Last updated on March 14th, 2023 at 04:10 pm
Title 7 – Agriculture–Volume 8
Subtitle B – Regulations of the Department of Agriculture (Continued)
CHAPTER IX – AGRICULTURAL MARKETING SERVICE (MARKETING AGREEMENTS AND ORDERS; FRUITS, VEGETABLES, NUTS), DEPARTMENT OF AGRICULTURE
PART 900 – GENERAL REGULATIONS
Subpart A – Procedural Requirements Governing Proceedings Pertaining to Marketing Agreements and Marketing Orders
§ 900.1 Words in the singular form.
Words in this subpart in the singular form shall be deemed to import the plural, and vice versa, as the case may demand.
§ 900.2 Definitions.
As used in this subpart, the terms as defined in the act shall apply with equal force and effect. In addition, unless the context otherwise requires:
(a) The term Act means Public Act No. 10, 73 Congress (48 Stat. 31), as amended and as reenacted and amended by the Agricultural Marketing Agreement Act of 1937 (50 Stat. 246), as amended.
(b) The term Department means the United States Department of Agriculture.
(c) The term Secretary means the Secretary of Agriculture of the United States, or any officer or employee of the Department to whom authority has heretofore been delegated, or to whom authority may hereafter be delegated, to act for the Secretary.
(d) The term judge means any administrative law judge appointed pursuant to 5 U.S.C. 3105 or any presiding official appointed by the Secretary, and assigned to conduct the proceeding.
(e) The term Administrator means the Administrator of the Agricultural Marketing Service or any officer or employee of the Department to whom authority has been delegated or may hereafter be delegated to act for the Administrator.
(f) [Reserved]
(g) The term
(h) The term hearing means that part of the proceeding which involves the submission of evidence.
(i) The term marketing agreement means any marketing agreement or any amendment thereto which may be entered into pursuant to section 8b of the act.
(j) The term marketing order means any order or any amendment thereto which may be issued pursuant to section 8c of the act, and after notice and hearing as required by said section.
(k) The term proceeding means a proceeding upon the basis of which a marketing agreement may be entered into or a marketing order may be issued.
(l) The term hearing clerk means the hearing clerk, United States Department of Agriculture, Washington, DC.
§ 900.3 Proposals.
(a) A marketing agreement or a marketing order may be proposed by the Secretary or by any other person. If any person other than the Secretary proposes a marketing agreement or marketing order, he shall file with the Administrator a written application, together with at least four copies of the proposal, requesting the Secretary to hold a hearing upon the proposal. Upon receipt of such proposal, the Administrator shall cause such investigation to be made and such consideration thereof to be given as, in his opinion, are warranted. If the investigation and consideration lead the Administrator to conclude that the proposed marketing agreement or marketing order will not tend to effectuate the declared policy of the act, or that for other proper reasons a hearing should not be held on the proposal, he shall deny the application, and promptly notify the applicant of such denial, which notice shall be accompanied by a brief statement of the grounds for the denial.
(b) If the investigation and consideration lead the Administrator to conclude that the proposed marketing agreement or marketing order will tend to effectuate the declared policy of the act, or if the Secretary desires to propose a marketing agreement or marketing order, he shall sign and cause to be served a notice of hearing, as provided in this subpart.
§ 900.4 Institution of proceeding.
(a) Filing and contents of the notice of hearing. The proceeding shall be instituted by filing the notice of hearing with the hearing clerk. The notice of hearing shall contain a reference to the authority under which the marketing agreement or marketing order is proposed; shall define the scope of the hearing as specifically as may be practicable; shall describe any alternative procedures established pursuant to paragraph (d) of this section; shall contain either the terms or substance of the proposed marketing agreement or marketing order or a description of the subjects and issues involved and shall state the industry, area, and class of persons to be regulated, the time and place of such hearing, and the place where copies of such proposed marketing agreement or marketing order may be obtained or examined. The time of the hearing shall not be less than 15 days after the date of publication of the notice in the
(b) Giving notice of hearing and supplemental publicity. (1) The Administrator shall give or cause to be given notice of hearing in the following manner:
(i) By publication of the notice of hearing in the
(ii) By mailing a true copy of the notice of hearing, using a postal or other delivery service or electronic communication, to each of the persons known to the Administrator to be interested therein;
(iii) By issuing a press release containing the complete text or a summary of the contents of the notice of hearing and making the same available to such newspapers in the area proposed to be subjected to regulation as reasonably will tend to bring the ntoice to the attention of the persons interested therein;
(iv) By forwarding copies of the notice of hearing addressed to the governors of such of the several States of the United States and to executive heads of such of the Territories and possessions of the United States as the Administrator, having due regard for the subject matter of the proposal and the public interest, shall determine, should be notified.
(2) Legal notice of the hearing shall be deemed to be given if notice is given in the manner provided by paragraph (b)(1)(i) of this section; and failure to give notice in the manner provided in paragraph (b)(1)(ii), (iii), and (iv) of this section shall not affect the legality of the notice.
(c) Record of notice and supplemental publicity. There shall be filed with the hearing clerk or submitted to the judge at the hearing an affidavit or certificate of the person giving the notice provided in paragraph (b)(1) (iii) and (iv) of this section. In regard to the provisions relating to mailing in paragraph (b)(1)(ii) of this section, a determination by the Administrator that such provisions have been complied with shall be filed with the hearing clerk or submitted to the judge at the hearing. In the alternative, if notice is not given in the manner provided in paragraph (b)(1)(ii), (iii), and (iv) of this section there shall be filed with the hearing clerk or submitted to the judge at the hearing a determination by the Administrator that such notice is impracticable, unnecessary, or contrary to the public interest with a brief statement of the reasons for such determination. Determinations by the Administrator as herein provided shall be final.
(d) Alternative procedures. The Administrator may establish alternative procedures for the proceeding that are in addition to or in lieu of one or more procedures in this subpart, provided that the procedures are consistent with 5 U.S.C. 556 and 557. The alternative procedures must be described in the notice of hearing, as required in paragraph (a) of this section.
§ 900.5 Docket number.
Each proceeding, immediately following its institution, shall be assigned a docket number by the hearing clerk and thereafter the proceeding may be referred to by such number.
§ 900.6 Judges.
(a) Assignment. No judge who has any pecuniary interest in the outcome of a proceeding shall serve as judge in such proceeding.
(b) Powers of judges. Subject to review by the Secretary, as provided elsewhere in this subpart, the judge, in any proceeding, shall have power to:
(1) Rule upon motions and requests;
(2) Change the time and place of hearing, and adjourn the hearing from time to time or from place to place;
(3) Administer oaths and affirmations and take affidavits;
(4) Examine and cross-examine witnesses and receive evidence;
(5) Admit or exclude evidence;
(6) Hear oral argument on facts or law;
(7) Do all acts and take all measures necessary for the maintenance of order at the hearing and the efficient conduct of the proceeding.
(c) Who may act in absence of judge. In case of the absence of the judge or his inability to act, the powers and duties to be performed by him under this part in connection with a proceeding may, without abatement of the proceeding unless otherwise ordered by the Secretary, be assigned to any other judge.
(d) Disqualification of judge. The judge may at any time withdraw as judge in a proceeding if he deems himself to be disqualified. Upon the filing by an interested person in good faith of a timely and sufficient affidavit of personal bias or disqualification of a judge, the Secretary shall determine the matter as a part of the record and decision in the proceeding, after making such investigation or holding such hearings, or both, as he may deem appropriate in the circumstances.
§ 900.7 Motions and requests.
(a) General. All motions and requests shall be filed with the hearing clerk, except that those made during the course of the hearing may be filed with the judge or may be stated orally and made a part of the transcript. Except as provided in § 900.15(b) such motions and requests shall be addressed to, and ruled on by, the presiding officer if made prior to his certification of the transcript pursuant to § 900.10 or by the Secretary if made thereafter.
(b) Certification to Secretary. The judge may in his discretion submit or certify to the Secretary for decision any motion, request, objection, or other question addressed to the judge.
§ 900.8 Conduct of the hearing.
(a) Time and place. The hearing shall be held at the time and place fixed in the notice of hearing, unless the judge shall have changed the time or place, in which event the judge shall file with the hearing clerk a notice of such change, which notice shall be given in the same manner as provided in § 900.4 (relating to the giving of notice of the hearing): Provided, That, if the change in time or place of hearing is made less than 5 days prior to the date previously fixed for the hearing, the judge, either in addition to or in lieu of causing the notice of the change to be given, shall announce, or cause to be announced, the change at the time and place previously fixed for the hearing.
(b) Appearances – (1) Right to appear. At the hearing, any interested person shall be given an opportunity to appear, either in person or through his authorized counsel or representative, and to be heard with respect to matters relevant and material to the proceeding, provided that such interested person complies with any alternative procedures included in the hearing notice pursuant to§ 900.4. Any interested person who desires to be heard in person at any hearing under these rules shall, before proceeding to testify, state his name, address, and occupation. If any such person is appearing through a counsel or representative, such person or such counsel or representative shall, before proceeding to testify or otherwise to participate in the hearing, state for the record the authority to act as such counsel or representative, and the names and addresses and occupations of such person and such counsel or representative. Any such person or such counsel or representative shall give such other information respecting his appearance as the judge may request.
(2) Debarment of counsel or representative. Wherever, while a proceeding is pending before him, the judge finds that a person, acting as counsel or representative for any person participating in the proceeding, is guilty of unethical or unprofessional conduct, the judge may order that such person be precluded from further acting as counsel or representative in such proceeding. An appeal to the Secretary may be taken from any such order, but the proceeding shall not be delayed or suspended pending disposition of the appeal: Provided, That the judge may suspend the proceeding for a reasonable time for the purpose of enabling the client to obtain other counsel or other representative. In case the judge has ordered that a person be precluded from further acting as counsel or representative in the proceeding, the presiding officer, within a reasonable time thereafter shall submit to the Secretary a report of the facts and circumstances surrounding such order and shall recommend what action the Secretary should take respecting the appearance of such person as counsel or representative in other proceedings before the Secretary. Thereafter the Secretary may, after notice and an opportunity for hearing, issue such order, respecting the appearance of such person as counsel or representative in proceedings before the Secretary, as the Secretary finds to be appropriate.
(3) Failure to appear. If any interested person fails to appear at the hearing, he shall be deemed to have waived the right to be heard in the proceeding.
(c) Order of procedure. (1) The judge shall, at the opening of the hearing prior to the taking of testimony, have noted as part of the record the notice of hearing as filed with the Office of the Federal Register and the affidavit or certificate of the giving of notice or the determination provided for in § 900.4(c).
(2) Evidence shall then be received with respect to the matters specified in the notice of the hearing in such order as the judge shall announce.
(d) Evidence – (1) In general. The hearing shall be publicly conducted, and the testimony given at the hearing shall be reported verbatim.
(i) Every witness shall, before proceeding to testify, be sworn or make affirmation. Cross-examination shall be permitted to the extent required for a full and true disclosure of the facts.
(ii) When necessary, in order to prevent undue prolongation of the hearing, the judge may limit the number of times any witness may testify to the same matter or the amount of corroborative or cumulative evidence.
(iii) The judge shall, insofar as practicable, exclude evidence which is immaterial, irrelevant, or unduly repetitious, or which is not of the sort upon which responsible persons are accustomed to rely.
(2) Objections. If a party objects to the admission or rejection of any evidence or to any other ruling of the judge during the hearing, he shall state briefly the grounds of such objection, whereupon an automatic exception will follow if the objection is overruled by the judge. The transcript shall not include argument or debate thereon except as ordered by the judge. The ruling of the judge on any objection shall be a part of the transcript. Only objections made before the judge may subsequently be relied upon in the proceeding.
(3) Proof and authentication of official records or documents. An official record or document, when admissible for any purpose, shall be admissible as evidence without the production of the person who made or prepared the same. Such record or document shall, in the discretion of the judge, be evidenced by an official publication thereof or by a copy attested by the person having legal custody thereof and accompanied by a certificate that such person has the custody.
(4) Exhibits. All written statements, charts, tabulations, or similar data offered in evidence at the hearing shall, after identification by the proponent and upon satisfactory showing of the authenticity, relevancy, and materiality of the contents thereof, be numbered as exhibits and received in evidence and made a part of the record. Such exhibits shall be submitted in quadruplicate and in documentary form. In case the required number of copies is not made available, the judge shall exercise his discretion as to whether said exhibits shall, when practicable, be read in evidence or whether additional copies shall be required to be submitted within a time to be specified by the judge. If the testimony of a witness refers to a statute, or to a report or document (including the record of any previous hearing) the judge, after inquiry relating to the identification of such statute, report, or document, shall determine whether the same shall be produced at the hearing and physically be made a part of the evidence as an exhibit, or whether it shall be incorporated into the evidence by reference. If relevant and material matter offered in evidence is embraced in a report or document (including the record of any previous hearing) containing immaterial or irrelevant matter, such immaterial or irrelevant matter shall be excluded and shall be segregated insofar as practicable, subject to the direction of the presiding officer.
(5) Official notice. Official notice may be taken of such matters as are judicially noticed by the courts of the United States and of any other matter of technical, scientific or commercial fact of established character: Provided, That interested persons shall be given adequate notice, at the hearing or subsequent thereto, of matters so noticed and shall be given adequate opportunity to show that such facts are inaccurate or are erroneously noticed.
(6) Offer of proof. Whenever evidence is excluded from the record, the party offering such evidence may make an offer of proof, which shall be included in the transcript. The offer of proof shall consist of a brief statement describing the evidence to be offered. If the evidence consists of a brief oral statement or of an exhibit, it shall be inserted into the transcript in toto. In such event, it shall be considered a part of the transcript if the Secretary decides that the judge’s ruling in excluding the evidence was erroneous. The judge shall not allow the insertion of such evidence in toto if the taking of such evidence will consume a considerable length of time at the hearing. In the latter event, if the Secretary decides that the judge erred in excluding the evidence, and that such error was substantial, the hearing shall be reopened to permit the taking of such evidence.
§ 900.9 Oral and written arguments.
(a) Oral argument before judge. Oral argument before the judge shall be in the discretion of the judge. Such argument, when permitted, may be limited by the judge to any extent that he finds necessary for the expeditious disposition of the proceeding and shall be reduced to writing and made part of the transcript.
(b) Briefs, proposed findings and conclusions. The judge shall announce at the hearing a reasonable period of time within which interested persons may file with the hearing clerk proposed findings and conclusions, and written arguments or briefs, based upon the evidence received at the hearing, citing, where practicable, the page or pages of the transcript of the testimony where such evidence appears. Factual material other than that adduced at the hearing or subject to official notice shall not be alluded to therein, and, in any case, shall not be considered in the formulation of the marketing agreement or marketing order. If the person filing a brief desires the Secretary to consider any objection made by such person to a ruling of the judge, as provided in § 900.8(d), he shall include in the brief a concise statement concerning each such objection, referring where practicable, to the pertinent pages of the transcript.
§ 900.10 Certification of the transcript.
The judge shall notify the hearing clerk of the close of a hearing as soon as possible thereafter and of the time for filing written arguments, briefs, proposed findings and proposed conclusions, and shall furnish the hearing clerk with such other information as may be necessary. As soon as possible after the hearing, the judge shall transmit to the hearing clerk an original and three copies of the transcript of the testimony and the original and all copies of the exhibits not already on file in the office of the hearing clerk. He shall attach to the original transcript of testimony his certificate stating that, to the best of his knowledge and belief, the transcript is a true transcript of the testimony given at the hearing except in such particulars as he shall specify; and that the exhibits transmitted are all the exhibits as introduced at the hearing with such exceptions as he shall specify. A copy of such certificate shall be attached to each of the copies of the transcript of testimony. In accordance with such certificate the hearing clerk shall note upon the official record copy, and cause to be noted on other copies, of the transcript each correction detailed therein by adding or crossing out (but without obscuring the text as originally transcribed) at the appropriate place any words necessary to make the same conform to the correct meaning, as certified by the judge. The hearing clerk shall obtain and file certifications to the effect that such corrections have been effected in copies other than the official record copy.
§ 900.11 Copies of the transcript.
(a) During the period in which the proceeding has an active status in the Department, a copy of the transcript and exhibits shall be kept on file in the office of the hearing clerk, where it shall be available for examination during official hours of business. Thereafter said transcript and exhibits shall be made available by the hearing clerk for examination during official hours of business after prior request and reasonable notice to the hearing clerk.
(b) Transcripts of hearings shall be made available to any person at actual cost of duplication.
§ 900.12 Administrator’s recommended decision.
(a) Preparation. As soon as practicable following the termination of the period allowed for the filing of written arguments or briefs and proposed findings and conclusions the Administrator shall file with the hearing clerk a recommended decision.
(b) Contents. The Administrator’s recommended decision shall include: (1) A preliminary statement containing a description of the history of the proceedings, a brief explanation of the material issues of fact, law, or discretion presented on the record, and proposed findings and conclusions with respect to such issues as well as the reasons or basis therefor; (2) a ruling upon each proposed finding or conclusion submitted by interested persons, and (3) an appropriate proposed marketing agreement or marketing order effectuating his recommendations.
(c) Exceptions to recommended decision. Immediately following the filing of his recommended decision, the Administrator shall give notice thereof, and opportunity to file exceptions thereto by publication in the
(d) Omission of recommended decision. The procedure provided in this section may be omitted only if the Secretary finds on the basis of the record that due and timely execution of his functions imperatively and unavoidably requires such omission.
§ 900.13 Submission to Secretary.
Upon the expiration of the period allowed for filing exceptions or upon request of the Secretary, the hearing clerk shall transmit to the Secretary the record of the proceeding. Such record shall include: All motions and requests filed with the hearing clerk and rulings thereon; the certified transcript; any proposed findings or conclusions or written arguments or briefs that may have been filed; the Administrator’s recommended decision, if any, and such exceptions as may have been filed.
§ 900.13a Decision by Secretary.
After due consideration of the record, the Secretary shall render a decision. Such decision shall become a part of the record and shall include: (a) A statement of his findings and conclusions, as well as the reasons or basis therefor, upon all the material issues of fact, law or discretion presented on the record, (b) a ruling upon each proposed finding and proposed conclusion not previously ruled upon in the record, (c) a ruling upon each exception filed by interested persons and (d) either (1) a denial of the proposal to issue a marketing agreement or marketing order or (2) a marketing agreement and, if the findings upon the record so warrant, a marketing order, the provisions of which shall be set forth directly or by reference, regulating the handling of the commodity or product in the same manner and to the same extent as such marketing agreement, which order shall be complete except for its effective date and any determinations to be made under § 900.14(b) or § 900.14(c): Provided, That such marketing order shall not be executed, issued, or made effective until and unless the Secretary determines that the requirements of § 900.14(b) or § 900.14(c) have been met.
§ 900.14 Execution and issuance of marketing agreements and marketing orders.
(a) Execution and issuance of marketing agreement. If the Secretary has approved a marketing agreement, as provided in § 900.13a, the Administrator shall cause copies thereof to be distributed for execution by the handlers eligible to become parties thereto. If and when such number of the handlers as the Secretary shall deem sufficient shall have executed the agreement, the Secretary shall execute the agreement. After execution of a marketing agreement, such agreement shall be filed with the hearing clerk, and notice thereof, together with notice of the effective date, shall be given by publication in the
(b) Issuance of marketing order with marketing agreement. Whenever, as provided in paragraph (a) of this section, the Secretary executes a marketing agreement, and handlers also have executed the same as provided in section 8c(8) of the Act, he shall, if he finds that it will tend to effectuate the purposes of the Act, issue and make effective the marketing order, if any, which was filed as a part of his decision pursuant to § 900.13a: Provided, That the issuance of such order shall have been approved or favored by producers as required by section 8c(8) of the act.
(c) Issuance of marketing order without marketing agreement. If, despite the failure or refusal of handlers to sign the marketing agreement, as provided in section 8c(8) of the Act, the Secretary makes the determinations required under section 8c(9) of the Act, the Secretary shall issue and make effective the marketing order, if any, which was filed as a part of his decision pursuant to § 900.13a.
(d) Effective date of marketing order. No marketing order shall become effective less than 30 days after its publication in the
(e) Notice of issuance. After issuance of a marketing order, such order shall be filed with the hearing clerk, and notice therof, together with notice of the effective date, shall be given by publication in the
§ 900.15 Filing; extensions of time; effective date of filing; and computation of time.
(a) Filing, number of copies. Except as is provided otherwise in this subpart, all documents or papers required or authorized by the foregoing provisions of this subpart to be filed with the hearing clerk shall be filed in quadruplicate. Any document or paper, so required or authorized to be filed with the hearing clerk, shall, during the course of an oral hearing, be filed with the presiding officer. The provisions of this subpart concerning filing with the hearing clerk of hearing notices, recommended and final decisions, marketing agreements and orders, and all documents described in § 900.17 shall be met by filing a true copy thereof with the hearing clerk.
(b) Extensions of time. The time for the filing of any document or paper required or authorized by the foregoing provisions of this subpart to be filed may be extended by the judge before the record is certified by the judge or by the Administrator (after the record is so certified by the judge but before it is transmitted to the Secretary), or by the Secretary (after the record is transmitted to the Secretary) upon request filed, and if, in the judgment of the judge, Administrator, or the Secretary, as the case may be, there is good reason for the extension. All rulings made pursuant to this paragraph shall be filed with the hearing clerk.
(c) Effective date of filing. Any document or paper required or authorized in this subpart to be filed shall be deemed to be filed at the time it is received by the Hearing Clerk.
(d) Computation of time. Each day, including Saturdays, Sundays, and legal public holidays, shall be included in computing the time allowed for filing any document or paper: Provided, That when the time for filing a document or paper expires on a Saturday, Sunday, or legal public holiday, the time allowed for filing the document or paper shall be extended to include the following business day.
§ 900.16 Ex parte communications.
(a) At no stage of the proceeding following the issuance of a notice of hearing and prior to the issuance of the Secretary’s decision therein shall an employee of the Department who is or may reasonably be expected to be involved in the decisional process of the proceeding discuss ex parte the merits of the proceeding with any person having an interest in the proceeding or with any representative of such person: Provided, That procedural matters and status reports shall not be included within this limitation; and Provided further, That an employee of the Department who is or may reasonably be expected to be involved in the decisional process of the proceeding may discuss the merits of the proceeding with such a person if all parties known to be interested in the proceeding have been given notice and an opportunity to participate. A memorandum of any such discussion shall be included in the record of the proceeding.
(b) No person interested in the proceeding shall make or knowingly cause to be made to an employee of the Department who is or may reasonably be expected to be involved in the decisional process of the proceeding an ex parte communication relevant to the merits of the proceeding except as provided in paragraph (a) of this section.
(c) If an employee of the Department who is or may reasonably be expected to be involved in the decisional process of the proceeding receives or makes a communication prohibited by this section, the Department shall place on the public record of the proceeding:
(1) All such written communications;
(2) Memoranda stating the substance of all such oral communications; and
(3) All written responses, and memoranda stating the substance of all oral responses thereto.
(d) Upon receipt of a communication knowingly made or knowingly caused to be made by a party in violation of this section, the Department may, to the extent consistent with the interest of justice and the policy of the underlying statute, take whatever steps are deemed necessary to nullify the effect of such communication.
(e) For the purposes of this section, ex parte communication means an oral or written communication not on the public record with respect to which reasonable prior notice to all interested parties is not given, but which shall not include requests for status reports (including requests on procedural matters) on any proceeding.
§ 900.17 Additional documents to be filed with hearing clerk.
In addition to the documents or papers required or authorized by the foregoing provisions of this subpart to be filed with the hearing clerk, the hearing clerk shall receive for filing and shall have custody of all papers, reports, records, orders, and other documents which relate to the administration of any marketing agreement or marketing order and which the Secretary is required to issue or to approve.
§ 900.18 Hearing before Secretary.
The Secretary may act in the place and stead of a judge in any proceeding under this subpart. When he so acts the hearing clerk shall transmit the record to the Secretary at the expiration of the period provided for the filing of proposed findings of fact, conclusions and orders, and the Secretary shall thereupon, after due consideration of the record, issue his final decision in the proceeding: Provided, That he may issue a tentative decision in which event the parties shall be afforded an opportunity to file exceptions before the issuance of the final decision.
Subpart B – Supplemental Procedural Requirements Governing Proceedings to Amend Federal Milk Marketing Agreements and Marketing Orders
§ 900.20 Words in the singular form.
Words in this subpart in the singular form shall be deemed to import the plural, and vice versa, as the case may demand.
§ 900.21 Definitions.
As used in this subpart, the terms as defined in the Act and in § 900.2 of this part shall apply.
§ 900.22 Proposal submission requirements.
When a person other than the Secretary makes a proposal to amend a Federal milk marketing agreement or order under § 900.3 of this part, the proposal shall address the following, to the extent applicable:
(a) Explain the proposal. What is the disorderly marketing condition that the proposal is intended to address?
(b) What is the purpose of the proposal?
(c) Describe the current Federal order requirements or industry practices relative to the proposal.
(d) Describe the expected impact on the industry, including on producers and handlers, and on consumers. Explain/Quantify.
(e) What are the expected effects on small businesses as defined by the Regulatory Flexibility Act (5 U.S.C. 601-612)? Explain/Quantify.
(f) How would adoption of the proposal increase or decrease costs to producers, handlers, others in the marketing chain, consumers, the Market Administrator offices and/or the Secretary? Explain/Quantify.
(g) Would a pre-hearing information session be helpful to explain the proposal?
§ 900.23 Procedures following receipt of a proposal.
Within 30 days of receipt of a proposal to amend a Federal milk marketing agreement order under § 900.3 of this part, USDA shall either: Issue a notice providing an action plan and expected timeframes for the different steps in the formal rulemaking process for completion of the hearing not more than 120 days after the date of the issuance of the notice; request additional information from the person submitting the proposal to be used in deciding whether a hearing will be held. If the information requested is not received within a specified timeframe, the request shall be denied; or deny the request. Notice of the action plan will be made on the Dairy Programs, AMS Web site and through program releases to interested persons.
§ 900.24 Pre-hearing information sessions.
A pre-hearing information session may be held by the Secretary in response to any proposals received under § 900.3 of this part. Any person proposing an amendment to a Federal milk marketing agreement or order may request that a pre-hearing information session be held. A person submitting a proposal shall have up to 3 calendar days to modify or withdraw his or her proposal prior to the publication of a notice of hearing.
§ 900.25 Advance submission of testimony.
Any person proposing an amendment to a Federal milk marketing agreement or order under § 900.3 of this part, when participating as a witness, shall make copies of his or her testimony, if prepared as an exhibit, and any other exhibits available to USDA officials before the start of the hearing on the person’s day of appearance. Individual dairy farmers shall not be subject to this requirement.
§ 900.26 Requesting USDA data for use at an amendatory hearing.
Requests for preparation of USDA data to be used at a Federal milk marketing agreement or order amendatory proceeding must be received by USDA at least 10 days before the beginning of the hearing. If an amendatory hearing is announced with less than 10 days before the start of the hearing, requests for data must be submitted within 2 days following publication of the notice of hearing in the
§ 900.27 Deadline for filing post-hearing briefs and corrections to transcript.
(a) Under § 900.10 of this part, the period of time for interested persons to file corrections to the transcript of testimony at a Federal milk marketing agreement or order amendatory proceeding shall be no more than 30 days after the hearing record is available.
(b) Under § 900.9(b) of this part, the period of time after the completion of a Federal milk marketing agreement or order amendatory hearing for interested persons to file proposed findings and conclusions, and written arguments or briefs, shall be no more than 60 days after completion of the amendatory hearing.
§ 900.28 Deadline for issuance of recommended decisions or tentative final decisions.
In a Federal milk marketing agreement or order amendatory proceeding, USDA shall issue a recommended decision under § 900.12 or, when applicable, a tentative final decision, not later than 90 days after the deadline for submission of proposed findings and conclusions, and written arguments or briefs.
§ 900.29 Deadline for filing exceptions to recommended decisions.
In a Federal milk marketing agreement or order amendatory proceeding, exceptions to a recommended decision under § 900.12 shall be filed with the hearing clerk not later than 60 days after publication of the recommended decision in the
§ 900.30 Deadline for issuance of Secretary’s (final) decisions.
A Secretary’s (final) decision under § 900.13a to a proposed amendment on marketing agreement or order shall be issued not later than 60 days after the deadline for submission of exceptions to the recommended decision.
§ 900.31 Electronic submission of hearing documents.
To the extent practicable, all documents filed with the hearing clerk in a proceeding to amend a Federal milk marketing agreement or order shall also be submitted electronically to the Dairy Programs, Agricultural Marketing Service, USDA. All documents should reference the docket number of the proceeding. Instructions for electronic filing will be provided in the notice of action plan referred to in § 900.23 of this subpart, at the amendatory hearing, and in each
§ 900.32 Informal rulemaking.
USDA may elect to use informal rulemaking procedures under 553 of Title 5, United States Code, to amend Federal milk marketing agreements and orders, other than provisions that directly affect milk prices. In making this determination, consideration shall be given to:
(a) The nature and complexity of the proposal;
(b) The potential regulatory and economic impacts on affected entities; and
(c) Any other relevant matters.
§ 900.33 Industry assessments.
If the Secretary determines it is necessary to improve or expedite an amendatory formal rulemaking proceeding to amend a Federal milk marketing agreement or order, USDA may impose an assessment on pooled milk to supplement appropriated funds for the procurement of such services, including but not limited to, court reporters, hearing examiners, legal counsel, hearing venue and associated travel for USDA officials. Only the milk pooled in the particular marketing area that stands to be affected by proposals heard at the amendatory proceeding may be assessed. The assessments shall be subject to the provisions of § 1000.85 (7 CFR 1000.85) concerning assessments for order administration, including the provision that assessments shall not exceed $.005 per hundredweight of milk for any given month.
Subpart C – Supplemental Procedural Requirements Governing Proceedings to Amend Fruit, Vegetable and Nut Marketing Agreements and Marketing Orders
§ 900.36 Words in the singular form.
Words in this subpart in the singular form shall be deemed to import the plural, and vice versa, as the case may demand.
§ 900.37 Definitions.
As used in this subpart, the terms as defined in the Act and in § 900.2 of this part shall apply.
§ 900.38 Pre-hearing information sessions.
A pre-hearing information session concerning a proposal to amend a fruit, vegetable or nut marketing agreement or order may be held either prior or subsequent to submission of a proposal under § 900.3 of this part. Such sessions may be held by a marketing agreement or order committee or board or by the Secretary.
§ 900.39 Proposal submission requirements.
When a person other than the Secretary makes a proposal to amend a fruit, vegetable or nut marketing agreement or order under § 900.3 of this part, the proposal shall address the following, to the extent applicable:
(a) The purpose of the proposal;
(b) The problem the proposal is designed to address with explanation and quantification;
(c) The current requirements or industry practices relative to the proposal;
(d) The expected impact on the industry, including producers, handlers, and on consumers;
(e) In the case of marketing orders, an explanation, including supporting information and data, of how the proposal would tend to improve returns to producers, and in the case of marketing agreements, how the proposal impacts the signatories to the agreement;
(f) The expected effects on small businesses as defined by the Regulatory Flexibility Act (5 U.S.C. 601-612);
(g) A description and quantification of whether the proposal would increase or decrease costs to producers, handlers, or others in the marketing chain, and to consumers, marketing order committees and boards and/or the Secretary;
(h) A description of how the proposal would be implemented; and
(i) A description, including quantification, of how compliance with the proposal would be effected.
§ 900.40 Written testimony and USDA data request requirements.
In addition to the provisions of § 900.8(b)(4), witnesses at an amendatory fruit, vegetable or nut formal rulemaking hearing shall make, to the extent practicable, at least 8 copies of their testimony, if prepared as an exhibit, and any other exhibits available to USDA before testimony is given on the day of appearance at the hearing. Industry requests for preparation of USDA data for a rulemaking hearing should be made at least 10 days prior to the beginning of the hearing.
§ 900.41 Electronic document submission standards.
To the extent practicable, all documents filed with the hearing clerk in a proceeding to amend a fruit, vegetable or nut marketing agreement or order shall also be submitted electronically to the Agricultural Marketing Service, Fruit and Vegetable Programs, USDA. All documents should reference the docket number of the proceeding. Instructions for electronic filing shall be provided at the amendatory formal rulemaking hearing and in each
§ 900.42 Industry assessments.
If the Secretary determines it is necessary to improve or expedite an amendatory fruit, vegetable or nut formal rulemaking proceeding, costs associated with improving or expediting the proceeding may be charged to the committees or boards. Such costs shall be paid with assessments from the handlers regulated under the marketing order to be amended or on signatories to the marketing agreement subject to amendment. Such assessments may supplement funds for costs associated with, but not limited to, court reporters, hearing examiners, legal counsel, hearing venue and associated travel for USDA officials.
§ 900.43 Use of informal rulemaking.
(a) Notwithstanding the provisions of §§ 900.1 through 900.18, and 900.36 through 900.42 of this part, the Secretary may determine that informal rulemaking procedures under § 553 of Title 5, United States Code be used to amend fruit, vegetable or nut marketing agreements and marketing orders. In making this determination, consideration shall be given to:
(1) The nature and complexity of the proposal;
(2) The potential regulatory and economic impacts on affected entities; and
(3) Any other relevant matters.
Subpart D – Procedural Requirements Governing Proceedings on Petitions To Modify or To Be Exempted From Marketing Orders
§ 900.50 Words in the singular form.
Words in this subpart in the singular form shall be deemed to import the plural, and vice versa, as the case may demand.
§ 900.51 Definitions.
As used in this subpart, the terms as defined in the act shall apply with equal force and effect. In addition, unless the context otherwise requires:
(a) The term act means Public Act No. 10, 73d Congress, as amended and as reenacted and amended by the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. and Sup. 601);
(b) The term Department means the United States Department of Agriculture;
(c) The term Secretary means the Secretary of Agriculture of the United States, or any officer or employee of the Department to whom authority has heretofore been delegated, or to whom authority may hereafter be delegated, to act for the Secretary;
(d) The term judge means any administrative law judge appointed pursuant to 5 U.S.C. 3105 or any presiding official appointed by the Secretary, and assigned to conduct the proceeding.
(e) The term Administrator means the Administrator of the Agricultural Marketing Service or any officer or employee of the Department to whom authority has been delegated or may hereafter be delegated to act for the Administrator.
(f) [Reserved]
(g) The term
(h) The term marketing order means any order or any amendment thereto which may be issued pursuant to section 8c of the act;
(i) The term handler means any person who, by the terms of a marketing order, is subject thereto, or to whom a marketing order is sought to be made applicable;
(j) The term proceeding means a proceeding before the Secretary arising under section 8c(15)(A) of the Act.
(k) The term hearing means that part of the proceeding which involves the submission of evidence;
(l) The term party includes the Department;
(m) The term hearing clerk means the hearing clerk, United States Department of Agriculture, Washington, D.C.;
(n) [Reserved]
(o) The term decision means the judge’s initial decision in proceedings subject to 5 U.S.C. 556 and 557, and includes the judge’s (1) findings of fact and conclusions with respect to all material issues of fact, law or discretion as well as the reasons or basis thereof, (2) order, and (3) rulings on findings, conclusions and orders submitted by the parties;
(p) The term petition includes an amended petition.
§ 900.52 Institution of proceeding.
(a) Filing and service of petition. Any handler desiring to complain that any marketing order or any provision of any such order or any obligation imposed in connection therewith is not in accordance with law, shall file with the hearing clerk, in quadruplicate, a petition in writing addressed to the Secretary. Promptly upon receipt of the petition, the hearing clerk shall transmit a true copy thereof to the Administrator and the General Counsel, respectively.
(b) Contents of petition. A petition shall contain:
(1) The correct name, address, and principal place of business of the petitioner. If petitioner is a corporation, such fact shall be stated, together with the name of the State of incorporation, the date of incorporation, and the names, addresses, and respective positions held by its officers; if an unincorporated association, the names and addresses of its officers, and the respective positions held by them; if a partnership, the name and address of each partner;
(2) Reference to the specific terms or provisions of the marketing order, or the interpretation or application thereof, which are complained of;
(3) A full statement of the facts (avoiding a mere repetition of detailed evidence) upon which the petition is based, and which it is desired that the Secretary consider, setting forth clearly and concisely the nature of the petitioner’s business and the manner in which petitioner claims to be affected by the terms or provisions of the marketing order, or the interpretation or application thereof, which are complained of;
(4) A statement of the grounds on which the terms or provisions of the marketing order, or the interpretation or application thereof, which are complained of, are challenged as not in accordance with law;
(5) Prayers for the specific relief which the petitioner desires the Secretary to grant;
(6) An affidavit by the petitioner, or, if the petitioner is not an individual, by an officer of the petitioner having knowledge of the facts stated in the petition, verifying the petition and stating that it is filed in good faith and not for purposes of delay.
(c) Motion to dismiss petition – (1) Filing, contents, and responses thereto. If the Administrator is of the opinion that the petition, or any portion thereof, does not substantially comply, in form or content, with the act or with the requirements of paragraph (b) of this section, or is not filed in good faith, or is filed for purposes of delay, the Administrator may, within thirty days after the service of the petition, file with the Hearing Clerk a motion to dismiss the petition, or any portion thereof, on one or more of the grounds stated in this paragraph. Such motion shall specify the grounds of objection to the petition and if based, in whole or in part, on an allegation of fact not appearing on the face of the petition, shall be accompanied by appropriate affidavits or documentary evidence substantiating such allegations of fact. The motion may be accompanied by a memorandum of law. Upon receipt of such motion, the Hearing Clerk shall cause a copy thereof to be served upon the petitioner, together with a notice stating that all papers to be submitted in opposition to such motion including any memorandum of law, must be filed by the petitioner with the hearing clerk not later than 20 days after the service of such notice upon the petitioner. Upon the expiration of the time specified in such notice, or upon receipt of such papers from the petitioner, the hearing clerk shall transmit all papers which have been filed in connection with the motion to the Judge for consideration.
(2) Decision by the Judge. The Judge, after due consideration, shall render a decision upon the motion stating the reasons for his action. Such decision shall be in the form of an order and shall be filed with the hearing clerk who shall cause a copy thereof to be served upon the petitioner and a copy thereof to be transmitted to the Administrator. Any such order shall be final unless appealed pursuant to § 900.65: Provided, That within 20 days following the service upon the petitioner of a copy of the order of the Judge dismissing the petition, or any portion thereof, on the ground that it does not substantially comply in form and content with the act or with paragraph (b) of this section, the petitioner shall be permitted to file an amended petition.
(3) Oral argument. Unless a written application for oral argument is filed by a party with the hearing clerk not later than the time fixed for filing papers in opposition to the motion, it shall be considered that the party does not desire oral argument. The granting of a request to make oral argument shall rest in the discretion of the Judge.
§ 900.52a Answer to petition.
(a) Time of filing. Within 30 days after the filing of the petition, the Administrator shall file an answer thereto: Provided, That if a motion to dismiss the petition, in whole or in part, is made pursuant to § 900.52(c), the answer shall be filed within 15 days after the service of an order of the judge denying the motion or granting the motion with respect to only a portion of the petition. The answer shall be filed with the hearing clerk who shall cause a copy thereof to be served promptly upon the petitioner.
(b) Contents. The answer shall specify which of the material allegations of fact or of law in the petition are controverted and which are not controverted. The answer also may contain affirmative allegations of fact constituting separate defenses and statements of objections to the sufficiency of the whole or any part of the petition.
§ 900.52b Amended pleadings.
At any time before the close of the hearing the petition or answer may be amended, but the hearing shall, at the request of the adverse party, be adjourned or recessed for such reasonable time as the judge may determine to be necessary to protect the interests of the parties. Amendments subsequent to the first amendment or subsequent to the filing of an answer may be made only with leave of the judge or with the written consent of the adverse party.
§ 900.53 Withdrawal of petition.
If, at any time after the petition is filed, the petitioner desires to withdraw the same, he shall file with the hearing clerk (or, if filed during the course of a hearing, with the judge) a written request for permission to withdraw. The judge may, in his discretion, thereupon dismiss the petition without further procedure: Provided, That, if the request to withdraw is filed after a hearing has been opened, permission to withdraw shall be granted only in exceptional circumstances.
§ 900.54 Docket number.
Each proceeding, immediately following its institution, shall be assigned a docket number by the hearing clerk and thereafter the proceeding may be referred to by such number.
§ 900.55 Judges.
(a) Assignment. No judge who has any pecuniary interest in the outcome of the proceeding, or who has participated in any investigation preceding the institution of the proceeding, shall serve as judge in such proceeding.
(b) Conduct. The judge shall conduct the proceeding in a fair and impartial manner and shall not discuss ex parte the merits of the proceeding with any person who is or who has been connected in any manner with the proceeding in an advocative or investigative capacity.
