[Title 7 CFR ]
[Code of Federal Regulations (annual edition) - January 1, 2007 Edition]
[From the U.S. Government Printing Office]
[[Page i]]
7
Parts 1200 to 1599
Revised as of January 1, 2007
Agriculture
________________________
Containing a codification of documents of general
applicability and future effect
As of January 1, 2007
With Ancillaries
Published by:
Office of the Federal Register
National Archives and Records
Administration
A Special Edition of the Federal Register
[[Page ii]]
U.S. GOVERNMENT OFFICIAL EDITION NOTICE
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[[Page iii]]
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 321
Chapter XV--Foreign Agricultural Service, Department
of Agriculture 863
Finding Aids:
Material Approved for Incorporation by Reference........ 909
Table of CFR Titles and Chapters........................ 911
Alphabetical List of Agencies Appearing in the CFR...... 929
List of CFR Sections Affected........................... 939
[[Page iv]]
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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.
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[[Page v]]
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.
Each volume of the Code is revised at least once each calendar year
and issued on a quarterly basis approximately as follows:
Title 1 through Title 16.................................as of January 1
Title 17 through Title 27..................................as of April 1
Title 28 through Title 41...................................as of July 1
Title 42 through Title 50................................as of October 1
The appropriate revision date is printed on the cover of each
volume.
LEGAL STATUS
The contents of the Federal Register are required to be judicially
noticed (44 U.S.C. 1507). The Code of Federal Regulations is prima facie
evidence of the text of the original documents (44 U.S.C. 1510).
HOW TO USE THE CODE OF FEDERAL REGULATIONS
The Code of Federal Regulations is kept up to date by the individual
issues of the Federal Register. These two publications must be used
together to determine the latest version of any given rule.
To determine whether a Code volume has been amended since its
revision date (in this case, January 1, 2007), consult the ``List of CFR
Sections Affected (LSA),'' which is issued monthly, and the ``Cumulative
List of Parts Affected,'' which appears in the Reader Aids section of
the daily Federal Register. These two lists will identify the Federal
Register page number of the latest amendment of any given rule.
EFFECTIVE AND EXPIRATION DATES
Each volume of the Code contains amendments published in the Federal
Register since the last revision of that volume of the Code. Source
citations for the regulations are referred to by volume number and page
number of the Federal Register and date of publication. Publication
dates and effective dates are usually not the same and care must be
exercised by the user in determining the actual effective date. In
instances where the effective date is beyond the cut-off date for the
Code a note has been inserted to reflect the future effective date. In
those instances where a regulation published in the Federal Register
states a date certain for expiration, an appropriate note will be
inserted following the text.
OMB CONTROL NUMBERS
The Paperwork Reduction Act of 1980 (Pub. L. 96-511) requires
Federal agencies to display an OMB control number with their information
collection request.
[[Page vi]]
Many agencies have begun publishing numerous OMB control numbers as
amendments to existing regulations in the CFR. These OMB numbers are
placed as close as possible to the applicable recordkeeping or reporting
requirements.
OBSOLETE PROVISIONS
Provisions that become obsolete before the revision date stated on
the cover of each volume are not carried. Code users may find the text
of provisions in effect on a given date in the past by using the
appropriate numerical list of sections affected. For the period before
January 1, 2001, consult either the List of CFR Sections Affected, 1949-
1963, 1964-1972, 1973-1985, or 1986-2000, published in 11 separate
volumes. For the period beginning January 1, 2001, a ``List of CFR
Sections Affected'' is published at the end of each CFR volume.
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.
CFR INDEXES AND TABULAR GUIDES
A subject index to the Code of Federal Regulations is contained in a
separate volume, revised annually as of January 1, entitled CFR Index
and Finding Aids. This volume contains the Parallel Table of Statutory
Authorities and Agency Rules (Table I). A list of CFR titles, chapters,
and parts and an alphabetical list of agencies publishing in the CFR are
also included in this volume.
An index to the text of ``Title 3--The President'' is carried within
that volume.
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.
[[Page vii]]
REPUBLICATION OF MATERIAL
There are no restrictions on the republication of textual material
appearing in the Code of Federal Regulations.
INQUIRIES
For a legal interpretation or explanation of any regulation in this
volume, contact the issuing agency. The issuing agency's name appears at
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For inquiries concerning CFR reference assistance, call 202-741-6000
or write to the Director, Office of the Federal Register, National
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Raymond A. Mosley,
Director,
Office of the Federal Register.
January 1, 2007.
[[Page ix]]
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, 2007.
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.
For this volume, Elmer Barksdale was Chief Editor. The Code of
Federal Regulations publication program is under the direction of
Frances D. McDonald, assisted by Ann Worley.
[[Page 1]]
TITLE 7--AGRICULTURE
(This book contains parts 1200 to 1599)
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SUBTITLE B--Regulations of the Department of Agriculture (Continued)
Part
chapter xi--Agricultural Marketing Service (Marketing
Agreements and Orders; Miscellaneous Commodities),
Department of Agriculture................................. 1200
chapter xiv--Commodity Credit Corporation, Department of
Agriculture............................................... 1400
chapter xv--Foreign Agricultural Service, Department of
Agriculture............................................... 1520
[[Page 3]]
Subtitle B--Regulations of the Department of Agriculture (Continued)
[[Page 5]]
CHAPTER XI--AGRICULTURAL MARKETING SERVICE (MARKETING AGREEMENTS AND
ORDERS; MISCELLANEOUS COMMODITIES), DEPARTMENT OF AGRICULTURE
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Part Page
1200 Rules of practice and procedure governing
proceedings under research, promotion,
and information programs................ 7
1205 Cotton research and promotion............... 16
1206 Mango promotion, research, and information.. 47
1207 Potato research and promotion plan.......... 61
1209 Mushroom promotion, research, and consumer
information order....................... 76
1210 Watermelon research and promotion plan...... 97
1214 Kiwifruit research, promotion, and consumer
information order....................... 120
1215 Popcorn promotion, research, and consumer
information............................. 123
1216 Peanut promotion, research, and information
order................................... 134
1218 Blueberry promotion, research, and
information order....................... 148
1219 Hass avocado promotion, research, and
information............................. 163
1220 Soybean promotion, research, and consumer
information............................. 182
1230 Pork promotion, research, and consumer
information............................. 208
1240 Honey research, promotion, and consumer
information order....................... 234
1250 Egg research and promotion.................. 256
1260 Beef promotion and research................. 272
1270
Wool and mohair advertising and promotion [Reserved]
1280 Lamb promotion, research, and information
order................................... 296
1290 Specialty crop block grant program.......... 317
[[Page 7]]
PART 1200_RULES OF PRACTICE AND PROCEDURE GOVERNING PROCEEDINGS UNDER
RESEARCH, PROMOTION, AND INFORMATION PROGRAMS--Table of Contents
Subpart A_Rules of Practice and Procedure Governing Proceedings To
Formulate and Amend an Order
Sec.
1200.1 Words in the singular form.
1200.2 Definitions.
1200.3 Proposals.
1200.4 Reimbursement of Secretary's expenses.
1200.5 Institution of proceedings.
1200.6 Docket number.
1200.7 Judge.
1200.8 Motions and requests.
1200.9 Conduct of the hearing.
1200.10 Oral and written arguments.
1200.11 Certification of the transcript.
1200.12 Copies of the transcript.
1200.13 Administrator's recommended decision.
1200.14 Submission to Secretary.
1200.15 Decision by the Secretary.
1200.16 Execution of the order.
1200.17 Filing, extension of time, effective date of filing, and
computation of time.
1200.18 Ex parte communications.
1200.19 Additional documents to be filed with hearing clerk.
1200.20 Hearing before Secretary.
Subpart B_Rules of Practice Governing Proceedings on Petitions to Modify
or To Be Exempted from Research, Promotion, and Information Programs
1200.50 Words in the singular form.
1200.51 Definitions.
1200.52 Institution of proceeding.
Authority: 7 U.S.C. 2111, 2620, 2713, 4509, 4609, 4814, 4909, 6106,
6306, 6410, 7418, and 7486.
Subpart A_Rules of Practice and Procedure Governing Proceedings To
Formulate and Amend an Order
Authority: 7 U.S.C. 2103, 2614, 2704, and 4804.
Source: 47 FR 44684, Oct. 8, 1982, unless otherwise noted.
Sec. 1200.1 Words in the singular form.
Words in this subpart in the singular form shall be deemed to import
the plural, and vice versa, as the case may demand.
Sec. 1200.2 Definitions.
(a) The term Act 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].
(b) Administrator 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.
(b) Board means the board or council established by the order to
administer the program.
(c) Department means the U.S. Department of Agriculture.
(d) Federal Register means the publication provided for by the
Federal Register Act, approved July 26, 1935 [44 U.S.C. 1501-1511], and
acts supplementing and amending it.
(e) Hearing means that part of the proceeding which involves the
submission of evidence.
(f) Judge means any administrative law judge appointed pursuant to 5
U.S.C. 3105 and assigned to conduct the hearing.
(g) Hearing means that part of the proceeding that involves the
submission of evidence.
(h) Hearing clerk means the Hearing Clerk, U.S. Department of
Agriculture, Washington, D.C.
(i) Order 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.
(j) Proceeding means a proceeding before the Secretary arising under
the pertinent section of an Act.
(k) Secretary 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.
[67 FR 44350, July 2, 2002]
[[Page 8]]
Sec. 1200.3 Proposals.
(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.
(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.
Sec. 1200.4 Reimbursement of Secretary's expenses.
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.
Sec. 1200.5 Institution of proceedings.
(a) Filing and contents of the notice of hearing. 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 Federal Register, 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 Federal Register.
(b) Giving notice of hearing and supplemental publicity. (1) The
Administrator shall give or cause to be given notice of hearing in the
following manner:
(i) By publication of the notice of hearing in the Federal Register;
(ii) By mailing a copy of the notice of hearing to each organization
known by the Administrator to be interested therein;
(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
(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.
(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.
(c) Record of notice and supplemental publicity. 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
[[Page 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.
Sec. 1200.6 Docket number.
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.
Sec. 1200.7 Judge.
(a) Assignment. No judge who has any pecuniary interest in the
outcome of a proceeding shall serve as judge in such proceeding.
(b) Power of judge. Subject to review by the Secretary, as provided
elsewhere in this subpart, the judge in any proceeding shall have power
to:
(1) Rule upon motions and requests;
(2) Change the time and place of hearings, and adjourn the hearing
from time to time or from place to place;
(3) Administer oaths and affirmations and take affidavits;
(4) Examine and cross-examine witnesses and receive evidence;
(5) Admit or exclude evidence;
(6) Hear oral argument on facts or law; and
(7) Do all acts and take all measures necessary for the maintenance
of order at the hearings and the efficient conduct of the proceeding.
(c) Who may act in absence of judge. 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.
(d) Disqualification of judge. 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.
Sec. 1200.8 Motions and requests.
(a) General. (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.
(2) Except as provided in Sec. 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 Sec. 1200.11 or by the
Secretary if made thereafter.
(b) Certification to Secretary. 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.
Sec. 1200.9 Conduct of the hearing.
(a) Time and place. 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 Sec. 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.
(b) Appearances--(1) Right to appear. At the hearing, any interested
person
[[Page 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.
(2) Debarment of counsel or representative. (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.
(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.
(3) Failure to appear. 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.
(c) Order of procedure. (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 Sec. 1200.5(c).
(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.
(d) Evidence--(1) General. The hearing shall be publicly conducted,
and the testimony given at the hearing shall be reported verbatim.
(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.
(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.
(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.
(2) Objections. 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.
(3) Proof and authentication of official records or documents. An
official record or document, when admissible for any
[[Page 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.
(4) Exhibits. 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.
(5) Official notice. 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.
(6) Offer of proof. 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.
Sec. 1200.10 Oral and written arguments.
(a) Oral argument before the judge. 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.
(b) Briefs, proposed findings, and conclusions. 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 Sec. 1200.9(d), that person shall
include in the brief a
[[Page 12]]
concise statement concerning each such objection, referring, where
practicable, to the pertinent pages of the transcript.
Sec. 1200.11 Certification of the transcript.
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.
Sec. 1200.12 Copies of the transcript.
(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.
(b) Transcripts of hearings shall be made available to any person at
actual cost of duplication.
[47 FR 44684, Oct. 8, 1982, as amended at 67 FR 10830, Mar. 11, 2002]
Sec. 1200.13 Administrator's recommended decision.
(a) Preparation. 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.
(b) Contents. 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.
(c) Exceptions to recommended decision. Immediately following the
filing of the recommended decision, the Administrator shall give notice
thereof and opportunity to file exceptions thereto by publication in the
Federal Register. 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.
(d) Omission of recommended decision. 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.
[[Page 13]]
Sec. 1200.14 Submission to Secretary.
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.
Sec. 1200.15 Decision by the Secretary.
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 Sec.
1200.16: Except that such order shall not be executed, issued, or made
effective until and unless the Secretary determines that the
requirements of Sec. 1200.16 have been met.
Sec. 1200.16 Execution of the order.
(a) Issuance of the order. 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 Sec. 1200.15: Except that the issuance of such
order shall have been approved or favored by eligible voters as required
by the applicable Act.
