[Federal Register Volume 62, Number 55 (Friday, March 21, 1997)]
[Proposed Rules]
[Pages 13551-13561]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-7294]
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DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Part 1215
[FV-96-706PR]
Proposed Popcorn Promotion, Research, and Consumer Information
Order; Referendum Order
AGENCY: Agricultural Marketing Service, USDA.
ACTION: Proposed rule and referendum order.
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SUMMARY: This proposed rule would establish an industry-funded
promotion, research, and consumer information program for popcorn. An
order for the proposed program--the Popcorn Promotion, Research, and
Consumer Information Order (Order)--was submitted to the Department by
the Popcorn Institute. Under the proposed Order, processors would pay
an assessment rate of 5 cents per hundredweight of popcorn to the
proposed Popcorn Board (Board). Composed of popcorn processors, the
Board would use the assessments collected to conduct a generic program
of promotion, research, and consumer information to maintain and expand
markets for popcorn. In addition, the U.S. Department of Agriculture is
announcing that a referendum will be conducted among eligible popcorn
processors to determine whether they favor the implementation of the
program.
[[Page 13552]]
DATES: In order to be eligible to vote, popcorn processors must have
processed and marketed more than 4 million pounds during the period
from January 1 through December 31, 1996 (representative period). The
referendum will be conducted from April 15 through 30, 1997.
FOR FURTHER INFORMATION CONTACT: Stacey L. Bryson, Research and
Promotion Branch, Fruit and Vegetable Division, AMS, USDA, P.O. Box
96456, Room 2535-S, Washington, DC 20090-6456, telephone (888) 720-9917
or (202) 720-6930.
SUPPLEMENTARY INFORMATION: This proposed order is issued under the
Popcorn Promotion, Research, and Consumer Information Act, (7 U.S.C.
7481-7491), hereinafter referred to as the Act.
Executive Order 12988
This rule has been reviewed under Executive Order 12988, Civil
Justice Reform. It is not intended to have retroactive effect. This
rule would not preempt any State or local laws, regulations, or
policies, unless they present an irreconcilable conflict with this
rule. Further, section 580 of the Act states that nothing in the
popcorn statute preempts or supersedes any other program relating to
popcorn promotion organized and operated under the laws of the United
States or any State.
The Act provides that administrative proceedings must be exhausted
before parties may file suit in court. Under Sec. 577 of the Act, after
an Order is implemented, a person subject to the Order may file a
petition with the Secretary stating that the Order or any provision of
the Order, or any obligation imposed in connection with the Order, is
not in accordance with law and requesting a modification of the Order
or an exemption from the Order. The petitioner is afforded the
opportunity for a hearing on the petition. After such hearing, the
Secretary will make a ruling on the petition. The Act provides that the
district courts of the United States in any district in which a person
who is a petitioner resides or carries on business are vested with
jurisdiction to review the Secretary's ruling on the petition, if a
complaint for that purpose is filed within 20 days after the date of
the entry of the ruling.
Executive Order 12866 and Regulatory Flexibility Act
This rule has been determined not significant for purposes of
Executive Order 12866 and therefore has not been reviewed by the Office
of Management and Budget.
In accordance with the Regulatory Flexibility Act (5 U.S.C. 601 et
seq.), the Agency has examined the impact of the proposed rule on small
entities.
Legislation to create a generic program of promotion and research
for popcorn became effective on April 4, 1996. Congress found that this
program is vital to the welfare of popcorn processors and persons
concerned with marketing, using, and producing popcorn for the market,
as well as to the agricultural economy of the United States.
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 popcorn. The program was initiated
by the popcorn industry, which must approve the program in a referendum
in advance of its implementation, and industry members would serve on
the Board that would administer the program under the Department's
supervision. In addition, any person subject to the program may file
with the Secretary a petition stating that the order or any provision
is not in accordance with law and requesting a modification of the
order or an exemption from the order. Administrative proceedings were
discussed earlier in this proposed rule.
In this program, processors would submit assessments and reports to
the Board. In addition, exempt processors would be required to file an
exemption application. While the proposed Order would impose certain
recordkeeping requirements on processors, information required under
the proposed Order could be compiled from records currently maintained.
The forms require the minimum information necessary to effectively
carry out the requirements of the program, and their use is necessary
to fulfill the intent of the Act. The estimated cost in providing
information to the Board by the estimated 67 respondents would be
$40.32 per respondent annually.
The Department would oversee program operations and, if the program
is implemented, the Secretary may conduct referenda at the request of
the Board or a representative group of processors to determine whether
the popcorn industry supports continuation of the program.
There are approximately 35 processors who would pay the
assessments, out of an industry of 67 processors in total.
Small agricultural service firms, which would include processors
who would be covered under the Order, have been defined by the Small
Business Administration (13 CFR 121.607) as those whose annual receipts
are less than $5 million.
Almost 50 percent of the industry would be exempt from the program.
Those processors marketing 4 million pounds of popcorn or less annually
would be exempt from the proposed Order. It is also estimated that only
2 of the 35 eligible processors would be classified as small entities.
Those processors marketing more than 4 million pounds of popcorn
annually represent the majority of the tonnage processed each year.
The Department will seek ways to minimize the burden of complying
with the program for the small businesses that would be affected by it.
If the program is implemented, a compliance guide will be issued for
the small businesses that will pay assessments as well as those that
will be exempt. In addition, the Department will work with the Popcorn
Board to ensure, to the extent practicable, that the procedures
implemented represent the least burdensome alternatives.
It is estimated that there are 35 popcorn processors who will be
eligible to vote in the referendum. It will take an average 15 minutes
for each voter to read the voting instructions and complete the
referendum ballot. The total burden on the total number of voters will
be 2.9 hours.
The information collection requirements under the Order require the
minimum information necessary to effectively carry out the requirement
of the program, and their use is necessary to fulfill the intent of the
Act. The monthly collection of information coincides with normal
business practices and 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 estimated cost in providing
information to the Board by the estimated 67 respondents would be
$19.28 per respondent annually. This total has been estimated by
multiplying 129.15 (total burden hours requested) by $10.00 per hour, a
sum deemed to be reasonable if the respondents were compensated for
their time.
According to the Popcorn Institute (Institute), a trade association
consisting of popcorn processors representing the industry, annual
sales of popcorn were 77.240 million pounds less in 1994 than they were
in 1993, when sales totaled approximately 1.156 billion pounds.
The peak period for popcorn sales for home consumption is the fall.
Sales remain constant throughout the winter
[[Page 13553]]
months and taper off during the spring and summer.
Almost all of the popcorn consumed throughout the world is grown in
the United States, and Americans consume more popcorn than the citizens
of any other country. Popcorn is grown in 19 states. According to the
latest Census on Agriculture, the top five major popcorn-producing
states in 1992 were, in descending order, Indiana (23 percent),
Illinois (19 percent), Nebraska (18 percent), Ohio (10 percent), and
Missouri (7 percent). This is the most recent official information on
popcorn production released by the U.S. government.
