[Federal Register Volume 63, Number 215 (Friday, November 6, 1998)]
[Proposed Rules]
[Pages 59893-59907]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-29729]
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DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Part 1216
[FV-98-702-PR]
Proposed Peanut Promotion, Research, and Information Order
AGENCY: Agricultural Marketing Service, USDA.
ACTION: Proposed rule.
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SUMMARY: The U.S. Department of Agriculture (the Department or USDA) is
seeking comments regarding the establishment of an industry-funded
promotion, research, and information program for peanuts. A proposed
program--the Peanut Promotion, Research, and Information Order
(Order)--was submitted to USDA by the American Farm Bureau Federation.
Under the Order, peanut producers would pay an assessment of 1 percent
of the price of farmers stock peanuts sold to first handlers. First
handlers and marketing associations would remit the assessments to the
proposed National Peanut Board (Board). The proposed program would be
implemented under the Commodity Promotion, Research, and Information
Act of 1996 (Act).
DATES: Comments must be received by January 5, 1999.
ADDRESSES: Interested persons are invited to submit written comments
concerning this proposed rule to the Docket Clerk, Research and
Promotion Branch, Fruit and Vegetable Programs, Agricultural Marketing
Service, USDA, Stop 0244, Room 2535-S, 1400 Independence Avenue, S.W.,
Washington, D.C. 20250-0244. Comments should be submitted in triplicate
and will be made available for public inspection at the above address
during regular business hours. Comments may also be submitted
electronically to: malinda__e__farmer@usda.gov. All comments should
reference the docket number and the date and page number of this issue
of the Federal Register. A copy of this rule may be found at:
www.ams.usda.gov/fv/rpdocketlist.htm. Pursuant to the PRA, send
comments regarding the merits of the burden estimate, ways to minimize
the burden, including the use of automated collection techniques or
other forms of
[[Page 59894]]
information technology, or any other aspect of this collection of
information to the above address. Comments concerning the information
collection under the PRA should also be sent to the Desk Officer for
Agriculture, Office of Information and Regulatory Affairs, Office of
Management and Budget, Washington, D.C. 20503.
FOR FURTHER INFORMATION CONTACT: Angela C. Snyder, Research and
Promotion Branch, Fruit and Vegetable Programs, AMS, USDA, Stop 0244,
1400 Independence Avenue, S.W., Room 2535-S, Washington, D.C. 20250-
0244; telephone (910) 860-4689 or fax (202) 205-2800.
SUPPLEMENTARY INFORMATION: This proposed Order is issued pursuant to
the Commodity Promotion, Research, and Information Act of 1996, 7
U.S.C. 7401-7425; Public Law 104-127, enacted April 4, 1996,
hereinafter referred to as the Act.
Executive Order 12988
This proposed rule has been reviewed under Executive Order 12988,
Civil Justice Reform. It is not intended to have retroactive effect.
Section 524 of the Act provides that the Act shall not affect or
preempt any other Federal or state law authorizing promotion or
research relating to an agricultural commodity.
Under Section 519 of the Act, a person subject to the Order may
file a petition with the Secretary stating that the Order, any
provision of the Order, or any obligation imposed in connection with
the Order, is not established in accordance with the law, and
requesting a modification of the Order or an exemption from the Order.
Any petition filed challenging the Order, any provision of the Order,
or any obligation imposed in connection with the Order, shall be filed
within 2 years after the effective date of the Order, provision, or
obligation subject to challenge in the petition. The petitioner will
have the opportunity for a hearing on the petition. Thereafter, the
Secretary of Agriculture (Secretary) will issue a ruling on a petition.
The Act provides that the district court of the United States for any
district in which the petitioner resides or conducts business shall
have the jurisdiction to review a final ruling on the petition, if the
petitioner files a complaint for that purpose not later than 20 days
after the date of the entry of the Secretary's final ruling.
Executive Order 12866
This proposed 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 (OMB).
Regulatory Flexibility Act
In accordance with the Regulatory Flexibility Act (RFA) [5 U.S.C.
601 et seq.], the Agency is required to examine the impact of the
proposed rule on small entities. The purpose of the RFA is to fit
regulatory actions to the scale of businesses subject to such actions
so that small businesses will not be disproportionately burdened.
The Act authorizes generic programs of promotion, research, and
information for agricultural commodities. Congress found that it is in
the national public interest and vital to the welfare of the
agricultural economy of the United States to maintain and expand
existing markets and develop new markets and uses for agricultural
commodities through industry-funded, government-supervised, generic
commodity promotion programs.
This program is intended to develop and finance an effective and
coordinated program of promotion, research, and consumer information to
maintain and expand the markets for peanuts. A proposal was submitted
by the American Farm Bureau Federation (proponent), working in
cooperation with 20 state and regional peanut grower organizations
representing the nine primary peanut-producing states. The proponent
has proposed that peanut producers approve the program in a referendum
in advance of its implementation, and producer members would serve on
the 1-member Board that would administer the program under USDA'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.
While the proposed Order would impose certain recordkeeping
requirements on first handlers, information required under the proposed
Order could be compiled from records currently maintained. First
handlers and area marketing associations--for peanuts placed under loan
with the Commodity Credit Corporation (CCC) in the price support
program administered for CCC by USDA's Farm Service Agency (FSA)--would
collect and remit all assessments to the Board. Their responsibilities
would include accurate recordkeeping and accounting of all peanuts
purchased or contracted for, including the number of pounds handled,
price paid to the producer, and when peanuts are purchased. 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 records shall be retained for at least two
years. These requirements are either already being conducted as a
normal business practice or are required by other USDA peanut
regulations. The added burden to first handlers and area marketing
associations for a peanut promotion, research, and information program
is therefore expected to be minimal.
There is also a minimal burden on producers. The burden relates to
those producers who would seek nomination to serve on the Board and
those who vote in referenda. In addition, the proposed Order would
require producers to keep records and to provide information to the
Board or the Secretary when requested. However, it is not anticipated
that producers would be required to submit forms to the Board. Most
likely, the information would be obtained through an audit of a
producer's records to confirm information provided by a first handler
or if a first handler did not file the required reports as part of the
Board's compliance operation.
The estimated annual cost of providing the information to the Board
by an estimated 98 respondents (21 producers, 57 first handlers, and 20
producer organizations) would be $4,059.85 or $5.00 per producer,
$66.05 per first handler, and $9.50 per producer organization.
The Department would oversee program operations and, if the program
is implemented, would conduct a referendum (1) every five years to
determine whether peanut producers support continuation of the program,
(2) at the request of the Board established under the Order, or (3) at
the request of 10 percent or more of the number of persons eligible to
vote in referenda. Additionally, the Secretary may conduct a referendum
at any time to determine whether the continuation, suspension, or
termination of the Order or a provision of the Order is favored by
those eligible to vote in referenda.
There are approximately 25,000 producers and 57 first handlers of
peanuts that would be subject to the program. Most of the producers
would be classified as small businesses under the criteria established
by the Small Business Administration (SBA) [13 CFR 121.601]. Most first
handlers would not be classified as small businesses. The SBA defines
small agricultural handlers as those whose annual receipts are less
than $5 million, and small agricultural
[[Page 59895]]
producers are defined as those having annual receipts of not more than
$500,000 annually.
According to USDA's National Agricultural Statistics Service
(NASS), the nine major peanut-producing states in the United States
account for 99 percent of the peanuts grown in this country. The
combined production from these states totaled 3.5 billion pounds in
1997. NASS reports that Georgia was the largest producer (38 percent of
the total), followed by Texas (23 percent), Alabama (11 percent), North
Carolina (9 percent), Florida (6 percent), Virginia (5 percent),
Oklahoma (5 percent), New Mexico (1 percent), and South Carolina (1
percent). The farm value of peanuts in 1997 reached $932 million.
According to 1992 Census of Agriculture (Census) data, small amounts of
peanuts were also grown in seven other states.
According to the proponent, based on Census for these nine states,
36 percent of the peanut-producing counties in the United States had 35
percent or more of their total crop income from peanuts. Twenty-four
percent of the counties had 50 percent or more of their crop income
from peanuts. From a state perspective, 70 percent of the crop income
in Alabama's peanut-producing counties is generated from peanuts. For
Virginia, the percentage is 48 percent. In addition, 16,194 farms
harvested peanuts in 1992. Of these, 15,914 were located in the nine
primary peanut-producing states.
Three main types of peanuts are grown in the United States:
Florunners, Virginia, and Spanish. The southeast growing region grows
mostly the medium-kernel Runner peanuts. The southwest growing region
used to grow two-thirds Spanish and one-third Runner peanuts, but now
more Runners than Spanish are grown. Virtually all of the Spanish
peanut production is in Oklahoma and Texas. In the Virginia-Carolina
region, mainly large-kernel Virginia peanuts are grown. New Mexico
grows a fourth type of peanut, the Valencia.
