[Federal Register Volume 61, Number 192 (Wednesday, October 2, 1996)]
[Proposed Rules]
[Pages 51378-51391]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-24844]
[[Page 51378]]
-----------------------------------------------------------------------
DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Part 1214
[FV-96-705PR]
Proposed Kiwifruit Research, Promotion, and Consumer Information
Order
AGENCY: Agricultural Marketing Service, USDA.
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: The U.S. Department of Agriculture (Department) is seeking
comments on an industry-funded research, promotion and consumer
information program for fresh kiwifruit. An Order for the proposed
program--the Kiwifruit Research, Promotion, and Consumer Information
Order--was submitted to the Department by the California Kiwifruit
Commission. In addition, the New Zealand Kiwifruit Marketing Board
submitted a partial proposal. Under the proposed Order, producers and
importers would pay an assessment not to exceed 10 cents per 7-pound
tray of kiwifruit to the proposed National Kiwifruit Board. Composed of
producers and importers or exporters, the Board would use the
assessments collected to conduct a generic program of research,
promotion, and consumer information to maintain, expand, and develop
markets for kiwifruit. In addition, in accordance with the Paperwork
Reduction Act of 1995, this proposed rule specifies the public
reporting burden for the collection of information involved in
reporting the necessary information to administer the program.
DATES: Comments must be received by December 2, 1996.
ADDRESSES: Interested persons are invited to submit written comments
concerning the proposed rule to: Research and Promotion Branch, Fruit
and Vegetable Division, Agricultural Marketing Service (AMS), USDA,
P.O. Box 96456, Room 2535-S, Washington, DC 20090-6456, fax (202) 205-
2800. Three copies of all written material should be submitted, and
they will be made available for public inspection at the Research and
Promotion Branch during regular business hours. All comments should
reference the docket number and the date and page number of this issue
of the Federal Register. Also, pursuant to the Paperwork Reduction Act,
send comments regarding the accuracy of the burden estimate, ways to
minimize the burden, including through the use of automated collection
techniques or other forms of information technology, or any other
aspect of this collection of information, to the above address.
FOR FURTHER INFORMATION CONTACT: Sonia N. Jimenez, Research and
Promotion Branch, Fruit and Vegetable Division, AMS, USDA, P.O. Box
96456, Room 2535-S, Washington, DC 20090-6456, telephone (202) 720-9916
or (1)(888) 720-9917.
SUPPLEMENTARY INFORMATION: This proposed Order is issued under the
National Kiwifruit Research, Promotion, and Consumer Information Act,
Subtitle V of the Federal Agricultural Improvement and Reform Act of
1996 [Pub. L. 104-127], enacted April 4, 1996, hereinafter referred to
as the Act.
Executive Order 12988
This rule has been reviewed under Executive Order 12988, Civil
Justice Reform. It is not intended to have retroactive effect. This
rule would not preempt any State or local laws, regulations, or
policies, unless they present an irreconcilable conflict with this
rule.
The Act provides that administrative proceedings must be exhausted
before parties may file suit in court. Under Sec. 558 of the Act, after
an Order is implemented, a person subject to the Order may file a
petition with the Secretary stating that the Order or any provision of
the Order, or any obligation imposed in connection with the Order, is
not in accordance with law and requesting a modification of the Order
or an exemption from the Order. The petitioner is afforded the
opportunity for a hearing on the petition. After such hearing, the
Secretary will make a ruling on the petition. The Act provides that the
district courts of the United States in any district in which a person
who is a petitioner resides or carries on business are vested with
jurisdiction to review the Secretary's ruling on the petition, if a
complaint for that purpose is filed within 20 days after the date of
the entry of the ruling.
Executive Order 12866 and Regulatory Flexibility Act
This rule has been determined not significant for purposes of
Executive Order 12866, and therefore has not been reviewed by the
Office of Management and Budget.
In accordance with the Regulatory Flexibility Act [5 U.S.C. 601 et
seq.], the Agency is required to examine the impact of the proposed
rule on small entities.
The kiwifruit industry initiated this program asking the U.S.
Congress (Congress) to pass legislation to create a generic program of
promotion and research for kiwifruit. Congress found that this program
is vital to the welfare of kiwifruit producers and other persons
concerned with producing, marketing, and processing kiwifruit.
This program is intended to: develop and finance an effective and
coordinated program of research, promotion, and consumer information
regarding kiwifruit; strengthen the position of the kiwifruit industry
in domestic and foreign markets and maintain, develop, and expand
markets for kiwifruit; and to treat domestically produced kiwifruit and
imported kiwifruit equitably.
The industry support for the program will be determined during a
referendum to be conducted by the USDA before the program is
implemented.
This program was initiated by industry, industry must approve the
program in a referendum in advance of its implementation, and industry
members would serve on the promotion board that would administer the
program under the Department's supervision. In addition, any person
subject to the program may file with the Secretary a petition stating
that the order or any provision is not in accordance with law and
requesting a modification of the order or an exemption from the order.
Administrative proceedings were discussed earlier in this proposed
rule.
In this program, handlers would be required to collect assessments
from producers, file reports, and submit assessments to the promotion
board. Importers would be required to remit to the promotion board
assessments not collected by the U.S. Customs Service and to file
reports with the promotion board. In addition, exempt producers and
importers would be required to file an exemption application. While the
proposed Order would impose certain recordkeeping requirements on
handlers and importers, information required under the proposed Order
could be compiled from records currently maintained. The forms 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 Act. The estimated cost in providing information to the
promotion board by the 760 respondents would be $7,842.50 or $10.32 per
respondent per year.
The Department would oversee the program operations and, if the
program is implemented, every 6 years would conduct a referendum to
determine whether the kiwifruit industry supports continuation of the
program.
There are approximately 650 producers, 45 importers, and 65
[[Page 51379]]
handlers of kiwifruit that would be covered by the program. Small
agricultural service firms, which would include the handlers and
importers who would be covered under the Order, have been defined by
the Small Business Administration (SBA) [13 CFR 121.601] as those whose
annual receipts are less than $5 million and small agricultural
producers, those who would be required to pay assessments, as those
having annual receipts of $500,000. Only one handler has been
identified to have $5 million in annual sales. In addition, there are
10 producers at or over the $500,000 annual sales receipts threshold.
The Department does not have specific information regarding the size of
importers. However, it could be concluded that the majority of
kiwifruit producers and importers may be classified as small entities.
The Department is aware of kiwifruit producers in California,
Oregon, Pennsylvania, South Carolina, and importers that import
kiwifruit from Chile, New Zealand, and Italy. The Department believes
that these individuals would include majority of the producers and
importers that would be covered under the program.
California is the source for practically all of the kiwifruit
produced in the United States. The California kiwifruit industry
consists of approximately 600 producers and 65 handlers. Production
rose by 119 percent between 1984 and 1994, increasing from 18,000 tons
to 34,800 tons. In the same period, the value of production increased
by only 4 percent.
Most U.S. kiwifruit is utilized fresh. Fresh utilization increased
by 219 percent between 1984 and 1994, growing from 11,700 tons to
37,500 tons. The season average price during the same period fell by 54
percent, declining from $1,000 per ton to $491 per ton. Exports
accounted for about 29 percent of U.S. fresh utilization during that
period.
Between 1992 and 1994, the average annual production per producer,
including kiwifruit for processing, was 22,365 7-pound trays of
kiwifruit. The average price was $376 per ton, giving an average return
of about $29,000 per producer per year. The average value of total
production (fresh and processed) per year was $16.3 million. A typical
f.o.b. price during this period was $7.78 per tray, and the average
amount shipped per handler was about 190,176 trays, yielding an average
annual revenue per handler of $1.5 million. U.S. importers handled an
average of 172,163 trays per year per importer. During this period, the
average value of total imports per year was $17.1 million (f.o.b.
country of origin). The majority of kiwifruit came from Chile, with the
remaining coming from New Zealand and Italy.
The proposed kiwifruit Order would authorize assessment fees on
producers (to be collected by first handlers) and on importers
(collected by the U.S. Customs Service) of up to 10 cents per 7-pound
tray. The board, which will be composed of kiwifruit producer,
importers, and possibly, exporters, must recommend the assessment rate,
which is subject to oversight by the Secretary, as are the other rules
and regulations. At the maximum rate of assessment, the promotion board
would collect $2.1 million to administer the program. Assessments on
domestic production are expected to represent 60 percent of the income
under the program.
The effect of the assessments will depend on the actual rate
recommended by the promotion board. At the maximum rate, it is expected
that the effect on producers would be approximately 8 percent of their
average return. However, this rule exempts producers of less than 500
pounds of kiwifruit a year, importers of less than 10,000 pounds a
year, and kiwifruit sold for processing and sold directly to consumers.
Furthermore, under the proposed program, the promotion board could
authorize different reporting schedules based on different marketing
practices. This could be of benefit specially to small businesses who
could have a less frequent reporting period diminishing the reporting
burden for those businesses.
The Department would keep all these individuals informed throughout
the program implementation and referendum process to ensure that they
are aware of and are able to participate in the program implementation
process. In addition, trade associations and related industry media
would receive news releases and other information regarding the
implementation and referendum process. Furthermore, all the information
would be available through e-mail.
If the program is implemented, the promotion board would develop
guidelines for compliance with the program.
