[Federal Register Volume 86, Number 8 (Wednesday, January 13, 2021)]
[Rules and Regulations]
[Pages 2880-2901]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-00328]
[[Page 2879]]
Vol. 86
Wednesday,
No. 8
January 13, 2021
Part III
Department of Agriculture
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Agricultural Marketing Service
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7 CFR Part 1223
Pecan Promotion, Research, and Information Order; Final Rule
Federal Register / Vol. 86, No. 8 / Wednesday, January 13, 2021 /
Rules and Regulations
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DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Part 1223
[Document Number AMS-SC-20-0013; FR]
Pecan Promotion, Research, and Information Order
AGENCY: Agricultural Marketing Service.
ACTION: Final rule.
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SUMMARY: This rule establishes the Pecan Promotion, Research, and
Information Order (Order). This rule also establishes the procedures
for conducting a referendum to determine whether the continuation of
the proposed Order is favored by domestic producers and importers of
pecans. In addition, this rule announces the Agricultural Marketing
Service's (AMS) approval of new pecan information collection
requirements by the Office of Management and Budget (OMB) for the
operation of the Order.
DATES: Effective Date February 12, 2021. Collection of assessments as
required by Sec. Sec. 1223.52 and 1223.53 and compliance with
reporting and recordkeeping requirements under Sec. Sec. 1223.60 and
1223.61 will begin October 1, 2021.
FOR FURTHER INFORMATION CONTACT: Andrea Ricci, Marketing Specialist,
Promotion and Economics Division, Specialty Crops Program, AMS, USDA,
755 E Nees Avenue, #25985, Fresno, CA 93720; telephone: (202) 572-1442;
or electronic mail: [email protected].
SUPPLEMENTARY INFORMATION: This is issued pursuant to the Commodity
Promotion, Research, and Information Act of 1996 (1996 Act) (7 U.S.C.
7411-7425).
As part of this rulemaking process, a proposed rule was published
in the Federal Register on September 22, 2020 (85 FR 59610). That rule
provided for a 60-day comment period, which ended on November 23, 2020.
Fifty-four comments were received. All comments are addressed later in
this final rule.
Executive Orders 12866, 13563, and 13771
Executive Orders 12866 and 13563 direct agencies to assess all
costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits (including potential economic, environmental, public
health and safety effects, distributive impacts and equity). Executive
Order 13563 emphasizes the importance of quantifying both costs and
benefits, reducing costs, harmonizing rules, and promoting flexibility.
This action falls within a category of regulatory actions that the
Office of Management and Budget (OMB) exempted from Executive Order
12866 review. Additionally, because this rule does not meet the
definition of a significant regulatory action, it does not trigger the
requirements contained in Executive Order 13771. See OMB's Memorandum
titled ``Interim Guidance Implementing Section 2 of the Executive Order
of January 30, 2017, titled `Reducing Regulation and Controlling
Regulatory Costs' '' (February 2, 2017).
Executive Order 13175
This action has been reviewed in accordance with the requirements
of Executive Order 13175, Consultation and Coordination with Indian
Tribal Governments. The review reveals that this regulation will not
have substantial and direct effects on Tribal governments and will not
have significant Tribal implications.
Executive Order 12988
This action has been reviewed under Executive Order 12988, Civil
Justice Reform. It is not intended to have retroactive effect. Section
524 of the 1996 Act (7 U.S.C. 7423) provides that it shall not affect
or preempt any other Federal or State law authorizing promotion or
research relating to an agricultural commodity.
Section 519 of the 1996 Act (7 U.S.C. 7418) provides that a person
subject to an order may file a written petition with the U.S.
Department of Agriculture (USDA) stating that an order, any provision
of an order, or any obligation imposed in connection with an order, is
not established in accordance with the law, and request a modification
of an order or an exemption from an order. Any petition filed
challenging an order, any provision of an order, or any obligation
imposed in connection with an order, must be filed within two years
after the effective date of an order, provision, or obligation subject
to challenge in the petition. The petitioner would have the opportunity
for a hearing on the petition. Thereafter, USDA will issue a ruling on
the petition. The 1996 Act provides that the district court of the
United States for any district in which the petitioner resides or
conducts business shall have the jurisdiction to review a final ruling
on the petition, if the petitioner files a complaint for that purpose
not later than 20 days after the date of the entry of USDA's final
ruling.
Background
This rule establishes the Pecan Promotion, Research, and
Information Order (7 CFR part 1223) (Order). The purpose of the program
is to strengthen the position of pecans in the marketplace, maintain
and expand markets for pecans, and develop new uses for pecans. The
proposal was submitted to USDA by the National Pecan Federation (NPF),
an organization representing pecan growers and shellers across the
United States whose mission is to promote, protect, and improve
business conditions for the pecan industry. The program will be
financed by an assessment on producers and importers and will be
administered by a board of industry members selected by the Secretary.
The initial assessment rate will be $0.02 per pound of inshell pecans
and $0.04 per pound of shelled pecans produced within or imported to
the United States. Entities that produce or import less than 50,000
pounds of inshell pecans (25,000 pounds of shelled pecans) on average
for four fiscal periods (the fiscal period for which the exemption is
claimed and the previous three fiscal periods) will be exempt from the
payment of assessments. Assessment collection, along with the
appropriate reporting and recordkeeping, will become effective October
1, 2021. This date aligns with the Order's fiscal period.
A referendum will be conducted among producers and importers to
determine if pecan producers and importers favor the continuation of
the program three years after the collection of assessment begins.
Legal Basis for Action
The Order is authorized under the 1996 Act which authorizes USDA to
establish agricultural commodity research and promotion orders which
may include a combination of promotion, research, industry information,
and consumer information activities funded by mandatory assessments.
These programs are designed to maintain and expand markets and uses for
agricultural commodities.
The 1996 Act provides several optional provisions that allow the
tailoring of orders for different commodities. Section 516 of the 1996
Act provides permissive terms for orders, and other sections provide
for alternatives. For example, section 514 of the 1996 Act provides for
orders applicable to (1) producers, (2) first handlers and others in
the marketing chain as appropriate, and (3) importers (if imports are
subject to assessments).
[[Page 2881]]
Section 516 states that an order may include an exemption of de minimis
quantities of an agricultural commodity; different payment and
reporting schedules; coverage of research, promotion, and information
activities to expand, improve, or make more efficient the marketing or
use of an agricultural commodity in both domestic and foreign markets;
a provision for reserve funds; a provision for credits for generic and
branded activities; and assessment of imports.
In addition, section 518 of the 1996 Act provides for referenda to
ascertain approval of an order to be conducted either prior to its
going into effect or within three years after assessments first begin
under the order. Pursuant to section 518 of the 1996 Act, an order may
also provide for its approval in a referendum based upon different
voting patterns. Section 515 provides for establishment of a board from
among producers, first handlers and others in the marketing chain as
appropriate, and importers, if imports are subject to assessment.
USDA currently oversees a marketing order for pecans grown in
Alabama, Arkansas, Arizona, California, Florida, Georgia, Kansas,
Louisiana, Missouri, Mississippi, North Carolina, New Mexico, Oklahoma,
South Carolina, and Texas, (7 CFR part 986) which is authorized under
the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C.
601-674). The purpose of marketing orders, in general, is to stabilize
market conditions, allowing industries to work together to solve
marketing problems, and to improve profitability. The pecan marketing
order authorizes collection of industry data; research and promotion
activities; regulations on grade, size, quality, pack and container;
and is financed by assessments paid by handlers of pecans grown in the
production area.
The purpose of research and promotion programs, in general, is to
provide a framework for agricultural industries to pool their resources
and combine efforts to develop new markets, strengthen existing markets
and conduct important research and promotion activities. The pecan
research and promotion program will be national in scope, financed by
an assessment on pecan producers and importers, and authorize research
and promotion activities. USDA has not identified any relevant Federal
rules that duplicate, overlap, or conflict with this rule.
Industry Background
The pecan industry is comprised of producers, shellers,
accumulators, wholesalers, and importers that produce, process, and
supply pecans for market. Pecans include any and all varieties or
subvarieties, inshell or shelled, of Carya illinoinensis. Pecans are
grown primarily in Alabama, Arkansas, Arizona, California, Florida,
Georgia, Kansas, Louisiana, Missouri, Mississippi, North Carolina, New
Mexico, Oklahoma, South Carolina, and Texas. According to the most
recent Census of Agriculture (2017), there are 15,608 operations with
bearing acreage of pecans. Bearing acreage is greatest in Georgia with
about 30 percent of the nationwide total, followed by Texas at 27
percent, Oklahoma at 22 percent, New Mexico at 11 percent, and Arizona
at 4 percent. These five states generally account for about 95 percent
of U.S. pecan production.
U.S. Supply and Consumption
Pecans are an alternate bearing crop, causing variability in
production from year to year. Based on data from the National
Agricultural Statistics Service (NASS), the 2014 to 2019 six-year
average of total U.S. pecan production was almost 265 million pounds on
an inshell basis, as shown in Table 1. Together, Georgia and New Mexico
produced more than half of pecan volume nationwide.
From 2013 through 2016, pecan production averaged about 263 million
pounds per year, and reached a peak in 2017 at nearly 305 million
pounds. The following year, however, domestic production dropped 21
percent due to the destruction of the Georgia pecan crop by Hurricane
Michael. The trend of U.S. pecan production is depicted in Chart 1.
BILLING CODE 3410-02-P
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[GRAPHIC] [TIFF OMITTED] TR13JA21.000
In 2018, Hurricane Michael swept across the southern half of
Georgia as a Category 3 storm. According to the University of Georgia
Pecan Extension, this storm resulted in a loss of nearly half the
expected 2018 crop and a loss of 17 percent of the state's pecan
acreage. The effects of Hurricane Michael remain present as the 2019
Georgia crop was down nearly 30 percent from the average production of
the six years prior to the storm. Prior to Hurricane Michael, Georgia
was the top pecan-producing state in the U.S. Considering this, along
with the state's recovery efforts, the University of Georgia Pecan
Extension expects Georgia pecan production to rebound in the coming
years. Pecan production nationwide began to increase in 2019, climbing
six percent from 2018.
[GRAPHIC] [TIFF OMITTED] TR13JA21.001
[[Page 2883]]
Table 2 shows U.S. pecan supply and utilization. Domestic
production generally accounts for about 40 percent of the domestic
supply, while imports account for nearly one-third, with beginning
stocks just under 30 percent. Almost all pecans imported into the U.S.
are from Mexico. Of these, 70 percent are shelled, and 30 percent are
inshell.
[GRAPHIC] [TIFF OMITTED] TR13JA21.002
Nearly half of the U.S. supply of pecans is consumed domestically
each year. Per capita consumption has trended upward for the last four
years, reaching a high of 1.20 inshell pounds in 2019. Compared to 2018
and to the 2013 to 2018 six-year average, 2019 per capita consumption
is up 23 percent and 33 percent, respectively.
Exports
The U.S. exports about 24 percent of its pecan supply on average
each year. Shelled pecans make up 60 percent of U.S. pecan exports,
while inshell are 40 percent. Europe and Canada are the primary markets
for shelled pecans with, on average, 49 percent and 24 percent,
respectively, of total shelled exports. In Europe, the largest
consumers of U.S. shelled pecans are the Netherlands, the United
Kingdom, and Germany with 39 percent, 24 percent, and 15 percent,
respectively, of total shelled exports to Europe. On average, about 94
percent of U.S. inshell exports go to Asia. Together, Hong Kong and
China make up 72 percent of the Asian market for inshell pecan exports
from the United States.