Peanut manufacturers produce three principal peanut products:
peanut butter, packaged nuts (including salted, unsalted, flavored, and
honey-roasted nuts), and peanut candies. In most years, half of all
peanuts produced in the United States for edible purposes are used to
manufacture peanut butter. Packaged nuts account for almost one-third
of all processed peanuts. Some of these (commonly referred to as
``ballpark'' peanuts) are roasted in the shell, while a much larger
quantity is used as shelled peanuts packed as dry-roasted peanuts,
salted peanuts, and salted mixed nuts. Some peanuts are ground to
produce peanut granules and flour. Other peanuts are crushed to produce
oil.
According to USDA's Foreign Agricultural Service, U.S. exports of
peanuts (including peanut meal, oil, and peanut butter) totaled 880
million inshell equivalent pounds in 1997, with a value of $285 million
(U.S. point of departure for the foreign country). Of the total
quantity, 60 percent was shelled peanuts used as nuts, 11 percent was
blanched or otherwise prepared or preserved peanuts, 10 percent was
inshell peanuts, 7 percent was peanut butter, 4 percent was shelled oil
stock peanuts, 4 percent was crude peanut oil, and 3 percent was
refined peanut oil.
The major destinations for domestic shelled peanuts for use as nuts
are Canada, Mexico, the United Kingdom, and the Netherlands. Blanched
or otherwise prepared peanuts are sent mainly to Western Europe,
especially the Netherlands, France, and Spain. Inshell peanuts are
mainly exported to Canada and various countries in Western Europe.
Peanut butter is sent to many countries, with the largest amounts going
to Canada and Saudi Arabia. Peanut oil and oil stock peanuts are
exported world-wide, but major destinations can vary from year to year.
Approximately 250 million inshell equivalent pounds of peanuts and
processed peanuts (including oil and peanut butter) were imported in
1997 with a combined value (f.o.b. country of origin) of $73 million.
Most of the imports (45 percent) were shelled peanuts for use as nuts.
The major U.S. supplier is Argentina, but several other countries
export shelled peanuts to the United States, including Mexico,
Nicaragua, and South Africa.
Peanut butter imports are also significant and accounted for about
32 percent of the total quantity of nuts (inshell basis) imported in
1997. Most peanut butter imports come from Canada and Argentina. The
other major import category--crude and refined peanut oil--are shipped
mainly from Argentina and Nicaragua and account for approximately 18
percent of total imports (inshell equivalent basis). Inshell peanuts,
primarily from Mexico, accounted for nearly 3 percent of total imports
in 1997. About 3 percent of total imports consisted of blanched or
other processed peanuts, mainly from China. Imports of oil stock
shelled peanuts were negligible.
Most peanuts produced in other countries are crushed for oil and
protein meal. The United States is the main producer of peanuts used in
such edible products as peanut butter, roasted peanuts, and peanut
candies. Peanuts are one of the world's principal oilseeds, ranking
fourth behind soybeans, cottonseed, and rapeseed. India and China
usually account for half of the world's peanut production.
According to The Agriculture Statistics Report published by USDA,
during the 1995-96 season, the average annual production per U.S.
producer was approximately 144,228 pounds of peanuts. Peanuts produced
during these growing seasons provided average annual gross sales of
$42,222 per peanut producer. The value of the 1995-96 crop was
approximately $1.013 billion. During the same period, per capita
consumption in the United States was 5.7 pounds of peanuts.
The proposed Order would authorize a fixed assessment paid by
producers (to be collected by first handlers) at a rate of 1 percent of
the price paid for all farmers stock peanuts, regardless of whether the
peanuts are sold commercially or placed under loan with CCC in the
price support program administered for CCC by FSA.
Section 516(a)(1) of the Act provides authority to the Secretary to
exempt from the Order any de minimis quantity of an agricultural
commodity otherwise covered by the Order. The proponent has elected not
to provide for exemptions for a de minimis amount regarding peanuts.
Therefore, the term de minimis is not defined in the proposed Order,
and a de minimis exemption is not included.
At the proposed rate of assessment of 1 percent of farm value, the
Board would collect approximately $10 million annually, assuming 1
billion pounds of peanuts are produced. It is expected that the 1
percent rate of assessment would represent approximately 1 percent of
producers' average return. In 1995-96, the average price for peanuts
was $0.293 per pound.
USDA will keep all individuals informed throughout the referendum
process to ensure that they are aware of and are able to participate in
the referendum. USDA will publicize information regarding the
referendum process so that trade associations and related industry
media can be kept informed. If the program is implemented, the newly
established Board would recommend to USDA regulations for the program.
In addition, the peanut industry would nominate producers to serve
as members on the Board. The Board 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. USDA
[[Page 59896]]
would ensure that the nominees represent the peanut industry in
accordance with the Act. Primary peanut-producing states are defined in
the Order as Alabama, Florida, Georgia, New Mexico, North Carolina,
Oklahoma, South Carolina, Texas, and Virginia, provided that these
states maintain 3-year average production of at least 10,000 tons of
peanuts each. Minor peanut-producing states are defined in the Order as
all peanut-producing states other than the primary peanut-producing
states. Currently, the following states would be considered minor
states: Arizona, California, Louisiana, Mississippi, and Tennessee.
Each primary producing state would have one member on the Board,
and the minor peanut-producing states would be represented collectively
by one member on the Board. Each member would have an alternate.
Therefore, the Board would have 10 members and 10 alternates.
Proposed recordkeeping and reporting requirements for the peanut
promotion, research, and information program would be designed to
minimize the burden on first handlers. It is USDA's goal to collect
information from forms already submitted to another USDA agency. Any
information collection that could not occur through forms already in
use would pose minimal additional burden. The peanut promotion program
would be designed to strengthen the position of peanuts in the
marketplace, maintain and expand existing domestic and foreign markets,
and develop new uses and markets for peanuts.
The estimated annual cost of providing the information to the
proposed Board by an estimated 98 respondents (21 producers, 57 first
handlers, and 20 producer organizations) would be $4,059.85, or $5.00
per producer, $66.05 per first handler, and $9.50 per producer
organization.
With regard to alternatives to this proposed rule, the Act itself
does provide for authority to tailor a program according to the
individual needs of an industry. Provision is made for permissive terms
in an order in Section 516 of the Act, and other sections provide for
alternatives. For example, Section 514 of the Act provides for orders
applicable to (1) producers, (2) first handlers and other persons in
the marketing chain as appropriate, and (3) importers (if imports are
subject to assessment). Section 516 authorizes an order to provide for
exemption of de minimis quantities of an agricultural commodity;
different payment and reporting schedules; coverage of research,
promotion, and information activities to expand, improve, or make more
efficient the marketing or use of an agricultural commodity in both
domestic and foreign markets; provision for reserve funds; provision
for credits for generic and branded activities; and assessment of
imports. In addition, Section 518 of the Act provides for referenda to
ascertain approval of an order to be conducted either prior to its
going into effect or within 3 years after assessments first begin under
the order. An order also may provide for its approval in a referendum
to be based upon (1) a majority of those persons voting; (2) persons
voting for approval who represent a majority of the volume of the
agricultural commodity; or (3) a majority of those persons voting for
approval who also represent a majority of the volume of the
agricultural commodity. Section 515 of the Act provides for
establishment of a board from among producers, first handlers, and
others in the marketing chain as appropriate and importers, if
importers are subject to assessment.
This proposal includes provisions for both domestic and foreign
market expansion and improvement; reserve funds; and an initial
referendum to be conducted prior to the Order going into effect and
with approval based upon a majority of those persons voting in a
referendum.
While we have performed this Initial Regulatory Flexibility
Analysis regarding the impact of this proposed Order on small entities,
in order to obtain all the data necessary for a comprehensive analysis,
we invite comments concerning potential effects of the proposed Order.
In particular, we are interested in obtaining more information on the
number and kind of small entities that may incur benefits or costs from
implementation of the proposed Order 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 have been
submitted to OMB for approval.
Title: National Research, Promotion, and Consumer Information
Programs.
OMB Number for background form (number 1 below): 0505-0001.
Expiration Date of Approval: November 30, 1998.
OMB Number for other information collections: 0581-0093.
Expiration Date of Approval: November 30, 2000.
Type of Request: Revision of currently approved information
collections for advisory committees and boards and for research and
promotion programs.
Abstract: The information collection requirements in the request
are essential to carry out the intent of the Act.
In addition, there will be the additional burden on producers of
voting in referenda. The referendum ballot, which represents the
information collection requirement relating to referenda, is addressed
in a proposed rule on referendum procedures which is published
separately in this issue of the Federal Register.
Under the proposed program, first handlers would be required to
collect assessments from producers and file reports with and submit
assessments to the Board. While the proposed Order would impose certain
recordkeeping requirements on first handlers, information required
under the proposed Order could be compiled from records currently
maintained. Such records shall be retained for at least two years
beyond the marketing year of their applicability. The estimated annual
cost of providing the information to the Board by an estimated 98
respondents (21 producers, 57 first handlers, and 20 producer
organizations) would be $4,059.85, or $5.00 per producer, $66.05 per
first handler, and $9.50 per producer organization.
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
submitted under other peanut programs administered by the Department.
The Department is exploring ways to obtain some of the information
needed from forms already in use.
The proposed forms would 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
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 would coincide with normal industry
business practices. Reporting other than monthly would impose an
additional and unnecessary recordkeeping burden on first handlers. The
timing and frequency of collecting information is
[[Page 59897]]
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 first handlers who are subject to the provisions of the
Act.