(b) Effective date of order. No order shall become effective in less
than 30 days after its publication in the Federal Register, unless the
Secretary, upon good cause found and published with the order, fixes an
earlier effective date.
(c) Notice of issuance. 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
Federal Register.
Sec. 1200.17 Filing, extension of time, effective date of filing, and
computation of time.
(a) Number of copies. 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.
(b) Extension of time. 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.
(c) Effective date of filing. 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.
(d) Computation of time. Each day, including Saturdays, Sundays, and
legal public holidays, shall be included in computing the time allowed
for filing any document or paper: Provided, 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.
[47 FR 44684, Oct. 8, 1982, as amended at 67 FR 10830, Mar. 11, 2002]
[[Page 14]]
Sec. 1200.18 Ex parte communications.
(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.
(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.
(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:
(1) All such written communications;
(2) Memoranda stating the substance of all such oral communications;
and
(3) All written responses, and memoranda, stating the substance of
all oral responses thereto.
(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.
(e) For the purposes of this section, ex parte communication 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.
Sec. 1200.19 Additional documents to be filed with hearing clerk.
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.
Sec. 1200.20 Hearing before Secretary.
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.
Subpart B_Rules of Practice Governing Proceedings on Petitions to Modify
or To Be Exempted from Research, Promotion and Information Programs
Authority: 7 U.S.C. 2111, 2620, 2713, 4509, 4609, 4814, 4909, 6008,
6106, 6306, 6410, 6807, 7106, 7418, 7486, and 7806.
Source: 60 FR 37326, July 20, 1995, unless otherwise noted.
Sec. 1200.50 Words in the singular form.
Words in this subpart in the singular form shall be deemed to import
the
[[Page 15]]
plural, and vice versa, as the case may demand.
Sec. 1200.51 Definitions.
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:
(a) The term Act 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].
(b) Administrator 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.
(c) Decision means the judge's initial decision and includes the
judge's:
(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;
(2) Order; and
(3) Rulings on findings, conclusions and orders submitted by the
parties.
(d) Department means the U.S. Department of Agriculture.
(e) Hearing means that part of the proceedings which involves the
submission of evidence.
(f) Hearing clerk means the Hearing Clerk, U.S. Department of
Agriculture, Washington, D.C.
(g) Judge means any administrative law judge, appointed pursuant to
5 U.S.C. 3105, and assigned to the proceeding involved.
(h) Order 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.
(i) Party includes the Department.
(j) Person 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.
(k) Petition includes an amended petition.
(l) Proceeding means a proceeding before the Secretary arising under
the pertinent section of an Act.
(m) Secretary 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.
[67 FR 44350, July 2, 2002]
Sec. 1200.52 Institution of proceeding.
(a) Filing and service of petitions. 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.
(b) Contents of petitions. A petition shall contain:
(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
[[Page 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;
(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;
(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;
(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;
(5) Requests for the specific relief which the petitioner desires
the Secretary to grant; and
(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.
(c) A motion to dismiss a petition: filing, contents, and responses
to a petition. 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.
(d) Further proceedings. Further proceedings on petitions to modify
or to be exempted from the Order shall be governed by Sec. Sec.
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 marketing order in the title shall
mean order.
[47 FR 44684, Oct. 8, 1982, as amended at 67 FR 10830, Mar. 11, 2002]
PART 1205_COTTON RESEARCH AND PROMOTION--Table of Contents
Subpart_Procedures for Conduct of Sign-up Period
Definitions
Sec.
1205.10 Act.
1205.11 Administrator.
1205.12 Cotton.
1205.13 Upland cotton.
1205.14 Department.
1205.15 Farm Service Agency.
1205.16 Order.
1205.17 Person.
1205.18 Producer.
1205.19 Importer.
1205.20 Representative period.
1205.21 Secretary.
1205.22 State.
1205.23 United States.
Procedures
1205.24 General.
1205.25 Supervision of sign-up period.
1205.26 Eligibility.
1205.27 Participation in the sign-up period.
1205.28 Counting.
[[Page 17]]
1205.29 Reporting results.
1205.30 Instructions and forms.
Subpart_Cotton Research and Promotion Order
Definitions
1205.301 Secretary.
1205.302 Act.
1205.303 Person.
1205.304 Cotton.
1205.305 Upland cotton.
1205.306 Bale.
1205.307 Fiscal period.
1205.308 Cotton Board.
1205.309 Producer.
1205.310 Importer.
1205.311 Handler.
1205.312 Handle.
1205.313 United States.
1205.314 Cotton-producing State.
1205.315 Marketing.
1205.316 Cotton-Producer organization.
1205.317 Cotton-Importer organization.
1205.318 Contracting organization or association.
1205.319 Cotton-producing region.
1205.320 Marketing year.
1205.321 Part and subpart.
Cotton Board
1205.322 Establishment and membership.
1205.323 Term of office.
1205.324 Nominations.
1205.325 Selection.
1205.326 Acceptance.
1205.327 Vacancies.
1205.328 Alternate members.
1205.329 Procedure.
1205.330 Compensation and reimbursement.
1205.331 Powers.
1205.332 Duties.
Research and Promotion
1205.333 Research and promotion.
Expenses and Assessments
1205.334 Expenses.
1205.335 Assessments.
1205.336 ``Importer Reimbursements''.
1205.337 Influencing governmental action.
Reports, Books, and Records
1205.338 Reports.
1205.339 Books and records.
1205.340 Confidential treatment.
Certification of Cotton Producer Organization
1205.341 Certification of cotton producer organization.
1205.342 Certification of cotton importer organizations.
Miscellaneous
1205.343 Suspension and termination.
1205.345 Proceedings after termination.
1205.346 Effect of termination or amendment.
1205.347 Personal liability.
1205.348 Separability.
Subpart_Members of Cotton Board
1205.401 Definitions.
1205.402 Determination of Cotton Board membership.
1205.403 Nomination procedure.
Subpart_Cotton Board Rules and Regulations
Definitions
1205.500 Terms defined.
General
1205.505 Communication.
Assessments
1205.510 Levy of assessments.
1205.511 Payment and collection.
1205.512 Collecting handlers and time of collection of $1 per bale
assessment.
1205.513 Collecting handlers and time of collection of the supplemental
assessment.
1205.514 Customs Service and the Collection of the $1 per bale
assessment.
1205.515 Customs Service and the collection of the supplemental
assessment.
1205.516 Reports and remittance to the Cotton Board.
1205.517 Failure to report and remit.
1205.518 Receipts for payment of assessments.
1205.519 Organic exemption.
Reimbursements
1205.520 Procedure for obtaining reimbursement.
Warehouse Receipts
1205.525 Entry of gin code number.
Reports and Records
1205.530 Gin reports and reporting schedule.
1205.531 Records.
1205.532 Retention period for reports and records.
1205.533 Availability of reports and records.
Confidential Information
1205.540 Confidential books, records, and reports.
1205.541 OMB control numbers.
Subpart--Fiscal Period [Reserved]
Authority: 7 U.S.C. 2101-2118 and 7 U.S.C. 7401.
[[Page 18]]
Subpart_Procedures for Conduct of Sign-up Period
Source: 62 FR 1660, Jan. 13, 1997, unless otherwise noted.
Definitions
Sec. 1205.10 Act.
The term Act means the Cotton Research and Promotion Act, as amended
[7 U.S.C 2101-2118; Public Law 89-502, 80 Stat 279, as amended].
Sec. 1205.11 Administrator.
The term Administrator 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.
Sec. 1205.12 Cotton.
The term cotton 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 cotton 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.
[62 FR 1660, Jan. 13, 1997, as amended at 67 FR 21169, Apr. 30, 2002]
Sec. 1205.13 Upland cotton.
The term Upland cotton means all cultivated varieties of the species
Gossypium hirsutum L.
Sec. 1205.14 Department.
The term Department means the U.S. Department of Agriculture.
Sec. 1205.15 Farm Service Agency.
The term Farm Service Agency--formerly Agricultural Stabilization
and Conservation Service (ASCS)--also referred to as ``FSA,'' means the
Farm Service Agency of the Department.
Sec. 1205.16 Order.
The term Order means the Cotton Research and Promotion Order.
Sec. 1205.17 Person.
The term person means any individual 18 years of age or older, or
any partnership, corporation, association, or any other entity.
Sec. 1205.18 Producer.
The term producer 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.
[67 FR 21169, Apr. 30, 2002]
Sec. 1205.19 Importer.
The term importer 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.
Sec. 1205.20 Representative period.
The term representative period means the 2001 calendar year.
[67 FR 21169, Apr. 30, 2002]
Sec. 1205.21 Secretary.
The term Secretary 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.
Sec. 1205.22 State.
The term State means each of the 50 states.
Sec. 1205.23 United States.
The term United States means the 50 states of the United States of
America.
Procedures
Sec. 1205.24 General.
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.
(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
[[Page 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.
(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.
Sec. 1205.25 Supervision of sign-up period.
The Administrator shall be responsible for conducting the sign-up
period in accordance with this subpart.
Sec. 1205.26 Eligibility.
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.
(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:
(1) Any person who was engaged in the production of Upland cotton
during calendar year 2001; and
(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.
(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.
(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.
(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.
(e) A guardian, administrator, executor, or trustee of any qualified
estate or trust may submit a request on behalf of that estate or trust.
(f) An individual may not submit a request on behalf of another
individual.
(g) Participation in the sign-up by proxy or power of attorney is
not authorized.
[62 FR 1660, Jan. 13, 1997, as amended at 67 FR 21169, Apr. 30, 2002]
Sec. 1205.27 Participation in the sign-up period.
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.
(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.
(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.
(c) Each person on the county FSA office lists may participate in
the sign-up period. Eligible producers must date
[[Page 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.
[67 FR 21169, Apr. 30, 2002]
Sec. 1205.28 Counting.
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.
[62 FR 1660, Jan. 13, 1997, as amended at 67 FR 21170, Apr. 30, 2002]
Sec. 1205.29 Reporting results.
(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.
(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.
(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.
(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.
(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
[[Page 21]]
from importers of cotton. The Secretary shall announce the results of
the sign-up period in a separate notice in the Federal Register.
[67 FR 21170, Apr. 30, 2002]
Sec. 1205.30 Instructions and forms.
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.
Subpart_Cotton Research and Promotion Order
Source: 31 FR 16758, Dec. 31, 1966, unless otherwise noted.
Definitions
Sec. 1205.301 Secretary.
Secretary 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.
Sec. 1205.302 Act.
Act means the Cotton Research and Promotion Act, as amended (7
U.S.C. 2101-2118; Public Law 89-502, 80 Stat 279, as amended).
[56 FR 64472, Dec. 10, 1991]
Sec. 1205.303 Person.
Person means any individual, partnership, corporation, association,
or any other entity.
Sec. 1205.304 Cotton.
Cotton means:
(a) All Upland cotton harvested in the United States, and, except as
used in Sec. Sec. 1205.311 and 1205.335, includes cottonseed of such
cotton and the products derived from such cotton and its seed, and
(b) Imports of Upland cotton, including the Upland cotton content of
the products derived thereof. The term ``cotton'' shall not, however,
include:
(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
(2) Industrial products as that term is defined by regulation.
[56 FR 64472, Dec. 10, 1991]
Sec. 1205.305 Upland cotton.
Upland cotton means all cultivated varieties of the species
Gossypium hirsutum L.
[56 FR 64472, Dec. 10, 1991]
Sec. 1205.306 Bale.
Except as used in Sec. 1205.322, Bale 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.
[56 FR 64472, Dec. 10, 1991]
Sec. 1205.307 Fiscal period.
Fiscal period 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.
[31 FR 16758, Dec. 31, 1966. Redesignated at 56 FR 64472, Dec. 10, 1991]
Sec. 1205.308 Cotton Board.
Cotton Board means the administrative body established pursuant to
Sec. 1205.318.
[31 FR 16758, Dec. 31, 1966. Redesignated at 56 FR 64472, Dec. 10, 1991]
Sec. 1205.309 Producer.
Producer 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.
[31 FR 16758, Dec. 31, 1966. Redesignated at 56 FR 64472, Dec. 10, 1991]
Sec. 1205.310 Importer.
Importer means many 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.
[56 FR 64472, Dec. 10, 1991]
[[Page 22]]
Sec. 1205.311 Handler.
Handler means any person who handles cotton, including the Commodity
Credit Corporation.
[31 FR 16758, Dec. 31, 1966. Redesignated at 56 FR 64472, Dec. 10, 1991]
Sec. 1205.312 Handle.
Handle means to harvest, gin, warehouse, compress, purchase, market,
transport, or otherwise acquire ownership or control of cotton.
[31 FR 16758, Dec. 31, 1966. Redesignated at 56 FR 64472, Dec. 10, 1991]
Sec. 1205.313 United States.
United States means the 50 States of the United States of America.
[31 FR 16758, Dec. 31, 1966. Redesignated at 56 FR 64472, Dec. 10, 1991]
Sec. 1205.314 Cotton-producing State
Cotton-producing State means each of the following States and
combinations of States:
Alabama-Florida; Arizona; Arkansas; California-Nevada; Georgia;
Louisiana; Mississippi; Missouri-Illinois; New Mexico; North Carolina-
Virginia; Oklahoma; South Carolina; Tennessee-Kentucky; Texas.