Competition
The pecan industry competes with other tree nut industries such as
almonds, pistachios and walnuts. As Table 3 illustrates, sales by
volume of pecans are 95 percent lower than sales of almonds, 74 percent
lower than sales of walnuts, but 40 percent higher than sales of
pistachios.
[[Page 2884]]
[GRAPHIC] [TIFF OMITTED] TR13JA21.003
Prices received by growers, as shown in Table 4, are 25 percent
lower for pecans than for almonds. Compared to other nuts, grower-
received prices for pecans are 18 percent lower than those for
pistachios, but double those for walnuts.
[GRAPHIC] [TIFF OMITTED] TR13JA21.004
Price Trends
Chart 2 shows the trend of prices for pecans from 2013 to 2019. In
recent years, pecan prices were at their highest in 2016 before
dropping in the following two years. Prices increased slightly between
2018 and 2019 but are still down about 12 percent compared to the
average of the previous six years.
[[Page 2885]]
[GRAPHIC] [TIFF OMITTED] TR13JA21.005
BILLING CODE 3410-02-C
Need for a Program
According to the NPF, the greatest challenge the pecan industry is
facing is supply surpassing demand. Data from the International Nut and
Dried Fruit Council and from the research compiled by the Boston
Consulting Group, contracted by the NPF, show that the supply of pecans
may exceed demand by 19 percent in 2028.\1\ The NPF believes the
establishment of a national research and promotion program for pecans
will help the industry address this challenge. NPF concluded that
without a program funded by assessments from both domestically produced
and imported pecans, the industry will not be able to meet the
challenge of the approaching supply and demand imbalance.
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\1\ Based on historic compound annual growth rates (CAGR's) in
global pecan supply and demand for 10 years from 2008 to 2018;
resultant CAGR's of 6 percent for global supply and demand applied
to 2018 estimates to forecast 2028 figures.
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In 2016, the U.S. pecan industry favored the establishment of a
marketing order for pecans grown in Alabama, Arkansas, Arizona,
California, Florida, Georgia, Kansas, Louisiana, Missouri, Mississippi,
North Carolina, New Mexico, Oklahoma, South Carolina, and Texas. The
program authorizes collection of industry data; research and promotion
activities; regulation of grade, size, quality, pack and container; and
is financed by assessments paid by handlers of pecans grown in the
production area. Over the past several years the marketing order
program has launched marketing campaigns to increase demand for pecans.
According to the NPF, the research and promotion program will benefit
domestic producers and importers of pecans, thereby justifying the
collection of assessments on both domestic production and imports.
The NPF proposal indicates that imported product accounts for
approximately 39 percent of pecans being supplied to the U.S., with
domestic production accounting for the other 61 percent. With mandatory
assessments being collected only on domestic production, this has
created a gap in the dollars available to fund marketing campaigns
focused on creating increased demand for pecans in the U.S. and
globally. Per the NPF, the increase in domestic production and imports
has created the need for a robust promotion campaign, which would only
be accomplished through financial contribution by both domestic
producers and importers. The NPF concluded that the marketing order
would continue to have an important role within the industry and the
intent is that the two programs would work together to benefit the
entire pecan industry.
Provisions of Program
Pursuant to section 513 of the 1996 Act, Sec. Sec. 1223.1 through
1223.25 of 7 CFR part 1223 (referred to as the ``Order'') define
certain terms that will be used throughout the Order. Several of the
terms are common to all research and promotion programs authorized
under the 1996 Act, while other terms are specific to the pecans Order.
Pursuant to section 515 of the 1996 Act, Sec. Sec. 1223.40 through
1223.47 of the Order detail the establishment of the American Pecan
Promotion Board (Board), nominations and appointments, the term of
office, removal and vacancies, procedure, compensation and
reimbursement, powers and duties, and prohibited activities.
Pursuant to sections 516 and 517 of the 1996 Act, Sec. Sec.
1223.50 through 1223.54 of the Order detail requirements regarding the
Board's budget and expenses, financial statements, assessments, and
exemption from assessments.
The Board's programs and expenses shall be funded through
assessments on producers and importers, other income, and other funds
available to the Board. The Order provides for an initial assessment
rate of $0.02 per pound on all inshell pecans and $0.04 per pound on
all shelled pecans. Each producer will pay on the amount of pecans
produced in the United States. The importer of record will pay
assessments based on the amount of pecans imported to the United
States.
The Order provides that it is the responsibility of the first
handler to collect and remit assessments owed to the Board. First
handlers will collect assessments from each producer based on pounds of
pecans received. The first handler will remit those assessments, along
with the required reports, to the Board. If a producer is acting as its
own first handler, the producer will be required to remit its
individual assessments. Assessments owed will be due to the Board by
the 10th calendar day of the month following the end of
[[Page 2886]]
the previous month. As an example, assessments for pecans received in
June will be due to the Board by July 10th.
Importer assessments will be collected through Customs and Border
Protection (Customs). If Customs does not collect the assessment from
an importer, the importer will be responsible for paying the assessment
directly to the Board by the 10th calendar day of the month following
the month the pecans were imported into the United States.
The Order provides authority for the Board to impose a late payment
charge and interest for assessments not received within 30 calendar
days of the date assessments were due. The late payment charge and rate
of interest are prescribed in Subpart C of the Order.
The Order provides for two exemptions from assessment requirements.
First, producers who produce domestically and importers that import
less than 50,000 pounds of inshell pecans (25,000 pounds of shelled
pecans) on average for four fiscal periods (the fiscal period for which
the exemption is claimed and the previous three fiscal periods) will be
exempt. Producers or importers seeking an exemption shall apply to the
Board for an exemption prior to the start of the fiscal period. This is
an annual exemption; entities must reapply each year. The Board will
issue, if deemed appropriate, a certificate of exemption to the
eligible producer or importer.
The second exemption under the Order is for organic pecans. The
exemption applies to all certified ``organic'' or ``100 percent
organic'' pecans, regardless of whether the pecans are produced by a
person who produces conventional or nonorganic pecans. Likewise, an
importer who imports pecans that are certified as ``organic'' or ``100
percent organic'' under the NOP, or certified as ``organic'' or ``100
percent organic'' under a U.S. equivalency arrangement established
under the NOP, will be exempt from the payment of assessments.
Pursuant to section 516 of the 1996 Act, Sec. Sec. 1223.55 through
1223.57 of the Order detail requirements regarding promotion, research
and information programs, plans and projects authorized under the
Order.
Pursuant to section 515 of the 1996 Act, Sec. Sec. 1223.60 through
1223.62 of the Order specify the reporting and recordkeeping
requirements under the Order as well as requirements regarding
confidentiality of information.
Pursuant to section 518 of the 1996 Act, Sec. 1223.71(a)(1) of the
Order specifies that a referendum will be conducted not later than
three years after assessments first begin under the Order. The Order
will not continue unless it is approved by a majority of those persons
voting in the referendum for approval.
Section 1223.71(b) of the Order specifies criteria for subsequent
referenda. Under the Order, a referendum will be held to ascertain
whether the program should continue, be amended, or terminated.
Sections 1223.70 and 1223.72 through 1223.78 describe the rights of
the Secretary; authorize the Secretary to suspend or terminate the
Order when deemed appropriate; prescribe proceedings after termination;
address personal liability, separability, and amendments; and provide
OMB control numbers. These provisions are common to all research and
promotion programs authorized under the 1996 Act.
Sections 1223.100 through 1223.107 of the Order specify procedures
for the conduct of referenda. The sections cover the definitions,
voting instructions, use of subagents, ballots, the referendum report,
and confidentiality of information.
Regulatory Flexibility Analysis
Pursuant to the requirements set forth in the Regulatory
Flexibility Act (5 U.S.C. 601-612), USDA has considered the economic
impact of this action on small entities. USDA has prepared this Final
Regulatory Flexibility Analysis, the purpose of which is to fit
regulatory actions to the scale of businesses subject to such actions
in order that small businesses will not be unduly or disproportionately
burdened.
Need for Regulation
NPF stated in its proposal that the greatest challenge facing the
pecan industry is supply outpacing demand. Based on worldwide planting
and crop data, NPF estimated that supply would exceed demand by 15
percent in 2027. NPF believes that the establishment of a national
research and promotion program for pecans, funded by assessments on
both domestic producers and importers, will help the industry address
this challenge.
In 2016, the U.S. pecan industry favored the establishment of a
marketing order for pecans grown in Alabama, Arkansas, Arizona,
California, Florida, Georgia, Kansas, Louisiana, Missouri, Mississippi,
North Carolina, New Mexico, Oklahoma, South Carolina, and Texas. The
program authorizes collection of industry data; research and promotion
activities; regulations on grade, size, quality, pack and container;
and is financed by assessments paid by handlers of pecans grown in the
production area. Over the past several years, the marketing order
program has launched marketing campaigns to increase demand for pecans.
According to the NPF, the research and promotion program will
benefit domestic producers and importers of pecans, thereby justifying
the collection of assessments on both domestic production and imports.
The NPF proposal indicates that imported product accounts for
approximately 39 percent of pecans being supplied to the United States.
With mandatory assessments applied to both domestic production and
imports, the Order will be able to fund marketing campaigns focused on
creating increased demand for pecans in the United States and globally.
The NPF concluded that the marketing order would continue to have an
important role within the industry and the intent is that the two
programs would work together for the benefit of the entire pecan
industry. The research and promotion program would concentrate its
efforts on activities that would maintain and expand markets for
pecans, strengthening its position in the marketplace. The marketing
order would continue its primary responsibility of collection and
distribution of industry data to empower stakeholders with accurate and
timely information. Additionally, the marketing order provides the
authority for the pecan industry to make recommendations on grade,
size, quality, pack and container requirements.
Objectives of the Action
The purpose of the Order is to strengthen the position of pecans in
the marketplace, maintain and expand markets for pecans, and develop
new uses for pecans.
Legal Basis for Action
The Order is authorized under the 1996 Act which authorizes USDA to
establish agricultural commodity research and promotion orders which
may include a combination of promotion, research, industry information,
and consumer information activities funded by mandatory assessments.
These programs are designed to maintain and expand markets and uses for
agricultural commodities.
USDA currently administers a marketing order for pecans grown in
Alabama, Arkansas, Arizona, California, Florida, Georgia, Kansas,
Louisiana, Missouri, Mississippi, North Carolina, New Mexico, Oklahoma,
South Carolina, and Texas which is authorized under the Agricultural
Marketing
[[Page 2887]]
Agreement Act of 1937. The purpose of marketing orders, in general, is
to stabilize market conditions, allowing industries to work together to
solve marketing problem, improving profitability. Marketing order
programs' mandatory assessments are paid by handlers within the
designated production areas. The pecan marketing order authorizes
collection of industry data; research and promotion activities;
regulations on grade, size, quality, pack and container; and is
financed by assessments paid by handlers of pecans grown in the
production area.
The pecan research and promotion program is national in scope,
financed by an assessment on pecan producers and importers, and
authorizes research and promotion activities. The purpose of the Order
is to strengthen the position of pecans in the marketplace, maintain
and expand markets for pecans, and develop new uses for pecans. USDA
has not identified any relevant Federal rules that duplicate, overlap,
or conflict with this rule.
Potentially Affected Small Entities
In 13 CFR part 121, the Small Business Administration (SBA) defines
the threshold at which an operation would be considered ``small'' based
on its North American Industry Classification System (NAICS) Code. For
Tree Nut Farming operations (NAICS Code 111335) and Fruit and Tree Nut
Combination Farming operations (NAICS Code 111336), an operation is
considered to be ``small'' if its annual receipts total no more than $1
million. This standard applies to U.S. pecan producers.