U.S. exports of popcorn totaled nearly 290 million pounds in 1995,
with a value of $64.7 million. According to the Snack Food Association,
retail sales of popcorn in the United States totaled $1.469 billion in
1994.
The proposed popcorn Order authorizes an initial assessment on
processors of 5 cents per hundredweight. The proposed Order provides
that the rate of assessment may be raised or lowered as recommended by
the Board and approved by the Secretary, but shall not exceed 8 cents
per hundredweight in any fiscal year. At the maximum rate of
assessment, it is estimated that $800,000 would be collected under the
program. The promotion Board would be composed of processors, who would
be knowledgeable of the impact of any proposed assessment on
processors, and other small entities prior to recommending any change
of the assessment rate to the Secretary.
The proposed Order is necessary to accomplish the statutory
objectives, to strengthen the position of the popcorn industry in the
marketplace, and to maintain and expand domestic and foreign markets
and uses for popcorn.
Over the past several years, the popcorn industry pursued several
limited efforts to promote the sales and consumption of popcorn. These
were financed primarily through voluntary contributions of some, but
not all, popcorn processors. Under the limited and voluntary program,
the resources available were not adequate to address the issues facing
the industry from a national perspective and did not allow the industry
to work collectively in an industry-wide manner.
The Order provides the industry with the opportunity to
collectively address issues in areas such as nutrition and quality,
which individual processors could not effectively accomplish due to
lack of resources.
The industry considered pursuing a marketing order; however,
industry believes that popcorn is not a commodity covered under the
existing marketing order statute. Furthermore, the marketing order
system did not lend itself to addressing the issues that the promotion
legislation clearly addresses, for example, establishing the definition
of a processor.
In order to conduct the Regulatory Flexibility Analysis regarding
the impact of this proposed Order on small entities, the proposed rule
that was published in the Federal Register on September 30, 1996 (61 FR
51046) invited comments concerning the potential effects of the
proposed Order. No specific comments were received concerning the
impact of the proposed order on small entities except that a comment
from the Popcorn Institute did note that the order would be very
beneficial to popcorn processors, especially small processors who would
not otherwise be able to afford a nationwide comprehensive program.
Paperwork Reduction Act
In accordance with the Office of Management and Budget (OMB)
regulations (5 CFR part 1320) which implement the Paperwork Reduction
Act of 1995 (44 U.S.C. Chapter 35), the information collection and
recordkeeping requirements that would be imposed by this proposed Order
were approved by OMB on December 16, 1996.
Title: National Research, Promotion, and Consumer Information
Programs.
OMB Number: 0581-0093.
Expiration Date of Approval: October 31, 1997.
Type of Request: Revision of a currently approved information
collection for research and promotion programs.
Abstract: The information collection requirements in this request
are essential to carry out the intent of the Act.
While the proposed Order would impose certain recordkeeping
requirements on processors, information required under the proposed
Order could be compiled from records currently maintained. The proposed
Order's provisions have been carefully reviewed and every effort has
been made to minimize any unnecessary recordkeeping costs or
requirements.
Although the proposed Order would impose some additional costs and
requirements, it is anticipated that the program under the proposed
Order would help to increase the demand and expand markets for popcorn.
Therefore, any additional costs should be offset by the benefits
derived from expanded markets and sales benefiting all segments of the
popcorn industry.
The forms require the minimum information necessary to effectively
carry out the requirements of the program, and their use is necessary
to fulfill the intent of the Act. Such information can be supplied
without data processing equipment or outside technical expertise. In
addition, there are no additional training requirements for individuals
filling out reports and remitting assessments to the promotion Board.
The forms would be simple, easy to understand, and place as small a
burden as possible on the person required to file the information.
Collecting information less frequently would hinder the Board from
effectively carrying out the provisions of its program. Collecting
information monthly coincides with normal business practices. Requiring
reports less frequently than monthly would impose additional
recordkeeping requirements by requiring information from several months
to be consolidated prior to filling out the form rather than just
copying end-of-month figures already available on to the forms. The
timing and frequency of collecting information is intended to meet the
needs of the industry while minimizing the amount of work necessary to
fill out the required reports. In addition, the information to be
included on these forms is not available from other sources because
such information relates specifically to individual processors who are
subject to or exempted from the provisions of the Act. Therefore, there
is no practical method for collecting the required information without
the use of these forms.
In its comments on the proposed order concerning the information
collection requirements, the Popcorn Institute reviewed the estimates
presented in the proposed rule. It agreed with the Department on the
estimates for the exemption application and the referendum ballot. It
also stated that each of the information collection requirements
presented is necessary for proper functioning of the program and
government oversight and that the Board may want to consider developing
a system whereby processors could submit the required reports
electronically.
However, the Institute raised issues on the other information
collections. Regarding nominations, the Institute's comment noted that
respondents are not required to provide any other information with the
nominations. This is correct. During the nomination process,
respondents will nominate individuals to serve on the Board.
[[Page 13554]]
Regarding the nominations background statement, the Institute
stated that the person making the nomination will submit the
information--not the processor who is nominated. The Institute is
incorrect in this instance. Each person nominated to serve on the Board
must file a background statement with the Secretary of Agriculture.
Only the final nominees chosen by the popcorn industry will be required
to submit this form. The proposed rule estimated that there would be 20
respondents. This number should be 18 because there will be two
nominees for each of the nine seats on the Board. Therefore, we have
changed the burden information for this form accordingly.
Regarding the periodic report filed by processors, the Institute
correctly points out that the number of responses per respondent would
be four (not 12). Therefore, the burden for this form has been changed
accordingly.
Regarding the requirement to maintain records, the Institute states
in its comment that only processors of more than 4 million pounds of
popcorn annually would be required to submit reports. This is correct.
However, all processors will be required to maintain records.
Processors of more than 4 million pounds of popcorn annually will be
required to maintain records to document information contained in the
reports they submit which indicate the amount of assessments due.
Exempt processors will be required to maintain records to document
their exempt status.
The estimated cost in providing information to the Board by the
estimated 67 respondents would be $19.28 per respondent annually. This
total has been estimated by multiplying 129.15 (total burden hours
requested) by $10.00 per hour, a sum deemed to be reasonable if the
respondents were compensated for their time.
Information collection requirements that are included in this
proposal include:
(1) A periodic report by each person who processes popcorn.
Estimate of Burden: Public reporting burden for this collection of
information is estimated to average .5 hours per each processor
reporting on popcorn processed.
Respondents: Processors.
Estimated Number of Respondents: 35.
Estimated Number of Responses per Respondent: 4.
Estimated Total Annual Burden on Respondents: 70 hours.
(2) An exemption application for processor of popcorn processing 4
million pounds or less a year.
Estimate of Burden: Public reporting burden for this collection of
information is estimated to average .25 hours per response for each
exempt processor.
Respondents: Exempt processors.