[31 FR 16758, Dec. 31, 1966. Redesignated at 56 FR 64472, Dec. 10, 1991]
Sec. 1205.315 Marketing.
Marketing includes the sale of cotton or the pledging of cotton to
the Commodity Credit Corporation as collateral for a price support loan.
[31 FR 16758, Dec. 31, 1966. Redesignated at 56 FR 64472, Dec. 10, 1991]
Sec. 1205.316 Cotton-Producer organization.
Cotton-Producer organization means any organization which has been
certified by the Secretary pursuant to Sec. 1205.341.
[56 FR 64472, Dec. 10, 1991]
Sec. 1205.317 Cotton-Importer organization.
Cotton-Importer organization means any organization which has been
certified by the Secretary pursuant to Sec. 1205.342.
[56 FR 64472, Dec. 10, 1991]
Sec. 1205.318 Contracting organization or association.
Contracting organization or association means the organization or
association with which the Cotton Board has entered into a contract or
agreement pursuant to Sec. 1205.328(c).
[31 FR 16758, Dec. 31, 1966. Redesignated at 56 FR 64472, Dec. 10, 1991]
Sec. 1205.319 Cotton-producing region.
Cotton-producing region means each of the following groups of
cotton-producing States:
(a) Southeast Region: Alabama-Florida, Georgia, North Carolina-
Virginia, and South Carolina;
(b) Midsouth Region: Arkansas, Louisiana, Mississippi, Missouri-
Illinois, and Tennessee-Kentucky;
(c) Southwest Region: Oklahoma and Texas;
(d) Western Region: Arizona, California-Nevada, and New Mexico.
[31 FR 16758, Dec. 31, 1966. Redesignated at 56 FR 64472, Dec. 10, 1991]
Sec. 1205.320 Marketing year.
Marketing year means a consecutive 12-month period ending on July
31.
[31 FR 16758, Dec. 31, 1966. Redesignated at 56 FR 64472, Dec. 10, 1991]
Sec. 1205.321 Part and subpart.
Part 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.
[31 FR 16758, Dec. 31, 1966. Redesignated at 56 FR 64472, Dec. 10, 1991]
Cotton Board
Sec. 1205.322 Establishment and membership.
(a) There is hereby established a Cotton Board composed of:
(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 Sec. 1205.341, or, if the Secretary determines
that a substantial number of producers are not members of or their
[[Page 23]]
interests are not represented by any such eligible organizations, from
nominations made by producers in a manner authorized by the Secretary,
and
(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 Sec.
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.
(b) Representation on the Cotton Board shall be as follows:
(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
(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.
[56 FR 64472, Dec. 10, 1991]
Sec. 1205.323 Term of office.
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.
[56 FR 64472, Dec. 10, 1991]
Sec. 1205.324 Nominations.
All nominations authorized under Sec. 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 Sec. 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 Sec. 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.
[56 FR 64472, Dec. 10, 1991; 56 FR 66670, Dec. 24, 1991]
Sec. 1205.325 Selection.
From the nominations made pursuant to Sec. Sec. 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
Sec. Sec. 1205.322 and 1205.323.
[56 FR 64473, Dec. 10, 1991]
Sec. 1205.326 Acceptance.
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.
[31 FR 16758, Dec. 31, 1966. Redesignated at 56 FR 64472, Dec. 10, 1991]
Sec. 1205.327 Vacancies.
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 Sec. Sec. 1205.322, 1205.324 and
1205.325.
[56 FR 64473, Dec. 10, 1991]
[[Page 24]]
Sec. 1205.328 Alternate members.
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.
[56 FR 64473, Dec. 10, 1991]
Sec. 1205.329 Procedure.
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.
[31 FR 16758, Dec. 31, 1966. Redesignated at 56 FR 64472, Dec. 10, 1991]
Sec. 1205.330 Compensation and reimbursement.
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.
[31 FR 16758, Dec. 31, 1966. Redesignated at 56 FR 64472, Dec. 10, 1991]
Sec. 1205.331 Powers.
The Board shall have the following powers:
(a) To administer the provisions of this subpart in accordance with
its terms and provisions;
(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 Sec. 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;
(c) To receive, investigate, and report to the Secretary complaints
of violations of the provisions of this subpart;
(d) To recommend to the Secretary amendments to this subpart.
[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]
Sec. 1205.332 Duties.
The Board shall have the following duties:
(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;
(b) To appoint or employ such persons as it may deem necessary and
to determine the compensation and to define the duties of each;
(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 Sec. 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
Sec. 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
[[Page 25]]
Sec. 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;
(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;
(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;
(f) To maintain such books and records 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;
(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;
(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;
(i) To act as intermediary between the Secretary and any producer,
importer, or handler.
(j) To submit to the Secretary such information as he may request.
[31 FR 16758, Dec. 31, 1966. Redesignated and amended at 56 FR 64472,
64473, Dec. 10, 1991]
Research and Promotion
Sec. 1205.333 Research and promotion.
The Cotton Board shall in the manner prescribed in Sec. 1205.332(c)
establish or provide for:
(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;
(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.
[31 FR 16758, Dec. 31, 1966. Redesignated and amended at 56 FR 64472,
64473, Dec. 10, 1991]
Expenses and Assessments
Sec. 1205.334 Expenses.
(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.
(b) The Board shall reimburse the Secretary for:
[[Page 26]]
(1) Expenses up to $300,000 incurred by the Secretary in connection
with any referendum conducted under the Act and
(2) Expenses incurred by the Department of Agriculture for
administrative and supervisory costs up to five employee years annually.
(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.
(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 Sec. 1205.335.
[42 FR 4813, Jan. 26, 1977. Redesignated and amended at 56 FR 64472,
64473, Dec. 10, 1991]
Sec. 1205.335 Assessments.
(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:
(1) An assessment at the rate of $1 per bale of cotton handled;
(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:
(i) The current value of the cotton, or
(ii) An average value determined from current and/or historical
cotton prices and converted to a fixed amount for each bale.
(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:
(1) An assessment of $1 per bale of cotton imported or the bale
equivalent thereof for cotton products.
(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.
(c) The Secretary may designate by regulation exemptions to
assessments provided for in this section for the following:
(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;
(2) Cotton contained in entries of imported cotton and cotton
products that is U.S. produced cotton or is other than Upland cotton.
(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.
[56 FR 64473, Dec. 10, 1991]
Sec. 1205.336 ``Importer Reimbursements''.
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
[[Page 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.
[56 FR 64474, Dec. 10, 1991]
Sec. 1205.337 Influencing governmental action.
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.
[31 FR 16758, Dec. 31, 1966. Redesignated at 56 FR 64472, Dec. 10, 1991]
Reports, Books, and Records
Sec. 1205.338 Reports.
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:
(a) Number of bales handled or imported;
(b) Number of bales on which an assessment was collected;
(c) Name and address of person from whom the handler has collected
the assessments on each bale handled or imported;
(d) Date collection was made on each bale handled or imported.
[56 FR 64474, Dec. 10, 1991]
Sec. 1205.339 Books and records.
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.
[56 FR 64474, Dec. 10, 1991]
Sec. 1205.340 Confidential treatment.
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 Sec. 1205.340 shall be
deemed to prohibit:
(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
(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.
[56 FR 64474, Dec. 10, 1991]
Certification of Cotton Producer Organization
Sec. 1205.341 Certification of cotton producer organization.
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
[[Page 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:
(a) Geographic territory within the State covered by the
organization's active membership;
(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;
(c) The extent to which the cotton producer membership of such
organization is represented in setting the organization's policies;
(d) Evidence of stability and permanency of the organization;
(e) Sources from which the organization's operating funds are
derived;
(f) Functions of the organization; and
(g) The organization's ability and willingness to further the aims
and objectives of the act.
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 Sec. 1205.341
will be certified by the Secretary, and the Secretary's determination as
to eligibility is final.
[31 FR 16758, Dec. 31, 1966. Redesignated and amended at 56 FR 64472,
64474, Dec. 10, 1991]
Sec. 1205.342 Certification of cotton importer organizations.
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:
(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;
(b) The extent to which the cotton importer membership of such
organization is represented in setting the organization's policies;
(c) Evidence of stability and permanency of the organization;
(d) Sources from which the organization's operating funds are
derived;
(e) Functions of the organization; and
(f) The organization's ability and willingness to further the aims
and objectives of the Act.
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 Sec. 1205.342 will be
certified by the Secretary, and the Secretary's determination as to
eligibility is final.
[56 FR 64475, Dec. 10, 1991]
Miscellaneous
Sec. 1205.343 Suspension and termination.
(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.
(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
[[Page 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.
[56 FR 64474, Dec. 10, 1991]
Sec. 1205.345 Proceedings after termination.
(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.
(b) The said trustees shall--
(1) Continue in such capacity until discharged by the Secretary;
(2) Carry out the obligations of the Cotton Board under any
contracts or agreements entered into by it pursuant to Sec. 1205.332
(c);
(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
(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 Sec. 1205.345.
(c) Any person to whom funds, property or claims have been
transferred or delivered pursuant to this Sec. 1205.345 shall be
subject to the same obligation imposed upon the Cotton Board and upon
the trustees.
(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.
[31 FR 16758, Dec. 31, 1966. Redesignated and amended at 56 FR 64472,
64475, Dec. 10, 1991]
Sec. 1205.346 Effect of termination or amendment.
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.
[31 FR 16758, Dec. 31, 1966. Redesignated at 56 FR 64472, Dec. 10, 1991]
Sec. 1205.347 Personal liability.
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.
[31 FR 16758, Dec. 31, 1966. Redesignated at 56 FR 64472, Dec. 10, 1991]
Sec. 1205.348 Separability.
If any provision of this subpart is declared invalid or the
applicability thereof to any person or circumstances
[[Page 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.
[31 FR 16758, Dec. 31, 1966. Redesignated at 56 FR 64472, Dec. 10, 1991]
Subpart_Members of Cotton Board
Sec. 1205.401 Definitions.
(a) Cotton Division. Cotton Division means the Cotton Division of
the Agricultural Marketing Service of the U.S. Department of
Agriculture.
(b) Director. Director means the Director of the Cotton Division.
[32 FR 1084, Jan. 31, 1967, as amended at 41 FR 37092, Sept. 2, 1976]
Sec. 1205.402 Determination of Cotton Board membership.
(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 Sec. 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.
(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 Sec. 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.
(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.
(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.
(e) Each year the Director shall:
(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
(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 Sec. 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.
[56 FR 65980, Dec. 20, 1991]
Sec. 1205.403 Nomination procedure.
(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 Sec. 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
[[Page 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.
(b) Each caucus will be conducted as follows:
(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;
(2) The representatives in attendance from the certified
organizations will then select a chairperson and secretary;
(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 Sec. Sec. 1205.322, 1205.324, and 1205.402.
[56 FR 65981, Dec. 20, 1991]
Subpart_Cotton Board Rules and Regulations
Source: 42 FR 35974, July 13, 1977, unless otherwise noted.
Definitions
Sec. 1205.500 Terms defined.
As used throughout this subpart, unless the context otherwise
requires, the following terms shall mean:
(a) ASCS means the Agricultural Stabilization and Conservation
Service of the U.S. Department of Agriculture.
(b) Cotton Board means the administrative body established pursuant
to the Cotton Research and Promotion Order.
(c) CCC means the Commodity Credit Corporation.
(d) Current value of Cotton 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.
(e) Form A means Cotton Producer's Note, Form CCC Cotton A.
(f) Gin code number means the identification number assigned to each
cotton gin by the Cotton Division, Agricultural Marketing Service, U.S.
Department of Agriculture.
(g) Handle means to harvest, gin, warehouse, compress, purchase,
market, transport, or otherwise acquire ownership or control of cotton.
(h) Handler means any person who handles cotton, including CCC.
(i) Marketing means any sale of cotton, or the pledging of cotton to
CCC as collateral for a price support loan.
(j) Marketing year means a consecutive 12-month period ending on
July 31.
(k) Person means any individual, partnership, corporation,
association, or any other entity, whether governmental or private.
(l) Producer means any person who owns or shares in a cotton crop
(or in the proceeds thereof) as landowner, landlord, tenant, or
sharecropper.
(m) Secretary 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.
(n) Loan deficiency payment means any payment on Upland cotton made
by the Commodity Credit Corporation to a producer in accordance with 7
CFR 713.55.
[[Page 32]]
(o) Importer means any person who enters, or withdraws from
warehouse, cotton for consumption in the customs territory of the United
States and import means any such entry.
(p) Customs Service means the United States Customs Service of the
United States Department of Treasury.
(q) Cotton means:
(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
(2) Imports of Upland cotton, including the Upland cotton content of
the products derived thereof. The term cotton shall not, however,
include:
(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
(ii) Industrial products as that term is defined by regulation.
(r) Industrial products 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.
[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]
General
Sec. 1205.505 Communication.
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.
[57 FR 29186, July 1, 1992]
Assessments
Sec. 1205.510 Levy of assessments.