Importers and first handlers of inshell and shelled pecans (HTS
Codes 0802901000 and 0802901500, respectively) belong to the industry
classification of Postharvest Crop Activities (NAICS Code 115114).
``Postharvest crop activities'' include nut hulling and shelling,
sorting, grading, packing, and cooling. An operation that meets this
definition is considered to be ``small'', per the SBA, if its annual
receipts equal no more than $30 million. Table 5 depicts the number of
pecan producers, importers, and handlers that would be considered small
under these SBA standards.
According to the 2017 Census of Agriculture, published by NASS in
2019, there were 15,608 farms with pecan bearing acreage. Of these
15,608 farms, 440 sold pecans whose market value met or exceeded $1
million. Based on these figures, 97 percent of U.S. pecan producers are
considered to be ``small'' under the SBA standards. USDA recognizes the
potential inclusion in its count of ``small'' farms those farms whose
sales of pecans were exactly $1 million in market value; however, USDA
lacks the data to remedy this, and the number of farms who meet this
criterion is likely quite small.
[GRAPHIC] [TIFF OMITTED] TR13JA21.006
According to data from Customs, there were 190 importers of inshell
and shelled pecans from 2014 to 2019. Of these, four importers had a
six-year average sales value of pecans which exceeded $30 million. The
portion of pecan importers that would be considered to be ``small''
under the SBA standards, therefore, is 98 percent.
The definition of a ``small'' importer also applies to a first
handler; that is, annual receipts which exceed $30 million. According
to the American Pecan Council (APC), there were 104 first handlers who
reported pecans handled in crop year 2018. Of these, the APC estimates
that about 75 percent recorded annual receipts exceeding $30 million.
Of the 15,902 total entities expected to be impacted by this
action, including producers, importers, and first handlers, about 97
percent would be considered to be ``small'' according to their
respective SBA size standards. While the benefits of the Order are
difficult to quantify, the benefits are expected to outweigh the
program's costs.
Compliance Requirements
This action imposes a reporting and recordkeeping burden on
producers, importers, and first handlers of pecans. Producers and
importers who domestically produce or import less than 50,000 pounds of
inshell pecans (25,000 pounds of shelled pecans) on average for four
fiscal periods (the fiscal period for which the exemption is claimed
and the previous three fiscal periods) may submit to the Board an
application for exemption from paying assessments. Of the 15,168
domestic producers considered to be small under SBA standards, 14,618
of them, or 96 percent, produced less than 50,000 pounds, inshell, of
pecans, and will be exempt from assessment. Of the 186 importers
considered to be small under SBA standards, 119 of them, or 64 percent,
imported less than 50,000 pounds, inshell of pecans, and will also be
exempt from assessment. The reporting and recordkeeping burden to file
an application for exemption from assessment will impact a total of
14,737 producers and importers considered to be small under their
respective SBA size standards. Importers, and first handlers, who
collect the assessments from producers, will be required to file a
report listing pecans imported or received from each producer. This
report will place a reporting and recordkeeping burden on a total of
149 importers and first handlers considered to be small under their SBA
size standard of annual receipts of no more than $30 million.
These forms have been submitted to OMB for approval under OMB
Control No. 0581-NEW. Specific burdens for the forms are detailed later
in this document in the section titled Paperwork Reduction Act. As with
all Federal promotion programs, reports and forms are periodically
reviewed to reduce information requirements and
[[Page 2888]]
duplication by industry and public sector agencies.
Alternatives To Minimize Impacts of the Rule
Regarding alternatives, USDA considered de minimis exemptions of 30
acres of pecans, 1,000 pounds, inshell, of pecan volume, and $1 million
in annual pecan sales receipts. These alternatives, which are fully
discussed in the section titled De Minimis in the proposed rule, were
rejected in favor of the industry-proposed de minimis exemption of
50,000 pounds, inshell, or 25,000 pounds, shelled. USDA also considered
the alternative of no action; that is, the status quo. This
alternative, however, would leave the pecan industry without the tools
of a research and promotion program to strengthen the position of
pecans in the marketplace, maintain and expand markets for pecans, and
develop new uses for pecans. In place of a research and promotion
program, the NPF discussed amending the Agricultural Marketing
Agreement Act of 1937, which provides authority for the pecan marketing
order. The NPF stated in its proposal for a pecan research and
promotion program that it decided not to move forward with this
alternative due to the time and costs involved in amending U.S. law.
Outreach
Regarding outreach efforts, NPF conducted sessions earlier in 2020
throughout the United States in different States and regions. Many were
held in conjunction with regional and state organization meetings where
both pecan producers and importers participated. They also presented at
the National Pecan Shellers Association (NPSA) mid-winter conference.
NPSA supports and promotes the interest of pecan shellers and the
global industry. Approximately 13 sessions were held across the United
States. NPF also had information regarding the proposed program
published in April 2020 editions of the ``The Pecan Grower'' and
``Pecan South'' magazines. ``The Pecan Grower'' is the official
publication of the Georgia Pecan Growers Association, with nearly three
thousand subscribers including growers, researchers, extension agents
and agribusinesses. ``Pecan South'' is a magazine for growers,
processors, commercial vendors, and those interested in pecans. It
provides to its more than forty-six hundred subscribers U.S. pecan
production information; industry news and events; and market-related
issues, both domestic and international. In the articles, NPF
elaborated the work it has been doing to establish a research and
promotion program for pecans that would assess producers and importers.
On June 9, 2020, AMS published a Notice to Trade alerting the
industry that it had received a proposal from the NPF requesting the
establishment of a research and promotion program for pecans. A
proposed rule providing a 60-day comment period was published in the
Federal Register on September 22, 2020 (85 FR 59610). AMS published a
Notice to Trade on September 22, 2020, alerting the industry that it
was seeking comments on the proposal. Subsequently, AMS sent a postcard
and an email to all known pecan producers and importers notifying them
of the Federal Register published proposal.
AMS is committed to complying with the E-Government Act, to promote
the use of the internet and other information technologies to provide
increased opportunities for citizen access to Government information
and services, and for other purposes.
Paperwork Reduction Act
In accordance with the Paperwork Reduction Act (PRA) of 1995 (44
U.S.C. Chapter 35), AMS requested approval of new information
collection and recordkeeping requirements for the pecan program.
Title: Advisory Committee or Research and Promotion Background
Information.
OMB Number for background form AD-755: (Approved under OMB No.
0505-0001).
Expiration Date of Approval: 03/31/2022.
Title: National Research, Promotion, and Consumer Information
Programs.
Expiration Date of Approval: 3 years from approval date.
Type of Request: New information collection for research and
promotion programs.
Abstract: The information collection requirements in the request
are essential to carry out the intent of the 1996 Act. The information
collection concerns a new national research and promotion program for
the pecan industry. The program will be financed by an assessment on
pecan producers and importers and will be administered by a board of
industry members selected by the Secretary. The program will provide
for an exemption for producers who produce domestically and importers
that import less than 50,000 pounds of inshell pecans (25,000 pounds of
shelled pecans) on average for four fiscal periods (the fiscal period
for which the exemption is claimed and the previous three fiscal
periods). A referendum will be held among eligible producers and
importers to determine whether they favor implementation of the program
not later than three years after assessments first begin under the
Order. The purpose of the program will be to strengthen the position of
pecans in the marketplace, maintain and expand markets for pecans, and
develop new uses for pecans within the United States.
In summary, the information collection requirements under the
program concern Board nominations, exemption applications, the
collection and refund of assessments, and referenda. For Board
nominations, producers and importers interested in serving on the Board
will be asked to submit a ``Nomination Form'' to the Board indicating
their desire to serve or to nominate another industry member to serve
on the Board. Interested persons may also submit a background statement
outlining qualifications to serve on the Board. Except for the initial
Board nominations, producers and importers will have the opportunity to
submit a ``Nomination Ballot'' to the Board where they will vote for
candidates to serve on the Board. Nominees will also have to submit a
background information form, ``AD-755,'' to the Secretary to ensure
they are qualified to serve on the Board. Organizations representing
importers will be able to be certified by the Secretary and have an
opportunity to nominate importer members. Those such organizations must
submit the form ``Application for Certification of Organization.''
Regarding assessments, producers and importers who domestically
produce and import less than 50,000 pounds of inshell pecans (25,000
pounds of shelled pecans) on average for four fiscal periods (the
fiscal period for which the exemption is claimed and the previous three
fiscal periods), will be exempt from assessments. Producers or
importers shall apply to the Board for an exemption prior to the start
of the fiscal period. This will be an annual exemption; entities will
have to reapply each year. Producers or importers may submit a request,
``Application for Exemption from Assessments,'' to the Board for an
exemption from paying assessments. Producers and importers who qualify
as ``organic'' or ``100 percent organic'' under the NOP may submit an
``Organic Exemption Form'' to the Board and request an exemption from
assessments.
First handlers who receive assessments from producers will be asked
to submit a ``First Handler/Importer Report'' that will accompany their
assessments paid to the Board and report the quantity of pecans
received
[[Page 2889]]
during the applicable period, the quantity for which assessments were
paid, contact information for whom they collected the assessment, and
the country of export (for imports). Additionally, only importers who
pay their assessments directly to the Board will be required to submit
a report. As previously mentioned, the majority of importer assessments
will be collected by Customs. Customs will remit the funds to the Board
and the other information will be available from Customs (i.e., country
of export, quantity of pecans imported).
Importers and producers who are exempt and whose assessments were
collected, either by Customs or a first handler, may also request a
refund of any assessments paid to the Board. Producers and importers
may also file a form to request a refund of assessments paid if the
referendum fails to pass. A referendum will be conducted not later than
three years after the assessments first begin to determine if producers
and importers favor continuance of the Order.
Lastly, producers and importers eligible to vote in a referendum
will have to complete a ballot to determine whether the research and
promotion program would continue.
Information collection requirements that are included in this rule
include:
(1) Nomination Form
Estimate of Burden: Public recordkeeping burden for this collection
of information is estimated to average 0.25 hour per application.
Respondents: Producers and importers.
Estimated Number of Respondents: 50.
Estimated Number of Responses per Respondent: 1.
Estimated Total Annual Burden on Respondents: 12.5 hours.
(2) Background Statement
Estimate of Burden: Public recordkeeping burden for this collection
of information is estimated to average 0.25 hour per application.
Respondents: Producers and importers.
Estimated Number of Respondents: 50.
Estimated Number of Responses per Respondent: 1.
Estimated Total Annual Burden on Respondents: 12.5 hours.
(3) Nomination Ballot
Estimate of Burden: Public recordkeeping burden for this collection
of information is estimated to average 0.25 hour per application.
Respondents: Producers and importers.
Estimated Number of Respondents: 900.
Estimated Number of Responses per Respondent: 1.
Estimated Total Annual Burden on Respondents: 225 hours.
(4) Background Information Form AD-755 (OMB Form No. 0505-0001)
Estimate of Burden: Public reporting for this collection of
information is estimated to average 0.5 hour per response for each
Board nominee.
Respondents: Producers and importers.
Estimated number of Respondents: 11 (34 for initial nominations to
the Board, 0 for the second year, and up to 11 annually thereafter).
Estimated number of Responses per Respondent: 1 every 3 years.
(0.3)
Estimated Total Annual Burden on Respondents: 17 hours for the
initial nominations to the Board, 0 hours for the second year of
operation, and up to 5.5 hours annually thereafter.
(5) Application for Certification of Organization
Estimate of Burden: Public reporting burden for this collection of
information is estimated to average 0.25 hour.
Respondents: Importer organizations.
Estimated Number of Respondents: 5.
Estimated Number of Responses per Respondent: 1.