(c) Powers of judges. Subject to review by the Secretary, as provided elsewhere in this subpart, the judge shall have power to:
(1) Rule upon motions and requests;
(2) Adjourn the hearing from time to time, and change the time and place of hearing;
(3) Administer oaths and affirmations and take affidavits;
(4) Issue subpenas, under the facsimile signature of the Secretary, requiring the attendance and testimony of witnesses and the production of books, records, contracts, papers, and other documentary evidence;
(5) Examine witnesses and receive evidence;
(6) Take or order, under the facsimile signature of the Secretary, the taking of depositions;
(7) Admit or exclude evidence;
(8) Hear oral argument on facts or law;
(9) Consolidate hearings upon two or more petitions pertaining to the same order;
(10) Do all acts and take all measures necessary for the maintenance of order at the hearing and the efficient conduct of the proceeding.
(d) Who may act in absence of judge. In case of the absence of the judge or his inability to act, the powers and duties to be performed by him under these rules of practice in connection with a proceeding may, without abatement of the proceeding unless otherwise ordered by the Secretary, be assigned to any other judge.
(e) Disqualification of judge. The judge may at any time withdraw as judge in a proceeding if he deems himself to be disqualified. Upon the filing by an interested person in good faith of a timely and sufficient affidavit of personal bias or disqualification of a judge, the Secretary shall determine the matter as a part of the record and decision in the proceeding, after making such investigation or holding such hearings, or both, as he may deem appropriate in the circumstances.
§ 900.56 Consolidated hearings.
At the discretion of the judge, hearings upon two or more petitions pertaining to the same order may be consolidated, and the evidence taken at such consolidated hearing may be embodied in a single record.
§ 900.57 Intervention.
Intervention in proceedings subject to this subpart shall not be allowed, except that, in the discretion of the Secretary or the judge, any person (other than the petitioner) showing a substantial interest in the outcome of a proceeding shall be permitted to participate in the oral argument and to file a brief.
§ 900.58 Prehearing conferences.
In any proceeding in which it appears that such procedure will expedite the proceeding, the judge, at any time prior to the commencement of or during the course of the hearing, may request the parties or their counsel to appear at a conference before him to consider (a) the simplification of issues; (b) the possibility of obtaining stipulations of fact and of documents which will avoid unnecessary proof; (c) the limitation of the number of expert or other witnesses; and (d) such other matters as may expedite and aid in the disposition of the proceeding. No transcript of such conference shall be made, but the judge shall prepare and file for the record a written summary of the action taken at the conference, which shall incorporate any written stipulations or agreements made by the parties at the conference or as a result of the conference. If the circumstances are such that a conference is impracticable, the judge may request the parties to correspond with him for the purpose of accomplishing any of the objects set forth in this section. The judge shall forward copies of letters and documents to the parties as the circumstances require. Correspondence in such negotiations shall not be a part of the record, but the judge shall submit a written summary for the record if any action is taken.
§ 900.59 Motions and requests.
(a) General. (1) All motions and requests shall be filed with the hearing clerk, except that those made during the course of an oral hearing may be filed with the judge or may be stated orally and made a part of the transcript.
(2) The judge is authorized to rule upon all motions and requests filed or made prior to the transmittal by the hearing clerk to the Secretary of the record as provided in this subpart. The Secretary shall rule upon all motions and requests filed after that time.
(b) Certification of motions. The submission or certification of any motion, request, objection, or other question to the Secretary, as provided in this subpart, shall be in the discretion of the judge.
§ 900.60 Oral hearings before judge.
(a) Time and place. The judge shall set a time and place for hearing and shall file with the hearing clerk a notice stating the time and place of hearing. If any change in the time or place of hearing becomes necessary, it shall be made by the judge, who, in such event, shall file with the hearing clerk a notice of the change. Such notice shall be served upon the parties, unless it is made during the course of an oral hearing and made a part of the transcript.
(b) Appearances – (1) Representation. In any proceeding under the act, the parties may appear in person or by counsel or other representative. The Department, if represented by counsel, shall be represented by an attorney assigned by the General Counsel of the Department, and such attorney shall present or supervise the presentation of the position of the Department.
(2) Debarment of counsel or representative. Whenever, while a proceeding is pending before him, the judge finds that a person acting as counsel or representative for any party to the proceeding is guilty of unethical or unprofessional conduct, the judge may order that such person be precluded from further acting as counsel or representative in such proceeding. An appeal to the Secretary may be taken from any such order, but the proceeding shall not be delayed or suspended pending disposition of the appeal: Provided, That the judge may suspend the proceeding for a reasonable time for the purpose of enabling the client to obtain other counsel or representative. In case the judge has issued an order precluding a person from further acting as counsel or representative in the proceeding, the judge, within a reasonable time thereafter, shall submit to the Secretary a report of the facts and circumstances surrounding the issuance of the order and shall recommend what action the Secretary should take respecting the appearance of such person as counsel or representative in other proceedings before the Secretary. Thereafter, the Secretary may, after notice and an opportunity for hearing, issue such order respecting the appearance of such person as counsel or representative in proceedings before the Secretary as the Secretary finds to be appropriate.
(3) Failure to appear. If the petitioner, after being duly notified, fails to appear at the hearing, he shall be deemed to have authorized the dismissal of the proceeding, without further procedure, and with or without prejudice as the judge may determine. In the event that the petitioner appears at the hearing and no representative of the Department appears, the judge shall proceed ex parte to hear the evidence of the petitioner. Provided, That failure on the part of such representative of the Department to appear at a hearing shall not be deemed to be waiver of the Department’s right to file suggested findings of fact, conclusions and order; to be served with a copy of the judge’s initial decision and to appeal to the Secretary with respect thereto.
(c) Order of proceeding. Except as may be determined otherwise by the judge, the petitioner shall proceed first at the hearing.
(d) Evidence – (1) In general. The hearing shall be publicly conducted, and the testimony given at the hearing shall be reported verbatim.
(i) The testimony of witnesses at a hearing shall be upon oath or affirmation and subject to cross-examination.
(ii) Any witness may, in the discretion of the judge, be examined separately and apart from all other witnesses except those who may be parties to the proceeding.
(iii) The judge shall exclude, insofar as practicable, evidence which is immaterial, irrelevant, or unduly repetitious, or which is not of the sort upon which responsible persons are accustomed to rely.
(2) Objections. If a party objects to the admission or rejection of any evidence or to the limitation of the scope of any examination or cross-examination, or any other ruling of the judge, he shall state briefly the grounds of such objection, whereupon an automatic exception will follow which may be pursued in an appeal pursuant to § 900.65 by the party adversely affected by the judge’s ruling.
(3) Depositions. The deposition of any witness shall be admitted, in the manner hereinafter provided in and subject to the provisions of § 900.61.
(4) Affidavits. Except as is otherwise provided in this subpart, affidavits may be admitted only if the evidence is otherwise admissible and the parties agree (which may be determined by their failure to make timely objections) that affidavits may be used.
(5) Proof and authentication of official records or documents. An official record or document, when admissible for any purpose, shall be admissible in evidence without the production of the person who made or prepared the same. Such record or document shall, in the discretion of the judge, be evidenced by an official publication thereof or by a copy attested by the person having legal custody thereof and accompanied by a certificate that such person has the custody.
(6) Exhibits. All written statements, charts, tabulations, or similar data offered in evidence at the hearing shall, after identification by the proponent and upon a satisfactory showing of the admissibility of the contents thereof, be numbered as exhibits and received in evidence and made a part of the record. Except where the judge finds that the furnishing of copies is impracticable, a copy of each exhibit, in addition to the original, shall be filed with the judge for the use of each other party to the proceeding. The judge shall advise the parties as to the exact number of copies which will be required to be filed and shall make and have noted on the record the proper distribution of the copies. If the testimony of a witness refers to a statute, or to a report, document, or transcript, the judge, after inquiry relating to the identification of such statute, report, document, or transcript, shall determine whether the same shall be produced at the hearing and physically be made a part of the evidence as an exhibit, or whether it shall be incorporated into the evidence by reference. If relevant and material matter offered in evidence is embraced in a report, document, or transcript containing immaterial or irrelevant matter, such immaterial or irrelevant matter shall be excluded and shall be segregated insofar as practicable, subject to the direction of the judge.
(7) Official notice. Official notice will be taken of such matters as are judicially noticed by the courts of the United States and of any other matter of technical, scientific, or commercial fact of established character: Provided, That the parties shall be given adequate notice, at the hearing or by reference in the judge’s report or the tentative order or otherwise, of matters so noticed, and (except where official notice is taken, for the first time in the proceeding, in the final order) shall be given adequate opportunity to show that such facts are erroneously noticed.
(8) Offer of proof. Whenever evidence is excluded from the record, the party offering such evidence may make an offer of proof, which shall be included in the transcript. The offer of proof shall consist of a brief statement describing the evidence to be offered. If the evidence consists of a brief oral statement or of an exhibit, it shall be inserted into the transcript in toto. In such event, it shall be considered a part of the transcript if the Secretary decides that the judge’s ruling in excluding the evidence was erroneous. The judge shall not allow the insertion of such evidence in toto if the taking of such evidence will consume a considerable length of time at the hearing. In the latter event, if on appeal the Secretary decides that the judge erred in excluding the evidence, and that such error was substantial, the hearing shall be reopened to permit the taking of such evidence.
(e) Transcript. Transcripts of hearings shall be made available to any person at actual cost of duplication.
§ 900.61 Depositions.
(a) Procedure in lieu of deposition. Before any party may have testimony taken by deposition, said party shall, if practicable, submit to the other party an affidavit which shall set forth the facts to which the witness would testify, if the deposition should be taken. If, after examination of such affidavit, the other party agrees, or (within 10 days after submission of the affidavit) fails to object, that the affidavit may be used in lieu of the deposition, the judge shall admit the affidavit in evidence and shall not order the deposition to be taken.
(b) Application for taking deposition. Upon the application of a party to the proceeding, the judge may, at any time after the filing of the moving paper, order, under the facsimile signature of the Secretary, the taking of testimony by deposition. The application shall be in writing and shall be filed with the hearing clerk and shall set forth: (1) The name and address of the proposed deponent; (2) the name and address of the person (referred to hereinafter in this section as the judge), qualified under the rules in this part to take depositions, before whom the proposed examination is to be made; (3) the proposed time and place of the examination, which shall be at least 15 days after the date of the mailing of the application; and (4) the reasons why such deposition should be taken.
(c) Judge’s order for taking deposition. If, after the examination of the application, the judge is of the opinion that the deposition should be taken, he shall order its taking. The order shall be filed with the hearing clerk and shall be served upon the parties and shall state: (1) The time and place of the examination (which shall not be less than 10 days after the filing of the order); (2) the name of the judge before whom the examination is to be made; (3) the name of the deponent. The judge and the time and place need not be the same as those suggested in the application.
(d) Qualifications of judge. The deposition shall be taken before the judge, or before a judge authorized by the law of the United States or by the law of the place of the examination to administer oaths, or before a judge authorized by the Secretary to administer oaths.
(e) Procedure on examination. (1) The deponent shall be examined under oath or affirmation and shall be subject to cross-examination. The testimony of the deponent shall be recorded by the judge or by some person under his direction and in his presence. In lieu of oral examination, parties may transmit written interrogatories to the judge prior to the examination and the judge shall propound such interrogatories to the deponent.
(2) The applicant must arrange for the examination of the witness either by oral examination or by written interrogatories. If it is found by the judge, upon the protest of a party to the proceeding, that such party has his residence and his place of business more than 100 miles from the place of the examination and that it would constitute an undue hardship upon such party to be represented at the examination, the applicant will be required to conduct the examination by means of interrogatories. When the examination is conducted by means of interrogatories, copies of the interrogatories shall be served upon the other parties to the proceeding at least five days prior to the date set for the examination, and the other parties shall be afforded an opportunity to file with the judge cross-interrogatories at any time prior to the time of the examination.
(f) Certification by judge. The judge shall certify on the deposition that the deponent was duly sworn by him and that the deposition is a true record of the deponent’s testimony. He shall then securely seal the deposition, together with two copies thereof, in an envelope and mail the same by registered mail to the hearing clerk.
(g) Use of depositions. A deposition ordered and taken in accord with the provisions of this section may be used in a proceeding under the act if the judge finds that the evidence is otherwise admissible and (1) that the witness is dead; or (2) that the witness is at a distance greater than 100 miles from the place of hearing, unless it appears that the absence of the witness was procured by the party offering the deposition; or (3) that the witness is unable to attend or testify because of age, sickness, infirmity, or imprisonment; or (4) that the party offering the deposition has endeavored to procure the attendance of the witness by subpena but has been unable to do so; or (5) that such exceptional circumstances exist as to make it desirable, in the interests of justice, to allow the deposition to be used. If a deposition has been taken, and the party upon whose application it was taken refuses to offer it in evidence, the other party may offer the deposition, or any part thereof, in evidence.
§ 900.62 Subpenas.
(a) Issuance of subpenas. The attendance of witnesses and the production of documentary evidence from any place in the United States on behalf of any party to the proceeding may, by subpena, be required at any designated place of hearing. Subpenas may be issued by the Secretary or by the judge, under the facsimile signature of the Secretary, upon a reasonable showing by the applicant of the grounds, necessity, and reasonable scope thereof.
(b) Application for subpena duces tecum. Subpenas for the production of documentary evidence, unless issued by the judge upon his own motion, shall be issued only upon a certified written application. Such application shall specify, as exactly as possible, the documents desired and shall show their competency, relevancy, and materiality and the necessity for their production.
(c) Service of subpenas. Subpenas may be served (1) by a United States Marshal or his deputy, or (2) by any other person who is not less than 18 years of age, or (3) by registering and mailing a copy of the subpena addressed to the person to be served at his or its last known residence or principal place of business or residence. Proof of service may be made by the return of service on the subpena by the United States Marshal or his deputy; or, if served by an individual other than a United States Marshal or his deputy, by an affidavit of such person stating that he personally served a copy of the subpena upon the person named therein; or, if service was by registered mail, by an affidavit made by the person mailing the subpena that it was mailed as provided in this paragraph and by the signed return post office receipt: Provided, That, if the subpena is issued on behalf of the Department, the return receipt without an affidavit of mailing shall be sufficient proof of service. In making personal service, the person making service shall leave a copy of the subpena with the person subpenaed; the original, bearing or accompanied by the required proof of service, shall be returned to the official who issued the same.
§ 900.63 Fees and mileage.
Witnesses who are subpenaed and who appear in such proceeding, including witnesses whose depositions are taken, shall be paid the same fees and mileage that are paid witnesses in the courts of the United States, and persons taking depositions shall be entitled to the same fees as are paid for like services in the courts of the United States, to be paid by the party at whose request the deposition is taken. Witness fees and mileage shall be paid by the party at whose instance the witnesses appear, and claims therefor, as to witnesses subpenaed on behalf of the Department, shall be proved before the person issuing the subpena, and, as to witnesses subpenaed on behalf of any other party, shall be presented to such party.
§ 900.64 The Judge’s decision.
(a) Corrections to and certification of transcript. (1) At such time as the judge may specify, but not later than the time fixed for filing proposed findings of fact, conclusions and order, or briefs, as the case may be, the parties may file with the judge proposed corrections to the transcript.
(2) As soon as practicable after the filing of proposed findings of fact, conclusions and order, or briefs, as the case may be, the judge shall file with the hearing clerk his certificate indicating any corrections to be made in the transcript, and stating that, to the best of his knowledge and belief, the transcript, as corrected, is a true, correct, and complete transcript of the testimony given at the hearing, and that the exhibits are all the exhibits properly a part of the hearing record. The original of such certificate shall be attached to the original transcript and a copy of such certificate shall be served upon each of the parties by the hearing clerk who shall also enter onto the transcript (without obscuring the text) any correction noted in the certification.
(b) Proposed findings of fact, conclusions, and orders. Within 10 days (unless the judge shall have announced at the hearing a shorter or longer period of time) after the transcript has been filed with the hearing clerk, as provided in paragraph (a) of this section, each party may file with the hearing clerk proposed findings of fact, conclusions, and order, based solely upon the evidence of record, and briefs in support thereof.
(c) Judge’s Decision. The judge, within a reasonable time after the termination of the period allowed for the filing of proposed findings of fact, conclusions,and orders, and briefs in support thereof, shall prepare upon the basis of the record, and shall file with the hearing clerk, his initial decision, a copy of which shall be served by the hearing clerk, upon each of the parties. Such decision shall become final without further proceedings 35 days after the date of service thereof, unless there is an appeal to the Secretary by a party to the proceeding: Provided, however, That no decision shall be final for the purpose of judicial review except a final decision issued by the Secretary pursuant to an appeal by a party to the proceeding.
§ 900.65 Appeals to Secretary: Transmittal of record.
(a) Filing of appeal. Any party who disagrees with a judge’s decision or any part thereof, may appeal the decision to the Secretary by filing an appeal petition with the Hearing Clerk within 30 days after service of said decision upon said party. Each issue set forth in the appeal, and the arguments thereon, shall be separately numbered; shall be plainly and concisely stated; and shall contain detailed citations of the record, statutes, regulations and authorities being relied upon in support thereof. The appeal petition shall be served upon the other party to the proceeding by the hearing clerk.
(b) Argument before Secretary – (1) Oral argument. A party bringing an appeal may request within the prescribed time period for filing such appeal, an opportunity for oral argument before the Secretary. Failure to make such request in writing, within the prescribed time period, shall be deemed a waiver of oral argument. The Secretary, in his discretion, may grant, refuse or limit any request for oral argument on appeal.
(2) Scope of argument. Argument to be heard on appeal, whether oral or in a written brief, shall be limited to the issues raised by the appeal, except that if the Secretary determines that additional issues should be argued, the parties shall be given reasonable notice of such determination, so as to permit preparation of adequate arguments on all the issues to be argued.
(c) Response. Within 20 days after service of an appeal brought by a party to the proceeding, any other party may file a response in support of or in opposition to such appeal.
(d) Transmittal of record. Whenever an appeal is filed by a party to the proceeding, the hearing clerk shall transmit to the Secretary the record of the proceeding. Such record shall include: The pleadings; any motions and requests filed, and the rulings thereon; the transcript of the testimony taken at the hearing, as well as the exhibits filed in connection therewith; any statements filed under the shortened procedure; any documents or papers filed in connection with prehearing conferences; such proposed findings of fact, conclusions, and orders, and briefs in support thereof, as may have been filed in connection with the hearing; the judge’s initial decision; and the appeal petition; briefs in support thereof, and responses thereto as may have been filed in the proceeding.
§ 900.66 Consideration of appeal by the Secretary and issuance of final order.
(a) Consideration of appeal. As soon as practicable after the receipt of the record from the hearing clerk, or, in case oral argument was had, as soon as practicable thereafter, the Secretary, upon the basis of and after due consideration of the record, shall rule on the appeal. If the Secretary decides that no change or modification of the judge’s decision is warranted, he may adopt the Judge’s decision as the final order of the Secretary, preserving any right of the party bringing the appeal to seek judicial review of such decision in the proper forum. At no stage of the proceeding between its institution and the issuance of the order shall the Secretary discuss ex parte the merits of the proceeding with any person who is connected with the proceeding in an advocative or an investigative capacity, or with any representative of such person: Provided, however, That the Secretary may discuss the merits of the proceeding with such a person if all parties to the proceeding, or their representatives, have been given an opportunity to be present. If, notwithstanding the foregoing provisions of this section, a memorandum or other communication from any party, or from any person acting on behalf of any party, which relates to the merits of the proceeding, receives the personal attention of the Secretary (or, if an official other than the Secretary is to issue the order, then of such other official) during the pendency of the proceeding, such memorandum or communication shall be regarded as argument made in the proceeding and shall be filed with the hearing clerk, who shall serve a copy thereof upon the opposite party to file a reply thereto.
(b) Issuance of final order. A final order issued by the Secretary shall be filed with the hearing clerk, who shall serve it upon the parties: Provided, That, if the terms of the order differ substantially from those proposed in the decision of the judge, the Secretary shall, if he deems it advisable to do so, direct that a copy of the order be served upon the parties as a tentative order; and, in such event, opportunity shall be given the parties to file exceptions thereto and written arguments or briefs in support of such exceptions. In such case, if exceptions are filed within a period of time (to be fixed by the Secretary but not to exceed 20 days) following the service of the tentative order, the Secretary shall give consideration, to and shall make such changes in the tentative order as he deems to be appropriate; otherwise, the tentative order shall become final, as of the day following the date of expiration of the period fixed for the filing of exceptions.
§ 900.68 Petitions for reopening hearings; for rehearings or rearguments of proceedings; or for reconsideration of orders.
(a) Petition requisite – (1) Filing; service. A petition for reopening the hearing to take further evidence, or for rehearing or reargument of the proceeding, or for reconsideration of the order shall be made by petition addressed to the Secretary and filed with the hearing clerk, who immediately shall notify and serve a copy thereof upon the other party to the proceeding. Every such petition shall state specifically the grounds relied upon.
(2) Petitions to reopen hearings. A petition to reopen the hearing for the purpose of taking additional evidence may be filed at any time prior to the issuance of the final order. Every such petition shall state briefly the nature and purpose of the evidence to be adduced, shall show that such evidence is not merely cumulative, and shall set forth a good reason why such evidence was not adduced at the hearing.
(3) Petitions to rehear or reargue proceedings, or to reconsider orders. A petition to rehear or reargue the proceeding or to reconsider the final order shall be filed within 15 days after the date of the service of such order. Every such petition shall state specifically the matters claimed to have been erroneously decided, and alleged errors must be briefly stated.
(b) Procedure for disposition of petitions. Within 10 days following the service of any petition provided for in this section, the other party to the proceeding shall file with the hearing clerk an answer thereto. As soon as practicable thereafter, the Secretary shall announce the decision granting or denying the petition. Unless the Secretary shall determine otherwise, the issuance or operation of the order shall not be stayed pending the decision of the Secretary upon the petition. In the event that any such petition is granted by the Secretary, the applicable rules of practice, as set out elsewhere in this subpart, shall be followed.
§ 900.69 Filing; service; extensions of time; effective date of filing; and computation of time.
(a) Filing; number of copies. Except as provided otherwise herein, all documents or papers required or authorized in this subpart to be filed with the hearing clerk shall be filed in quadruplicate: Provided, That, if there are more than two parties to the proceeding, a sufficient number of additional copies shall be filed so as to provide for service upon all the parties to the proceeding. Any document or paper, required or authorized in this subpart to be filed with the hearing clerk, shall, during the course of an oral hearing, be filed with the judge.
(b) Service; proof of service. Copies of all such papers shall be served upon the parties by the hearing clerk, by the judge, or by some other employee of the Department or by a United States Marshal or his deputy. Service shall be made either (1) by delivering a copy of the document or paper to the individual to be served or to a member of the partnership to be served or to the president, secretary, or other executive officer or any director of the corporation, organization, or association to be served, or to the attorney or agent of record of such individual, partnership, corporation, organization, or association; or (2) by leaving a copy of the document or paper at the principal office or place of business of such individual, partnership, corporation, organization, or association, or of his or its attorney or agent of record; or (3) by registering and mailing a copy of the document or paper, addressed to such individual, partnership, corporation, organization, or association, or to his or its attorney or agent of record, at his or its last known principal office, place of business, or residence. Proof of service hereunder shall be made by the affidavit of the person who actually made the service. The affidavit contemplated herein shall be filed with the hearing clerk, and the fact of filing thereof shall be noted on the docket of the proceeding.
(c) Extensions of time. The time for the filing of any documents or papers required or authorized in this subpart to be filed may be extended upon (1) a written stipulation between the parties, or (2) upon the request of a party, by the judge before the transmittal of the record to the Secretary, or by the Secretary at any other time if, in the judgment of the Secretary or the judge, as the case may be, there is good reason for the extension.
(d) Effective date of filing. Any document or paper required or authorized in this subpart to be filed shall be deemed to be filed at the time it is received by the Hearing Clerk.
(e) Computation of time. Each day, including Saturdays, Sundays, and legal public holidays, shall be included in computing the time allowed for filing any document or paper: Provided, That when the time for filing a document or paper expires on a Saturday, Sunday, or legal public holiday, the time allowed for filing the document or paper shall be extended to include the following business day.
§ 900.70 Applications for interim relief.
(a) Filing the application. A person who has filed a petition pursuant to § 900.52 may by separate application filed with the hearing clerk apply to the Secretary for an order postponing the effective date of, or suspending the application of, the marketing order or any provision thereof, or any obligation imposed in connection therewith, pending final determination of the proceeding.
(b) Contents of the application. The application shall contain a statement of the facts upon which the relief is requested, including any facts showing irreparable injury. The application must be signed and sworn to by the petitioner and any facts alleged therein which are not within his personal knowledge shall be supported by affidavits of a person or persons having personal knowledge of such facts or by proper documentary evidence thereof.
(c) Answer to application. Immediately upon receipt of the application, the hearing clerk shall transmit a copy thereof, together with all supporting papers, to the Administrator, who shall, within 20 days, or such other time fixed by the Secretary, after the filing of the application file an answer thereto with the hearing clerk.
(d) Contents of answer. The answer shall contain a statement of the objections, if any, of the Administrator to the application for interim relief, and may be supported by affidavits and documentary evidence.
(e) Transmittal to Secretary. Upon receiving the answer of the Administrator or upon the expiration of the time for filing the answer, the hearing clerk shall transmit to the Secretary for his decision all papers filed in connection with the application.
(f) Hearing and oral argument. The Secretary may, in his discretion, permit oral argument or the taking of testimony in connection with such application. However, unless written request therefor is filed with the hearing clerk prior to the transmittal of the papers to the Secretary, the parties shall be deemed to have waived oral argument and the taking of testimony.
(g) Decision by Secretary. The Secretary may grant or deny the application. Any action taken by the Secretary shall be in the form of an order filed with the hearing clerk and shall contain a brief statement of the reasons for the action taken. The hearing clerk shall cause copies of the order to be served upon the parties.
§ 900.71 Hearing before Secretary.
The Secretary may act in the place and stead of a judge in any proceeding hereunder. When he so acts the hearing clerk shall transmit the record to the Secretary at the expiration of the period provided for the filing of proposed findings of fact, conclusions and orders, and the Secretary shall thereupon, after due consideration of the record, issue his final order in the proceeding: Provided, That he may issue a tentative order in which event the parties shall be afforded an opportunity to file exceptions before the issuance of the final order.
Subpart E – Supplemental Procedural Requirements for Marketing Orders, Marketing Agreements, and Requirements Covering Fruits, Vegetables, and Nuts
§ 900.80 Words in the singular form.
Words in this subpart in the singular form shall be deemed to import the plural, and vice versa, as the case may demand.
§ 900.81 Definitions.
As used in this subpart, the terms as defined in the act shall apply with equal force and effect. In addition, unless the context otherwise requires:
(a) The term Act means Public Act No. 10, 73 Congress (48 Stat. 31) as amended and as reenacted and amended by the Agricultural Marketing Agreement Act of 1937 (50 Stat. 246), as amended.
(b) The term Department means the United States Department of Agriculture.
(c) The term Secretary means the Secretary of Agriculture of the United States, or any officer or employee of the Department to whom authority has heretofore been delegated, or to whom authority may hereafter be delegated, to act in his stead.
(d) The term Administrator means the Administrator of the Agricultural Marketing Service, with power to redelegate, or any officer or employee of the Department to whom authority has been delegated or may hereafter be delegated to act in his stead.
(e) The term proceeding means a proceeding before the Secretary arising under sections 8a, 8b(b), 8c(14), 8e, 10(c) and 10(h).
(f) The term hearing means that part of the proceeding which involves the submission of evidence.
(g) The term marketing agreement means any marketing agreement or any amendment thereto which may be entered into pursuant to section 8b of the act.
(h) The term marketing order means any order or any amendment thereto which may be issued pursuant to section 8c of the act, and after notice and hearing as required by said section.
(i) The term handler means any person who, by the terms of a marketing order or marketing agreement, is subject thereto, or to whom a marketing order or marketing agreement is sought to be made applicable.
(j) The term importer means any person who, by the terms of section 8e of the act, is subject thereto.
(k) The term person means any individual, corporation, partnership, association, or any other business unit.
§ 900.82 Stipulation procedures.
The Administrator, or the Administrator’s representative, may, at any time before the issuance of a complaint seeking a civil penalty under the Act, enter into a stipulation with any handler or importer in accordance with the following procedures:
(a) The Administrator, or the Administrator’s representative, shall give the handler or importer notice of the alleged violation of the applicable marketing order or marketing agreement, or the requirements issued pursuant to 7 U.S.C. 608b(b) and 7 U.S.C. 608e, and an opportunity for a hearing thereon as provided by the Act;
(b) In agreeing to the proposed stipulation, the handler or importer expressly waives the opportunity for a hearing and agrees to pay a specified civil penalty within a designated time;
(c) The Administrator, or the Administrator’s representative, agrees to accept the specified civil penalty in settlement of the particular matter involved if it is paid within the designated time;
(d) In cases where the handler or importer does not pay the specified civil penalty within the designated time, or the handler or importer does not agree to the stipulation, the Administrator may issue an administrative complaint; and
(e) The civil penalty that the Administrator may have proposed in a stipulation agreement shall have no bearing on the civil penalty amount that the Department may seek in a formal administrative proceeding against the same handler or importer for the same alleged violation.
§ 900.83 Conducting Meetings via Electronic Communication or Otherwise.
Notwithstanding any other provisions of a marketing order in this part, administrative bodies of fruit, vegetable, and specialty crop marketing orders, and their committees/subcommittees may, upon due notice to all members and the public:
(a) Conduct meetings by any means of communication available, electronic or otherwise, that effectively assembles members and the public, and facilitates open communication.
(b) Vote by any means of communication available, electronic or otherwise; Provided, That votes cast are verifiable and that quorum and other procedural requirements of each respective marketing order are met.
(c) With the approval of the Secretary, each administrative body may prescribe any additional procedures necessary to carry out the objectives of paragraphs (a) and (b) of this section.
Subpart F – Procedure Governing Meetings To Arbitrate and Mediate Disputes Relating to Sales of Milk or Its Products
§ 900.100 Words in the singular form.
Words in this subpart in the singular form shall be deemed to import the plural, and vice versa, as the case may demand.
§ 900.101 Definitions.
As used in this subpart, the terms as defined in the act shall apply with equal force and effect. In addition, unless the context otherwise requires:
(a) The term act means section 3 of the Agricultural Marketing Agreement Act of 1937, as amended (50 Stat. 248, as amended; 7 U.S.C. 671);
(b) The term Department means the United States Department of Agriculture;
(c) The term Secretary means the Secretary of Agriculture of the United States, or any officer or employee of the Department to whom authority has heretofore been delegated, or to whom authority may hereafter be delegated, to act in his stead;
(d) The term General Counsel means the General Counsel of the Department;
(e) The term Administrator means the Administrator of the Agricultural Marketing Service, with power to redelegate, or any officer or employee of the Department to whom authority has been delegated or may hereafter be delegated to act in his stead;
(f) The term Service means the Agricultural Marketing Service;
(g) The term Division means the Dairy Division of the Service;
(h) The term cooperative means any association, incorporated or otherwise, which is in good faith owned or controlled by producers, or organizations thereof, of milk or its products, and which is bona fide engaged in the collective processing or preparing for market or handling or marketing, in the current of interstate or foreign commerce, of milk or its products;
(i) The term arbitrator means any officer or employee of the Service designated by the Administrator, pursuant to the act, to arbitrate a bona fide dispute with reference to the terms and conditions of the sale of milk or its products between a producer cooperative and purchasers, handlers, processors, or distributors of milk or its products;
(j) The term mediator means any officer or employee of the Service designated by the Administrator, pursuant to the act, to mediate a bona fide dispute with reference to terms and conditions of the sale of milk or its products between a producer cooperative and purchasers, handlers, processors, or distributors of milk or its products;
(k) The term hearing clerk means the hearing clerk, United States Departent of Agriculture, Washington, DC.
§ 900.102 Filing of applications for mediation or arbitration.
All applications for mediation or arbitration, all submissions, and all correspondence regarding mediation or arbitration shall be addressed to the Secretary, attention of the Division.
§ 900.103 Application for mediation.
An application for mediation by a cooperative, shall be in writing and shall include the following information:
(a) Names in full of the parties to the dispute and their addresses;
(b) Description of the cooperative organization and business, including copies of the articles of incorporation or association, by-laws, and membership contract; information regarding the number of shares of outstanding stock and the approximate portion owned by active producers; a statement of the function performed in connection with the collective processing, preparing, handling, or marketing of milk or its products; and data relative to the distribution of membership by States, the distribution by States of plant facilities for collecting, processing, or disposing of milk or its products, and the business operations for the year last past, including the total quantity of milk and its products handled by the applicant and the proportion of that quantity that was sold in States other than the States of production;
(c) Suggested time and place for meeting between parties and mediator.
§ 900.104 Inquiry by the Administrator.
Upon receipt of an application for mediation, the Administrator, through such officers or employees of the Service as he may designate, may make any inquiry which is deemed to be necessary or proper in order to determine whether a bona fide dispute exists.
§ 900.105 Notification.
The Administrator, acting on behalf of the Secretary will notify the applicant as to whether he considers that mediation will effectuate the purpose of the act and as to whether he will mediate.
§ 900.106 Assignment of mediator.
The Director of the Division shall assign a mediator, from the group designated by the Administrator, to act in such capacity.
§ 900.107 Meetings.
All meetings held pursuant to §§ 900.103 to 900.109 shall be held with and under the direction of the mediator.
§ 900.108 Mediator’s report.
The mediator, upon the completion of mediation proceedings, shall submit to the Administrator a complete report on such proceedings.
§ 900.109 Mediation agreement.
An agreement arrived at by mediation shall not become effective until approved by the Secretary, and the Secretary will not approve an agreement if there is evidence of fraud, if there is a lack of evidence to support the agreement, or if the agreement provides for any unfair trade practice.
§ 900.110 Application for arbitration.
An application for arbitration by a cooperative shall be in writing and shall contain the following information:
(a) Names in full of the parties to the dispute and their addresses;
(b) The same information required under § 900.103(b);
(c) Concise statement of dispute to be submitted;
(d) Originals or certified copies of all contracts, if any, involved in the dispute, and of correspondence which has passed between the parties and of any other documents or information relied upon;
(e) Dates before which it is desired that the hearing shall be had and the award shall become effective;
(f) Suggested time and place for arbitration hearing.
The applicant shall send a copy of the application to each other party to the dispute.
§ 900.111 Inquiry by the Administrator.
Upon receipt of an application for arbitration, the Administrator, through such officers or employees of the Service as he may designate, may make any inquiry deemed to be necessary or proper in order to determine whether a bona fide dispute exists, to assist the parties in reducing the dispute to well-defined issues, and to select an arbitrator who would be satisfactory to all parties.
§ 900.112 Notification.
The Administrator, acting on behalf of the Secretary, within a reasonable time after the receipt of an application, will notify the applicant as to whether he will grant the application.
§ 900.113 Submission.
(a)(1) Within a reasonable time after the receipt of the Administrator’s consent to arbitrate, the parties to the dispute shall file with the Administrator a formal submission, which shall contain the following information:
(i) Names in full of the parties;
(ii) Addresses of the parties to whom all notifications and communications concerning the arbitration shall be sent;
(iii) Description of the organization and businesses of all parties to the dispute, including sufficient information to show that the cooperative is a bona fide one, and that the parties are engaged in activities in the current of interstate or foreign commerce;
(iv) Concise statement of the specific questions submitted and a brief outline of the contentions of each party to the dispute, and a statement as to the period of time during which the award shall be in effect, said period to be not less than thirty days from the effective date of the award;
(v) Name of arbitrator;
(vi) Time and place of arbitration, including street address;
(vii) Stipulation by the parties that they will produce any books, records, and correspondence required by the arbitrator as being necessary to a fair determination of the dispute;
(viii) Agreement by the parties that they will consider the award as final and will comply therewith;
(ix) Stipulation by the parties that arbitration is to take place under rules and regulations issued by the Secretary, and that any such rules and regulations pertaining to mediation and arbitration shall be considered a part of the submission;
(x) Stipulation that a stenographic report of the proceedings must be made.
(2) The submission shall be signed by each party before a notary public, and when the signature is that of an agent of a corporation or cooperative association, the same shall be accompanied by evidence of the authority to sign.
(3) A submission may be withdrawn at any time before the award, and any question held by the arbitrator to be a separable question may be withdrawn before award by agreement of all parties. When any question is so withdrawn, the parties shall file with the arbitrator the agreement on that question reached by the parties, showing all the details thereof, and the arbitrator shall include it in the record of the arbitration.
(b) [Reserved]
§ 900.114 Designation of arbitrator.
The Administrator, after receiving the submission, will designate one or more persons to act as arbitrator.
§ 900.115 Hearing.
(a) The arbitrator shall have full discretion to conduct the hearing in such manner as will, in his opinion, enable him to ascertain all the facts in the case.
(b) Parties to the dispute may appear in person or by duly accredited agents and may be represented by counsel.
(c) All relevant and material evidence may be presented. The arbitrator shall not be bound by the legal rules of evidence.
(d) The arbitrator, in the presence of the parties, may require the production of books and records for examination by himself, but not for examination of confidential information by other parties to the dispute unless the party producing the same consents to its examination by the other parties to the dispute.
(e) No evidence offered by one party shall be received except in the presence of all parties unless the parties so agree in a submission specifying the nature of the evidence to be received.
(f) Final determination as to what will be considered confidential information shall be made by the arbitrator.
(g) The arbitrator may request the opinions of economists, marketing specialists, statisticians, lawyers, accountants, and other experts.
(h) When more than two arbitrators are designated to hear a dispute, and they disagree, the award of the majority shall be the final award. If the arbitrators are evenly divided, there shall be no award.
(i) A stenographic record of all the proceedings during an arbitration must be made.
§ 900.116 Award.
(a) An award shall be made within ten days after the close of the hearing.
(1) The award shall be in writing and shall cover only points of dispute raised in the submission.
(2) The arbitrator, in making the award, may use his own technical knowledge in addition to the evidence submitted by the parties.
(3) The award shall state the period during which it shall be in effect, said period to be not less than thirty days from the effective date thereof; and said period may be extended by agreement among the parties upon notification thereof to the Administrator, unless or until the Administrator withdraws his approval.
(4) The arbitrator shall sign the award in the presence of a notary public, or, when more than one arbitrator is designated the arbitrator shall sign in the presence of each other.
(5) Copies of the award shall be delivered to the parties by the Division.
(b) [Reserved]
§ 900.117 Approval of award.
The award shall not become effective until approved by the Secretary, and the Secretary will not approve an award if there is evidence of fraud, or evidence of misconduct upon the part of the arbitrator, or lack of evidence to support the award, or if the award provides for any unfair trade practice.
§ 900.118 Costs.
The parties jointly shall pay for the stenographic record. A copy of the record shall be furnished by the parties to the arbitrator and shall be forwarded by him to the Administrator, ultimately to be filed in the office of the hearing clerk. The arbitrator shall not receive compensation for parties to the dispute.
Subpart G – Miscellaneous Requirements
§ 900.200 Definitions.
As used in this subpart, the terms as defined in the Act shall apply with equal force and effect. In addition, unless the context otherwise requires:
(a) The term Act means Public Act No. 10, 73d Congress (48 Stat. 31), as amended and as reenacted and amended by the Agricultural Marketing Agreement Act of 1937 (50 Stat. 246, 7 U.S.C. 601), as amended;
(b) The term Department means the United States Department of Agriculture;
(c) The term Secretary means the Secretary of Agriculture of the United States, or any officer or employee of the Department to whom authority has heretofore been delegated, or to whom authority may hereafter be delegated, to act in his stead;
(d) The term General Counsel means the General Counsel of the Department;
(e) The term Administrator means the Administrator of the Agricultural Marketing Service, with power to redelegate, or any officer or employee of the Department to whom authority has been delegated or may hereafter be delegated to act in his stead.
(f) The term mail means to transmit either electronically or through a postal or other delivery system, information or a package (e.g., letter or envelope) to a recipient.
(g) The term
(h) The term marketing agreement means any marketing agreement or any amendment thereto which may be entered into pursuant to section 8b of the Act;
(i) The term marketing order means any order or any amendment thereto which may be issued pursuant to section 8c of the Act;
(j) The term person means any individual, corporation, partnership, association, or any other business unit;
(k) The term official means the Secretary, any officer, employee, or other person employed or appointed by the Department, and any agency or agent appointed by the Secretary to administer a marketing agreement or a marketing order, and any agent or employee of any such agency or agent;
(l) The term information means and includes reports, books, accounts, records, and the facts and information contained therein and required to be furnished to or acquired by any official pursuant to the provisions of any marketing agreement or marketing order.
§ 900.201 Investigation and disposition of alleged violations.
Whenever the Administrator has reason to believe that any handler has violated, or is violating, the provisions of any marketing order, he may institute such investigation and, after due notice to such handler, conduct such hearing in order to determine the facts as, in his opinion, are warranted. If, in the opinion of the Administrator and the General Counsel, the facts developed as a result of such investigation or hearing warrant such action, the General Counsel shall refer the matter to the Attorney General for appropriate action.
§ 900.202 Restrictions applicable to Committee personnel.