Estimated Number of Respondents: 32.
Estimated Number of Responses per Respondent: 1.
Estimated Total Annual Burden on Respondents: 8 hours.
(3) A referendum ballot to be used to determine whether processors
covered by the Order favor implementation or continuance of the Order.
Estimate of Burden: Public reporting burden for this collection of
information is estimated to average .25 hours per response for each
processor.
Respondents: Processors.
Estimated Number of Respondents: 35.
Estimated Number of Responses per Respondent: 1 every 3 years.
Estimated Total Annual Burden on Respondents: 2.9 hours.
(4) Nominations.
Estimate of Burden: Public reporting burden for this collection of
information is estimated to average .5 hours per response.
Respondents: Processors.
Estimated number of Respondents: 35.
Estimated Number of Responses per Respondent: 1 every 3 years
(.33).
Estimated Total Annual Burden on Respondents: 5.75 hours.
(5) Nominations background statement.
Estimate of Burden: Public reporting burden for this collection of
information is estimated to average .5 hours per response.
Respondents: Processors.
Estimated number of Respondents: 18 for initial Board and 6
annually thereafter.
Estimated Number of Responses per Respondent: 1.
Estimated Total Annual Burden on Respondents: 9 hours for initial
Board and 3 hours annually thereafter.
(6) A requirement to maintain records sufficient to verify reports
submitted under the Order.
Estimate of Burden: Public recordkeeping burden for keeping this
information is estimated to average .5 hours per recordkeeper
maintaining such records.
Recordkeepers: Processors.
Estimated number of Recordkeepers: 67.
Estimated Total Recordkeeping Hours: 33.5 hours.
Background
The Act authorizes the Secretary of Agriculture (Secretary) to
establish a popcorn promotion, research, and consumer information
program. The program would be funded by an assessment on processors not
to exceed 8 cents per hundredweight of popcorn.
Assessments would be used to pay for: Promotion, research, and
consumer information; administration, maintenance, and functioning of
the Board; and expenses incurred by the Secretary in implementing and
administering the Order, including referendum costs.
Consistent with the Act, processors would be required to maintain
records regarding the collection, payment, or remittance of the
assessments. All information obtained through processor reports would
be kept confidential.
Assessments would be collected in a manner prescribed by the Board.
The collection of assessments would commence on all popcorn processed
in the United States on or after the date established by the Secretary,
and would continue until terminated by the Secretary.
The Act requires the Secretary to conduct a referendum during the
60-day period preceding the proposed Order's effective date. Popcorn
processors of more than 4 million pounds annually would vote in the
referendum to determine whether they favor the proposed Order's
implementation. The proposed Order must be approved by a majority of
eligible processors voting in the referendum, and processors favoring
approval must process more than 50 percent of the total volume of
popcorn processed by persons voting in the referendum. Subsequent
referenda would be conducted not earlier than three years after the
effective date of the proposed Order at the request of the Board or a
representative group of processors covered by the proposed Order.
A final rule on the referendum procedures which will be used is
published separately in this issue of the Federal Register.
The Act provides for the submission of proposals for a popcorn
promotion, research, and consumer information order by industry
organizations or any other interested person affected by the Act. As
stated earlier, the Act requires that the proposed Order provide for
the establishment of the Board. The Board would be composed of nine
members. Each member would serve a three-year term of office.
The Department issued a news release on May 22, 1996, requesting
proposals
[[Page 13555]]
for an initial Order or portions of an initial Order.
An entire proposed Order was submitted by the Institute. In
addition to minor editorial changes, the Department modified the
Institute's proposed text by: adding definitions for ``Part and
subpart;'' ``Board member;'' and ``State;'' combining the nominations
and appointment sections; adding the requirement that the industry
submit two nominees per position and a term of office limitation;
creating a section on the removal of Board members; adding the duty for
the Board to investigate violations of the Act, Order, and regulations;
creating a contracts section; adding four requirements for budgets and
expenses; providing that the Department's user fee shall not exceed 15
percent of the Board's projected annual revenues (the Popcorn Institute
had recommended a 10 percent cap, which is inconsistent with the Act);
limiting the Board's borrowing authority to its first year of
operation; adding a reference to federal debt collection provisions;
and adding the requirement for processors to provide the Board with
their Social Security Number or Employer Identification Number and the
amount of assessments paid on exported popcorn. In addition, the
Department drafted proposed exemption procedures. Additional
modifications were also made to provide consistency with the Act.
A proposed rule seeking comments on a proposed popcorn promotion,
research, and consumer information order was published on September 30,
1996, in the Federal Register (61 FR 51046). Comments were to be
received by November 29, 1996. Six comments concerning the proposed
rulemaking were received. One comment was from the Popcorn Institute
concerning information collection requirements. This comment has been
discussed herein in relation to the Paperwork Reduction Act. A second
comment was received from the Popcorn Institute. That comment suggested
adoption of the proposed rule and provided a section-by-section
analysis of the proposed Order. Separate comments were received from
five popcorn processors supporting the comments submitted by the
Popcorn Institute.
In the Popcorn Institute's section by section analysis, there were
references to implementation of the Order and regulations. Any Order
and regulations promulgated will be issued and applied in accordance
with the applicable law, including the Popcorn Promotion, Research, and
Consumer Information Act.
Except for a revision in Sec. 1215.60(a)(4) for clarity, no changes
to the proposed Order are made as a result of the comments received on
the text of the Order provisions as they were proposed in the September
30, 1996, Federal Register.
The proposed Order is summarized as follows:
Sections 1215.1 through 1215.20 of the proposed Order define
certain terms, such as popcorn, processor, and process, which are used
in the proposed Order.
Sections 1215.21 through 1215.30 include provisions relating to the
establishment and membership of the Board; nominations and appointment;
terms of office; vacancies; removal; procedure; compensation and
reimbursement; powers; and duties of the Board. The Board would be the
body organized to administer the Order through the implementation of
programs, plans, projects, budgets, and contracts to promote and
disseminate information about popcorn, under the supervision of the
Secretary. Further, the Board would be authorized to incur expenses
necessary for the performance of its duties and to set a reserve fund.
Sections 1215.40 through 1215.41 and 1215.50 provide information on
these activities.
Sections 1215.51 through 1215.53 would authorize the collection of
assessments, specify who pays them and how, and specifies individuals
who would be exempt from paying the assessment. In addition, it would
prohibit use of funds to influence government policy or action.
Except as otherwise provided by the Board and approved by the
Secretary, the rate of assessment would be 5 cents per hundredweight of
popcorn.
The assessment section also outlines the procedures to be followed
by processors for remitting assessments and authorize a interest charge
for unpaid or late assessments.
Sections 1215.60 through 1215.62 concern reporting and
recordkeeping requirements for persons subject to the Order and protect
the confidentiality of information obtained from such books, records,
or reports.
Sections 1215.60 through 1215.63 describe the rights of the
Secretary, authorize the Secretary to suspend or terminate the Order
when deemed appropriate, and prescribe proceedings after suspension or
termination.
