpart, including probable costs of promotion, research, consumer information, and industry information plans or projects, and also including a description of the proposed promotion, research, consumer information, and industry information programs contemplated therein.</P> <P>(g) To maintain such books and records, which shall be available to the Secretary for inspection and audit, and to prepare and submit such reports from time to time to the Secretary, as the Secretary may prescribe, and to make appropriate accounting with respect to the receipt and disbursement of all funds entrusted to it.</P> <P>(h) With the approval of the Secretary, to enter into contracts or agreements with appropriate parties, including national nonprofit producer-governed organizations, for the development and conduct of activities authorized under § 1220.230 of this subpart and for the payment of the cost thereof with funds collected through assessments pursuant to § 1220.223. Provided, that the Board shall contract with only one national nonprofit producer-governed organization to administer all projects within a program area.</P> <P>Any such contract or agreement shall provide that:</P> <P>(1) The contractor shall develop and submit to the Board a plan or project together with a budget or budgets which shall show the estimated cost to be incurred for such plan or project;</P> <P>(2) Any such plan or project shall become effective only upon approval of the Secretary; and</P> <P>(3) The contracting party shall keep complete and accurate records of all of its transactions and make periodic reports to the Board of activities conducted pursuant to a contract and an accounting for funds received and expended, and such other reports as the Secretary or the Board may require. The Board and Secretary may audit the records of the contracting party periodically.</P> <P>(i) To prepare and make public, at least annually, a report of its activities carried out and a