Estimated Total Annual Burden on Respondents: 2.5 hours.
(6) Application for Exemption From Assessments
Estimate of Burden: Public reporting burden for this collection of
information is estimated to average 0.25 hour per producers or importer
reporting on pecans produced domestically or imported. Upon approval of
an application, producers and importers would receive exemption
certification.
Respondents: Producers and importers who produce or import less
than 50,000 pounds of inshell pecans (25,000 pounds of shelled pecans)
on average for four fiscal periods (the fiscal period for which the
exemption is claimed and the previous three fiscal periods).
Estimated number of Respondents: 14,737.
Estimated number of Responses per Respondent: 1.
Estimated Total Annual Burden on Respondents: 3,684 hours.
(7) Organic Exemption Form
Estimate of Burden: Public recordkeeping burden for this collection
of information is estimated to average 0.5 hours per exemption form.
Respondents: Organic producers and importers.
Estimated Number of Respondents: 50.
Estimated Number of Responses per Respondent: 1.
Estimated Total Annual Burden on Respondents: 25 hours.
(8) First Handler/Importer Report
Estimate of Burden: Public reporting burden for this collection of
information is estimated to average 0.25 hour per first handler or
importer.
Respondents: First handlers who collect assessments from producers
who produce over 50,000 pounds of inshell pecans (25,000 pounds of
shelled pecans) on average for four fiscal periods (the current fiscal
period and the previous three fiscal periods) and importers that do not
remit through Customs.
Estimated number of Respondents: 175.
Estimated number of Responses per Respondent: 12.
Estimated Total Annual Burden on Respondents: 525 hours.
(9) Application for Reimbursement of Assessments
Estimate of Burden: Public reporting burden for this collection of
information is estimated to average 0.25 hour.
Respondents: Producers and importers.
Estimated Number of Respondents: 170.
Estimated Number of Responses per Respondent: 1.
Estimated Total Annual Burden on Respondents: 42.5 hours.
(10) Application for Refund of Assessments Paid From Escrow
Estimate of Burden: Public reporting burden for this collection of
information is estimated to average 0.25 hour.
Respondents: Producers and importers.
Estimated Number of Respondents: 900.
Estimated Number of Responses per Respondent: 1.
Estimated Total Annual Burden on Respondents: 225 hours.
(11) Referendum Ballot
Estimate of Burden: Public reporting burden for this collection of
information is estimated to average 0.25 hour.
Respondents: Producers and importers.
Estimated Number of Respondents: 900.
[[Page 2890]]
Estimated Number of Responses per Respondent: 0.14 (after first
referendum one would occur once every 7 years).
Estimated Total Annual Burden on Respondents: 31.50 hours.
(12) A Requirement To Maintain Records Sufficient To Verify Reports
Submitted Under the Order
Estimate of Burden: Public recordkeeping burden for keeping this
information is estimated to average 0.5 hours per record keeper
maintaining such records.
Recordkeepers: Producers, first handlers and importers.
Estimated number of recordkeepers: 15,902.
Estimated total recordkeeping hours: 7,951 hours.
As noted above, under the program, producers through first
handlers, and importers will be required to pay assessments and file
reports with and submit assessments to the Board (importers through
Customs). While the Order will impose certain recordkeeping
requirements on producers, first handlers, and importers, information
required under the Order may be compiled from records currently
maintained. Such records shall be retained for at least three years
beyond the fiscal period of their applicability.
An estimated 15,902 respondents will provide information to the
Board (15,608 producers, 104 first handlers, and 190 importers). The
estimated cost of providing the information to the Board by respondents
would be $606,046. This total has been estimated by multiplying
12,753.5 hours by ($36.08 hourly wage x 0.317 benefits = $11.44
(benefits) + $36.08 (wage) = $47.52), $47.52 for the average mean
hourly earnings of producers and importers plus benefits.
Data for computation of the hourly rate for producers (Occupation
Code 11-9013: Farmers, Ranchers, and other Agricultural Managers =
$38.63) and importers (Occupation Code 13-1020: Buyers and Purchasing
Agents = $33.53) was obtained from the U.S. Department of Labor's
Bureau of Labor Statistics. The average of the producer and importer
wages is $36.08. Data for computation of this hourly wage were obtained
from the U.S. Department of Labor Statistics' publication, ``May 2019
National Occupation Employment and Wage Estimates in the United
States,'' updated May 31, 2019. This publication can also be found at
the following website: https://www.bls.gov/oes/current/oes_nat.htm#45-0000. Data for the benefit costs of 31.7 percent was obtained by U.S.
Department of Labor's Bureau of Labor Statistics press release dated
Dec. 14, 2018.
The Order's provisions have been carefully reviewed, and every
effort has been made to minimize any unnecessary recordkeeping costs or
requirements, including efforts to utilize information already
submitted under other programs administered by USDA and other state
programs. USDA currently oversees a marketing order for pecans grown in
Alabama, Arkansas, Arizona, California, Florida, Georgia, Kansas,
Louisiana, Missouri, Mississippi, North Carolina, New Mexico, Oklahoma,
South Carolina, and Texas, which is authorized under the Agricultural
Marketing Agreement Act of 1937. This program collects information to
facilitate the administration of the program. The information collected
by the marketing order has been carefully reviewed and it was
determined that the information collected could not be utilized to
facilitate the administration of the research and promotion program.
The forms will require the minimum information necessary to effectively
carry out the requirements of the program, and their use is necessary
to fulfill the intent of the 1996 Act. Such information can be supplied
without data processing equipment or outside technical expertise. In
addition, there are no additional training requirements for individuals
filling out reports and remitting assessments to the Board. The forms
will be simple, easy to understand, and place as small a burden as
possible on the person required to file the information.
Collecting information monthly will coincide with normal industry
business practices. The timing and frequency of collecting information
are intended to meet the needs of the industry while minimizing the
amount of work necessary to fill out the required reports. The
requirement to keep records for three years is consistent with normal
industry practices. In addition, the information to be included on
these forms is not available from other sources because such
information relates specifically to individual producers, first
handlers and importers who are subject to the provisions of the 1996
Act. Therefore, there is no practical method for collecting the
required information without the use of these forms.
In the September 22, 2020, proposed rule, comments were also
invited on the information collection requirements prescribed in the
Paperwork Reduction Act section of this rule. Specifically, comments
were solicited on: (a) Whether the collection of information is
necessary for the proper performance of functions of the Order and
USDA's oversight of the Order, including whether the information would
have practical utility; (b) the accuracy of USDA's estimate of the
burden of the collection of information, including the validity of the
methodology and assumptions used; (c) the accuracy of USDA's estimate
of the principal producing areas in the United States for pecans; (d)
the accuracy of USDA's estimate of the number of producers, first
handlers and importers of pecans that will be covered under the
program; (e) ways to enhance the quality, utility, and clarity of the
information to be collected; and (f) ways to minimize the burden of the
collection of information on those who are to respond, including the
use of appropriate automated, electronic, mechanical, or other
technological collection techniques or other forms of information
technology.
Four comments were received regarding information collection. All
four commenters believed that the estimated recordkeeping burden of
7,951 hours was overstated by 100 percent. They reasoned that none of
the information required by the Order would be in addition to any of
the information normally kept and already required by normal
accounting, state and Federal Tax preparation and other USDA programs.
The estimated recordkeeping burden hours are the hours associated with
maintaining records to verify reports required by the Order. While it
is understood that some of the information required under the Order may
be compiled from records currently maintained, there may be additional
records not currently maintained that would be needed to verify the
reports required by the Order. Furthermore, the estimated burden is
nominal and is a customary estimated burden associated with programs
such as these. In addition, three of the commenters stated that the
First Handler/Importer Report should be estimated at .08333 hours per
record keeper, not the .5 hours in the proposed rule. This was based on
their experience of having to file similar forms as required by the
Federal marketing order. After further review of the form and similar
forms required under other research and promotion programs, USDA
decreased the burden estimate to 0.25 hours. This has been reflected in
the PRA section above.
Analysis of Comments
Fifty-four comments were received in response to the proposed rule.
Of those 54 comments, 28 indicated support for the proposed action, 16
provided general feedback or suggested changes,
[[Page 2891]]
six opposed the action, two were outside the scope of the rulemaking,
one was a duplicate, and there was one standalone comment regarding the
PRA section.
General Comments in Support
A majority of the commenters expressed their confidence that the
proposed program would grow consumer demand for pecans, expanding
markets, while helping offset the current imbalance between supply and
demand. Several commenters found that being able to assess both
domestic and imported product would increase the resources available to
create demand and would allow a more unified strategy. Comments were
received from several state and national pecan associations voicing
their support for the proposed program, agreeing that the proposed
research and promotion program will provide the pecan industry with
more funds to help promote and drive demand. Commenters discussed the
challenges the pecan industry has faced the last several years, and
that while the proposed program will not address all of these
challenges, it is a step in the right direction. Six commenters simply
expressed their support for the proposed program.
Comments in Opposition
Six comments received were opposed to the program. Four of the
commenters stated that producers are already paying an assessment for
the Federal marketing order program, which is tasked with promoting
pecans, and are not in favor of having another promotion program that
will assess producers. One commenter noted that the pecan industry
already has many national and state level trade organizations and that
the industry does not need another. Instead of the proposed program,
the commenter advocated for a consolidated effort and strategy between
these organizations to insure a more efficient research, promotion and
marketing effort. As is addressed in this rule, Federal marketing
orders and research and promotion orders are created pursuant to
different laws and provide for different activities. The Federal
marketing order assessment obligations are imposed on handlers,
although some of the costs may be passed on to producers. Producers and
importers are obligated to pay the assessment under the research and
promotion Order. A comment submitted by the American Pecan Council
(APC) (the Federal marketing order governing body) committed to
ensuring, with the establishment of the new Order, that the domestic
pecan industry does not pay more than the total assessment amount that
is currently obligated under the Federal marketing order. It indicated
it would therefore recommend reducing the assessment obligated under
the Federal marketing order should the research and promotion program
be established. Under Federal marketing orders assessment rates are
intended to be applicable to each fiscal year. The pecan marketing
order fiscal period is October 1 through September 30, which is the
same as the Order. With the assessment obligation under the Order
beginning October 1, 2021, this would allow the APC adequate time to
review and recommend its assessment rate for its 2021-22 fiscal year,
ensuring its commitment to the industry.
Commenters noted the continued decline in producer price over the
last couple of years and that producers cannot afford to fund this
program. According to NASS statistics, grower received price per pound
(in shell basis) for the six-year period from 2013-2019, have ranged
from a low of $1.73 in 2013, to a high of $2.59 in 2016, with the six-
year average of $2.11. The reported prices for years 2017, 2018, and
2019, were $2.33, $1.75, and $1.84, respectively. Based on this
historical information, pecan grower received prices for upcoming years
could range between $1.73 and $2.59 per pound. Utilizing these
historical figures, the estimated assessment cost as a percentage of
grower received price, could range from approximately 1.15 percent to
.78 percent ($0.02 divided by $1.73 and $2.59, respectively). While
there is a cost associated with the program, they are expected to be
offset by the identified benefits of the Order. As was stated
previously, the purpose of the Order would be to create increased
demand for pecans, strengthening the overall viability of the industry.
One comment stated that the government should fund the program instead
of producers. The 1996 Act prescribes that such programs are financed
by an assessment on producers and importers, and does not provide the
authority for the government to pay for such programs.
One commenter expressed concern that exempt producers will not be
aware of the need to submit a form to apply for the exemption and that
it is too much of a burden on the handler to secure those forms from
the exempt producers. It would be the task of the Board to educate the
industry on the Order provisions, working directly with producers who
would be required to submit the exemption forms.