Sections 1215.64 through 1215.77 include the provisions involving
personal liability of Board members and employees; handling of patents,
copyrights, inventions, and others; amendments to the Order; and
separability of Order provisions.
In addition, the Institute states that the term ``initially
transferred'' with reference to the number of pounds of popcorn
marketed or otherwise subject to assessments in Sec. 1215.60(a)(4) is
confusing and should be removed. This change has merit. Therefore,
Sec. 1215.60(a)(4) is changed accordingly.
Referendum Order
It is hereby directed that a referendum be conducted among popcorn
processors to determine whether they favor implementation of the
Popcorn Promotion, Research, and Consumer Information Order.
The referendum shall be conducted from April 15 through 30, 1997.
Ballots will be mailed to all known eligible popcorn processors on or
before April 7, 1997. Eligible voters that do not receive a ballot by
mail should call the following toll-free telephone number to receive a
ballot: 1 (888) 720-9917. All ballots will be subject to verification.
Ballots must be received by the referendum agents no later than April
30, 1997, to be counted.
Stacey L. Bryson and Martha B. Ransom, Research and Promotion
Branch, Fruit and Vegetable Division, Agricultural Marketing Service,
U.S. Department of Agriculture, Room 2535-S, PO Box 96456, Washington,
DC 20090-6456, are designated as the referendum agents of the Secretary
of Agriculture to conduct the referendum. The Procedure for the Conduct
of Referenda in Connection with the Popcorn Promotion, Research, and
Consumer Information Order, 7 CFR 1215.500-1215.507, which is being
published separately, shall be used to conduct the referendum.
List of Subjects in 7 CFR Part 1215
Administrative practice and procedure, Advertising, Consumer
information, Marketing agreements, Popcorn, Promotion, Reporting and
recordkeeping requirements.
For the reasons set forth in the preamble, it is proposed that
Title 7, chapter XI of the Code of Federal Regulations be amended as
follows:
1. Part 1215 is proposed to be added to read as follows:
[[Page 13556]]
PART 1215--POPCORN PROMOTION, RESEARCH, AND CONSUMER INFORMATION
Subpart A--Popcorn Promotion, Research, and Consumer Information Order
Definitions
Sec.
1215.1 Act.
1215.2 Board.
1215.3 Board member.
1215.4 Commerce.
1215.5 Consumer information.
1215.6 Department
1215.7 Fiscal year.
1215.8 Industry information.
1215.9 Marketing.
1215.10 Part and subpart.
1215.11 Person.
1215.12 Popcorn.
1215.13 Process.
1215.14 Processor.
1215.15 Programs, plans, and projects.
1215.16 Promotion.
1215.17 Research.
1215.18 Secretary.
1215.19 State.
1215.20 United States.
Popcorn Board
1215.21 Establishment and membership.
1215.22 Nominations and appointment.
1215.23 Acceptance.
1215.24 Term of office.
1215.25 Vacancies.
1215.26 Removal.
1215.27 Procedure.
1215.28 Compensation and reimbursement.
1215.29 Powers.
1215.30 Duties.
Promotion, Research, Consumer Information, and Industry Information
1215.40 Programs, plans, and projects.
1215.41 Contracts
Expenses and Assessments
1215.50 Budget and expenses.
1215.51 Assessments.
1215.52 Exemption from assessment.
1215.53 Influencing governmental action.
Reports, Books, and Records
1215.60 Reports.
1215.61 Books and records.
1215.62 Confidential treatment.
Miscellaneous
1215.70 Right of the Secretary.
1215.71 Suspension or termination.
1215.72 Proceedings after termination.
1215.73 Effect of termination or amendment.
1215.74 Personal liability.
1215.75 Patents, copyrights, inventions, publications, and product
formulations.
1215.76 Amendments.
1215.77 Separability.
Subpart B--Rules and Regulations
Definitions
1215.100 Terms defined.
Exemption Procedures
1215.300 Exemption procedures.
Miscellaneous
1215.400 OMB control numbers.
Authority: 7 U.S.C. 7481-7491.
Subpart A--Popcorn Promotion, Research, and Consumer Information
Order
Definitions
Sec. 1215.1 Act.
Act means the Popcorn Promotion, Research, and Consumer Information
Act of 1995, Subtitle E of Title V of the Federal Agriculture
Improvement and Reform Act of 1996, Pub. L. 104-127, 7 U.S.C. 7481-
7491, and any amendments thereto.
Sec. 1215.2 Board.
Board means the Popcorn Board established under section 575(b) of
the Act.
Sec. 1215.3 Board member.
Board member means an officer or employee of a processor appointed
by the Secretary to serve on the Popcorn Board as a representative of
that processor.
Sec. 1215.4 Commerce.
Commerce means interstate, foreign, or intrastate commerce.
Sec. 1215.5 Consumer information.
Consumer information means information and programs that will
assist consumers and other persons in making evaluations and decisions
regarding the purchasing, preparing, and use of popcorn.
Sec. 1215.6 Department.
Department means the United States Department of Agriculture.
Sec. 1215.7 Fiscal year.
Fiscal year means the 12-month period from January 1 through
December 31 each year, or such other period as recommended by the Board
and approved by the Secretary.
Sec. 1215.8 Industry information.
Industry information means information and programs that will lead
to the development of new markets, new marketing strategies, or
increased efficiency for the popcorn industry, or activities to enhance
the image of the popcorn industry.
Sec. 1215.9 Marketing.
Marketing means the sale or other disposition of unpopped popcorn
for human consumption in a channel of commerce but shall not include
sales or disposition to or between processors.
Sec. 1215.10 Part and subpart.
Part means the Popcorn Promotion, Research, and Consumer
Information Order and all rules and regulations and supplemental orders
issued thereunder, and the term subpart means the Popcorn Promotion,
Research, and Consumer Information Order.
Sec. 1215.11 Person.
Person means any individual, group of individuals, partnership,
corporation, association, cooperative, or any other legal entity.
Sec. 1215.12 Popcorn.
Popcorn means unpopped popcorn (Zea Mays L) that is commercially
grown, processed in the United States by shelling, cleaning, or drying,
and introduced into a channel of commerce.
Sec. 1215.13 Process.
Process means to shell, clean, dry, and prepare popcorn for the
market, but does not include packaging popcorn for the market without
also engaging in another activity described in this paragraph.
Sec. 1215.14 Processor.
Processor means a person engaged in the preparation of unpopped
popcorn for the market who owns or who shares the ownership and risk of
loss of such popcorn and who processes and distributes over 4 million
pounds of popcorn in the market per year.
Sec. 1215.15 Programs, plans, and projects.
Programs, plans, and projects means promotion, research, consumer
information, and industry information plans, studies, projects, or
programs conducted pursuant to this part.
Sec. 1215.16 Promotion.
Promotion means any action, including paid advertising, to enhance
the image or desirability of popcorn.