(a) Producer assessments. 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.
(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:
(i) The current value of the cotton multiplied by the number of
pounds of lint cotton or;
(ii) The current value of the cotton converted to a fixed amount per
bale as reflected in the following assessment chart:
Assessment Chart \1\
------------------------------------------------------------------------
Supplemental
Assessment,
Current value (cents per pound) dollars per
bale
------------------------------------------------------------------------
.00 to 9.99............................................... 0.15
10.00 to 19.99............................................ .40
20.00 to 29.99............................................ .65
30.00 to 39.99............................................ .90
40.00 to 49.99............................................ 1.15
50.00 to 59.99............................................ 1.40
60.00 to 69.99............................................ 1.65
70.00 to 79.99............................................ 1.90
80.00 to 89.99............................................ 2.15
90.00 to 99.99............................................ 2.40
100.00 to 109.99.......................................... 2.65
110.00 to 119.99.......................................... 2.90
------------------------------------------------------------------------
\1\ Assessment is calculated on \5/10\ of 1 percent of the midpoint of
each 10[cent] increment, based on a 500 lb. bale and converted to a
fixed amount per bale.
(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.
[[Page 33]]
(b) Importer assessment. 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.
(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.
(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 $0.8267 per kilogram.
(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.
(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.
(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.
Import Assessment Table
[Raw Cotton Fiber]
------------------------------------------------------------------------
HTS No. Conv. fact. Cents/kg.
------------------------------------------------------------------------
5201000500 0 0.8267
5201001200 0 0.8267
5201001400 0 0.8267
5201001800 0 0.8267
5201002200 0 0.8267
5201002400 0 0.8267
5201002800 0 0.8267
5201003400 0 0.8267
5201003800 0 0.8267
5204110000 1.1111 0.9185
5204200000 1.1111 0.9185
5205111000 1.1111 0.9185
5205112000 1.1111 0.9185
5205121000 1.1111 0.9185
5205122000 1.1111 0.9185
5205131000 1.1111 0.9185
5205132000 1.1111 0.9185
5205141000 1.1111 0.9185
5205210020 1.1111 0.9185
5205210090 1.1111 0.9185
5205220020 1.1111 0.9185
5205220090 1.1111 0.9185
5205230020 1.1111 0.9185
5205230090 1.1111 0.9185
5205240020 1.1111 0.9185
5205240090 1.1111 0.9185
5205310000 1.1111 0.9185
5205320000 1.1111 0.9185
5205330000 1.1111 0.9185
5205340000 1.1111 0.9185
5205410020 1.1111 0.9185
5205410090 1.1111 0.9185
5205420020 1.1111 0.9185
5205420090 1.1111 0.9185
5205440020 1.1111 0.9185
5205440090 1.1111 0.9185
5206120000 0.5556 0.4593
5206130000 0.5556 0.4593
5206140000 0.5556 0.4593
5206220000 0.5556 0.4593
[[Page 34]]
5206230000 0.5556 0.4593
5206240000 0.5556 0.4593
5206310000 0.5556 0.4593
5207100000 1.1111 0.9185
5207900000 0.5556 0.4593
5208112020 1.1455 0.9470
5208112040 1.1455 0.9470
5208112090 1.1455 0.9470
5208114020 1.1455 0.9470
5208114060 1.1455 0.9470
5208114090 1.1455 0.9470
5208118090 1.1455 0.9470
5208124020 1.1455 0.9470
5208124040 1.1455 0.9470
5208124090 1.1455 0.9470
5208126020 1.1455 0.9470
5208126040 1.1455 0.9470
5208126060 1.1455 0.9470
5208126090 1.1455 0.9470
5208128020 1.1455 0.9470
5208128090 1.1455 0.9470
5208130000 1.1455 0.9470
5208192020 1.1455 0.9470
5208192090 1.1455 0.9470
5208194020 1.1455 0.9470
5208194090 1.1455 0.9470
5208196020 1.1455 0.9470
5208196090 1.1455 0.9470
5208224040 1.1455 0.9470
5208224090 1.1455 0.9470
5208226020 1.1455 0.9470
5208226060 1.1455 0.9470
5208228020 1.1455 0.9470
5208230000 1.1455 0.9470
5208292020 1.1455 0.9470
5208292090 1.1455 0.9470
5208294090 1.1455 0.9470
5208296090 1.1455 0.9470
5208298020 1.1455 0.9470
5208312000 1.1455 0.9470
5208321000 1.1455 0.9470
5208323020 1.1455 0.9470
5208323040 1.1455 0.9470
5208323090 1.1455 0.9470
5208324020 1.1455 0.9470
5208324040 1.1455 0.9470
5208325020 1.1455 0.9470
5208330000 1.1455 0.9470
5208392020 1.1455 0.9470
5208392090 1.1455 0.9470
5208394090 1.1455 0.9470
5208396090 1.1455 0.9470
5208398020 1.1455 0.9470
5208412000 1.1455 0.9470
5208416000 1.1455 0.9470
5208418000 1.1455 0.9470
5208421000 1.1455 0.9470
5208423000 1.1455 0.9470
5208424000 1.1455 0.9470
5208425000 1.1455 0.9470
5208430000 1.1455 0.9470
5208492000 1.1455 0.9470
5208494020 1.1455 0.9470
5208494090 1.1455 0.9470
5208496010 1.1455 0.9470
5208496090 1.1455 0.9470
5208498090 1.1455 0.9470
5208512000 1.1455 0.9470
5208516060 1.1455 0.9470
5208518090 1.1455 0.9470
5208523020 1.1455 0.9470
5208523045 1.1455 0.9470
5208523090 1.1455 0.9470
5208524020 1.1455 0.9470
5208524045 1.1455 0.9470
5208524065 1.1455 0.9470
5208525020 1.1455 0.9470
5208530000 1.1455 0.9470
5208592025 1.1455 0.9470
5208592095 1.1455 0.9470
5208594090 1.1455 0.9470
5208596090 1.1455 0.9470
5209110020 1.1455 0.9470
5209110035 1.1455 0.9470
5209110090 1.1455 0.9470
5209120020 1.1455 0.9470
5209120040 1.1455 0.9470
5209190020 1.1455 0.9470
5209190040 1.1455 0.9470
5209190060 1.1455 0.9470
5209190090 1.1455 0.9470
5209210090 1.1455 0.9470
5209220020 1.1455 0.9470
5209220040 1.1455 0.9470
5209290040 1.1455 0.9470
5209290090 1.1455 0.9470
5209313000 1.1455 0.9470
5209316020 1.1455 0.9470
5209316035 1.1455 0.9470
5209316050 1.1455 0.9470
5209316090 1.1455 0.9470
5209320020 1.1455 0.9470
5209320040 1.1455 0.9470
5209390020 1.1455 0.9470
5209390040 1.1455 0.9470
5209390060 1.1455 0.9470
5209390080 1.1455 0.9470
5209390090 1.1455 0.9470
5209413000 1.1455 0.9470
5209416020 1.1455 0.9470
5209416040 1.1455 0.9470
5209420020 1.0309 0.8522
5209420040 1.0309 0.8522
5209430030 1.1455 0.9470
5209430050 1.1455 0.9470
5209490020 1.1455 0.9470
5209490090 1.1455 0.9470
5209516035 1.1455 0.9470
5209516050 1.1455 0.9470
5209520020 1.1455 0.9470
5209590025 1.1455 0.9470
5209590040 1.1455 0.9470
5209590090 1.1455 0.9470
5210114020 0.6873 0.5682
5210114040 0.6873 0.5682
5210116020 0.6873 0.5682
5210116040 0.6873 0.5682
5210116060 0.6873 0.5682
5210118020 0.6873 0.5682
5210120000 0.6873 0.5682
5210192090 0.6873 0.5682
5210214040 0.6873 0.5682
5210216020 0.6873 0.5682
5210216060 0.6873 0.5682
5210218020 0.6873 0.5682
5210314020 0.6873 0.5682
5210314040 0.6873 0.5682
5210316020 0.6873 0.5682
5210318020 0.6873 0.5682
5210414000 0.6873 0.5682
5210416000 0.6873 0.5682
5210418000 0.6873 0.5682
[[Page 35]]
5210498090 0.6873 0.5682
5210514040 0.6873 0.5682
5210516020 0.6873 0.5682
5210516040 0.6873 0.5682
5210516060 0.6873 0.5682
5211110090 0.6873 0.5682
5211120020 0.6873 0.5682
5211190020 0.6873 0.5682
5211190060 0.6873 0.5682
5211210025 0.6873 0.5682
5211210035 0.4165 0.3443
5211210050 0.6873 0.5682
5211290090 0.6873 0.5682
5211320020 0.6873 0.5682
5211390040 0.6873 0.5682
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[[Page 36]]
6104622011 0.8806 0.7280
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[[Page 37]]
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6211111020 0.1273 0.1052
[[Page 38]]
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------------------------------------------------------------------------
(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.
(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.
(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.
(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.
(ii) The request for exemption should include:
(A) the name, address, and importer identification number for the
importer;
[[Page 39]]
(B) the HTS classification of the imported product;
(C) weight of the product for which the exemption is sought;
(D) estimated date of entry;
(E) commercial invoices of other such documentation indicating the
origin or production or type of the cotton fiber used to produce the
imported product;
(F) manufacture's description of the imported product.
(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.
(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.
(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.
[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; 68 FR 27900, May 22,
2003]
Sec. 1205.511 Payment and collection.
(a) The $1 per bale assessment shall be paid by:
(1) The producer of the cotton to the collecting handler designated
in Sec. 1205.512, and
(2) The importer of cotton to the Customs Service as provided in
Sec. 1205.514.
(b) The supplemental assessment shall be paid by:
(1) The producer of the cotton to the collecting handler designated
in Sec. 1205.513, and
(2) The importer of cotton to the Customs Service as described in
Sec. 1205.515.
(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.
(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 Sec. Sec. 1205.512,
1205.513 and 1205.516.
[57 FR 29190, July 1, 1992]
Sec. 1205.512 Collecting handlers and time of collection of $1 per bale
assessment.
Collecting handlers and the time of collecting the $1 per bale
assessment shall be as follows:
(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.
(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.
(c) For bales of cotton tendered to CCC for Form A loan, except
bales tendered pursuant to paragraph (b) of this section:
[[Page 40]]
(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 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.
(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.
(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.
(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.
(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.
(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.
(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.
[42 FR 35974, July 31, 1977, as amended at 50 FR 10932, Mar. 19, 1985;
57 FR 29190, July 1, 1992]
Sec. 1205.513 Collecting handlers and time of collection of the supplemental
assessment.
Collecting handlers and the time of collecting the supplemental
assessment shall be as follows:
(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.
(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,
[[Page 41]]
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 final settlement is made on the cotton. The handler shall
give the producer a receipt each time a supplemental assessment is
collected.
(c) For bales of cotton tendered to CCC for Form A loan, except
bales tendered pursuant to paragraph (b) of this section:
(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.
(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.
(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.
(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.
(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.
(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.
(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.
(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
[[Page 42]]
current value of cotton as reflected on the export settlement document.
(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 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.
(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.
[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]
Sec. 1205.514 Customs Service and the Collection of the $1 per bale
assessment.
The Collection of the $1 per bale assessment by the Customs Service
shall be as follows:
(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 Sec.
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.
(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.
[57 FR 29191, July 1, 1992]
Sec. 1205.515 Customs Service and the collection of the supplemental
assessment.
The collection of the supplemental assessment by the Customs Service
shall be as follows:
(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 Sec. 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.
(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.
[57 FR 29191, July 1, 1992]
Sec. 1205.516 Reports and remittance to the Cotton Board.
(a) Handler reports and remittances. Each collecting handler shall
transmit assessments to the Cotton Board as follows:
(1) Reporting periods. 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.
(2) Reports. 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.
(i) Collecting handler report. 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:
(A) Date of report;
[[Page 43]]
(B) Reporting period covered by report;
(C) Gin code number;
(D) Name and address of handler;
(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;
(F) Date of last report remitting assessments to the Cotton Board.
(ii) No cotton purchased report. 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.
(3) Remittances. 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.
(4) Interest and late payment charges. (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).
(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.
(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.
(b) Importer reports and remittance. 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:
(1) The importer's name and address;
(2) The quantity of cotton and cotton products imported;
(3) The amount of the assessment paid on imported cotton and cotton
products;
(4) The amount of imported cotton and cotton products on which the
assessment was not paid to the Customs Service.
[57 FR 29190, July 1, 1992]
Sec. 1205.517 Failure to report and remit.
(a) Any collecting handler who fails to submit reports and
remittances according to reporting periods and time schedules required
in Sec. 1205.516 shall be subject to appropriate action by the Cotton
Board which may include one or more of the following actions:
(1) Audits of the collecting handler's books and records to
determine the amount owed the Cotton Board;
(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;
(3) Referral to the Secretary for appropriate enforcement action;
(4) Publication of a collecting handler's name in accordance with
the following provisions:
[[Page 44]]
(i) The name of any collecting handler will be subject to
publication if the collecting handler:
(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
(B) is required by the Cotton Board to establish an escrow account
for depositing assessments, in accordance with paragraph (a)(2) of this
section, and does not comply with the deposit procedures established by
the Cotton Board with approval of the Secretary.