Members and employees of Federal marketing order boards and committees are immune from prosecution under the United States antitrust laws only insofar as their conduct in administering the respective marketing order is authorized by the Agricultural Marketing Agreement Act of 1937, 7 U.S.C. 601-674, or the provisions of the respective order. Under the antitrust laws, Committee members and employees may not engage in any unauthorized agreement or concerted action that unreasonably restrains United States domestic or foreign commerce. For example, Committee members and employees have no authority to participate, either directly or indirectly, whether on an informal or formal, written or oral basis, in any bilateral or international undertaking or agreement with any competing foreign producer or seller or with any foreign government, agency, or instrumentality acting on behalf of competing foreign producers or sellers to raise, fix, stabilize, or set a floor for commodity prices, or limit the quantity or quality of commodity imported into or exported from the United States. Participation in any such unauthorized agreement or joint undertaking could result in prosecution under the antitrust laws by the United States Department of Justice and/or suit by injured private persons seeking treble damages, and could also result in expulsion of members from the Committee or termination of employment with the Committee.
§ 900.210 Disclosures of information.
All information in the possession of any official which relates to the business or property of any person, and which was furnished by, or obtained from, such person pursuant to the provisions of any marketing agreement or marketing order, shall be kept confidential and shall not be disclosed, divulged, or made public, unless otherwise expressly provided in said marketing agreement or marketing order, or unless said person authorizes said official, in writing, to disclose such information, except that:
(a) Such information may be disclosed, divulged, or made public if it has been obtained from or furnished by a person who is not the person to whose business or property such information relates or an employee of such latter person, or if such information is otherwise required by law to be furnished to an official;
(b) Such information may be furnished to other officials for use in the regular course of their official duties;
(c) Such information may be combined and published in the form of general statistical studies or data in which the identity of the person furnishing such information or from whom it was obtained shall not be disclosed;
(d) Such information may be disclosed upon lawful demand made by the President or by either House of Congress or any committee thereof, or, if the Secretary determines that such disclosure is not contrary to the public interest, such information may be disclosed in response to a subpena by any court of competent jurisdiction.
(e) Such information may be offered in evidence (whether or not it has been obtained from or furnished by the person against whom it is offered) by or on behalf of the Secretary, the United States, or the official who obtained it or to whom it was furnished, in any administrative hearing held pursuant to section 8c(15)(A) of the Act or in any action, suit, or proceeding, civil or criminal, in which the Secretary or the United States or any such official is a party, and:
(1) Which is instituted (i) for the purpose of enforcing or restraining the violation of any marketing agreement or marketing order, or (ii) for the purpose of collecting any penalty or forfeiture provided for in the Act, or (iii) for the purpose of collecting any monies due under a marketing agreement or marketing order, or
(2) In which the validity of any marketing agreement or marketing order, or any provision of either, is challenged or involved.
(f) Such information may be furnished to the duly constituted authorities of any State, pursuant to a written agreement made under authority of section 10(i) of the Act, to the extent that such information is relevant to transactions within the regulatory jurisdiction of such authorities.
§ 900.211 Penalties.
Any official who shall have violated the provisions of § 900.210 by wilfully divulging, disclosing, or making public any information acquired by or furnished to or in the possession or custody of such official pursuant to the provisions of a marketing agreement or marketing order shall be subject to a penalty of the amount specified at § 3.91(b)(1) (viii) of this title for each offense. (The civil penalty provided in this section is prescribed under the authority contained in sec. 10(c) of the Act (7 U.S.C. 610(c)); this provision is not intended to supersede the provision in section 8d(2) of the Act (7 U.S.C. 608d(2)) for criminal liability and removal from office.)
Subpart H – Procedure for Conduct of Referenda To Determine Producer Approval of Milk Marketing Orders To Be Made Effective Pursuant to Agricultural Marketing Agreement Act of 1937, as Amended
§ 900.300 General.
Unless otherwise prescribed, the procedure contained in this subpart shall be applicable to each producer referendum conducted for the purpose of ascertaining whether the issuance by the Secretary of a milk marketing order is approved or favored, as required under the applicable provisions of the Agricultural Marketing Agreement Act of 1937, as amended (48 Stat. 31, as amended, 7 U.S.C. 601-674). The procedure in this subpart replaces the procedure for conducting similar referenda (15 FR 5177) issued August 7, 1950.
§ 900.301 Definitions.
As used in this subpart and in all supplementary instructions, forms, and documents, unless the context or subject matter otherwise requires, the following terms shall have the following meanings:
(a) Act. Act means Public Act No. 10, 73d Congress (48 Stat. 31), as amended, and as re-enacted and amended by the Agricultural Marketing Agreement Act of 1937 (50 Stat. 246), as amended.
(b) Department. Department means the United States Department of Agriculture.
(c) Secretary. Secretary means the Secretary of Agriculture of the United States, or any officer or employee of the Department to whom authority has heretofore been delegated, or to whom authority may hereafter be delegated, to act in his stead.
(d) Administrator. Administrator means the Administrator of the Agricultural Marketing Service, with power to redelegate, or any officer or employee of the Department to whom authority has been delegated or may hereafter be delegated to act in his stead.
(e) Person. Person includes any individual, partnership, corporation, association, and any other business unit.
(f) Order. Order means the marketing order (including an amendatory order) with respect to which the Secretary has directed that a referendum be conducted.
(g) Producer. Producer means any person who is a dairy farmer and who, during the representative period, met the requirements of the term producer as defined in the order had such order been in effect during the representative period.
(h) Handler. Handler means any person who, during the representative period, met the requirements of the term handler as defined in the order had such order been in effect during the representative period.
(i) Referendum agent. Referendum agent means the person designated by the Secretary to conduct the referendum.
(j) Representative period. Representative period means the period designated by the Secretary pursuant to section 8c of the Act (7 U.S.C. 608c).
(k) Cooperative association. Cooperative association means any association of producers that the administrator has found to be qualified pursuant to section 608c(12) of the Act.
§ 900.302 Associations eligible to vote.
(a) Any association of producers, not previously determined to be a cooperative association may file an application for a determination as to whether it is a cooperative association and thus eligible to vote in a referendum. Such application shall be filed with the Administrator at least 60 days prior to the holding of the referendum: Provided, however, That the Administrator may permit the filing of an application in less than 60 days when, in the opinion of the Administrator, such filing would not delay the conduct of the referendum.
(b) Within a time fixed by the referendum agent, but not later than 5 days prior to the final date for balloting, each cooperative association electing to vote shall, upon the request of the referendum agent, furnish to him a certified list showing the name and address of each producer for whom it claims the right to vote and the plant at which such person’s milk was received during the representative period.
§ 900.303 Conduct of referendum.
The referendum shall be conducted by mail in the manner prescribed in this subpart. The referendum agent may utilize such personnel or agencies of the Department as are deemed necessary by the Administrator.
§ 900.304 Who may vote.
(a) Each producer shall be entitled to only one vote and to cast one ballot in each referendum; and no person who may claim to be a producer shall be refused a ballot. Each producer casting more than one ballot with conflicting votes shall thereby invalidate all ballots cast by such producer in such referendum. Each ballot cast shall contain a certification by the person casting the ballot that he is a producer.
(b) Except as provided in section 8c(5)(B) of the act, as amended, any cooperative association eligible under § 900.302 may, if it elects to do so, vote and cast one ballot for producers who are members of, stockholders in, or under contract with, such cooperative association. A cooperative association shall submit, with its ballot, a certified copy of the resolution authorizing the casting of the ballot. Each such cooperative association entitled to vote in a referendum casting more than one ballot with conflicting votes shall thereby invalidate all ballots cast by such voter in such referendum.
(c) Voting by proxy or agent, or in any manner, except by the producer or cooperative association will not be permitted; however, a producer which is other than an individual may cast its ballot by a person who is duly authorized and such ballot shall contain a certification by such person that the person on whose behalf the ballot is cast is a producer.
§ 900.305 Duties of referendum agent.
The referendum agent shall also:
(a) For purposes of mailing, prepare a record of producers which will disclose the name of each such person, his address, the name of the handler who received the producer’s milk during the representative period, and the name of the cooperative association, if any, which claims the right to vote for the producer. Such record may be compiled from readily available sources, including the following:
(1) Records of the Department;
(2) Producer records supplied by handlers;
(3) Health authority records;
(4) Certifications signed by dairy farmers who claim to be producers;
(5) Any other reliable sources of information which may be available to the referendum agent.
(b) Apply, as a guide, the following criteria in preparing a record of producers:
(1) When the order requires approval by an appropriate health authority before a person meets the definition of producer, only those persons having such approval and who otherwise meet the definition may be regarded as producers. When the definition of producer requires the shipment of milk to a handler or a plant as well as health authority approval, only those persons having such approval and whose milk was received by a handler or at a plant may be regarded as producers.
(2) When the order requries shipment to a handler or to a plant, without regard to health authority approval, a person may not be regarded as a producer, except as provided in paragraph (b)(6) of this section, unless his name appears on the handler’s producer records.
(3) In the case of a producer that is other than an individual, the business unit shall be regarded as the producer.
(4) No person may be included in the record more than once although he may operate more than one farm, hold more than one health authority approval, or appear on more than one handler’s producer records.
(5) In the event the health authority records are not available, are inaccurate, or are incomplete, the appearance of the producer’s name on a handler’s records as an approved producer shall be prima facie evidence of health authority approval.
(6) In the event any handler refuses or fails to make his records available to the referendum agent, a certification signed by the producer shall be regarded by the referendum agent as prima facie evidence that such person is eligible to vote.
(c) Verify the information supplied by each cooperative association which wishes to vote on behalf of producers, as follows:
(1) Examine the records of the cooperative association for the purpose of ascertaining whether each producer claimed by the cooperative association is a member of, stockholder in, or under contract with the cooperative association.
(2) Identify the persons ascertained to be members of, stockholders in, or under contract with a cooperative association which wishes to vote on behalf of its producers with the names of producers which appear on the record compiled pursuant to paragraph (a) of this section.
(3) In determining whether a cooperative association may vote on behalf of a producer the following criteria shall be used:
(i) The cooperative association may vote for each producer who is a member of, stockholder in, or under contract with such cooperative association on the date of the order directing that the referendum be conducted.
(ii) The cooperative association may cast only one ballot for all such producers.
(iii) Whenever more than one cooperative association claims the right to vote for a producer only the cooperative association which furnished evidence satisfactory to the referendum agent that such association was in fact marketing the milk of the producer on the date of the referendum order may vote for such producer.
§ 900.306 Notice of the referendum.
(a) The referendum agent shall at least 5 days prior to the final date for balloting:
(1) Mail to each cooperative association which has elected to cast a ballot on behalf of its producers and to each of all other known producers, a notice of the referendum which will include instructions for completing the ballot, a statement as to the time within which the ballot must be mailed to, and received by, the referendum agent, a copy of the final decision, and a ballot containing a description of the terms and conditions of the order.
(2) Give public notice of the referendum:
(i) By furnishing press releases and other information to available media of public information (including but not limited to press, radio, and television facilities) serving the area, announcing the time within which ballots must be completed and mailed to and received by the referendum agent, eligibility requirements, where additional information may be procured, and other pertinent information; and
(ii) By such other means as said agent may deem advisable.
(b) [Reserved]
§ 900.307 Time for voting.
There shall be no voting except within the time specified by the referendum agent as stated in the notice of the referendum.
§ 900.308 Tabulation of ballots.
(a) General. The referendum agent shall verify the information supplied with each ballot. If he ascertains that the person who cast the ballot was eligible to do so, that the ballot is complete and was mailed and received within the prescribed time, the ballot shall be eligible to be counted. If the referendum agent ascertains that the person who cast the ballot was not eligible to do so, or if the producer who cast the ballot was a member of, stockholder in, or under contract with a cooperative association which cast a valid ballot, or if the ballot is not completed or cast in accordance with instructions, or if the ballot was not mailed to or received by the referendum agent within the prescribed time, the ballot shall be marked “disqualified” with a notation on the ballot as to the reason for the disqualification. The total number of ballots cast, including the disqualified ballots, shall be ascertained. The number of eligible ballots cast approving and the number of eligible ballots cast disapproving the issuance of the order shall also be ascertained. The ballots marked “disqualified” shall not be considered as approving or disapproving the issuance of the order, and the persons who cast such ballots shall not be regarded as participating in the referendum.
(b) Individual-handler pool provisions. Whenever separate approval of the pooling provisions of the order is required by section 608c(5)(B)(i) of the act, any ballot which approves the issuance of the order and disapproves the pooling provisions, or approves the pooling provisions and disapproves the issuance of the order, shall be disqualified; and the referendum agent shall mark the ballot accordingly.
(c) Record of results of the referendum. The referendum agent shall notify the Administrator of the number of eligible ballots cast, the count of the votes, the number of disqualified ballots and the number of producers who were eligible to cast ballots. The referendum agent shall seal the ballots, including those marked “disqualified”, the list of eligible voters and tabulation of ballots, and shall transmit to the Administrator a complete detailed report of all action taken in connection with the referendum together with all the ballots cast and all other information furnished to or compiled by the referendum agent.
(d) Announcement of the results of the referendum. Announcement of the results of the referendum will be made only at the direction of the Secretary. The referendum agent, or others who assist in the referendum, shall not disclose the results of the referendum or the total number of ballots cast.
§ 900.309 Confidential information.
The ballots cast, the identity of any person who voted, or the manner in which any person voted and all information furnished to, compiled by, or in the possession of the referendum agent, shall be regarded as confidential.
§ 900.310 Supplementary instructions.
The Administrator is authorized to issue instructions and to prescribe forms and ballots, not inconsistent with the provisions of this subpart, to govern the conduct of referenda by referendum agents.
§ 900.311 Submittals or requests.
Interested persons may secure information or make submittals or requests to the Administrator with respect to the provisions contained in this subpart.
Subpart I – Procedure for Determining the Qualification of Cooperative Milk Marketing Associations
§ 900.350 General statement.
Cooperative marketing associations apply for qualification by the Secretary under the Federal milk order program for certain privileges and exemptions. These privileges and exemptions are expressed in the Agricultural Marketing Agreement Act of 1937 (50 Stat. 246) as amended, and the milk marketing orders issued pursuant to its provisions.
§ 900.351 Applications for qualification.
Any association of producers may apply for determinations as to whether it is a qualified cooperative association with authority to represent producers in order referendums; has authorization to collect payment from handlers for members’ milk; and is rendering specified marketing services to producers. Applicant associations should supply information for these determinations, using as a guide Application Form DA-25. The application form may be obtained from the Dairy Division, Agricultural Marketing Service, United States Department of Agriculture, Washington, DC 20250. Determinations required of the Secretary of Agriculture, or the Administrator of the Agricultural Marketing Service, by delegation are made by the Director of the Dairy Division. Once issued they are valid until amended, suspended or terminated.
§ 900.352 Confidential information.
The documents and other information submitted by an applicant association and otherwise obtained by investigation, examination of books, documents, papers, records, files and facilities, and in reports filed subsequent to initial determinations of qualification, shall be regarded as confidential and shall be governed by § 900.210.
§ 900.353 Qualification standards.
Statutory requirements for qualification of coopertive associations are provided in subsections (5) and (12) of section 608c of the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601 et seq.). The association must: (a) Be a cooperative marketing association of producers, qualified under the provisions of the Act of Congress of February 18, 1922, as amended, known as the “Capper-Volstead Act,” (7 U.S.C. 291, 292); (b) have its entire organization and all of its activities under the control of its members; (c) have full authority in the sale of its members’ milk; and (d) be engaged in making collective sales or marketing of milk or milk products for the producers thereof. Qualification for exemption from deductions for marketing service payments under specific marketing orders and payment for milk of members under specific orders shall be determined in accordance with the terms of the respective marketing orders.
§ 900.354 Inspection and investigation.
The Secretary of Agriculture, or his duly authorized representative, shall have the right, at any time after an application is received, to examine all books, documents, papers, records, files and facilities of the association, to verify any of the information submitted and to procure such other information as may be required to determine whether the association is qualified in accordance with its application.
§ 900.355 Annual reporting.
Determinations of qualification for privileges and exemptions are subject to amendment, termination or suspension if the association does not currently meet the qualification standards. An association found to be qualified pursuant to the Act is required to file an annual report after its annual meeting has been held following the close of its fiscal year. Form DA-24 is used for this purpose. The report form is available at the Dairy Division, Agricultural Marketing Service, U.S. Department of Agriculture, Washington, DC 20250. The association is required to file a copy of its report with the Dairy Division at Washington and with the market administrator of each order under which it operates.
§ 900.356 Listing of qualified associations.
A copy of each determination of qualification is furnished to the respective association. Copies are also filed in the Dairy Division, Agricultural Marketing Service, and with the Hearing Clerk, Office of the Secretary, U.S. Department of Agriculture, Washington, DC 20250, where they are available for public inspection. A list of qualified associations engaged in marketing milk under a particular milk marketing order is maintained at the office of the market administrator of the order.
§ 900.357 Denial of application; suspension or revocation of determination of qualification.
Any cooperative association whose application has been wholly or partially denied, or whose determination of qualification has been wholly or partly revoked or suspended, may petition the Secretary for a review of such action. Such petition shall state facts relevant to the matter for which review is sought. After due notice to such cooperative association, the Director of the Dairy Division, or in his absence the Acting Director, shall hold, in the manner hereinafter specified, an informal hearing.
(a) Notice. Notice shall be given in writing and shall be mailed to the last known address of the association, or of an officer thereof, at least 3 days before the date set for a hearing. Such notice shall contain: A statement of the time and place of the hearing, said place to be as convenient to the association as can reasonably be arranged, and may contain a statement of the reason for calling the hearing and the nature of the questions upon which evidence is desired or upon which argument may be presented.
(b) Parties. Hearings are not to be public and are to be attended only by representatives of the association and of the Government, and such other persons as either the association or the Government desires to have appear for purposes of submitting information or as counsel.
(c) Conduct of hearing. The Director or Acting Director of the Dairy Division, or a person designated by him, shall preside at the hearing. The hearing shall be conducted in such manner as will be most conducive to the proper disposition of the matter. Written statements or briefs may be filed by the association within the time specified by the presiding officer.
(d) Preliminary report. The presiding officer shall prepare a preliminary report setting forth a recommendation as to what action shall be taken and the basis for such action. A copy of said report shall be served upon the association by mail or in person. The association may file exceptions to said report within 10 days after service thereof.
(e) Final report. After due consideration of all the facts and the exceptions, if any, the Director of the Dairy Division shall issue a final report setting forth the action to be taken and the basis for such action.
Subpart J – Procedure for the Conduct of Referenda in Connection With Marketing Orders for Fruits, Vegetables, and Nuts Pursuant to the Agricultural Marketing Agreement Act of 1937, as Amended
§ 900.400 General.
Referenda for the purpose of ascertaining whether the issuance by the Secretary of Agriculture of a marketing order to regulate the handling of any fruit, vegetable, or nut, or product thereof, or the continuance or termination of such an order, is approved or favored by producers or processors shall, unless supplemented or modified by the Secretary, be conducted in accordance with this subpart.
§ 900.401 Definitions.
(a) Act means Public Act No. 10, 73d Congress (48 Stat. 31), as amended, and as reenacted and amended by the Agricultural Marketing Agreement Act of 1937 (50 Stat. 246), as amended (7 U.S.C. 601-674).
(b) Secretary means the Secretary of Agriculture of the United States, or any officer or employee of the Department to whom authority has heretofore been delegated, or to whom authority may hereafter be delegated, to act in his stead; and Department means the United States Department of Agriculture.
(c) Administrator means the Administrator of the Agricultural Marketing Service, with power to redelegate, or any officer or employee of the Department to whom authority has been delegated or may hereafter be delegated to act in his stead.
(d) Order means the marketing order (including an amendatory order) with respect to which the Secretary has directed that a referendum be conducted.
(e) Referendum agent means the individual or individuals designated by the Secretary to conduct the referendum.
(f) Representative period means the period designated by the Secretary pursuant to section 8c of the act (7 U.S.C. 608c).
(g) Person means any individual, partnership, corporation, association, or other business unit. For the purpose of this definition, the term partnership includes (1) a husband and wife who have title to, or leasehold interest in, land as tenants in common, joint tenants, tenants by the entirety, or, under community property laws, as community property, and (2) so-called joint ventures, wherein one or more parties to the agreement, informal or otherwise, contributed capital and others contribute labor, management, equipment, or other services, or any variation of such contributions by two or more parties, so that it results in the growing of the commodity for market and the authority to transfer title to the commodity so produced.
(h) Producer means any person defined as a producer in the order who: (1) Owns and farms land, resulting in his ownership of the commodity produced thereon; (2) Rents and farms land, resulting in his ownership of all or a portion of the commodity produced thereon; or (3) Owns land which he does not farm and, as rental for such land, obtains the ownership of a portion of the commodity produced thereon. Ownership of, or leasehold interest in, land and the acquisition, in any manner other than as hereinbefore set forth, of legal title to the commodity grown thereon shall not be deemed to result in such owners or lessees becoming producers.
§ 900.402 Voting.
(a) Each person who is a producer, as defined in this subpart, at the time of the referendum and who also was a producer during the representative period, shall be entitled to only one vote in the referendum, except that: (1) In a landlord-tenant relationship, where in each of the parties is a producer, each such producer shall be entitled to one vote in the referendum; and (2) a cooperative association of producers, bona fide engaged in marketing the commodity or product thereof proposed to be regulated, or in rendering services for or advancing the interest of the producers of such commodity or product, may, if it elects to do so, vote, both by number and total volume, for the producers who are members of, stockholders in, or under contract with such association.
(b) Whenever, as required by the act, processors vote on the issuance of an order, each processor who is engaged in canning or freezing within the production area of the commodity covered by the order shall be entitled to vote in the referendum the quantity of such commodity canned or frozen within the production area for market by him during the representative period determined by the Secretary.
(c) Proxy voting is not authorized but an officer or employee of a corporate producer, processor or cooperative association, or an administrator, executor or trustee of a producing estate may cast a ballot on behalf of such producer, processor, estate, or cooperative association. Any individual so voting in a referendum shall certify that he is an officer or employee of the producer, processor, or cooperative association, or an administrator, executor, or trustee of a producing estate, and that he has the authority to take such action. Upon request of the referendum agent, the individual shall submit adequate evidence of such authority.
(d) Each producer, cooperative association of producers, and processor entitled to vote in a referendum shall be entitled to cast one ballot in the referendum. Each producer, cooperative association of producers, and processor casting more than one ballot with conflicting votes shall thereby invalidate all ballots cast by such producer, cooperative association of producers, or processor in such referendum.
§ 900.403 Instructions.
The referendum agent shall conduct the referendum, in the manner herein provided, under supervision of the Administrator. The Administrator may prescribe additional instructions, not inconsistent with the provisions hereof, to govern the procedure to be followed by the referendum agent. Such agent shall:
(a) Determine the time of commencement and termination of the period of the referendum, and the time prior to which all ballots must be cast.
(b) Determine whether ballots may be cast by mail, at polling places, at meetings of producers or processors, or by any combination of the foregoing.
(c) Provide ballots and related material to be used in the referendum. Ballot material shall provide for recording essential information for ascertaining:
(1) Whether the person voting, or on whose behalf the vote is cast, is an eligible voter, and
(2) The total volume (i) produced for market during the representative period, or (ii) canned or frozen for market during the representative period.
(d) Give reasonable advance notice of the referendum (1) by utilizing without advertising expense available media of public information (including, but not being limited to, press and radio facilities) serving the production area, announcing the dates, places, or methods of voting, eligibility requirements, and other pertinent information, and (2) by such other means as said agent may deem advisable.
(e) Make available to producers and the aforesaid cooperative associations which indicate to the agent their intentions to vote, and to processors when required, instructions on voting, appropriate ballot and certification forms, and, except in the case of a referendum on the termination or continuance of an order, the text of the proposed order and a summary of its terms and conditions: Provided, That no person who claims to be qualified to vote shall be refused a ballot.
(f) If ballots are to be cast by mail, cause all the material specified in paragraph (e) of this section to be mailed to each producer (and processor when required) whose name and address is known to the referendum agent.
(g) If ballots are to be cast at polling places or meetings, determine the necessary number of polling or meeting places, designate them, announce the time of each meeting or the hours during which each polling place will be open, provide the material specified in paragraph (e) of this section, and provide for appropriate custody of ballot forms and delivery to the referendum agent of ballots cast.
(h) At the conclusion of the referendum, canvass the ballots, tabulate the results, and, except as otherwise directed, report the outcome to the Administrator and promptly thereafter submit the following:
(1) All ballots received by the agent and appointees, together with a certificate to the effect that the ballots forwarded are all of the ballots cast and received by such persons during the referendum period;
(2) A list of all challenged ballots deemed to be invalid; and
(3) A tabulation of the results of the referendum and a report thereon, including a detailed statement explaining the method used in giving publicity to the referendum and showing other information pertinent to the manner in which the referendum was conducted.
§ 900.404 Subagents.
The referendum agent may appoint any person or persons deemed necessary or desirable to assist said agent in performing his functions hereunder. Each person so appointed may be authorized by said agent to perform, in accordance with the requirements herein set forth, any or all of the following functions (which, in the absence of such appointment, shall be performed by said agent):
(a) Give public notice of the referendum in the manner specified herein;
(b) Preside at a meeting where ballots are to be cast or as poll officer at a polling place;
(c) Distribute ballots and the aforesaid texts to producers (and to processors when required) and receive any ballots which are cast; and
(d) Record the name and address of each person receiving a ballot from, or casting a ballot with, said subagent and inquire into the eligibility of such person to vote in the referendum.
§ 900.405 Ballots.
The referendum agent and his appointees shall accept all ballots cast; but, should they, or any of them, deem that a ballot should be challenged for any reason, said agent or appointee shall endorse above his signature, on said ballot, a statement to the effect that such ballot was challenged, by whom challenged, the reasons therefor, the results of any investigations made with respect thereto, and the disposition thereof. Invalid ballots shall not be counted.
§ 900.406 Referendum report.
Except as otherwise directed, the Administrator shall prepare and submit to the Secretary a report on results of the referendum, the manner in which it was conducted, the extent and kind of public notice given, and other information pertinent to analysis of the referendum and its results.
§ 900.407 Confidential information.
All ballots cast and the contents thereof (whether or not relating to the identity of any person who voted or the manner in which any person voted) and all information furnished to, compiled by, or in possession of, the referendum agent shall be treated as confidential.
Subpart K – Public Information
Availability of Program Information, Staff Manuals and Instructions, and Related Material
§ 900.500 General.
This subpart is issued in accordance with the regulations of the Secretary of Agriculture in part 1, subpart A, of subtitle A of this title (7 CFR 1.1 through 1.16), and appendix A thereto, implementing the Freedom of Information Act (5 U.S.C. 552). The Secretary’s regulations, as implemented by the regulations of this subpart, govern the availability of records of AMS to the public.
§ 900.501 Public inspection and copying.
(a) Facilities for public inspection and copying of the indexes and materials required to be made available under § 1.2(a) of this title will be provided by AMS during normal information should be made to the Freedom of Information Act Officer at the following address:
(b) Copies of such material may be obtained in person or by mail. Applicable fees for copies will be charged in accordance with the regulations prescribed by the Director, Office of Operations and Finance, USDA.
§ 900.502 Indexes.
Pursuant to the regulations in § 1.4(b) of this title, AMS will maintain and make available for public inspection and copying current indexes of all material required to be made available in § 1.2(a) of this title. Notice is hereby given that publication of these indexes is unnecessary and impractical, since the material is voluminous and does not change often enough to justify the expense of publication.
§ 900.503 Request for records.
(a) Requests for records under 5 U.S.C. 552(a)(3) shall be made in accordance with § 1.3(a) of this title. Authority to make determinations regarding initial requests in accordance with § 1.4(c) of this title is delegated to the Freedom of Information Act Officer of AMS. Requests should be submitted to the FOIA Officer at the following address:
(b) The request shall identify each record with reasonable specificity as prescribed in § 1.3 of this title.
(c) The FOIA Officer is authorized to receive requests and to exercise the authority to (1) make determinations to grant requests or deny initial requests, (2) extend the administrative deadline, (3) make discretinary release of exempt records, and (4) make determinations regarding charges pursuant to the fee schedule.
§ 900.504 Appeals.
Any person whose request under § 900.503 above is denied shall have the right to appeal such denial in accordance with § 1.3(e) of this title. Appeals shall be addressed to the Administrator, Agricultural Marketing Service, U.S. Department of Agriculture, Washington, DC 20250.
Subpart L – Information Collection
§ 900.600 General.
This subpart shall contain such requirements as pertain to the information collection provisions under the Paperwork Reduction Act of 1995.
§ 900.601 OMB control numbers assigned pursuant to the Paperwork Reduction Act.
(a) Purpose. This section collects and displays the control numbers assigned to information collection requirements by the Office of Management and Budget contained in 7 CFR parts 905 through 998 under the Paperwork Reduction Act of 1995.
(b) Display.
| 7 CFR part where identified and described | Current OMB control No. |
|---|---|
| 905, Florida Oranges, Grapefruit Tangerines, Tangelos | 0581-0094 |
| 906, Texas Oranges & Grapefruit | 0581-0068 |
| 911, Florida Limes | 0581-0091 |
| 915, Florida Avocados | 0581-0078 |
| 916, California Nectarines | 0581-0072 |
| 917, California Pears and Peaches | 0581-0080 |
| 920, California Kiwifruit | 0581-0149 |
| 922, Washington Apricots | 0581-0095 |
| 923, Washington Sweet Cherries | 0581-0133 |
| 924, Washington-Oregon Fresh Prunes | 0581-0134 |
| 925, S.E. California Desert Grapes | 0581-0109 |
| 927, Oregon-Washington-California Winter Pears | 0581-0089 |
| 928, Hawaiian Papayas | 0581-0102 |
| 929, Cranberries Grown in Designated States | 0581-0103 |
| 930, Red Tart Cherries | 0581-0177 |
| 931, Oregon-Washington Bartlett Pears | 0581-0092 |
| 932, California Olives | 0581-0142 |
| 945, Idaho-Eastern Oregon Potatoes | 0581-0178 |
| 946, Washington Potatoes | 0581-0178 |
| 947, Oregon-California Potatoes | 0581-0178 |
| 948, Colorado Potatoes | 0581-0178 |
| 953, Southeastern Potatoes | 0581-0178 |
| 955, Vidalia Onions | 0581-0178 |
| 956, Walla Walla Onions | 0581-0178 |
| 958, Idaho-Oregon Onions | 0581-0178 |
| 959, South Texas Onions | 0581-0178 |
| 966, Florida Tomatoes | 0581-0178 |
| 979, South Texas Melons | 0581-0178 |
| 981, California Almonds | 0581-0071 |
| 982, Oregon-Washington Hazelnuts | 0581-0178 |
| 984, California Walnuts | 0581-0178 |
| 985, Spearmint Oil | 0581-0065 |
| 987, California Dates | 0581-0178 |
| 989, California Raisins | 0581-0178 |
| 993, California Dried Prunes | 0581-0178 |
| 997, Domestic Peanuts Not Covered Under the Peanut Marketing Agreement | 0581-0163 |
| 998, Domestic Peanuts Covered Under the Peanut Marketing Agreement | 0581-0067 |
Subpart M – Assessment of Exemptions
§ 900.700 Exemption from assessments.
(a) This section specifies criteria for identifying persons eligible to obtain an exemption from the portion of the assessment used to fund marketing promotion activities under a marketing order and the procedures for applying for such an exemption under 7 CFR parts 905, 906, 915, 922, 923, 925, 927, 929, 930, 932, 948, 955, 956, 958, 959, 966, 981, 982, 984, 985, 987, 989, 993, and such other parts (included in 7 CFR parts 905 through 998) covering marketing orders for fruits, vegetables, and specialty crops as may be established or amended to include market promotion. For the purposes of this section, the term “assessment period” means fiscal period, fiscal year, crop year, or marketing year as defined under these parts; the term “marketing promotion” means marketing research and development projects or marketing promotion, including paid advertising designed to assist, improve, or promote the marketing, distribution, or consumption of the applicable commodity.
(b) A handler who operates under an approved National Organic Program (7 CFR part 205) (NOP) organic handling system plan and is subject to assessments under a part or parts specified in paragraph (a) of this section may be exempt from the portion of the assessment applicable to marketing promotion, including paid advertising, provided that:
(1) Only agricultural commodities certified as “organic” or “100 percent organic” (as defined in the NOP) are eligible for exemption;
(2) The exemption shall apply to all certified “organic” or “100 percent organic” (as defined in the NOP) products of a handler regardless of whether the agricultural commodity subject to the exemption is handled by a person that also handles conventional or nonorganic agricultural products of the same agricultural commodity as that for which the exemption is claimed;
(3) The handler maintains a valid certificate of organic operation as issued under the Organic Foods Production Act of 1990 (7 U.S.C. 6501-6522)(OFPA) and the NOP regulations issued under OFPA (7 CFR part 205);
(4) Any handler so exempted shall continue to be obligated to pay assessments under such part or parts specified that are associated with any agricultural products that do not qualify for an exemption under this section; and
(5) For exempted products, any handler so exempted shall be obligated to pay the portion of the assessment associated with the other authorized activities under such part or parts other than marketing promotion, including paid advertising.
(c) Assessment exemption application. (1) To be exempt from paying assessments for these purposes under a part or parts listed in paragraph (a) of this section, the handler shall submit an application to the board or committee established under the applicable part or parts prior to or during the assessment period. This application, Form FV-649, “Certified Organic Handler Application for Exemption from Market Promotion Assessments Paid Under Federal Marketing Orders,” shall include:
(i) The date, applicable committee or board, and Federal marketing order number;
(ii) The applicant’s full name, company name, address, telephone and fax numbers, and email address;
(iii) Certification that the applicant maintains a valid certificate of organic operation under the OFPA and the NOP;
(iv) Certification that the applicant handles or markets organic products eligible to be labeled “organic” or “100 percent organic” under the NOP;
(v) Certification that the applicant is otherwise subject to assessments under the Federal marketing order program for which the exemption is requested;
(vi) The number of organic certified producers for whom they handle or market product (including the applicant);
(vii) A requirement that the applicant attach a copy of their certificate of organic operation and all applicable producer certificates of organic operation issued by a USDA-accredited certifying agent under the OFPA and the NOP;
(viii) Certification, as evidenced by signature and date, that all information provided by the applicant is true; and
(ix) Such other information as the committee or board may require, with the approval of the Secretary.
(2) The handler shall file the application with the committee or board, prior to or during the applicable assessment period, and annually thereafter, as long as the handler continues to be eligible for the exemption. If the person complies with the requirements of this section and is eligible for an assessment exemption, the committee or board will approve the exemption request and provide written notification of such to the applicant within 30 days. If the application is disapproved, the committee or board will provide written notification of the reason(s) for such disapproval within the same timeframe.
(3) The exemption will apply at the beginning of the next assessable period following notification of approval of the assessment exemption, in writing, by the committee or board.
(d) Assessment exemption calculation. (1) The applicable assessment rate for any handler approved for an exemption shall be computed by dividing the committee’s or board’s estimated non-marketing promotion expenditures by the committee’s or board’s estimated total expenditures approved by the Secretary and applying that percentage to the assessment rate applicable to all persons for the assessment period. The modified assessment rate shall then be applied to the quantity of certified “organic” or “100 percent organic” products handled under an approved organic assessment exemption as provided in paragraph (c)(2) of this section. Products handled not subject to an approved organic assessment exemption shall be assessed at the assessment rate applicable to all persons for the assessment period. The committee’s or board’s estimated non-marketing promotion expenditures shall exclude the direct costs of marketing promotion and the portion of committee’s or board’s administrative and overhead costs (e.g., salaries, supplies, printing, equipment, rent, contractual expenses, and other applicable costs) to support and administer the marketing promotion activities.
(2) If a committee or board does not plan to conduct any market promotion activities in a fiscal year, the committee or board may submit a certification to that effect to the Secretary, and as long as no assessments for such fiscal year are used for marketing promotion projects, or the administration of projects are funded by a previous fiscal period’s assessments, the committee or board may assess all handlers, regardless of their organic status, the full assessment rate applicable to the assessment period.
(3) For each assessment period, the Secretary shall review the portion of the assessment rate applicable to marketing promotion for persons eligible for an exemption and, if appropriate, approve the assessment rate.
(4) When the requirements of this section for exemption no longer apply to a handler, the handler shall inform the committee or board within 30 days and pay the full assessment on all remaining assessable product for all committee or board assessments from the date the handler no longer is eligible to the end of the assessment period.
(5) Within 30 days following the applicable assessment period, the committee or board shall re-compute the applicable assessment rate for handlers exempt under this section based on the actual expenditures incurred during the applicable assessment period. The Secretary shall review, and if appropriate, approve any change in the portion of the assessment rate for market promotion applicable to exempt handlers, and authorize adjustments for any overpayments or collection of underpayments.
PART 905 – ORANGES, GRAPEFRUIT, TANGERINES, AND PUMMELOS GROWN IN FLORIDA
Subpart A – Order Regulating Handling
Definitions
§ 905.1 Secretary.
Secretary means the Secretary of Agriculture of the United States, or any officer or employee of the United States Department of Agriculture to whom authority has heretofore been delegated, or to whom authority may hereafter be delegated, to act in his stead.
§ 905.2 Act.
Act means Public Act No. 10, 73d Congress (May 12, 1933), as amended and as reenacted and amended by the Agricultural Marketing Agreement Act of 1937, as amended. (48 Stat. 31, as amended; 7 U.S.C. 601 et seq.; 68 Stat. 906, 1047.)
§ 905.3 Person.
Person means an individual, partnership, corporation, association, business trust, legal representative, or any organized group of individuals.
§ 905.4 Fruit.
Fruit means any or all varieties of the following types of citrus fruits grown in the production area:
(a) Citrus sinensis, Osbeck, commonly called “oranges”;
(b) Citrus paradisi, MacFadyen, commonly called “grapefruit”;
(c) Citrus reticulata, commonly called “tangerines” or “mandarin”;
(d) Citrus maxima Merr (L.); Osbeck, commonly called “pummelo”; and,
(e) “Citrus hybrids” that are hybrids between or among one or more of the four fruits in paragraphs (a) through (d) of this section and the following: Trifoliate orange (Poncirus trifoliata), sour orange (C. aurantium), lemon (C. limon), lime (C. aurantifolia), citron (C. medica), kumquat (Fortunella species), tangelo (C. reticulata x C. paradisi or C. grandis), tangor (C. reticulata x C. sinensis), and varieties of these species. In addition, citrus hybrids include: Tangelo (C. reticulata x C. paradisi or C. grandis), tangor (C. reticulata x C. sinensis), Temple oranges, and varieties thereof
§ 905.5 Variety.
Variety or varieties means any one or more of the following classifications or groupings of fruit:
(a) Oranges. (1) Early and Midseason oranges;
(2) Valencia, Lue Gim Gong, and similar late maturing oranges of the Valencia type;
(3) Navel oranges.
(b) Grapefruit. (1) Red Grapefruit, to include all shades of color;
(2) White Grapefruit.
(c) Tangerines and mandarins. (1) Dancy and similar tangerines;
(2) Robinson tangerines;
(3) Honey tangerines;
(4) Fall-Glo tangerines;
(5) US Early Pride tangerines;
(6) Sunburst tangerines;
(7) W-Murcott tangerines;
(8) Tangors.
(d) Pummelos. (1) Hirado Buntan and other pink seeded pummelos;
(2) [Reserved].
(e) Citrus hybrids – (1) Tangelos. (i) Orlando tangelo;
(ii) Minneola tangelo.
(2) Temple oranges.
(f) Other varieties of citrus fruits specified in § 905.4, including hybrids, as recommended and approved by the Secretary. Provided, That in order to add any hybrid variety of citrus fruit to be regulated under this provision, such variety must exhibit similar characteristics and be subject to cultural practices common to existing regulated varieties.
§ 905.6 Producer.
Producer is synonymous with grower and means any person who is engaged in the production for market of fruit in the production area and who has a proprietary interest in the fruit so produced.
§ 905.7 Handler.
Handler is synonymous with shipper and means any person (except a common or contract carrier transporting fruit for another person) who, as owner, agent, or otherwise, handles fruit in fresh form, or causes fruit to be handled. Each handler shall be registered with the Committee pursuant to rules recommended by the Committee and approved by the Secretary.
§ 905.8 Prepare for market.
Prepare for market means to wash, grade, size, or place fruit (whether or not wrapped) into any container whatsoever; but such term shall not include the harvesting of fruit.
§ 905.9 Handle or ship.
Handle or ship means to sell, transport, deliver, pack, prepare for market, grade, or in any other way to place fruit in the current of commerce within the production area or between any point in the production area and any point outside thereof.
§ 905.10 Carton or standard packed carton.
Carton or standard packed carton means a unit of measure equivalent to four-fifths (
§ 905.11 Fiscal period.
Fiscal period means the period of time from August 1 of any year until July 31 of the following year, both dates inclusive.