Therefore, there is no practical method for collecting the required
information without the use of these forms.
Information collection requirements that are included in this
proposal include:
(1) A background information form to be completed by candidates
nominated by certified producer organizations for appointment to the
Board.
Estimate of Burden: Public reporting for this collection of
information is estimated to average 0.5 hours per response for each
producer.
Respondents: Producers.
Estimated number of Respondents: 21 (average of 40 for initial
nominations to the Board and approximately 12 respondents annually
thereafter for each 3-year period).
Estimated number of Responses per Respondent: 1 every 3 years.
Estimated Total Annual Burden on Respondents: 20 hours for the
initial nominations to the promotion board and 6 hours annually
thereafter.
(2) A monthly report by each first handler of peanuts.
Estimate of Burden: Public reporting burden for this collection of
information is estimated to average 0.5 hours per each first handler
reporting on peanuts handled.
Respondents: First handlers.
Estimated number of Respondents: 57.
Estimated number of Responses per Respondent: 12.
Estimated Total Annual Burden on Respondents: 342 hours.
(3) A nomination form by which certified producer organizations
would nominate producers for membership on the Board.
Estimate of Burden: Public reporting burden for this collecting of
information is estimated to average 0.5 hours per response.
Respondents: Certified producer organizations.
Estimated number of Respondents: 20.
Estimated number of Responses per Respondent: 1 per year.
Estimated Total Annual Burden on Respondents: 10 hours.
(4) A request of peanut producer organizations for certification of
eligibility to nominate Board members.
Estimate of Burden: Public reporting for this collection of
information is estimated to average 0.5 hours per response for each
organization.
Respondents: Peanut producer organizations.
Estimated number of Respondents: 9.
Estimated number of Responses per Respondent: 1.
Estimated Total Annual Burden on Respondents: 9 hours.
(5) A requirement to maintain records sufficient to verify reports
submitted under the Order.
Estimate of Burden: Public recordkeeping burden for keeping this
information is estimated to average 0.5 hours per recordkeeper
maintaining such records.
Recordkeepers: First handlers.
Estimated number of recordkeepers: 57.
Estimated total recordkeeping hours: 28.5 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 USDA'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
collection techniques or other forms of information technology.
The Act provides for the submission of proposals for a peanut
promotion, research, and information order by industry organizations or
any other interested person affected by the Act.
Comments concerning the information collection requirements
contained in this action should reference OMB No. 0581-0093. Comments
addressing the nomination background information form should reference
OMB No. 0505-0001. In addition, the docket number, date, and page
number of this issue of the Federal Register also should be referenced.
Comments should be sent to the USDA Docket Clerk and the OMB Desk
Officer for Agriculture at the addresses and within the time-frames
listed above. All responses to this notice will be summarized and
included in the request for OMB approval.
OMB is required to make a decision concerning the collection of
information contained in this rule between 30 and 60 days after
publication. Therefore, a comment to OMB is best assured of having its
full effect if OMB receives it within 30 days of publication.
Background
The Act authorizes the Secretary, under a generic authority, to
establish agricultural commodity research and promotion orders. Section
516 of the Act provides permissive terms for orders, and other sections
provide for alternatives. For example, Section 514 of the Act provides
for orders applicable to (1) producers, (2) first handlers and others
in the marketing chain as appropriate, and (3) importers (if importers
are subject to assessment). Section 516 authorizes an order to provide
for exemption of de minimis quantities of an agricultural commodity;
different payment and reporting schedules; coverage of research,
promotion, and information activities to expand, improve, or make more
efficient the marketing or use of an agricultural commodity in both
domestic and foreign markets; provision for reserve funds; provision
for credits for generic and branded activities; and assessment of
imports. In addition, Section 518 of the Act provides for referenda to
ascertain approval of an order to be conducted either prior to its
going into effect or within 3 years after assessments first begin under
the order. The order also may provide for its approval in a referendum
based upon different voting patterns. Section 515 provides for
establishment of a board from among producers, first handlers and
others in the marketing chain as appropriate, and importers, if imports
are subject to assessment.
This proposed Order includes provisions for both domestic and
foreign market expansion and improvement, reserve funds, and an initial
referendum to be conducted prior to the Order going into effect and
with approval based upon a majority of those persons voting in the
referendum.
The Act provides for a number of optional provisions that allow the
tailoring of orders for different commodities.
The proponent, working in cooperation with 20 state and regional
peanut industry organizations representing the nine primary peanut-
producing states, has requested the establishment of a national peanut
promotion, research, and information order pursuant to the Act. The Act
authorizes the establishment and operation of generic promotion
programs which may include a combination of promotion, research,
industry information, and consumer
[[Page 59898]]
information activities funded by mandatory assessments. These programs
are designed to maintain and expand markets and uses for agricultural
commodities. This proposal would provide for the development and
financing of an effective and coordinated program of research,
promotion, and information for peanuts. The purpose of the program
would be to strengthen the position of peanuts in domestic and foreign
markets, and to develop, maintain, and expand markets for peanuts.
The program would not become effective until approved by peanut
producers in a referendum to be conducted by USDA. Section 518 of the
Act provides for the Department (1) to conduct an initial referendum,
preceding a proposed order's effective date, among persons who would
pay assessments under the program or (2) to implement a proposed order,
pending the conduct of a referendum, among persons subject to
assessments, within 3 years after assessments first begin.
In accordance with Section 518(e) of the Act, the results of the
referendum must be determined one of three ways: (1) Approval by a
majority of those persons voting; (2) approval by persons voting who
represent a majority of the volume of the commodity covered by the
program; or (3) approval by a majority of the persons voting who also
represent a majority of the volume of the commodity produced, handled,
or imported by the persons voting.
The proponent proposes that the Department conduct an initial
referendum preceding the proposed Order's effective date and that
approval of the Order be determined by a simple majority of the
producers voting.
In accordance with the Act, the Department would oversee the
program's operations. In addition, the Act requires the Secretary to
conduct subsequent referenda: (1) not later than 7 years after
assessments first begin under the Order; or (2) at the request of the
board established under the Order; or (3) at the request of 10 percent
or more of the number of persons eligible to vote. The proponent group
has requested that a referendum be conducted every 5 years to determine
if producers want the program to continue.
In addition to these criteria, the Act provides that the Secretary
may conduct a referendum at any time to determine whether the
continuation, suspension, or termination of the Order or a provision of
the Order is favored by persons eligible to vote.
The proponent states that the United States Congress has
established a number of programs since the early 1930's to support and
stabilize farm prices and income and to adjust production in 1934. In
1949, a revised system of marketing quotas and acreage allotments for
peanuts began. Since then, Congress has amended and changed the peanut
program a number of times, with the latest changes made to the peanut
title in 1996 with the passage of the Federal Agriculture Improvement
and Reform (FAIR) Act. The new program retains its price support and
supply management elements while operating at no cost to the government
other than administrative expenses common to all price support
programs. The new program also lowers the loan rate for quota peanuts
from $678 per ton to $610 per ton and freezes that price for the life
of the program, through 2002. In addition, the quota level, which the
Secretary could not set below 1.35 million tons prior to passage of the
FAIR Act, has been reduced to equal the anticipated domestic demand for
peanuts.
The proponent has identified a number of market and production
factors that suggest the need for a national research, promotion, and
information program for peanuts. The most basic problem affecting
peanut marketing is a drop in demand caused by negative health
perceptions of peanuts' fat content, competition from other snack
foods, and lack of awareness among young people.
In addition, the proponent cites other factors. Government
purchases of peanut butter is down. If purchases return to historic
heights, purchases will still not be enough to reverse supply/demand
trends. Also, a 1997 Gallup survey revealed that 87 percent of all
consumers are peanut users, while 13 percent did not consume any
peanuts in the past year. Per capita consumption of peanuts has been
decreasing. It appears now that demand trends have bottomed out and are
starting to rise. National promotion could bolster this trend.
The same survey indicated that the percent of peanut non-users is
increasing, as is the percent of young people not consuming peanuts or
peanut products. Thirty-five percent of all consumers surveyed
indicated they did not consume any snack peanuts, and more than 40
percent thought peanuts contained cholesterol when, in fact, peanuts
contain none.
The proponent also states that 26 percent of all consumers did not
consume any peanut butter last year. Peanut butter could be an
affordable alternative for low-income consumers in comparison to other
sandwich options, but fewer and fewer low income consumers are using
peanut butter as an alternative.
In addition, in 1996, the farm value of U.S. peanuts fell below $1
billion to $970 million for the first time since 1982.
Further, the domestic industry is facing increased competition in
the United States and abroad from lower-priced peanuts produced in
other countries. The value of peanuts and peanut products imported into
the United States exceeded $100 million in 1996.
All of these factors have led the domestic peanut industry to seek
a national promotion program to find ways to further increase the
consumption of U.S. peanuts.
Section 516(f) of the Act allows an order to authorize the levying
of assessments on imports of the commodity covered by the program or on
products containing that commodity, at a rate comparable to the rate
determined for the domestic agricultural commodity covered by the
order. The proponent has elected in its proposal not to assess imports.