In addition, the kiwifruit industry would nominate individuals to
serve as members of the promotion board. These individuals would
recommend the assessment rate, programs and projects, a budget, and any
other rules and regulations that might be necessary for the
administration of the program. The USDA would ensure that the nominees
represent the kiwifruit industry as specified in the Act.
There is a federal marketing order program for kiwifruit in
California which is administered by the Kiwifruit Administrative
Committee (KAC), under USDA supervision. KAC is composed of California
producers. The marketing order regulations for grade, size, maturity,
and containers are designed to assure consumers consistently good
quality California kiwifruit. The marketing order and its regulations
allow small farmers to compete effectively in an increasingly
competitive marketplace. Under the marketing order handlers are
required to submit information pertaining to and pay assessments on
kiwifruit shipments. The assessment rate recommended by the KAC is
derived by dividing anticipated expenses by expected shipments of
kiwifruit. Because that rate is applied to actual shipments, it must be
established at a rate which will produce sufficient income to pay the
KAC's expected expenses. The 1995-96 assessment rate was set at 1.5
cents per tray or tray equivalent of kiwifruit. The 1994-95 rate of
assessment was 1.0 cent per tray or tray equivalent of kiwifruit. Each
handler pays an average of $2,000 per year in assessments. The
estimated reporting burden per year on individual handlers is estimated
at 4.2 hours or $42.00 per handler under the marketing order.
The California Kiwifruit Commission (CKC) administers a California
state program for kiwifruit. The CKC is composed of kiwifruit
producers, packers, and handlers. In 1995-96 it is estimated that
producers would pay $1,407,000 in assessments at a rate of 17 cents per
kiwifruit tray or tray equivalent. Handlers collect the assessments and
remit the money to the CKC.
The collection of information required under the proposed order for
the research and promotion program would be similar to the marketing
order program. However, the KAC and the promotion board would keep
their information separate to comply with confidentiality requirements
under the programs. Furthermore, using the same source of information
will reduce the burden on producers and handlers of all sizes.
The CKC is currently participating in a voluntary promotional
program with Chilean kiwifruit growers to jointly advertise kiwifruit
in the United States. The CKC is authorized under California state law.
This program, however, does not provide enough resources to be as
effective as a national generic program could be. In addition, other
importing countries and private companies spend considerable amounts of
resources in
[[Page 51380]]
kiwifruit advertising. The purpose of this proposed program is not to
restrict the individual promotions but to add a generic promotion
program for kiwifruit where industry segments pull together resources
for the benefit of the whole industry.
The absence of a generic program for kiwifruit may have a negative
impact on the industry because other commodity groups, specifically for
competing fruits, conduct promotion activities to maintain and expand
their markets. The kiwifruit industry would be at a disadvantage
because individual producers, handlers, and importers would not be able
to implement and finance such a program without cooperative action. In
addition, Agricultural Issues Forum, a group of 15 California commodity
organizations, conducted a study in mid-1995 and reported in early 1996
that consumers strongly support the concept of farmers working together
to promote their products, conduct product research, engage in consumer
education programs, and set quality standards and inspect products.
Consumers said that they benefited from these activities and were more
inclined to buy those products. Eighty-one percent of the farmers
surveyed said that mandated programs were either very important or
important in promoting products. The survey was conducted among
farmers, public policy leaders, consumers, retailers, and allied
industries.
While we have performed this Initial Regulatory Flexibility
Analysis regarding the impact of this proposed rule on small entities,
in order to have all the data necessary for a more comprehensive
analysis of the effects of this rule on small entities, we are inviting
comments concerning potential effects. In particular, we are interested
in determining the number and kind of small entities that may incur
benefits or costs from implementation of this proposed rule and
information on the expected benefits or costs.
Paperwork Reduction Act
In accordance with the Office of Management and Budget (OMB)
regulation [5 CFR Part 1320] which implements the Paperwork Reduction
Act of 1995 [44 U.S.C. Chapter 35], the information collection and
recordkeeping requirements that may be imposed by this order would be
submitted to OMB for approval. Those requirements would not become
effective prior to OMB review.
Title: National Research, Promotion, and Consumer Information
Programs.
OMB Number: 0581-0093.
Expiration Date of Approval: October 31, 1997.
Type of Request: Revision of a currently approved information
collection for research and promotion programs.
Abstract: The information collection requirements in this request
are essential to carry out the intent of the Act.
While the proposed Order would impose certain recordkeeping
requirements on handlers and importers, information required under the
proposed Order could be compiled from records currently maintained. The
proposed 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
maintained by handlers under the federal marketing order program in
California and the California Kiwifruit Commission. The information
needed would be taken from financial reports or sales receipts already
maintained.
The forms 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 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 promotion board.
The forms would be simple, easy to understand, and place as small a
burden as possible on the person required to file the information.
Collecting information monthly coincides with normal business
practices. Collecting information less frequently would hinder the
promotion board from effectively carrying out the provisions of its
program. Requiring reports less frequently than monthly would impose
additional recordkeeping requirements by requiring information from
several months to be consolidated prior to filling out the form rather
than just copying end-of-month figures already available onto the
forms. The timing and frequency of collecting information is intended
to meet the needs of the industry while minimizing the amount of work
necessary to fill out the required reports. In addition, the
information to be included on these forms is not available from other
sources because such information relates specifically to individual
producers and handlers who are subject to or exempted from the
provisions of the Act. Therefore, there is no practical method for
collecting the required information without the use of these forms.
The estimated cost in providing information to the promotion board
by the 760 respondents would be $7,842.50 or $10.32 per respondent.
This total has been estimated by multiplying 784.25 (total burden hours
requested) by $10.00 per hour, a sum deemed to be reasonable should the
respondents be compensated for their time.
Information collection requirements that are included in this
proposal include:
(1) A periodic report by each handler who handles kiwifruit.
Estimate of Burden: Public reporting burden for this collection of
information is estimated to average .50 hours per each handler
reporting on kiwifruit handled.
Respondents: Handlers.
Estimated Number of Respondents: 65.
Estimated Number of Responses per Respondent: 12.
Estimated Total Annual Burden on Respondents: 390 hours.
(2) A periodic report by each importer who imports kiwifruit.
Estimate of Burden: Public reporting burden for this collection of
information is estimated to average .25 hours per each importer
reporting on kiwifruit imported.
Respondents: Importers.
Estimated Number of Respondents: 45.
Estimated Number of Responses per Respondent: 12.
Estimated Total Annual Burden on Respondents: 135 hours.
(3) An exemption application for producers and importers of
kiwifruit producing less than 500 pounds and importing less than 10,000
pounds of kiwifruit a year respectively, persons which sell directly to
consumers or sell kiwifruit for processing who will be exempt from
assessments and reporting requirements.
Estimate of Burden: Public reporting burden for this collection of
information is estimated to average .25 hours per response for each
exempt producer and importer.
Respondents: Exempt producers and importers.
Estimated Number of Respondents: 50.
Estimated Number of Responses per Respondent: 1.
Estimated Total Annual Burden on Respondents: 12.5 hours.
(4) A referendum ballot to be used to determine whether producers
and importers covered by the Order favor implementation or continuance
of the Order.
Estimate of Burden: Public reporting burden for this collection of
information
[[Page 51381]]
is estimated to average .25 hours per response for each producer and
importer.
Respondents: Producers and importers.
Estimated Number of Respondents: 700.
Estimated Number of Responses per Respondent: 1 every 6 years
(.16).
Estimated Total Annual Burden on Respondents: 28 hours.
(5) Nominations.
Estimate of Burden: Public reporting burden for this collection of
information is estimated to average .5 hours per response.
Respondents: Producers and importers.
Estimated number of Respondents: 700.
Estimated Number of Responses per Respondent: 1 every 3 years
(.33).
Estimated Total Annual Burden on Respondents: 115.5 hours.
(6) A request for refund of assessments collected by Customs for
exempt importers.
Estimate of Burden: Public reporting burden for this collection of
information is estimated to average .25 hours per response for each
exempt importer requesting a refund of assessments collected by
Customs.
Respondents: Exempt importers.
Estimated number of Respondents: 5.
Estimated Number of Responses per Respondent: 1.
Estimated Total Annual Burden on Respondents: 1.25 hours.
(7) A background questionnaire for nominees.
Estimate of Burden: Public reporting burden for this collection of
information is estimated to average .5 hours per response for each
producer, importer, and public member nominated to the Board.
Respondents: Producers, importers, and public member
Estimated Number of Respondents: 22 for the initial nominations to
the Board and approximately 12 respondents annually thereafter.
Estimated Number of Responses per Respondent: 1.
Estimated Total Annual Burden on Respondents: 22 hours for the
initial nominations to the Board and 12 hours annually thereafter.
(8) 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 .5 hours per recordkeeper
maintaining such records.
Recordkeepers: Handlers and importers.
Estimated number of Recordkeepers: 160.
Estimated Total Recordkeeping Hours: 80 hours.
Comments are invited on: (a) Whether the proposed collection of
information is necessary for the proper performance of functions of the
Order and the Department's oversight of the program, including whether
the information will have practical utility; (b) the accuracy of the
AMS's estimate of the burden of the proposed collection of information
including the validity of the methodology and assumption used; (c) ways
to enhance the quality, utility, and clarity of the information to be
collected; and (d) 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
collections techniques or other forms of information technology.
Comments should reference OMB No. 0581-0093, the docket number, and
the date and page number of this issue of the Federal Register.