§ 905.12 Committee.
Committee means the Citrus Administrative Committee established pursuant to § 905.19.
§ 905.13 District.
(a) Citrus District One shall include the Counties of Hillsborough, Pinellas, Pasco, Hernando, Citrus, Sumter, and Lake.
(b) Citrus District Two shall include the Counties of Osceola, Orange, Seminole, Alachua, Putnam, St. Johns, Flagler, Marion, Levy, Duval, Nassau, Baker, Union, Bradford, Columbia, Clay, Gilchrist, and Suwannee, and County Commissioner, Districts One, Two, and Three of Volusia County, and that part of the Counties of Indian River and Brevard not included in Regulation Area II.
(c) Citrus District Three shall include the County of St. Lucie and that part of the Counties of Brevard, Indian River, Martin, and Palm Beach described as lying within Regulation Area II, and County Commissioner’s Districts Four and Five of Volusia County.
(d) Citrus District Four shall include the Counties of Manatee, Sarasota, Hardee, Highlands, Okeechobee, Glades, De Sota, Charlotte, Lee, Hendry, Collier, Monroe, Dade, Broward, and that part of the Counties of Palm Beach and Martin not included in Regulation Area II.
(e) Citrus District Five shall include the County of Polk.
§ 905.14 Redistricting.
(a) The Committee may, with the approval of the Secretary, redefine the districts into which the production area is divided or reapportion or otherwise change the grower membership of districts, or both: Provided, That the membership shall consist of at least eight but not more than nine grower members, and any such change shall be based, insofar as practicable, upon the respective averages for the immediately preceding three fiscal periods of:
(1) The number of bearing trees in each district;
(2) The volume of fresh fruit produced in each district;
(3) The total number of acres of citrus in each district; and
(4) Other relevant factors.
(b) Each redistricting or reapportionment shall be announced on or prior to March 1 preceding the effective fiscal period.
§ 905.15 Regulation Area I.
Regulation Area I is defined as the “Interior District”, and shall include all that part of the production area not included in Regulation Area II.
§ 905.16 Regulation Area II.
Regulation Area II is defined as the “Indian River District”, and shall include that part of the State of Florida particularly described as follows:
Beginning at a point on the shore of the Atlantic Ocean where the line between Flagler and Volusia Counties intersects said shore, thence follow the line between said two counties to the Southwest corner of Section 23, Township 14 South, Range 31 East; thence continue South to the Southwest corner of Section 35, Township 14 South, Range 31 East; thence East to the Northwest corner of Township 15 South, Range 32 East; thence South to the Southwest corner of Township 17 South, Range 32 East; thence East to the Northwest corner of Township 18 South, Range 33 East; thence South to the St. Johns River; thence along the main channel of the St. Johns River and through Lake Harney, Lake Poinsett, Lake Winder, Lake Washington, Sawgrass Lake, and Lake Helen Blazes to the range line between Ranges 35 East and 36 East; thence South to the South line of Brevard County; thence East to the line between Ranges 36 East and 37 East; thence South to the Southwest corner of St. Lucie County; thence East to the line between Ranges 39 East and 40 East; thence South to the South line of Martin County; thence East to the line between Ranges 40 East and 41 East; thence South to the West Palm Beach Canal (also known as the Okeechobee Canal); thence follow said canal eastward to the mouth thereof; thence East to the shore of the Atlantic Ocean; thence Northerly along the shore of the Atlantic Ocean to the point of beginning.
§ 905.17 Production area.
Production area means that portion of the State of Florida which is bounded by the Suwannee River, the Georgia border, the Atlantic Ocean, and the Gulf of Mexico.
§ 905.18 Improved No. 2 grade and Improved No. 2 Bright grade.
Improved No. 2 grade and Improved No. 2 Bright grade means grapefruit meeting all of the respective requirements of the U.S. No. 2 grade and the U.S. No. 2 Bright grade and those requirements of the U.S. No. 1 grade relating to shape (form) and color, as such requirements are set forth in the U.S. Standards for Grades of Florida Grapefruit (§§ 51.750-51.783 of this title) or as such standards may hereafter be amended.
Administrative Bodies
§ 905.19 Establishment and membership.
(a) There is hereby established a Citrus Administrative Committee consisting of at least eight but not more than nine grower members, and eight shipper members. Grower members shall be persons who are not shippers or employees of shippers: Provided, that the committee, with the approval of the Secretary, may establish alternative qualifications for such grower members. Shipper members shall be shippers or employees of shippers. The committee may be increased by one non-industry member nominated by the committee and selected by the Secretary. The committee, with approval of the Secretary, shall prescribe qualifications, term of office, and the procedure for nominating the non-industry member.
(b) Each member shall have an alternate who shall have the same qualifications as the member for whom this person is an alternate.
§ 905.20 Term of office.
The term of office of members and alternate members shall begin on the first day of August of even-numbered years and continue for two years and until their successors are selected and have qualified. The consecutive terms of office of a member shall be limited to two terms. The terms of office of alternate members shall not be so limited. Members, their alternates, and their respective successors shall be nominated and selected by the Secretary as provided in §§ 905.22 and 905.23.
§ 905.21 Selection of initial members of the committee.
The initial members of the Citrus Administrative Committee and their respective alternates shall be the members and alternates of the Growers Administrative Committee and the Shippers Advisory Committee serving on the effective date of his amendment. Each member and alternate shall serve until completion of the term for which he was selected and until his successor has been selected and qualified.
§ 905.22 Nominations.
(a) Grower members. (1) The Committee shall give public notice of a meeting of producers in each district to be held not later than June 10th of even-numbered years, for the purpose of making nominations for grower members and alternate grower members. The Committee, with the approval of the Secretary, shall prescribe uniform rules to govern such meetings and the balloting thereat. The chairman of each meeting shall publicly announce at such meeting the names of the persons nominated, and the chairman and secretary of each such meeting shall transmit to the Secretary their certification as to the number of votes so cast, the names of the persons nominated, and such other information as the Secretary may request. All nominations shall be submitted to the Secretary on or before the 20th day of June.
(2) Each nominee shall be a producer in the district from which he or she is nominated. In voting for nominees, each producer shall be entitled to cast one vote for each nominee in each of the districts in which he or she is a producer. At least two of the nominees and their alternates so nominated shall be affiliated with a bona fide cooperative marketing organization.
(b) Shipper members. (1) The Committee shall give public notice of a meeting for bona fide cooperative marketing organizations which are handlers, and a meeting for other handlers who are not so affiliated, to be held not later than June 10th of even-numbered years, for the purpose of making nominations for shipper members and their alternates. The Committee, with the approval of the Secretary, shall prescribe uniform rules to govern each such meeting and the balloting thereat. The chairperson of each such meeting shall publicly announce at the meeting the names of the persons nominated and the chairman and secretary of each such meeting shall transmit to the Secretary their certification as to the number of votes cast, the weight by volume of those shipments voted, and such other information as the Secretary may request. All nominations shall be submitted to the Secretary on or before the 20th day of June.
(2) Nomination of at least two members and their alternates shall be made by bona fide cooperative marketing organizations which are handlers. Nominations for not more than six members and their alternates shall be made by handlers who are not so affiliated. In voting for nominees, each handler or his or her authorized representative shall be entitled to cast one vote, which shall be weighted by the volume of fruit by such handler during the then current fiscal period.
(c) Notwithstanding the provisions of paragraphs (a) and (b) of this section, nomination and election of members and alternate members to the Committee may be conducted by mail, electronic mail, or other means according to rules and regulations recommended by the Committee and approved by the Secretary.
§ 905.23 Selection.
(a) From the nominations made pursuant to § 905.22(a) or from other qualified persons, the Secretary shall select one member and one alternate member to represent District 2 and two members and two alternate members each to represent Districts 1, 3, 4, and 5 or such other number of members and alternate members from each district as may be prescribed pursuant to § 905.14. At least two such members and their alternates shall be affiliated with bona fide cooperative marketing organizations.
(b) From the nominations made pursuant to § 905.22(b) or from other qualified persons, the Secretary shall select at least two members and their alternates to represent bona fide cooperative marketing organizations which are handlers, and the remaining members and their alternates to represent handlers who are not so affiliated.
§ 905.27 Failure to nominate.
In the event nominations for a member or alternate member of the committee are not made pursuant to the provisions of §§ 905.22 and 905.25, the Secretary may select such member or alternate member without regard to nominations.
§ 905.28 Qualification and acceptance.
Any person nominated to serve as a member or alternate member of the Committee shall, prior to selection by the Secretary, qualify by filing a written qualification and acceptance statement indicating such person’s qualifications and willingness to serve in the position for which nominated.
§ 905.29 Inability of members to serve.
(a) An alternate for a member of the committee shall act in the place and stead of such member (1) in his absence, or (2) in the event of his removal, resignation, disqualification, or death, and until a successor for his unexpired term has been selected.
(b) If both a member and his or her respective alternate are unable to attend a committee meeting, such member may designate another alternate to act in his or her place in order to obtain a quorum: Provided, That such alternate member represents the same group affiliation as the absent member. If the member is unable to designate such an alternate, the committee members present may designate such alternate.
(c) In the event of the death, removal, resignation, or disqualification of any person selected by the Secretary as a member or an alternate member of the committee, a successor for the unexpired term of such person shall be selected by the Secretary. Such selection may be made without regard to the provisions of this subpart as to nominations.
§ 905.30 Powers of the committee.
The committee, in addition to the power to administer the terms and provisions of this subpart, as herein specifically provided, shall have power (a) to make, only to the extent specifically permitted by the provisions contained in this subpart, administrative rules and regulations; (b) to receive, investigate and report to the Secretary complaints of violations of this subpart; and (c) to recommend to the Secretary amendments to this subpart.
§ 905.31 Duties of Citrus Administrative Committee.
It shall be the duty of the Citrus Administrative Committee:
(a) To select a chairman from its membership, and to select such other officers and adopt such rules and regulations for the conduct of its business as it may deem advisable;
(b) To keep minutes, books, and records which will clearly reflect all of its acts and transactions, which minutes, books, and records shall at all times be subject to the examination of the Secretary;
(c) To act as intermediary between the Secretary and the producers and handlers;
(d) To furnish the Secretary with such available information as he may request;
(e) To appoint such employees as it may deem necessary and to determine the salaries and define the duties of such employees;
(f) To cause its books to be audited by one or more certified or registered public accountants at least once for each fiscal period, and at such other times as it deems necessary or as the Secretary may request, and to file with the Secretary copies of all audit reports;
(g) To prepare and publicly issue a monthly statement of financial operations of the committee;
(h) To provide an adequate system for determining the total crop of each variety of fruit, and to make such determinations, including determinations by grade and size, as it may deem necessary, or as may be prescribed by the Secretary, in connection with the administration of this subpart;
(i) To perform such duties in connection with the administration of section 32 of the act to amend the Agricultural Adjustment Act and for other purposes, Public Act No. 320, 74th Congress, as amended, as may from time to time be assigned to it by the Secretary;
§ 905.33 Compensation and expenses of committee members.
The members and alternate members of the Committee shall serve without compensation but may be reimbursed for expenses necessarily incurred by them in attending committee meetings and in the performance of their duties under this part.
§ 905.34 Procedure of committees.
(a) Ten members of the committee shall constitute a quorum.
(b) For any decision or recommendation of the committee to be valid, ten concurring votes, five of which must be grower votes, shall be necessary: Provided, That the committee may recommend a regulation restricting the shipment of grapefruit grown in Regulation Area I or Regulation Area II which meets the requirements of the Improved No. 2 grade or the Improved No. 2 Bright grade only upon the affirmative vote of a majority of its members present from the regulation area in which such restriction would apply; and whenever a meeting to consider a recommendation for release of such grade is requested by a majority of the members from the affected area, the committee shall hold a meeting within a reasonable length of time for the purpose of considering such a recommendation. If after such consideration the requesting area majority present continues to favor such release for their area, the request shall be considered a valid recommendation and transmitted to the Secretary. The votes of each member cast for or against any recommendation made pursuant to this subpart shall be duly recorded. Whenever an assembled meeting is held each member must vote in person.
(c) The committee may provide for meeting by telephone, telegraph, or other means of communication, and any vote cast at such a meeting shall be promptly confirmed in writing: Provided, That if any assembled meeting is held, all votes shall be cast in person.
(d) The committee shall give the Secretary the same notice of meetings as is given to the members thereof.
§ 905.35 Right of the Secretary.
The members of the committee (including successors and alternates), and any agent or employee appointed or employed by the committee, shall be subject to removal or suspension by the Secretary at any time. Each and every order, regulation, decision, determination, or other act of the committee shall be subject to the continuing right of the Secretary to disapprove of the same at any time and upon his disapproval shall be deemed null and void, except as to acts done in reliance thereon or in compliance therewith.
§ 905.36 Funds.
(a) All funds received by the committee pursuant to any provision of this subpart shall be used solely for the purposes herein specified and shall be accounted for in the manner provided in this subpart.
(b) The Secretary may, at any time, require the committee and its members to account for all receipts and disbursements.
(c) Upon the removal or expiration of the term of office of any member of the committee, such member shall account for all receipts and disbursements and deliver all property and funds, together with all books and records, in his possession, to his successor in office, and shall execute such assignments and other instruments as may be necessary or appropriate to vest in such successor full title to all of the property, funds, and claims vested in such member pursuant to this subpart.
Expenses and Assessments
§ 905.40 Expenses.
The committee is authorized to incur such expenses as the Secretary finds are reasonable and likely to be incurred to carry out the functions of the committee under this subpart during each fiscal period. The funds to cover such expenses shall be acquired by the levying of assessments upon handlers as provided in § 905.41.
§ 905.41 Assessments.
(a) Each handler who first handles fruit shall pay to committee, upon demand, such handler’s pro rata share of the expenses which the Secretary finds will be incurred by the committee for the maintenance and functioning, during each fiscal period, of the committee established under this subpart. Each such handler’s share of such expenses shall be that proportion thereof which the total quantity of fruit shipped by such handler as the first handler thereof during the applicable fiscal period is of the total quantity of fruit so shipped by all handlers during the same fiscal period. The Secretary shall fix the rate of assessment per standard packed carton of fruit to be paid by each such handler. The payment of assessments for the maintenance and functioning of the committee may be required under this part throughout the period it is in effect irrespective of whether particular provisions thereof are suspended or become inoperative.
(b) At any time during or after the fiscal period, the Secretary may increase the rate of assessment so that the sum of money collected pursuant to the provisions of this section shall be adequate to cover the said expenses. Such increase shall be applicable to all fruit shipped during the given fiscal period. In order to provide funds to carry out the functions of the committee established under § 905.19, handlers may make advance payment of assessments.
(c) In the case of an extreme emergency, the committee may borrow money on a short term basis to provide funds for the administration of this part. Any such borrowed money shall only be used to meet the committee’s current financial obligations, and the committee shall repay all such borrowed money by the end of the next fiscal period from assessment income.
§ 905.42 Handler’s accounts.
(a) If, at the end of a fiscal period, the assessments collected are in excess of expenses incurred, the Committee, with the approval of the Secretary, may carry over such excess into subsequent fiscal periods as a reserve: Provided, That funds already in the reserve do not exceed approximately two fiscal periods’ expenses. Such reserve funds may be used (1) to cover any expenses authorized by this part and (2) to cover necessary expenses of liquidation in the event of termination of this part. If any such excess is not retained in a reserve, each handler entitled to a proportionate refund shall be credited with such refund against the operations of the following fiscal period unless he demands payment of the sum due him, in which case such sum shall be paid to him. Upon termination of this part, any funds not required to defray the necessary expenses of liquidation shall be disposed of in such manner as the Secretary may determine to be appropriate: Provided, That to the extent practical, such funds shall be returned pro rata to the persons from whom such funds were collected.
(b) The committee may, with the approval of the Secretary, maintain in its own name or in the name of its members a suit against any handler for the collection of such handler’s pro rata share of the said expense.
Regulations
§ 905.50 Marketing policy.
(a) Before making any recommendations pursuant to § 905.51 for any variety of fruit, the committee shall, with respect to the regulations permitted by § 905.52, submit to the Secretary a detailed report setting forth an advisable marketing policy for such variety for the then current shipping season. Such report shall set forth the proportion of the remainder of the total crop of such variety of fruit (determined by the committee to be available for shipment during the remainder of the shipping season of such variety) deemed advisable by the committee to be shipped during such season.
(b) In determining each such marketing policy and advisable proportion, the committee shall give due consideration to the following factors relating to citrus fruit produced in Florida and in other States:
(1) The available crop of each variety of citrus fruit in Florida, and in other States, including the grades and sizes thereof, which grades and sizes in Florida shall be determined by the committee pursuant to § 905.31;
(2) The probable shipments of citrus fruit from other States;
(3) The level and trend in consumer income;
(4) The prospective supplies of competitive commodities; and
(5) Other pertinent factors bearing on the marketing of fruit.
(c) In addition to the foregoing, the committees shall set forth a schedule of proposed regulations for the remainder of the shipping season for each variety of fruit for which recommendations to the Secretary pursuant to § 905.51 are contemplated. Such schedules shall recognize the practical operations of harvesting and preparation for market of each variety and the change in grades and sizes thereof as the respective seasons advance. In the event it is deemed advisable to alter such marketing policy or advisable proportion as the shipping season progresses, in view of changed demand and supply conditions with respect to fruit, the said committee shall submit to the Secretary a report thereon.
(d) The committee shall transmit a copy of each marketing policy report or revision thereof to the Secretary and to each producer and handler who files a request therefor. Copies of all such reports shall be maintained in the office of the committee where they shall be available for examination by producers and handlers.
§ 905.51 Recommendations for regulation.
(a) Whenever the committee deems it advisable to regulate any variety in the manner provided in § 905.52, it shall give due consideration to the following factors relating to the citrus fruit produced in Florida and in other States: (1) Market prices, including prices by grades and sizes of the fruit for which regulation is recommended; (2) maturity, condition, and available supply, including the grade and size thereof in the producing areas; (3) other pertinent market information; and (4) the level and trend in consumer income. The committee shall submit to the Secretary its recommendations and supporting information respecting the factors enumerated in this section.
(b) The committee shall give notice of any meeting to consider the recommendation of regulations pursuant to § 905.52 by mailing a notice of meeting to each handler who has filed his address with committee for this purpose. The committee shall give the same notice of any such recommendation before the time it is recommended that such regulation become effective.
§ 905.52 Issuance of regulations.
(a) Whenever the Secretary shall find from the recommendations and reports of the committee, or from other available information, that to limit the shipment of any variety would tend to effectuate the declared policy of the act, he shall so limit the shipment of such variety during a specified period or periods. Such regulations may:
(1) Limit the shipments of any grade or size, or both, of any variety, in any manner as may be prescribed, and any such limitation may provide that shipments of any variety grown in Regulation Area II shall be limited to grades and sizes different from the grade and size limitations applicable to shipments of the same varieties grown in Regulation Area I: Provided, That whenever any such grade or size limitation restricts the shipment of a portion of a specified grade or size of a variety the quantity of such grade or size that may be shipped by a handler during a particular week shall be established as a percentage of the total shipments of such variety by such handler in such prior period established by the committee with the approval of the Secretary, in which he shipped such variety.
(2) Limit the shipment of any variety by establishing and maintaining, only in terms of grades or sizes, or both, minimum standards of quality and maturity;
(3) Limit the shipment of the total quantity of any variety by prohibiting the shipment thereof: Provided, that no such prohibition shall apply to exports or be effective during any fiscal period with respect to any variety other than for one period not exceeding five days during the week in which Thanksgiving Day occurs, and for not more than two periods not exceeding a total of 14 days during the period December 20 to January 20, both dates inclusive.
(4) Establish, prescribe, and fix the size, capacity, weight, dimensions, marking (including labels and stamps), or pack of the container or containers which may be used in the packaging, transportation, sale, shipment, or other handling of fruit.
(5) Provide requirements that may be different for the handling of fruit within the production area, the handling of fruit for export, or for the handling of fruit between the production area and any point outside thereof within the United States.
(6) Any regulations or requirements pertaining to intrastate shipments shall not be implemented unless Florida statutes and regulations regulating such shipments are not in effect.
(b) Prior to the beginning of any such regulations, the Secretary shall notify the committee of the regulation issued by him, and the committee shall notify all handlers by mailing a copy thereof to each handler who has filed his address with said committee for this purpose.
(c) Whenever the Secretary finds from the recommendations and reports of the committee, or from other available information, that a regulation should be modified, suspended, or terminated with respect to any or all shipments of fruit in order to effectuate the declared policy of the act, he shall so modify, suspend, or terminate such regulation. If the Secretary finds that a regulation obstructs or does not tend to effectuate the declared policy of the act, he shall suspend or terminate such regulation. On the same basis, and in like manner, the Secretary may terminate any such modification or suspension.
(d) Whenever any variety is regulated pursuant to paragraph (a)(3) of this section, no such regulation shall be deemed to limit the right of any person to sell, contract to sell, or export such variety but no handler shall otherwise ship any fruit of such variety which was prepared for market during the effective period of such regulation.
§ 905.53 Inspection and certification.
(a) Whenever the handling of a variety of a type of fruit is regulated pursuant to § 905.52, each handler who handles any variety of such type of fruit shall, prior to the handling of any lot of such variety, cause such lot to be inspected by the Federal-State Inspection Service and certified by it as meeting all applicable requirements of such regulation: Provided, That such inspection and certification shall not be required if the particular lot of fruit previously had been so inspected and certified unless such prior inspection was not performed within such time limitations as may be prescribed pursuant to paragraph (b) of this section. Each handler shall promptly submit, or cause to be submitted, to the committee a copy of each certificate of inspection issued to him covering varieties so handled.
(b) With respect to any variety regulated pursuant to § 905.52(a)(4), the committee may prescribe, with the approval of the Secretary, such requirements with respect to time of inspection as it may deem necessary to insure satisfactory condition of the fruit at time of export.
§ 905.54 Marketing, research and development.
The committee may, with the approval of the Secretary, establish, or provide for the establishment of, projects including production research, marketing research and development projects, and marketing promotion including paid advertising, designed to assist, improve, or promote the marketing, distribution, and consumption or efficient production of fruit. The expenses of such projects shall be paid by funds collected pursuant to § 905.41. Upon conclusion of each project, but at least annually, the committee shall summarize the program status and accomplishments to its members and the Secretary. A similar report to the committee shall be required of any contracting party on any project carried out under this section. Also, for each project, the contracting party shall be required to maintain records of money received and expenditures, and such shall be available to the committee and the Secretary.
Handlers’ Reports
§ 905.70 Manifest report.
The committee may request information from each handler regarding the variety, grade, and size of each standard packed carton of fruit shipped by him and may require such information to be mailed or delivered to the committee or its duly authorized representative, within 24 hours after such shipment is made, in a manner or by such method as the said committee may prescribe, and upon such forms as may be prepared by it.
§ 905.71 Other information.
Upon request of the committee, made with the approval of the Secretary, every handler shall furnish the committee, in such manner and at such times as it prescribes, such other information as will enable it to perform its duties under this subpart.
Miscellaneous Provisions
§ 905.80 Fruit not subject to regulation.
Except as otherwise provided in this section, any person may, without regard to the provisions of §§ 905.52 and 905.53 and the regulations issued thereunder, ship any variety for the following purposes: (a) To a charitable institution for consumption by such institution; (b) to a relief agency for distribution by such agency; (c) to a commercial processor for conversion by such processor into canned or frozen products or into a beverage base; (d) by parcel post; or (e) in such minimum quantities, types of shipments, or for such purposes as the committee with the approval of the Secretary may specify. No assessment shall be levied on fruit so shipped. The committee shall, with the approval of the Secretary, prescribe such rules, regulations, or safeguards as it may deem necessary to prevent varieties handled under the provisions of this section from entering channels of trade for other than the purposes authorized by this section. Such rules, regulations, and safeguards may include the requirements that handlers shall file applications with the committee for authorization to handle a variety pursuant to this section, and that such applications be accompanied by a certification by the intended purchaser or receiver that the variety will not be used for any purpose not authorized by this section.
§ 905.81 Compliance.
Except as provided in this part, no person shall ship fruit the shipment of which has been prohibited by the Secretary in accordance with the provisions of this part.
§ 905.82 Effective time.
The provisions of this subpart shall become effective on and after 12:01 a.m., e.s.t., September 1, 1946, and shall continue in force until terminated in one of the ways specified in § 905.83.
§ 905.83 Termination.
(a) The Secretary may at any time terminate the provisions of this part by giving at least one day’s notice by means of a press release or in any other manner which he may determine.
(b) The Secretary shall terminate the provisions of this part at the end of any fiscal period whenever he finds that such termination is favored by a majority of producers who, during the preceding fiscal period, have been engaged in the production for market of fruit: Provided, That such majority have, during such period, produced for market more than 50 percent of the volume of such fruit produced for market, but such termination shall be effective only if announced on or before July 31 of the then current fiscal period.
(c) The Secretary shall conduct a referendum six years after the effective date of this paragraph and every sixth year thereafter to ascertain whether continuance of this part is favored by producers. The Secretary may terminate the provisions of this part at the end of any fiscal period in which the Secretary has found that continuance of this part is not favored by producers who during a representative period, determined by the Secretary, have been engaged in the production for market of the fruit in the production area. Such termination shall be announced on or before July 31 of the fiscal period.
(d) The provisions of this part shall, in any event, terminate whenever the provisions of the act authorizing it cease to be in effect.
§ 905.84 Proceedings after termination.
(a) Upon the termination of the provisions of this part, the then functioning members of the committee shall continue as joint trustees, for the purpose of liquidating the affairs of the committee, of all the funds and property then in the possession of or under control of committee, including claims for any funds unpaid or property not delivered at the time of such termination.
(b) The said trustees (1) shall continue in such capacity until discharged by the Secretary, (2) shall, from time to time, account for all receipts and disbursements or deliver all property on hand, together with all books and records of the committee and of the joint trustees, to such person as the Secretary may direct; and (3) shall, upon the request of the Secretary, execute such assignments or other instruments necessary or appropriate to vest in such person full title and right to all of the funds, property, and claims vested in the committee, or the joint trustees pursuant to this part.
(c) Any funds collected pursuant to § 905.41, over and above the amounts necessary to meet outstanding obligations and expenses necessarily incurred during the operation of this part and during the liquidation period, shall be returned to handlers as soon as practicable after the termination of this part. The refund to each handler shall be represented by the excess of the amount paid by him over and above his pro rata share of the expenses.
(d) Any person to whom funds, property, or claims have been transferred or delivered by the committee or its members, pursuant to this section, shall be subject to the same obligations imposed upon the members of the committee and upon the said joint trustees.
§ 905.85 Duration of immunities.
The benefits, privileges, and immunities conferred upon any person by virtue of this part shall cease upon its termination, except with respect to acts done under and during the existence of this part.
§ 905.86 Agents.
The Secretary may, by designation in writing, name any person, including any officer or employee of the Government, or name any bureau or division in the United States Department of Agriculture, to act as his agent or representative in connection with any of the provisions of this part.
§ 905.87 Derogation.
Nothing contained in this part is, or shall be construed to be in derogation or in modification of the rights of the Secretary or of the United States (a) to exercise any powers granted by the act or otherwise, or (b) in accordance with such powers, to act in the premises whenever such action is deemed advisable.
§ 905.88 Personal liability.
No member or alternate of the committee nor any employee or agent thereof, shall be held personally responsible, either individually or jointly with others, in any way whatsoever, to any handler or to any other person for errors in judgment, mistakes, or other acts, either of commission or omission, as such member, alternate, or employee, except for acts of dishonesty.
§ 905.89 Separability.
If any provision of this part is declared invalid, or the applicability thereof to any person, circumstance, or thing is held invalid, the validity of the remainder of this part or the applicability thereof to any other person, circumstance, or thing shall not be affected thereby.
Subpart B – Administrative Requirements
§ 905.105 Tangerine and grapefruit classifications.
(a) Pursuant to § 905.5(m), the following classifications of grapefruit are renamed as follows:
(1) Marsh and other seedless grapefruit, excluding pink grapefruit, are renamed as Marsh and other seedless grapefruit, excluding red grapefruit;
(2) Duncan and other seeded grapefruit, excluding pink grapefruit, are renamed as Duncan and other seeded grapefruit, excluding red grapefruit;
(3) Pink seedless grapefruit is renamed as Red seedless grapefruit;
(4) Pink seeded grapefruit is renamed as Red seeded grapefruit.
(b) Pursuant to § 905.5(m), the term variety or varieties includes Sunburst and Fallglo tangerines.
§ 905.107 Registered handler certification.
Each handler who handles citrus grown in the production area must be certified as a registered handler by the Committee in order to ship such regulated citrus outside of the regulated area. A handler who is certified as a registered handler is a handler who has adequate facilities to meet the requirements for preparing citrus for market, obtains inspection on citrus handled, agrees to handle citrus in compliance with the Order’s grade, size and container requirements, pays applicable assessments on a timely basis, submits reports required by the Committee, and agrees to comply with other regulatory requirements on the handling of citrus grown in the production area.
(a) Eligibility. Based on the criteria specified in this section, the Committee shall determine eligibility for certification as a registered handler. The Committee or its authorized agent shall inspect a handler’s facilities to determine if the facilities are adequate for preparing citrus for market. To be adequate for such purposes, the facilities must be permanent, nonportable buildings located in the production area with equipment that is nonportable for the proper washing, grading, sizing and packing of citrus grown in the production area.
(b) Application for certification. Application for certification shall be executed by the handler by August 1st of fiscal period and filed with the Committee on a form, prescribed by and available at the principal office of the Committee, containing the following information:
(1) Business name,
(2) Address of handling facilities (including telephone, email and facsimile number),
(3) Mailing address (if different from handling facility address),
(4) Number of years in the citrus business in Florida,
(5) Type of business entity, and
(6) Names of senior officers, partners, or principal owners with financial interest in the business.
(c) Determination of certification. If the Committee determines from available information that an applicant meets the criteria specified in this section, the applicant shall be certified as a registered handler and informed by written notice from the Committee. Certification is effective for a fiscal period unless the Committee determines, based on criteria herein, that cancellation is warranted. If certification is denied, the handler shall be informed by the Committee in writing, stating the reasons for denial.
(d) Cancellation of certification. A registered handler’s certification shall be cancelled by the Committee, with the approval of the Secretary, if the handler fails to pay assessments within 90 days of the invoice date, fails to provide reports to the Committee, or no longer has adequate facilities as described in this section. Cancellation of a handler’s certification shall be made in writing to the handler and shall specify the reason(s) for and effective date of the cancellation. Cancellation shall be for a minimum two-week period if a handler is found to be shipping without proper inspection. The Committee shall recertify the handler’s registration at such time as the handler corrects the deficiencies which resulted in the cancellation and the Committee or its agent verifies compliance. The Committee shall notify the handler in writing of its recertification.
(e) Inspection certification. During any period in which the handling of citrus is regulated pursuant to this part, no handler shall obtain an inspection certifying that the handler’s citrus meets the requirements of the Order unless the handler has been certified as a registered handler by the Committee. Any person who is not certified as a registered handler may receive inspection from the Federal-State Inspection Service, however, the inspection certificate shall state “Fails to meet the requirements of Marketing Order No. 905 because the handler is not a registered handler.”
(f) Contrary shipping. The Committee may cancel or deny a handler’s registration if the handler has shipped citrus contrary to the provisions of this part. The cancellation or denial of a handler’s registration shall be effective for a minimum of two weeks and not exceed the applicable shipping season as determined by the Committee.
(g) Appeals. Any handler who has been denied a handler’s registration or who has had a handler’s registration cancelled, may appeal to the Secretary, supported by any arguments and evidence the handler may wish to offer as to why the application for certification or recertification should have been approved. The appeal shall be in writing and received at the Specialty Crops Program office in Washington, DC, within 90 days of the date of notification of denial or cancellation.
§ 905.114 Redistricting of citrus districts and reapportionment of grower members.
Pursuant to § 905.14, the citrus districts and membership allotted each district shall be as follows:
(a) Citrus District One shall include the counties of Alachua, Baker, Bradford, Citrus, Clay, Columbia, Duval, Flagler, Gilchrist, Hernando, Hillsborough, Lake, Levy, Marion, Nassau, Orange, Osceola, Pasco, Pinellas, Polk, Putnam, Seminole, St. Johns, Sumter, Suwannee, and Union and County Commissioner’s Districts One, Two, and Three of Volusia County, and that part of the counties of Indian River and Brevard not included in Regulation Area II. This district shall have two grower members and alternates.
(b) Citrus District Two shall include the counties of Broward, Charlotte, Collier, Dade, De Soto, Glades, Hardee, Hendry, Highlands, Lee, Manatee, Monroe, Okeechobee, Sarasota, and that part of the counties of Palm Beach and Martin not included in Regulation Area II. This district shall have three grower members and alternates.
(c) Citrus District Three shall include the County of St. Lucie and that part of the counties of Brevard, Indian River, Martin, and Palm Beach described as lying within Regulation Area II, and County Commissioner’s Districts Four and Five of Volusia County. This district shall have four grower members and alternates.
§ 905.120 Nomination procedure.
Meetings shall be called by the committee in accordance with the provisions of § 905.22, for the purpose of making nominations for members and alternate members of the Citrus Administrative Committee. The manner of nominating members and alternate members of said committee shall be as follows:
(a) At each such meeting the committee’s representative shall announce the requirements as to eligibility for voting for nominees and the procedure for voting, and shall explain the duties of the committee.
(b) A chairman and a secretary of each meeting shall be selected.
(c) At each meeting there shall be presented for nomination and there shall be nominated not less than the number of nominees required under the provisions of § 905.19, all of whom shall have the qualifications as specified in § 905.22.
(d) At the meetings of handlers, any person authorized to represent a handler may cast a ballot for such handler.
(e) At each meeting each eligible person may cast one vote for each of the persons to be nominated to represent the district or group, as the case may be.
(f) Voting may be by written ballot. If written ballots are used, all ballots shall be delivered by the chairman or the secretary of the meeting to the agent of the Secretary. If ballots are not used, the committee’s representative shall deliver to the Secretary’s agent a listing of each person nominated and a count of the number of votes cast for each nominee for grower member and alternate. Said representative shall also provide the agent the register of eligible voters present at each meeting, a listing of each person nominated, the number of votes cast, and the weight by volume of shipments voted for each nominee for shipper member and alternate.
(g) Up to four grower members may be growers who are also shippers, or growers who are also employees of shippers.
Non-Regulated Fruit
§ 905.130 xxx
§ 905.140 Gift packages.
Any handler may, without regard to the provisions of §§ 905.52 and 905.53 and the regulations issued thereunder, ship any varieties for the following purpose and types of shipment:
(a) To any person gift packages containing such varieties: Provided, That such packages are individually addressed to such person, and shipped directly to the addressee for use by such person other than for resale; or
(b) to any individual gift package distributor of such varieties to be handled by such distributor: Provided, That such person is the original purchaser and the gift packages are individually addressed or marked “not for resale”. This exemption does not apply to “commercially handled” shipments for resale.
§ 905.141 Minimum exemption.
Any shipment of fruit which meets each of the following requirements may be transported from the production area during any one day by any person or by the occupants of one vehicle exempt from the requirements of §§ 905.52 and 905.53 and regulations issued thereunder:
(a) The shipment does not exceed a total of 15 standard packed cartons (12 bushels) of fruit, either a single fruit or a combination of two or more fruits;
(b) The shipment consists of fruit not for resale; and
(c) Such exempted quantity is not included as a part of a shipment exceeding 15 standard packed cartons (12 bushels) of fruit.
§ 905.142 Animal feed.
(a) The handling of citrus for animal feed shall be exempt from the provisions of §§ 905.52 and 905.53 and the regulations issued thereunder under the following conditions:
(1) The handler notifies the committee each fiscal period, prior to such handling of his/her intention to handle such fruit, the quantity he/she anticipates handling and the destination point of each lot of fruit and receives from the committee a special shipping permit for the shipment;
(2) The fruit is used for animal feed and is not offered for resale, disposed of, or in any way handled so as to enter fresh fruit channels;
(3) The quantity does not exceed 1,000
(4) The fruit is placed in containers of uniform capacity; and
(5) Each shipment is certified by the Federal-State Inspection Service as to the quantity shipped.
(b) [Reserved]
§ 905.145 Certification of certain shipments.
Whenever a regulation pursuant to § 905.52 restricts the shipment of a portion of a specified grade or size of a variety, each handler shipping such variety during the regulation period shall, with respect to each such shipment, certify to the U.S. Department of Agriculture and the committee the quantity of the partially restricted grade or size, or both, contained in such shipment. Such certification shall accompany the manifest of such shipment which the handler furnishes to the Federal-State Inspection Service.
§ 905.146 Special purpose shipments.
(a) A Special Purpose Shipper is one who handles Florida citrus fruit that is certified by a Florida Department of Agriculture and Consumer Services licensed certifying agent as organically grown under Florida law. In addition, the shipper shall certify that shipments will be limited to outlets handling organically grown fruits. Any such shipments shall be subject to a Certificate of Privilege issued by the committee.
(b) To qualify for a Certificate of Privilege, each such shipper must notify the committee prior to the first shipment of certified organically grown Florida citrus fruit in the fiscal period of the shipper’s intent to ship such citrus, submit an application on forms supplied by the committee, and agree to other requirements as set forth in §§ 905.147 and 905.148 inclusive, with respect to such shipments. The shipper shall certify that no claims will be made, written or verbal, concerning any alleged advantages of using, or any alleged superiority of, fruit shipped under a Certificate of Privilege, compared to other Florida produced citrus.
(c) Citrus meeting all other applicable requirements may be handled without regard to grade regulations issued under § 905.52 under the following conditions:
(1) Such fruit meets the requirements of U. S. No. 2 Russet grade and those requirements of U. S. No. 1 grade relating to shape (form), as such requirements are set forth in the revised U. S. Standards for Grades of Florida Oranges and Tangelos (7 CFR 51.1140 through 51.1179), the revised Standards for Florida Tangerines (7 CFR 51.1810 through 51.1837), or the revised U. S. Standards for Grades of Florida Grapefruit (7 CFR 51.750 through 51.784). Such fruit also meets applicable minimum size requirements in effect for domestic shipments of citrus fruits.
(2) All such citrus shall be inspected as required by § 905.53 by the Federal or Federal-state Inspection Service prior to the time such citrus is shipped from the packing facility, and certified as meeting the applicable requirements.
(3) Be reported as required in § 905.148.
§ 905.147 Certificate of privilege.
(a) Application. Application for Certificate of Privilege by a Special Purpose Shipper shall be made on forms furnished by the committee. Each application may contain, but need not be limited to, the name and address of each handler; a list of certified organic citrus fruit growers, including addresses; a list of receivers; the quantity and variety of citrus to be shipped; a certification to the Secretary of Agriculture and to the committee as to the truthfulness of the information shown thereon; and any other appropriate information or documents deemed necessary by the committee or its duly authorized agents for the purposes stated in § 905.146.
(b) Approval. The committee or its duly authorized agents shall give prompt consideration to each application for a Certificate of Privilege. Approval of an application based upon a determination as to whether the information contained therein and other information available to the committee supports approval, shall be evidenced by the issuance of a Certificate of Privilege to the applicant. Each certificate shall expire at the end of the fiscal period.
(c) Suspension or Denial of Certificate of Privilege. The committee may investigate the handling of special purpose shipments under Certificates of Privilege to determine whether Special Purpose Shippers are complying with the requirements and regulations applicable to such certificates. Whenever the committee finds that a Special Purpose Shipper or consignee is failing to comply with the requirements and regulations applicable to such certificates, the Certificate of Privilege issued to such Special Purpose Shipper may be suspended or, in the case of an application for the issuance of an initial Certificate of Privilege, may be denied. Such suspension of a certificate shall be for a reasonable period of time as determined by the committee, but in no event shall it extend beyond the end of the current fiscal period. In the case of the denial of an application for the issuance of an initial certificate, such certificate shall be denied until the applicant comes into compliance with the requirements and regulations applicable to such certificates. Prior to suspending or denying an application for a Certificate of Privilege, the committee shall give the shipper or applicant reasonable advance notice in writing of its intention and the facts and reasons therefor, and afford the shipper or applicant an opportunity, either orally or in writing, to present opposing facts and reasons. The shipper or applicant shall be informed of the committee’s determination in writing and in a timely manner.
§ 905.148 Reports of special purpose shipments under certificates of privilege.
(a) Each handler of citrus shipping under Certificates of Privilege shall supply the committee with reports on each shipment as requested by the committee, on forms supplied by the committee, showing the name and address of the shipper or shippers; name and address of the certified organic Florida citrus fruit grower or growers supplying fruit for such shipment; truck or other conveyance identification; the loading point; destination, consignee; the inspection certificate number; and any other information deemed necessary by the committee.
(b) One copy of the report on each shipment shall be forwarded by the shipper to the committee within 10 days after such shipment, and two copies of the report shall accompany each shipment to the receiver. Upon the receipt of each shipment, the receiver shall complete the applicable portion of the form and return one copy to the committee within 10 days and one copy shall be retained by the shipper. Such completion shall contain a certification to the Secretary and the committee that the citrus described shall be distributed in the outlets described. Failure to complete and return such forms will be cause to remove that receiver’s name from the committee’s list of eligible receivers.