(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.
(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.
(b) Any importer who fails to submit reports to the Cotton Board
pursuant to request made according to Sec. 1205.516 or assessments to
the Customs Service, shall be subject to one or more of the following
actions:
(1) Audits of the importer's books and records to determine the
amount owed the Cotton Board.
(2) A deduction for the amount of any unpaid assessment by the
Customs Service from the importers surety bond.
(3) Referral to the Secretary for appropriate enforcement action.
[57 FR 29191, July 1, 1992]
Sec. 1205.518 Receipts for payment of assessments.
Each collecting handler who is required by Sec. 1205.512 and Sec.
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:
(a) Name and address of collecting handler.
(b) Gin code number of gin at which cotton was ginned.
(c) Name and address of producer who paid assessment.
(d) Number of bales on which assessment was paid.
(e) Gross price per pound received by the producer.
(f) Total assessments paid by the producer.
(g) Date on which assessment was paid by producer.
(Approved by the Office of Management and Budget under control number
0581-0115)
[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]
Sec. 1205.519 Organic exemption.
(a) A producer who operates under an approved National Organic
Program (NOP) (7 CFR part 205) system plan; produces only products that
are eligible to be labeled as 100 percent organic under the NOP, except
as provided for in paragraph (h) of this section; and is not a split
operation shall be exempt from the payment of assessments.
(b) To apply for an exemption under this section, an eligible cotton
producer shall submit a request for exemption to the Board--on a form
provided by the Board--at any time initially and annually thereafter on
or before the beginning of the crop year as long as the producer
continues to be eligible for the exemption.
(c) The request shall include the following: The producer's name and
address, a copy of the organic farm or organic handling operation
certificate provided by a USDA-accredited certifying agent as defined in
section 2103 of the Organic Foods Production Act of 1990 (7 U.S.C.
6502), a signed certification that the applicant meets all of the
requirements specified in paragraph (a) of this section for an
assessment exemption, and such other information as may be required by
the Board and with the approval of the Secretary.
[[Page 45]]
(d) If the producer complies with the requirements of this section,
the Board will grant the exemption and issue a Certificate of Exemption
to the producer. For exemption requests received on or before August 15,
2005, the Board will have 60 days to approve the exemption request;
after August 15, 2005, the Board will have 30 days to approve the
exemption request. If the application is disapproved, the Board will
notify the applicant of the reason(s) for disapproval within the same
timeframe.
(e) The producer shall provide a copy of the Certificate of
Exemption to each handler to whom the producer sells cotton. The handler
shall maintain records showing the exempt producer's name and address
and the exemption number assigned by the Board.
(f) An importer who imports only products that are eligible to be
labeled as 100 percent organic under the NOP (7 CFR part 205) and who is
not a split operation shall be exempt from the payment of assessments.
That importer may submit documentation to the Board and request an
exemption from assessment on 100 percent organic cotton and 100 percent
organic cotton products--on a form provided by the Board--at any time
initially and annually thereafter as long as the importer continues to
be eligible for the exemption. This documentation shall include the same
information required of producers in paragraph (c) of this section. If
the importer complies with the requirements of this section, the Board
will grant the exemption and issue a Certificate of Exemption to the
importer. The Board will also issue the importer a 9-digit alphanumeric
Harmonized Tariff Schedule (HTS) classification valid for 1 year from
the date of issue. This HTS classification should be entered by the
importer on the Customs entry documentation. Any line item entry of 100
percent organic cotton and cotton products bearing this HTS
classification assigned by the Board will not be subject to assessments.
(g) The exemption will apply immediately following the issuance of
the Certificate of Exemption.
(h) Agricultural commodities produced and marketed under an organic
system plan, as described in 7 CFR 205.201, but not sold, labeled, or
represented as organic, shall not disqualify a producer from exemption
under this section, except that producers who produce both organic and
non-organic agricultural commodities as a result of split operations
shall not qualify for exemption. Reasons for conventional sales include
lack of demand for organic products, isolated use of antibiotics for
humane purposes, chemical or pesticide use as the result of State or
emergency spray programs, and crops from a buffer area as described in 7
CFR part 205, provided all other criteria are met.
[70 FR 2754, Jan. 14, 2005]
Reimbursements
Sec. 1205.520 Procedure for obtaining reimbursement.
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.
(a) Application form. 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.
(b) Submission of reimbursement application to Cotton Board. 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:
(1) The importer's name, address, phone number and Customs Service
identification number;
(2) Weight of the cotton in each HTS category for which the
reimbursement is requested;
(3) Subtotal amounts to be reimbursed for each HTS number and grand
total to be reimbursed;
[[Page 46]]
(4) Date or inclusive dates on which the assessments were paid;
(5) The name of the port of entry; and
(6) Certification by the importer that the cotton was grown in the
U.S. or is other than Upland cotton.
(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.
(d) Proof of payment of the assessment on U.S. produced or other
than Upland cotton. 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.
[57 FR 29192, July 1, 1992, as amended at 62 FR 22879, Apr. 28, 1997]
Warehouse Receipts
Sec. 1205.525 Entry of gin code number.
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.
[57 FR 29192, July 1, 1992]
Reports and Records
Sec. 1205.530 Gin reports and reporting schedule.
(a) Gin reports. 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:
(1) End-of-season report. 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.
(2) Certificate in Lieu of End-of-Season Report. 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 Sec. 1205.516, a certification to that effect may be
made to the Cotton Board in lieu of an end-of-season report.
(b) Reporting schedule. The schedule for submitting gin reports is
as follows:
(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.
(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.
(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.
[42 FR 35974, July 13, 1977, as amended at 57 FR 29192, July 1, 1992]
Sec. 1205.531 Records.
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.
[57 FR 29192, July 1, 1992]
Sec. 1205.532 Retention period for reports and records.
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:
(a) One copy of the report made to the Cotton Board; and
(b) Such books and records as are necessary to verify such reports.
[57 FR 29192, July 1, 1992]
[[Page 47]]
Sec. 1205.533 Availability of reports and records.
Each handler and importer required to make reports pursuant to this
subpart shall make available for inspection by the Cotton Board,
including its designated employees, and the Secretary any reports,
books, or records required under this subpart.
[57 FR 29192, July 1, 1992]
Confidential Information
Sec. 1205.540 Confidential books, records, and reports.
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 Sec. 1205.340.
[57 FR 29192, July 1, 1992]
Sec. 1205.541 OMB control numbers.
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.
[57 FR 29192, July 1, 1992]
Subpart--Fiscal Period [Reserved]
PART 1206_MANGO PROMOTION, RESEARCH, AND INFORMATION--Table of Contents
Subpart A Mango Promotion, Research, and Information Order Definitions
Sec.
1206.1 Act.
1206.2 Board.
1206.3 Conflict of interest.
1206.4 Customs.
1206.5 Department.
1206.6 First handler.
1206.7 Fiscal period.
1206.8 Foreign producer.
1206.9 Importer.
1206.10 Information.
1206.11 Mangos.
1206.12 Market or marketing.
1206.13 Order.
1206.14 Part.
1206.15 Person.
1206.16 Producer.
1206.17 Promotion.
1206.18 Research.
1206.19 Retailer.
1206.20 Secretary.
1206.21 Suspend.
1206.22 Terminate.
1206.23 United States.
1206.24 Wholesaler.
National Mango Promotion Board
1206.30 Establishment and membership.
1206.31 Nominations and appointments.
1206.32 Term of office.
1206.33 Vacancies.
1206.34 Procedure.
1206.35 Compensation and reimbursement.
1206.36 Powers and duties.
1206.37 Prohibited activities.
Expenses and Assessments
1206.40 Budget and expenses.
1206.41 Financial statements.
1206.42 Assessments.
1206.43 Exemptions.
Promotion, Research, and Information
1206.50 Programs, plans, and projects.
1206.51 Independent evaluation.
1206.52 Patents, copyrights, trademarks, information, publications, and
product formulations.
Reports, Books, and Records
1206.60 Reports.
1206.61 Books and records.
1206.62 Confidential treatment.
Miscellaneous
1206.70 Right of the Secretary.
1206.71 Referenda.
1206.72 Suspension and termination.
1206.73 Proceedings after termination.
1206.74 Effect of termination or amendment.
1206.75 Personal liability.
1206.76 Separability.
1206.77 Amendments.
1206.78 OMB control number.
Subpart B_Referendum Procedures.
1206.100 General.
1206.101 Definitions.
1206.102 Voting.
1206.103 Instructions.
1206.104 Subagents.
1206.105 Ballots.
1206.106 Referendum report.
1206.107 Confidential information.
1206.108 OMB control number.
Subpart C_Rules and Regulations
1206.200 Terms defined.
1206.201 Definitons.
1206.202 Exemption for organic mangos.
Authority: 7 U.S.C. 7411-7425 and 7 U.S.C. 7401.
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Source: 68 FR 58554, Oct. 9, 2003, unless otherwise noted.
Subpart A_Mango Promotion, Research, and Information Order Definitions
Source: 69 FR 59122, Oct. 4, 2004, unless otherwise noted.
Sec. 1206.1 Act.
Act means the Commodity Promotion, Research, and Information Act of
1996 (7 U.S.C. 7411-7425; Public Law 104-127; 110 Stat. 1029), or any
amendments thereto.
Sec. 1206.2 Board.
Board or National Mango Promotion Board means the administrative
body established pursuant to Sec. 1206.30, or such other name as
recommended by the Board and approved by the Department.
Sec. 1206.3 Conflict of interest.
Conflict of interest 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.
Sec. 1206.4 Customs.
Customs means the Customs and Border Protection of the U.S.
Department of Homeland Security.
Sec. 1206.5 Department.
Department means the U.S. Department of Agriculture 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.
Sec. 1206.6 First handler.
First handler means any person, (excluding a common or contract
carrier), receiving 500,000 or more pounds of mangos from producers in a
calendar year and who as owner, agent, or otherwise ships or causes
mangos to be shipped as specified in this Order. This definition
includes those engaged in the business of buying, selling and/or
offering for sale; receiving; packing; grading; marketing; or
distributing mangos in commercial quantities. The term first handler
includes a producer who handles or markets mangos of the producer's own
production.
Sec. 1206.7 Fiscal period.
Fiscal period means a calendar year from January 1 through December
31, or such other period as recommended by the Board and approved by the
Department.
Sec. 1206.8 Foreign producer.
Foreign producer means any person:
(1) Who is engaged in the production and sale of mangos outside of
the United States and who owns, or shares the ownership and risk of loss
of the crop for sale in the U.S. market or
(2) Who is engaged, outside of the United States, in the business of
producing, or causing to be produced, mangos beyond the person's own
family use and having value at first point of sale.
Sec. 1206.9 Importer.
Importer means any person importing 500,000 or more pounds of mangos
into the United States in a calendar year as a principal or as an agent,
broker, or consignee of any person who produces or handles mangos
outside of the United States for sale in the United States, and who is
listed as the importer of record for such mangos.
Sec. 1206.10 Information.
Information means information and programs that are designed to
develop new markets, marketing strategies, increase market efficiency,
and activities that are designed to enhance the image of mangos in the
United States. These include:
(a) Consumer information, 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
mangos; and
(b) Industry information, which means information and programs that
will lead to the development of new markets, new marketing strategies,
or
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increased efficiency for the mango industry, and activities to enhance
the image of the mango industry.
Sec. 1206.11 Mangos.
Mangos means all fresh fruit of Mangifera indica L. of the family
Anacardiaceae.
Sec. 1206.12 Market or marketing.
Marketing means the sale or other disposition of mangos in the U.S.
domestic market. To market means to sell or otherwise dispose of mangos
in interstate or intrastate channels of commerce.
Sec. 1206.13 Order.
Order means an order issued by the Department under section 514 of
the Act that provides for a program of generic promotion, research, and
information regarding agricultural commodities authorized under the Act.
Sec. 1206.14 Part.
Part means part 1206 which includes the Mango Promotion, Research,
and Information Order and all rules, regulations, and supplemental
orders issued pursuant to the Act and the Order.
Sec. 1206.15 Person.
Person means any individual, group of individuals, partnership,
corporation, association, cooperative, or any other legal entity.
Sec. 1206.16 Producer.
Producer means any person who is engaged in the production and sale
of mangos in the United States and who owns, or shares the ownership and
risk of loss of, the crop or a person who is engaged in the business of
producing, or causing to be produced, mangos beyond the person's own
family use and having value at first point of sale.
Sec. 1206.17 Promotion.
Promotion means any action taken to present a favorable image of
mangos to the general public and the food industry for the purpose of
improving the competitive position of mangos and stimulating the sale of
mangos in the United States. This includes paid advertising and public
relations.
Sec. 1206.18 Research.
Research means any type of test, study, or analysis designed to
advance the image, desirability, use, marketability, production, product
development, or quality of mangos, including research relating to
nutritional value, cost of production, new product development, varietal
development, nutritional value and benefits, and marketing of mangos.
Sec. 1206.19 Retailer.
Retailer means a person engaged in the business of selling mangos
only to consumers.