Comments should be sent to Sonia N. Jimenez at the address listed above
by December 2, 1996. All comments received will be available for public
inspection during regular business hours at the same address. All
responses to this notice will be summarized and included in the request
for OMB approval.
Background
The Kiwifruit Research, Promotion, and Consumer Information Act
(Act) authorizes the Secretary of Agriculture (Secretary) to establish
a national kiwifruit research, promotion, and consumer information
program. The program would be funded by an assessment levied on
producers and importers not to exceed 10 cents per 7-pound tray of
kiwifruit. Kiwifruit sold directly to a consumer by a producer for a
purpose other than resale and domestic and imported kiwifruit for
processing are exempt from assessments.
Assessments would be used to pay for: research, promotion, and
consumer information; administration, maintenance, and functioning of
the Board; and expenses incurred by the Secretary in implementing and
administering the Order, including referendum costs.
The first handler would be responsible for the collection of
assessments from the producer and payment to the Board. Handlers would
be required to maintain records for each producer for whom kiwifruit is
handled, including kiwifruit produced by the handler. In addition,
handlers would be required to file reports regarding the collection,
payment, or remittance of the assessments. All information obtained
through handler reports would be kept confidential.
The U.S. Customs Service (Customs) would collect assessments on
imported kiwifruit and would remit those assessments to the Board for a
fee.
The Act requires the Department to conduct a referendum during the
60-day period preceding the proposed Order's effective date. Kiwifruit
producers of 500 pounds or more and importers of 10,000 pounds or more
annually would vote in the referendum to determine whether they favor
the Order's implementation. The proposed Order must be approved by a
majority of eligible producers and importers voting in the referendum,
and producers and importers favoring approval must produce and import
more than 50 percent of the total volume of kiwifruit produced and
imported by persons voting in the referendum. Subsequent referenda
would be conducted every 6 years after the program is in effect or when
requested by 30 percent of kiwifruit producers and importers covered by
the Order.
The Act provides for the submission of proposals for a kiwifruit
research, promotion, and consumer information Order by industry
organizations or any other interested person affected by the Act. The
Act requires that such a proposed Order provide for the establishment
of a National Kiwifruit Board. The Board would be composed of 11 voting
members: 6 producers, 4 importers or exporters, and 1 public member.
Each member shall have an alternate. Members will serve a three-year
term of office. No member may serve more than two consecutive three-
year terms.
The Act provides that any person subject to the Order may file with
the Secretary a petition stating that the Order or any of its
provisions is not in accordance with law and requesting a modification
of the Order or an exemption from the Order. The individual would be
given the opportunity to a hearing on the petition.
The Department issued a news release on May 6, 1996, requesting
proposals for an initial Order or portions of an initial Order by May
17, 1996. A second news release, extending the deadline for submission
of proposals to June 3, 1996, was issued on May 24, 1996.
An entire proposed Order was submitted by the California Kiwifruit
Commission (Commission). The Commission is an industry group created by
the State of California to promote California kiwifruit. In
[[Page 51382]]
addition, a partial proposal was submitted by the New Zealand Kiwifruit
Marketing Board (NZKMB). The NZKMB represents all New Zealand exporters
of kiwifruit into the United States.
In addition to minor editorial changes, the Department modified the
Commission's proposed text by: adding the power and duty to investigate
violations of the Act and Order; deleting a definition for industry
information because it is not authorized under the Act; revising
definitions to make them in accordance with the Act; clarifying that
the collection of assessments from imports would be performed through
the U.S. Customs Service only; clarifying that the promotion board
would have complete control over voluntary contributions made to the
promotion board; clarifying that the assessment rate may only be
changed prior to a fiscal year; clarifying that the assessment rate may
only be changed by regulation rather than in the budget; and adding a
provision regarding federal debt collection procedures. The Commission
also submitted referendum procedures. The referendum procedures will be
published separately as a proposed rule in the Federal Register.
The proposed Order submitted by the Commission is summarized as
follows:
Sections 1214.1 through 1214.19 of the proposed Order define
certain terms, such as kiwifruit, handler, producer, and importer,
which are used in the proposed Order.
Sections 1214.30 through 1214.39 include provisions relating to the
establishment, adjustment, and membership; nominations; appointment;
terms of office; vacancies; reimbursement; powers; and duties of the
Board.
The Board would be the body organized to administer the Order
through the implementation of programs, plans, projects, budgets, and
contracts to promote and disseminate information about kiwifruit, under
the supervision of the Secretary. Further, the Board would be
authorized to incur expenses necessary for the performance of its
duties and to set a reserve fund. Sections 1214.40 and 1214.50 provide
information on these activities.
Sections 1214.51 through 1214.53 would authorize the collection of
assessments, specify who pays them and how, and specifies persons who
would be exempt from paying the assessment. In addition, it would
prohibit use of funds to influence government policy or action.
The assessment rate may not exceed 10 cents per 7-pound tray of
kiwifruit. The actual rate would be recommended by the Board and
approved by the Secretary through regulation. Direct sales to consumers
by a producer and kiwifruit for processing are exempt from assessments.
The assessment sections also outline the procedures to be followed
by handlers and importers for remitting assessments; establish a 1.5
percent per month interest charge for unpaid or late assessments; and
provide for refunds of assessments paid by importers who import less
than 10,000 pounds of kiwifruit a year.
Sections 1214.60 through 1214.62 concern reporting and
recordkeeping requirements for persons subject to the Order and protect
the confidentiality of information obtained from such books, records,
or reports.
Sections 1214.70 through 1214.73 describe the rights of the
Secretary, authorize the Secretary to suspend or terminate the Order
when deemed appropriate, and prescribe proceedings after suspension or
termination.
Sections 1214.74 through 1214.77 are miscellaneous provisions
including the provisions involving personal liability of Board members
and employees; handling of patents, copyrights, inventions, and others;
amendments to the Order; and separability of Order provisions.
The proposal from the NZKMB addresses importer and exporter
representation on the Board and the use of assessments to fund export
activities that would directly compete with exporting countries
promotional activities.
The NZKMB proposed that the Secretary ensure that at least two of
the four importer/exporter member seats be selected from nominees
nominated by importers and/or exporters of New Zealand kiwifruit. As an
alternative it proposed that the Secretary include as a primary
consideration in the allocation of four importer/exporter member seats,
the relative expenditure on promotion and marketing of kiwifruit in the
United States over 10 years by the kiwifruit importer/exporters of the
various countries of origin of the imported kiwifruit.
In addition, the NZKMB proposed that the Secretary ensure that all
programs developed and implemented by the Board be intended to promote
kiwifruit consumption in the U.S. domestic market only and no
assessments be used to promote kiwifruit in competing foreign markets.
In addition to these proposals, the Department has received letters
from three interested parties regarding the implementation of the
Order. Since these letters do not include proposals for a program, they
will be considered during the comment period of this proposed rule.
The Department will analyze all written views received to date as
well as written comments on the two proposals published below before
issuing a final Order.
List of Subjects in 7 CFR Part 1214
Administrative practice and procedure, Advertising, Consumer
information, Marketing agreements, Kiwifruit, Promotion, Reporting and
recordkeeping requirements.
The proposals set forth below have not received the approval of the
Secretary.
For the reasons set forth in the preamble, it is proposed that
Title 7 of Chapter XI of the Code of Federal Regulations be amended as
follows:
Proposal I
1. Part 1214 is added to read as follows:
PART 1214--KIWIFRUIT RESEARCH, PROMOTION AND CONSUMER INFORMATION
ORDER
Subpart A--Kiwifruit Research, Promotion, and Consumer Information
Order
Definitions
Sec.
1214.1 Act.
1214.2 Consumer information.
1214.3 Department.
1214.4 Exporter.
1214.5 Fiscal year.
1214.6 Handler.
1214.7 Importer.
1214.8 Kiwifruit.
1214.9 Marketing.
1214.10 Part and subpart.
1214.11 Person.
1214.12 Processing.
1214.13 Producer.
1214.14 Programs, plans, and projects.
1214.15 Promotion.
1214.16 Promotion Board.
1214.17 Research.
1214.18 Secretary.
1214.19 United States.
National Kiwifruit Board
1214.30 Establishment, adjustment, and membership.
1214.31 Nominations.
1214.32 Acceptance.
1214.33 Appointment.
1214.34 Term of office.
1214.35 Vacancies.
1214.36 Procedure.
1214.37 Compensation and reimbursement.
1214.38 Powers.
1214.39 Duties.
Promotion, Research, and Consumer Information and Industry Information
1214.40 Programs, plans, and projects.
Expenses and Assessments
1214.50 Budget and expenses.
[[Page 51383]]
1214.51 Assessments.
1214.52 Exemption from assessment.
1214.53 Influencing governmental action.
Reports, Books, and Records
1214.60 Reports.
1214.61 Books and records.
1214.62 Confidential treatment.
Miscellaneous
1214.70 Right of the Secretary.
1214.71 Suspension or termination.
1214.72 Proceedings after termination.
1214.73 Effect of termination or amendment.
1214.74 Personal liability.
1214.75 Patents, copyrights, inventions, publications, and product
formulations.
1214.76 Amendments.
1214.77 Separability.
Subpart B--Rules and Regulations
Definitions
Sec.