Several commenters expressed concern regarding the composition of
the proposed Board, stating that assurances need to be made that for
the producer member positions just growers, not dual-role entities such
as grower/shellers or grower/marketers, are represented on the Board.
In making recommendations to the Secretary for appointments to the
Board, the Order states that industry members should consider operation
size, production and distribution methods, and other factors to ensure
adequate representation of assessed entities. In addition, the Order
provides that the Board has the authority to consider recommending
additional eligibility requirements for members of the Board.
General Comments and Suggested Modifications
Some comments provided general comments or/and suggested
modifications to the Order. One commenter suggested that the
establishment of the American Pecan Promotion Board should be
apportioned equally among the three identified regions, citing that
this adjustment accounts more fairly for the nature of pecan production
as an alternate-year bearing crop. The 1996 Act requires that the
composition of the board reflect the geographical distribution of
production. As was discussed in the proposed rule in the Establishment
of the Board section, USDA did an in-depth analysis of production data
from the past six years to account for the nature of pecans being an
alternate bearing crop. The analysis took into consideration the crop
loss in Georgia due to the hurricane in 2018 by applying lesser weight
to the production volumes of 2018 and 2019 and placing greater weight
on the production volumes of 2014 through 2017. Based on the analysis
of the available data, the distribution of seats among the regions
reflects the distribution of production in those regions. The Order
allows for the Board to revisit the distribution of seats on the Board
at least once every five years and recommend any changes to the
Secretary for consideration.
Three commenters suggested that eligible producer members should
have a majority of their income derived from the production of pecans
to ensure that producer interests are represented on the Board. The
commenters noted that it is common to have vertically integrated
businesses that do not solely identify as producers, but also as
shellers. The commenters argued that to be eligible to represent
producers on the Board, the majority of income derived needs to be from
the production of pecans and not shelling. One commenter believed that
industry
[[Page 2892]]
members should not be able to serve on the American Pecan Council and
the Board at the same time. As was previously mentioned, the Order
provides that when making recommendations to the Secretary for
appointment of members to the Board industry members should consider
size of operations, methods of production and distribution, and other
factors to ensure adequate representation of assessed entities. The
Order also provides that the Board may recommend amendments to the
representation of membership provisions. Once the Board is established,
it could consider recommending additional eligibility requirements for
producer members.
Three commenters stated that the assessment should be higher on
imported product. The 1996 Act requires that, should imports be
assessed, the rate be comparable to that of the domestic product. Two
commenters sought clarification regarding the entity obligated to pay
the assessment rate required under the Federal marketing order in
comparison to the assessment rate under the research and promotion
program. Domestic handlers are obligated to pay assessments under the
Federal marketing order. Domestic producers are obligated to pay
assessments under the research and promotion program. In addition, the
laws authorizing these programs do not allow for the assessment
obligation to be met by a different entity than those subject to its
respective law.
One commenter raised concerns over the entity that would conduct
referenda under the Order, specifically stating that the proposed rule
did not clearly define ``referendum agents.'' All referenda are
administered by the USDA and its employees. Referendum agents are those
USDA employees who conduct the referendum.
Several commenters expressed that the program should first and
foremost support domestic producers. As was stated in the Background
section of this rule, the purpose of research and promotion programs,
in general, is to provide a framework for agricultural industries to
pool their resources and combine efforts to develop new markets,
strengthen existing markets and conduct important research and generic
promotion activities.
One commenter expressed concerns regarding the proposed
assessment's impact on small growers in Mexico. The commenter stated
that while importers of record will be obligated to pay the assessment,
the cost will eventually be passed-on to the grower. The Order
obligates the importer of record to pay the assessment. Although, some
of the costs may be passed on to producers, these costs are expected to
be offset by the benefits derived by the operation of the Order.
Furthermore, contracts between grower and importers are individual
business decisions between the two parties. Such business decisions are
outside the scope of the Order.
One commenter asked that all marketing logos and marketing
materials be made available, with Board approval, to Mexican shellers
and importers, for promoting pecans in the international marketplace.
Once a Board is appointed, it will work with the industry to develop
marketing materials and logos for industry use to generically promote
pecans in the marketplace.
Two commenters asked several questions regarding the different
initiatives regarding research, development of uses of pecans, and
strategic planning. With the establishment of the Order and appointment
of the Board, the Board will begin implementing programs, plans, and
projects addressing research and marketing priorities.
Three commenters raised issues that are outside the scope of the
authority of the Order. Two commenters voiced concerns regarding
labeling regulations, while one commenter suggested working with
Customs and Border Protection to develop new Harmonized Tariff codes
for pecans.
In the proposed rule, USDA specifically requested comments on the
proposed de minimis exemption, particularly on whether the proposed
level was appropriate to ensure equitable contribution by and
representation of both domestic producers and importers, or if
modification to the exemption level was needed, asking commenters to
provide data to substantiate any recommendations. One commenter opposed
any exemption from the payment of assessments. The commenter did not
provide data to substantiate its recommendation.
After review and consideration of the comments received, USDA is
not making any changes to the proposed rule based on those comments.
The USDA has determined that this Order is consistent with and will
effectuate the purposes of the 1996 Act.
List of Subjects in 7 CFR Part 1223
Administrative practice and procedure, Advertising, Consumer
information, Marketing agreements, Pecan promotion, Reporting and
recordkeeping requirements.
0
For the reasons set forth in the preamble, title 7, chapter XI of the
Code of Federal Regulations is amended by adding part 1223 to read as
follows:
PART 1223--PECAN PROMOTION, RESEARCH, AND INFORMATION ORDER
Subpart A--Pecan Promotion, Research, and Information Order
Definitions
Sec.
1223.1 Act.
1223.2 American Pecan Council.
1223.3 American Pecan Promotion Board.
1223.4 Conflict of interest.
1223.5 Customs or CBP.
1223.6 Department or USDA.
1223.7 First handler.
1223.8 Fiscal period.
1223.9 Importer.
1223.10 Information.
1223.11 Inshell pecans.
1223.12 Market or marketing.
1223.13 Order.
1223.14 Part and subpart.
1223.15 Pecans.
1223.16 Person.
1223.17 Producer.
1223.18 Programs, plans, and projects.
1223.19 Promotion.
1223.20 Research.
1223.21 Secretary.
1223.22 Shelled pecans.
1223.23 Suspend.
1223.24 Terminate.
1223.25 United States.
American Pecan Promotion Board
1223.40 Establishment and membership.
1223.41 Nominations and appointments.
1223.42 Term of office.
1223.43 Vacancies.
1223.44 Procedure.
1223.45 Compensation and reimbursement.
1223.46 Powers and duties.
1223.47 Prohibited activities.
Expenses and Assessments
1223.50 Budget and expenses.
1223.51 Financial statements.
1223.52 Assessments.
1223.53 Exemption procedures.
1223.54 Refund escrow accounts.
Promotion, Research, and Information
1223.55 Programs, plans, and projects.
1223.56 Independent evaluation.
1223.57 Patents, copyrights, trademarks, information, publications,
and product formulations.
Reports, Books, and Records
1223.60 Reports.
1223.61 Books and records.
1223.62 Confidential treatment.
Miscellaneous
1223.70 Right of the Secretary.
1223.71 Referenda.
1223.72 Suspension and termination.
1223.73 Proceedings after termination.
1223.74 Effect of termination or amendment.
[[Page 2893]]
1223.75 Personal liability.
1223.76 Separability.
1223.77 Amendments.
1223.78 OMB control numbers.
Subpart B--Referendum Procedures
1223.100 General.
1223.101 Definitions.
1223.102 Voting.
1223.103 Instructions.
1223.104 Subagents.
1223.105 Ballots.
1223.106 Referendum report.
1223.107 Confidential information.
Subpart C--Administrative Provisions
1223.520 Late payment and interest charges for past due assessments.
Authority: 7 U.S.C. 7411-7425; 7 U.S.C. 7401.
Subpart A--Pecan Promotion, Research, and Information Order
Definitions
Sec. 1223.1 Act.
Act means the Commodity Promotion, Research, and Information Act of
1996 (7 U.S.C. 7411-7425), and any amendments thereto.
Sec. 1223.2 American Pecan Council.
American Pecan Council or APC means that governing body of the
Federal Marketing Order established pursuant to 7 CFR part 986 unless
otherwise noted.
Sec. 1223.3 American Pecan Promotion Board.
American Pecan Promotion Board or the Board means the
administrative body established pursuant to Sec. 1223.40.
Sec. 1223.4 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. 1223.5 Customs or CDP.
Customs or CBP means Customs and Border Protection, an agency of
the United States Department of Homeland Security.
Sec. 1223.6 Department or USDA.
Department or USDA 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. 1223.7 First handler.
First handler means any person who receives, shells, cracks,
accumulates, warehouses, roasts, packs, sells, consigns, transports,
exports, or ships (except as a common or contract carrier of pecans
owned by another person), or in any other way puts inshell or shelled
pecans in the stream of commerce. The term first handler includes a
producer who handles or markets pecans of the producer's own
production.
Sec. 1223.8 Fiscal period.
Fiscal period means October 1 to September 30, or such other period
as recommended by the Board and approved by the Secretary.
Sec. 1223.9 Importer.
Importer means any person who imports pecans into the United States
as a principal or as an agent, broker, or consignee of any person who
produces or handles pecans outside of the United States for sale in the
United States, and who is listed in the import records as the importer
of record for such pecans.
Sec. 1223.10 Information.
Information means information and programs that are designed to
increase efficiency in processing and to develop new markets, marketing
strategies, increase market efficiency, and activities that are
designed to enhance the image of pecans on a national or international
basis. 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
pecans; and
(b) Industry information, which means information and programs that
will lead to the development of new markets, new marketing strategies,
or increased efficiency for the pecan industry, and activities to
enhance the image of the pecan industry.
Sec. 1223.11 Inshell pecans.
Inshell pecans are nuts whose kernel is maintained inside the
shell.
Sec. 1223.12 Market or marketing.
(a) Marketing means the sale or other disposition of pecans in any
channel of commerce.
(b) To market means to sell or otherwise dispose of pecans in
interstate, foreign, or intrastate commerce.
Sec. 1223.13 Order.
Order means an order issued by the Secretary under section 514 of
the Act that provides for a program of generic promotion, research, and
information regarding agricultural commodities authorized under the
Act.
Sec. 1223.14 Part and subpart.
This part is comprised of all rules, regulations, and supplemental
orders issued pursuant to the Act and the Order. The Pecan Promotion,
Research, and Information Order comprises subpart A of this part.
Sec. 1223.15 Pecans.
Pecans means and includes any and all varieties or subvarieties,
inshell or shelled, of Carya illinoinensis grown or imported into the
United States.
Sec. 1223.16 Person.
Person means any individual, group of individuals, partnership,
corporation, association, cooperative, or any other legal entity.
Sec. 1223.17 Producer.
Producer is synonymous with grower and means any person engaged in
the production and sale of pecans in the United States who owns, or who
shares in the ownership and risk of loss of such pecans.
Sec. 1223.18 Programs, plans, and projects.
Programs, plans, and projects mean those research, promotion, and
information programs, plans, or projects established pursuant to this
subpart.
Sec. 1223.19 Promotion.
Promotion means any action taken to present a favorable image of
pecans to the general public and the food industry for the purpose of
improving the competitive position of pecans both in the United States
and abroad and stimulating the sale of pecans. This includes paid
advertising and public relations.
Sec. 1223.20 Research.
Research means any type of test, study, or analysis designed to
advance the image, desirability, use, marketability, production,
product development, or quality of pecans, including research relating
to nutritional value, cost of production, new product development,
varietal development, nutritional value, health research, and marketing
of pecans.