The assessment levied on domestically produced peanuts would be
used to pay for promotion, research, and consumer and industry
information as well as administration, maintenance, and functioning of
the Board. Expenses incurred by the Secretary in implementing and
administering the Order, including referenda costs, also would be paid
from assessments.
Sections 516(e)(1) and (2) of the Act state that the Secretary may
provide credits of assessments for generic and branded activities. The
proponent has elected not to propose credits for generic or branded
activities. Therefore, the terms ``generic activities'' and ``branded
activities'' are not defined in the Order, and credits for assessments
would not be made.
First handlers would be responsible for the collection of
assessments from the producer and payment to the promotion Board. First
handlers would be required to maintain records for each producer for
whom peanuts are handled, including peanuts produced by the first
handler. In addition, first handlers would be required to file reports
regarding the collection, payment, or remittance of the assessments.
All information obtained from persons subject to this Order as a
result of recordkeeping and reporting requirements will be kept
confidential by all officers, employees, and agents of the Department
and of the Board. However, this information may be
[[Page 59899]]
disclosed only if the Secretary considers the information relevant, and
the information is revealed in a judicial proceeding or administrative
hearing brought at the direction or on the request of the Secretary or
to which the Secretary or any officer of the Department is a party.
Other exceptions for disclosure of confidential information would
include the issuance of general statements based on reports or on
information relating to a number of persons subject to an order if the
statements do not identify the information furnished by any person or
the publication, by direction of the Secretary of the name of any
person violating the Order and a statement of the particular provisions
of the Order violated by the person.
The proposed Order provides for the Department to conduct an
initial referendum preceding the proposed Order's effective date.
Therefore, the proposed Order must be approved by a majority of the
producers voting for approval. The proposed Order also provides for
subsequent referenda to be conducted (1) every 5 years after the
program is in effect, (2) at the request of the Board established under
the Order, or (3) when requested by 10 percent or more of peanut
producers covered by the Order. In addition, the Secretary may conduct
a referendum at any time.
The Act requires that such a proposed order provide for the
establishment of a board to administer the program under USDA
supervision. The proponent's proposal provides for a 10-member National
Peanut Board, as stated earlier.
To ensure fair and equitable representation of the peanut industry
on the Board, the Act requires membership on the Board to reflect the
geographical distribution of the production of peanuts. To that end,
this proposal provides that each primary peanut-producing state would
be represented on the Board by one producer member and alternate and
that the minor peanut-producing states would be represented
collectively by one at-large producer member and alternate. Based on
current information on production in the various states, the Order
defines the primary peanut-producing states as Alabama, Florida,
Georgia, New Mexico, North Carolina, Oklahoma, South Carolina, Texas,
and Virginia, provided that these states maintain three-year average
production of at least 10,000 tons of peanuts.
Upon implementation of the Order and pursuant to the Act, the Board
would at least once in each five-year period, but not more frequently
than once in each three-year period, review the geographical
distribution of peanuts in the United States and make a recommendation
to the Secretary after considering the results of its review and other
information it deems relevant regarding the reapportionment of the
Board.
Members and alternates would serve for three-year terms, except
that the members and alternates appointed to the initial Board would
serve proportionately for two-, three-, and four-year terms. No member
or alternate would serve more than two consecutive three-year terms.
The proposed Order submitted by the proponent is summarized as
follows:
Sections 1216.01 through 1216.31 of the proposed Order define
certain terms, such as peanuts, minor peanut-producing states, primary
peanut-producing states, producer, and quota peanuts, which are used in
the proposed Order.
Sections 1216.40 through 1216.49 include provisions relating to the
Board establishment and membership, nominations, selections and
acceptance, term of office, vacancies, alternate members, and
compensation and reimbursement; procedures for conducting Board
business; and powers and duties of the Board, which is the governing
body authorized to administer the Order through the implementation of
programs, plans, projects, budgets, and contracts to promote and
disseminate information about peanuts, subject to oversight of the
Secretary. These sections also include maintenance of books and records
by the Board and prohibited activities of the Board, its employees, and
agents.
In order to ensure support throughout the production area for all
Board votes, Sec. 1216.46(b) provides that all Board members' votes
would be weighted by the value of production represented by each
member. The votes of members from primary peanut-producing states would
represent their respective states' three-year running average of total
gross farm income derived from all peanut sales. The votes of the at-
large Board member would equal the collective value of production from
all minor peanut-producing states' three year running average of total
gross farm income from all peanut sales. Any Board action would require
the concurring votes of members collectively representing more than 50
percent of the total U.S. gross farm income derived from all peanut
sales plus an additional two votes from other Board members, provided a
minimum of five members concur. Therefore, regardless of the volume
voted by the members, no Board action would be approved unless at least
five members voted in favor of it. Similarly, if five members vote in
favor of a motion and those five members do not represent more than 50
percent of the total U.S. gross farm income derived from all peanut
sales, the motion would not be approved.
Sections 1216.50 through 1216.55 would cover budget review and
approval; authorize the collection of assessments; use of assessments,
including reimbursement of necessary expenses incurred by the Board for
the performance of its duties, including expenses incurred for the
Department's oversight responsibilities; specify who pays the
assessment and how; authorize the imposition of a late-payment charge
on past-due assessments; address programs, plans, and projects; require
the Board to conduct periodically an independent review of its overall
program; specify a program operating reserve; and cover the investment
of assessment funds.
The proponent recommends a proposed assessment rate of 1 percent of
the price paid for all farmers stock peanuts sold. Peanut producers may
sell their peanuts commercially or put them in a government loan
program. For peanuts sold commercially, the first handler would remit
the assessment to the Board. The assessment would be 1 percent of the
price paid for the peanuts.
Under a loan program administered by FSA, a peanut producer also
has the option of delivering the peanuts to an area marketing
association and receiving payment for the peanuts from CCC. If the
peanut promotion program is implemented, the area association would
deduct 1 percent of the payment from the producer's proceeds and remit
that amount to the Board as the producer's initial assessment payment
on the peanuts. After the association sells the peanuts, the area
association reimburses CCC the amount of the payment to the producer
and deducts its expenses from the selling price. If the peanut
promotion program is implemented and if there is any profit from the
sale of the peanuts, the association would deduct 1 percent of the
profit, remit that amount to the Board to pay the producer's
assessment, and pay the balance to the producer.
The Board may raise or lower the rate of assessment with approval
of the Secretary.
The federal debt collection procedures referenced in
Sec. 1216.51(g) include those set forth in 7 CFR 3.1 through 3.36 for
all research and promotion programs administered by AMS (60 FR 12533,
March 7, 1995).
[[Page 59900]]
Sections 1216.60 through 1206.62 concern reporting and
recordkeeping requirements for persons subject to the Order and protect
the confidentiality of information from such books, records, or
reports.
Section 1216.70 describes the certification requirements for
peanut-producer organizations to be eligible to nominate Board members
and submit requests for funds from the Board.
Sections 1216.80 through 1216.87 describe the rights of the
Secretary; authorize the Secretary to suspend or terminate the Order
when deemed appropriate; prescribe proceedings after suspension or
termination; address personal liability, separability, and amendments;
and address patents, copyrights, trademarks, information, publications,
and product formulations developed through the use of assessment funds.
The Department has modified the proponent's proposal to make it
consistent with the Act, other similar national research and promotion
programs, and other Federal peanut programs administered by the
Department; for consistency throughout the text; and for clarity.
In the definitions and throughout the text of the Order, ``farmer
stock peanuts'' was changed to ``farmers stock peanuts'' for
consistency with industry use and existing regulations.
A definition for ``first handler'' was added for consistency with
similar national research and promotion programs, and subsequent
sections were renumbered accordingly.
The definition of ``information'' was rewritten to include
activities designed to enhance peanuts' image, to add definitions of
``consumer information'' and ``producer information,'' and to conform
with the Act.
The definition of ``quota peanuts'' was rewritten to reference 7
CFR Part 729.
In Sec. 1216.41 (Nominations), the phrase ``qualified nominating
organizations'' was changed to read ``certified nominating
organizations'' for consistency with the text.
In addition, Sec. 1216.50(h) has been revised to be consistent with
the Act. Paragraph (e)(5) Limitation on spending of Sec. 515 of the Act
states that a board ``may not expend for administration (except for
reimbursements to the Secretary * * *)'' an amount that exceeds 15
percent of the board's income during any fiscal year. The proposal
submitted set a more stringent limitation of 10 percent and stated that
administrative expenses included reimbursement to the Secretary. The
Order may set the more stringent limitation of 10 percent because that
amount is less than the 15 percent provided in the Act. However, the
Order may not provide that reimbursements to the Secretary are covered
by the limitation on spending.
Other minor changes which do not materially affect the text were
made for consistency. For instance, in the definitions, ``additional
peanuts are * * *'' was changed to read ``additional peanuts means * *
*'' As another example, in sections containing only one paragraph, the
paragraph designation was removed. Minor grammatical changes also were
made.
The proponent submitted ``Subpart B--Voting Procedures and Approval
of the Peanut Promotion, Research, and Information Order.'' This
proposed subpart has been revised and included as Sec. 1216.80 of the
proposed Order.