§ 905.149 Procedure for permitting growers to ship tree run citrus fruit.
(a) Tree run citrus fruit. Tree run citrus fruit as referenced in this section is defined in the Florida Department of Citrus (FDOC) regulation 20-35.006, which specifies that “Tree run grade is that grade of naturally occurring sound and wholesome citrus fruit which has not been separated either as to grade or size after severance from the tree.” Wholesomeness is as defined in FDOC regulation 20-62.002. The tree run citrus fruit shipped under this provision also must be from the applying grower’s own grove.
(b) Application. A grower shall apply to ship tree run fruit using a Grower Tree Run Certificate Application, furnished by the committee. Such application shall contain, but not be limited to: the name, address, and phone number of the grower; legal description of the grove(s) from which citrus will be shipped; variety of citrus produced on the identified grove(s); approximate number of boxes produced on the identified grove(s); and a certification to the U.S. Department of Agriculture and to the committee as to the truthfulness of the information shown thereon; and any other appropriate information or documents deemed necessary by the committee or its duly authorized agents.
(c) Approval. The committee or its duly authorized agents shall give prompt consideration to each application for a Grower Tree Run Certificate. Approval of an application will be based upon a determination as to whether the information contained therein and on whether other information available to the committee supports an application’s approval. Approval of an application shall be evidenced by the issuance of a Grower Tree Run Certificate to the applicant. Each certificate shall expire at the end of the fiscal period.
(d) Suspension or denial of a Grower Tree Run Certificate. The committee may investigate the handling of tree run shipments under a Grower Tree Run Certificate to determine whether growers are complying with the requirements and regulations applicable to such certificates. Whenever the committee finds that a grower is failing to comply with the requirements and regulations applicable to such certificates, the Grower Tree Run Certificate issued to such grower may be suspended or, in the case of an application for the issuance of an initial Grower Tree Run Certificate, may be denied. Such suspension of a certificate shall be for a reasonable period of time as determined by the committee, but in no event shall it extend beyond the end of the fiscal period. In the case of the denial of an application for the issuance of an initial certificate, such certificate shall be denied until the applicant comes into compliance with the requirements and regulations applicable to such certificates. Prior to suspending or denying an application for a Grower Tree Run Certificate, the committee shall give the grower reasonable advance notice in writing of its intention and the facts and reasons therefor, and afford the grower an opportunity, either orally or in writing, to present opposing facts and reasons. The grower shall be informed of the committee’s determination in writing and in a timely manner.
(e) To qualify for a Grower Tree Run Certificate, each such grower must notify the committee prior to the first shipment of tree run Florida citrus fruit of the grower’s intent to ship such citrus, submit an application on forms supplied by the committee, and agree to other requirements as set forth in this section with respect to such shipments.
(f) The handling of tree run citrus under a Grower Tree Run Certificate shall be exempt from the provisions of §§ 905.52 and 905.53 and the regulations issued thereunder, under the following conditions:
(1) A grower may only ship up to 150 1
(2) A grower may only ship up to 3,000 boxes per variety per season.
(3) Each grower shall apply to the Citrus Administrative Committee and receive a Grower Tree Run Certificate prior to shipping their own tree run Florida citrus fruit.
(4) Each grower of citrus shipping under a Grower Tree Run Certificate shall supply the committee with reports on each shipment as requested by the committee, on forms supplied by the committee, providing the following information: The name and address of the grower, along with the grower’s Grower Tree Run Certificate number; the legal description of the grove; the variety and amount of citrus shipped; the date the fruit was shipped; and the truck/trailer license number. A copy of the form will be completed for each shipment. One copy of the report will be forwarded by the grower to the committee office within 10 days after such shipment, and one copy of the report will accompany each shipment and be given to the Road Guard Station.
(5) Each container of tree run fruit shipped under a Grower Tree Run Certificate shall be labeled with or contain the name and address of the grower shipping under the Grower Tree Run Certificate.
§ 905.150 Eligibility requirements for public member and alternate member.
(a) The public member shall be neither a producer nor a handler of Florida citrus fruit and shall have no direct financial interest in the production or marketing of citrus fruit (except as a consumer of agricultural products).
(b) The public member should be able to devote sufficient time and express a willingness to attend Committee activities regularly and become familiar with the background and economics of the industry.
(c) The public member must be a resident of the production area.
(d) The public member should be nominated by the Citrus Administrative Committee and should serve a 1-year term which coincides with the term of office of producer and handler members of the Committee.
§ 905.153 Procedure for determining handlers’ permitted quantities of red seedless grapefruit when a portion of sizes 48 and 56 of such variety is restricted.
(a) For the purposes of this section, the prior period specified in § 905.52 is hereby established as an average week within the immediately preceding three seasons. Each handler’s average week shall be computed by adding the total volume of red seedless grapefruit handled in the immediately preceding three seasons and dividing the total by 99. The average week for handlers with less than three previous seasons of shipments shall be calculated by adding the total volume of shipments for the seasons they did ship red seedless grapefruit, divide by the number of seasons, divide further by 33. If crop conditions limit shipments from any or all of the immediately preceding three season(s), the committee may use a prior season or seasons for the purposes of calculating an average week. New handlers with no record of shipments could ship size 48 and 56 red seedless grapefruit as a percentage of total shipments equal to the percentage applied to other handlers’ average week; once such handlers have recorded shipments, their average week shall be calculated as an average of total shipments for the weeks they have shipped red seedless grapefruit during the current season. When used in the regulation of red seedless grapefruit, the term season means the weeks beginning the third Monday in September and ending the first Sunday in the following May. The term regulation period means the 22-week period beginning the third Monday in September of the current season.
(b) When a size limitation restricts the shipment of a portion of sizes 48 and 56 red seedless grapefruit during a particular week as provided in § 905.52, the committee shall compute the quantity of sizes 48 and 56 red seedless grapefruit that may be shipped by each handler by multiplying the handler’s calculated average week shipments of such grapefruit by the percentage established by regulation for red seedless grapefruit for that week. Such set percentage may vary from week to week but shall not be less than 25 percent in any week.
(c) The committee shall notify each handler of the quantity of size 48 and 56 red seedless grapefruit such handler may handle during a particular week.
(d) During any regulation week for which the Secretary has fixed the percentage of sizes 48 and 56 red seedless grapefruit, any person who has received an allotment may handle, in addition to their total allotment available, an amount of size 48 and 56 red seedless grapefruit up to 10 percent greater than their allotment. The quantity of the overshipment shall be deducted from the handler’s allotment for the following week. Overshipments will not be allowed during the last week of regulation. If the handler fails to use his or her entire allotment, the undershipment is not carried forward to the following week. Each handler shipping size 48 and/or 56 red seedless grapefruit during the regulation period shall complete and submit to the committee, no later than 2 p.m. of the business day following the shipment, a report of red seedless grapefruit shipments by day for each regulation week.
(e) Any handler may transfer or loan any or all of their shipping allotment (excluding the overshipment allowance) of size 48 and 56 red seedless grapefruit to any other handler. Each handler party to such transfer or loan shall no later than noon on the Wednesday following the regulation week notify the committee so the proper adjustment of records may be made. In each case, the committee shall confirm in writing all such transactions, prior to the following week, to the handlers involved. The committee may act on behalf of handlers wanting to arrange allotment loans or participate in the transfer of allotments.
(f) New handlers with no record of shipments planning to ship red seedless grapefruit covered by any percentage size regulation shall register with the committee prior to the regulation period so their allotments can be properly calculated. Each new handler shall provide on a form furnished by the committee their Florida citrus fruit dealer’s license number, their Florida Department of Agriculture and Consumer Services’ Fruit and Vegetable Division packinghouse registration number, and the physical location of the packinghouse where the red seedless grapefruit is to be prepared for market. The committee shall notify any new handlers of their allotments prior to the regulation period.
§ 905.161 Repacking shipper.
(a) A repacking shipper is a person who repacks and ships citrus fruit grown in the production area in Florida which has been previously inspected and certified as meeting the requirements specified under § 905.52 of the order, and who has obtained a currently valid repacking certificate of privilege issued to him or her by the committee as specified in § 905.162.
(b) Each repacking shipper, to qualify for a repacking certificate of privilege, must notify the committee 10 days prior to his or her first shipment of repacked citrus fruit during a particular fiscal period of his or her intent to ship such citrus fruit, submit an Application for a Repacking Certificate of Privilege form supplied by the committee, and agree to other requirements as set forth in §§ 905.162 and 905.163 inclusive, with respect to such shipments. The repacking shipper shall certify that he or she will only handle previously inspected and certified citrus fruit.
(c) Any repacking shipper who handles citrus fruit shipped under a repacking certificate of privilege must, other order provisions not withstanding, meet the following requirements:
(1) All such citrus fruit must be positive lot identified by the Federal or Federal/State Inspection Service and certified as meeting the applicable requirements for citrus fruit shipped to the domestic market (fruit shipped from the production area to any point outside thereof in the 48 contiguous States and the District of Columbia of the United States), prior to being repacked and shipped by the repacking shipper. Each such citrus fruit shipment shall be accompanied by a Federal-State manifest that certifies the grade and amount of each load of citrus fruit received, which shall be retained by the repacking shipper.
(2) Be reported as required in § 905.163.
(3) The repacking facility used to repack previously inspected and certified citrus fruit by the repacking shipper shall not have operable equipment to wash, brush, wax, or dry citrus fruit.
(4) All citrus fruit handled by a repacking shipper shall be packed in approved Florida Department of Citrus fruit containers.
(5) Each container shipped with such citrus fruit shall be marked with the repacking shipper’s repacking certificate of privilege number.
§ 905.162 Repacking certificate of privilege.
(a) Application. Application for a repacking certificate of privilege by a repacking shipper shall be made on an Application for a Repacking Certificate of Privilege form supplied by the committee. Each such application shall contain, but need not be limited to, the name, address and Florida citrus fruit dealer license number of the applicant; approximate number of boxes to be handled during the season; the various types of containers to be used to ship the repacked citrus fruit; a certification to the Secretary of Agriculture and to the committee as to the truthfulness of the information shown thereon; and any other appropriate information or documents deemed necessary by the committee or duly authorized agents for the purposes stated in § 905.161.
(b) Approval. The committee or its duly authorized agents shall give prompt consideration to each application for a repacking certificate of privilege. Approval of an application based upon a determination as to whether the information contained therein and other information available to the committee supports approval, shall be evidenced by the issuance of a repacking certificate of privilege to the applicant. Each such certificate shall expire at the end of the fiscal period.
(c) Suspension or denial of certificate of privilege. The committee may investigate the handling of repacked fresh citrus fruit shipments under certificates of privilege to determine whether repacking shippers are complying with the requirements and regulations applicable to such certificates. Whenever the committee finds that a repacking shipper is failing to comply with the requirements and regulations applicable to such certificates, the certificate of privilege issued to such repacking shipper may be suspended or, in the case of an application for the issuance of an initial certificate of privilege, may be denied. Such suspension of a certificate shall be for a reasonable period of time as determined by the committee, but in no event shall it extend beyond the end of the then current fiscal period. In the case of the denial of an application for the issuance of an initial certificate, such certificate shall be denied until the applicant comes into compliance with the requirements and regulations applicable to such certificates. Prior to suspending or denying an application for a certificate of privilege, the committee shall give the shipper or applicant an opportunity, either orally or in writing, to present opposing facts and reasons. The shipper or applicant shall be informed of the committee’s determination in writing and in a timely manner.
§ 905.163 Reports of shipments under repacking certificate of privilege.
(a) Each repacking shipper who handles citrus fruit under a repacking certificate of privilege shall supply the committee with reports on each shipment as requested by the committee, on a Report of Shipments Under Certificate of Privilege form supplied by the committee, showing the name and address of the repacking shipper; name and address of the handler supplying the inspected and certified citrus fruit for such shipment; number of packages; size and containers; brand; grade; certificate number; and any other information deemed necessary by the committee. Each repacking shipper of citrus fruit shall maintain on file a copy of the Federal-State manifest that certifies the grade and amount of each load of citrus fruit received. These manifests shall be readily available to the committee upon request.
(b) One copy of the Report of Shipments Under Certificate of Privilege form on each shipment shall be forwarded to the committee promptly, one copy of such form shall be retained by the repacking shipper, and one copy of such form shall accompany the shipment. Failure to complete and return such form shall be cause for suspension of the repacking shippers repacking certificate of privilege.
§ 905.171 Handler supplier report.
Each handler shall furnish a supplier report to the Committee on an annual basis. Such reports shall be made on forms provided by the Committee and shall include the name and business address of each grower whose fruit was shipped or acquired by the handler during the season. Handlers shall submit this report to the Committee not later than June 15 of each season.
Subpart C – Assessment Rate
§ 905.235 Assessment rate.
On and after August 1, 2018, an assessment rate of $0.015 per 4/5-bushel carton or equivalent is established for Florida citrus covered under the Order.
Subpart D – Grade and Size Requirements
§ 905.306 Orange, Grapefruit, Tangerine and Tangelo Regulation.
(a) No handler shall ship between the production area and any point outside thereof, in the 48 contiguous States and the District of Columbia of the United States, any variety of fruit listed in column (1) of Table I, except for Ambersweet and Temple, unless such variety meets the applicable minimum grade and size (with tolerances for size as specified in paragraph (c) of this section) specified for such variety in columns (2) and (3) of Table I: Provided, That all grapefruit meet the minimum maturity requirements specified in paragraph (e) of this section.
Table I
| Variety | Regulation period | Minimum grade | Minimum diameter (inches) |
|---|---|---|---|
| (1) | (2) | (3) | (4) |
| Early and midseason | U.S. No. 1 | 2 | |
| Navel | U.S. No. 1 | 2 | |
| Valencia and other late type | September 1-May 14 May 15-June 14 | U.S. No. 1 U.S. No. 1 Golden | 2 2 |
| June 15-August 31 | U.S. No. 2, External/U.S. No. 1, Internal | 2 | |
| Grapefruit, Seedless | U.S. No. 1 | 3 | |
| Tangerines: | |||
| Fallglo | U.S. No. 1 | 2 | |
| Honey | Florida No. 1 | 2 | |
| Sunburst | U.S. No. 1 | 2 | |
| Tangelos | U.S. No. 1 | 2 | |
(b) No handler shall ship to any destination outside the 48 contiguous States and the District of Columbia of the United States any variety of fruit listed in column (1) of Table II, except for Ambersweet and Temple, unless such variety meets the applicable minimum grade and size (with tolerances for size as specified in paragraph (c) of this section) specified for such variety in columns (2) and (3) of Table II: Provided, That all grapefruit meet the minimum maturity requirements specified in paragraph (e) of this section.
Table II
| Variety | Minimum grade | Minimum diameter (inches) |
|---|---|---|
| (1) | (2) | (3) |
| Oranges | U.S. No. 1 | 2 |
| Navels | U.S. No. 1 Golden | 2 |
| Grapefruit, Seedless | U.S. No. 1 | 3 |
| Tangerines: | ||
| Fallglo | U.S. No. 1 | 2 |
| Honey | Florida No. 1 | 2 |
| Sunburst | U.S. No. 1 | 2 |
| Tangelos | U.S. No. 1 | 2 |
(c) Size tolerances. To allow for variations incident to proper sizing in the determination of minimum diameters as prescribed in Tables I and II, not more than 10 percent, by count, of the fruit in any lot of containers may fail to meet the minimum diameter size requirements, and not more than 15 percent, by count, in any individual sample may fail to meet the minimum diameter size requirements specified: Provided, That such tolerances for other than Navel and Temple oranges shall be based only on the oranges in the lot measuring 2
(d) Terms used in the marketing order including Improved No. 2 grade for grapefruit, when used herein, mean the same as is given to the terms in the order; Florida No. 1 grade for Honey tangerines means the same as provided in Rule No. 20-35.03 of the Regulations of the Florida Department of Citrus, and terms relating to grade, except Improved No. 2 grade for grapefruit and diameter, shall mean the same as is given to the terms in the revised U. S. Standards for Grades of Florida Oranges and Tangelos (7 CFR 51.1140 through 51.1179), the revised U. S. Standards for Florida Tangerines (7 CFR 51.1810 through 51.1837), or the revised U. S. Standards for Grades of Florida Grapefruit (7 CFR 51.750 through 51.784).
(e)(1) All grapefruit shipped under the order shall meet minimum maturity requirements of 8.0 percent soluble solids (sugars) and 7.5 to 1 solids to acid ratio or shall comply with one of the alternate equivalent soluble solids and solids to acid ratio combinations set forth in Table III: Provided, That the minimum ratio shall not drop below 7.2 even if the soluble solids (sugars) reaches a level higher than 9.6.
(2) Notwithstanding the provision of paragraph (e)(1) of this section, for the period December 23, 2004 to July 31, 2005, all grapefruit shipped under the order shall meet minimum maturity requirements of 7.5 percent soluble solids (sugars) and 7.5 to 1 solids to acid ratio or shall comply with one of the alternate equivalent soluble solids and solids to acid ratio combinations set forth in Table III: Provided, That the minimum ratio shall not drop below 7.2 even if the soluble solids (sugars) reaches a level higher than 9.6.
Table III
| Minimum total solids (sugars), % | Solids to acid minimum ratio |
|---|---|
| 8.0 to (not including) 9.1 | 7.50 to 1 |
| 9.1 to (not including) 9.2 | 7.45 to 1 |
| 9.2 to (not including) 9.3 | 7.40 to 1 |
| 9.3 to (not including) 9.4 | 7.35 to 1 |
| 9.4 to (not including) 9.5 | 7.30 to 1 |
| 9.5 to (not including) 9.6 | 7.25 to 1 |
| 9.6 and greater | 7.20 to 1 |
§ 905.350 [Reserved]
Subpart E – Interpretations
§ 905.400 Interpretation of certain provisions.
(a) In interpreting the provisions of paragraph (d) of § 905.52, the limitation on shipment of any variety of fruit regulated pursuant to paragraph (a)(3) of that section, which was prepared for market during the effective period of such regulation, shall not be deemed to apply to shipment of such variety which was prepared for market incidentally as part of a lot packed for export and shipped following the period of regulation.
(b) Prior to shipment of any variety of fruit so prepared, the handler shall provide the Citrus Administrative Committee or its designated agent a copy of the shipping manifest applicable to such shipment with a notation thereon that the fruit was packed incidentally as part of a lot packed for export.
PART 906 – ORANGES AND GRAPEFRUIT GROWN IN LOWER RIO GRANDE VALLEY IN TEXAS
Subpart A – Order Regulating Handling
Definitions
§ 906.1 Secretary.
Secretary means the Secretary of Agriculture of the United States, or any employee of the Department to whom authority has heretofore been delegated, or to whom authority may hereafter be delegated, to act in his stead.
§ 906.2 Act.
Act means Public Act No. 10, 73d Congress, as amended and as re-enacted and amended by the Agricultural Marketing Agreement Act of 1937, as amended (sections 1-19, 48 Stat. 31, as amended; 7 U.S.C. 601-674).
§ 906.3 Person.
Person means an individual, partnership, corporation, association, or any other business unit.
§ 906.4 Production area.
Production area means all territory in the counties of Cameron, Hidalgo, and Willacy in the State of Texas.
§ 906.5 Fruit.
Fruit means either or both of the following citrus fruits grown in the production area: (a) Citrus grandis, Osbeck, commonly called grapefruit, and (b) Citrus sinensis, Osbeck, commonly called oranges.
§ 906.6 Handler.
Handler is synonymous with shipper and means any person (except a common or contract carrier of fruit owned by another person) who handles fruit or causes fruit to be handled.
(a) Independent handler. Independent handler means any handler other than a handler that is a cooperative marketing organization.
(b) [Reserved]
§ 906.7 Handle.
Handle or ship means to transport or sell fruit, or in any other way to place fruit, in the current of commerce between the production area and any point outside thereof in the United States, Canada, or Mexico.
§ 906.8 Producer.
Producer means any person engaged in a proprietary capacity in the production of fruit for market.
(a) Independent producer. Independent producer means any producer who does not market his fruit through a handler that is a cooperative marketing organization.
(b) [Reserved]
§ 906.9 Grade and size.
Grade means any one of the established grades of fruit and size means any one of the established sizes of fruit as defined and set forth in the applicable U.S. Standards for fruit (§§ 51.680 through 51.714 and §§ 51.620 through 51.653) issued by the United States Department of Agriculture, or amendments thereto, or modifications thereof, or variations based thereon recommended by the committee and approved by the Secretary.
§ 906.10 Pack.
Pack means the specific grade, quality, size, or arrangement of fruit in a particular container or containers.
§ 906.11 Maturity.
Maturity means various degrees of ripeness for fruit as established by the committee with approval of the Secretary.
§ 906.12 Container.
Container means any box, bag, crate, hamper, basket, package, bulk carton, or any other type of receptacle used in the packaging, transportation, sale, or other handling of fruit.
§ 906.13 Variety or varieties.
Variety or varieties means any one or more of the following groupings or classifications of fruit: (a) Navel oranges; (b) Early and Midseason oranges, except Navel oranges; (c) Valencia and similar late type oranges; (d) white seeded grapefruit; (e) white seedless grapefruit; (f) pink and red seeded grapefruit; and (g) pink and red seedless grapefruit.
§ 906.14 Committee.
Committee means the Texas Valley Citrus Committee, established pursuant to § 906.18.
§ 906.15 Fiscal period.
Fiscal period means the period beginning August 1 and ending July 31 following; or such annual beginning and ending dates as may be approved by the Secretary pursuant to recommendations of the committee.
§ 906.16 District.
District means any of the geographic divisions of the production area initially established pursuant to § 906.20 or as re-established pursuant to § 906.21.
Committee
§ 906.18 Establishment and membership.
(a) The Texas Valley Citrus Committee, consisting of fifteen (15) members is hereby established. For each member of the committee there shall be an alternate who shall have the same qualifications as the member.
(b) Nine members shall be producers who produce fruit in the district which they represent and are residents of the production area. Two of the producer members shall be producers who market their fruit through cooperative marketing organizations, and seven of the producer members shall be independent producers. Producer members shall not have a proprietary interest in or be employees of a handler organization: Provided, That members of a cooperative marketing organization shall not be considered as having a proprietary interest in a handler organization because of such membership.
(c) Six members shall be handlers who are residents of the production area. One handler member shall represent cooperative marketing organizations; five handler members shall represent independent handlers.
§ 906.19 Term of office.
(a) The term of office of committee members and their respective alternates shall be for three years beginning August 1 and ending July 31: Provided, That the term of office of one-third of the initial producer members and alternates and one-third of the initial handler members and alternates shall end July 31, 1961, and the term of office of an identical number of such committee members and alternates shall end July 31, 1962. No member or alternate member shall succeed himself.
(b) Members and alternates shall serve in that capacity during the portion of the term of office for which they are selected and have qualified, and until their respective successors are selected and have qualified. Should a producer member or alternate member change his marketing affiliation during his term of office, he may continue to serve in such capacity during the remainder of such term.
§ 906.20 Districts.
For the purpose of determining the basis for selecting producer committee members the following districts of the production area are hereby initially established:
§ 906.21 Redistricting.
The committee may recommend, and pursuant thereto the Secretary may approve, the reapportionment of members among districts, the reapportionment of members between grower and handler members representing cooperative marketing organizations and independent grower and independent handler members, and the re-establishment of districts within the production area. In recommending such changes, the committee shall give consideration to: (a) Shifts in production; (b) the importance of new production in its relation to existing districts; (c) the equitable relationship of committee membership and districts; (d) changes in amount of fruit handled by cooperative marketing organizations in relation to fruit handled by independent handlers; and (e) other relevant factors. No changes in districting or in apportionment of members may become effective in less than 30 days prior to the date on which terms of office begin each year and no recommendations for such redistricting or reapportionment may be made less than six months prior to such date.
§ 906.22 Selection.
(a) From District No. 1 the Secretary shall select initially two producer members and their alternates representing independent producers. From District No. 2 the Secretary shall select initially two producer members and their respective alternates representing producers who market their fruit through cooperative marketing organizations, and four producer members and their respective alternates representing independent producers. From District No. 3 the Secretary shall select initially one producer member and his alternate representing independent producers.
(b) From the production area the Secretary shall select initially six handler members and their respective alternates. One handler member shall represent cooperative marketing organizations and five handler members shall represent independent handlers.
§ 906.23 Nominations.
The Secretary may select the members of the committee and alternates from nominations which may be made in the following manner:
(a) A meeting of producers who are members of cooperative marketing organizations and a meeting of independent producers shall be held for each district having both cooperative and independent producer members and alternates to elect nominees for such positions. For all other districts, meetings of all producers shall be held for such purpose. A meeting of handlers representing cooperative marketing organizations and a meeting of independent handlers shall be held in the production area to elect nominees for handler members and alternates. For nominations to the initial committee, the meetings may be sponsored by the United States Department of Agriculture or by any agency or group requested to do so by such Department. For nominations for succeeding members and alternates on the committee, the committee shall hold such meetings or cause them to be held prior to June 15 of each year, after the effective date of this subpart.
(b) At each such meeting at least one nomination shall be designated for each position as member and alternate.
(c) Nominations for committee members and alternates following the initial committee shall be supplied to the Secretary not later than July 1 each year.
(d) In districts having both cooperative and independent producer members, only producers who market their fruit through cooperative marketing organizations may participate in designating nominees for members and alternates representing cooperative producers; and only independent producers may participate in designating nominees for members and alternates representing independent producers. In all other districts, all producers may participate in designating the nominees for producer members and alternates. Only handlers representing cooperative marketing organizations may participate in designating nominees for members and alternates representing cooperative handlers; and only independent handlers may participate in designating nominees for members and alternates representing independent handlers. In the event that a person is engaged in producing fruit in more than one district such person shall elect the district within which he may participate, as aforesaid, in designating nominees.
(e) Regardless of the amount of fruit handled by a handler or the number of districts in which a person produces fruit, each person is entitled to cast only one vote on behalf of himself, his agents, subsidiaries, affiliates, and representatives in designating nominees for committee members and alternates. An eligible voter’s privilege of casting only one vote shall be construed to permit a voter to cast one vote for each position to be filled. Votes must be cast in person at all nomination meetings.
§ 906.24 Failure to nominate.
If nominations are not made within the time and in the manner specified in § 906.23, the Secretary may, without regard to nominations, select the committee members and alternates, which selection shall be on the basis of the representation provided for in §§ 906.20 through 906.22, inclusive.
§ 906.25 Acceptance.
Any person selected as a committee member or alternate shall qualify by filing a written acceptance with the Secretary within ten days after being notified of such selection.
§ 906.26 Vacancies.
To fill committee vacancies, the Secretary may select such members or alternates from unselected nominees on the current nominee list from the district and group involved, or from nominations made in the manner specified in § 906.23. If the names of nominees to fill any such vacancy are not made available to the Secretary within 30 days after such vacancy occurs, such vacancy may be filled without regard to nominations, which selection shall be made on the basis of representation provided for in §§ 906.20 through 906.22, inclusive.
§ 906.27 Alternate members.
An alternate member of the committee shall act in the place and stead of the member for whom he is an alternate, during such member’s absence or when designated to do so by the member for whom he is an alternate. In the event both a member and his alternate are unable to attend a committee meeting, the committee members present may designate another alternate of the same classification (handler or producer, and to the extent practical, independent, or co-op) to serve in such member’s place and stead. In the event of the death, removal, resignation, or disqualification of a member, his alternate shall act for him until a successor of such member is selected and has qualified.
§ 906.28 Procedure.
Ten members of the committee shall be necessary to constitute a quorum, six of whom shall be producer members. Ten affirmative votes shall be required to pass any motion or approve any committee action. All votes shall be cast in person.
§ 906.29 Expenses and compensation.
The members of the committee, and alternates, shall serve without compensation; but they may be reimbursed for expenses necessarily incurred by them in the performance of their duties and in the exercise of their powers under this subpart.
§ 906.30 Powers.
The committee shall have the following powers:
(a) To administer the provisions of this part in accordance with its terms;
(b) To make rules and regulations to effectuate the terms and provisions of this part;
(c) To receive, investigate, and report to the Secretary complaints of violation of the provisions of this part; and
(d) To recommend to the Secretary amendments to this part.
§ 906.31 Duties.
It shall be, among other things, the duty of the committee:
(a) At the beginning of each term of office, to meet and organize, to select a chairman and such other officers as may be necessary, to select sub-committees, and to adopt such rules and regulations for the conduct of its business as it may deem advisable;
(b) To act as intermediary between the Secretary and any producer or handler;
(c) To furnish to the Secretary such available information as he may request;
(d) To appoint such employees, agents, and representatives as it may deem necessary and to determine the salaries and define the duties of each such person;
(e) To require adequate fidelity bonds for all persons handling funds;
(f) To investigate from time to time and to assemble data on the growing, harvesting, shipping, and marketing conditions with respect to fruit;
(g) To prepare a marketing policy;
(h) To recommend marketing regulations to the Secretary;
(i) To recommend rules and procedures for, and to make determinations in connection with, issuance of certificates of privilege;
(j) To keep minutes, books, and records which clearly reflect all of the acts and transactions of the committee; and such minutes, books, and records shall be subject to examination at any time by the Secretary or his authorized agent or representative; and minutes of each committee meeting shall be promptly submitted to the Secretary;
(k) At the beginning of each fiscal period, to prepare a budget of its expenses for such fiscal period, together with a report thereon;
(l) To cause the books of the committee to be audited by a competent accountant at least once each fiscal period, and at such other time as the committee may deem necessary or as the Secretary may request (the report of each such audit shall show the receipt and expenditure of funds collected pursuant to this part; a copy of each such report shall be furnished to the Secretary and a copy of each report shall be made available at the principal office of the committee for inspection by producers and handlers); and
(m) To consult, cooperate, and exchange information with other marketing agreement committees and other individuals or agencies in connection with all proper committee activities and objectives under this part.
Expenses and Assessments
§ 906.32 Expenses.
The committee is authorized to incur such expenses as the Secretary may find are reasonable and likely to be incurred during each fiscal period for its maintenance and functioning, and for such purposes as the Secretary, pursuant to this subpart, determines to be appropriate. Each handler’s share of such expense shall be proportionate to the ratio between the total quantity of fruit handled by him as the first handler thereof during a fiscal period and the total quantity of fruit handled by all handlers as first handlers thereof during such fiscal period.
§ 906.33 Budget.
At the beginning of each fiscal period and as may be necessary thereafter, the committee shall prepare an estimated budget of income and expenditures necessary for the administration of this part. The committee shall recommend the rate of assessment calculated to provide adequate funds to defray its proposed expenditures. The committee shall present such budget to the Secretary with an accompanying report showing the basis for its estimates and recommendations.
§ 906.34 Assessments.
(a) The funds to cover the committee’s expenses shall be acquired by the levying of assessments upon handlers as provided in this subpart. Each handler who first handles fruit shall, with respect to the fruit so handled by him, pay assessments to the committee upon demand, which assessments shall be in payment of such handler’s pro rata share of the committee’s expenses.
(b) Assessments shall be levied upon handlers at rates established by the Secretary. Such rates may be established upon the basis of the committee’s recommendations and other available information. Such rates may be applied to specified containers used in the production area.
(c) The rate of assessment may be increased at any time by the Secretary if he finds such increase is necessary in order that the money collected shall be adequate to cover the committee’s expenses during a given fiscal period. Such increase shall be applicable to all fruit handled during such fiscal period.
(d) The payment of assessments for the maintenance and functining of the committee may be required under this part throughout the period it is in effect irrespective of whether particular provisions of this part are suspended or become inoperative.
§ 906.35 Accounting.
(a) If, at the end of a fiscal period, the assessments collected are in excess of expenses incurred, such excess shall be accounted for in accordance with one of the following:
(1) If such excess is not retained in a reserve, as provided in paragraph (a)(2) of this section, it shall be refunded proportionately to the persons from whom collected.
(2) The committee, with the approval of the Secretary may carry over such excess into subsequent fiscal periods as a reserve: Provided, That funds already in the reserve do not equal approximately 1 fiscal period’s expenses. Such reserve funds may be used for any expenses authorized pursuant to § 906.32 and for necessary expenses of liquidation in the event of termination of this part. Upon such termination, any funds not required to defray the necessary expenses of liquidation shall be disposed of in such manner as the Secretary may determine to be appropriate. To the extent practical, such funds shall be returned pro rata to the persons from whom such funds were collected.
(b) All funds received by the committee pursuant to the provisions of this part shall be used solely for the purpose specified in this part and shall be accounted for in the manner provided in this part. The Secretary may at any time require the committee and its members to account for all receipts and disbursements.
(c) Upon the removal or expiration of the terms of office of any member of the committee, such member shall account for all receipts and disbursements and deliver all property and funds in his possession to the committee, and shall execute such assignments and other instruments as may be necessary or appropriate to vest in the committee full title to all of the property, funds, and claims vested in such member pursuant to this part.
(d) The committee may make recommendations to the Secretary for one or more of the members thereof, or any other person, to act as a trustee for holding records, funds, or any other committee property during periods of suspension of this subpart, or during any period or periods when regulations are not in effect, and if the Secretary determines such action appropriate, he may direct that such person or persons shall act as trustee or trustees for the committee.
Research and Development
§ 906.37 Research and development.
The committee, with the approval of the Secretary, may establish or provide for the establishment of marketing research and development projects, including paid advertising, designed to assist, improve, or promote the marketing, distribution, and consumption of fruit. Any such project for the promotion and advertising of fruit may utilize an identifying mark which shall be made available for use by all handlers in accordance with such terms and conditions as the committee, with the approval of the Secretary, may prescribe. The expenses of such projects shall be paid from funds collected pursuant to § 906.34.
Regulation
§ 906.38 Marketing policy.
Prior to or at the same time as initial recommendations are made pursuant to § 906.39, the committee shall submit to the Secretary a report setting forth the marketing policy it deems desirable for the industry to follow in shipping fruit from the production area during the ensuing season. Additional reports shall be submitted from time to time if it is deemed advisable by the committee to adopt a new or modified marketing policy because of changes in the demand and supply situation with respect to fruit. The committee shall publicly announce the submission of each marketing policy report and copies thereof shall be available at the committee’s office for inspection by any producer or handler. In determining each such marketing policy the committee shall give due consideration to the following:
(a) Market prices of fruit, including prices by grade, size, and quality in different packs, and such prices by foreign competing areas;
(b) Supply of fruit, by grade, size, and quality in the production area, and in other production areas, including foreign production areas;
(c) Trend and level of consumer income;
(d) Marketing conditions affecting fruit prices; and
(e) Other relevant factors.
§ 906.39 Recommendations for regulations.
The committee, upon complying with the requirements of § 906.38, may recommend regulations to the Secretary whenever it finds that such regulations, as are provided for in this sub-part, will tend to effectuate the declared policy of the act. The committee shall give notice to handlers of any such recommendation at the same time such recommendation is submitted to the Secretary.
§ 906.40 Issuance of regulations.
The Secretary shall limit the handling of fruit whenever he finds from the recommendation and information submitted by the committee, or from other available information, that such rgulation would tend to effectuate the declared policy of the act. Such regulations may:
(a) Limit the handling of particular grades, sizes, qualities, maturities, or packs of any or all varieties of fruit during a specified period or periods: Provided, That specific maturity requirements applicable to the handling of any variety may be prescribed under this section only in the event that appropriate maturity requirements for such variety are not in effect under State authority.
(b) Limit the handling of particular grades, sizes, qualities, or packs of fruit differently for different varieties, for different containers, for different purposes specified in § 906.42, or any combination of the foregoing, during any period.
(c) Limit the handling of fruit by establishing, in terms of grades, sizes, or both, minimum standards of quality and maturity.
(d) Fix the size, weight, capacity, dimensions, or pack of the container or containers which may be used in the packaging, transportation, sale, shipment, or other handling of fruit.
(e) Prohibit the handling (1) of any fruit which does not have marked on each container the grade or the registered grade label of the fruit contained therein; (2) of any grapefruit which does not have marked on each fruit the word Texas or other words implying Texas origin, except that the committee may recommend and the Secretary establish a tolerance for grapefruit in any container or lot not so marked; and (3) of any container fruit which is misbranded as to variety.
(f) No regulations may be issued under the provisions of this subpart which allots to individual handlers the quantity of fruit which each handler may ship during any regulation period.
§ 906.41 Gift fruit shipments.
The handling to any person of gift packages of fruit individually addressed to such person, in quantities aggregating not more than 500 pounds and not for resale, are exempt from the provisions of §§ 906.34, 906.40, and 906.45, and the regulations issued thereunder, but shall conform to such safeguards as may be established pursuant to § 906.43.
§ 906.42 Shipments for special purposes.
Upon the basis of recommendations and information submitted by the committee, or other available information, the Secretary, whenever he finds that it will tend to effectuate the declared policy of the act, shall modify, suspend, or terminate regulations issued pursuant to §§ 906.34, 906.40, 906.45, or any combination thereof, in order to facilitate the handling of fruit:
(a) For relief or for charity;
(b) For processing or for manufacture or conversion into specified products; and
(c) In such minimum quantities and for such other purposes as may be specified by the committee with the approval of the Secretary.
§ 906.43 Notification of regulations.
The Secretary shall notify the committee of any regulations issued or of any modification, suspension, or termination thereof. The committee shall give reasonable notice thereof to handlers.
§ 906.44 Safeguards.
(a) The committee, with the approval of the Secretary, may prescribe adequate safeguards to prevent the handling of fruit pursuant to § 906.41 or § 906.42 from entering channels of trade for other than the specific purpose authorized therefor, and rules governing the issuance and the contents of certificates of privilege if such certificates are prescribed as safeguards by the committee. Such safeguards may include requirements that:
(1) Handlers shall file applications with the committee to ship fruit pursuant to §§ 906.41 and 906.42.
(2) Handlers shall obtain inspection provided by § 906.45, or pay the assessment levied pursuant to § 906.34, or both, in connection with shipments made under § 906.42: Provided, That such inspection and assessment requirements shall not apply to fruit handled for canning or freezing.
(3) Handlers shall obtain certificates of privilege from the committee to handle fruit affected or to be affected under the provisions of §§ 906.41 and 906.42.
(b) The committee may rescind or deny certificates of privilege to any handler if proof is obtained that fruit handled by him for the purposes stated in §§ 906.41 and 906.42 was handled contrary to the provisions of this part.
(c) The Secretary shall have the right to modify, change, alter, or rescind any safeguards prescribed and any certificates issued by the committee pursuant to the provisions of this section.
(d) The committee shall make reports to the Secretary, as requested, showing the number of applications for such certificates, the quantity of fruit covered by such applications, the number of such applications denied and certificates granted, the quantity of fruit handled under duly issued certificates, and such other information as may be requested.
Inspection
§ 906.45 Inspection and certification.
(a) During any period in which handling of a variety of a type of fruit is regulated pursuant to §§ 906.34, 906.40, 906.42, or any combination thereof, no handler shall handle any variety of such type of fruit which has not been inspected by an authorized representative of the Federal or Federal-State Inspection Service, unless such handling is relieved from such requirements pursuant to § 906.41 or § 906.42, or both;
(b) Regrading, resorting, or repacking any lot of fruit shall invalidate any prior inspection insofar as the requirements of this section are concerned. No handler shall handle fruit after it has been regraded, resorted, repacked, or in any other way prepared for market, unless each lot of fruit is inspected by an authorized representative of the Federal or Federal-State Inspection Service: Provided, That the committee, with the approval of the Secretary, may provide for waiving inspection requirements on any fruit in circumstances where it appears reasonably certain that, after regrading, resorting, or repacking, such fruit meets the applicable quality and other standards then in effect;
(c) Insofar as the requirements of this section are concerned, the length of time for which an inspection certificate is valid may be established by the committee with the approval of the Secretary;
(d) When fruit is inspected in accordance with the requirements of this section a copy of each inspection certificate issued shall be made available to the committee by the inspection service;
(e) The committee may recommend and the Secretary may require that any fruit handled or transported by motor vehicle shall be accompanied by a copy of the inspection certificate issued thereon, which certificate shall be surrendered to such authority as may be designated.
Reports
§ 906.51 Reports.
Upon request of the committee, made with the approval of the Secretary, each handler shall furnish to the committee, in such manner and at such time as it may prescribe, such reports and other information as may be necessary for the committee to perform its duties under this part.
(a) Such reports may include, but are not necessarily limited to, the following:
(1) The quantities of fruit received by a handler;
(2) The quantities disposed of by him, segregated as to the respective quantities subject to regulation and not subject to regulation;
(3) The date of each such disposition and the identification of the carrier transporting such fruit;
(4) Identification of the inspection certificates, and the certificates of privilege, if any, pursuant to which the fruit was handled, together with the destination of each lot of fruit handled pursuant to § 906.41.