Sec. 1215.17 Research.
Research means any type of study to advance the image,
desirability, marketability, production, product development, quality,
or nutritional value of popcorn.
Sec. 1215.18 Secretary.
Secretary means the Secretary of Agriculture of the United States
or any officer or employee of the Department to whom authority has
heretofore been delegated, or to whom authority may hereafter be
delegated, to act in the Secretary's stead.
Sec. 1215.19 State.
State means each of the 50 States and the District of Columbia.
[[Page 13557]]
Sec. 1215.20 United States.
United States means all of the States.
Popcorn Board
Sec. 1215.21 Establishment and membership.
(a) There is hereby established a Popcorn Board of nine members.
The number of members on the Board may be changed by regulation:
Provided, That the Board consist of not fewer than four members and not
more than nine members. The Board shall be composed of popcorn
processors appointed by the Secretary under Sec. 1215.24.
(b) For purposes of nominating and appointing processors to the
Board, the Secretary shall, to the extent practicable, take into
account the geographic distribution of popcorn production.
(c) No more than one officer or employee of a processor may serve
as a Board member at the same time.
Sec. 1215.22 Nominations and appointment.
(a) All nominations for appointments to the Board established under
Sec. 1215.21 shall be made as follows:
(1) As soon as practicable after the effective date of this
subpart, nominations for appointment to the initial Board shall be
obtained from processors by the Secretary. In any subsequent year in
which an appointment to the Board is to be made, nominations for
positions for which the term will expire at the end of that year shall
be obtained from processors at least six months prior to the expiration
of terms.
(2) Except for initial Board members, whose nomination process will
be initiated by the Secretary, the Board shall issue a call for
nominations in each year for which an appointment to the Board is to be
made. The call shall include, at a minimum, the following information:
(i) A list of the vacancies for which nominees may be submitted and
qualifications for nomination; and
(ii) The date by which the names of nominees shall be submitted to
the Secretary for consideration to be in compliance with paragraph (a)
of this section.
(3)(i) Nominations for each position shall be made by processors.
Notice shall be publicized to all processors.
(ii) All processors may participate in submitting nominations.
(4) Two nominees must be submitted for each vacancy. If processors
fail to nominate a sufficient number of nominees, additional nominees
shall be obtained in a manner prescribed by the Secretary.
(b) The Secretary shall appoint the members of the Board from
nominations made in accordance with paragraph (a). of this section.
(1) The Secretary may reject any nominee submitted. If there is an
insufficient number of nominees from whom to appoint members to the
Board as a result of the Secretary's rejecting such nominees,
additional nominees shall be submitted to the Secretary in a manner
prescribed by the Secretary.
(2) Whenever processors cannot agree on nominees for a position on
the Board under the preceding provisions of this section, or whenever
they fail to nominate individuals for appointment to the Board, the
Secretary may appoint members in such a manner as the Secretary
determines appropriate.
(3) If a processor nominates more than one officer or employee,
only one may be appointed to the Board by the Secretary.
Sec. 1215.23 Acceptance.
Each individual nominated for membership of the Board shall qualify
by filing a written acceptance with the Secretary at the time of
nomination.
Sec. 1215.24 Term of office.
(a) The members of the Board shall serve for terms of three years,
except that members appointed to the initial Board shall serve, to the
extent practicable, proportionately for terms of two, three, and four
years.
(b)(1) Except with respect to terms of office of the initial Board,
the term of office for each Board member shall begin on the date the
member is seated at the Board's annual meeting or such other date that
may be approved by the Secretary.
(2) The term of office for the initial Board member shall begin
immediately following the appointment by the Secretary.
(c) Board members shall serve during the term of office for which
they are appointed and have qualified, and until their successors are
appointed and have qualified.
(d) No Board member may serve more than two consecutive three-year
terms, except as provided in Sec. 1215.25(d). Initial members serving
two-or four-year terms may serve one successive three-year term.
Sec. 1215.25 Vacancies.
(a) To fill any vacancy occasioned by the death, removal,
resignation, or disqualification of any member of the Board, the
Secretary may appoint a successor from the most recent nominations
submitted for positions on the Board or the Secretary may obtain
nominees to fill such vacancy in such a manner as the Secretary deems
appropriate.
(b) Each such successor appointment shall be for the remainder of
the term vacated.
(c) A vacancy will not be required to be filled if the unexpired
term is less than six months.
(d) If an unexpired term is less than 1.5 years, serving the term
shall not prevent the appointee from serving two successive three-year
terms.
(e) A Board member shall be disqualified from serving on the Board
if such individual ceases to be affiliated with the processor the
member represents.
Sec. 1215.26 Removal.
If a member of the Board consistently refuses to perform the duties
of a member of the Board, or if a member of the Board is known to be
engaged in acts of dishonesty or willful misconduct, the Board may
recommend to the Secretary that the member be removed from office.
Further, without recommendation of the Board, a member may be removed
by the Secretary upon showing of adequate cause, including the failure
by a member to submit reports or remit assessments required under this
part, if the Secretary determines that such member's continued service
would be detrimental to the achievement of the purposes of the Act.
Sec. 1215.27 Procedure.
(a) At a properly convened meeting of the Board, a majority of the
members shall constitute a quorum.
(b) Each member of the Board will be entitled to one vote on any
matter put to the Board, and the motion will carry if supported by a
simple majority of those voting. At assembled meetings of the Board,
all votes will be cast in person.
(c) In lieu of voting at a properly convened meeting and, when in
the opinion of the chairperson of the Board such action is considered
necessary, the Board may take action upon the concurring votes by a
majority of its members by mail, telephone, facsimile, or any other
means of communication. If appropriate, any such action shall be
confirmed promptly in writing. In that event, all members must be given
prior notice and provided the opportunity to vote. Any action so taken
shall have the same force and effect as though such action had been
taken at a properly convened meeting of the Board. All votes shall be
recorded in Board minutes.
(d) Meetings of the Board may be conducted by electronic
communications, provided that each member is given prior notice of the
[[Page 13558]]
meeting and has the opportunity to be present either physically or by
electronic connection.
(e) The organization of the Board and the procedures for conducting
meetings of the Board shall be in accordance with its bylaws, which
shall be established by the Board and approved by the Secretary.
Sec. 1215.28 Compensation and reimbursement.
The members of the Board shall serve without compensation but shall
be reimbursed for necessary and reasonable expenses incurred by such
members in the performance of their responsibilities under this
subpart.
Sec. 1215.29 Powers.
The Board shall have the following powers:
(a) To administer the Order in accordance with its terms and
provisions;
(b) To make rules and regulations to effectuate the terms and
provisions of the Order;
(c) To select committees and subcommittees of Board members,
including an executive committee, and to adopt such bylaws and other
rules for the conduct of its business as it may deem advisable;
(d) To appoint or employ such individuals as it may deem necessary,
define the duties, and determine the compensation of such individuals;
(e) To disseminate information to processors or industry
organizations through programs or by direct contact using the public
postal system or other systems;
(f) To propose, receive, evaluate and approve budgets, plans and
projects of popcorn promotion, research, consumer information and
industry information, as well as to contract with the approval of the
Secretary with appropriate persons to implement plans and projects.