The Department has determined that this proposed Order is
consistent with and will effectuate the purposes of the Act.
The proposal set forth below has not received the approval of the
Secretary.
List of Subjects in 7 CFR Part 1216
Administrative practice and procedure, Advertising, Consumer
information, Marketing agreements, Peanut promotion, Reporting and
recordkeeping requirements.
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:
1. Part 1216 is added to read as follows:
PART 1216--PEANUT PROMOTION, RESEARCH, AND INFORMATION ORDER
Subpart A--Peanut Promotion, Research, and Information Order
Definitions
Sec.
1216.01 Act.
1216.02 Additional peanuts.
1216.03 Area marketing association.
1216.04 Board.
1216.05 Conflict of interest.
1216.06 Contract export additional peanuts.
1216.07 Department.
1216.08 Farmers stock peanuts.
1216.09 First handler.
1216.10 Fiscal year.
1216.11 Handle.
1216.12 Information.
1216.13 Market.
1216.14 Minor peanut-producing states.
1216.15 Order.
1216.16 Part and subpart.
1216.17 Peanuts.
1216.18 Peanut producer organization.
1216.19 Person.
1216.20 Primary peanut-producing states.
1216.21 Producer.
1216.22 Promotion.
1216.23 Quota peanuts.
1216.24 Research.
1216.25 Secretary.
1216.26 Suspend.
1216.27 State.
1216.28 Terminate.
1216.29 United States.
National Peanut Board
1216.40 Establishment and membership.
1216.41 Nominations.
1216.42 Selection.
1216.43 Term of office.
1216.44 Vacancies.
1216.45 Alternate members.
1216.46 Procedure.
1216.47 Compensation and reimbursement.
1216.48 Powers and duties of the National Peanut Board.
1216.49 Prohibited activities.
Expenses and Assessments
1216.50 Budget and expenses.
1216.51 Assessments.
1216.52 Programs, plans, and projects.
1216.53 Independent evaluation.
1216.54 Operating reserve.
1216.55 Investment of funds.
Reports, Books, and Records
1216.60 Reports.
1216.61 Books and records.
1216.62 Confidential treatment.
Certification of Peanut Producer Organizations
1216.70 Certification.
Miscellaneous
1216.80 Implementation of Order.
1216.81 Suspension and termination.
1216.82 Proceedings after termination.
1216.83 Effect of termination or amendment.
1216.84 Personal liability.
1216.85 Separability.
1216.86 Amendments.
1216.87 Patents, copyrights, trademarks, information, publications,
and product formulations.
Authority: 7 U.S.C. 7401-7425.
Subpart A--Peanut Promotion, Research, and Information Order
Definitions
Sec. 1216.01 Act.
Act means the Commodity Promotion, Research, and Information Act of
1996 (7 U.S.C. 7401-7425; Public Law 104-127; 110 Stat. 1029), or any
amendments thereto.
Sec. 1216.02 Additional peanuts.
Additional peanuts means peanuts which are marketed from a farm
other than peanuts marketed or considered marketed as quota peanuts.
Sec. 1216.03 Area marketing association.
Area marketing association means an association selected and
approved by the Secretary to conduct activities under regulations of
the Department's Farm
[[Page 59901]]
Service Agency. Under an inter-agency agreement, area marketing
associations will assist in the collection of assessments under this
subpart. The approved area marketing associations and the areas served
by such associations are as follows:
(a) GFA Peanut Association of Camilla, Georgia (GFA). GFA serves
the southeastern area consisting of Puerto Rico, the U.S. Virgin
Islands, and the states of Alabama, Florida, Georgia, Mississippi, and
that part of South Carolina south and west of the Santee-Congaree-Broad
Rivers;
(b) Peanut Growers Cooperative Marketing Association of Franklin,
Virginia (PGCMA). PGCMA serves the Virginia-Carolina area consisting of
the District of Columbia, and the states of Connecticut, Delaware,
Illinois, Indiana, Iowa, Kentucky, Maine, Maryland, Massachusetts,
Michigan, Minnesota, Missouri, New Hampshire, New Jersey, New York,
North Carolina, Ohio, Pennsylvania, Rhode Island, Tennessee, Vermont,
Virginia, West Virginia, Wisconsin, and that part of South Carolina
north and east of the Santee-Congaree-Broad Rivers; and
(c) Southwestern Peanut Growers Association of Gorman, Texas
(SWPGA). SWPGA serves the southwestern area consisting of the states of
Alaska, Arizona, Arkansas, California, Colorado, Hawaii, Idaho, Kansas,
Louisiana, Montana, Nebraska, New Mexico, Nevada, North Dakota,
Oklahoma, Oregon, South Dakota, Texas, Utah, Washington, and Wyoming,
and all other territories of the United States not listed in paragraph
(a) or (b) of this section.
Sec. 1216.04 Board.
Board means the administrative body referred to as the National
Peanut Board established pursuant to Sec. 1216.40 of this subpart.
Sec. 1216.05 Conflict of interest.
Conflict of interest means a situation in which a member or
employee of the Board has a direct or indirect financial interest in a
person who performs a service for, or enters into a contract with, the
Board for anything of economic value.
Sec. 1216.06 Contract export additional peanuts.
Contract export additional peanuts are additional peanuts for
exportation, including peanuts for crushing for exportation, for which
a contract has been entered into between a first handler and a
producer.
Sec. 1216.07 Department.
Department means the U.S. Department of Agriculture.
Sec. 1216.08 Farmers stock peanuts.
Farmers stock peanuts means picked or threshed peanuts produced in
the United States which have not been changed (except for removal of
foreign material, loose shelled kernels and excess moisture) from the
condition in which picked or threshed peanuts are customarily marketed
by producers, plus any loose shelled kernels that are removed from
farmers stock peanuts before such farmers stock peanuts are marketed.
Sec. 1216.09 First handler.
First handler means any person who handles peanuts in a capacity
other than that of a custom cleaner or dryer, an assembler, a
warehouseman, or other intermediary between the producer and the person
handling.
Sec. 1216.10 Fiscal year.
Fiscal year is synonymous with crop year and means the 12-month
period beginning with August 1 of any year and ending with July 31 of
the following year, or such other period as determined by the Board and
approved by the Secretary.
Sec. 1216.11 Handle.
Handle means to engage in the receiving or acquiring, cleaning and
shelling, cleaning inshell, or crushing of peanuts and in the shipment
(except as a common or contract carrier of peanuts owned by another) or
sale of cleaned inshell or shelled peanuts, or other activity causing
peanuts to enter the current of commerce: Provided, That this term does
not include sales or deliveries of peanuts by a producer to a handler
or to an intermediary person engaged in delivering peanuts to
handler(s) and Provided further, That this term does not include sales
or deliveries of peanuts by such intermediary person(s) to a handler.
Sec. 1216.12 Information.
Information means information and programs that are designed to
increase efficiency in processing and to develop new markets, marketing
strategies, increased market efficiency, and activities that are
designed to enhance the image of peanuts on a national or international
basis. These include:
(a) Consumer information, which means any action taken to provide
information to, and broaden the understanding of, the general public
regarding the consumption, use, nutritional attributes, and care of
peanuts; and
(b) Producer information, which means information and programs that
will lead to the development of new markets, new marketing strategies,
or increased efficiency for the peanut industry, and activities to
enhance the image of the peanut industry.
Sec. 1216.13 Market.
Market means to sell or otherwise dispose of peanuts into
interstate, foreign, or intrastate commerce by buying, marketing,
distributing, or otherwise placing peanuts into commerce.
Sec. 1216.14 Minor peanut-producing states.
Minor peanut-producing states means all peanut-producing states
with the exception of Alabama, Florida, Georgia, New Mexico, North
Carolina, Oklahoma, South Carolina, Texas, and Virginia.
Sec. 1216.15 Order.
Order means an order issued by the Secretary under section 514 of
the Act that provides for a program of generic promotion, research, and
information regarding agricultural commodities authorized under the
Act.
Sec. 1216.16 Part and subpart.
Part means the Peanut Promotion, Research, and Information Order
and all rules, regulations, and supplemental orders issued pursuant to
the Act and the Order. The Order shall be a ``subpart'' of such part.
Sec. 1216.17 Peanuts.
Peanuts means the seeds of the legume arachis hypogaea and includes
both inshell and shelled peanuts other than those marketed by the
producer in green form for consumption as boiled peanuts.
Sec. 1216.18 Peanut producer organization.
Peanut producer organization means a state-legislated peanut
promotion, research, and education commission or organization. For
states without a state-legislated peanut promotion, research, and
education commission or organization, ``peanut producer organization''
means any organization which has the primary purpose of representing
peanut producers and has peanut producers as members.
Sec. 1216.19 Person.
Person means any individual, group of individuals, partnership,
corporation, association, cooperative, or any other legal entity.
Sec. 1216.20 Primary peanut-producing states.
Primary peanut-producing states means Alabama, Florida, Georgia,
New
[[Page 59902]]
Mexico, North Carolina, Oklahoma, South Carolina, Texas, and Virginia,
Provided, these states maintain three-year average production of at
least 10,000 tons of peanuts.