1214.100 Terms defined.
Nomination Procedures
1214.110 Nominations.
1214.111 Mail balloting.
1214.112 Appointment.
General
1214.115 Financial statements.
Assessments
1214.120 Payment of assessments.
1214.121 Exemption procedures.
Reports
1214.125 Reports.
Miscellaneous
1214.130 OMB control numbers.
Authority: 7 U.S.C. 7461-7473.
Subpart A--Kiwifruit, Research, Promotion, and Consumer Information
Order
Definitions
Sec. 1214.1 Act.
Act means the National Kiwifruit Research, Promotion, and Consumer
Information Act, subtitle D of title V of the Federal Agricultural
Improvement and Reform Act of 1996, Public Law 104-127, 7 U.S.C. 7461-
7473, and any amendments thereto.
Sec. 1214.2 Consumer information.
Consumer information 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 kiwifruit.
Sec. 1214.3 Department.
Department means the United States Department of Agriculture.
Sec. 1214.4 Exporter.
The term exporter means any person outside the United States who
exports kiwifruit into the United States.
Sec. 1214.5 Fiscal year.
Fiscal year means the 12-month period from October 1 to September
30 each year, or such other period as recommended by the Promotion
Board and approved by the Secretary.
Sec. 1214.6 Handler.
Handler means any person, excluding a common carrier, engaged in
the business of buying and selling, packaging, marketing, or
distributing kiwifruit as specified in the Order.
Sec. 1214.7 Importer.
Importer means any person who imports kiwifruit into the United
States.
Sec. 1214.8 Kiwifruit.
Kiwifruit means all varieties of fresh kiwifruit grown in or
imported into the United States.
Sec. 1214.9 Marketing.
Marketing means to sell or otherwise dispose of kiwifruit into
interstate, foreign, or intrastate commerce by buying, marketing,
distribution, or otherwise placing kiwifruit into commerce.
Sec. 1214.10 Part and subpart.
Part means this kiwifruit research, promotion, and consumer
information order and all rules and regulations and supplemental orders
issued thereunder, and the term subpart means the kiwifruit research,
promotion, and consumer information order.
Sec. 1214.11 Person.
Person means any individual, group of individuals, partnership,
corporation, association, cooperative, or other legal entity.
Sec. 1214.12 Processing.
Processing means kiwifruit that are commercially canned, fermented,
distilled, extracted, preserved, ground, crushed or processed in such
manner as the Promotion Board, with the approval of the Secretary, may
determine.
Sec. 1214.13 Producer.
Producer means any person who grows kiwifruit in the United States
for sale in commerce.
Sec. 1214.14 Programs, plans, and projects.
Programs, plans, and projects means promotion, research, and
consumer information plans, studies, projects, or programs conducted
pursuant to this part.
Sec. 1214.15 Promotion.
Promotion means any action taken under this Order including paid
advertising, to present a favorable image for kiwifruit to the general
public for the purpose of improving the competitive position of
kiwifruit and stimulating the sale of kiwifruit.
Sec. 1214.16 Promotion Board.
Promotion Board means the administrative body referred to as the
National Kiwifruit Board or otherwise named Kiwifruit Promotion Board
or Promotion Board established under Sec. 1214.30.
Sec. 1214.17 Research.
Research means any type of research relating to the use,
nutritional value, and marketing of kiwifruit conducted for the purpose
of advancing the image, desirability, marketability, or quality of
kiwifruit.
Sec. 1214.18 Secretary.
Secretary means the Secretary of Agriculture of the United States
or any other officer or employee of the Department to whom the
authority has heretofore been delegated, or to whom authority may
hereafter be delegated, to act in the Secretary's stead.
Sec. 1214.19 United States.
United States means the 50 states of the United States, the
District of Columbia, and the Commonwealth of Puerto Rico.
National Kiwifruit Board
Sec. 1214.30 Establishment, adjustment, and membership.
(a) Establishment of National Kiwifruit Board. There is hereby
established a National Kiwifruit Board of 11 members appointed by the
Secretary as follows:
(1) Six members who are producers (or their representatives) and
who are not exempt from an assessment.
(2) Four members who are importers (or their representatives) and
who are not exempt from an assessment, or are exporters (or their
representatives).
(3) One member appointed from the general public.
(b) Adjustment of membership.
(1) Subject to the 11 member limit, the Secretary may adjust
membership on the Promotion Board to accommodate changes in production
and import levels of kiwifruit, so long as producers comprise not less
than 51 percent of the membership of the Board.
(2) At least every five years, and not more than every three years,
the Promotion Board shall review changes in the volume of domestic and
imported
[[Page 51384]]
kiwifruit production. If the annual kiwifruit production and imports
over the preceding four years, indicate that such changes in production
and import levels have occurred warranting reapportionment, the
Promotion Board shall recommend to the Secretary reapportionment of
Board membership subject to the 51 percent requirement.
(3) In determining the volume of kiwifruit produced in the United
States or imported into the United States for purposes of this section,
the Promotion Board and the Secretary shall:
(i) Only consider kiwifruit produced or imported by producers and
importers, respectively, as those terms are defined in Sec. 1214.13 and
1214.7; and
(ii) Use the information received by the Promotion Board under
Sec. 1214.60, and data published by the California Kiwifruit
Commission, U.S. Department of Commerce import statistics and other
government kiwifruit production data.
(c) Appointment and nomination--
(1) Appointment. The Secretary shall appoint the members of the
Promotion Board from nominations submitted in accordance with this
section.
(i) Producers shall be appointed from individuals nominated by
producers.
(ii) Importers and exporters shall be appointed from individuals
nominated by importers and/or exporters.
(iii) The public representative shall be appointed from nominations
submitted by the Promotion Board.
(iv) If producers, importers, or exporters fail to nominate
individuals for appointment, the Secretary shall appoint members in the
manner specified in Sec. 1214.31. If the Promotion Board fails to
nominate a public representative, such member may be appointed by the
Secretary without a nomination.
(2) The Secretary shall appoint an alternate for each member of the
Promotion Board. Alternates shall:
(i) Be appointed in the same manner for whom such individual is an
alternate; and
(ii) Serve on the Promotion Board as a voting member if such member
is absent or disqualified.
(3) For purposes of the provisions of this section relating to the
appointment of producers and importers or exporters to serve on the
Promotion Board, the term producer, importer, or exporter refers to any
person who is a producer, importer, or exporter, respectively, or if
the producer, importer, or exporter is an entity other than an
individual, an individual who is an officer or employee of such
producer, importer, or exporter. Persons who qualify to serve as either
a producer member or an importer member must select the industry group
that they want to represent.
Sec. 1214.31 Nominations.
All nominations for appointments to the Promotion Board under
Sec. 1214.33 shall be made as follows:
(a) As soon as practicable after this subpart becomes effective,
nominations for appointment to the initial Promotion Board shall be
obtained from producers and importers or exporters by the Secretary. In
any subsequent year in which an appointment to the Promotion Board is
to be made, nominations for positions whose terms will expire at the
end of that year shall be obtained from producers, and as appropriate,
importers or exporters, and certified by the Promotion Board and
submitted to the Secretary by May 1 of such year, or such other date as
approved by the Secretary.
(b) Nominations shall be made through mail ballot in accordance
with procedures prescribed in this section.
(c) Except for initial Promotion Board members, whose nomination
process will be initiated by the Secretary, the Promotion Board shall
issue a call for nominations by March 1 of each year in which
nominations for an appointment to the Promotion Board is to be made.
The call shall include, at a minimum, the following information:
(1) A list by importer/exporter and producer category of the
vacancies for which nominee may be submitted.
(2) The date by which the names of nominees shall be submitted for
consideration to be in compliance with paragraph (a) of this section.
(3) Nominations for each position shall be made by mail. Nomination
forms shall be mailed to all known producers, importers in the United
States, and kiwifruit exporters and/or exporter organizations where
possible. The nomination form shall have attached to it the
requirements of the position, term, eligibility requirements, and the
Department's equal opportunity policy. Except with respect to
nominations for the initial appointments to the Promotion Board,
publicizing the nomination process and vacant positions shall be the
responsibility of the Promotion Board.
(4) All producers, importers within the United States, and
exporters may participate in the nomination process. However, if a
producer is engaged in the production of kiwifruit and is also an
importer, such person's participation shall be limited to one vote. The
following nomination process shall be followed:
(i) Nomination forms shall be sent to all known producers,
importers, or exporters. The Promotion Board shall determine the
eligibility and willingness to serve of all names of the individuals
listed on the nomination forms returned to the Promotion Board. The
names of the individuals who are eligible and willing to serve will be
listed on a selection ballot. The selection ballot will be sent to all
known producers and importers for final selection of the nominees to be
sent to the Secretary. Exporters will not be sent a selection ballot.
(ii) Each nominee shall meet the qualifications set forth in this
part.
(iii) If a producer nominee is engaged in the production of
kiwifruit and is also an importer, such individual shall participate
within the category that such individual so elects in writing to the
Promotion Board and such election shall remain controlling until
revoked in writing to the Promotion Board.
(d) When producers or importers are voting for nominees to the
Promotion Board the following provisions shall apply:
(1) Voting for any open position shall be on the basis of one vote
per eligible voter.
(2) Producers will vote for producer positions and importers will
vote for importer and exporter positions only.
(3) Whenever the producers or importers are choosing nominees for
one open position on the Promotion Board, the proposed nominee with the
highest and second highest number of votes cast shall be the nominees
submitted to the Secretary.