(g) To receive, investigate, and report to the Secretary for action
any complaints of violations of the Order;
(h) To recommend to the Secretary amendments to the order;
(i) To accept or receive voluntary contributions;
(j) To invest, pending disbursement pursuant to a program, plan or
project, funds collected through assessments authorized under this Act
provided for in Sec. 1215.51, and any other funds received by the Board
in, and only in, obligations of the United States or any agency
thereof, in general obligations of any State or any political
subdivision thereof, in any interest bearing account or certificate of
deposit or a bank that is a member of the Federal Reserve System, or in
obligations fully guaranteed as to principal and interest by the United
States.
(k) With the approval of the Secretary, to enter into contracts or
agreements with national, regional, or State popcorn processor
organizations, or other organizations or entities, for the development
and conduct of programs, plans or projects authorized under
Sec. 1215.40 and for the payment of the cost of such programs with
assessments received pursuant to this subpart; and
(l) Such other powers as may be approved by the Secretary.
Sec. 1215.30 Duties.
The Board shall have the following duties:
(a) To meet not less than annually, and to organize and select from
among its members a chairperson and such other officers as may be
necessary;
(b) To evaluate or develop, and submit to the Secretary for
approval, promotion, research, consumer information, and industry
information programs, plans or projects;
(c) To prepare for each fiscal year, and submit to the Secretary
for approval at least 60 days prior to the beginning of each fiscal
year, a budget of its anticipated expenses and disbursements in the
administration of this subpart, as provided in Sec. 1215.50;
(d) To maintain such books and records, which shall be available to
the Secretary for inspection and audit, and to prepare and submit such
reports from time to time to the Secretary, as the Secretary may
prescribe, and to make appropriate accounting with respect to the
receipt and disbursement of all funds entrusted to it;
(e) To prepare and make public, at least annually, a report of its
activities carried out, and an accounting for funds received and
expended;
(f) To cause its financial statements to be prepared in conformity
with generally accepted accounting principles and to be audited by an
independent certified public accountant in accordance with generally
accepted auditing standards at least once each fiscal year and at such
other times as the Secretary may request, and submit a copy of each
such audit to the Secretary;
(g) To give the Secretary the same notice of meetings of the Board
as is given to members in order that the Secretary, or a representative
of the Secretary, may attend such meetings;
(h) To submit to the Secretary such information as may be requested
pursuant to this subpart;
(i) To keep minutes, books and records that clearly reflect all the
acts and transactions of the Board. Minutes of each Board meeting shall
be promptly reported to the Secretary;
(j) To act as intermediary between the Secretary and any processor;
(k) To investigate violations of the Act, order, and regulations
issued under the order, conduct audits, and report the results of such
investigations and audits to the Secretary for appropriate action to
enforce the provisions of the Act, order, and regulations; and
(l) To work to achieve an effective, continuous, and coordinated
program of promotion, research, consumer information, and industry
information designed to strengthen the popcorn industry's position in
the marketplace, maintain and expand existing markets and uses for
popcorn, develop new markets and uses for popcorn, and to carry out
programs, plans, and projects designed to provide maximum benefits to
the popcorn industry.
Promotion, Research, Consumer Information, and Industry Information
Sec. 1215.40 Programs, plans, and projects.
(a) The Board shall receive and evaluate, or on its own initiative
develop, and submit to the Secretary for approval any program, plan or
project authorized under this subpart. Such programs, plans or projects
shall provide for:
(1) The establishment, issuance, effectuation, and administration
of appropriate programs for promotion, research, consumer information,
and industry information with respect to popcorn; and
(2) The establishment and conduct of research with respect to the
sale, distribution, marketing, and use of popcorn, and the creation of
new uses thereof, to the end that the marketing and use of popcorn may
be encouraged, expanded, improved, or made more acceptable.
(b) No program, plan, or project shall be implemented prior to its
approval by the Secretary. Once a program, plan, or project is so
approved, the Board may take appropriate steps to implement it.
(c) Each program, plan, or project implemented under this subpart
shall be reviewed or evaluated periodically by the Board to ensure that
it contributes to an effective program of promotion, research, consumer
information, or industry information. If it is found by the Board that
any such program, plan, or project does not contribute to an effective
program of promotion, research, consumer information, or industry
information, then the Board shall terminate such program, plan, or
project.
[[Page 13559]]
(d) In carrying out any program, plan, or project, no reference to
a brand name, trade name, or State or regional identification of any
popcorn will be made. In addition, no program, plan, or project shall
make use of unfair or deceptive acts or practices with respect to the
quality, value, or use of any competing product.
Sec. 1215.41 Contracts.
The Board shall not contract with any processor for the purpose of
promotion or research. The Board may lease physical facilities from a
processor for such promotion or research, if such an arrangement is
determined to be cost effective by the Board and approved by the
Secretary. Any contract or agreement shall provide that:
(a) The contractor or agreeing party shall develop and submit to
the Board a program, plan or project together with a budget or budgets
that shall show the estimated cost to be incurred for such program,
plan, or project;
(b) Any such program, plan, or project shall become effective upon
approval by the Secretary;
(c) The contracting or agreeing party shall keep accurate records
of all of its transactions and make periodic reports to the Board of
activities conducted, submit accountings for funds received and
expended, and make such other reports as the Secretary or the Board may
require; and the Secretary may audit the records of the contracting or
agreeing party periodically; and
(d) Any subcontractor who enters into a contract with a Board
contractor and who receives or otherwise uses funds allocated by the
Board shall be subject to the same provisions as the contractor.
Expenses and Assessments
Sec. 1215.50 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.
(b) Each budget shall include:
(1) A rate of assessment for such fiscal year calculated, subject
to Sec. 1215.51(b), to provide adequate funds to defray its proposed
expenditures and to provide for a reserve as set forth in paragraph (g)
of this section;
(2) A statement of the objectives and strategy for each program,
plan, or project;
(3) A summary of anticipated revenue, with comparative data for at
least one preceding year;
(4) A summary of proposed expenditures for each program, plan, or
project; and
(5) Staff and administrative expense breakdowns, with comparative
data for at least one preceding year.
(c) In budgeting plans and projects of promotion, research,
consumer information, and industry information, the Board shall expend
assessment and contribution funds on:
(1) Plans and projects for popcorn marketed in the United States or
Canada in proportion to the amount of assessments projected to be
collected on domestically marketed popcorn (including Canada); and
(2) Plans and projects for exported popcorn in proportion to the
amount of assessments projected to be collected on exported popcorn
(excluding Canada).