Sec. 1216.21 Producer.
Producer means any person engaged in the production and sale of
peanuts and who owns, or shares the ownership and risk of loss of, the
crop. This does not include quota holders who do not share in the risk
of loss of the crop.
Sec. 1216.22 Promotion.
Promotion means any action taken by the National Peanut Board under
this Order, including paid advertising, to present a favorable image of
peanuts to the public to improve the competitive position of peanuts in
the marketplace, including domestic and international markets, and to
stimulate sales of peanuts.
Sec. 1216.23 Quota peanuts.
Quota peanuts means peanuts which are:
(a) Eligible for domestic edible uses; and
(b) Marketed or considered marketed from a farm as quota peanuts
pursuant to the provisions of 7 CFR Part 729 and are not in excess of
the effective farm poundage quota established for the farm on which
such peanuts were produced.
Sec. 1216.24 Research.
Research means any type of test, study, or analysis designed to
advance the image, desirability, use, marketability, production,
product development, or quality of peanuts, including research relating
to nutritional value and cost of production.
Sec. 1216.25 Secretary.
Secretary means the Secretary of Agriculture of the United States,
or any officer or employee of the U.S. Department of Agriculture to
whom authority has heretofore been delegated, or to whom authority may
hereafter be delegated, to act in the Secretary's stead.
Sec. 1216.26 Suspend.
Suspend means to issue a rule under section 553 of title 5, United
States Code, to temporarily prevent the operation of an order during a
particular period of time specified in the rule.
Sec. 1216.27 State.
State means any of the 50 states, the District of Columbia, the
Commonwealth of Puerto Rico, or any territory or possession of the
United States.
Sec. 1216.28 Terminate.
Terminate means to issue a rule under section 553 of title 5,
United States Code, to cancel permanently the operation of an order
beginning on a date certain specified in the rule.
Sec. 1216.29 United States.
United States means collectively the 50 states, the District of
Columbia, the Commonwealth of Puerto Rico, and the territories and
possessions of the United States.
National Peanut Board
Sec. 1216.40 Establishment and membership.
(a) Establishment of a National Peanut Board. There is hereby
established a National Peanut Board, hereinafter called the Board,
composed of no more than 10 peanut producers and alternates, appointed
by the Secretary from nominations as follows:
(1) Nine members and alternates. One member and one alternate shall
be appointed from each primary peanut-producing state, who are
producers and whose nominations have been submitted by certified peanut
producer organizations within a primary peanut-producing state.
(2) The minor peanut-producing states shall collectively have one
at-large member and one alternate, who are producers, to be appointed
by the Secretary from nominations submitted by certified peanut
producer organizations within minor peanut-producing states or from
other certified farm organizations that include peanut producers as
part of their membership.
(b) Adjustment of membership. At least once in each five-year
period, but not more frequently than once in each three-year period,
the Board, or a person or agency designated by the Board, shall review
the geographical distribution of peanuts in the United States and make
recommendation(s) to the Secretary to continue without change, or
whether changes should be made in the number of representatives on the
Board to reflect changes in the geographical distribution of the
production of peanuts.
Sec. 1216.41 Nominations.
(a) All nominations authorized under Sec. 1216.40 shall be made
within such a period of time as the Secretary shall prescribe. Eligible
peanut producer organizations within each state as certified pursuant
to Sec. 1216.70 shall nominate two qualified persons for each member
and each alternate member. The nominees shall be chosen at an open
meeting by election among the general membership. Any certified peanut
producer organization representing a minor peanut-producing state may
nominate two eligible persons for each member and two eligible persons
for each alternate member.
(b) As soon as practicable after this subpart becomes effective,
the Secretary shall obtain nominations for appointment to the initial
promotion Board from certified nominating organizations. In any
subsequent year in which an appointment to the Board is to be made,
nominations for positions whose terms will expire shall be obtained
from certified nominating organizations by the Board's staff and
submitted to the Secretary by May 1 of such year, or other such date as
approved by the Secretary.
(c) Except for initial Board members, whose nomination process will
be initiated by the Secretary, the Board shall issue call for
nominations by March 1 of each year.
Sec. 1216.42 Selection.
From the nominations, the Secretary shall select the members of the
Board and alternates for each primary peanut-producing state. The
Secretary shall select one member and one alternate from all
nominations submitted by certified peanut producer organizations
representing minor peanut-producing states.
Sec. 1216.43 Term of office.
(a) All members and alternates of the Board shall each serve for
terms of three years, except that the members and alternates appointed
to the initial Board shall serve proportionately for two-, three-, and
four-year terms, with the length of the terms determined at random. No
member or alternate may serve more than two consecutive three-year
terms. An alternate, after serving two consecutive three-year terms,
may serve as a member for an additional two consecutive three-year
terms. A member, after serving two consecutive three-year terms, may
serve as an alternate for an additional two consecutive three-year
terms. Each member and alternate shall continue to serve until a
successor is selected and has qualified.
(1) Those members serving initial terms of two or four years may
serve one successive three-year term.
(2) Any successor serving one year or less may serve two
consecutive three-year terms.
Sec. 1216.44 Vacancies.
To fill any vacancy resulting from the failure to qualify of any
person selected as a member or as an alternate member of the Board, or
in the event of death, removal, resignation, or disqualification of any
member or alternate member of
[[Page 59903]]
the Board, a successor for the unexpired term of such member or
alternate member of the Board shall be nominated and selected in the
manner specified in Sec. 1216.40 of this Order.
Sec. 1216.45 Alternate members.
An alternate member of the Board, during the absence of the member
for the primary peanut-producing state or at-large member for whom the
person is the alternate, shall act in the place and stead of such
member and perform such duties as assigned. In the event of death,
removal, resignation, or disqualification of any member, the alternate
for that state or at-large member shall act for the member until a
successor for such member is selected and qualified. In the event that
both a producer member of the Board and the alternate are unable to
attend a meeting, the Board may not designate any other alternate to
serve in such member's or alternate's place and stead for such a
meeting.
Sec. 1216.46 Procedure.
(a) A majority of the members of the Board, including alternate
members acting for members, shall constitute a quorum.
(b) At assembled meetings, all votes shall be cast in person. Board
actions shall be weighted by value of production as determined by a
primary peanut-producing state's three-year running average of total
gross farm income derived from all peanut sales. The at-large Board
member's vote shall be weighted by the collective value of production
from all minor peanut-producing states' three-year running average of
total gross farm income derived from all peanut sales. Any Board action
shall require the concurring votes of members or alternates from states
representing more than 50 percent of total U.S. gross farm income
derived from all peanut sales, plus an additional two votes from any
other Board members, provided a minimum of five votes concur.
(c) For routine and noncontroversial matters which do not require
deliberation and the exchange of views, and in matters of an emergency
nature when there is not time to call an assembled meeting of the
Board, the Board may also take action as prescribed in this section by
mail, facsimile, telephone, or any telecommunication method appropriate
for the conduct of business, but any such action shall be confirmed in
writing within 30 days.
(d) There shall be no voting by proxy.
(e) The chairperson shall be a voting member.
Sec. 1216.47 Compensation and reimbursement.
The members of the Board, and alternates when acting as members,
shall serve without compensation but shall be reimbursed for reasonable
travel expenses, as approved by the Board, incurred by them in the
performance of their duties as Board members.
Sec. 1216.48 Powers and duties of the National Peanut Board.
The Board shall have the following powers and duties:
(a) To administer the Order in accordance with its terms and
conditions and to collect assessments;
(b) To develop and recommend to the Secretary for approval such
bylaws as may be necessary for the functioning of the Board, and such
rules as may be necessary to administer the Order, including activities
authorized to be carried out under the Order;
(c) To meet, organize, and select from among the members of the
Board a chairperson, other officers, committees, and subcommittees, as
the Board determines to be appropriate;
(d) To employ persons, other than the members, as the Board
considers necessary to assist the Board in carrying out its duties and
to determine the compensation and specify the duties of such persons;
(e) To develop programs and projects, and enter into contracts or
agreements, which must be approved by the Secretary before becoming
effective, for the development and carrying out of programs or projects
of research, information, or promotion, and the payment of costs
thereof with funds collected pursuant to this subpart. Each contract or
agreement shall provide that any person who enters into a contract or
agreement with the Board shall develop and submit to the Board a
proposed activity; keep accurate records of all of its transactions
relating to the contract or agreement; account for funds received and
expended in connection with the contract or agreement; make periodic
reports to the Board of activities conducted under the contract or
agreement; and make such other reports available as the Board or the
Secretary considers relevant. Any contract or agreement shall provide
that:
(1) The contractor or agreeing party shall develop and submit to
the Board a program, plan, or project together with a budget or budgets
that shall show the estimated cost to be incurred for such program,
plan, or project;
(2) The contractor or agreeing party shall keep accurate records of
all its transactions and make periodic reports to the Board of
activities conducted, submit accounting for funds received and
expended, and make such other reports as the Secretary or the Board may
require;
(3) The Secretary may audit the records of the contracting or
agreeing party periodically; and
(4) Any subcontractor who enters into a contract with a Board
contractor and who receives or otherwise uses funds allocated by the
Board shall be subject to the same provisions as the contractor.