(4) Each open position will be a separate position. Alternate and
member selections will also be held as separate positions. A person
shall only be nominated for one open member or alternate position.
(5) Voters shall certify on their ballots as to their eligibility.
Such certification may be subject to verification.
(e) The Secretary may reject any nominee submitted. If there are
insufficient nominees from which to appoint members to the Promotion
Board as a result of the Secretary's rejecting such nominees,
additional nominees shall be submitted to the Secretary under the
procedures set out in this section.
(f) Whenever producers or importers fail to nominate individuals
for an open position on the Promotion Board under the preceding
provisions of this section the Secretary may appoint members in such
manner as the Secretary determines appropriate.
Sec. 1214.32 Acceptance.
Each individual nominated for membership on the Promotion Board
[[Page 51385]]
shall qualify by filing a written acceptance with the Secretary at the
time of nomination. Such acceptance shall represent the nominee's
willingness to serve if selected and to operate in accordance with the
provisions of this part.
Sec. 1214.33 Appointment.
From the nominations made pursuant to this subsection, the
Secretary shall appoint the members and alternates.
Sec. 1214.34 Term of office.
(a) The members and alternates of the Promotion Board shall serve
for terms of three years, except that five members and their alternates
appointed to the initial Promotion Board shall be appointed for a term
of two years and six members and their alternates shall be appointed
for a term of three years.
(b)(1) Except with respect to terms of office of the initial
Promotion Board, the term of office for each member and alternate of
the Promotion Board shall begin on July 1 or such other date that may
be approved by the Secretary.
(2) The term of office for the initial Promotion Board shall begin
immediately following appointment by the Secretary, except that time in
the interim period from appointment until the following July 1, or such
other date that is the generally applicable beginning date for terms
under paragraph (b)(1) of this section approved by the Secretary, shall
not count toward the tenure limitation of office.
(c) Promotion Board members shall serve during the term of office
for which they are appointed and have qualified, and until their
successors are appointed and have qualified.
(d)(1) No member shall serve more than two successive three-year
terms, except as provided in paragraph (d)(2) of this section and
Sec. 1214.35(b)(1). Members serving two consecutive three-year terms
are eligible to serve as alternates, and alternates serving two
consecutive three-year terms are eligible to serve two three-year terms
as members.
(2) Those members serving initial terms of two years may serve one
successive three-year term.
Sec. 1214.35 Vacancies.
(a) To fill any vacancy occasioned by the death, removal,
resignation, or disqualification of any member of the Promotion Board,
the alternate of that member shall automatically assume the position of
said member. If an alternate member position becomes vacant, the
Secretary shall appoint an alternate member in the manner specified in
Sec. 1214.31. Each successor appointment shall be for the remainder of
the term vacated. A vacancy will not be required to be filled if the
unexpired term is less than six months.
(b)(1) No successor appointed to a vacated term of office shall
serve more than two successive three-year terms on the Promotion Board,
except as provided in paragraph (b)(2)(ii) of this section.
(2)(i) Any successor serving longer than one year may serve one
successive three-year term.
(ii) Any successor serving one year or less may serve two
successive three-year terms.
(c) If a member of the Promotion Board consistently refuses to
perform the duties of a member of the Promotion Board, or if a member
of the Promotion Board is engaged in acts of dishonesty or willful
misconduct, the Promotion Board may recommend to the Secretary that the
member be removed from office. If the Secretary finds the
recommendation of the Promotion Board shows adequate cause, the
Secretary shall remove such member from office. Further, without
recommendation of the Promotion Board, a member may be removed by the
Secretary upon showing of adequate cause, including the failure by a
member to submit reports or remit assessments required under this part,
if the Secretary determines that such member's continued service would
be detrimental to the achievement of the purposes of the Act.
Sec. 1214.36 Procedure.
(a) At a properly convened meeting of the Promotion Board, a
majority of the members shall constitute a quorum.
(b) Each member of the Promotion Board will be entitled to one vote
on any matter put to the Promotion Board. At assembled meetings of the
Promotion Board, all votes will be cast in person.
(1) A motion, except a motion to set an assessment rate, will carry
if supported by a simple majority of those voting.
(2) Motions to establish an assessment rate shall require a two-
thirds vote of a quorum of the Promotion Board for passage.
(c) Meetings of the Promotion Board may be conducted by other means
of communications, provided that each member is given prior notice of
the meeting and has an opportunity to be present either physically or
by electronic connection.
(d) In lieu of voting at a properly convened meeting and, when in
the opinion of the chairperson of the Promotion Board such action is
considered necessary, the Promotion Board may take action upon the
concurring votes of a majority of its members by mail, telephone,
electronic mail, facsimile, or any other means of communication, and,
if appropriate, confirmed promptly in writing. In that event, all
members must be notified and provided the opportunity to vote. Any
action so taken shall have the same force and effect as though such
action had been taken at a properly convened meeting of the Promotion
Board. All votes shall be recorded in Promotion Board minutes.
(e) The organization of the Promotion Board and the procedures for
conducting meetings of the Promotion Board shall be in accordance with
its bylaws, which shall be established by the Promotion Board and
approved by the Secretary.
Sec. 1214.37 Compensation and reimbursement.
The members and alternate members of the Promotion Board shall
serve without compensation but shall be reimbursed for necessary and
reasonable expenses or a reasonable per diem allowance, as approved by
the Promotion Board and the Secretary, incurred by such members in the
performance of their responsibilities under this subpart.
Sec. 1214.38 Powers.
The Promotion Board shall have the following powers:
(a) To receive and evaluate or, on its own initiative, develop and
budget for proposed programs, plans, or projects to promote the use of
kiwifruit, as well as proposed programs, plans, or projects for
research and consumer information, and to make recommendations to the
Secretary regarding such proposals;
(b) To administer the provisions of this subpart in accordance with
its terms and provisions;
(c) To appoint or employ such individuals as it may deem necessary,
define the duties, and determine the compensation of such individuals.
The Board shall seek, to the extent possible, to employ or contract
with personnel who are already associated with state chartered
organizations involved in promoting kiwifruit;
(d) To make rules and regulations to effectuate the terms and
provisions of this subpart;
(e) To receive, investigate, and report to the Secretary for action
complaints of violations of the provisions of this subpart;
(f) To establish committees and subcommittees of Promotion Board
members, including an executive committee whose powers and
[[Page 51386]]
membership shall be determined by the Promotion Board, subject to the
approval of the Secretary, and to adopt such bylaws and other rules for
the conduct of its business as it may deem advisable;
(g) To establish committees which may include individuals other
than Promotion Board members, and pay the necessary and reasonable
expenses and fees for the members of such committees;
(h) To recommend to the Secretary amendments to this subpart;
(i) With the approval of the Secretary, to enter into contracts or
agreements for the development and conduct of programs, plans, or
projects authorized under Sec. 1214.40 and for other services necessary
for the implementation of this subpart, and for the payment of the cost
thereof with funds collected and received pursuant to this subpart. The
Promotion Board shall not contract with any person covered by the
program or serving on the promotion board for the purpose of kiwifruit
programs, plans, or projects. Any contract or agreement shall provide
that:
(1) The contractor or agreeing party shall develop and submit to
the Promotion 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) Any such program, plan, or project shall become effective upon
approval of the Secretary;
(3) The contracting or agreeing party shall keep accurate records
of all of its transactions and make periodic reports to the Promotion
Board of activities conducted, submit accounting for funds received and
expended, and make such other reports as the Secretary or the Promotion
Board may require; and the Secretary may audit the records of the
contracting or agreeing party periodically; and
(4) Any subcontractor who enters into a contract with a Promotion
Board contractor and who receives or otherwise uses funds allocated by
the Promotion Board shall be subject to the same provisions as the
contractor;
(j) With the approval of the Secretary, to invest, pending
disbursement pursuant to a program, plan, or project, funds collected
through assessments provided for in Sec. 1214.51, and any other funds
received by the Promotion Board in, and only in, obligations of the
United States or any agency thereof, in any interest-bearing account or
certificate of deposit of a bank that is a member of the Federal
Reserve System, or in obligations fully guaranteed as to principal and
interest by the United States;
(k) To require its employees to receive, investigate, and report to
the Secretary complaints of violations of this part; and
(l) Such other powers as may be approved by the Secretary.
Sec. 1214.39 Duties.
The Promotion Board shall have the following duties:
(a) To meet not less than two times per year, and to organize and
select from among its members a chairperson and such other officers as
may be necessary;
(b) To evaluate or develop, and submit to the Secretary for
approval, promotion, research, and consumer information programs, plans
or projects;
(c) To prepare for each fiscal year, and submit to the Secretary
for approval at least 60 days prior to the beginning of each fiscal
year, a budget of its anticipated expenses and disbursements in the
administration of this subpart and a marketing plan with all the
programs, plans, and projects as provided in Secs. 1214.40 and 1214.50.