Sec. 1223.21 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 the Secretary's stead.
Sec. 1223.22 Shelled pecans.
Shelled pecans are pecans whose shells have been removed leaving
only edible kernels, kernel pieces or pecan
[[Page 2894]]
meal. One pound of shelled pecans is the equivalent of two pounds
inshell pecans.
Sec. 1223.23 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. 1223.24 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 date certain specified in the rule.
Sec. 1223.25 United States.
United States means collectively the 50 states, the District of
Columbia, the Commonwealth of Puerto Rico, and the territories and
possessions of the United States.
American Pecan Promotion Board
Sec. 1223.40 Establishment and membership.
(a) Establishment of the American Pecan Promotion Board. There is
hereby established an American Pecan Promotion Board, called the Board
in this part, comprised of seventeen (17) members, appointed by the
Secretary from nominations as follows:
(1) Ten (10) producer members: Three (3) each from the Eastern
Region and Central Region and four (4) from the Western Region as
follows:
(i) Eastern Region shall mean the States of Alabama, Florida,
Georgia, North Carolina, South Carolina plus any states in the United
States, the majority of whose land mass is in the Eastern Time Zone,
plus any U.S. territories in the Atlantic Ocean;
(ii) Central Region shall mean the States of Arkansas, Kansas,
Louisiana, Mississippi, Missouri, Oklahoma, Texas plus any states in
the United States, the majority of whose land mass is in the Central
Time Zone; and
(iii) Western Region shall mean the States of Arizona, California,
New Mexico plus any states in the United States, the majority of whose
land mass is in the Mountain or Pacific Time Zones, plus Alaska and
Hawaii and any U.S. territories in the Pacific Ocean.
(2) Seven (7) importers.
(b) Adjustment of membership. At least once every five years, the
Board will review the geographical distribution of United States
production of pecans and the quantity or value of imports. The review
will be conducted through an audit of state crop production and Customs
figures and Board assessment records. If warranted, the Board will
recommend to the Secretary that the membership on the Board be altered
to reflect any changes in the geographical distribution of domestic
pecan production and the quantity or value of imports. If the level of
imports fluctuates versus domestic pecan production, importer members
may be added to or reduced from the Board.
(c) Board's ability to serve the diversity of the industry. When
making recommendations for appointments, the industry should take into
account the diversity of the population served and the knowledge,
skills, and abilities of the members to serve a diverse population,
size of the operations, methods of production and distribution, and
other distinguishing factors to ensure that the recommendations of the
Board take into account the diverse interest of persons responsible for
paying assessments, and others in the marketing chain, if appropriate.
Sec. 1223.41 Nominations and appointments.
(a) Initial nominations for producers will be submitted to the
Secretary by the American Pecan Council (APC), or the Department if
appropriate. Before considering any nominations, the APC shall
publicize the nomination process, using trade press or other means it
deems appropriate, to reach out to all known producers for the U.S.
market. The APC may use regional caucuses, mail or other methods to
elicit potential nominees. The APC shall submit the nominations to the
Secretary and recommend two nominees for each Board position specified
in paragraph (a)(1) of Sec. 1223.40. The Department will conduct
initial nominations for the importer members. The Secretary shall
appoint the members of the Board.
(b) Subsequent nominations shall be conducted as follows:
(1) Nomination of producer members will be conducted by the Board.
The Board staff will seek nominations for each vacant producer seat
from each region from producers who have paid their assessments to the
Board in the most recent fiscal period and who produced more than
50,000 pounds of inshell pecans (25,000 pounds of shelled pecans) on
average for four fiscal periods (the fiscal period for which
nominations are being conducted and the previous three fiscal periods).
Producers who produce pecans in more than one region may seek
nomination only in the region in which they produce the majority of
their pecans. Nominations will be submitted to the Board office and
placed on a ballot that will be sent to producers in each region for a
vote. Producers may only vote in the region in which they produce the
majority of their pecans. The votes shall be tabulated for each region
with the nominee receiving the highest number of votes at the top of
the list in descending order by vote. Two candidates for each position
shall be submitted to the Secretary; and
(2) Nomination of importer members will be conducted by the Board.
All qualified national organizations representing importer interests
will have the opportunity to nominate members to serve on the Board. If
the Secretary determines that there are no qualified national
organizations representing importer interests, individual importers who
have paid assessments to the Board in the most recent fiscal period and
imported more than 50,000 pounds of inshell pecans (25,000 pounds of
shelled pecans) on average for four fiscal periods (the fiscal period
for which nominations are being conducted and the previous three fiscal
periods) may submit nominations. The names of importer nominees shall
be placed on a ballot and mailed to importers for a vote. The votes
shall be tabulated with the nominee receiving the highest number of
votes at the top of the list in descending order by vote. Two
candidates for each importer Board position shall be submitted to the
Secretary. To be certified by the Secretary as a qualified national
organization representing importer interests, an organization must meet
the following criteria, as evidenced by a report submitted by the
organization to the Secretary:
(i) The organization's voting membership must be comprised
primarily of importers of pecans;
(ii) The organization has a history of stability and permanency and
has been in existence for more than one year;
(iii) The organization must derive a portion of its operating funds
from importers;
(iv) The organization must demonstrate it is willing and able to
further the Act and Order's purposes; and
(v) To be certified by the Secretary as a qualified national
organization representing importer interests, an organization must
agree to take reasonable steps to publicize to non-members the
availability of open Board importer positions.
(c) Producer and importer nominees may provide the Board a short
background statement outlining their qualifications to serve on the
Board.
(d) Nominees must be in compliance with the applicable provisions
of this subpart.
(e) The Board must submit nominations to the Secretary at least six
[[Page 2895]]
months before the new Board term begins. The Secretary shall appoint
the members of the Board.
(f) No two members shall be employed by a single corporation,
company, partnership, or any other legal entity.
(g) The Board may recommend to the Secretary modifications to its
nomination procedures as it deems appropriate. Any such modifications
shall be implemented through rulemaking by the Secretary.
Sec. 1223.42 Term of office.
(a) With the exception of the initial Board, each Board member will
serve a three-year term or until the Secretary selects his or her
successor. Each term of office shall begin on October 1 and end on
September 30. No member may serve more than two consecutive terms,
excluding any term of office less than three years.
(b) For the initial board, the terms of Board members shall be
staggered for two, three, and four years. Determination of which of the
initial members shall serve a term of two, three, or four years shall
be determined at random. Those members serving an initial term of two,
three, or four years may serve one successive three-year term.
Sec. 1223.43 Vacancies.
(a) In the event that any member of the Board ceases to work for or
be affiliated with 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 member of the Board, or if a member of the Board engages in
acts of dishonesty or willful misconduct, the Board may recommend to
the Secretary that the member be removed from office. If the Secretary
finds the recommendation of the Board shows adequate cause, the
Secretary shall remove such member from office.
(c) Without recommendation of the Board, a member may be removed by
the Secretary upon showing of adequate cause, including the continued
failure by a member to submit reports or remit assessments required
under this part, if the Secretary determines that such member's
continued service would be detrimental to the achievement of the
purposes of the Act.
(d) Should the position of a member become vacant, successors for
the unexpired terms of such member shall be appointed in the manner
specified in Sec. Sec. 1223.40 and 1223.41, except that said
nomination and replacement shall not be required if said unexpired
terms are less than six months.
Sec. 1223.44 Procedure.
(a) At a Board meeting, it will be considered a quorum when a
majority of members are present.
(b) At the start of each fiscal period, the Board will select a
chairperson and vice chairperson who will conduct meetings and appoint
committee membership throughout that period.
(c) All Board and committee members will receive a minimum of 10
days advance notice of all Board and committee meetings, unless an
emergency meeting is declared by the Chairperson.
(d) Each member of the Board will be entitled to one vote on any
matter put to the Board, and the motion will carry if supported by one
vote more than 50 percent of the total votes represented by the Board
members present.
(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 also consist of individuals other than Board
members and such individuals may vote in committee meetings. These
committee members shall be appointed by the Chairperson and 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, and all telephone votes
shall be confirmed promptly in writing. In that event, all members and
the Secretary must be notified, and all members must be provided the
opportunity to vote. Any action so taken shall have the same force and
effect as though such action had been taken at a properly convened
meeting of the Board. All votes shall be recorded in Board minutes.
(g) There shall be no voting by proxy.
(h) The Chairperson shall be a voting member.
(i) The organization of the Board and the procedures for the
conducting of meetings of the Board shall be in accordance with its
bylaws, which shall be established by the Board and approved by the
Secretary.
Sec. 1223.45 Compensation and reimbursement.
The members of the Board when acting as members, shall serve
without compensation but shall be reimbursed for reasonable travel
expenses, as approved by the Board, incurred by them in the performance
of their duties as Board members.
Sec. 1223.46 Powers and duties.
The Board shall have the following powers and duties:
(a) To administer this subpart in accordance with its terms and
conditions and to collect assessments;
(b) To develop and recommend to the Secretary for approval such
bylaws as may be necessary for the functioning of the Board, and such
rules as may be necessary to administer this subpart, including
activities authorized to be carried out under this subpart;
(c) To meet, organize, and select from among the members of the
Board a chairperson, other officers, committees, and subcommittees, as
the Board determines to be appropriate;
(d) To employ persons, other than the Board members, or to enter
into contracts, other than with Board 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, or
to determine the contractual terms of such parties;
(e) To develop programs and projects, and enter into contracts or
agreements, which must be approved by the Secretary before becoming
effective, for the development and carrying out of programs or projects
of research, information, or promotion, and the payment of costs
thereof with funds collected pursuant to this subpart. Each contract or
agreement shall provide that any person who enters into a contract or
agreement with the Board shall develop and submit to the Board a
proposed activity; keep accurate records of all of its transactions
relating to the contract or agreement; account for funds received and
expended in connection with the contract or agreement; make periodic
reports to the Board of activities conducted under the contract or
agreement; and make such other reports available as the Board or the
Secretary considers relevant. Any contract or agreement shall provide
that:
(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
[[Page 2896]]
reports as the Secretary or the Board may require;
(3) The Secretary 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 Secretary fiscal
period budgets in accordance with Sec. 1223.50;
(g) To invest assessments collected under this part in accordance
with Sec. 1223.50;
(h) To maintain such records and books and prepare and submit such
reports and records from time to time to the Secretary as the Secretary
may prescribe; to make appropriate accounting with respect to the
receipt and disbursement of all funds entrusted to it; and to keep
records that accurately reflect the actions and transactions of the
Board;
(i) To cause its books to be audited by a competent auditor at the
end of each fiscal period and at such other times as the Secretary may
request, and to submit a report of the audit directly to the Secretary;
(j) To give the Secretary the same notice of meetings of the Board
as is given to members in order that the Secretary's representative(s)
may attend such meetings, and to keep and report minutes of each
meeting of the Board to the Secretary;
(k) To act as intermediary between the Secretary and any producer,
first handler, or importer;
(l) To furnish to the Secretary any information or records that the
Secretary may request;
(m) To receive, investigate, and report to the Secretary complaints
of violations of this subpart;
(n) To recommend to the Secretary such amendments to this subpart
as the Board considers appropriate; and
(o) To work to achieve an effective, continuous, and coordinated
program of promotion, research, consumer information, evaluation, and
industry information designed to strengthen the pecan industry's
position in the marketplace; maintain and expand existing markets and
uses for pecans; and to carry out programs, plans, and projects
designed to provide maximum benefits to the pecan industry.