(d) The Board is authorized to incur such reasonable 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) The Board may accept voluntary contributions, but these shall
only be used to pay expenses incurred in the conduct of programs,
plans, and projects approved by the Secretary. Such contributions shall
be free from any encumbrances by the donor and the Board shall retain
complete control of their use. The Board may also receive funds
provided through the Foreign Agricultural Service of the United States
Department of Agriculture for foreign marketing activities.
(f) As stated in Sec. 575(f)(4)(A)(ii) of the Act, the Board shall
reimburse the Secretary, from funds received by the Board, for costs
incurred by the Secretary in implementing and administering this
subpart: Provided, That the costs incurred by the Secretary to be
reimbursed by the Board, excluding legal costs to defend and enforce
the order, shall not exceed 15 percent of the projected annual revenues
of the Board.
(g) The Board may establish an operating monetary reserve and may
carry over to subsequent fiscal periods excess funds in any reserve so
established, except that the funds in this reserve shall not exceed
approximately one fiscal year's expenses. Such reserve funds may be
used to defray any expenses authorized under this subpart.
(h) With the approval of the Secretary, the Board may borrow money
for the payment of administrative expenses, subject to the same fiscal,
budget, and audit controls as other funds of the Board during its first
year of operation only.
Sec. 1215.51 Assessments.
(a) Any processor marketing popcorn in the United States or for
export shall pay an assessment on such popcorn at the time of
introduction to market at a rate as established in Sec. 1215.51(c) and
shall remit such assessment to the Board in such form and manner as
prescribed by the Board.
(b) Any person marketing popcorn of that person's own production to
consumers in the United States either directly or through retail or
wholesale outlets, shall remit to the Board an assessment on such
popcorn at the rate set forth in paragraph Sec. 1215.51(c), and in such
form and manner as prescribed by the Board.
(c) Except as otherwise provided, the rate of assessment shall be 5
cents per hundredweight of popcorn. The rate of assessment may be
raised or lowered as recommended by the Board and approved by the
Secretary, but shall not exceed 8 cents per hundredweight in any fiscal
year.
(d) The collection of assessments under this section shall commence
on all popcorn processed in the United States on or after the date
established by the Secretary, and shall continue until terminated by
the Secretary. If the Board is not constituted on the date the first
assessments are to be collected, the Secretary shall have the authority
to receive assessments on behalf of the Board and may hold such
assessments until the Board is constituted, then remit such assessments
to the Board.
(e) Each person responsible for remitting assessments under
paragraphs (a) and (b) of this section shall remit the amounts due from
assessments to the Board on a quarterly basis no later than the last
day of the month following the last month in the previous quarter in
which the popcorn was marketed, in such manner as prescribed by the
Board.
(f) The Board shall impose a late payment charge on any person who
fails to remit to the Board the total amount for which the person is
liable on or before the payment due date established under this
section. The amount of the late payment charge shall be prescribed in
rules and regulations as approved by the Secretary.
(g) The Board shall impose an additional charge on any person
subject to a late payment charge, in the form of interest on the
outstanding portion of any amount for which the person is liable. The
rate of interest shall be
[[Page 13560]]
prescribed in rules and regulations as approved by the Secretary.
(h) In addition, persons failing to remit total assessments due in
a timely manner may also be subject to penalties and actions under
federal debt collection procedures as set forth in 7 CFR 3.1 through
3.36.
(i) Any assessment that is determined to be owing at a date later
than the payment due established under this section, due to a person's
failure to submit a report to the Board by the payment due date, shall
be considered to have been payable on the payment due date. Under such
a situation, paragraphs (f), (g), and (h) of this section shall be
applicable.
(j) The Board, with the approval of the Secretary, may enter into
agreements authorizing other organizations or entities to collect
assessments on its behalf. Any such organization or entity shall be
required to maintain the confidentiality of such information as is
required by the Board for collection purposes. Any reimbursement by the
Board for such services shall be based on reasonable charges for
services rendered.
(k) The Board is hereby authorized to accept advance payment of
assessments for the fiscal year by any person, that shall be credited
toward any amount for which such person may become liable. The Board
shall not be obligated to pay interest on any advance payment.
Sec. 1215.52 Exemption from assessment.
(a) Persons that process and distribute 4 million pounds or less of
popcorn annually, based on the previous year, shall be exempted from
assessment.
(b) To claim such exemption, such persons shall apply to the Board,
in the form and manner prescribed in the rules and regulations.
Sec. 1215.53 Influencing governmental action.
No funds received by the Board under this subpart shall in any
manner be used for the purpose of influencing legislation or
governmental policy or action, except to develop and recommend to the
Secretary amendments to this subpart.
Reports, Books, and Records
Sec. 1215.60 Reports.
(a) Each processor marketing popcorn directly to consumers, and
each processor responsible for the remittance of assessments under
Sec. 1215.51, shall be required to report quarterly to the Board, on a
form provided by the Board, such information as may be required under
this subpart or any rule and regulations issued thereunder. Such
information shall be subject to Sec. 1215.62 and include, but not be
limited to, the following:
(1) The processor's name, address, telephone number, and Social
Security Number or Employer Identification Number;
(2) The date of report, which is also the date of payment to the
Board;
(3) The period covered by the report;
(4) The number of pounds of popcorn marketed or in any other manner
are subject to the collection of assessments;
(5) The amount of assessments remitted;
(6) The basis, if necessary, to show why the remittance is less
than the number of pounds of popcorn divided by 100 and multiplied by
the applicable assessment rate; and
(7) The amount of assessments remitted on exports (not including
Canada).
(b) The words ``final report'' shall be shown on the last report at
the end of each fiscal year.
Sec. 1215.61 Books and records.
Each person who is subject to this subpart shall maintain and make
available for inspection by the Board or the Secretary such books and
records as are deemed necessary by the Board, with the approval of the
Secretary, to carry out the provisions of this subpart and any rules
and regulations issued hereunder, including such books and records as
are necessary to verify any reports required. Such books and records
shall be retained for at least two years beyond the fiscal year of
their applicability.
Sec. 1215.62 Confidential treatment.
(a) All information obtained from books, records, or reports under
the Act, this subpart, and the rule and regulations issued thereunder
shall be kept confidential by all persons, including all employees,
agents, and former employees and agents of the Board; all officers,
employees, agents, and former officers, employees, and agents of the
Department; and all officers, employees, agents, and former officers,
employees, and agents of contracting and subcontracting agencies or
agreeing parties having access to such information. Such information
shall not be available to Board members or processors. Only those
persons having a specific need for such information to administer
effectively the provisions of this part shall have access to such
information. Only such information so obtained as the Secretary deems
relevant shall be disclosed by them, and then only in a suit or
administrative hearing brought at the direction, or on the request, of
the Secretary, or to which the Secretary or any officer of the United
States is a party, and involving this part.
(b) No information obtained under the authority of this part may be
made available to any agency or officer of the Federal Government for
any purpose other than the implementation of the Act and any
investigatory or enforcement action necessary for the implementation of
the Act.