(f) To prepare and submit for approval of the Secretary fiscal year
budgets in accordance with Sec. 1216.50;
(g) To maintain such records and books and prepare and submit such
reports and records from time to time to the Secretary as the Secretary
may prescribe; to make appropriate accounting with respect to the
receipt and disbursement of all funds entrusted to it; and to keep
records that accurately reflect the actions and transactions of the
Board;
(h) To cause its books to be audited by a competent auditor at the
end of each fiscal year and at such other times as the Secretary may
request, and to submit a report of the audit directly to the Secretary;
(i) To give the Secretary the same notice of meetings of the Board
as is given to members in order that the Secretary's representative(s)
may attend such meetings, and to keep and report minutes of each
meeting of the Board to the Secretary;
(j) To act as intermediary between the Secretary and any producer
or first handler;
(k) To furnish to the Secretary any information or records that the
Secretary may request;
(l) To receive, investigate, and report to the Secretary complaints
of violations of the Order;
(m) To recommend to the Secretary such amendments to the Order as
the Board considers appropriate; and
(n) To work to achieve an effective, continuous, and coordinated
program of promotion, research, consumer information, evaluation, and
industry information designed to strengthen the peanut industry's
position in the marketplace; maintain and expand existing markets and
uses for peanuts; and to carry out programs, plans, and projects
designed to provide maximum benefits to the peanut industry.
Sec. 1216.49 Prohibited activities.
The Board may not engage in, and shall prohibit the employees and
agents of the Board from engaging in:
(a) Any action that would be a conflict of interest;
(b) Using funds collected by the Board under the Order to undertake
any action
[[Page 59904]]
for the purpose of influencing legislation or governmental action or
policy, including local, state, national, and international, other than
recommending to the Secretary amendments to the Order; and
(c) Any advertising, including promotion, research, and information
activities authorized to be carried out under the Order, that is false
or misleading or disparaging to another agricultural commodity.
Expenses and Assessments
Sec. 1216.50 Budget and expenses.
(a) At least 60 days prior to the beginning of each fiscal year,
and as may be necessary thereafter, the Board shall prepare and submit
to the Secretary a budget for the fiscal year covering its anticipated
expenses and disbursements in administering this subpart. Each such
budget shall include:
(1) A statement of objectives and strategy for each program, plan,
or project;
(2) A summary of anticipated revenue, with comparative data for at
least one preceding year (except for the initial budget);
(3) A summary of proposed expenditures for each program, plan, or
project; and
(4) Staff and administrative expense breakdowns, with comparative
data for at least one preceding year (except for the initial budget).
(b) Each budget shall provide adequate funds to defray its proposed
expenditures and to provide for a reserve as set forth in this subpart.
(c) Subject to this section, any amendment or addition to an
approved budget must be approved by the Secretary, including shifting
funds from one program, plan, or project to another. Shifts of funds
which do not cause an increase in the Board's approved budget and which
are consistent with governing bylaws need not have prior approval by
the Secretary.
(d) The Board is authorized to incur such expenses, including
provision for a reasonable reserve, as the Secretary finds are
reasonable and likely to be incurred by the Board for its maintenance
and functioning, and to enable it to exercise its powers and perform
its duties in accordance with the provisions of this subpart. Such
expenses shall be paid from funds received by the Board.
(e) With approval of the Secretary, the Board may borrow money for
the payment of administrative expenses, subject to the same fiscal,
budget, and audit controls as other funds of the Board. Any funds
borrowed by the Board shall be expended only for startup costs and
capital outlays and are limited to the first year of operation of the
Board.
(f) The Board may accept voluntary contributions, but these shall
only be used to pay expenses incurred in the conduct of programs,
plans, and projects. Such contributions shall be free from any
encumbrance by the donor and the Board shall retain complete control of
their use.
(g) The Board shall reimburse the Secretary for all expenses
incurred by the Secretary in the implementation, administration, and
supervision of the Order, including all referendum costs in connection
with the Order.
(h) The Board may not expend for administration, maintenance, and
functioning of the Board in any fiscal year an amount that exceeds 10
percent of the assessments and other income received by the Board for
that fiscal year. Reimbursements to the Secretary required under
paragraph (g) are excluded from this limitation on spending.
(i) The Board shall allocate, to the extent practicable, 80 percent
of the assessments collected on quota peanuts for any fiscal year on
national and regional promotion, research, and information activities.
The Board shall allocate, to the extent practicable, 20 percent of
assessments collected on quota peanuts for any fiscal year for use in
state or regional research programs. Specific percentages and amounts
shall be determined annually by the Board, with the approval of the
Secretary.
(j) Certified peanut producer organizations may submit requests for
funding for research and/or generic promotion projects. Amounts
approved for each state shall not exceed the pro rata share of funds
available for that state as determined by the Board and approved by the
Secretary. Amounts allocated by the Board for state research or
promotion activities will be based on requests submitted to the Board
and approved when it is determined that they meet the goals and
objectives stated in the Order.
(k) Assessments collected, less pro rata administrative expenses,
from the gross sales of contract export additional peanuts shall be
provided by the Board to an appropriate organization approved by the
Secretary as the primary contractor for the promotion and related
research of export peanuts.
(l) The Board shall determine annually how total funds shall be
allocated pursuant to paragraph (i), (j), and (k) of this section, with
the approval of the Secretary.
Sec. 1216.51 Assessments.
(a) The funds to cover the Board's expenses shall be acquired by
the levying of assessments upon producers as prescribed in regulations
issued by the Secretary.
(b) Each first handler, at such times and in such manner as
prescribed by regulations issued by the Secretary, shall collect from
each producer and pay assessments to the Board on all peanuts handled,
including peanuts owned by the first handler: Provided, that the
deadline prescribed in the regulations for remittance of assessments
shall be no more than 60 days after the last day of the month in which
the peanuts were marketed.
(c) Such assessments shall be levied at a rate of 1 percent of the
price paid for all farmers stock peanuts sold.
(d) For peanuts placed under loan with the Department's Commodity
Credit Corporation, each area marketing association shall remit to the
Board the following:
(1) One (1) percent of the initial price paid for either quota or
additional peanuts no more than 60 days after the last day of the month
in which the peanuts were placed under loan; and
(2) One (1) percent of the profit from the sale of the peanuts
within 60 days after the final day of the area association's fiscal
year.
(e) All assessments collected under this section are to be used for
expenses and expenditures pursuant to this Order and for the
establishment of an operating reserve as prescribed in the Order.
(f) The Board shall impose a late payment charge on any person who
fails to remit to the Board the total amount for which the person is
liable on or before the payment due date established under this
section. The late payment charge will be in the form of interest on the
outstanding portion of any amount for which the person is liable. The
rate of interest shall be prescribed in regulations issued by the
Secretary.
(g) Persons failing to remit total assessments due in a timely
manner may also be subject to actions under federal debt collection
procedures.
(h) The Board may authorize other organizations to collect
assessments on its behalf with the approval of the Secretary.
Sec. 1216.52 Programs, plans, and projects.
(a) The Board shall receive and evaluate, or on its own initiative
develop, and submit to the Secretary for approval any program, plan, or
project authorized under this subpart. Such programs, plans, or
projects shall provide for:
[[Page 59905]]
(1) The establishment, issuance, effectuation, and administration
of appropriate programs for promotion, research, and information,
including producer and consumer information, with respect to peanuts;
and
(2) The establishment and conduct of research with respect to the
use, nutritional value, sale, distribution, and marketing of peanuts
and peanut products, and the creation of new products thereof, to the
end that marketing and use of peanuts may be encouraged, expanded,
improved, or made more acceptable and to advance the image,
desirability, or quality of peanuts.
(b) No program, plan, or project shall be implemented prior to its
approval by the Secretary. Once a program, plan, or project is so
approved, the Board shall take appropriate steps to implement it.
(c) Each program, plan, or project implemented under this subpart
shall be reviewed or evaluated periodically by the Board to ensure that
it contributes to an effective program of promotion, research, or
consumer information. If it is found by the Board that any such
program, plan, or project does not contribute to an effective program
of promotion, research, or consumer information, then the Board shall
terminate such program, plan, or project.
(d) No program, plan, or project shall make any false claims on
behalf of peanuts or use unfair or deceptive acts or practices with
respect to the quality, value, or use of any competing product. Peanuts
of all domestic origins shall be treated equally.
Sec. 1216.53 Independent evaluation.
The Board shall, not less often than every five years, authorize
and fund, from funds otherwise available to the Board, an independent
evaluation of the effectiveness of the Order and other programs
conducted by the Board pursuant to the Act. The Board shall submit to
the Secretary, and make available to the public, the results of each
periodic independent evaluation conducted under this paragraph.
Sec. 1216.54 Operating reserve.
The Board shall establish an operating monetary reserve and may
carry over to subsequent fiscal years excess funds in a reserve so
established; Provided, that funds in the reserve shall not exceed any
fiscal year's anticipated expenses.
Sec. 1216.55 Investment of funds.