(b) All such reports shall be held under appropriate protective classification and custody of the committee, or duly appointed employees thereof, so that the information contained therein which may adversely affect the competitive position of any handler in relation to other handlers will not be disclosed. Compilations of general reports from data submitted by handlers is authorized, subject to prohibition of disclosure of individual handlers identities or operations.
(c) Each handler shall maintain for at least two succeeding years such records of the fruit received and disposed of by such handler as may be necessary to verify the reports he submits to the committee pursuant to this section.
Miscellaneous Provisions
§ 906.52 Compliance.
Except as provided in this subpart, no handler shall handle fruit, the handling of which has been prohibited by the Secretary in accordance with provisions of this subpart, or the rules and regulations issued thereunder, and no handler shall handle fruit except in conformity to the provisions of this part.
§ 906.53 Right of the Secretary.
The members of the committee (including successors and alternates), and any agent or employee appointed or employed by the committee, shall be subject to removal or suspension by the Secretary at any time. Each and every order, regulation, decision, determination or other act of the committee shall be subject to the continuing right of the Secretary to disapprove of the same at any time. Upon such disapproval, the disapproved action of the said committee shall be deemed null and void, except as to acts done in reliance thereon or in compliance therewith prior to such disapproval by the Secretary.
§ 906.54 Effective time.
The provisions of this subpart, or any amendment thereto, shall become effective at such time as the Secretary may declare and shall continue in force until terminated in one of the ways specified in this subpart.
§ 906.55 Termination.
(a) The Secretary may, at any time, terminate the provisions of this subpart by giving at least one day’s notice by means of a press release or in any other manner he may determine.
(b) The Secretary may terminate or suspend the operation of any or all of the provisions of this subpart whenever he finds that such provisions do not tend to effectuate the declared policy.
(c) The Secretary shall terminate the provisions of this subpart at the end of any fiscal period whenever he finds that such termination is favored by a majority of producers who, during a representative period, have been engaged in the production of fruit for market: Provided, That such majority has, during such representative period, produced for market more than fifty percent of the volume of such fruit produced for market.
(d) The provisions of this subpart shall, in any event, terminate whenever the provisions of the act authorizing them cease to be in effect.
§ 906.56 Proceedings after termination.
(a) Upon the termination of the provisions of this subpart the then functioning members of the committee shall, for the purpose of liquidating the affairs of the committee continue as joint trustees of all the funds and property then in the possession of or under control of the committee, including claims for any funds unpaid or property not delivered at the time of such termination. Action by said trusteeship shall require the concurrence of a majority of the said trustees.
(b) The said trustees shall continue in such capacity until discharged by the Secretary; shall, from time to time, account for all receipts and disbursements and deliver all property on hand, together with all books and records of the committee and of the trustees, to such person as the Secretary may direct; and shall, upon the request of the Secretary, execute such assignments or other instruments necessary or appropriate to vest in such person full title and right to all funds, property, and claims vested in the committee or the trustees pursuant to this subpart.
(c) Any person to whom funds, property, or claims have been transferred or delivered by the committee or its members pursuant to this section, shall be subject to the same obligations imposed upon the members of the committee and upon the said trustees.
§ 906.57 Effect of termination or amendment.
Unless otherwise expressly provided by the Secretary, the termination of this subpart or of any regulation issued pursuant to this subpart, or the issuance of any amendments 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 under this subpart, or (b) release or extinguish any violation of this subpart or of any regulations issued under this subpart, or (c) affect or impair any rights or remedies of the Secretary or of any other person with respect to any such violations.
§ 906.58 Duration of immunities.
The benefits, privileges, and immunities conferred upon any person by virtue of this subpart shall cease upon the termination of this subpart, except with respect to acts done under and during the existence of this subpart.
§ 906.59 Agents.
The Secretary may, by designation in writing, name any person, including any officer or employee of the United States, or name any agency in the United States Department of Agriculture, to act as his agent or representative in connection with any of the provisions of this subpart.
§ 906.60 Derogation.
Nothing contained in this subpart is, or shall be construed to be, in derogation or in modification of the rights of the Secretary or of the United States to exercise any powers granted by the act or otherwise, or in accordance with such powers, to act in the premises whenever such action is deemed advisable.
§ 906.61 Personal liability.
No member or alternate of the committee or any employee or agent thereof, shall be held personally responsible, either individually or jointly with others, in any way whatsoever, to any handler or to any person for errors in judgment, mistakes, or other acts, either of commission or omission, as such member, alternate, agent, or employee, except for act of dishonesty, willful misconduct, or gross negligence.
§ 906.62 Separability.
If any provision of this subpart is declared invalid, or the applicability thereof to any person, circumstance, or thing is held invalid, the validity of the remainder of this subpart, or the applicability thereof to any other person, circumstance, or things, shall not be affected thereby.
Subpart B – Administrative Requirements
§ 906.120 Fruit exempt from regulations.
(a) Minimum quantity. Any person or the occupants of any one vehicle may ship fruit from the production area during any one day exempt from the requirements of §§ 906.34, 906.40, and 906.45, and regulations issued thereunder: Provided, That the shipment does not exceed 400 pounds of fruit (either oranges or grapefruit or a combination of both), it consists solely of fruit not for resale, and it is not part of a shipment of fruit exceeding 400 pounds.
(b) Processing. The term processing as used in § 906.42(b) means the manufacture of any orange or grapefruit product which has been converted into sectioned fruit or into fresh juice, or preserved by any commercial process, including canning, freezing, dehydrating, drying, and the addition of chemical substances, or by fermentation. Fruit so processed, if handled in accordance with § 906.123, shall be exempt from the provisions of §§ 906.34 and 906.40.
(c) Special purpose shipments and safeguards. (1) Fruit may be handled for relief or charity exempt from the requirements of §§ 906.34, 906.40, and 906.45 and the regulations issued thereunder: Provided, That the fruit shall not be offered for resale, and the handler submits, prior to any such handling, an application to the committee on forms provided by the committee. The application shall contain the name and address of the handler and such other information that the committee may require including, but not limited to, the quantity of fruit involved, license number of the conveyance, and supporting documentation. Approval of the application by the committee shall be evidenced by the issuance of a certificate of privilege to the applicant in accordance with paragraph (d) of this section.
(2) Gift packages of fruit handled pursuant to § 906.41 shall be in containers stamped or marked with the handler’s name and address.
(3) Fruit may be handled exempt from regulations issued pursuant to § 906.40(d), if the following conditions are met:
(i) Each fiscal period the handler submits prior to such handling a written application to the committee on forms provided by the committee. The application shall contain the name and address of the handler, and a description of the container or containers in which such fruit would be handled.
(ii) The fruit grades at least U.S. No. 1.
(iii) The fruit is handled in closed fully telescopic fiberboard cartons with inside dimensions of 16
(iv) Each handler shall file a report with the committee within 1 business day after each shipment handled pursuant to paragraph (c)(3). Such report shall contain the name and address of the handler; date fruit is handled; the number and type of containers and packs in such shipment; the inspection certificate numbers applicable to such shipment; name and address of the purchaser; and the license number of the truck, trailer, or automobile, as the case may be, in which the shipment was loaded.
(4) Oranges and grapefruit grown in the production area may be handled exempt from container and pack regulations issued pursuant to § 906.40(d), under the following conditions:
(i) Such oranges and/or grapefruit grown in the production area are mixed with other types of fruit;
(ii) Such oranges and/or grapefruit grown in the production area constitute at least one-third by volume of the contents of any container, and any such container is not larger than a
(iii) Such grapefruit grown in the production area grade at least U.S. No. 1, and such oranges grown in the production area grade at least U.S. Combination (with not less than 60 percent, by count, of the oranges in any lot grading at least U.S. No.1).
(d) The committee or its duly authorized agents, shall approve or deny each handler’s request to handle fruit under paragraphs (c)(1) and (c)(3) of this section and promptly notify such handler in writing of its decision: Provided, That if it approves a handler’s request, it shall issue a certificate of privilege as provided in § 906.44, but if it denies a request it shall advise the handler why the application was denied. The committee may rescind a certificate of privilege issued to a handler, or deny a certificate of privilege to a handler upon proof satisfactory to the committee that such handler has shipped fruit contrary to the provisions of this part. Such action denying a certificate of privilege shall apply to and not exceed a reasonable period of time as determined by the committee. Any handler who has had a certificate of privilege rescinded or denied may file a written appeal with the committee for reconsideration.
(e) Terms. The term bushel means a unit of measure equivalent to 2,150.42 cubic inches; the term six-pack means any container with a capacity of one-fourth of a bushel, the term basket means any container made of interwoven material; the term closed means closed in accordance with good commercial practices; and terms relating to grade mean the same as in the U.S. Standards for Grades of Grapefruit (Texas and States other than Florida, California, and Arizona) (7 CFR 51.620 through 51.653), or in the U.S. Standards for Grades of Oranges (Texas and States other than Florida, California, and Arizona) (7 CFR 51.680 through 51.714).
§ 906.121 Reestablishment of districts.
The three districts of the production area specified in § 906.20 Districts are reestablished as a single district comprising the entire production area.
§ 906.122 [Reserved]
§ 906.123 Fruit for processing.
(a) No person shall be granted exemption from regulation to handle oranges and grapefruit for processing unless such fruit is shipped to an approved processor. All such shipments to an approved processor shall be reported to the committee on a form approved by it.
(b) Approved processor. Any person who desires to acquire, as an approved processor, fruit for processing, as set forth in § 906.120(b), shall, prior thereto, file an application with the committee on a form approved by it, which shall contain, but not be limited to, the following information:
(1) Name and address of applicant;
(2) Location of plant or plants where manufacturing is to take place;
(3) Approximate quantity of fruit used each month;
(4) A statement that the fruit obtained exempt from fresh fruit regulations will not be resold or transferred for resale, directly or indirectly, but will be used only for processing;
(5) A statement agreeing to hold a license issued under the Perishable Agricultural Commodities Act, 1930 (7 U.S.C. 499r), and regulations issued thereunder (7 CFR part 46) when buying Texas oranges and grapefruit for processing;
(6) A statement agreeing to undergo random inspection by the committee;
(7) A statement that the requesting processor has no facilities, equipment, or outlet to repack or sell fruit in fresh form;
(8) A statement agreeing to submit such reports as are required by the committee.
(c) Certificate by processors. Upon request by the committee each approved processor shall submit to the committee on or before the 10th day of each month a report of the oranges and grapefruit used during the preceding calendar month. Each report shall contain a certificate to the United States Department of Agriculture and to the committee as to the truthfulness of the information shown therein.
(d) Diversion report. Each handler who ships fruit to processors for processing shall report to the committee on a form approved by it the following information:
(1) Name and address of the processor’s place of business where the fruit was shipped;
(2) The net weight of oranges or grapefruit;
(3) Truck license number or rail car initial and number;
(4) Inspection certificate number; and
(5) Such other information as the committee may require.
§ 906.137 Handlers use of identifying marks utilized by the committee in promotional and advertising projects.
(a) Pursuant to § 906.37, the identifying marks “Texasweet”, “Sweeter By Nature”, “Texas Fancy”, and “Texas Choice” shall be available to handlers only under the following terms and conditions:
(1) The identifying marks “Texasweet” and “Sweeter by Nature” may severally or jointly be affixed only to containers of grapefruit or to individual grapefruit comprising a lot which grades at least U.S. No. 1.
(2) The identifying mark “Texas Fancy” may be affixed only to containers of grapefruit or to individual grapefruit comprising a lot which grades at least U.S. No. 1 with no more than 40 percent of the surface of the grapefruit, in the aggregate, affected by discoloration.
(3) The identifying mark “Texas Choice” may be affixed only to containers of grapefruit or to individual grapefruit comprising a lot which grades at least U.S. No. 2, with no more than 60 percent of the surface of the grapefruit, in the aggregate, affected by discoloration.
(4) The identifying marks “Texasweet” and “Sweeter by Nature” may severally or jointly be affixed only to containers of oranges or to individual oranges comprising a lot which grades at least U.S. Combination, with not less than 60 percent, by count, of the oranges in each container thereof grading at least U.S. No. 1 and the remainder U.S. No. 2.
(5) The identifying mark “Texas Choice” may be affixed only to containers of oranges or to individual oranges comprising a lot which grades at least U.S. No. 2, except that in determining whether the fruit is reasonably well colored the yellow or orange color must predominate over the green color on at least 75 percent of the fruit surface in the aggregate which is not discolored.
(b) When used herein, terms relating to grade shall have the same meaning as is given to the respective term in the U.S. Standards for Grapefruit (Texas and States other than Florida, California, and Arizona) (7 CFR 51.620 through 51.653) and in the U.S. Standards for Oranges (Texas and States other than Florida, California, and Arizona) (7 CFR 51.680 through 51.714).
§ 906.151 Reports.
(a) During each fiscal period, each handler shall upon request by the committee file with the committee within the time specified in the request an accurate report showing the total quantity or oranges and the total quantity of grapefruit received by him during such fiscal period or the preceding fiscal period, as requested.
(b) Each handler who sells over 400 pounds of oranges or grapefruit or a combination of both for resale inside the production area shall, for each transaction, report to the committee on a form approved by it the following information:
(1) Name and address of seller;
(2) Name and address of buyer;
(3) Description and quantity of oranges or grapefruit sold;
(4) Destination of fruit;
(5) A statement that the buyer certifies that fruit that is subsequently taken outside the production area for resale will be inspected; and
(6) Such other pertinent information as the committee may require.
(c) The handler shall prepare the report in triplicate. The buyer shall sign the certification statement. The pink copy shall be submitted to the committee within 7 days. The white copy shall be retained by the handler and the canary copy shall be given to the buyer. Such form shall be reviewed by the committee staff and the information compiled for the committee’s use.
§ 906.235 Assessment rate.
On and after August 1, 2021, an assessment rate of $0.05 per 7/10-bushel carton or equivalent is established for oranges and grapefruit grown in the Lower Rio Grande Valley in Texas
Subpart C – Container and Pack Requirements
§ 906.340 Container, pack, and container marking regulations.
(a) No handler shall handle any variety of oranges or grapefruit grown in the production area unless such fruit is in one of the following containers, and the fruit is packed and the containers are marked as specified in this section:
(1) Containers. (i) Closed fiberboard carton with approximate inside dimensions of 13
(ii) Closed fully telescopic fiberboard carton with approximate inside dimensions of 16
(iii) Poly or mesh bags having a capacity of 4, 5, 8, 10, or 18 pounds of fruit;
(iv) Rectangular or octagonal bulk fiberboard crib with approximate dimensions of 46 to 47
(v) Rectangular or octagonal
(vi) Octagonal fiberboard crib with approximate dimensions of 46 to 47
(vii) Fiberboard box holding two layers of fruit, with approximate dimensions of 23 inches in length, 15
(viii) Reusable collapsible plastic container with approximate dimensions of 23 inches in length, 15 inches in width, and 7 to 11 inches in depth;
(ix) Reusable collapsible plastic bin with approximate dimensions of 36
(x) Octagonal bulk triple wall fiberboard crib with approximate dimensions of 37
(xi) Bag having the capacity of 15 pounds of fruit, either in a combination
(xii) Reusable collapsible plastic mini bin with approximate dimensions of 39
(xiii) Bag having the capacity of three pounds of fruit;
(xiv) Standard carton with approximate inside dimensions of 16.375 x 10.6875 x 10.25 inches;
(xv)
(xvi) Euro
(xvii) Fiberboard one piece display container with approximate inside dimensions of 23 inches x 15 inches x 9
(xviii) Such types and sizes of containers as may be approved by the committee for testing in connection with a research project conducted by or in cooperation with the committee: Provided, That the handling of each lot of fruit in such test containers shall be subject to prior approval and under the supervision of the committee.
(2) Pack regulation – (i) Oranges. (A) Oranges, when packed in any carton, bag, or other container, shall be sized in accordance with the sizes in the following Table I, and meet the requirements of standard pack; and, when in containers not packed according to a definite pattern, shall be sized in accordance with the sizes in Table I and otherwise meet the requirements of standard sizing: Provided, That the packing tolerances in the U.S. Standards for Grades of Oranges (Texas and States other than Florida, California, and Arizona), shall apply to fruit so packed. All fruit packed to size 163 in the following Table I shall be sized in accordance with the sizes in Table I but need not otherwise meet the requirements of standard sizing or standard pack: Provided, That they meet the same tolerances for off-size and pack as defined in the U.S. Standards for Grades of Oranges (Texas and States other than Florida, California, and Arizona):
Table I – Oranges
[
| Rack size/ number of oranges | Diameter in inches | |
|---|---|---|
| Minimum | Maximum | |
| 24 | 3 | 5 |
| 32 | 3 | 4 |
| 36 | 3 | 4 |
| 40 | 3 | 4 |
| 48 | 2 | 4 |
| 56 | 2 | 3 |
| 64 | 2 | 3 |
| 72 | 2 | 3 |
| 88 | 2 | 3 |
| 113 | 2 | 3 |
| 138 | 2 | 2 |
| 163 | 2 | 2 |
(B) If
(ii) Grapefruit. (A) Grapefruit, when packed in any carton, bag, or other container, shall be sized in accordance with the sizes in the following Table II, except as otherwise provided in the regulations issued pursuant to this part, and meet the requirements of standard pack; and, when in containers not packed according to a definite pattern, shall be sized in accordance with the sizes in Table II: Provided, That the packing tolerances in the U.S. Standards for Grades of Grapefruit (Texas and States other than Florida, California, and Arizona), shall apply to fruit so packed. All fruit packed to size 64 in the following Table II shall be sized in accordance with the sizes in Table II but need not otherwise meet the requirements of standard pack: Provided, That they meet the same tolerances for off-size and pack as defined in the U.S. Standards for Grades of Grapefruit (Texas and States other than Florida, California, and Arizona).
Table II – Grapefruit
[
| Pack size/ number of grapefruit | Diameter in inches | |
|---|---|---|
| Minimum | Maximum | |
| 18 | 4 | 5 |
| 23 | 4 | 5 |
| 27 | 4 | 4 |
| 32 | 3 | 4 |
| 36 | 3 | 4 |
| 40 | 3 | 4 |
| 48 | 3 | 3 |
| 56 | 3 | 3 |
| 64 | 3 | 3 |
(B) If
(3) Container grade markings. Except when the identifying marks “Texas Choice” or “Texas Fancy” are used by handlers pursuant to § 906.137, any container of U.S. No. 2 grade fruit shall be marked to indicate the grade of the fruit in letters and numbers at least three-fourths inch in height: Provided, That bags containing five or eight pounds of fruit shall be so marked with letters and numbers at least one-fourth inch in height prominently displayed on the front panel of the bag. The requirements of this paragraph (a)(3) will not be effective until February 16, 1992.
(b) Nonapplicability. The provisions of this section shall not apply to gift packages of fruit.
(c) As used herein, terms relating to grade, pack, standard pack, and diameter mean the same as defined in the United States Standards for Grades of Oranges (Texas and States other than Florida, California, and Arizona), (7 CFR 51.680 through 51.714), or in the United States Standards for Grades of Grapefruit (Texas and States other than Florida, California, and Arizona), (7 CFR 51.620 through 51.653); and closed means closed in accordance with good commercial practices.
§ 906.365 Texas Orange and Grapefruit Regulation 34.
(a) No handler shall handle any variety of oranges or grapefruit grown in the production area unless:
(1) Such oranges grade U.S. Fancy, U.S. No. 1, U.S. No. 1 Bright, U.S. No. 1 Bronze, U.S. Combination (with not less than 60 percent, by count, of the oranges in any lot thereof grading at least U.S. No. 1), or U.S. No. 2;
(2) Such oranges are at least pack size 163 with a minimum diameter of 2-3/16 inches;
(3) Such grapefruit grade U.S. Fancy, U.S. No. 1, U.S. No. 1 Bright, or U.S. No. 1 Bronze, or meet the quality requirements of “Texas Fancy” or “Texas Choice” as defined in § 906.137 of this part;
(4) Such grapefruit are at least pack size 64 with a minimum diameter of 3 inches.
(5) An appropriate inspection certificate has been issued for such fruit within 48 hours prior to the time of shipment. No handler may transport by motor vehicle or cause the transportation of any shipment of fruit for which an inspection certificate is required unless each such shipment is accompanied by a copy of the inspection certificate applicable thereto, and a copy of such inspection certificate is surrendered upon request to Texas Department of Agriculture personnel designated by the committee.
(6) The fruit meets all the applicable container and pack requirements effective under this marketing order.
(7) Beginning in 1995, this paragraph (a) is suspended each year from July 1 through August 31 of each year.
(b) Terms relating to grade, pack size, and diameter shall mean the same as in the U.S. Standards for Grades of Oranges (Texas and States other than Florida, California, and Arizona) (7 CFR 51.680 through 51.714) or in the U.S. Standards for Grades of Grapefruit (Texas and States other than Florida, California and Arizona) (7 CFR 51.620 through 51.653).
PART 915 – AVOCADOS GROWN IN SOUTH FLORIDA
Subpart A – Order Regulating Handling
Definitions
§ 915.1 Secretary.
Secretary means the Secretary of Agriculture of the United States or any officer or employee of the United States Department of Agriculture who is, or may hereafter be, authorized to exercise the powers and perform the duties of the Secretary of Agriculture of the United States.
§ 915.2 Act.
Act means Public Act No. 10, 73d Congress (May 12, 1933), as amended and as reenacted and amended by the Agricultural Marketing Agreement Act of 1937, as amended (48 Stat. 31, as amended, 68 Stat. 906, 1047; 7 U.S.C. 601 et seq.).
§ 915.3 Person.
Person means an individual, partnership, corporation, association or any other business unit.
§ 915.4 Production area.
Production area means the counties of Brevard, Orange, Lake, Polk, Hillsborough, and Pinellas in the State of Florida, and all of the counties of that State situated south of such counties.
§ 915.5 Avocados.
Avocados means all varieties of avocados grown in the production area.
§ 915.6 Fiscal year.
Fiscal year means the twelve-month period ending March 31 of each year.
§ 915.7 Committee.
Committee means the Avocado Administrative Committee established pursuant to § 915.20.
§ 915.8 Grower.
Grower is synonymous with producer and means any person who produces avocados for market and who has a proprietary interest therein: Provided, That as used in § 915.22 the term grower shall include only those who have a proprietary interest in the production of 10 or more bearing avocado trees.
§ 915.9 Handler.
Handler is synonymous with shipper and means any person (except a common or contract carrier transporting avocados owned by another person) who handles avocados or causes avocados to be handled.
§ 915.10 Handle.
Handle means to sell, consign, deliver, or transport avocados within the production area or between the production area and any point outside thereof: Provided, That such term shall not include: (a) The sale or delivery of avocados to a handler, registered as such with the committee in accordance with such rules and regulations as it may prescribe with the approval of the Secretary, who has facilities within the production area for preparing avocados for market; (b) the delivery of avocados to such a handler solely for the purpose of having such avocados prepared for market; or (c) the transportation of avocados by a handler, so registered with the committee, from the grove to his packing facilities within the production area for the purpose of having such avocados prepared for market. In the event a grower sells his avocados to a handler who is not so registered with the committee, such grower shall be the first handler of such avocados.
§ 915.11 District.
District means the applicable one of the following described subdivisions of the production area:
(a) District 1 shall include Miami-Dade County.
(b) District 2 shall include all of the production area except Miami-Dade County.
§ 915.12 Export.
Export means to ship avocados to any destination which is not within the 48 contiguous States of the District of Columbia of the United States or Canada.
Administrative Body
§ 915.20 Establishment and membership.
(a) There is hereby established an Avocado Administrative Committee consisting of nine members, each of whom shall have an alternate who shall have the same qualifications as the member for whom he is an alternate. Five of the members and their respective alternates shall be growers who shall not be handlers of avocados produced by others or employees of such handlers. Four of the members and their respective alternates shall be handlers or employees of handlers. The five members of the committee who shall be growers who shall not be handlers of avocados produced by others or employees of such handlers are referred to as “grower” members of the committee; and the four members who shall be handlers or employees of handlers are referred to as “handler” members of the committee. Four of the five grower members shall be producers of avocados in District 1, and one grower member shall be a producer of avocados in District 2. Three of the four handler members shall be handlers, or employees of handlers, of avocados in District 1, and one handler member shall be a handler, or an employee of a handler, of avocados in District 2. No handler or handler organization shall be permitted to have more than one handler member and alternate on the committee from each district: Provided, That this requirement may be waived by the Secretary in the event that there are not enough persons available to be nominated and selected to serve on the committee.
(b) The committee may be increased by one public member and an alternate. Persons for the public member positions would be nominated by the committee and selected by the Secretary. The committee, with the approval of the Secretary, shall prescribe qualifications, term of office and the procedure for nominating the public member and alternate.
§ 915.21 Term of office.
The term of office of each member and alternate member of the committee shall begin April 1, and shall terminate March 31 of the following year. Members and alternate members shall serve in such capacities for the portion of the term of office for which they are selected and qualify and until their respective successors are selected and have qualified. The consecutive terms of office of members shall be limited to three terms.
§ 915.22 Nomination.
(a) Initial members. Nominations for each of the five initial grower members and four initial handler members of the committee, together with nominations for the initial alternate members for each position, may be submitted to the Secretary by individual growers and handlers. Such nominations may be made by means of group meetings of the growers and handlers concerned in each district. Such nominations, if made, shall be filed with the Secretary no later than ten calendar days prior to the effective date hereof. In the event nominations for initial members and alternate members of the committee; or the filed pursuant to, and within the time specified in, this section, the Secretary may select such initial members and alternate members without regard to nominations, but selections shall be on the basis of the representation provided for in § 915.20.
(b) Successor members. (1) The committee shall hold or cause to be held a meeting or meetings of growers and handlers in each district to designate nominees for successor members and alternate members of the committee; or the committee may conduct nominations in Districts 1 and 2 by mail in a manner recommended by the committee and approved by the Secretary. Such nominations shall be submitted to the Secretary by the committee not later than March 1 of each year. The committee shall prescribe procedural rules, not inconsistent with the provisions of this section, for the conduct of nomination.
(2) Only growers may participate in the nomination and election of nominees for grower members and their alternates. Each grower shall be entitled to cast only one vote for each nominee to be elected in the district in which he produced avocados. No grower shall participate in the election of nominees in more than one district in any one fiscal year.
(3) Only handlers may participate in the nomination and election of nominees for handler members and their alternates. Each handler shall be entitled to cast only one vote for each nominee to be elected in the district in which such handler handles avocados. Each vote shall be weighted by the volume of avocados shipped by such handler during the immediately preceding twelve-month period, January through December.
§ 915.23 Selection.
From the nominations made pursuant to § 915.22, or from other qualified persons, the Secretary shall select the five grower members of the committee, the four handler members of the committee, and an alternate for each such member.
§ 915.24 Failure to nominate.
If nominations are not made within the time and in the manner prescribed in § 915.22, the Secretary may, without regard to nominations, select the members and alternate members of the committee on the basis of the representation provided for in § 915.20.
§ 915.25 Acceptance.
Any person selected by the Secretary as a member or as an alternate member of the committee shall qualify by filing a written acceptance with the Secretary within ten days after being notified of such selection.
§ 915.26 Vacancies.
To fill any vacancy occasioned by the failure of any person selected as a member or as an alternate member of the committee to qualify, or in the event of the death, removal, resignation, or disqualification of any member or alternate member of the committee, a successor for the unexpired term of such member or alternate member of the committee shall be nominated and selected in the manner specified in §§ 915.22 and 915.23. If the names of nominees to fill any such vacancy are not made available to the Secretary within fifteen days after such vacancy occurs, the Secretary may fill such vacancy without regard to nominations, which selection shall be made on the basis of representation provided for in § 915.20.
§ 915.27 Alternate members.
An alternate member of the committee, during the absence or at the request of the member for whom he is an alternate, shall act in the place and stead of such member. In the event of the death, removal, resignation, or disqualification of a member, his alternate shall act for him until a successor for such member is selected and has qualified. In the event both a member and his alternate are unable to attend a committee meeting, the chairman may designate any alternate who is present and who is not serving for any member to serve in such absent member’s place and stead: Provided, That only grower alternate members may be so designated to serve for grower members and only handler alternate members may be so designated to serve only for handler members.
§ 915.28 Powers.
The committee shall have the following powers:
(a) To administer the provisions of this part in accordance with its terms;
(b) To receive, investigate, and report to the Secretary complaints of violations of the provisions of this part;
(c) To make and adopt rules and regulations to effectuate the terms and provisions of this part; and
(d) To recommend to the Secretary amendments to this part.
§ 915.29 Duties.
The committee shall have, among others, the following duties:
(a) To select a chairman and such other officers as may be necessary, and to define the duties of such officers;
(b) To appoint such employees, agents, and representatives as it may deem necessary, and to determine the compensation and to define the duties of each;
(c) To submit to the Secretary as soon as practicable after the beginning of each fiscal year a budget for such fiscal year, including a report in explanation of the items appearing therein and a recommendation as to the rate of assessment for such fiscal year;
(d) To keep minutes, books, and records which will reflect all of the acts and transactions of the committee and which shall be subject to examination by the Secretary;
(e) To prepare periodic statements of the financial operations of the committee and to make copies of each such statement available to growers and handlers for examination at the office of the committee;
(f) To cause its books to be audited by a certified public accountant at least once each fiscal year, and at such other times as the Secretary may request;
(g) To act as intermediary between the Secretary and any grower or handler;
(h) To investigate growing and maturity conditions of avocados, and to assemble data in connection therewith;
(i) To engage in such research relating to the determination of maturity and grade standards for avocados as may be approved by the Secretary;
(j) To submit to the Secretary such available information as he may request;
(k) To notify, as provided in this part, producers and handlers of all meetings of the committee to consider recommendations for regulation;
(l) To give the Secretary the same notice of meetings of the committee as is given to its members;
(m) To consult with such representatives of growers or groups of growers as may be deemed necessary and to pay the travel expenses incurred by such representatives in attending committee meetings at the request of the committee: Provided, That the committee shall not pay the travel expenses of more than three such representatives in connection with any one meeting of the committee; and
(n) To investigate compliance with the provisions of this part.
§ 915.30 Procedure.
(a) Except as provided in paragraph (c) of this section, six members of the committee, including alternates acting for members, shall constitute a quorum and any decision, recommendation or other action of the committee shall require not less than five concurring votes including one by a handler, or an alternate acting as such: Provided, That if the committee is increased by one, the quorum requirement shall be increased to seven and any decision, recommendation or other action of the committee shall require not less than six concurring votes including one by a handler, or an alternate acting as such.
(b) The committee may provide for simultaneous meetings of groups of its members assembled at two or more designated places: Provided, That such meetings shall be subject to the establishment of telephone communication between all such groups and the availability of loud speaker receivers for each group so that each member may participate in the discussions and other actions the same as if the committee were assembled in one place.
(c) For any recommendation of the committee for an assessment rate change, a quorum of seven committee members and a two-thirds majority vote of approval of those in attendance is required.
§ 915.31 Expenses.
The members of the committee and their respective alternates when performing duties at the direction of the committee, shall be reimbursed for expenses necessarily incurred by them in the performance of their duties under this part.
§ 915.32 Annual report.
The committee shall, as soon as practicable after the close of each fiscal year, prepare and mail an annual report to the Secretary, and to each handler and grower who requests a copy of the report. This annual report shall contain at least: (a) A complete review, by districts, of the regulatory operations during the fiscal year; (b) an appraisal of the effect of such regulatory operations upon the avocado industry; and (c) any recommendations for changes in the program.
Expenses and Assessments
§ 915.40 Expenses.
The committee is authorized to incur such expenses as the Secretary finds are reasonable and likely to be incurred to enable the committee to exercise its powers and perform its duties in accordance with the provisions of this part during each fiscal year. The funds to cover such expenses shall be acquired by the levying of assessments as provided for in § 915.41.
§ 915.41 Assessments.
(a) Each person who first handles avocados shall, with respect to the avocados so handled by him, pay to the committee upon demand such person’s pro rata share of the expenses which the Secretary finds are reasonable and likely to be incurred by the committee during each fiscal year. Each such person’s share of such expenses shall be equal to the ratio between the total quantity of avocados handled by him as the first handler thereof during the applicable fiscal year, and the total quantity of avocados so handled by all persons during the same fiscal year. The payment of assessments for the maintenance and functioning of the committee may be required under this part throughout the period it is in effect irrespective of whether particular provisions thereof are suspended or become inoperative. If a handler does not pay his assessment within the time prescribed by the committee, the unpaid assessment may be subject to an interest charge at rates prescribed by the committee with the approval of the Secretary.
(b) The Secretary shall fix the rate of assessment per 55-pounds of fruit or equivalent in any container or in bulk, to be paid by each such handler. At any time during or after a fiscal year, the Secretary may increase the rate of assessment, in order to secure sufficient funds to cover any later finding by the Secretary relative to the expense which may be incurred. Such increase shall be applied to all fruit handled during the applicable fiscal year. In order to provide funds for the administration of the provisions of this part, the committee may accept the payment of assessments in advance, or borrow money on an emergency short-term basis. The authority of the committee to borrow money is subject to approval of the Secretary and may be used only to meet financial obligations as the obligations occur or to allow the committee to adjust its reserve funds to meet such obligations.
§ 915.42 Accounting.
(a) If, at the end of a fiscal year, the assessments collected are in excess of expenses incurred, such excess shall be accounted for as follows:
(1) Except as provided in paragraph (a)(2) of this section, each person entitled to a proportionate refund of the excess assessment shall be credited with such refund against the operation of the following fiscal year unless such person demands repayment thereof, in which event it shall be paid to him: Provided, That any sum paid by a person in excess of his pro rata share of the expenses during any fiscal year may be applied by the committee at the end of such fiscal year to any outstanding obligations due the committee from such person.
(2) The Secretary, upon recommendation of the committee, may determine that it is appropriate for the maintenance and functioning of the committee that the funds remaining at the end of a fiscal year which are in excess of the expenses necessary for committee operations during such year may be carried over into following years as a reserve. Such reserve may be established at an amount not to exceed approximately 3 fiscal years’ operational expenses. Funds in the reserve may be used to cover the necessary expenses of liquidation, in the event of termination of this part, and to cover the expenses incurred for the maintenance and functioning of the committee during any fiscal year when there is crop failure, or during any period of suspension of any or all of the provisions of this part. Such reserve may also be used by the committee to finance its operations during any fiscal year prior to the time that assessment income is sufficient to cover such expenses and to cover deficits incurred during any fiscal year when income is less than expenses. Upon termination of this part, any funds not required to defray the necessary expenses of liquidation shall be disposed of in such manner as the Secretary may determine to be appropriate: Provided, That to the extent practical, such funds shall be returned pro rata to the persons from whom such funds were collected.
(b) All funds received by the committee pursuant to the provisions of this part shall be used solely for the purposes specified in this part, and shall be accounted for in the manner provided in this part. The Secretary may, at any time, require the committee and its members to account for all receipts and disbursements.
§ 915.43 Contributions.
The committee may accept voluntary contributions. Such contributions shall be free from any encumbrances by the donor and the committee shall retain complete control of their use.
Research and Development
§ 915.45 Production research, marketing research and development.
The committee may, with the approval of the Secretary, establish or provide for the establishment of production research, marketing research and development projects designed to assist, improve or promote the marketing, distribution, and consumption or efficient production of avocados. Such products may provide for any form of marketing promotion, including paid advertising. The expenses of such projects shall be paid from funds collected pursuant to the applicable provisions of § 915.41, or from such other funds as approved by the USDA.
§ 915.49 Marketing policy.
Each season prior to making any recommendations pursuant to § 915.50, the committee shall submit to the Secretary a report setting forth its marketing policy for the ensuing season. Such marketing policy report shall contain information relative to (a) the estimated total production of avocados within the production area; (b) the expected general quality and maturity of avocados in the production area and in competing areas; (c) the expected demand conditions for avocados in different market outlets; (d) the expected shipments of avocados produced in the production area and competing areas; (e) supplies of competing commodities; (f) trend and level of consumer income; (g) other factors having a bearing on the marketing of avocados; and (h) the type of regulations expected to be recommended during the season. In the event it becomes advisable, because of changes in the supply and demand situation for avocados, to modify substantially such marketing policy, the committee shall submit to the Secretary a revised marketing policy report setting forth the information prescribed in this section. The committee shall publicly announce the contents of each marketing policy report and copies thereof shall be maintained in the offices of the committee where they shall be available for examination by growers and handlers.
Regulations
§ 915.50 Recommendations for regulation.
(a) Whenever the committee deems it advisable to regulate the handling of any variety or varieties of avocados grown in District 1 or District 2 in the manner provided in § 915.51, it shall so recommend to the Secretary.
(b) In arriving at its recommendations pursuant to paragraph (a) of this section, the committee shall give consideration to such of the following factors as may be applicable:
(1) The estimated total production and shipments of each variety of avocados, including avocados grown in other areas;
(2) The time of bloom and growing conditions during the development of the crop;
(3) The quality of the avocado crop;
(4) The anticipated demand for avocados; and
(5) Other available information having a bearing on the market for avocados with each recommendation for regulation the committee shall submit to the Secretary the data and information on which such recommendation is predicated, and such other available information as the Secretary may request.
(c) All meetings of the committee held for the purpose of formulating recommendations for regulations shall be open to growers and handlers. The committee shall give notice of such meetings to growers and handlers by mailing such notice to each grower and handler who has filed his address with the committee and requested such notice.
§ 915.51 Issuance of regulations.
(a) The Secretary shall regulate, in the manner specified in this section, the handling of avocados whenever he finds, from the recommendations and information submitted by the committee or from other available information, that such regulations will tend to effectuate the declared policy of the act. Such regulations may:
(1) Prohibit, prior to such time as shall be specified, the handling of any size or sizes of any variety or varieties of avocados grown in District 1 or District 2.
(2) Prohibit the handling of any variety or varieties of avocados grown in District 1 or District 2 which do not meet such quality and maturity standards as shall be prescribed.
(3) Limit the shipment of the total quantity of avocados by prohibiting the shipment thereof: Provided, That no such prohibition shall be effective during any fiscal period, other than for four periods not exceeding six days each immediately prior to, including, or following July 4, Labor Day, Thanksgiving Day, and Christmas Day.
(4) Fix the size, capacity, weight, dimensions, or pack of the container or containers which may be used in the packaging, and the transportation, sale, shipment or other handling of avocados.
(5) Establish and prescribe pack specifications for the grading and packing of any variety or varieties of avocados and require that all avocados handled shall be packed in accordance with such pack specifications, and shall be identified by appropriate labels, seals, stamps, or tags, affixed to the containers by the handler under the supervision of the committee or an inspector of the Federal-State Inspection Service, showing the particular pack specifications of the lot.
(6) Provide that any or all requirements effective pursuant to paragraphs (a)(1), (2), (3), and (4) of this section applicable to the handling of avocados shall be different for the handling of avocados within the production area and for the handling of avocados between the production area and any point outside thereof.
(7) Prescribe requirements, as provided in this paragraph, applicable to exports of any variety of avocados which are different from those applicable to the handling of the same variety to other destinations.
(b) The committee shall be informed immediately of any such regulations issued by the Secretary and the committee shall promptly give notice thereof to growers and handlers.
§ 915.52 Modification, suspension, or termination of regulations.
(a) In the event the committee at any time finds that, by reason of changed conditions, any regulations issued pursuant to § 915.51 should be modified, suspended, or terminated, it shall so recommend to the Secretary.
(b) Whenever the Secretary finds, from the recommendations and information submitted by the committee or from other available information, that a regulation should be modified, suspended, or terminated with respect to any or all shipments of avocados in order to effectuate the declared policy of the act, he shall modify, suspend, or terminate such regulation. If the Secretary finds that a regulation obstructs or does not tend to effectuate the declared policy of the act, he shall suspend or terminate such regulation. On the same basis and in like manner the Secretary may terminate any such modification or suspension.
§ 915.53 Exemption certificates.
Whenever a regulation is in effect pursuant to § 915.51(a)(1), the committee shall issue one or more exemption certificates to any person who furnishes proof, satisfactory to the committee, that his avocados of a particular variety are mature prior to the time such variety may be handled under such regulation. Such exemption certificates shall authorize the person to whom the certificates are issued to handle, or have handled, only that portion of his avocados of the particular variety which the committee has determined to be mature. The committee shall adopt, with the approval of the Secretary, procedural rules by which such exemption certificates will be issued and the avocados covered thereunder may be handled. Exemption certificates shall be transferred to the handler of the avocados covered by such certificates at the time the avocados are delivered to such handler.
§ 915.54 Inspection and certification.
Whenever the handling of any variety of avocados is regulated pursuant to § 915.51, each handler who handles avocados shall, prior thereto, cause each lot of avocados handled to be inspected by the Federal-State Inspection Service and certified by it as meeting the applicable requirements of such regulation: Provided, That such inspection and certification shall not be required whenever the avocados previously have been so inspected and certified. Promptly thereafter, each such handler shall submit, or cause to be submitted, to the committee a copy of the certificate of inspection with respect to such handling.
§ 915.55 Avocados not subject to regulations.