(d) To maintain such books and records, which shall be available to
the Secretary for inspection and audit, and to prepare and submit such
reports from time to time to the Secretary, as the Secretary may
prescribe, and to make appropriate accounting with respect to the
receipt and disbursement of all funds entrusted to it;
(e) To prepare and make public, at least annually, a report of its
activities carried out, and an accounting for funds received and
expended;
(f) To cause its financial statements to be prepared in conformity
with generally accepted accounting principles and to be audited by an
independent certified public accountant in accordance with generally
accepted auditing standards at least once each fiscal year and at such
other times as the Secretary may request, and submit a copy of each
such audit to the Secretary;
(g) To give the Secretary the same notice of meetings of the
Promotion Board as is given to members in order that the Secretary, or
a representative of the Secretary, may attend such meetings;
(h) To submit to the Secretary such information as may be requested
pursuant to this subpart;
(i) To keep minutes, books, and records that clearly reflect all
the acts and transactions of the Promotion Board. Minutes of each Board
meeting shall be promptly reported to the Secretary.
(j) To act as intermediary between the Secretary and any industry
member;
(k) To follow the Department's equal opportunity/civil rights
policies; and
(l) To work to achieve an effective, continuous, and coordinated
program of promotion, research, consumer information, evaluation and
industry information designed to strengthen the kiwifruit industry's
position in the marketplace, maintain and expand existing markets and
uses for kiwifruit, develop new markets and uses for kiwifruit, and to
carry out programs, plans, and projects designed to provide maximum
benefits to the kiwifruit industry.
(m) To conduct periodic review or evaluation of each program, plan,
or project to ensure that it contributes to an effective program of
research, promotion, and consumer information.
(n) Not less than every 5 years, authorize and fund, from funds
otherwise available to the Promotion Board, an independent evaluation
of the effectiveness of the programs conducted by the Promotion Board.
The Promotion Board shall submit to the Secretary, and make available
to the public, the results of each periodic independent evaluation
conducted under this section.
(o) To investigate violations of the Order and report the results
of such investigations to the Secretary for appropriate action to
enforce the provisions of the Order.
Promotion, Research, and Consumer Information
Sec. 1214.40 Programs, plans, and projects.
(a) The Promotion 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 consumer
information with respect to kiwifruit; and
(2) The establishment and conduct of research with respect to the
use, nutritional value, sale, distribution, and marketing, of kiwifruit
and kiwifruit products, and the creation of new products thereof, to
the end that marketing and use of kiwifruit may be encouraged,
expanded, improved, or made more acceptable and to advance the image,
desirability, or quality of kiwifruit.
(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 Promotion Board shall take appropriate steps to implement
it.
[[Page 51387]]
(c) Each program, plan, or project implemented under this subpart
shall be reviewed or evaluated periodically by the Promotion Board to
ensure that it contributes to an effective program of promotion,
research, or consumer information. If it is found by the Promotion
Board that any such program, plan, or project does not contribute to an
effective program of promotion, research, or consumer information, then
the Promotion Board shall terminate such program, plan, or project.
(d) No program, plan, or project shall make any false claims on
behalf of kiwifruit or use unfair or deceptive acts or practices with
respect to the quality, value, or use of any competing product.
Kiwifruit of all origins shall be treated equally. All promotions shall
be generic in nature.
Expenses and Assessments
Sec. 1214.50 Budget and expenses.
(a)(1) At least 60 days prior to the beginning of each fiscal year,
and as may be necessary thereafter, the Promotion Board shall prepare
and submit to the Secretary a budget for the fiscal year covering its
anticipated expenses and disbursements in administering this subpart.
Each such budget shall include:
(i) A statement of objectives and strategy for each program, plan,
or project;
(ii) A summary of anticipated revenue, with comparative data for at
least one preceding year;
(iii) A summary of proposed expenditures for each program, plan, or
project; and
(iv) Staff and administrative expense breakdowns, with comparative
data for at least one preceding year.
(2) Each budget shall provide adequate funds to defray its proposed
expenditures and to provide for a reserve as set forth in paragraph (f)
of this section.
(3)(i) Subject to paragraph (a)(3)(ii) of this section, any
amendment or addition to an approved budget must be approved by the
Secretary, including shifting of funds from one program, plan, or
project to another.
(ii) Shifts of funds which do not cause an increase in the
Promotion Board's approved budget and which are consistent with
governing bylaws need not have prior approval by the Secretary.
(b) The Promotion 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 Promotion 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
Promotion Board.
(c) The Promotion 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 Promotion Board shall retain
complete control of their use.
(d) The Promotion Board shall reimburse the Secretary, from funds
received by the Promotion Board, for administrative costs incurred by
the Secretary in implementing and administering this subpart, including
the salaries of Department employees and costs incurred in conducting
referenda.
(e) The Promotion Board may establish an operating monetary reserve
and may carry over to subsequent fiscal periods excess funds in any
reserve so established. Such reserve funds may be used to defray any
expenses authorized under this subpart.
(f) With the approval of the Secretary, the Promotion Board may
borrow money for the payment of administrative expenses, subject to the
same fiscal, budget, and audit controls as other funds of the Promotion
Board. This provision is limited to the first year of operation of the
Promotion Board.
Sec. 1214.51 Assessments.
(a) Any handler initially purchasing, or otherwise placing into
interstate, foreign, or intrastate commerce, kiwifruit produced in the
United States shall, in the manner as prescribed by the Promotion Board
and approved by the Secretary, collect an assessment based upon the
number of pounds of kiwifruit marketed in the United States for the
account of the producer, and remit the assessment to the Promotion
Board.
(b) The rate of assessment effective during any fiscal year shall
be the rate specified in the budget for such fiscal year approved by
the Secretary, except that:
(1) The rate of assessment shall not exceed $0.10 per seven pound
tray of kiwifruit or the equivalent thereof.
(2) The rate of assessment for a fiscal year may be changed at the
beginning of the fiscal year only and by regulation as necessary to
reflect changed circumstances, except that any such changed rate may
not exceed the level of assessment specified in paragraph (b)(1) of
this section.
(c) Any person marketing kiwifruit of that person's own production
into the channels of commerce in the United States, through retail or
wholesale outlets, shall be considered a handler and shall remit to the
Promotion Board an assessment on such kiwifruit at the rate then in
effect, at such time and in such form and manner prescribed by the
Promotion Board, with the approval of the Secretary.
(d)(1) Each importer of kiwifruit shall pay an assessment to the
Promotion Board on kiwifruit imported for marketing in the United
States, through the U.S. Customs Service. A person acting as a
principal or as an agent, broker, or consignee for any person who
produces kiwifruit outside the United States shall be considered an
importer.
(2) The assessment rate for imported kiwifruit shall be the same or
equivalent to the rate provided for kiwifruit produced in the United
States.
(3) The import assessment shall be uniformly applied to imported
kiwifruit that are identified by the number, 0709.51.0000, in the
Harmonized Tariff Schedule of the United States or any other number
used to identify fresh kiwifruit.
(4) The assessments due on imported kiwifruit shall be paid when
the kiwifruit are entered or withdrawn for consumption in the United
States.
(5) Only one assessment shall be paid on each unit of kiwifruit
imported.
(e)(1) Each person responsible for remitting assessments under
paragraphs (a), (c), or (f) of this section, and importers if the U.S.
Customs Service fails to collect the assessment, shall remit the
assessments due to the Promotion Board on a monthly basis no later than
the fifteenth day of the month following the month in which the
kiwifruit were marketed, in such manner as prescribed by the Promotion
Board.
(2)(i) The Promotion Board shall impose a late payment charge on
any person that fails to remit to the Promotion Board the total amount
for which the person is liable on or before the payment due date
established under this section. The amount of the late payment charge
shall be prescribed in rules and regulations as approved by the
Secretary.
(ii) The Promotion Board shall impose an additional charge on any
person subject to a late payment charge, in the form of interest on the
outstanding portion of any amount for which the person is liable. The
rate of interest shall be prescribed in rules and regulations as
approved by the Secretary.
(3) Any assessment that is determined to be owing at a date later
than the payment due established under this section, due to a person's
failure to
[[Page 51388]]
submit a report to the Promotion Board by the payment due date, shall
be considered to have been payable on the payment due date. Under such
a situation, paragraphs (e)(2)(i) and (e)(2)(ii) of this section shall
be applicable.
(4) Persons failing to remit total assessments due in a timely
manner may also be subject to penalties and actions under federal debt
collection procedures as set forth in 7 CFR 3.1 through 3.36.
(f) The Promotion Board, with the approval of the Secretary, may
enter into agreements authorizing other state mandated organizations to
collect assessments in its behalf. Any such organization shall be
required to maintain the confidentiality of such information as is
required by the Promotion Board for collection purposes. Any
reimbursement by the Promotion Board for such services shall be based
on reasonable charges for services rendered.
(g) The Promotion Board is hereby authorized to accept advance
payment of assessments for the fiscal year by any person, that shall be
credited toward any amount for which such person may become liable. The
Promotion Board shall not be obligated to pay interest on any advance
payment.
(h) Except for the first year of operation of the promotion board,
expenses for the administration, maintenance, and functioning of the
board may not exceed 30 percent of the budget for a year.
Sec. 1214.52 Exemption from assessment.
(a) Producers who produce less than 500 pounds of kiwifruit
annually shall be exempted from assessment.
(b) Importers who import less than 10,000 pounds of kiwifruit per
year shall be exempted from assessment.
(c) Sales of kiwifruit made directly from the producer to a
consumer for a purpose other than resale are exempt from assessment.
(d) Domestic and imported kiwifruit used for processing are exempt
from assessment. The Promotion Board shall develop a list of approved
processors.
(e) To claim an exemption, a producer or importer shall submit an
application to the Promotion Board stating the basis on which the
person claims the exemption for such year.