(c) Nothing in paragraph (a) of this section may be deemed to
prohibit:
(1) The issuance of general statements based upon the reports of
the number of persons subject to this part or statistical data
collected therefrom, which statements do not identify the information
furnished by any person;
(2) The publication, by direction of the Secretary, of the name of
any person who has violated this part, together with a statement of the
particular provisions of this part violated by such person.
(d) Any person who knowingly violated the provisions of this
section, on conviction, shall be subject to a fine of not more than
$1,000 or to imprisonment for not more than 1 year, or both, or if the
person is an officer, employee, or agent of the Board or the
Department, that person shall be removed from office or terminated from
employment as applicable.
Miscellaneous
Sec. 1215.70 Right of the Secretary.
All fiscal matters, programs, plans, or projects, contracts, rules
or regulations, reports, or other substantive actions proposed and
prepared by the Board shall be submitted to the Secretary for approval.
Sec. 1215.71 Suspension or termination.
(a) Whenever the Secretary finds that this subpart or any provision
thereof obstructs or does not tend to effectuate the declared policy of
the Act, the Secretary shall terminate or suspend the operation of this
subpart or such provision thereof.
(b) The Secretary may conduct additional referenda to determine
whether processors favor termination or suspension of this subpart
three years after the effective date, on the request of a
representative group comprising 30 percent or more of the number of
processors who have been engaged in processing during a representative
period as determined by the Secretary.
(c) Whenever the Secretary determines that suspension or
termination of this subpart is favored by two-thirds or more of the
popcorn processors voting in a referendum under paragraph (b) of this
section who, during a representative period
[[Page 13561]]
determined by the Secretary, have been engaged in the processing, the
Secretary shall:
(1) Suspend or terminate, as appropriate, collection of assessments
within six months after making such determination; and
(2) Suspend or terminate, as appropriate, all activities under this
subpart in an orderly manner as soon as practicable.
(d) Referenda conducted under this subsection shall be conducted in
such manner as the Secretary may prescribe.
Sec. 1215.72 Proceedings after termination.
(a) Upon the termination of this subpart, the Board shall recommend
not more than five of its members to the Secretary to serve as trustees
for the purpose of liquidating the affairs of the Board. Such persons,
upon designation by the Secretary, shall become trustees of all the
funds and property owned, in the possession of, or under the control of
the Board, including any claims unpaid or property not delivered, or
any other claim existing at the time of such termination.
(b) The trustees shall:
(1) Continue in such capacity until discharged by the Secretary;
(2) Carry out the obligations of the Board under any contract or
agreement entered into by it under this subpart;
(3) From time to time account for all receipts and disbursements,
and deliver all property on hand, together with all books and records
of the Board and of the trustees, to such persons as the Secretary may
direct; and
(4) Upon the request of the Secretary, execute such assignments or
other instruments necessary or appropriate to vest in such other
persons full title and right to all of the funds, property, and claims
vested in the Board or the trustees under this subpart.
(c) Any person to whom funds, property, or claims have been
transferred or delivered under this subpart shall be subject to the
same obligations imposed upon the Board and upon the trustees.
(d) Any residual funds not required to defray the necessary
expenses of liquidation shall be turned over to the Secretary to be
used, to the extent practicable, in the interest of continuing one or
more of the promotion, research, consumer information or industry
information programs, plans, or projects authorized under this subpart.
Sec. 1215.73 Effect of termination or amendment.
Unless otherwise expressly provided by the Secretary, the
termination of this subpart or of any rule and regulation issued under
this subpart, or the issuance of any amendment to such provisions,
shall not:
(a) Affect or waive any right, duty, obligation, or liability that
shall have arisen or may hereafter arise in connection with any
provision of this subpart or any such rules or regulations;
(b) Release or extinguish any violation of this subpart or any such
rules or regulations; or
(c) Affect or impair any rights or remedies of the United States,
the Secretary, or any person with respect to any such violation.
Sec. 1215.74 Personal liability.
No member or employee of the Board shall be held personally
responsible, either individually or jointly, in any way whatsoever, to
any person for errors in judgment, mistakes, or other acts of either
commission or omission of such member or employee under this subpart,
except for acts of dishonesty or willful misconduct.
Sec. 1215.75 Patents, copyrights, inventions, publications, and
product formulations.
Any patents, copyrights, inventions, publications, or product
formulations developed through the use of funds received by the Board
under this subpart shall be the property of the United States
Government as represented by the Board and shall, along with any rents,
royalties, residual payments, or other income from the rental, sale,
leasing, franchising, or other uses of such patents, copyrights,
inventions, publications, or product formulations inure to the benefit
of the Board and be considered income subject to the same fiscal,
budget, and audit controls as other funds of the Board. Upon
termination of this subpart, Sec. 1215.72 shall apply to determine
disposition of all such property.
Sec. 1215.76 Amendments.
Amendments to this subpart may be proposed, from time to time, by
the Board or by any interested persons affected by the provisions of
the Act, including the Secretary.
Sec. 1215.77 Separability.
If any provision of this subpart is declared invalid, or the
applicability thereof to any person or circumstances is held invalid,
the validity of the remainder of this subpart or the applicability
thereof to other persons or circumstances shall not be affected
thereby.
Subpart B--Rules and Regulations
Sec. 1215.100 Terms defined.
Unless otherwise defined in this subpart, the definitions of terms
used in this subpart shall have the same meaning as the definitions in
Subpart A--Popcorn Promotion, Research, and Consumer Information Order
of this part.
Exemption Procedures
Sec. 1215.300 Exemption procedures.
(a) Any processor who markets 4 million pounds or less of popcorn
annually and who desires to claim an exemption from assessments during
a fiscal year as provided in Sec. 1214.52 of this part shall apply to
the Board, on a form provided by the Board, for a certificate of
exemption. Such processor shall certify that the processor's marketing
of popcorn during the previous fiscal year was 4 million pounds or
less.
(b) Upon receipt of an application, the Board shall determine
whether an exemption may be granted. The Board then will issue, if
deemed appropriate, a certificate of exemption to each person that is
eligible to receive one.
(c) Any person who desires to renew the exemption from assessments
for a subsequent fiscal year shall reapply to the Board, on a form
provided by the Board, for a certificate of exemption.
(d) The Board may require persons receiving an exemption from
assessments to provide to the Board reports on the disposition of
exempt popcorn.
Miscellaneous
Sec. 1215.400 OMB control numbers.
The control number assigned to the information collection
requirements by the Office of Management and Budget pursuant to the
Paperwork Reduction Act of 1995, 44 U.S.C. Chapter 35, is OMB control
number 0581-0093, except for the Promotion Board nominee background
statement form which is assigned OMB control number 0505-0001.
Dated: March 18, 1997.
Michael V. Dunn,
Assistant Secretary, Marketing and Regulatory Programs.
[FR Doc. 97-7294 Filed 3-20-97; 8:45 am]
BILLING CODE 3410-02-P