Except as otherwise provided in this section, any person may, without regard to the provisions of §§ 915.41, 915.51, and 915.54, and the regulations issued thereunder, handle avocados (a) for consumption by charitable institutions; (b) for distribution by relief agencies; (c) for commercial processing into products; or (d) in such minimum quantities or types of shipments as the committee, with the approval of the Secretary, may prescribe. The committee shall, with the approval of the Secretary, prescribe such rules, regulations, and safeguards as it may deem necessary to prevent avocados handled under the provisions of this section from entering channels of trade for other than the specific purposes authorized by this section. Such rules, regulations, and safeguards may include the requirements that handlers shall file applications with the committee for authorization to handle avocados pursuant to this section, and that such applications be accompanied by a certification by the intended purchaser or receiver that the avocados will not be used for any purpose not authorized by this section.
§ 915.60 Reports.
(a) Each handler shall furnish to the committee, at such times and for such periods as the committee may designate, certified reports covering, to the extent necessary for the committee to perform its functions, the following:
(1) The quantities of each variety of avocados he received;
(2) A complete record of the quantities disposed of by him, segregated as to varieties and as to the respective quantities subject to regulation and not subject to regulation;
(3) The date of each such disposition and the identification of the carrier transporting such fruit;
(4) Identification of the inspection certificates and the exemption certificates, if any, pursuant to which the fruit was handled, together with the destination of each such exempted disposition, and of all fruit handled pursuant to § 915.55; and
(5) The quantity of each variety held by him at the end of the period.
(b) Upon request of the committee, made with the approval of the Secretary, each handler shall furnish to the committee, in such manner and at such times as it may prescribe, such other information as may be necessary to enable the committee to perform its duties under this part.
Miscellaneous Provisions
§ 915.61 Compliance.
Except as provided in this part, no person shall handle avocados, the shipment of which have been prohibited by the Secretary in accordance with the provisions of this part; and no person shall handle avocados except in conformity with the provisions of this part and the regulations issued under this part.
§ 915.62 Right of the Secretary.
The members of the committee (including successors and alternates), and any agents, employees, or representatives thereof, shall be subject to removal or suspension by the Secretary at any time. Each and every regulation, decision, determination, or other act of the committee shall be subject to the continuing right of the Secretary to disapprove of the same at any time. Upon such disapproval, the disapproved action of the committee shall be deemed null and void, except as to acts done in reliance thereon or in accordance therewith prior to such disapproval by the Secretary.
§ 915.63 Effective time.
The provisions of this part shall become effective at such time as the Secretary may declare above his signature to this part, and shall continue in force until terminated in one of the ways specified in § 915.64.
§ 915.64 Termination.
(a) The Secretary may at any time terminate the provisions of this part by giving at least one day’s notice by means of a press release or in any other manner in which he may determine.
(b) The Secretary shall terminate or suspend the operation of any and all of the provisions of this part whenever he finds that such provisions do not tend to effectuate the declared policy of the act.
(c) The Secretary shall terminate the provisions of this part whenever the Secretary finds by referendum or otherwise that such termination is favored by a majority of the producers: Provided, That such majority has, during a representative period determined by the Secretary, produced more than 50 percent of the volume of the avocados produced within the production area: And Provided further, That such termination shall be announced by March 15 of the then current fiscal year.
(d) The Secretary shall conduct a referendum as soon as practicable after the end of the fiscal year ending March 31, 1990, and at such time every sixth year thereafter, to ascertain whether continuance of this part is favored by avocado producers. The Secretary may terminate the provisions of this part at the end of any fiscal year in which the Secretary has found that continuance of this part is not favored by producers who, during a representative period determined by the Secretary, have been engaged in the production for market of avocados in the production area: Provided, That termination of this part shall be effective only if announced on or before March 15 of the then current fiscal year.
(e) The provisions of this part shall, in any event, terminate whenever the provisions of the Act authorizing them cease to be in effect.
§ 915.65 Proceedings after termination.
(a) Upon the termination of the provisions of this part, the committee shall, for the purpose of liquidating the affairs of the committee, continue as trustees of all the funds and property then in its possession, or under its control, including claims for any funds unpaid or property not delivered at the time of such termination.
(b) The said trustees shall (1) continue in such capacity until discharged by the Secretary; (2) from time to time account for all receipts and disbursements and deliver all property on hand, together with all books and records of the committee and of the trustees, to such persons as the Secretary may direct; and (3) upon the request of the Secretary, execute such assignments or other instruments necessary or appropriate to vest in such person, full title and right to all of the funds, property, and claims vested in the committee or the trustees pursuant thereto.
(c) Any person to whom funds, property, or claims have been transferred or delivered, pursuant to this section, shall be subject to the same obligation imposed upon the committee and upon the trustees.
§ 915.66 Effect of termination or amendment.
Unless otherwise expressly provided by the Secretary, the termination of this part or of any regulation issued pursuant to this part, 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 part or any regulation issued under this part, or (b) release or extinguish any violation of this part or of any regulation issued under this part, or (c) affect or impair any rights or remedies of the Secretary or of any other person with respect to any such violation.
§ 915.67 Duration of immunities.
The benefits, privileges, and immunities conferred upon any person by virtue of this part shall cease upon its termination, except with respect to acts done under and during the existence of this part.
§ 915.68 Agents.
The Secretary may, by designation in writing, name any officer or employee of the United States, or name any agency or division in the United States Department of Agriculture, to act as his agent or representative in connection with any of the provisions of this part.
§ 915.69 Derogation.
Nothing contained in this part is, or shall be construed to be, in derogation or in modification of the rights of the Secretary or of the United States (a) to exercise any powers granted by the act or otherwise, or (b) in accordance with such powers, to act in the premises whenever such action is deemed advisable.
§ 915.70 Personal liability.
No member or alternate member of the committee and no employee or agent of the committee 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, alternate, employee, or agent, except for acts of dishonesty, willful misconduct, or gross negligence.
§ 915.71 Separability.
If any provision of this part is declared invalid or the applicability thereof to any person, circumstance, or thing is held invalid, the validity of the remainder of this part or the applicability thereof to any other person, circumstance, or thing shall not be affected thereby.
Subpart B – Administrative Requirements
§ 915.110 Exemption certificates.
Exemption certificates under § 915.53 shall be issued by the Avocado Administrative Committee pursuant to the following rules and regulations:
(a) The grower must make application for exemption on a form supplied by the committee. A separate application must be made for each variety or classification of avocados and shall contain the following:
(1) Name and address of the applicant, and date of application;
(2) District in which the applicant’s grove is located;
(3) Regulation from which exemption is requested;
(4) Variety for which exemption is requested;
(5) Location (by county, highway, rural route, distance from nearest town, etc.) of grove from which avocados are to be shipped pursuant to the requested exemption certificate;
(6) Information as to the average size of such avocados and the reasons why applicant believes he is entitled to an exemption certificate; and
(7) Name of the person who will handle any exempted fruit if different than the applicant.
(b) Upon receipt of an application for exemption certificate, the Avocado Administrative Committee shall check all information furnished by the applicant and shall conduct such investigations concerning the maturity of the applicant’s avocados as may be necessary to determine whether the application shall be approved or denied.
(c) Approval of the application shall be evidenced by the issuance to the applicant, by the Manager of the Avocado Administrative Committee on its behalf, of one or more exemption certificates which shall authorize the handling of the quantity of the applicant’s avocados which the committee has determined is mature.
(d) If the application is denied, the applicant shall be informed of such denial by written notice stating the reasons therefor.
§ 915.115 Nomination procedure.
(a) Any grower who resides outside the production area and desires to be represented in a nomination meeting by a duly authorized agent and to have such grower’s vote cast by such agent in the nomination and election of nominees for grower members and alternate members to fill positions on the Avocado Administrative Committee, as provided in § 915.22(b)(2), shall submit to the committee, not later than January 20, a written statement containing the following:
(1) Name of grower;
(2) Mailing address;
(3) Location of each avocado grove (either legal or from established landmarks);
(4) Number of avocado trees owned;
(5) Number of 55-pound units of avocados marketed to date during the current season;
(6) Name of the handler of the fruit marketed;
(7) Authorization, including the name and address, of the person who is to represent said grower at the nomination meeting.
(b) Any grower who has not filed the statement as prescribed in paragraph (a) of this section must be present at the nomination meeting to be eligible to have his vote counted in connection with the nomination and election of nominees.
(c) Any grower who, pursuant to the provisions of paragraph (a) of this section, has authorized an agent to cast such grower’s vote, may rescind such authorization by appearing at the nomination meeting and exercising his right to vote in person.
§ 915.120 Handler registration.
(a) Each handler who desires to handle avocados pursuant to the exceptions in § 915.10 shall, prior thereto, register with the committee. Such registration shall be by application for registration filed with the Avocado Administrative Committee on a form, prescribed and furnished by the committee, which shall contain the following information:
(1) Name and address of applicant;
(2) Applicant’s principal place(s) of business;
(3) Type of business organization (individual, corporation, partnership, etc.);
(4) If other than an individual, the names and addresses of officers, partners, etc.;
(5) Nature of business (handler, trucker, wholesaler, etc.);
(6) Number of years engaged in avocado business;
(7) Estimated seasonal volume of avocados handled;
(8) Place within production area where the avocados will be prepared for market, and name and address of person responsible for such preparation;
(9) Name and address of three references, one of which shall be a bank;
(10) Certification of accuracy of information furnished; and
(11) An agreement to comply with the provisions of this part.
(b) When the committee receives an application for registration, it shall issue the applicant a certificate of registration, if it determines based upon an investigation that the applicant may be expected to handle avacados in accordance with this part.
(c) If it is determined from the available information that the applicant is not entitled to be registered with the committee, he shall be so informed by written notice stating why the certificate of registration was not issued.
(d) Any certificate of registration issued to a handler pursuant to this section may be canceled by the committee under circumstances which would have justified denial of his application.
(e) The committee shall suspend the certificate of registration issued under this section of any handler who fails to pay assessments or furnish reports as required under this part, and so advise the handler in writing of the suspension and the effective date. The committee shall lift such suspension at such time as the handler pays such assessments and files such reports, and the committee determines that the handler may be expected to handle avacados in the future in accordance with this part.
§ 915.140 Avocados not subject to regulation.
(a) Minimum quantity. During any one day any handler may handle not to exceed 55 pounds total of avocados exempt from the provisions of §§ 915.41, 915.51, and 915.54, and the regulations issued thereunder: Provided, That such exempted quantity shall not be included as part of a shipment exceeding 55 pounds.
(b) Gift shipments. Any handler may, exempt from the provisions of §§ 915.41, 915.51, and 915.54, and the regulations issued thereunder, handle avocados in individually addressed gift containers not exceeding 20 pounds net weight for use by the addressee other than for resale.
(c) Commercial processing into products. The term commercial processing into products, as used in § 915.55(c), means the manufacture of any avocado product which is preserved by any recognized commercial process, including canning, freezing, dehydrating, drying, the addition of chemical substances, or by fermentation.
(d) Avocados for seed. Any handler may ship avocados to be used for seed purposes exempt from the provisions of §§ 915.41, 915.51, and 915.54, and the regulations issued thereunder: Provided, That such handler shall make application to the committee for an exemption prior to the loading of each shipment and that the receiver of each such shipment shall certify, on a form provided by the committee, that such fruit was used for the intended purpose, and that the residue from the seed separation process will not be allowed to enter fresh channels of trade.
§ 915.141 Handling avocados for commercial processing into products.
(a) No person shall handle any avocados for commercial processing into products unless prior to such handling such person notifies the Avocado Administrative Committee of the proposed handling and provides the committee with the name of the intended processor. If the intended processor’s name is not on the Avocado Administrative Committee’s current list of approved manufacturers of avocado products, as prescribed in paragraph (b) of this section, or if on the list is suspended, such person shall furnish the committee, prior to each such handling, with a statement executed by the intended processor that the avocados will be used for the stated purpose only.
(b) Any person who desires to have his name placed on the Avocado Administrative Committee’s list of approved manufacturers of avocado products shall, prior to such listing, submit to the Avocado Administrative Committee an application containing the following information:
(1) Name and address of applicant;
(2) Location of the facilities for commercial processing into products;
(3) Proposed type of avocado product or products to be manufactured from avocados and the proposed commercial process of preservation;
(4) Description of facilities for commercial processing into products;
(5) Quantity of avocados used in commercial processing into products during the previous fiscal year and estimate of the quantity of avocados to be similarly processed during the current fiscal year; (6) expected source of avocados for commercial processing into products; (7) method of transporting avocados and unloading point; (8) Avocado Administrative Committee handler certificate of registration number, if any; (9) a statement that the avocados obtained for commercial processing into products will be used for that purpose only and will not be resold or disposed of in fresh fruit channels; and (10) an agreement to submit such reports as are required by the Avocado Administrative Committee with approval of the Secretary.
(c) Upon receipt of an application for such listing, the Avocado Administrative Committee shall make such investigation as it deems appropriate, and if it appears that the applicant may reasonably be expected to use avocados covered by the application in accordance with, and to comply with, the requirements of paragraph (b) of this section, it shall place the person’s name on Avocado Administrative Committee’s current list of approved manufacturers of avocado products.
(d) If it is determined by the committee from the available information that the applicant is not entitled to such listing he shall be so informed by written notice stating why his application was denied.
(e) Any such listing pursuant to paragraphs (b) and (c) of this section may be canceled by the committee under circumstances which would have justified denial of this application.
(f) The committee shall suspend the listing of any approved manufacturer who fails to submit reports as prescribed pursuant to the provisions of paragraph (b) of this section. The committee shall advise such manufacturer in writing of the pending suspension and shall specify the time such suspension is to become effective. Upon determination by the committee that the manufacturer has satisfied by such effective time the requirements with respect to the submission of reports the committee shall not make such suspension effective. However, if the suspension is in effect, the committee shall terminate such suspension at such time as it determines that the manufacturer has satisfied the requirements with respect to the submission of reports.
§ 915.142 Reserve fund.
(a) The establishment of a reserve fund at an amount not to exceed approximately 3 fiscal years’ operational expenses is appropriate and necessary to the maintenance and functioning of the Avocado Administrative Committee. Such reserve, including funds carried forward from prior fiscal years, shall be used to provide for the maintenance and functioning of the committee in accordance with the provisions of the marketing agreement, as amended, and this part.
(b) Terms used in this section shall have the same meaning as when used in said marketing agreement and order.
§ 915.150 Reports.
(a) Each handler shall file with the Avocado Administrative Committee, on a weekly basis, a report of all avocados received by him. Such report shall be on forms prescribed by the committee and shall include: (1) The name and address of the handler; (2) weekly period covered by the report; (3) district in which the avocados were received; and (4) the quantity of each variety of avocados received. Each such report shall be filed with the committee not later than one week after the close of business of the last day of the period covered by the report.
(b) Each handler registered with the Avocado Administrative Committee shall render a report to the committee of the disposition of each lot of noncertified avocados removed from the premises of his handling facilities during each week in which any avocados are handled subject to the provisions of §§ 915.41, 915.51, and 915.54, or exemptions therefrom pursuant to § 915.53. Such report shall be on forms prescribed by the committee and shall include: (1) The quantity; (2) purpose for which removed; (3) date of removal; and (4) the name of the person or firm to which the avocados were delivered or consigned. Each such report shall be signed by the handler or his authorized representative, shall cover the period Sunday through Saturday, and shall be placed in the mail not later than one week after the close of business of the Saturday ending the period covered by the report.
(c) Each handler shall render a report to the Avocado Administrative Committee of each lot of noncertified avocados received from a district other than that in which his handling facilities are located. Such report shall be on forms prescribed by the committee and shall include: (1) The name of the handler; (2) the quantity of avocados received; (3) date received; (4) name and address of the person from whom the avocados were purchased; (5) the district from which the avocados were transferred; and (6) the district to which the avocados were transferred. Each such report shall cover the period Sunday through Saturday and shall be placed in the mail not later than one week after the close of business of the Saturday ending the period covered by the report.
(d) Each handler shall, at the end of the day’s operation, report to the committee the number of containers of avocados sold and delivered in the State of Florida in the following containers: (1)
(e) At the time of inspection, each handler shall provide to the Federal-State Inspection Service the quantity and size of containers being packed and inspected for the fresh avocado market. In addition, each handler shall provide the number of avocados packed per container (count per container).
2. At 71 FR 76899, Dec. 22, 2006, in § 915.150, paragraphs (b), (c), and (d) were suspended indefinitely, effective Dec. 26, 2006.
§ 915.155 Delinquent assessments.
Each handler shall pay interest of one percent per month on any unpaid assessment balance beginning 30 days after date of billing. Such interest charge is to apply to any unpaid assessments which become due the Avocado Administrative Committee after the effective date of this section.
§ 915.160 Public member eligibility requirements and nomination procedures.
(a) Public member and alternate member candidates shall not represent an agricultural interest, and shall not have a financial interest in, or be associated with the production, processing, financing, or marketing of avocados.
(b) Public member and alternate member candidates should be able to devote sufficient time to attend committee activities regularly and to familiarize themselves with the background and economics of the avocado industry.
(c) The public member and alternate member shall be a resident of the production area.
(d) The public member and alternate member should be nominated by the Avocado Administrative Committee, and shall serve a one-year term which coincides with the term of the producer and handler members of the committee.
Subpart C – Assessment Rates
§ 915.235 Assessment rate.
On and after April 1, 2022, an assessment rate of $0.50 per 55-pound container or equivalent is established for avocados grown in South Florida.
Subpart D – Container and Pack Requirements
§ 915.305 Florida Avocado Container Regulation 5.
(a) No handler shall handle any avocados for the fresh market from the production area to any point outside thereof in containers having a capacity of more than 4 pounds of avocados unless the containers meet the requirements specified in this section: Provided, That the containers authorized in this section shall not be used for handling avocados for commercial processing into products pursuant to § 915.55(c). All avocados shall be packed in containers of 33, 31, 24, 12, and 8.5 pounds designated net weights and shall conform to all other applicable requirements of this section:
(1) Containers shall not contain less than 33 pounds net weight of avocados, except that for avocados of unnamed varieties, which are avocados that have not been given varietal names, and for Booth 1, Fuchs, and Trapp varieties, such weight shall be not less than 31 pounds. Not more than 10 percent, by count, of the individual containers in any lot may fail to meet the applicable specified weight. No container in any lot may contain a net weight of avocados exceeding 2 pounds less than the specified net weight; or
(2) Containers shall not contain less than 24 pounds net weight of avocados: Provided, That not to exceed 5 percent, by count, of such containers in any lot may fail to meet such weight requirement. All avocados packed at this designated net weight shall be placed in two layers and the net weight of all avocados in any such container shall not be less than 24 pounds: Provided, That the requirement as to placing avocados in two layers only shall not apply to such container if each of the avocados therein weighs 14 ounces or less; or
(3) Containers shall not contain less than 12 pounds net weight of avocados: Provided, That not to exceed 5 percent, by count, of such containers in any lot may fail to meet such weight requirement. All avocados packed at this designated net weight shall be placed in one layer only and the net weight of all avocados in any such container shall not be less than 12 pounds; or
(4) Containers shall not contain less than 8.5 pounds net weight of avocados: Provided, That not to exceed 5 percent, by count, of such containers in any lot may fail to meet such weight requirement. All avocados packed at this designated net weight shall be placed in one layer only and the net weight of all avocados in any such container shall not be less than 8.5 pounds. Such containers shall be for export shipments only.
(5) Such other types and sizes of containers as may be approved by the Avocado Administrative Committee, with the approval of the Secretary, for testing in connection with a research project conducted by or in cooperation with said committee: Provided, That the handling of each lot of avocados in such test containers shall be subject to prior approval, and under the supervision of, the Avocado Administrative Committee.
(b) The limitations set forth in paragraph (a) of this section shall not apply to master containers for individual packages of avocados: Provided, That the markings or labels, if any, on the individual packages within such master containers do not conflict with the markings or labels on the master container.
(c) No handler shall handle any avocados for the fresh market in 20 bushel plastic field bins to destinations inside the production area.
(d) Avocados handled for the fresh market in containers other than those authorized under § 915.305(a) and shipped to destinations within the production area must be packed in 1-bushel containers.
(e) All containers in which the avocados are packed must be new, and clean in appearance, without marks, stains, or other evidence of previous use.
§ 915.306 Florida avocado grade, pack, and container marking regulation.
(a) No handler shall handle any variety of avocados grown in the production area unless:
(1) Such avocados grade at least U.S. Combination, except that avocados handled to destinations within the production area grade at least U.S. No. 2.
(2) Such avocados are in containers authorized under § 915.305, when handled to points outside the production area.
(3) Such avocados are packed in accordance with standard pack, when handled in containers authorized under § 915.305.
(4) Such avocados are in containers marked with a Federal-State Inspection Service lot stamp number, when handled in containers authorized under § 915.305: Provided, That when inspection occurs after palletization, only all exposed or outside containers of avocados must be plainly marked with the lot stamp number corresponding to the lot inspection conducted by an authorized inspector.
(5) Such avocados are in containers marked with a Federal-State Inspection Service (FSIS) lot stamp number applied to an adhesive tape seal affixed to the container in a manner to prevent the container from being opened and/or the fruit being removed without breaking the seal, when handled in containers other than those authorized under § 915.305. The stamp and tape shall be affixed to the container by the FSIS or by the handler under the supervision of the FSIS. Only stamps and tape which have been approved by the Fresh Products Branch, Fruit and Vegetable Division, Agricultural Marketing Service, U.S. Department of Agriculture, may be used for purposes of stamping and sealing containers to meet these requirements.
(6) Such avocados when handled in containers authorized under § 915.305, except for those to export destinations, are marked once with the grade of fruit in letters and numbers at least 1 inch in height on the top or one side of the container, not to include the bottom.
(7) Such avocados when handled in containers other than those authorized under § 915.305(a) for shipment to destinations within the production area are marked once with the grade of fruit in letters and numbers at least 3 inches in height on the top or one side of the container, not to include the bottom. Each such container is also to be marked at least once with either the registered handler number assigned to the handler at the time of certification as a registered handler or with the name and address of the handler.
(b) The provisions of paragraphs (a)(2), (a)(3), (a)(4), (a)(5), and (a)(6) of this section shall not apply to individual packages of avocados weighing four pounds or less, net weight, in master containers.
(c) Terms pertaining to grades and standard pack mean the same as those defined in the United States Standards for Florida Avocados (7 CFR 51.3050 through 51.3069).
§ 915.332 Florida avocado maturity regulation.
(a) No handler shall handle any variety of avocados, except Hass, Fuerte, Zutano, and Edranol, grown in the production area unless:
(1) Any portion of the skin of the individual avocados has changed to the color normal for that fruit when mature for those varieties which normally change color to any shade of red or purple when mature, except for the Linda variety; or
(2) Such avocados meet the minimum weight or diameter requirements for the Monday nearest each date specified, through the Sunday immediately prior to the nearest Monday of the specified date in the next column, for each variety listed in the following table I: Provided, that avocados may not be handled prior to the earliest date specified in column A of such table for the respective variety; Provided further, There are no restrictions on size or weight on or after the date specified in column D; Provided further, That up to a total of 10 percent, by count to the individual fruit in each lot may weigh less than the minimum specified or be less than the specified diameter, except that no such avocados shall be over 2 ounces lighter than the minimum weight specified for the variety: Provided further, That up to double such tolerance shall be permitted for fruit in an individual container in a lot.
Table I
| Variety | A date | Min. wt. | Min. diam. | B date | Min. wt. | Min. diam. | C date | Min. wt. | Min. diam. | D date |
|---|---|---|---|---|---|---|---|---|---|---|
| Dr. Dupuis #2 | 5-30 | 16 | 3 | 6-13 | 14 | 3 | 7-04 | 12 | 3 | 7-18 |
| Simmons | 6-20 | 16 | 3 | 7-04 | 14 | 3 | 7-18 | 12 | 3 | 8-01 |
| Pollock | 6-20 | 18 | 3 | 7-04 | 16 | 3 | 7-18 | 14 | 3 | 8-01 |
| Hardee | 6-27 | 16 | 3 | 7-04 | 14 | 2 | 7-11 | 12 | 7-25 | |
| Nadir | 6-27 | 14 | 3 | 7-04 | 12 | 3 | 7-11 | 10 | 2 | 7-18 |
| Ruehle | 7-04 | 18 | 3 | 7-11 7-18 | 16 14 | 3 3 | 8-01 8-08 | 12 10 | 3 3 | 8-15 |
| Bernecker | 7-18 | 18 | 3 | 8-01 | 16 | 3 | 8-15 | 14 | 3 | 8-29 |
| Miguel (P) | 7-18 | 22 | 3 | 8-01 | 20 | 3 | 8-15 | 18 | 3 | 8-29 |
| Nesbitt | 7-18 | 22 | 3 | 8-01 | 16 | 3 | 8-08 | 14 | 3 | 8-22 |
| Tonnage | 8-01 | 16 | 3 | 8-15 | 14 | 3 | 8-22 | 12 | 3 | 8-29 |
| Waldin | 8-01 | 16 | 3 | 8-15 | 14 | 3 | 8-29 | 12 | 3 | 9-12 |
| Tower II | 8-01 | 14 | 3 | 8-15 | 12 | 3 | 8-29 | 10 | 3 | 9-05 |
| Beta | 8-08 | 18 | 3 | 8-15 | 16 | 3 | 8-29 | 14 | 3 | 9-05 |
| Lisa (P) | 8-08 | 12 | 3 | 8-15 | 11 | 3 | 8-22 | |||
| Black Prince | 8-15 | 28 | 4 | 8-29 | 23 | 3 | 9-12 | 16 | 3 | 10-03 |
| Loretta | 8-22 | 30 | 4 | 9-05 | 26 | 3 | 9-19 | 22 | 3 | 9-26 |
| Booth 8 | 8-29 | 16 | 3 | 9-12 | 14 | 3 | 9-26 10-10 | 12 10 | 3 3 | 10-24 |
| Booth 7 | 8-29 | 18 | 3 | 9-12 | 16 | 3 | 9-26 | 14 | 3 | 10-10 |
| Booth 5 | 9-05 | 14 | 3 | 9-19 | 12 | 3 | 10-03 | |||
| Choquette | 9-26 | 28 | 4 | 10-10 | 24 | 4 | 10-24 | 20 | 3 | 11-7 |
| Hall | 9-26 | 26 | 3 | 10-10 | 20 | 3 | 10-24 | 18 | 3 | 11-07 |
| Lula | 10-03 | 18 | 3 | 10-10 | 14 | 3 | 10-31 | 12 | 3 | 11-14 |
| Monroe | 11-07 | 26 | 4 | 11-21 | 24 | 4 | 12-05 12-19 | 20 16 | 3 3 | 1-02 |
| Arue | 5-16 | 16 | 5-30 | 14 | 3 | 6-20 | 12 | 7-04 | ||
| Donnie | 5-23 | 16 | 3 | 6-06 | 14 | 3 | 6-20 | 12 | 7-04 | |
| Fuchs | 6-06 | 14 | 3 | 6-20 | 12 | 3 | 7-04 | |||
| K-5 | 6-13 | 18 | 3 | 6-27 | 14 | 3 | 7-11 | |||
| West Indian Seedling 1 | 6-20 | 18 | 7-18 | 16 | 8-22 | 14 | 9-19 | |||
| Gorham | 7-04 | 29 | 4 | 7-18 | 27 | 4 | 8-15 | |||
| Biondo | 7-11 | 13 | 8-15 | |||||||
| Petersen | 7-11 | 14 | 3 | 7-18 | 12 | 3 | 7-25 | 10 | 3 | 8-08 |
| 232 | 7-18 | 14 | 8-01 | 12 | 8-15 | |||||
| Pinelli | 7-18 | 18 | 3 | 8-01 | 16 | 3 | 8-15 | |||
| Trapp | 7-18 | 14 | 3 | 8-01 | 12 | 3 | 8-15 | |||
| K-9 | 8-01 | 16 | 8-22 | |||||||
| Christina | 8-01 | 11 | 2 | 8-22 | ||||||
| Catalina | 8-15 | 24 | 8-29 | 22 | 9-19 | |||||
| Blair | 8-29 | 16 | 3 | 9-12 | 14 | 3 | 10-03 | |||
| Guatemalan Seedling 2 | 9-05 | 15 | 10-03 | 13 | 12-05 | |||||
| Marcus | 9-05 | 32 | 4 | 9/19 | 24 | 4 | 10-31 | |||
| Brooks 1978 | 9-05 | 12 | 3 | 9-12 | 10 | 3 | 9-19 | 8 | 2 | 10-10 |
| Rue | 9-12 | 30 | 4 | 9-19 | 24 | 3 | 10-03 | 18 | 3 | 10-17 |
| Collinson | 9-12 | 16 | 3 | 10-10 | ||||||
| Hickson | 9-12 | 12 | 3 | 9-26 | 10 | 3 | 10-10 | |||
| Simpson | 9-19 | 16 | 3 | 10-10 | ||||||
| Chica | 9-19 | 12 | 3 | 10-03 | 10 | 3 | 10-17 | |||
| Leona | 9-26 | 18 | 3 | 10-03 | 16 | 10-10 | ||||
| Melendez | 9-26 | 26 | 3 | 10-10 | 22 | 3 | 10-24 | 18 | 3 | 11-07 |
| Herman | 10-03 | 16 | 3 | 10-17 | 14 | 3 | 10-31 | |||
| Pinkerton (CP) | 10-03 | 13 | 3 | 10-17 | 11 | 3 | 10-31 | 9 | 11-14 | |
| Taylor | 10-10 | 14 | 3 | 10-24 | 12 | 3 | 11-07 | |||
| Ajax (B-7) | 10-10 | 18 | 3 | 10-31 | ||||||
| Booth 3 | 10-10 | 16 | 3 | 10-17 | 14 | 3 | 10-31 | |||
| Semil 34 | 10-17 | 18 | 3 | 10-31 | 16 | 3 | 11-14 | 14 | 3 | 11-28 |
| Semil 43 | 10-24 | 18 | 3 | 11-7 | 16 | 3 | 11-21 | 14 | 3 | 12-05 |
| Booth 1 | 11-14 | 16 | 3 | 11-28 | 12 | 3 | 12-12 | |||
| Zio (P) | 11-14 | 12 | 3 | 11-28 | 10 | 2 | 12-12 | |||
| Gossman | 11-28 | 11 | 3 | 12-26 | ||||||
| Brookslate | 12-05 | 18 | 3 | 12-12 | 16 | 3 | 1-02 | 12 | 3 | 1-30 |
| 12-19 | 14 | 3 | 1-16 | 10 | ||||||
| Meya (P) | 12-12 | 13 | 3 | 12-26 | 11 | 3 | 1-09 | |||
| Reed (CP) | 12-12 | 12 | 3 | 12-26 | 10 | 3 | 1-09 | 9 | 3 | 1-23 |
1 Avocados of the West Indian type varieties and seedlings not listed elsewhere in table I.
2 Avocados of the Guatemalan type varieties and seedlings, hybrid varieties and seedlings, and unidentified seedlings not listed elsewhere in table I.
(3) Avocados which fail to meet the maturity requirements specified in this section must be maintained under the supervision of the Federal or Federal-State Inspection Service using the Positive Lot Identification program, and when presented for reinspection, must meet the maturity requirements which correspond to the date of the original inspection.
(4) The requirements listed in table I of this section are in effect annually from April 16 through April 15 of the following year, with an exception for the requirements for Guatemalan seedling which are in effect annually from June 9 to June 8 of the following year.
(b) The term diameter means the greatest dimension measured at a right angle to a straight line from the stem to the blossom end of the fruit.
PART 917 – FRESH PEARS AND PEACHES GROWN IN CALIFORNIA
Subpart A – Order Regulating Handling
Definitions
§ 917.1 Secretary.
Secretary means the Secretary of Agriculture of the United States, or any officer or employee of the Department to whom authority has heretofore been delegated, or to whom authority may hereafter be delegated, to act in his stead.
§ 917.2 Act.
Act means Public Act No. 10, 73d Congress (May 12, 1933), as amended, and as reenacted and amended by the Agricultural Marketing Agreement Act of 1937, as amended (48 Stat. 31, as amended; 7 U.S.C. 601-674).
§ 917.3 Person.
Person means an individual, partnership, corporation, association, or any other business unit.
§ 917.4 Fruit.
Fruit means the edible product of the following kinds of trees:
(a) All varieties of pears except Beurre Hardy, Beurre D’Anjou, Bosc, Winter Nelis, Doyenne du Comice, Beurre Easter, and Beurre Clairgeau.
(b) [Reserved]
§ 917.5 Grower.
Grower is synonymous with producer and means any person who produces fruit for market in fresh form, and who has a proprietary interest therein.
§ 917.6 Handle.
Handle and ship are synonymous and mean to sell, consign, deliver or transport fruit or to cause fruit to be sold, consigned, delivered or transported between the production area and any point outside thereof, or within the production area: Provided, That the term handle shall not include the sale of fruit on the tree, the transportation within the production area of fruit from the orchard where grown to a packing facility located within such area for preparation for market, or the delivery of such fruit to such packing facility for such preparation.
§ 917.7 Handler.
Handler is synonymous with shipper and means any person (except a common or contract carrier transporting fruit owned by another person) who handles fruit.
§ 917.9 Fiscal period.
Fiscal period is synonymous with fiscal year and means the 12-month period ending on the last day of February of each year, or such other period that may be approved by the Secretary pursuant to recommendations by the committee.
§ 917.11 Production area.
Production area means the State of California.
§ 917.12 Container.
Container means a box, bag, crate, lug, basket, carton, package, or any other type of receptacle used in the packaging or handling of fruit.
§ 917.13 Pack.
Pack means the specific arrangement, size, weight, count, or grade of a quantity of fruit in a particular type and size of container or any combination thereof.
§ 917.14 District.
District means any of the following subdivisions of the State of California:
(a) North Sacramento Valley District includes and consists of Glenn County, Shasta County, Tehama County, Modoc County, Siskiyou County, Lassen County, Plumas County, and Colusa County.
(b) Central Sacramento Valley District includes and consists of Sutter County, Butte County, Yuba County, and Sierra County.
(c) Sacramento River District includes and consists of Sacramento County, that portion of Yolo County east of a straight line from the northwest corner of Sacramento County to the Northeast corner of Solano County, and that portion of Solano County east of a straight line from the northeast corner of Solano County to the town of Rio Vista.
(d) El Dorado District includes and consists of El Dorado County.
(e) Placer-Colfax District includes and consists of Nevada and Placer Counties.
(f) Solano District includes and consists of that portion of Yolo County not included in the Sacramento River District, and that portion of Solano County not included in the Sacramento River District.
(g) Contra Costa District includes and consists of Contra Costa County.
(h) Santa Clara District includes and consists of Alameda County, Monterey County, Santa Clara County, San Mateo County, Santa Cruz County, and San Benito County.
(i) Lake District includes and consists of Lake County.
(j) Mendocino District includes and consists of Mendocino County, Humboldt County, Trinity County, and Del Norte County.
(k) South Coast District includes and consists of San Luis Obispo County, Santa Barbara County, and Ventura County.
(l) Stockton District includes and consists of San Joaquin County, Amador County, Calaveras County, and Alpine County.
(m) Stanislaus District includes and consists of Merced County, Stanislaus County, Tuolumne County, and Mariposa County.
(n) Fresno District includes and consists of Madera County, Fresno County, and Mono County.
(o) Tulare District includes and consists of Tulare County and Kings County.
(p) Kern District includes and consists of that portion of Kern County west of the Tehachapi Mountains.
(q) Tehachapi District includes and consists of that portion of Kern County not included in Kern District, and Inyo County.
(r) Southern California District includes and consists of San Bernardino County, Orange County, San Diego County, Imperial County, Riverside County, and Los Angeles County.
(s) North Bay District includes and consists of Sonoma County, Napa County, and Marin County.
§ 917.15 Representation area.
Representation area means any one of the districts or groups of districts which are designated for nominating members and alternate members to the commodity committees under § 917.21 or as changed pursuant to § 917.35(g).
Administrative Bodies
§ 917.16 Designation of Control Committee.
A Control Committee is hereby established consisting of 12 shipper members and 13 commodity committee members, and the members shall be selected in accordance with the provisions of § 917.17 through § 917.19. The members shall be selected annually for a term ending on the last day of February, and said members shall serve until their respective successors are selected and have qualified.
§ 917.17 Nomination of shipper members of the Control Committee.
Nominations for the 12 members of the Control Committee to represent shippers shall be made in the following manner:
(a) By February 1 of each year the Control Committee shall announce a time and place for a meeting of all shippers of fruit and shall conduct the election of nominees at such meeting. At said election meeting the shippers present shall select a nominee for each of the shipper member positions on the Control Committee. Each shipper shall cast only one vote.
(b) No shipper shall be entitled to participate in the nomination of members of the Control Committee, or be eligible for membership on such committee, if such shipper has failed to pay the assessments, due to be paid by him pursuant to the provisions of § 917.37.
§ 917.18 Nomination of commodity committee members of the Control Committee.
Nominations for the 13 members of the Control Committee to represent the commodity committees shall be made in the following manner:
(a) A nomination for one member shall be made by each commodity committee selected pursuant to § 917.25. Nominations for the remaining members shall be made by the respective commodity committees as provided in this section. The number of remaining members which each respective commodity committee shall be entitled to nominate shall be based upon the proportion that the previous three fiscal periods’ shipments of the respective fruit is of the total shipments of all fruit to which this part is applicable during such periods. In the event provisions of this part are terminated or suspended as to any fruit, nominations of members to the Control Committee shall be composed of representatives of any remaining fruit.The apportionment shall be determined as aforesaid.In the event provisions of this part are terminated or suspended as to any fruit, the members of the commodity committee of the remaining fruit shall have all the powers, duties, and functions given to the Control Committee under this part and sections of this part pertaining to the designation of the Control Committee shall be terminated or suspended.
(b) A person nominated by any commodity committee for membership on the Control Committee shall be an individual person who is a member or alternate member of the commodity committee that nominates him/her. Each member of each commodity committee shall have only one vote in the selection of nominees for membership on the Control Committee.
§ 917.19 Selection of members of the Control Committee.
From the nominations made pursuant to § 917.17, or from other persons, the Secretary shall select the shipper members of the Control Committee. From the nominations made pursuant to § 917.18, or from other persons, the Secretary shall select the commodity committee members of the Control Committee. Any person selected as member of the Control Committee shall qualify by filing with the Secretary a written acceptance of the appointment.
§ 917.20 Designation of members of commodity committees.
There is hereby established a Pear Commodity Committee consisting of 13 members. Each commodity committee may be increased by one public member nominated by the respective commodity committee and selected by the Secretary. The members of each said committee shall be selected biennially for a term ending on the last day of February of odd numbered years, and such members shall serve until their respective successors are selected and have qualified. The members of each commodity committee shall be selected in accordance with the provisions of § 917.25.
§ 917.21 Nomination of Pear Commodity Committee members.
Nominations for membership on the Pear Commodity Committee shall be made by the growers of pears in the respective representation areas as follows:
(a) North Sacramento Valley District and the Central Sacramento Valley District one nominee.
(b) Sacramento River District, Stockton District, Stanislaus District, Contra Costa District, Santa Clara District, and Solano District four nominees.
(c) Placer-Colfax District one nominee.
(d) Lake District four nominees.
(e) Mendocino District and the North Bay District one nominee.
(f) El Dorado District one nominee.
(g) All of the production area not included in paragraphs (a) through (f) of this section one nominee.
§ 917.24 Procedure for nominating members of various commodity committees.
(a) The Control Committee shall hold or cause to be held not later than February 15 for pears of each odd numbered year a meeting or meetings of the growers of the fruits in each representation area set forth in § 917.21. These meetings shall be supervised by the Control Committee, which shall prescribe such procedures as shall be reasonable and fair to all persons concerned.
(b) With respect to each commodity committee, only growers of the particular fruit who are present at such nomination meetings or represented at such meetings by duly authorized employees may participate in the nomination and election of nominees for commodity committee members and alternates. Each such grower, including employees of such grower, shall be entitled to cast but one vote for each position to be filled for the representation area in which he produces such fruit.
(c) A particular grower, including employees of such growers, shall be eligible for membership as principle or alternate to fill only one position on a commodity committee. A grower nominated for membership on the Pear Commodity Committee must have produced at least 51 percent of the pears shipped by him during the previous fiscal period, or he must represent an organization which produced at least 51 percent of the pears shipped by it during such period.
§ 917.25 Selection of members of various commodity committees.
(a) The Secretary shall select the members of each commodity committee from nominations made by growers, as provided in §§ 917.21 through 917.24, or from among other eligible persons. Any person selected as a member of a commodity committee shall qualify by filing with the Secretary a written acceptance of the appointment.
(b) [Reserved]
§ 917.26 Failure to nominate.
If nominations are not made within the time and in the manner prescribed in §§ 917.21 through 917.24, the Secretary may, without regard to nominations, select the member and alternate members of commodity committees on the basis of representation provided in § 917.21. In the event nominations are not made for membership on the Control Committee, pursuant to the provisions of §§ 917.17 and 917.18, by May 1 of each year, the Secretary may select such members without waiting for nominees to be designated.