Sec. 1223.47 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 would be a conflict of interest; and
(b) Using funds collected by the Board under this subpart to
undertake any action for the purpose of influencing legislation or
governmental action or policy, by local, state, national, and foreign
governments, other than recommending to the Secretary amendments to
this subpart.
(c) No program, plan, or project including advertising shall be
false or misleading or disparaging to another agricultural commodity.
Pecans of all origins shall be treated equally.
Expenses and Assessments
Sec. 1223.50 Budget and expenses.
(a) At least 60 days prior to the beginning of each fiscal period,
and as may be necessary thereafter, the Board shall prepare and submit
to the Secretary a budget for the fiscal period 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 for 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 Secretary, including shifting
funds from one program, plan, or project to another. Shifts of funds
which do not cause an increase in the Board's approved budget and which
are consistent with governing bylaws need not have prior approval by
the Secretary.
(d) The Board is authorized to incur such expenses, including
provision for a reasonable reserve, as the Secretary finds are
reasonable and likely to be incurred by the Board for its maintenance
and functioning, and to enable it to exercise its powers and perform
its duties in accordance with the provisions of this subpart. Such
expenses shall be paid from funds received by the Board.
(e) With approval of the Secretary, the Board may borrow money for
the payment of administrative expenses, subject to the same fiscal,
budget, and audit controls as other funds of the Board. Any funds
borrowed by the Board shall be expended only for startup costs and
capital outlays and are limited to the first year of operation of the
Board.
(f) The Board may accept voluntary contributions, but these shall
only be used to pay expenses incurred in the conduct of programs,
plans, and projects. Such contributions shall be free from any
encumbrance by the donor and the Board shall retain complete control of
their use.
(g) The Board may also receive funds provided through the
Department's Foreign Agricultural Service or from other sources, for
authorized activities.
(h) The Board shall reimburse the Secretary for all expenses
incurred by the Secretary in the implementation, administration, and
supervision of this subpart, including all referendum costs in
connection with this subpart.
(i) For fiscal periods beginning three (3) or more years after the
date of the establishment of the Board, the Board may not expend for
administration, maintenance, and functioning of the Board in any fiscal
period an amount that exceeds 15 percent of the assessments and other
income received by the Board for that fiscal period. Reimbursements to
the Secretary required under paragraph (h) of this section are excluded
from this limitation on spending.
(j) 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 the
last two fiscal periods' budget of expenses. Subject to approval by the
Secretary, such reserve funds may be used to defray any expenses
authorized under this part.
(k) Pending disbursement of assessments and all other revenue under
a budget approved by the Secretary, the Board may invest assessments
and all other revenues collected under this part in:
(1) Obligations of the United States or any agency of the United
States;
(2) General obligations of any State or any political subdivision
of a State;
(3) Interest bearing accounts or certificates of deposit of
financial institutions that are members of the Federal Reserve System;
(4) Obligations fully guaranteed as to principal interest by the
United States; or
(5) Other investments as authorized by the Secretary.
[[Page 2897]]
Sec. 1223.51 Financial statements.
(a) The Board shall prepare and submit financial statements to the
Secretary on a monthly or quarterly basis or at any other time as
requested by the Secretary. 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 Secretary
within 30 days after the end of the time period to which it applies.
(c) The Board shall submit annually to the Secretary an annual
financial statement within 90 days after the end of the fiscal period
to which it applies.
Sec. 1223.52 Assessments.
(a) The funds to cover the Board's expenses shall be paid from
assessments on producers and importers, other income of the Board, and
other funds available to the Board including those collected pursuant
to Sec. 1223.57 and subject to the limitations contained in Sec.
1223.57.
(b) Each producer shall pay an assessment per pound of pecans
produced in the United States. The collection of assessments on pecans
produced in the United States will be the responsibility of the first
handler receiving the pecans from producers. In the case of the
producer acting as its own first handler, the producer will be required
to collect and remit its individual assessments.
(1) First handlers may remit assessments to a third-party
collection agent under this subpart.
(2) First handlers may also remit assessments directly to the
Board.
(c) Such assessments shall be levied at $0.02 per pound on all
inshell pecans and $0.04 per pound on all shelled pecans. The
assessment rate may be reviewed and modified with the approval of the
Secretary. A change in the assessment rate is subject to rulemaking by
the Secretary.
(d) All assessment payments and reports will be submitted to the
office of the Board. All assessment payments for a fiscal period are to
be received no later than the 10th of the month following the end of
the previous month. A late payment charge shall be imposed on any
producer and importer who fails to remit to the Board, the total amount
for which any such producer and importer is liable on or before the due
date established by the Board on forms approved by the Secretary. In
addition to the late payment charge, an interest charge shall be
imposed on the outstanding amount for which the producer and importer
is liable. The rate of interest shall be prescribed in regulations
issued by the Secretary.
(e) Each importer of pecans shall pay an assessment to the Board on
pecans imported for marketing in the United States, through Customs.
(1) The assessment rate for imported pecans shall be the same or
equivalent to the rate for pecans produced in the United States.
(2) The import assessment shall be uniformly applied to imported
pecans that are identified by the number 0802.90.10.00 and
0802.90.15.00 in the Harmonized Tariff Schedule (HTS) of the United
States or any other numbers used to identify pecans in that schedule.
(3) In the event that any HTS number is subject to assessment is
changed and such change is merely a replacement of a previous number
and has no impact on the description of pecans, assessment will
continue to be collected based on the new numbers.
(4) The assessment due on imported pecans shall be paid when they
enter, or are withdrawn from warehouse, for consumption in the United
States.
(5) If Customs does not collect an assessment from an importer, the
importer is responsible for paying the assessment directly to the Board
no later than the 10th of the month following the month the assessed
pecans were imported into the United States.
(f) Persons failing to remit total assessments due in a timely
manner may also be subject to actions under Federal debt collection
procedures.
(g) The Board may authorize other organizations to collect
assessments on its behalf with the approval of the Secretary.
Sec. 1223.53 Exemption procedures.
(a) De minimis. An exemption from payment of assessments as
provided in Sec. 1223.52, shall be provided to producers that
domestically produce and importers that import less than 50,000 pounds
of inshell pecans (25,000 pounds of shelled pecans) on average for four
fiscal periods (the fiscal period for which the exemption is claimed
and the previous three fiscal periods) as follows:
(1) Any producer who desires to claim an exemption from assessments
shall file an application on a form provided by the Board, for a
certificate of exemption for each fiscal period claiming an exemption.
Such producer shall certify that it will domestically produce less than
50,000 pounds of inshell pecans (25,000 pounds of shelled pecans) on
average for four fiscal periods (the fiscal period for which the
exemption is claimed and the previous three fiscal periods). It is the
responsibility of the producer to retain a copy of the certificate of
exemption.
(2) Any importer who desires to claim an exemption from assessments
shall file an application on a form provided by the Board, for a
certificate of exemption for each fiscal period claiming an exemption.
Such importer shall certify that it will import less than 50,000 pounds
of inshell pecans (25,000 pounds of shelled pecans) on average for four
fiscal periods (the fiscal period for which the exemption is claimed
and the previous three fiscal periods). It is the responsibility of the
importer to retain a copy of the certificate of exemption.
(3) On receipt of an exemption application, the Board shall
determine whether an exemption may be granted for that fiscal period.
The Board will then issue, if deemed appropriate, a certificate of
exemption to the producer or importer which is eligible to receive one
covering that fiscal period. The Board may request persons applying for
the exemption to provide supporting documentation, such as past sales
receipts or import data.
(4) The Board, with the Secretary's approval, may require persons
receiving an exemption from assessments to provide to the Board reports
on the disposition of exempt pecans and, in the case of importers,
proof of payment of assessments.
(5) The exemption will apply immediately following the issuance of
the certificate of exemption.
(6) Producers and importers who received an exemption certificate
from the Board but domestically produced or imported more than 50,000
pounds of inshell pecans (25,000 shelled of pecans) on average for four
fiscal periods (the fiscal period for which the exemption is claimed
and the previous three fiscal periods) during the fiscal period shall
pay the Board the applicable assessments owed and submit any necessary
reports to the Board pursuant to Sec. 1223.60.
(b) Assessment refunds. Importers and producers who are exempt from
assessment shall be eligible for a refund of assessments collected,
either by Customs or a first handler. Requests for such assessment
refunds must be submitted to the Board within 90 days of the last day
in the fiscal period when assessments were collected on such producer's
or importer's pecans. No interest will be paid on such assessments. The
Board shall refund such assessments no later than 60 calendar days
after receipt by the Board
[[Page 2898]]
of information justifying the exemption from assessment.
(c) Organic. (1) A producer who domestically produces pecans under
an approved National Organic Program (7 CFR part 205) (NOP) organic
production system plan may be exempt from the payment of assessments
under this part, provided that:
(i) Only agricultural products certified as ``organic'' or ``100
percent organic'' (as defined in the NOP) are eligible for exemption;
(ii) The exemption shall apply to all certified ``organic'' or
``100 percent organic'' (as defined in the NOP) products of a producer
regardless of whether the agricultural commodity subject to the
exemption is produced by a person that also produces conventional or
nonorganic agricultural products of the same agricultural commodity as
that for which the exemption is claimed;
(iii) The producer maintains a valid certificate of organic
operation as issued under the Organic Foods Production Act of 1990 (7
U.S.C. 6501-6522) (OFPA) and the NOP regulations issued under OFPA (7
CFR part 205); and
(iv) Any producer so exempted shall continue to be obligated to pay
assessments under this part that are associated with any agricultural
products that do not qualify for an exemption under this section.
(2) To apply for exemption under this section, an eligible producer
shall submit a request to the Board on an Organic Exemption Request
Form (Form AMS-15) at any time during the fiscal period initially, and
annually thereafter on or before the start of the fiscal period, for as
long as the producer continues to be eligible for the exemption.
(3) A producer request for exemption shall include the following:
(i) The applicant's full name, company name, address, telephone and
fax numbers, and email address;
(ii) Certification that the applicant maintains a valid certificate
of organic operation issued under the OFPA and the NOP;
(iii) Certification that the applicant produces organic products
eligible to be labeled ``organic'' or ``100 percent organic'' under the
NOP;
(iv) A requirement that the applicant attach a copy of their
certificate of organic operation issued by a USDA-accredited certifying
agent;
(v) Certification, as evidenced by signature and date, that all
information provided by the applicant is true; and
(vi) Such other information as may be required by the Board, with
the approval of the Secretary.
(4) If a producer complies with the requirements of this section,
the Board will grant an assessment exemption and issue a Certificate of
Exemption to the producer within 30 days. If the application is
disapproved, the Board will notify the applicant of the reason(s) for
disapproval within the same timeframe.
(5) An importer who imports pecans that are eligible to be labeled
as ``organic'' or ``100 percent organic'' under the NOP, or certified
as ``organic'' or ``100 percent organic'' under a U.S. equivalency
arrangement established under the NOP, may be exempt from the payment
of assessments. Such importer may submit documentation to the Board and
request an exemption from assessment on certified ``organic'' or ``100
percent organic'' pecans on an Organic Exemption Request Form (Form
AMS-15) 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 a producer in paragraph (c)(3) 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 within the applicable timeframe. Any importer so exempted
shall continue to be obligated to pay assessments under this part that
are associated with any imported agricultural products that do not
qualify for an exemption under this section.
(6) If Customs collects the assessment on exempt product under
paragraph (c)(5) of this section that is identified as ``organic'' by a
number in the Harmonized Tariff Schedule, the Board must reimburse the
exempt importer the assessments paid upon receipt of such assessments
from Customs. For all other exempt organic product for which Customs
collects the assessment, the importer may apply to the Board for a
reimbursement of assessments paid, and the importer must submit
satisfactory proof to the Board that the importer paid the assessment
on exempt organic product.