(f) If, after a person claims an exemption from assessments for any
year under this paragraph, and such person no longer meets the
requirements of this paragraph for an exemption, such person shall file
a report with the Board in the form and manner prescribed by the Board
and pay an assessment on all the kiwifruit produced or imported by such
person during the year for which the person claimed the exemption.
(g) Exempted individuals are subject to such safeguards as
prescribed in rules and regulations in this part to prevent improper
use of this exemption.
Sec. 1214.53 Influencing governmental action.
No funds received by the Promotion Board under this subpart shall
in any manner be used for the purpose of influencing legislation or
governmental policy or action, except to develop and recommend to the
Secretary amendments to this subpart.
Reports, Books, and Records
Sec. 1214.60 Reports.
(a) Each producer marketing kiwifruit of that person's own
production for resale, and each handler responsible for the collection
of assessments under Sec. 1214.51(a) shall be required to report
monthly to the Promotion Board, on a form provided by the Promotion
Board, such information as may be required under this subpart or any
rules and regulations issued in this part. Such information shall
include, but not be limited to, the following:
(1) The handler's name, address, telephone number, and social
security number or Employer Identification Number;
(2) Date of report, which is also the date of payment to the
Promotion Board;
(3) Period covered by the report; and
(4) The number of kiwifruit containers, weight, size, and type
purchased, initially transferred or that in any other manner are
subject to the collection of assessments, and a copy of a certificate
of exemption, claiming exemption under Sec. 1214.52 from those who
claim such exemptions;
(b) If determined necessary by the Promotion Board and approved by
the Secretary, each importer shall file with the Promotion Board
periodic reports, on a form provided by the Promotion Board, containing
at least the following information:
(1) The importer's name, address, telephone number, and social
security number or Employer Identification Number;
(2) The quantity of kiwifruit entered or withdrawn for consumption
in the United States during the period covered by the report; and
(3) The amount of assessments paid to the U.S. Customs Service at
the time of such entry or withdrawal.
(c) For persons who have an exemption from assessments under
Sec. 1214.52, such information as deemed necessary by the Board, and
approved by the Secretary, concerning the exemption including
disposition of exempted kiwifruit.
Sec. 1214.61 Books and records.
Each person who is subject to this subpart shall maintain and make
available for inspection by the Promotion Board staff or the Secretary
such books and records as are deemed necessary by the Promotion Board,
with the approval of the Secretary, to carry out the provisions of this
subpart and any rules and regulations issued in this part, including
such books and records as are necessary to verify any reports required.
Such books and records shall be retained for at least two years beyond
the fiscal year of their applicability.
Sec. 1214.62 Confidential treatment.
All information obtained from books, records, or reports under the
Act, this subpart, and the rules and regulations issued in this part
shall be kept confidential by all persons, including all employees and
former employees of the Promotion 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 Promotion Board members,
producers, importers, exporters, or 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 by judicial order in a suit or
administrative hearing brought at the direction, or on the request, of
the Secretary, or to which the Secretary or any officer of the United
States is a party, and involving this subpart. Nothing in this section
shall be deemed to prohibit:
(a) The issuance of general statements based upon the reports of
the number of persons subject to this subpart or statistical data
collected therefrom, which statements do not identify the information
furnished by any person; and
(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. 1214.70 Right of the Secretary.
All fiscal matters, programs, plans, or projects, rules or
regulations, reports, or other substantive actions proposed and
[[Page 51389]]
prepared by the Promotion Board shall be submitted to the Secretary for
approval.
Sec. 1214.71 Suspension or termination.
(a) Whenever the Secretary finds that this subpart or any provision
thereof obstructs or does not tend to effectuate the declared purpose
of the Act, the Secretary shall terminate or suspend the operation of
this subpart or such provision thereof.
(b)(1) Six years after the date on which this subpart becomes
effective, and at the end of every six-year period thereafter; the
Secretary shall conduct a referendum among producers and importers to
determine whether they favor continuation, termination, or suspension
of this subpart.
(2) The Secretary shall also hold a referendum:
(i) At the request of the Promotion Board; or
(ii) If not less than 30 percent of the kiwifruit producers and
importers subject to assessments under the Order submit a petition
requesting a referendum be held.
(3) Whenever the Secretary determines that suspension or
termination of this subpart is favored by a majority of the kiwifruit
producers and importers voting in a referendum under paragraphs (b) (1)
or (2) of this section who, during a representative period determined
by the Secretary, have been engaged in producing and importing
kiwifruit and who, on average, annually produced and imported more than
50 percent of the volume of kiwifruit produced and imported by all
those producers and importers voting in the referendum, the Secretary
shall:
(i) Suspend or terminate, as appropriate, collection of assessments
within six months after making such determination; and
(ii) Suspend or terminate, as appropriate, all activities under
this subpart in an orderly manner as soon as practicable.
(4) Referenda conducted under this subsection shall be conducted in
such manner as the Secretary may prescribe.
Sec. 1214.72 Proceedings after termination.
(a) Upon the termination of this subpart, the Promotion Board shall
recommend not more than five of its members to the Secretary to serve
as trustees for the purpose of liquidating the affairs of the Promotion
Board. Such persons, upon designation by the Secretary, shall become
trustees for all the funds and property owned, in the possession of, or
under the control of the Promotion Board, including any claims unpaid
or property not delivered, or any other claim existing at the time of
such termination.
(b) The trustees shall:
(1) Continue in such capacity until discharged by the Secretary;
(2) Carry out the obligations of the Promotion Board under any
contract or agreement entered into by it under 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 Promotion Board and of the trustees, to such persons as the
Secretary may direct; and
(4) Upon the request of the Secretary, execute such assignments or
other instruments necessary or appropriate to vest in such persons full
title and right to all of the funds, property, and claims vested in the
Promotion Board or the trustees under this subpart.
(c) Any person to whom funds, property, or claims have been
transferred or delivered under this subpart shall be subject to the
same obligations imposed upon the Promotion 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
used, to the extent practicable, in the interest of continuing one or
more of the promotion, research, consumer information, or industry
information programs, plans, or projects authorized under this subpart.
Sec. 1214.73 Effect of termination or amendment.
Unless otherwise expressly provided by the Secretary, the
termination of this subpart or of any rule and regulation issued in
this part, or the issuance of any amendment to such provisions, shall
not:
(a) Affect or waive any right, duty, obligation, or liability that
shall have arisen or may hereafter arise in connection with any
provision of this subpart or any rules or regulations issued in this
part
(b) Release or extinguish any violation of this subpart or any such
rules or regulations issued in this part; or
(c) Affect or impair any rights or remedies of the United States,
the Secretary, or any person with respect to any such violation.
Sec. 1214.74 Personal liability.
No member or employee of the Promotion Board shall be held
personally responsible, either individually or jointly, in any way
whatsoever, to any person for errors in judgment, mistakes, or other
acts of either commission or omission of such member or employee under
this subpart, except for acts of dishonesty or willful misconduct.
Sec. 1214.75 Patents, copyrights, inventions, publications, and
product formulations.
Any patents, copyrights, inventions, publications, or product
formulations developed through the use of funds received by the
Promotion Board under this subpart shall be the property of the United
States Government as represented by the Promotion Board and shall,
along with any rents, royalties, residual payments, or other income
from the rental, sale, leasing, franchising, or other uses of such
patents, copyrights, inventions, publications, or product formulations
inure to the benefit of the Promotion Board. Upon termination of
certain provisions in this subpart, Sec. 1214.72 shall apply to
determine disposition of all such property.
Sec. 1214.76 Amendments.
Amendments to this subpart may be proposed, from time to time, by
the Promotion Board or by any interested person affected by the
provisions of the Act, including the Secretary.
Sec. 1214.77 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.
Subpart B--Rules and Regulations
Definitions
Sec. 1214.100 Terms defined.
Unless otherwise defined in this subpart, the definitions of terms
used in this subpart shall have the same meaning as the definitions in
Subpart A--Kiwifruit Research, Promotion, and Consumer Information
Order of this part.
Nomination Procedures
Sec. 1214.110 Nominations.
Nominations shall be made by mail ballot in accordance with the
procedures prescribed in Sec. 1214.31. Each mail ballot shall be
scheduled so as to ensure that the nominations for each position that
will be open at the beginning of the following year are received by the
Secretary by May 1, or such other date approved by the Secretary.
[[Page 51390]]
Sec. 1214.111 Mail balloting.
(a) The Promotion Board shall conduct nominations of individuals as
candidates for appointment to the Promotion Board by mail nomination
form.
(b)(1) Notice of mail balloting to nominate candidates for a
position on the Promotion Board shall be publicized by the Promotion
Board to producers, importers, kiwifruit exporter organizations and to
the Secretary, by March 1 of each year.
(2) Nomination forms will be used to collect names of individuals
to be placed on a ballot to be sent to producers and importers to
select the individuals for the Secretary's appointment. Completed
nomination forms must be returned to the Promotion Board prior to March
30.
(c) Once proposed nominations have been submitted, the Promotion
Board shall cause each proposed nomination, if the individual
qualifies, to be placed on the producer or importer ballot. The
Promotion Board then shall mail a ballot to each known producer or
importer.
(d) Each producer or importer shall cast a ballot for each open
position on the Promotion Board assigned to the producers or importers/
exporters in accordance with the procedures prescribed in Sec. 1214.31.