Sec. 1206.20 Secretary.
Secretary means the Secretary of Agriculture of the United States.
Sec. 1206.21 Suspend.
Suspend 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.
Sec. 1206.22 Terminate.
Terminate means to issue a rule under section 553 of title 5,
U.S.C., to cancel permanently the operation of an order or part thereof
beginning on a certain date specified in the rule.
Sec. 1206.23 United States.
United States or U.S. means collectively the 50 states, the District
of Columbia, the Commonwealth of Puerto Rico, and the territories and
possessions of the United States.
Sec. 1206.24 Wholesaler.
Wholesaler means any person engaged in the purchase, assembly,
transportation, storage, and distribution of mangos for sale to other
wholesalers, retailers, and foodservice firms.
National Mango Promotion Board
Sec. 1206.30 Establishment and membership.
(a) Establishment of the National Mango Promotion Board. There is
hereby established a National Mango Promotion Board composed of eight
importers, one first handler, two domestic
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producers, seven foreign producers, and two non-voting wholesalers and/
or retailers of mangos in the United States. The chairperson shall
reside in the United States and the Board office shall also be located
in the United States.
(b) Importer districts. The importer seats shall be allocated based
on the volume of mangos imported into the Customs Districts identified
by their name and Code Number as defined in the Harmonized Tariff
Schedule of the United States. The initial allocation will be two seats
for District I, three seats for District II, two seats for District III,
and one seat for District IV.
(1) District I includes the Customs Districts of Portland, ME (01),
St. Albans, VT (02), Boston, MA (04), Providence, RI (05), Ogdensburg,
NY (07), Buffalo, NY (09), New York City, NY (10), Philadelphia, PA
(11), Baltimore, MD (13), Norfolk, VA (14), Charlotte, NC (15),
Charleston, SC (16), Savannah, GA (17), Tampa, FL (18), San Juan, PR
(49), Virgin Islands of the United States (51), Miami, FL (52) and
Washington, DC (54).
(2) District II includes the Customs Districts of Mobile, AL (19),
New Orleans, LA (20), Port Arthur, TX (21), Laredo, TX (23),
Minneapolis, MN (35), Duluth, MN (36), Milwaukee, WI (37), Detroit, MI
(38), Chicago, IL (39), Cleveland, OH (41), St. Louis, MO (45), Houston,
TX (53), and Dallas-Fort Worth, TX (55).
(3) District III includes the Customs Districts of El Paso, TX (24),
Nogales, AZ (26), Great Falls, MT (33), and Pembina, ND (34).
(4) District IV includes the Customs Districts of San Diego, CA
(25), Los Angeles, CA (27), San Francisco, CA (28), Columbia-Snake, OR
(29), Seattle, WA (30), Anchorage, AK (31), and Honolulu, HI (32).
(c) Adjustment of membership. At least once every five years, the
Board will review the geographical distribution of production of mangos
in the United States, the geographical distribution of the importation
of mangos into the United States, the quantity of mangos produced in the
United States, and the quantity of mangos imported into the United
States. The review will be based on Board assessment records and
statistics from the Department. If warranted, the Board will recommend
to the Department that membership on the Board be altered to reflect any
changes in geographical distribution of domestic mango production and
importation and the quantity of domestic production and imports. To
ensure equitable representation, additional first handlers may be added
to the Board to reflect increases in domestic production.
Sec. 1206.31 Nominations and appointments.
(a) Voting for first handler, importer, and domestic producer
members will be made by mail ballot.
(b) There shall be two nominees for each position on the Board.
(c) Nominations for the initial Board will be handled by the
Department. Subsequent nominations will be handled by the Board's staff.
(d) Nominees to fill the first handler member position on the Board
shall be solicited from all known first handlers. The nominees shall be
placed on a ballot which will be sent to all first handlers for a vote.
The nominee receiving the highest number of votes and the nominee
receiving the second highest number of votes shall be submitted to the
Department as the first handlers' first and second choice nominees.
(e) Nominees to fill the importer positions on the Board shall be
solicited from all known importers of mangos. The members from each
district shall select the nominees for two positions on the Board. Two
nominees shall be submitted for each position. The nominees shall be
placed on a ballot which will be sent to importers in the districts for
a vote. For each position, the nominee receiving the highest number of
votes and the nominee receiving the second highest number of votes shall
be submitted to the Department as the importers' first and second choice
nominees.
(f) Nominees to fill the domestic producer member positions on the
Board shall be solicited from all known domestic producers. The nominees
shall be placed on a ballot which will be sent to all domestic producers
for a vote. The nominee receiving the highest
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number of votes and the nominee receiving the second highest number of
votes shall be submitted to the Department as the producers' first and
second choice nominees.
(g) Nominees to fill the foreign producer member positions on the
Board shall be solicited from organizations of foreign mango producers.
Each organization shall submit two nominees for each position, and the
nominees shall be representative of the major countries exporting mangos
to the United States.
(h) The Board will nominate the wholesaler and/or retailer members.
(i) From the nominations, the Secretary shall select the members of
the Board.
Sec. 1206.32 Term of office.
The term of office for first handler, importer, domestic producer,
and foreign producer members of the Board will be three years, and these
members may serve a maximum of two consecutive three-year terms. The
term of office for wholesaler/retailer members shall be one year, and
these members may serve a maximum of three consecutive one-year terms.
When the Board is first established, the first handler, two importers,
one domestic producer, and two foreign producers will be assigned
initial terms of four years; three importers, one domestic producer, and
two foreign producers will be assigned initial terms of three years; and
three importers and three foreign producers will be assigned initial
terms of two years. Thereafter, each of these positions will carry a
full three-year term. Members serving initial terms of two or four years
will be eligible to serve a second term of three years. Each term of
office will end on December 31, with new terms of office beginning on
January 1.
Sec. 1206.33 Vacancies.
(a) In the event that 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.
(b) If a member of the Board consistently refuses to perform the
duties of a Board member, or if a member of the Board engages in acts of
dishonesty or willful misconduct, the Board may recommend to the
Department that the member be removed from office. If the Department
finds the recommendation of the Board shows adequate cause, the
Department shall remove such member from office.
(c) Should any member position become vacant, successors for the
unexpired term of the member shall be appointed in the manner specified
in Sec. 1206.31, except that nomination and replacement shall not be
required if the unexpired term is less than six months.
Sec. 1206.34 Procedure.
(a) At a Board meeting, it will be considered a quorum when at least
ten voting members are present.
(b) At the start of each fiscal period, the Board will select a
chairperson and vice chairperson who will conduct meetings throughout
that period.
(c) All Board members will be notified at least 30 days in advance
of all Board and committee meetings unless an emergency meeting is
declared.
(d) Each voting 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.
(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.
Committees may consist of individuals other than Board members, and such
individuals may vote in committee meetings. Committee members shall
serve without compensation but shall be reimbursed for reasonable travel
expenses, as approved by the Board.
(f) 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 any other means of communication. In that event, all
members must be notified and provided the opportunity to vote. Any
action so
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taken shall have the same force and effect as though such action had
been taken at a properly convened meeting of the Board. All telephone
votes shall be confirmed promptly in writing. All votes shall be
recorded in Board minutes.
(g) There shall be no voting by proxy.
(h) The chairperson shall be a voting member and shall reside in the
U.S.
(i) 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 Department.
Sec. 1206.35 Compensation and reimbursement.
The members of the Board 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.
Sec. 1206.36 Powers and duties.
The Board shall have the following powers and duties:
(a) To administer the Order in accordance with its terms and
conditions and to collect assessments;
(b) To develop and recommend to the Department 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;
(c) To meet, organize, and select from among the members of the
Board a chairperson, other officers, committees, and subcommittees, as
the Board determines appropriate;
(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;
(e) To develop programs, plans, and projects, and enter into
contracts or agreements, which must be approved by the Department 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
Department considers relevant. Furthermore, any contract or agreement
shall provide that:
(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
shall show the estimated cost to be incurred for such program, plan, or
project;
(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 Department or the Board may require;
(3) The Department may audit the records of the contracting or
agreeing party periodically; and
(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.
(f) To prepare and submit for approval of the Department calendar
year budgets in accordance with Sec. 1206.40;
(g) To maintain such records and books and prepare and submit such
reports and records from time to time to the Department as the
Department 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;
(h) To cause its books to be audited by a competent auditor at the
end of each calendar year and at such other times as the Department may
request, and to submit a report of the audit directly to the Department;
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(i) To give the Department the same notice of Board and committee
meetings as is given to members in order that the Department's
representative(s) may attend such meetings.
(j) To act as intermediary between the Department and any first
handler or importer;
(k) To furnish to the Department any information or records that the
Department may request;
(l) To receive, investigate, and report to the Department complaints
of violations of the Order;
(m) To recommend to the Department such amendments to the Order as
the Board considers appropriate; and
(n) To work to achieve an effective, continuous, and coordinated
program of promotion, research, consumer information, evaluation, and
industry information designed to strengthen the mango industry's
position in the U.S. domestic market; maintain and expand existing
markets and uses for mangos; and to carry out programs, plans, and
projects designed to provide maximum benefits to the mango industry.
Sec. 1206.37 Prohibited activities.
The Board may not engage in, and shall prohibit the employees and
agents of the Board from engaging in:
(a) Any action that is a conflict of interest; and
(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, by local, state, national, and foreign governments,
other than recommending to the Department amendments to the Order.
Expenses and Assessments
Sec. 1206.40 Budget and expenses.
(a) At least 60 days prior to the beginning of each calendar year,
and as may be necessary thereafter, the Board shall prepare and submit
to the Department a budget for the calendar year covering its
anticipated expenses and disbursements in administering this subpart.
Each such budget shall include:
(1) A statement of objectives and strategy for each program, plan,
or project;
(2) A summary of anticipated revenue, with comparative data or at
least one preceding year (except for the initial budget);
(3) A summary of proposed expenditures for each program, plan, or
project; and
(4) Staff and administrative expense breakdowns, with comparative
data for at least one preceding year (except for the initial budget).
(b) Each budget shall provide adequate funds to defray its proposed
expenditures and to provide for a reserve as set forth in this subpart.
(c) Subject to this section, any amendment or addition to an
approved budget must be approved by the Department, 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
Department.
(d) The Board is authorized to incur such expenses, including
provision for a reserve, as the Department finds 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.
(e) With approval of the Department, 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.
(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. Voluntary contributions shall be free from any encumbrance
by the donor, and the Board shall retain complete control of their use.
(g) The Board shall reimburse the Department for all expenses
incurred by the Department in the implementation, administration, and
supervision of the Order, including all referendum costs in connection
with the Order.
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(h) The Board may not expend for administration, maintenance, and
functioning of the Board in any calendar year an amount that exceeds 15
percent of the assessments and other income received by the Board for
that calendar year. Reimbursements to the Department required under
paragraph (g) of this section, are excluded from this limitation on
spending.
(i) The Board may establish an operating monetary reserve and may
carry over to subsequent fiscal periods excess funds in any reserve so
established: Provided that the funds in the reserve do not exceed one
fiscal period's budget. Subject to approval by the Department, such
reserve funds may be used to defray any expenses authorized under this
part.
Sec. 1206.41 Financial statements.
(a) As requested by the Department, the Board shall prepare and
submit financial statements to the Department 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.
(b) Each financial statement shall be submitted to the Department
within 30 days after the end of the time period to which it applies.
(c) The Board shall submit annually to the Department an annual
financial statement within 90 days after the end of the calendar year to
which it applies.
Sec. 1206.42 Assessments.
(a) The funds to cover the Board's expenses shall be paid from
assessments on first handlers and importers, donations from any person
not subject to assessments under this Order, and other funds available
to the Board and subject to the limitations contained therein.
(b) The assessment rate shall be \1/2\ cent per pound on all mangos.
The assessment rate will be reviewed and may be modified by the Board
with the approval of the Department, after the first referendum is
conducted as stated in Sec. 1206.71(b). The Department will amend this
section if the assessment rate is modified.
(c) Domestic mangos. First handlers of domestic mangos are required
to pay assessments on all mangos handled for the U.S. market. This
includes mangos of the first handler's own production.
(d) Imported mangos. Each importer of mangos shall pay an assessment
to the Board through Customs on mangos imported for marketing in the
United States.
(1) The assessment rate for imported mangos shall be the same or
equivalent to the rate for mangos produced in the United States.
(2) The import assessment shall be uniformly applied to imported
mangos that are identified by the numbers 0804.50.4040 and 0804.50.6040
in the Harmonized Tariff Schedule of the United States.
(3) The assessments due on imported mangos shall be paid when they
enter or are withdrawn for consumption in the United States.
(e) Each person responsible for remitting assessments under
paragraph (c) of this section shall remit the amounts due to the Board's
office on a monthly basis no later than the fifteenth day of the month
following the month in which the mangos were marketed, in such manner as
prescribed by the Board.
(f) A late payment charge shall be imposed on any person failing to
remit to the Board the total amount for which the person is liable by
the payment due date established under this section. The amount of the
late payment charge shall be prescribed by the Department.
(g) 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 by the Department.
(h) Persons failing to remit total assessments due in a timely
manner may also be subject to actions under federal debt collection
procedures.