(7) The exemption will apply immediately following the issuance of
the Certificate of Exemption.
Sec. 1223.54 Refund escrow accounts.
(a) The Board shall establish an interest bearing escrow account
with a financial institution that is a member of the Federal Reserve
System and will deposit into such account an amount equal to 10 percent
of the assessments collected during the period beginning on the
effective date of the Order and ending on the date the Secretary
announces the results of the required referendum.
(b) If the Order is not approved by the required referendum, the
Board shall promptly pay refunds of assessments to all producers and
importers that have paid assessments during the period beginning on the
effective date of the Order and ending on the date the Secretary
announces the results of the required referendum in the manner
specified in paragraph (c) of this section.
(c) If the amount deposited in the escrow account is less than the
amount of all refunds that producers and importers subject to this
subpart have a right to receive, the Board shall prorate the amount
deposited in such account among all producers and importers who desire
a refund of assessments paid no later than 90 days after the required
referendum results are announced by the Secretary.
(d) Any producer or importer requesting a refund shall submit an
application on the prescribed form to the Board within 60 days from the
date the results of the required referendum are announced by the
Secretary. The producer and importer shall also submit documentation to
substantiate that assessments were paid. Any such demand shall be made
by such producer or importer in accordance with the provisions of this
subpart and in a manner consistent with the regulations in this part.
(e) If the Order is approved by the required referendum conducted
under Sec. 1223.71 then:
(1) The escrow account shall be closed; and,
(2) The funds shall be available to the Board for disbursement
under Sec. 1223.50.
Promotion, Research, and Information
Sec. 1223.55 Programs, plans, and projects.
(a) The Board shall receive and evaluate, or on its own initiative
develop, and submit to the Secretary for approval any program, plan, or
project authorized under this subpart. Such programs, plans, or
projects shall provide for:
(1) The establishment, issuance, effectuation, and administration
of appropriate programs for promotion, research, and information,
including producer and consumer information, with respect to pecans;
and
(2) The establishment and conduct of research with respect to the
use, nutritional value, sale, distribution, and marketing of pecans,
and the creation of new products thereof, to the end that the marketing
and use of pecans may be
[[Page 2899]]
encouraged, expanded, improved, or made more acceptable and to advance
the image, desirability, or quality of pecans.
(b) No program, plan, or project shall be implemented prior to its
approval by the Secretary. Once a program, plan, or project is so
approved, the Board 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.
Sec. 1223.56 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 the effectiveness of the Order and other programs
conducted by the Board pursuant to the Act. The Board shall submit to
the Secretary, and make available to the public, the results of each
periodic independent evaluation conducted under this section.
Sec. 1223.57 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 Secretary. Upon termination of
this subpart, Sec. 1223.73 shall apply to determine disposition of all
such property.
Reports, Books, and Records
Sec. 1223.60 Reports.
(a) Each first handler, producer, or importer subject to this
subpart shall be required to provide to the Board periodically such
information as required by the Board, with the approval of the
Secretary, which may include but not be limited to the following:
(1) First handler must report or producer acting as its own first
handler:
(i) Number of pounds handled;
(ii) Number of pounds on which an assessment was collected;
(iii) Name, address and other contact information from whom the
first handler has collected the assessments on each pound handled; and
(iv) Date collection was made on each pound handled.
(2) Unless provided by Customs, importer must report:
(i) Number of pounds imported;
(ii) Number of pounds on which an assessment was paid;
(iii) Name, address, and other contact information of the importer;
and
(iv) Date assessment was paid on each pound imported.
(b) These reports shall accompany the payment of the collected
assessments.
Sec. 1223.61 Books and records.
Each producer, first handler, and importer subject to this subpart
shall maintain and make available for inspection by the Secretary such
books and records as are necessary to carry out the provisions of this
part, including such records as are necessary to verify any reports
required. Such records shall be retained for at least 3 years beyond
the fiscal period of their applicability.
Sec. 1223.62 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,
producers, importers, or first handlers. Only those persons having a
specific need for such information to effectively administer the
provisions of this subpart shall have access to such information. Only
such information so obtained as the Secretary deems relevant shall be
disclosed by them, and then only in a judicial proceeding or
administrative hearing brought at the direction, or on the request, of
the Secretary, or to which the Secretary or any officer of the United
States is a party and involving this subpart. Nothing in this section
shall be deemed to prohibit:
(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 will not identify 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 subpart,
together with a statement of the particular provisions of this subpart
violated by such person.
Miscellaneous
Sec. 1223.70 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. 1223.71 Referenda.
(a) Required referendum. For the purpose of ascertaining whether
the persons subject to this subpart favor the continuation, suspension,
amendment, or termination of this subpart, the Secretary shall conduct
a referendum among persons subject to assessments under Sec. 1223.52
who, during a representative period determined by the Secretary, have
engaged in the production or importation of pecans:
(1) The required referendum shall be conducted not later than 3
years after assessments first begin under the Order; and
(2) The Order will be approved in a referendum if a majority of
producers and importers vote for approval in the referendum.
(b) Subsequent referenda. The Secretary shall conduct subsequent
referenda:
(1) For the purpose of ascertaining whether producers and importers
favor the continuation, suspension, or termination of the Order;
(2) Every seven years the Secretary shall hold a referendum to
determine whether producers and importers of pecans favor the
continuation of the Order. The Order shall continue if it is favored by
a majority of producers and importers voting for approval in the
referendum who have been engaged in the production or importation of
pecans;
(3) At the request of the Board established in this subpart;
(4) At the request of 10 percent or more of the number of persons
eligible to vote in a referendum as set forth under the Order; or
(5) At any time as determined by the Secretary.
Sec. 1223.72 Suspension and termination.
(a) The Secretary shall suspend or terminate this part or subpart
or a provision thereof if the Secretary finds that this part or subpart
or a provision thereof obstructs or does not tend to effectuate the
purposes of the Act, or if
[[Page 2900]]
the Secretary determines that this part or subpart or a provision
thereof is not favored by persons voting in a referendum conducted
pursuant to the Act.
(b) The Secretary shall suspend or terminate this subpart at the
end of the fiscal period whenever the Secretary determines that its
suspension or termination is approved or favored by a majority of
producers and importers voting for approval who, during a
representative period determined by the Secretary, have been engaged in
the production or importation of pecans.
(c) If, as a result of a referendum the Secretary determines that
this subpart is not approved, the Secretary 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. 1223.73 Proceedings after termination.
(a) Upon the termination of this subpart, the Board shall recommend
not more than three of its members to the Secretary to serve as
trustees for the purpose of liquidating the affairs of the Board. Such
persons, upon designation by the Secretary, shall become trustees of
all 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 Board under any contracts or
agreements entered into pursuant to this subpart;
(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 and appropriate to vest in such person's title
and right to all funds, property, and claims vested in the Board or the
trustees pursuant to this subpart.
(c) Any person to whom funds, property, or claims have been
transferred or delivered pursuant to this subpart 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 Secretary to be
disposed of, to the extent practical, to the pecan producer
organizations in the interest of continuing pecan promotion, research,
and information programs.
Sec. 1223.74 Effect of termination or amendment.
Unless otherwise expressly provided by the Secretary, the
termination of this part, or the issuance of any amendment to this
part, 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 Secretary or of any other persons, with respect to any such
violation.
Sec. 1223.75 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. 1223.76 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. 1223.77 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 Secretary.
Sec. 1223.78 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 1995, 44 U.S.C. Chapter 35, is OMB control
number 0581-NEW, except for the Board nominee background statement form
which is assigned OMB control number 0505-0001.
Subpart B--Referendum Procedures
Sec. 1223.100 General.
Referenda to determine whether eligible pecan producers and
importers favor the issuance, amendment, suspension, or termination of
the Pecan Promotion, Research, and Information Order shall be conducted
in accordance with this subpart.
Sec. 1223.101 Definitions.
(a) Administrator means the Administrator of the Agricultural
Marketing Service, with power to redelegate, or any officer or
employees 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) Eligible importer means any person who, during the
representative period, was subject to the Order and required to pay
assessments on pecans imported into the United States.
(c) Eligible producer means any person who, during the
representative period, was subject to the Order and required to pay
assessments on pecans produced in the United States.
(d) Order means subpart A of this part, the Pecan Promotion,
Research, and Information Order.
(e) Pecans means and includes any and all varieties or
subvarieties, inshell and shelled, of Carya illinoinensis grown or
imported into the United States.
(f) Person means any individual, group of individuals, partnership,
corporation, association, cooperative, or any other legal entity. For
the purpose of this paragraph (f), the term ``partnership'' includes,
but is not limited to:
(1) A husband and a wife who have title to, or leasehold interest
in, a pecan 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.
(g) Referendum agent or agent means the individual or individuals
designated by the Secretary to conduct the referendum.
(h) Representative period means the period designated by the
Secretary.
(i) United States means collectively the 50 states, the District of
Columbia, the Commonwealth of Puerto Rico, and the territories and
possessions of the United States.
Sec. 1223.102 Voting.
(a) Each person who is an eligible producer or an eligible
importer, as defined in this subpart, at the time of
[[Page 2901]]
the referendum and during the representative period, shall be entitled
to cast only one ballot in the referendum. However, each producer in a
landlord-tenant relationship or a divided ownership arrangement
involving totally independent entities cooperating only to produce
pecans, in which more than one of the parties is a producer, shall be
entitled to cast one ballot in the referendum covering only such
producer's share of the ownership.
(b) Proxy voting is not authorized, but an officer or employee of a
corporate producer or importer, or an administrator, executor, or
trustee or an eligible entity may cast a ballot on behalf of such
person. 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, overnight delivery,
electronic mail, facsimile, or by other means as instructed by the
Secretary.
Sec. 1223.103 Instructions.
The referendum agent shall conduct the referendum, in the manner
provided in this section, under the supervision of the Administrator.
The Administrator may prescribe additional instructions, not
inconsistent with the provisions in this section, to govern the
procedure to be followed by the referendum agent. Such agent shall:
(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
(2) By such other means as the agent may deem advisable.
(d) Mail to eligible producers and eligible 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. 1223.104 Subagents.
The referendum agent may appoint any individual or individuals
necessary or desirable to assist the agent in performing the referendum
agent's functions listed in this subpart. Each individual so appointed
may be authorized by the agent to perform any or all of the functions
which, in the absence of such appointment, shall be performed by the
agent.
Sec. 1223.105 Ballots.
The referendum agent and subagents shall accept all ballots cast.
However, if the 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. 1223.106 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. 1223.107 Confidential information.
The ballots and other information or reports that reveal, or tend
to reveal, the vote of any person covered under the Act and the voting
list shall be held confidential and shall not be disclosed.
Subpart C--Administrative Provisions
Sec. 1223.520 Late payment and interest charges for past due
assessments.
(a) A late payment charge will be imposed on any producer, first
handler or importer who fails to make timely remittance to the Board of
the total assessments for which they are liable. The late payment will
be imposed on any assessments not received within 30 calendar days of
the date when assessments are due. This one-time late payment charge
will be 5 percent of the assessments due before interest charges have
accrued.
(b) In addition to the late payment charge, 1 percent per month
interest on the outstanding balance, including any late payment and
accrued interest, will be added to any accounts for which payment has
not been received within 30 calendar days of the date when assessments
are due. Interest will continue to accrue monthly until the outstanding
balance is paid to the Board.
Bruce Summers,
Administrator, Agricultural Marketing Service.
[FR Doc. 2021-00328 Filed 1-12-21; 8:45 am]
BILLING CODE 3410-02-P