The completed ballot must be returned to the Promotion Board or its
designee within 30 days after the ballot is issued.
(e) Within 45 days after a mail ballot is issued, the Promotion
Board shall validate the ballots cast, tabulate the votes, and provide
the Secretary with the results of the vote and the identification of
the top two vote getters for each open position on the Promotion Board.
(f) The Promotion Board shall provide nominees with qualification
statements and other specified information. Each nominee selected in
the mail ballot will be contacted by the Promotion Board and asked to
forward such completed documentation to the Promotion Board within 14
days of such notification.
Sec. 1214.112 Appointment.
If an employee, partner, officer, or shareholder of a producer,
importer or exporter is a current member of the Promotion Board, no
nominee who is also an employee, partner, officer, or shareholder of
such producer, importer, or exporter shall be appointed to the
Promotion Board. A Promotion Board member shall be disqualified from
serving on the Promotion Board if such individual ceases to be
affiliated with a producer, importer, or exporter the Promotion Board
member represents.
General
Sec. 1214.115 Financial Statements.
(a) As requested by the Secretary, the Promotion Board shall
prepare and submit financial statements to the Secretary on a periodic
basis. Each such financial statement shall include, but not be limited
to, a balance sheet, income statement, and expense budget. The expense
budget shall show expenditures during the time period covered by the
report, year-to-date expenditures, and the unexpended budget.
(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 Promotion Board shall submit annually to the Secretary an
annual financial statement within 90 days after the end of the fiscal
year to which it applies.
Assessments
Sec. 1214.120 Payment of assessments.
(a) Each handler responsible for collecting assessments on domestic
kiwifruit shall collect the amounts assessed and remit such amounts to
the Promotion Board on a monthly basis not later than the fifteenth day
of the month following the month in which the kiwifruit were marketed
to or through the handler, whatever comes first.
(b) A state mandated organization may collect producer assessments
from handlers then remit the funds to the Promotion Board on a monthly
basis. The state mandated program collecting the assessments must
provide access to records for the purpose of periodic audit.
(c) Each producer who is also a handler responsible for paying any
assessment amount on the producer's own kiwifruit shall complete a
shipment data form to the Promotion Board not later than the fifteenth
day of the month following the month in which the kiwifruit were
marketed by the producer. An invoice will be sent to the producer for
the amount owed.
(d) Each importer shall be responsible for remittance to the
Promotion Board of any assessment amount not collected by the U.S.
Customs Service at the time of entry or withdrawal for consumption into
the United States. Any such assessment amount shall be remitted to the
Promotion Board on a monthly basis not later than the fifteenth day of
the month following the month of entry or withdrawal for consumption
into the United States. Any person who imports kiwifruit, as principal
or as an agent, broker, or consignee for any person who produces
kiwifruit outside the United States shall be considered an importer.
(e) Remittance shall be by check, draft, or money order payable to
the National Kiwifruit Board or Kiwifruit Promotion Board, and shall be
accompanied by a report, on a form provided by the Promotion Board.
(f) The Promotion Board shall impose a late payment charge on any
handler or importer who fails to make timely remittance to the
Promotion Board of the total assessment amount for which the person is
liable. Such late payment charge shall be imposed on any assessments
not received by the last day of the month following the month in which
the kiwifruit involved were marketed or, in the case of imports, not
collected by the U.S. Customs Service at the time of entry or
withdrawal for consumption into the United States. This one-time late
payment charge shall be 10 percent of the assessments due before
interest charges have accrued. The late payment charge will not be
applied to any late payments postmarked within 15 days after the end of
the month such assessments are due.
(g) In addition to the late payment charge, the Promotion Board
shall charge interest at a rate of 1.5 percent per month on the
outstanding balance, including the late payment charge and any accrued
interest, of any account that remains delinquent beyond the last day of
the second month following the month the Kiwifruit involved were
marketed. However, handlers paying their assessments, in accordance
with paragraph (i)(2) of this section, will not be subject to the 1.5
percent per month interest under this paragraph until the last day of
the second month after such assessments were due under paragraph (i)(2)
of this section. In the case of imports, such a rate of interest will
be charged to any account that remains delinquent on any assessments
not collected by the U.S. Customs Service at the time of entry or
withdrawal for consumption into the United States. Such a rate of
interest will continue to be charged monthly until the outstanding
balance is paid to the Promotion Board.
(h) Any assessment determined by the Promotion Board at a date
later than prescribed by this section, because of a person's failure to
submit a report to the Promotion Board when due, shall be considered to
have been payable by the date it would have been due if the report had
been filed on time. A late payment charge and monthly interest charges
on the outstanding balance shall be applicable to such unpaid
assessment in accordance with paragraphs (f) and (g) of this section.
[[Page 51391]]
(i) In lieu of the monthly assessment payment and reporting
requirements of Secs. 1214.125 and 1214.60, the Promotion Board may
permit a handler to make advance payment of the total estimated
assessment amount due to the Promotion Board for the ensuing fiscal
year, or portion thereof, prior to the actual determination of
assessable kiwifruit.
(j) Any person whose prepayment exceeds the amount paid shall be
reimbursed for the amount of overpayment. The Promotion Board shall
not, in any case, be obligated to pay interest on any advance payment.
Sec. 1214.121 Exemption procedures.
(a) Any producer who produces less than 500 pounds of kiwifruit
annually or who produces kiwifruit for processing and who desires to
claim an exemption from assessments during a fiscal year as provided in
Sec. 1214.52 shall apply to the Promotion Board, on a form provided by
the Promotion Board, for a certificate of exemption. Such producer
shall certify that their production of kiwifruit shall be less than 500
pounds, for the fiscal year for which the exemption is claimed. Any
importer who imports less than 10,000 pounds of kiwifruit annually or
who imports kiwifruit for processing and who desires to claim an
exemption from assessments during a fiscal year as provided in
Sec. 1214.52 of this part shall apply to the Promotion Board, on a form
provided by the Promotion Board, for a certificate of exemption. Such
importer shall certify that their importation of kiwifruit shall not
exceed 10,000 pounds, for the fiscal year for which the exemption is
claimed.
(b) On receipt of an application, the Promotion Board shall
determine whether an exemption may be granted. The Promotion Board then
will issue, if deemed appropriate, a certificate of exemption to each
person that is eligible to receive one. Each person who is exempt from
assessment must provide an exemption number to the first handler in
order not to be subject to collection of an assessment on kiwifruit.
Handlers and importers, except as otherwise authorized by the Promotion
Board, shall maintain records showing the exemptee's name and address
along with the exemption number assigned by the Promotion Board.
(c) Importers who are exempt from assessment shall be eligible for
reimbursement of assessments collected by the U.S. Customs Service and
shall apply to the Promotion Board for reimbursement of such
assessments paid. No interest will be paid on assessments collected by
the U.S. Customs Service and determined to be exempt at a later time.
Requests for reimbursement shall be submitted to the Board within 90
days of the last day of the year the kiwifruit were actually imported.
(d) Any person who desires to renew the exemption from assessments
for a subsequent fiscal year shall reapply to the Promotion Board, on a
form provided by the Promotion Board, for a certificate of exemption.
(e) The Promotion Board may require persons receiving an exemption
from assessments to provide to the Promotion Board reports on the
disposition of exempt kiwifruit and, in the case of importers, proof of
payment of assessments.
Reports
Sec. 1214.125 Reports.
Each handler or producer that is also a handler shall be required
to report monthly to the Promotion Board such information as may be
required under Sec. 1214.60. In addition, each handler may be required
to provide the farm identification number or social security number of
each producer the handler has dealt with during the time period covered
by the report.
Miscellaneous
Sec. 1214.130 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 0581-0093, except for the Promotion Board nominee background
statement form which is assigned OMB control number 0505-0001.
Proposal II
2. Part 1214 is added as set forth in Proposal I with the exception
that paragraph (c)(4) would be added to Sec. 1214.30 and paragraph (e)
would be added to Sec. 1214.40 to read as follows:
Sec. 1214.30 Establishment, adjustment, and membership.
* * * * *
(c) * * *
(4) For the purpose of nominating and appointing members of the
Board, the Secretary will ensure that at least two of the persons
appointed to and serving on the Board are selected from nominees
nominated by importers and/or exporters of New Zealand kiwifruit.
Sec. 1214.40 Programs, plans, and projects.
* * * * *
(e) The Secretary shall ensure that all programs developed and
implemented by the Board are intended to promote kiwifruit consumption
in the U.S. domestic market. No program shall be implemented by the
Board the purpose or major effect of which is the promotion of exports
of U.S.-- produced kiwifruit in foreign markets.
Proposal III
3. Part 1214 is added as set forth in Proposal I with the exception
that paragraph (c)(4) would be added to Sec. 1214.30 to read as
follows:
Sec. 1214.30 Establishment, adjustment, and membership.
* * * * *
(c) * * *
(4) For the purposes of nominating and appointing members of the
Board, the Secretary will include as a primary consideration in the
allocation of the four importer/exporter seats on the Board, the
relative expenditure on promotion and marketing of kiwifruit in the
United States that has been made over the previous 10 years by the
kiwifruit importer/exporters of the various countries of origin of the
kiwifruit imported.
Dated: September 23, 1996.
Lon Hatamiya,
Administrator.
[FR Doc. 96-24844 Filed 10-1-96; 8:45 am]
BILLING CODE 3410-02-P