(i) The Board may authorize other organizations to collect
assessments on its behalf with the approval of the Department.
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Sec. 1206.43 Exemptions.
(a) Any first handler or importer of less than 500,000 pounds of
mangos per calendar year may claim an exemption from the assessments
required under Sec. 1206.42. Mangos produced domestically and exported
from the United States may annually claim an exemption from the
assessments required under Sec. 1206.42.
(b) A first handler or importer desiring an exemption shall apply to
the Board, on a form provided by the Board, for a certificate of
exemption. A first handler shall certify that the first handler will
handle less than 500,000 pounds of domestic mangos for the fiscal period
for which the exemption is claimed. An importer shall certify that the
importer will import less than 500,000 pounds of mangos during the
fiscal period for which the exemption is claimed.
(c) 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 who is
eligible to receive one. It is the responsibility of these persons to
retain a copy of the certificate of exemption.
(d) Importers who receive a certificate of exemption shall be
eligible for reimbursement of assessments collected by Customs. These
importers shall apply to the Board for reimbursement of any assessments
paid. No interest will be paid on the assessments collected by Customs.
Requests for reimbursement shall be submitted to the Board within 90
days of the last day of the calendar year the mangos were actually
imported.
(e) Any person who desires an exemption from assessments for a
subsequent calendar year shall reapply to the Board, on a form provided
by the Board, for a certificate of exemption.
(f) The Board may require persons receiving an exemption from
assessments to provide to the Board reports on the disposition of exempt
mangos and, in the case of importers, proof of payment of assessments.
Promotion, Research, and Information
Sec. 1206.50 Programs, plans, and projects.
(a) The Board shall receive and evaluate, or on its own initiative
develop, and submit to the Department for approval any program, plan, or
project authorized under this subpart. Such programs, plans, or projects
shall provide for:
(1) The establishment, issuance, effectuation, and administration of
appropriate programs for promotion, research, and information, including
producer and consumer information, with respect to mangos; and
(2) The establishment and conduct of research with respect to: the
use, nutritional value and benefits, sale, distribution, and marketing
of mangos in the United States; the creation of new products thereof, to
the end that the marketing and use of mangos in the United States may be
encouraged, expanded, improved, or made more acceptable; and to advance
the image, desirability, or quality of mangos in the United States.
(b) No program, plan, or project shall be implemented prior to its
approval by the Department. Once a program, plan, or project is so
approved, the Board shall take appropriate steps to implement it.
(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
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 information, then the Board shall terminate such program,
plan, or project.
(d) No program, plan, or project including advertising shall be
false or misleading or disparaging to another agricultural commodity.
Mangos of all origins shall be treated equally.
Sec. 1206.51 Independent evaluation.
The Board shall, not less often than every five years, authorize and
fund, from funds otherwise available to the Board, an independent
evaluation of
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the effectiveness of the Order and other programs conducted by the Board
pursuant to the Act. The Board shall submit to the Department, and make
available to the public, the results of each periodic independent
evaluation conducted under this paragraph.
Sec. 1206.52 Patents, copyrights, trademarks, information, publications, and
product formulations.
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 Department Upon termination of this
subpart, Sec. 1206.73 shall apply to determine disposition of all such
property.
Reports, Books, and Records
Sec. 1206.60 Reports.
(a) Each first handler will be required to provide to the Board
periodically such information as may be required by the Board, with the
approval of the Department, which may include but not be limited to the
following:
(1) Number of pounds of domestic mangos handled;
(2) Number of pounds of domestic mangos on which an assessment was
paid;
(3) Name and address of the producers from whom the first handler
has received mangos;
(4) Date that assessment payments were made on each pound of
domestic mangos handled;
(5) Number of pounds of domestic mangos exported;
(6) The first handler's tax identification number;
(b) Each importer may be required to provide to the Board
periodically such information as may be required by the Board, with the
approval of the Department, which may include but not be limited to the
following:
(1) Number of pounds of mangos imported;
(2) Number of pounds of mangos on which an assessment was paid;
(3) Name, address, and tax identification number of the importer;
and
(4) Date that assessment payments were made on each pound imported.
Sec. 1206.61 Books and records.
Each first handler and importer shall maintain and make available
for inspection by the Department such books and records as are necessary
to carry out the provisions of this part, any regulations issued under
this part, 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.
Sec. 1206.62 Confidential treatment.
All information obtained from books, records, or reports under the
Act and this part 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,
first handlers, or importers. 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:
(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
[[Page 57]]
the information furnished by any person; and
(b) The publication, by direction of the Secretary, of the name of
any person who has been adjudged to have violated this part, together
with a statement of the particular provisions of this part violated by
such person.
Miscellaneous
Sec. 1206.70 Right of the Secretary.
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.
Sec. 1206.71 Referenda.
(a) Initial Referendum. The Order shall not become effective unless:
(1) The Department determines that the Order is consistent with and
will effectuate the purposes of the Act; and
(2) The Order is approved by a majority of the first handlers and
importers voting, who, during a representative period determined by the
Department, have been engaged in the handling or importation of mangos.
(b) Subsequent referenda. Every five years, the Department shall
hold a referendum to determine whether first handlers and importers of
mangos favor the continuation of the Order. The Order shall continue if
it is favored by a majority of the first handlers and importers voting
who, during a representative period determined by the Department, have
been engaged in the handling or importation of mangos. The Department
will also conduct a referendum if 10 percent or more of all non-exempt,
first handlers and importers of mangos request the Department to hold a
referendum. In addition, the Department may hold a referendum at any
time.
Sec. 1206.72 Suspension and termination.
(a) The Department shall suspend or terminate this part or subpart
or a provision thereof if the Department finds that the subpart or a
provision thereof obstructs or does not tend to effectuate the purposes
of the Act, or if the Department determines that this subpart or a
provision thereof is not favored by persons voting in a referendum
conducted pursuant to the Act.
(b) The Department shall suspend or terminate this subpart at the
end of the marketing year whenever the Department determines that its
suspension or termination is approved or favored by a majority of the
first handlers and importers voting who, during a representative period
determined by the Department, have been engaged in the handling or
importation of mangos.
(c) If, as a result of a referendum the Department determines that
this subpart is not approved, the Department shall:
(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
(2) As soon as practical, suspend or terminate, as the case may be,
activities under this subpart in an orderly manner.
Sec. 1206.73 Proceedings after termination.
(a) Upon the termination of this subpart, the Board shall recommend
not more than five of its members to the Department to serve as trustees
for the purpose of liquidating the affairs of the Board. Such persons,
upon designation by the Department, 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.
(b) The said trustees shall:
(1) Continue in such capacity until discharged by the Department;
(2) Carry out the obligations of the Board under any contracts or
agreements entered into pursuant to the Order;
(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 Department
may direct; and
(4) Upon request of the Department, execute such assignments or
other instruments necessary and appropriate to vest in such persons
title and right to all funds, property and claims vested
[[Page 58]]
in the Board or the trustees pursuant to the Order.
(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.
(d) Any residual funds not required to defray the necessary expenses
of liquidation shall be turned over to the Department to be disposed of,
to the extent practical, to one or more mango industry organizations in
the interest of continuing mango promotion, research, and information
programs.
Sec. 1206.74 Effect of termination or amendment.
Unless otherwise expressly provided by the Department, the
termination or amendment of this part or any subpart 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 part; or
(b) Release or extinguish any violation of this part; or
(c) Affect or impair any rights or remedies of the United States, or
of the Department, or of any other persons with respect to any such
violation.
Sec. 1206.75 Personal liability.
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.
Sec. 1206.76 Separability.
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.
Sec. 1206.77 Amendments.
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 Department.
Sec. 1206.78 OMB control number.
The control numbers assigned to the information collection
requirements of 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 number 0505-0001 and OMB control number 0581-0209.
Subpart B_Referendum Procedures.
Sec. 1206.100 General.
Referenda to determine whether eligible first handlers and importers
of mangos favor the issuance, amendment, suspension, or termination of
the Mango Promotion, Research, and Information Order shall be conducted
in accordance with this subpart.
Sec. 1206.101 Definitions.
(a) Administrator 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.
(b) Department means the U.S. Department of Agriculture 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.
(c) Eligible first handler means any person, (excluding a common or
contract carrier), receiving 500,000 or more pounds of mangos from
producers in a calendar year and who as owner, agent, or otherwise ships
or causes mangos to be shipped as specified in this Order. This
definition includes those engaged in the business of buying, selling
and/or offering for sale; receiving; packing; grading; marketing; or
distributing mangos in commercial quantities. The term first handler
includes a producer who handles or markets mangos of the producer's own
production.
(d) Eligible importer means any person importing 500,000 or more
pounds of
[[Page 59]]
mangos into the United States in a calendar year as a principal or as an
agent, broker, or consignee of any person who produces or handles mangos
outside of the United States for sale in the United States, and who is
listed as the importer of record for such mangos that are identified in
the Harmonized Tariff Schedule of the United States by the numbers
0804.50.4040 and 0804.50.6040, during the representative period.
Importation occurs when mangos originating outside of the United States
are released from custody by the Customs and Border Protection and
introduced into the stream of commerce in the United States. Included
are persons who hold title to foreign-produced mangos immediately upon
release by the Customs and Border Protection, as well as any persons who
act on behalf of others, as agents or brokers, to secure the release of
mangos from the Customs and Border Protection when such mangos are
entered or withdrawn for consumption in the United States.
(e) Mangos means all fresh fruit of Mangifera indica L. of the
family Anacardiaceae.
(f) Order means the Mango Promotion, Research, and Information
Order.
(g) Person 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:
(1) A husband and a wife who have title to, or leasehold interest
in, a mango farm as tenants in common, joint tenants, tenants by the
entirety, or, under community property laws, as community property; and
(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.
(h) Referendum agent or agent means the individual or individuals
designated by the Department to conduct the referendum.
(i) Representative period means the period designated by the
Department.
(j) United States or U.S. means collectively the 50 states, the
District of Columbia, the Commonwealth of Puerto Rico, and the
territories and possessions of the United States.
Sec. 1206.102 Voting.
(a) Each eligible first handler and eligible importer of mangos
shall be entitled to cast only one ballot in the referendum.
(b) Proxy voting is not authorized, but an officer or employee of an
eligible corporate first handler 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.
(c) All ballots are to be cast by mail, as instructed by the
Department.
Sec. 1206.103 Instructions.
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 subpart, to govern the
procedure to be followed by the referendum agent. Such agent shall:
(a) Determine the period during which ballots may be cast.
(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.
(c) Give reasonable public notice of the referendum:
(1) By utilizing available media or public information sources,
without incurring advertising expense, to publicize the dates, places,
method of voting, eligibility requirements, and other pertinent
information. Such sources of publicity may include, but are not limited
to, print and radio; and
[[Page 60]]
(2) By such other means as the agent may deem advisable.
(d) Mail to eligible first handlers 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.
(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.
(f) Prepare a report on the referendum.
(g) Announce the results to the public.
Sec. 1206.104 Subagents.
The referendum agent may appoint any individual or individuals
necessary or desirable to assist the agent in performing such agent's
functions of this subpart. Each individual so appointed may be
authorized by the agent to perform any or all of the functions which, in
the absence or such appointment, shall be performed by the agent.
Sec. 1206.105 Ballots.
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.
Sec. 1206.106 Referendum report.
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.
Sec. 1206.107 Confidential information.
The ballots and other information or reports that reveal, or tend to
reveal, the vote of any person covered under the Order and the voter
list shall be strictly confidential and shall not be disclosed.
Sec. 1206.108 OMB control number.
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 0581-0209.
Subpart C_Rules and Regulations
Source: 70 FR 2754, Jan. 14, 2005, unless otherwise noted.
Sec. 1206.200 Terms defined.
Unless otherwise defined in this subpart, the definitions of terms
used in this subpart shall have the same meaning as the definitions of
such terms which appear in Subpart A--Mango Promotion, Research, and
Information Order.
Sec. 1206.201 Definitions.
Organic Act means section 2103 of the Organic Foods Production Act
of 1990 (7 U.S.C. 6502).
Sec. 1206.202 Exemption for organic mangos.
(a) A first handler who operates under an approved National Organic
Program (NOP) (7 CFR part 205) system plan, handles only products that
are eligible to be labeled as 100 percent organic under the NOP, and is
not a split operation shall be exempt from the payment of assessments.
(b) To obtain this exemption, an eligible first handler shall submit
a request for exemption to the Board--on a form provided by the Board--
at any time initially and annually thereafter on or before the beginning
of the fiscal period as long as the first handler continues to be
eligible for the exemption.
(c) The request shall include the following: The first handler's
name and address, a copy of the organic farm or organic handling
operation certificate
[[Page 61]]
provided by a USDA-accredited certifying agent as defined in the Organic
Act, a signed certification that the applicant meets all of the
requirements specified for an assessment exemption, and such other
information as may be required by the Board and with the approval of the
Secretary.
(d) If the first handler complies with the requirements of paragraph
(a) of this section, the Board will grant an assessment exemption and
shall issue a Certificate of Exemption to the first handler. For
exemption requests received on or before August 15, 2005, the Board will
have 60 days to approve the exemption request; after August 15, 2005,
the Board will have 30 days to approve the exemption request. If the
application is disapproved, the Board will notify the applicant of the
reason(s) for disapproval within the same timeframe.