The Board may invest, pending disbursement, funds it receives under
this subpart, only in obligations of the United States or any agency of
the United States; general obligations of any state or any political
subdivision of a state; interest bearing accounts or certificates of
deposit of financial institutions that are members of the Federal
Reserve system; or obligations that are fully guaranteed as to
principal and interest by the United States.
Reports, Books, and Records
Sec. 1216.60 Reports.
Each first handler and producer subject to this subpart may be
required to provide to the Board periodically such information as is
required by regulations, which may include but not be limited to the
following:
(a) Number of pounds handled and the price paid to the producer;
(b) Number of pounds on which an assessment was collected;
(c) Name and address of person from whom the first handler has
collected the assessments on each pound handled; and
(d) Date collection was made on each pound handled.
Sec. 1216.61 Books and records.
Each first handler and producer subject to this subpart shall
maintain and make available for inspection by the Secretary such books
and records as are necessary to carry out the provisions of this
subpart and the regulations issued thereunder, including such records
as are necessary to verify any reports required. Such records shall be
retained for at least two years beyond the marketing year of their
applicability.
Sec. 1216.62 Confidential treatment.
All information obtained from books, records, or reports under the
Act, this subpart, and the regulations issued thereunder shall be kept
confidential by all persons, including all employees and former
employees of the Board, all officers and employees and former officers
and employees of contracting and subcontracting agencies or agreeing
parties having access to such information. Such information shall not
be available to Board members, producers, importers, exporters, or
handlers. Only those persons having a specific need for such
information to effectively administer the provisions of this subpart
shall have access to such information. Only such information so
obtained as the Secretary deems relevant shall be disclosed by them,
and then only in a judicial proceeding or administrative hearing
brought at the direction, or on the request, of the Secretary, or to
which the Secretary or any officer of the United States is a party, and
involving this subpart. Nothing in this section shall be deemed to
prohibit:
(a) The issuance of general statements based upon the reports of
the number of persons subject to this subpart or statistical data
collected therefrom, which statements do not identify 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.
Certification of Peanut Producer Organizations
Sec. 1216.70 Certification.
(a) Organizations receiving certification from the Secretary will
be entitled to submit nominations for Board membership to Secretary for
appointment and to submit requests for funding to the Board.
(b) For major peanut-producing states, state-legislated peanut
promotion, research, and information organizations may request
certification, provided the state-legislated promotion program submits
a factual report that shall contain information deemed relevant and
specified by the Secretary for the making of such determination
pursuant to paragraph (e) of this section.
(c) If a state-legislated peanut promotion, research and
information organization in a major peanut-producing state does not
elect to seek certification from the Secretary within a specified time
period as determined by the Secretary, or does not meet eligibility
requirements as specified by the Secretary, then any peanut producer
organization whose primary purpose is to represent peanut producers
within a primary peanut-producing state, or any other organization
which has peanut producers as part of its membership, may request
certification. Certification shall be based, in addition to other
available information, upon a factual report submitted by the
organization that shall contain information deemed relevant and
specified by the Secretary for the making of such determination
pursuant to paragraph (e) of this section.
(d) For minor peanut-producing states, any organization that has
peanut producers as part of its membership may request certification.
(e) The information required for certification by the Secretary may
include, but is not limited to, the following:
(1) The geographic distribution within the state covered by the
organization's active membership;
[[Page 59906]]
(2) The nature and size of the organization's active membership in
the state, proportion of total such active membership accounted for by
producers, a map showing the peanut-producing counties in such state in
which the organization has members, the volume of peanuts produced in
each such county, the number of peanut producers in each such county,
and the size of the organization's active peanut producer membership in
each such county;
(3) The extent to which the peanut producer membership of such
organization is represented in setting the organization's policies;
(4) Evidence of stability and permanency of the organization;
(5) Sources from which the organization's operating funds are
derived;
(6) Functions of the organization;
(7) The organization's ability and willingness to further the aims
and objectives of the Act and Order; and,
(8) Demonstrated experience administering generic state promotion
and research programs.
(f) The Secretary's determination as to eligibility or
certification of an organization shall be final.
Miscellaneous
Sec. 1216.80 Implementation of the Order.
The Order shall not become effective unless:
(a) The Secretary determines that the Order is consistent with and
will effectuate the purposes of the Act; and
(b) The Order is approved by a simple majority of the peanut
producers voting in a referendum who, during a representative period
determined by the Secretary, have been engaged in the production of
peanuts.
Sec. 1216.81 Suspension and termination.
(a) The Secretary shall suspend or terminate this subpart or a
provision thereof if the Secretary finds that the subpart or a
provision thereof obstructs or does not tend to effectuate the purposes
of the Act, or if the Secretary determines that this subpart or a
provision thereof is not favored by persons voting in a referendum
conducted pursuant to the Act.
(b) Every five years, the Secretary shall hold a referendum to
determine whether peanut producers favor the continuation of the Order.
The Secretary will also conduct a referendum if 10 percent or more of
all eligible peanut producers request the Secretary to hold a
referendum. In addition, the Secretary may hold a referendum at any
time.
(c) The Secretary shall suspend or terminate this subpart at the
end of the marketing year whenever the Secretary determines that its
suspension or termination is approved or favored by a simple majority
of the producers voting in a referendum who, during a representative
period determined by the Secretary, have been engaged in the production
of peanuts.
(d) If, as a result of the referendum conducted under paragraph (b)
of this section, the Secretary determines that this subpart is not
approved, the Secretary shall:
(1) Not later than 180 days after making the determination, suspend
or terminate, as the case may be, collection of assessments under this
subpart; and
(2) As soon as practical, suspend or terminate, as the case may be,
activities under this subpart in an orderly manner.
Sec. 1216.82 Proceedings after termination.
(a) Upon the termination of this subpart, the Board shall recommend
not more than three of its members to the Secretary to serve as
trustees for the purpose of liquidating the affairs of the Board. Such
persons, upon designation by the Secretary, shall become trustees of
all of the funds and property then in the possession or under control
of the Board, including claims for any funds unpaid or property not
delivered, or any other claim existing at the time of such termination.
(b) The said trustees shall:
(1) Continue in such capacity until discharged by the Secretary;
(2) Carry out the obligations of the Board under any contracts or
agreements entered into pursuant to the Order;
(3) From time to time account for all receipts and disbursements
and deliver all property on hand, together with all books and records
of the Board and the trustees, to such person or persons as the
Secretary may direct; and
(4) Upon request of the Secretary execute such assignments or other
instruments necessary and appropriate to vest in such persons title and
right to all funds, property and claims vested in the Board or the
trustees pursuant to the Order.
(c) Any person to whom funds, property or claims have been
transferred or delivered pursuant to the Order shall be subject to the
same obligations imposed upon the Board and upon the trustees.
(d) Any residual funds not required to defray the necessary
expenses of liquidation shall be turned over to the Secretary to be
disposed of, to the extent practical, to the peanut producer
organizations, certified pursuant to Sec. 1216.70, in the interest of
continuing peanut promotion, research, and information programs.
Sec. 1216.83 Effect of termination or amendment.
Unless otherwise expressly provided by the Secretary, the
termination of this subpart or of any regulation issued pursuant
thereto, or the issuance of any amendment to either thereof, shall not:
(a) Affect or waive any right, duty, obligation or liability which
shall have arisen or which may thereafter arise in connection with any
provision of this subpart or any regulation issued thereunder; or
(b) Release or extinguish any violation of this subpart or any
regulation issued thereunder; or
(c) Affect or impair any rights or remedies of the United States,
or of the Secretary or of any other persons, with respect to any such
violation.
Sec. 1216.84 Personal liability.
No member or alternate member of the Board shall be held personally
responsible, either individually or jointly with others, in any way
whatsoever, to any person for errors in judgment, mistakes, or other
acts, either of commission or omission, as such member or alternate,
except for acts of dishonesty or willful misconduct.
Sec. 1216.85 Separability.
If any provision of this subpart is declared invalid or the
applicability thereof to any person or circumstances is held invalid,
the validity of the remainder of this subpart or the applicability
thereof to other persons or circumstances shall not be affected
thereby.
Sec. 1216.86 Amendments.
Amendments to this subpart may be proposed from time to time by the
Board or by any interested person affected by the provisions of the
Act, including the Secretary.
Sec. 1216.87 Patents, copyrights, trademarks, information,
publications, and product formulations.
Patents, copyrights, trademarks, information, publications, and
product formulations developed through the use of funds received by the
Board under this subpart shall be the property of the U.S. Government
as represented by the Board and shall, along with any rents, royalties,
residual payments, or other income from the rental, sales, leasing,
franchising, or other uses of such patents, copyrights, trademarks,
information, publications, or product formulations, inure to the
benefit of the Board; shall be considered income subject to the same
fiscal, budget, and
[[Page 59907]]
audit controls as other funds of the Board; and may be licensed subject
to approval by the Secretary. Upon termination of this subpart,
Sec. 1216.82 shall apply to determine disposition of all such property.
Dated: November 2, 1998.
Enrique E. Figueroa,
Administrator, Agricultural Marketing Service.
[FR Doc. 98-29729 Filed 11-5-98; 8:45 am]
BILLING CODE 3410-02-P