(e) An importer who imports only products that are eligible to be
labeled as 100 percent organic under the NOP (7 CFR part 205) and who is
not a split operation shall be exempt from the payment of assessments.
That importer may submit documentation to the Board and request an
exemption from assessment on 100 percent organic mangos--on a form
provided by the Board--at any time initially and annually thereafter on
or before the beginning of the fiscal period as long as the importer
continues to be eligible for the exemption. This documentation shall
include the same information required of first handlers in paragraph
(c). If the importer complies with the requirements of this section, the
Board will grant the exemption and issue a Certificate of Exemption to
the importer within the applicable timeframe. The Board will also issue
the importer a 9-digit alphanumeric Harmonized Tariff Schedule (HTS)
classification valid for 1 year from the date of issue. This HTS
classification should be entered by the importer on the Customs entry
documentation. Any line item entry of 100 percent organic mangos bearing
this HTS classification assigned by the Board will not be subject to
assessments.
(f) The exemption will apply immediately following the issuance of
the certificate of exemption.
PART 1207_POTATO RESEARCH AND PROMOTION PLAN--Table of Contents
Subpart_Potato Research and Promotion Plan
Definitions
Sec.
1207.301 Secretary.
1207.302 Act.
1207.303 Plan.
1207.304 Person.
1207.305 Producer.
1207.306 Potatoes.
1207.307 Handle.
1207.308 Handler.
1207.309 Board.
1207.310 Fiscal period and marketing year.
1207.311 Programs and projects.
1207.312 Importer.
1207.313 Customs Service.
National Potato Promotion Board
1207.320 Establishment and membership.
1207.321 Term of office.
1207.322 Nominations and appointment.
1207.323 Acceptance.
1207.324 Vacancies.
1207.325 Procedure.
1207.326 Compensation and reimbursement.
1207.327 Powers.
1207.328 Duties.
Research and Promotion
1207.335 Research and promotion.
Expenses and Assessments
1207.341 Budget and expenses.
1207.342 Assessments.
1207.343 [Reserved]
1207.344 Operating reserve.
Reports, Books, and Records
1207.350 Reports.
1207.351 Books and records.
1207.352 Confidential treatment.
Miscellaneous
1207.360 Influencing governmental action.
1207.361 Right of the Secretary.
1207.362 Suspension or termination.
1207.363 Proceedings after termination.
1207.364 Effect of termination or amendment.
1207.365 Personal liability.
1207.366 Separability.
Subpart_Rules and Regulations
Definitions
1207.500 Definitions.
General
1207.501 Communications.
[[Page 62]]
1207.502 Determination of membership.
1207.503 Nominations.
1207.504 Term of office.
1207.505 Procedure.
1207.506 Policy.
1207.507 Administrative Committee.
1207.508 USDA costs.
Assessments
1207.510 Levy of assessments.
1207.511 Determination of assessable quantity.
1207.512 Designated handler.
1207.513 Payment of assessments.
1207.514 Exemption for organic potatoes.
1207.515 Safeguards.
Records
1207.532 Retention period for records.
1207.533 Availability of records.
1207.534 OMB control number assigned pursuant to the Paperwork Reduction
Act.
Confidential Information
1207.540 Confidential books, records, and reports.
1207.545 Right of the Secretary.
1207.546 Personal liability.
Authority: 7 U.S.C. 2611-2627 and 7 U.S.C. 7401.
Subpart_Potato Research and Promotion Plan
Source: 37 FR 5008, Mar. 9, 1972, unless otherwise noted.
Definitions
Sec. 1207.301 Secretary.
Secretary 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.
Sec. 1207.302 Act.
Act means the Potato Research and Promotion Act, Title III of Public
Law 91-670, 91st Congress, approved January 11, 1971, 84 Stat. 2041, as
amended.
[56 FR 40229, Aug. 14, 1991]
Sec. 1207.303 Plan.
Plan means this potato research and promotion plan issued by the
Secretary pursuant to the act.
Sec. 1207.304 Person.
Person means any individual, partnership, corporation, association,
or other entity.
Sec. 1207.305 Producer.
Producer 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.
Sec. 1207.306 Potatoes.
Potatoes 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.
[56 FR 40229, Aug. 14, 1991]
Sec. 1207.307 Handle.
Handle 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.
Sec. 1207.308 Handler.
Handler 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.
Sec. 1207.309 Board.
Board means the National Potato Promotion Board, hereinafter
established pursuant to Sec. 1207.320.
Sec. 1207.310 Fiscal period and marketing year.
Fiscal period and marketing year 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.
Sec. 1207.311 Programs and projects.
Programs and projects mean those research, development, advertising
or promotion programs or projects developed by the Board pursuant to
Sec. 1207.335.
[[Page 63]]
Sec. 1207.312 Importer.
Importer means any person who imports tablestock, frozen or
processed potatoes for ultimate consumption by humans, or seed potatoes
into the United States.
[56 FR 40229, Aug. 14, 1991]
Sec. 1207.313 Customs Service.
Customs Service means the United States Customs Service of the
United States Department of the Treasury.
[56 FR 40229, Aug. 14, 1991]
National Potato Promotion Board
Sec. 1207.320 Establishment and membership.
(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 Sec. 1207.322. Importer members shall
be appointed from nominations submitted by importers pursuant to Sec.
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.
(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.
(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.
(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 Sec. 1207.325 shall not be
increased.
(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 Sec. 1207.325 would be
based upon the total production within the new district or group of
States.
(f) Should the Board fail to nominate a public member, the Secretary
may appoint such member.
[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]
Sec. 1207.321 Term of office.
(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.
(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.
(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.
(d) No member shall serve for more than two full successive terms of
office.
[37 FR 5008, Mar. 9, 1972, as amended at 56 FR 40229, Aug. 14, 1991]
[[Page 64]]
Sec. 1207.322 Nominations and appointment.
The Secretary shall select the producer, importer, and public
members of the Board from nominations which may be made in the following
manner.
(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 the Secretary, if available, may conduct such
meetings or act as secretary of such nomination meetings.
(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.
(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.
(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:
(1) How many importers belong to the association;
(2) What percentage of the total number of importers is represented
by the association;
(3) Is the association representative of the potato, potato product,
and seed potato import industry;
(4) Does the association speak for potato, potato product, and seed
potato importers; and
(5) Other relevant information as may be warranted.
(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.
[37 FR 5008, Mar. 9, 1972, as amended at 49 FR 20806, May 17, 1984; 56
FR 40229, Aug. 14, 1991]
Effective Date Note: At 62 FR 46179, Sept. 2, 1997, in Sec.
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 were suspended, effective
Sept. 3, 1997.
Sec. 1207.323 Acceptance.
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.
Sec. 1207.324 Vacancies.
To fill any vacancy caused by the failure of any person selected as
a member of the Board to qualify, or in
[[Page 65]]
the event of the death, removal, resignation, or disqualification of any
member, a successor shall be nominated and selected in the manner
specified in Sec. 1207.322. In the event of failure to provide nominees
for such vacancies, the Secretary may select other eligible persons.
Sec. 1207.325 Procedure.
(a) Each State (or district or group of States established pursuant
to Sec. 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.
(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.
(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.
[37 FR 5008, Mar. 9, 1972, as amended at 57 FR 40083, Sept. 2, 1992]
Sec. 1207.326 Compensation and reimbursement.
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.
Sec. 1207.327 Powers.
The Board shall have the following powers subject to Sec. 1207.361:
(a) To administer the provisions of this plan in accordance with its
terms and conditions;
(b) To make rules and regulations to effectuate the terms and
conditions of this plan;
(c) To receive, investigate, and report to the Secretary complaints
of violations of this plan; and
(d) To recommend to the Secretary amendments to this plan.
Sec. 1207.328 Duties.
The Board shall, among other things, have the following duties:
(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;
(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;
(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;
(d) To develop programs and projects 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;
(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;
(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
[[Page 66]]
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;
(g) To give the Secretary the same notice of meetings of the Board
and its subcommittees as is given to its members;
(h) To act as intermediary between the Secretary and any producer,
handler, or importer;
(i) To furnish the Secretary such information as he may request.
(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
[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]
Research and Promotion
Sec. 1207.335 Research and promotion.
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:
(a) The establishment, issuance, effectuation and administration of
appropriate programs or projects for the advertising and promotion of
potatoes and potato products: Provided, however, That any such program
or project shall be directed toward increasing the general demand for
potatoes and potato products;
(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: Provided,
That quality control, grade standards and supply management programs
shall not be conducted under, or as a part of, this plan; and
(c) The development and expansion of potato and potato product sales
in foreign markets.
(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.
Expenses and Assessments
Sec. 1207.341 Budget and expenses.
(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 Sec.
1207.344.
(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 Sec.
1207.361.
[37 FR 5008, Mar. 9, 1972, as amended at 49 FR 20806, May 17, 1984]
Sec. 1207.342 Assessments.
(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.
(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
[[Page 67]]
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.
(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.
(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.
(e) The Board may authorize other organizations to collect
assessments in its behalf.
(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.
[37 FR 5008, Mar. 9, 1972, as amended at 49 FR 20806, May 17, 1984; 56
FR 40230, Aug. 14, 1991]
Sec. 1207.343 [Reserved]
Sec. 1207.344 Operating reserve.
The Board may establish an operating monetary reserve and may carry
over to subsequent fiscal periods excess funds in a reserve so
established: Provided, 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.
Reports, Books, and Records
Sec. 1207.350 Reports.
(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:
(1) Total quantity of potatoes handled for each producer and for
himself, including those which are exempt under the plan;
(2) Total quantity of potatoes handled for each producer and for
himself subject to the plan and assessments, and
(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.
(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.
[37 FR 5008, Mar. 9, 1972, as amended at 56 FR 40230, Aug. 14, 1991]
Sec. 1207.351 Books and records.
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.
[37 FR 5008, Mar. 9, 1972, as amended at 56 FR 40230, Aug. 14, 1991]
Sec. 1207.352 Confidential treatment.
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:
[[Page 68]]
(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
(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.
[56 FR 40230, Aug. 14, 1991]
Miscellaneous
Sec. 1207.360 Influencing governmental action.
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.
Sec. 1207.361 Right of the Secretary.
All fiscal matters, programs or projects, rules or regulations,
reports, or other substantive action proposed and prepared by the Board
shall be submitted to the Secretary for his approval.
Sec. 1207.362 Suspension or termination.
(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.
(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.
[37 FR 5008, Mar. 9, 1972, as amended at 56 FR 40230, Aug. 14, 1991]
Sec. 1207.363 Proceedings after termination.
(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.
(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.
(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.
(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.
[37 FR 5008, Mar. 9, 1972, as amended at 56 FR 40231, Aug. 14, 1991]
[[Page 69]]
Sec. 1207.364 Effect of termination or amendment.
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.
Sec. 1207.365 Personal liability.
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.
Sec. 1207.366 Separability.
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.
Subpart_Rules and Regulations
Source: 37 FR 17379, Aug. 26, 1972, unless otherwise noted.
Definitions
Sec. 1207.500 Definitions.
(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.
(b) Processor. Processor 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.
(c) Imported frozen or processed potatoes for ultimate consumption
by humans. Imported frozen or processed potatoes for ultimate
consumption by humans means products which are imported into the United
States which the Secretary determines contain a substantial amount of
potato.
[37 FR 17379, Aug. 26, 1972, as amended at 56 FR 40231, Aug. 14, 1991;
57 FR 40083, Sept. 2, 1992]
General
Sec. 1207.501 Communications.
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.
[59 FR 44036, Aug. 26, 1994]
Sec. 1207.502 Determination of membership.
(a) Pursuant to Sec. 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.
(b) Pursuant to Sec. 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.
[56 FR 40231, Aug. 14, 1991]
Sec. 1207.503 Nominations.
(a) Pursuant to Sec. 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
[[Page 70]]
Secretary for consideration by November 1 of each year.
(b) Pursuant to Sec. 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.
(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.
(d) The public member shall be nominated by the producer and
importer members of the Board.
[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]
Sec. 1207.504 Term of office.
(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.
(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.
[38 FR 7123, Mar. 16, 1973, as amended at 49 FR 2093, Jan. 18, 1984]
Sec. 1207.505 Procedure.
(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.
(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.
[62 FR 46179, Sept. 2, 1997]
Sec. 1207.506 Policy.
(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.
(b) It shall be the objective of the Board to carry out programs and
projects which will provide maximum benefit to the potato industry and
no undue preference shall be given to any of the various industry
segments.
Sec. 1207.507 Administrative Committee.
(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 seven Vice-
Chairpersons, one of whom shall also serve as the Secretary and
Treasurer of the Board.
(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 Sec. 1207.342 of the plan.
(1) The Administrative Committee also shall act for the Board in
contracting with cooperating agencies for the collection of assessments
pursuant to Sec. 1207.513(d).
(2) [Reserved]
(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
[[Page 71]]
and in the name of the Board in all administrative matters.
[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; 71 FR 76901, Dec. 22,
2006]