§ 917.27 Alternates.
There shall be an alternate for each member of the Control Committee, and an alternate for each member of each commodity committee. Each such alternate shall possess the same qualifications, shall be nominated and selected in the same manner and shall hold office for the same term, as the member for whom he is alternate. An alternate shall, in the event of such member’s absence at a meeting of the committee, act in the place and stead of such member; and, in the event of such member’s removal, resignation, disqualification, or death, the alternate for such member shall, until a successor for the unexpired term of said member has been selected, act in the place and stead of said member. In the event both a member and his alternate are unable to attend a meeting the member or the committee members present may designate any other alternative to serve in such member’s place and stead provided such action is necessary to secure a quorum.
§ 917.28 Procedure for filling vacancies on committees.
To fill any vacancy on the Control Committee or on any of the commodity committees occasioned by the failure of any person selected as a member or as an alternate member to qualify, or in the event of the death, removal, resignation, or disqualification of any member or alternate member, a successor for the unexpired term of such member or alternate shall be nominated and selected in the manner specified in §§ 917.17 through 917.19 and §§ 917.21 through 917.25. If the names of nominees to fill any such vacancy are not made available to the Secretary within a reasonable time after such vacancy occurs, the Secretary may fill such vacancy without regard to nominations on the basis of representation provided for in §§ 917.16 and 917.21.
§ 917.29 Organization of committees.
(a) A majority of all of the members of the Control Committee shall constitute a quorum, and any action of the Control Committee shall require the concurrence of the majority of all members present at the meeting.
(b) A quorum of the Pear Commodity Committee shall consist of nine members.
(c) The Control Committee and each commodity committee shall give to the Secretary the same notice of each meeting that is given to the members of the respective committee.
(d) The Control Committee or any commodity committee may, upon due notice to all of the members of the respective committee, vote by letter, telegraph or telephone: Provided, That any member voting by telephone shall promptly thereafter confirm in writing his/her vote so cast.
§ 917.30 Removal and disapproval.
The members of the Control Committee, including their respective successors and alternates, and the members of each commodity committee, including their respective successors and alternates, and any agent or employee appointed or employed by the Control Committee and the members of any other committee established pursuant to the provisions of this subpart shall be subject to removal or suspension at any time by the Secretary. Each regulation, decision, determination, or other act of the Control Committee, or any commodity committee, or any other committee established pursuant to the provisions of this subpart, shall be subject to the continuing right of the Secretary to disapprove of the same at any time; and, upon such disapproval, each such regulation, decision, determination, or other act, shall be deemed null and void except as to acts done in reliance thereon or in compliance therewith prior to such disapproval by the Secretary.
§ 917.31 Compensation and expenses.
All committee members shall serve without compensation, but said members, and their respective alternates, shall be reimbursed for expenses necessarily incurred in the performance of their duties. At its discretion any committee may request the attendance of one or more alternates at any or all meetings, notwithstanding the expected or actual presence of the respective members, and may pay expenses as aforesaid.
§ 917.32 Funds and other property.
(a) All funds received by the Control Committee, pursuant to the provisions of this part, shall be used solely for the purpose specified in this part; and the Secretary may require the Control Committee and its members to account for all receipts and disbursements.
(b) Upon the resignation, removal, or expiration of the term of any member or employee of the Control Committee, or of any member of any commodity committee, all books, records, funds, and other property in his possession belonging to the Control Committee or any commodity committee shall be delivered to the Control Committee or to his successor in office; and such assignments and other instruments shall be executed as may be necessary to vest in the Control Committee full title to all the books, records, funds, and other property in the possession or under the control of such member or employee, pursuant to the provisions of this part.
(c) The Control Committee may, with the approval of the Secretary, maintain in its own name, or in the name of its members, a suit against any shipper for the collection of such shipper’s pro rata share of expenses, pursuant to the provisions of this part.
§ 917.33 Powers of Control Committee.
The Control Committee shall have the following powers:
(a) To administer, as specifically provided in this part, the terms and provisions of this part.
(b) To make administrative rules and regulations in accordance with and to effectuate the terms and provisions of this part.
(c) To receive, investigate, and report to the Secretary complaints of violations of the provisions of this part.
(d) To recommend to the Secretary amendments to this part.
§ 917.34 Duties of Control Committee.
The Control Committee shall have the following duties:
(a) To act as intermediary between the Secretary and any grower or shippers.
(b) To keep minute books and records which will clearly reflect all of the acts and transactions of said Control Committee; and such minute books and records shall be subject at any time to examination by the Secretary or by such person as may be designated by the Secretary.
(c) To investigate, from time to time, and assemble data on the growing, shipping, and marketing conditions respecting fruit, as defined in § 917.4; to engage in such research and service activities in connection with the handling of such fruit as may be approved, from time to time, by the Secretary; and to furnish to the Secretary such available information as may be requested.
(d) To appoint such employees, agents, and representatives as it may deem necessary, and to determine the compensation and define the duties of each.
(e) To develop and provide the commodity committees data on shared expenses to facilitate equitable apportionment of such expenses in the development of budgets.
(f) To confer with representatives of shippers and growers of fruit produced in other states and areas with respect to the formulation or operation of marketing agreements providing for the regulation of shipments among the several states and areas in the United States in which such fruit is grown.
(g) With the approval of the Secretary establish procedures for the selection and appointment of a public member and alternate to each of the commodity committees.
(h) To establish and define the duties of additional committees or subcommittees to assist in the performance of any of the duties and functions of the Control Committee.
(i) To defend all legal proceedings against any committee members (individually or as members) or any officers or employees of such committees arising out of any act or omission made in good faith pursuant to the provisions of this part.
(j) To cause the books of the Control Committee to be audited by a competent accountant at least once each fiscal period and at such other time or times as the Control Committee may deem necessary or as the Secretary may request. Such audit shall indicate whether the funds have been received and expended in accordance with the provisions of this part.
(k) To appoint nomination committees if it deems proper for any or each nomination meeting held pursuant to § 917.21. Such nomination committees would canvas prospective members and alternate members to the commodity committees to determine their eligibility and willingness to serve and present a slate of nominees to the meeting or meetings. The presentation of nominees by the nominating committee at these meetings shall not exclude the right of any grower to nominate any eligible person at such meeting.
§ 917.35 Powers and duties of each commodity committee.
Each commodity committee shall have the following powers and duties:
(a) With regard to the respective fruit for which it was established, to establish production research and marketing research and development projects as authorized under § 917.39, to recommend to the Secretary regulation of shipments pursuant to the provisions of this part, and to possess such other powers and exercise such other duties as will properly effectuate the purpose of this part: Provided, however, That the Pear Commodity Committee shall approve actions under § 917.39 and make said recommendations pursuant to §§ 917.40 through 917.43 only upon the affirmative vote of not less than nine members of said committee.
(b) To make such rules and regulations with respect to fruit for which it was established as may be necessary to effectuate the terms and provisions of this part.
(c) To forward to the Control Committee and to the Secretary a record of the minutes of each meeting of the commodity committee.
(d) To establish such other committees to aid the commodity committee in the performance of its duties under this part as may be deemed advisable.
(e) Each season prior to any recommendation to the Secretary for a regulation of shipments pursuant to §§ 917.40 through 917.43 to determine the marketing policy to be followed for the respective commodity during the ensuing fiscal period and to submit such policy to the Secretary, said policy report to contain, among other provisions, information relative to the estimated total production and shipments of the fruit by districts, information as to the expected general quality and size of fruit, possible or expected demand conditions of different market outlets, supplies of competitive commodities, such analysis of the foregoing factors and conditions as the committee deems appropriate, and the type of regulations of shipments expected to be recommended for the respective fruit.
(f) To submit as soon as practicable after the beginning of each fiscal year to the Secretary, for his approval, a budget of its expenses for such fiscal period, including its proportional share of the expenses of the Control Committee and an explanation of the items therein, and a recommendation as to the rate of assessment for the respective fruit for which the commodity committee was established.
(g) With the approval of the Secretary, to redefine the Districts into which the State of California has been divided under § 917.14 or change the representation of any representation area affecting the respective commodity committee: Provided, however, That if any such changes are made, representation on any such committee from the various representation areas shall be based, so far as practicable, upon the proportionate quantity of the respective fruit shipped from the respective representation area during the preceding three fiscal periods: Provided further, That the commodity committees shall follow the principle, so far as practicable, of assigning a member position on the commodity committees to any representation area from which five percent of regulated shipments have originated during such periods.
Expenses and Assessments
§ 917.36 Expenses.
Each commodity committee is authorized to incur such expenses as the Secretary finds are reasonable and are likely to be incurred by the said commodity committee during each fiscal period for the maintenance and functioning of such committee, including its proportionate share of the expenses of the Control Committee; and for such research and service activities relating to handling of the fruit for which the commodity committee was established as the Secretary may determine to be appropriate. The funds to cover such expenses shall be acquired by the levying of assessments as provided in § 917.37.
§ 917.37 Assessments.
(a) As his/her pro rata share of the expenses which the Secretary finds are reasonable and are likely to be incurred by the commodity committees during a fiscal period, each handler shall pay to the Control Committee, upon demand, assessments on all fruit handled by him/her. The payment of assessments for the maintenance and functioning of the committees may be required under this part throughout the period it is in effect irrespective of whether particular provisions thereof are suspended or become inoperative.
(b) The Secretary shall fix the respective rate of assessment, which handlers shall pay with respect to each fruit during each fiscal period in an amount designed to secure sufficient funds to cover the respective expenses, which may be incurred during such period. At any time during or after the fiscal period, the Secretary may increase the rates of assessment in order to secure funds to cover any later findings by the Secretary relative to such expenses, and such increase shall apply to all fruit shipped during the fiscal period.
(c) In order to provide funds to carry out the functions of the commodity committee prior to commencement of shipments in any season, shippers may make advance payments of assessments, which advance payments shall be credited to such shippers and the assessments of such shippers shall be adjusted so that such assessments are based upon the quantity of fruit shipped by such shippers during such season. Any shipper who ships fruit for the account of a grower may deduct, from the account of sale covering such shipment or shipments, the amount of assessments levied on said fruit shipped for the account of such grower.
§ 917.38 Accounting.
If, at the end of a fiscal period the assessments collected are in excess of expenses incurred, each commodity committee, with the approval of the Secretary, may carry over such excess into subsequent fiscal periods as a reserve: Provided, That funds already in the reserve do not exceed approximately one fiscal period’s expenses. Such reserve funds may be used (1) to cover any expenses authorized by this part and (2) to cover necessary expenses of liquidation in the event of termination of this part. If any such excess is not retained in a reserve, each handler entitled to a proportionate refund shall be credited with such refund against the operations of the following fiscal period or be paid such refund. Upon termination of this part, any funds not required to defray the necessary expenses of liquidation shall be disposed of in such manner as the Secretary may determine to be appropriate: Provided, That, to the extent practical, such funds shall be returned pro rata to the persons from whom such funds were collected.
Research
§ 917.39 Production research, market research and development.
The committees, with the approval of the Secretary, may establish or provide for the establishment of production research, marketing research, and development projects designed to assist, improve, or promote the marketing, distribution, and consumption or efficient production of fruit. Such projects may provide for any form of marketing promotion including paid advertising. The expenses of such projects shall be paid from funds collected pursuant to § 917.37.
Regulations
§ 917.40 Recommendations for regulations.
(a) Whenever a commodity committee deems it advisable to regulate the handling of any variety or varieties of fruit in the manner provided in § 917.41, it shall so recommend to the Secretary.
(b) In arriving at its recommendations for regulation pursuant to paragraph (a) of this section, the commodity committee shall give consideration to current information with respect to the factors affecting the supply and demand for such fruit during the period or periods when it is proposed that such regulation should be made effective. With each such recommendation for regulation, the commodity committee shall submit to the Secretary the data and information on which such recommendation is predicated and such other available information as the Secretary may request.
§ 917.41 Issuance of regulations.
(a) The Secretary shall regulate, in the manner specified in this section, the handling of any variety or varieties of fruit whenever he finds, from the recommendations and information submitted by the commodity committee, or from other available information, that such regulations will tend to effectuate the declared policy of the act. Such regulations may:
(1) Limit, during any period or periods, the total quantity of any grade, size, quality, maturity, or pack, or any combination thereof, of any variety or varieties of fruit;
(2) Limit the shipment of any variety or varieties of fruit by establishing, in terms of grades, sizes, or both, minimum standards of quality and maturity during any period when season average prices are expected to exceed the parity level;
(3) Fix the size, capacity, weight, dimensions, markings, or pack of the container, or containers, which may be used in the packaging or handling of any fruit.
(b) The commodity committee shall be informed immediately of any such regulation issued by the Secretary, and the commodity committee shall promptly give notice thereof to handlers.
§ 917.42 Modification, suspension, or termination of regulations.
(a) In the event the commodity committee at any time finds that, by reason of changed conditions, any regulations issued pursuant to § 917.41 should be modified, suspended, or terminated, it shall so recommend to the Secretary.
(b) Whenever the Secretary finds, from the recommendations and information submitted by the commodity committee or from other available information, that a regulation should be modified, suspended, or terminated with respect to any or all shipments of fruit in order to effectuate the declared policy of the act, he shall modify, suspend, or terminate such regulation. If the Secretary finds that a regulation obstructs or does not tend to effectuate the declared policy of the act, he shall suspend or terminate such regulation. On the same basis and in like manner the Secretary may terminate any such modification or suspension.
§ 917.43 Special purpose shipments.
(a) Except as otherwise provided in this section, any person may, without regard to the provisions of §§ 917.37, 917.41, and 917.42, and the regulations issued thereunder, handle fruit (1) for consumption by charitable institutions; (2) for distribution by relief agencies; or (3) for commercial processing into products.
(b) Upon the basis of recommendations and information submitted by the commodity committee, or from other available information, the Secretary may relieve from any or all requirements, under or established pursuant to § 917.41, § 917.42, § 917.45, or § 917.37, the handling of fruit; (1) To designated market areas outside the continental United States; (2) for such specified purposes (including shipments to facilitate the conduct of marketing research and development projects established pursuant to § 917.39); or (3) in such minimum quantities or types of shipments, as may be prescribed.
(c) The commodity committee shall, with the approval of the Secretary, prescribe such rules, regulations, and safeguards as it may deem necessary to prevent fruit handled under the provisions of this section from entering the channels of trade for other than the specified purposes authorized by this section. Such rules, regulations, and safeguards may include the requirements that handlers shall file applications and receive approval from the commodity committee for authorization to handle fruit pursuant to this section, and that such applications be accompanied by a certification by the intended purchaser or receiver that the fruit will not be used for any purpose not authorized by this section.
§ 917.45 Inspection and certification.
(a) Whenever the handling of any variety of a particular fruit is regulated pursuant to § 917.41 or § 917.42, each handler who handles such fruit shall, prior thereto, cause such fruit to be inspected by the Federal or Federal-State Inspection Service: Provided, That inspection and certification shall not be required if such fruit has previously been so inspected and certified. Promptly after inspection and certification, each such handler shall submit, or cause to be submitted, to the commodity committee a copy of the certificate of inspection issued with respect to such fruit. The commodity committees may, with the approval of the Secretary, prescribe rules and regulations waiving the inspection requirements of this section where it is determined that inspection is not available: Provided, That all shipments made under such waiver shall comply with all regulations in effect.
(b) The Control Committee may enter into an agreement with the Federal and Federal-State Inspection Services with respect to the costs of the inspection required by paragraph (a) of this section, for any or all fruits, and may collect from handlers their respective pro rata shares of such costs.
Reports
§ 917.50 Reports.
(a) Each handler shall furnish to the Manager of the Control Committee, at such times and for such periods as the Control Committee or the commodity committees may designate, certified reports covering, to the extent necessary for the committees to perform their functions, each shipment of fruits as follows:
(1) The name of the shipper and the shipping point;
(2) The car or truck license number (or name of the trucker), and identification of the carrier;
(3) The date and time of departure;
(4) The number and type of containers in the shipment;
(5) The quantities shipped, showing separately the variety, grade, and size of the fruit;
(6) The destination;
(7) Identification of the inspection certificate or waiver pursuant to which the fruit was handled;
(8) The price per package at which sold, including specific and detailed information relative to all discounts, allowances, rebates, or other adjustments thereof.
(b) Upon request of any committee, made with the approval of the Secretary, each handler shall furnish to the Manager of the Control Committee, in such manner and at such times as it may prescribe, such other information as may be necessary to enable the committee to perform its duties under this part.
(c) Each handler shall maintain for at least two succeeding fiscal years, such records of the fruits received and disposed of by him as may be necessary to verify the reports he submits to the committee pursuant to this section.
(d) All reports and records submitted by handlers pursuant to the provisions of this section shall be received by, and at all times be in custody of, one or more designated employees of the Control Committee. No such employee shall disclose to any person, other than the Secretary upon request therefor, data or information obtained or extracted from such reports and records which might affect the trade position, financial condition, or business operation of the particular handler from whom received: Provided, That such data and information may be combined, and made available to any person, in the form of general reports in which the identities of the individual handlers furnishing the information are not disclosed and may be revealed to any extent necessary to effect compliance with the provisions of this part and the regulations issued thereunder.
Miscellaneous Provisions
§ 917.60 Effective time.
The provisions of this part and of any amendment thereto, shall become effective at such time as the Secretary may declare above his signature and shall continue in force until terminated in one of the ways specified in § 917.61.
§ 917.61 Termination.
(a) The Secretary may at any time terminate the provisions of this part by giving at least one day’s notice by means of a press release or in any other manner in which he may determine.
(b) The Secretary shall terminate or suspend the operation of any and all of the provisions of this part whenever he finds that such provisions do not tend to effectuate the declared policy of the act.
(c) The Secretary shall terminate the provisions of this part or the applicability of the provisions of this part as to a particular fruit whenever he finds by referendum or otherwise that such termination is favored by a majority of the growers of the fruit: Provided, That such majority has during the current fiscal period produced more than 50 percent of the volume of the fruit which was produced within the production area for shipment in fresh form. Such termination shall become effective on the first day of March subsequent to the announcement therof by the Secretary.
(d) The Control Committee shall consider all petitions from growers submitted to it for termination of this part provided such petitions are received by the Control Committee prior to October 1 of the then current fiscal period. Upon recommendation of the Control Committee, received not later than December 1 of the then current fiscal period, the Secretary shall conduct a referendum among the growers of the particular kind of fruit prior to February 15 of such fiscal period to ascertain whether continuance of this part is favored by producers.
(e) The Secretary shall conduct a referendum within the period beginning December 1, 1974, and ending February 15, 1975, to ascertain whether continuance of this part as to any fruit included in this part is favored by the growers. The Secretary shall conduct such a referendum within the same period of every fourth fiscal period thereafter.
(f) The provisions of this part shall, in any event, terminate whenever the provisions of the act authorizing them cease to be in effect.
§ 917.62 Proceedings after termination.
(a) Upon the termination of the provisions of this part pertaining to any fruit or fruits, the Control Committee then functioning shall for the purpose of liquidating the affairs of the Control Committee with respect to such fruit continue as trustee of all the funds and property then in its possession, or under its control, including claims for any funds unpaid or property not delivered at the time of such termination.
(b) The said trustees shall (1) continue in such capacity until discharged by the Secretary; (2) from time to time account for all receipts and disbursements and deliver all property on hand, together with all books and records of the committee and of the trustees, to such persons as the Secretary may direct; and (3) upon the request of the Secretary, execute such assignments or other instruments necessary or appropriate to vest in such person, full title and right to all funds, property, and claims vested in the Control Committee or the trustees pursuant thereto.
(c) Any person to whom funds, property, or claims have been transferred or delivered, pursuant to this section, shall be subject to the same obligation imposed upon the Control Committee and upon the trustees.
§ 917.63 Effect of termination or amendment.
Unless otherwise expressly provided by the Secretary, the termination of this subpart or of any regulation issued pursuant to this subpart, 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 under this subpart, or (b) release or extinguish any violation of this subpart or of any regulation issued under this subpart, or (c) affect or impair any rights or remedies of the Secretary or of any other person with respect to any such violation.
§ 917.64 Compliance.
Each shipper shall comply with all regulations. No shipper shall ship fruit in violation of the provisions of this part or in violation of any regulation issued by the Secretary pursuant to the provisions of this part.
§ 917.65 Duration of immunities.
The benefits, privileges, and immunities conferred by virtue of the provisions of this subpart shall cease upon its termination except with respect to acts done under and during the time the provisions of this part are in force and effect.
§ 917.66 Agents.
The Secretary may by a designation in writing name any person, including any officer or employee of the Government or any agency or Division in the United States Department of Agriculture, to act as his agent or representative in connection with any of the provisions of this part.
§ 917.67 Derogation.
Nothing contained in this part is or shall be construed to be in derogation or in modification of the rights of the Secretary or of the United States to exercise any powers granted by the act or otherwise, and in accordance with such powers to act in the premises whenever such action is deemed advisable.
§ 917.68 Liability of committee members.
No members of the Control Committee, any commodity committee, or other committee, or any subcommittee, or any employee of the Control Committee shall be held personally responsible, either individually or jointly with others, in any way whatsoever, to any shipper or any other person for errors in judgment, mistakes, or other acts, either of commission or omission, as such member or employee, except for acts of dishonesty.
§ 917.69 Separability.
If any provision of this part is declared invalid or the applicability thereof to any person, circumstance, thing, or any particular kind of fruit is held invalid, the validity of the remainder of this part or the applicability thereof to any other person, circumstance, thing, or kind of fruit shall not be affected thereby.
Subpart B – Administrative Requirements
Definitions
§ 917.100 Order.
Order means Marketing Order No. 917, as amended (this part 917), regulating the handling of fresh pears grown in the State of California.
§ 917.101 Marketing agreement.
Marketing agreement means Marketing Agreement No. 85 as amended.
§ 917.103 Terms.
All other terms used in this subpart shall have the same meaning as when used in the marketing agreement and order.
General
§ 917.110 Communications.
Unless otherwise prescribed in this subpart, or in the marketing agreement and order, or required by the Control Committee, or a particular commodity committee, all reports, applications, submittals, requests, and communications in connection with the marketing agreement and order shall be addressed as follows:
Administrative Bodies
§ 917.115 Nomination of shipper members for the Control Committee.
(a) All shippers who, prior to February 1 of the then current year, have not advised the manager of the Control Committee in writing of their participation in the formation of an elective body shall be notified promptly by the manager after that date, by mail, of the time and place for a meeting of such shippers to elect nominees for shipper membership on the Control Committee.
(b) The chairman of the then existing Control Committee shall schedule a meeting of shippers in the month of February of the then current year, for the purpose of making nominations to the shipper membership of the Control Committee; and such chairman is authorized to appoint a member of the Control Committee to act as chairman of the meeting and to conduct the election.
§ 917.119 Procedure for nominating members for various Commodity Committees; meetings.
(a) The manager of the then existing Control Committee shall arrange for, and publicize, meetings of growers to nominate members for the different commodity committees, and each such meeting shall be attended by one or more employees of the Control Committee. Members of the Agricultural Extension Service of the University of California may be authorized by the manager to assist in calling such meetings and advise growers, on their respective mailing lists, of such meetings.
(b) Growers assembled at any such meetings may select a chairman and secretary, but in the event none of the aforesaid employees of the Control Committee is selected as secretary of the meeting, one such employee shall, nevertheless, record all nominations made.
(c) The nominations at any meeting shall be conducted according to Robert’s rules of order. However, voting may be by secret ballot or by acclamation in accordance with the desire of the majority of the growers attending the meeting.
(d) No individual, whether representing a corporation or otherwise, may cast more than one vote for each nominee to be selected at the meeting where such individual is eligible to participate in the selection of nominees for members and alternate members of the Commodity Committees.
§ 917.121 Changes in nomination of Pear Commodity Committee members.
Nominations for membership on the Pear Commodity Committee shall be made by the growers of pears in the respective representation areas as follows:
(a) North Sacramento Valley District, Central Sacramento Valley District, Placer-Colfax District, El Dorado District, and all of the production area not included in paragraphs (b) through (d) of this section, one nominee.
(b) Sacramento River District, Stockton District, Stanislaus District, Contra Costa District, Santa Clara District and Solano District, three nominees.
(c) Lake District, six nominees.
(d) Mendocino District and North Bay District, three nominees.
§ 917.122 Qualification requirements and nomination procedure for public members of Commodity Committees.
(a) Public members shall not have a financial interest in or be associated with production, processing, financing, or marketing (except as consumers) of the commodities regulated under this part.
(b) Public members should be able to devote sufficient time and express a willingness to attend committee activities regularly, and to familiarize themselves with the background and economics of the industry.
(c) Public members must be residents of California.
(d) Public members should be nominated by each Commodity Committee and should serve a two-year term which coincides with the term of office of grower members of Commodity Committees.
Regulation by Grades, Sizes, and Minimum Standards of Quality and Maturity
§ 917.143 Exemptions.
(a) Waivers. A handler may handle fruit without inspection and certification, as prescribed under § 917.45, if all the following conditions are met:
(1) The handler requests the Federal-State Inspection Service to provide inspection during its regular working hours at least two hours in advance of the time when inspection is needed. The request need not be in writing but it shall be confirmed immediately in writing on a waiver form supplied by the inspection service;
(2) The Federal-State Inspection Service advises the handler that it is not practicable to provide inspection at the time and place designated by the handler. Such advice may be verbal but it shall be confirmed in writing by the Federal-State Inspection Service by execution of the waiver form on which the handler submitted his written request. A confirmed copy thereof shall be forwarded by the inspection service to the office of the Control Committee;
(3) The Federal-State Inspection Service furnishes the handler with the number of the waiver which shall cover the fruit on which inspection is requested;
(4) When so instructed, the handler plainly and conspicuously marks one end of each container with the letter W and the waiver number supplied by the Federal-State Inspection Service. The letter W and the number so marked shall be not less than one-half inch in height.
(b) Minimum quantities. Notwithstanding any other provisions of this section, pears may be handled without regard to the provisions of §§ 917.37, 917.41, 917.42, 917.45 and 917.50 under the following conditions:
(1) Such pears meet the grade requirements set forth in Articles 35, 38, and 34, respectively of the Food and Agriculture Code of California.
(2) Such pears are for home use and not for resale.
(3) The shipment does not exceed 200 pounds of pears to any one vehicle during any one day.
(4) Such pears are handled by the person who produces them; and the handling takes place (i) on the premises where grown, (ii) at a packinghouse or retail stand nearby which is operated by said handler, or (iii) at a certified farmers market in compliance with section 1392 of the regulations of the California Department of Food and Agriculture: Provided, That the exemption for certified farmers markets shall not apply to fruit sorted out by a handler unless such fruit is packed in containers clearly and legibly marked to show that the fruit contained therein is only to be sold at a certified farmers market, and the handler complies with regulations established under §§ 917.37, 917.41(a)(1), 917.45, and 917.50, except that such fruit may be handled to such markets if the fruit fails to meet the applicable grade only on account of being soft and overripe.
§ 917.149 Special purpose shipments.
Any person may file a request with the Pear Commodity Committee to transport pears to a packing facility located in the State of Oregon without inspection and certification prior to such transporting. The committee may approve such a request subject to the following terms and conditions:
(a) Approval shall be requested by the person prior to transporting the pears out of the area of production.
(b) Such person shall file with the committee, in such manner as required, reports showing, among other things, the date and quantity of pears comprising each shipment of pears transported to Oregon and the disposition thereof.
(c) All such pears shall be of the person’s own production and the packing facility to which they are transported must be owned and operated by that person.
(d) All such pears shall be inspected and certified, as required by § 917.45, by the Federal or Federal-State Inspection Service prior to the time such pears are shipped from the packing facility. Any pears shipped to any such facility which, upon inspection, do not meet the requirements of the then effective grade, size, or quality regulations, may be shipped, or handled, within the State, for consumption by any charitable institution or for distribution by any relief agency or for conversion into products. Prior to any such shipment or handling, there shall first have been submitted to the committee proof satisfactory to the committee that the pears will not be handled contrary to the requirements of the marketing agreement and order. Such proof shall include a written certificate, executed by both the handler and the intended receiver, stating that the pears will not be used for any purpose not authorized by this section.
Regulation of Daily Shipments
Reports
§ 917.176 Pears.
(a) Report of daily packout. When requested by the Pear Commodity Committee, each shipper who ships pears shall furnish to the manager of the Control Committee or when designated to the Federal-State Inspection Service a report of the number of packages by container type, by variety and by district of origin, which the shipper packed during the preceding day.
(b) Recapitulation of shipments. When requested by the Pear Commodity Committee, each shipper of pears shall furnish to the manager of the Control Committee a recapitulation of his shipments. The recapitulation shall show:
(1) The name of the shipper,
(2) The shipping point,
(3) The district of origin,
(4) The variety, and
(5) The number of packages, by size, for each container type.
(c) Report of pears held in storage. Each shipper who has pears under refrigeration in a storage warehouse shall upon request, file with the manager of the Control Committee within the time specified in the request an accurate report containing the following information:
(1) The name and address of the shipper; and
(2) The total quantity, as of the date specified in the request, of pears in storage outside of the State of California and in storage in the State of California.
Subpart C – Grade and Size Requirements
§ 917.461 Pear Regulation 12.
(a) No handler shall ship:
(1) Bartlett or Max-Red (Max-Red Bartlett, Red Bartlett) varieties of pears which do not grade at least U.S. Combination with not less than 80 percent, by count, of the pears grading at least U.S. No. 1: Provided, That for the 1992 crop year, no handler shall ship organic pears of these varieties unless they grade at least U.S. Combination with not less than 50 percent, by count, grading at least U.S. No. 1 and the remainder grading at least U.S. No. 2, except that russeting shall not be scored as a defect for such organic pears. Handlers who intend to ship organic pears in accordance with this paragraph shall provide, upon request of the committee, with the approval of the Secretary, information to indicate that the pears were grown in accordance with the provisions of paragraph (b)(5) of this section.
(2) Any box or container, including consumer packages in master containers and consumer packages not in master containers, of Bartlett or Max-Red (Max-Red Bartlett, Red Bartlett) varieties of pears unless such pears are of a size not smaller than the size known commercially as size 165;
(3) Any box or container, other than consumer packages in master containers and consumer packages not in master containers, of Bartlett or Max-Red (Max-Red Bartlett, Red Bartlett) varieties of pears unless such box or container is stamped or otherwise marked, in plain sight and in plain letters, on one outside end with the name of the variety;
(4) Bartlett or Max-Red (Max-Red Bartlett, Red Bartlett) varieties of pears, when packed in closed containers, other than consumer packages in master containers and consumer packages not in master containers, unless such box or container conforms to the requirement of standard pack, except that such pears may be fairly tightly packed;
(5) Bartlett or Max-Red (Max-Red Bartlett, Red Bartlett) varieties of pears, when packed in other than a closed container, unless such pears do not vary more than
(6) Any volume-filled box or container of Bartlett or Max-Red (Max-Red Bartlett, Red Bartlett) varieties of pears (not packed in rows and not wrap packed), other than consumer packages in master containers and consumer packages not in master containers, unless (i) such boxes or containers are well filled with pears fairly uniform in size; (ii) such pears are packed fairly tight; (iii) there is an approved top pad in each box or container that will cover the fruit with no more than
(7) Each master container, when filled with pears packed in consumer packages, shall bear on one outside end in plain sight and plain letters the varietal name and size description of the contents; the number of consumer packages packed in the master container; the net weight of each consumer package; and the name and address, including zip code, of the handler.
(8) Each individual consumer package shall bear the name and address, including the zip code, of the handler and the net weight of the contents. When a consumer package is not shipped in a master container, it must also bear the varietal name, number and size description of pears contained in the package.
(b) Definitions. (1) Size known commercially as size 165 means a size of pear that will pack a standard pear box, packed in accordance with the specifications of standard pack, with 165 pears and that one-half of the count size designated, representative of the size of the pears in the box or container, shall weigh at least 22 pounds.
(2) Standard pear box means the container so designated in § 1380.19 of the regulations of the California Department of Food and Agriculture.
(3) U.S. No. 1, U.S. No. 2, U.S. Combination, and Standard Pack mean the same as defined in the United States Standards for Summer and Fall Pears (7 CFR 51.1260 to 51.1280).
(4) Approved top pad shall mean a pad of wood-type excelsior construction, fairly uniform in thickness, weighing at least 160 pounds per 1,000 square feet (e.g., an 11 inch by 17 inch pad will weigh at least 21 pounds per 100 pads) or an equivalent made of material other than wood excelsior approved by the committee.
(5) Organic pears means pears which are produced, harvested, distributed, stored, processed and packaged without application of synthetically compounded fertilizers, pesticides, or growth regulators. In addition, no synthetically compounded fertilizers, pesticides, or growth regulators shall be applied by the grower to the field or area in which the pears are grown for 12 months prior to the appearance of flower buds and throughout the entire growing and harvest season for pears.
(6) Consumer package means a package holding 15 pounds or less net weight of pears.
PART 920 – KIWIFRUIT GROWN IN CALIFORNIA
Definitions
§ 920.1 Secretary.
Secretary means the Secretary of Agriculture of the United States, or any officer or employee of the Department of whom authority has heretofore been delegated, or to whom authority may hereafter be delegated.
§ 920.2 Act.
Act means Public Act No. 10, 73d Congress (May 12, 1933), as amended and as reenacted and amended by the Agricultural Marketing Agreement Act of 1937, as amended (48 Stat. 31, as amended; 7 U.S.C. 601 et seq.).
§ 920.3 Person.
Person means an individual, partnership, corporation, association or any other business unit.
§ 920.4 Production area.
Production area means the State of California.
§ 920.5 Kiwifruit.
Kiwifruit means all varieties of kiwifruit, or kiwi grown in the production area.
§ 920.6 Varieties.
Varieties means and includes all classifications or subdivisions of kiwifruit.
§ 920.7 Fiscal period.
Fiscal period is synonymous with fiscal year and means a 12-month period beginning on August 1 of one year and ending on the last day of July of the following year or such other period as the committee, with the approval of the Secretary, may prescribe.
§ 920.8 Committee.
Committee means the Kiwifruit Administrative Committee established pursuant to § 920.20.
§ 920.9 Grower.
Grower is synonymous with producer and means any person who produces kiwifruit for the fresh market and who has a proprietary interest therein.
§ 920.10 Handler.
Handler is synonymous with shipper and means any person (except a common or contract carrier transporting kiwifruit owned by another person) who handles kiwifruit.
§ 920.11 Handle.
Handle and ship are synonymous and mean to sell, consign, deliver, or transport kiwifruit, or to cause kiwifruit to be sold, consigned, delivered, or transported, between the production area and any point outside thereof, or within the production area: Provided, That the term handle shall not include the sale of kiwifruit on the vine, the transportation within the production area of kiwifruit from the vineyard where grown to a packing facility located within such area for preparation for market, or the delivery of such kiwifruit to such packing facility for such preparation.
§ 920.12 District.
District means the applicable one of the following described subdivisions of the production area or such other subdivision as may be prescribed pursuant to § 920.31:
(a) District 1 shall include Butte, Sutter, and Yuba Counties.
(b) District 2 shall include Tulare County.
(c) District 3 shall include all counties within the production area not included in Districts 1 and 2.
§ 920.13 Pack.
Pack means the specific arrangement, size, weight, count, or grade of a quantity of kiwifruit in a particular type and size of container, or any combination thereof.
§ 920.14 Container.
Container means a box, bag, crate, lug, basket, carton, package, or any other type of receptacle used in the packaging or handling of kiwifruit.
Administrative Body
§ 920.20 Establishment and membership.
There is hereby established a Kiwifruit Administrative Committee consisting of 12 members, each of whom shall have an alternate who shall have the same qualifications as the member for whom he or she is an alternate. The 12-member committee shall be made up of the following: One public member (and alternate), and eleven members (and alternates). With the exception of the public member and alternate, all members and their respective alternates shall be growers or employees of growers. In accordance with § 920.31(l), district representation on the committee shall be based upon the previous five-year average production in the district and shall be established so as to provide an equitable relationship between membership and districts. The committee may, with the approval of the Secretary, provide such other allocation of membership as may be necessary to assure equitable representation.
§ 920.21 Term of office.
The term of office of each member and alternate member of the committee shall be for two years from the date of their selection and until their successors are selected. The terms of office shall begin on August 1 and end on the last day of July, or such other dates as the committee may recommend and the Secretary approve. Members may serve up to three consecutive 2-year terms not to exceed 6 consecutive years as members. Alternate members may serve up to three consecutive 2-year terms not to exceed 6 consecutive years as alternate members.
§ 920.22 Nomination.
(a) Except as provided in paragraph (b) of this section, the committee shall hold, or cause to be held, not later than June 1 of each year in which nominations are made, or such other date as may be specified by the Secretary, a meeting or meetings of growers in each district for the purpose of designating nominees to serve as grower members and alternates on the committee. Any such meetings shall be supervised by the committee, which shall prescribe such procedures as shall be reasonable and fair to all persons concerned.
(b) Nominations in any or all districts may be conducted by mail in a manner recommended by the committee and approved by the Secretary.
(c) Only growers may participate in the nomination of grower members and their alternates. Each grower shall be entitled to cast only one vote for each position to be filled in the district in which such grower produces kiwifruit. No grower shall participate in the election of nominees in more than one district in any one fiscal year.
(d) A particular grower shall be eligible for membership as member or alternate member to fill only one position on the committee.
(e) The public member and alternate shall be nominated by the grower members of the committee.
§ 920.23 Selection.
From the nominations made pursuant to § 920.22, or from other qualified persons, the Secretary shall select the 12 members of the committee and an alternate for each such member, with the exception of the public member and alternate member, who shall be selected by the Secretary in his discretion.
§ 920.24 Failure to nominate.
If nominations are not made within the time and in the manner prescribed in § 920.22, the Secretary may, without regard to nominations, select the members and alternate members of the committee on the basis of the representation provided for in § 920.20.
§ 920.25 Acceptance.
Each person to be selected by the Secretary as a member or as an alternate member of the committee shall, prior to such selection, qualify by advising the Secretary that he/she agrees to serve in the position for which nominated for selection.
§ 920.26 Vacancies.
To fill any vacancy occasioned by the failure of any person selected as a member or as an alternate member of the committee to qualify, or in the event of the death, removal, resignation, or disqualification of any member or alternate member of the committee, a successor for the unexpired term of such member or alternate member of the committee shall be nominated and selected, or, in the case of the public member and alternate, selected by the Secretary in his discretion, in the manner specified in §§ 920.22 and 920.23. If the names of nominees to fill any such vacancy are not made available to the Secretary within a reasonable time after such vacancy occurs, the Secretary may fill such vacancy without regard to nominations, which selection shall be made on the basis of representation provided for in § 920.20.
§ 920.27 Alternate members.
An alternate member of the committee, during the absence of the member for whom that individual is an alternate, shall act in the place and stead of such member and perform such other duties as assigned. In the event both a member and his or her alternate are unable to attend a committee meeting, the committee may designate any other alternate member from the same district to serve in such member’s place and stead. In the event of the death, removal, resignation, or disqualification of a member, the alternate of such member shall act for him or her until a successor for such member is selected and has qualified.
§ 920.30 Powers.
The committee shall have the following powers:
(a) To administer the provisions of this part in accordance with its terms;
(b) To receive, investigate, and report to the Secretary complaints of violations of the provisions of this part;
(c) To make and adopt rules and regulations to effectuate the terms and provisions of this part; and
(d) To recommend to the Secretary amendments to this part.
§ 920.31 Duties.
The committee shall have, among others, the following duties:
(a) To select a chairperson and such other officers as may be necessary, and to define the duties of such officers;
(b) To appoint such employees, agents and representatives as it may deem necessary, and to determine compensation and to define the duties of each;
(c) To submit to the Secretary as soon as practicable after the beginning of each fiscal period a budget for such fiscal period, including a report in explanation of the items appearing therein and a recommendation as to the rate of assessment for such period;
(d) To keep minutes, books and records which will reflect all of the acts and transactions of the committee and which shall be subject to examination by the Secretary;
(e) To prepare periodic statements of the financial operations of the committee and to make copies of each such statement available to growers and handlers for examination at the office of the committee;
(f) To cause its books to be audited by a public accountant at least once each fiscal year and at such times as the Secretary may request;
(g) To act as intermediary between the Secretary and any grower or handler;
(h) To investigate and assemble data on the growing, handling and marketing conditions with respect to kiwifruit;
(i) To submit to the Secretary the same notice of meetings of the committee as is given to its members;
(j) To submit to the Secretary such available information as may be requested;
(k) To investigate compliance with the provisions of this part;
(l) With the approval of the Secretary, to redefine the districts into which the production area is divided and to reapportion the representation of any district on the committee: Provided, That any such changes shall reflect, insofar as practicable, shifts in kiwifruit production within the districts and the production area.
§ 920.32 Procedure.
(a) Eight members of the committee, or alternates acting for members, shall constitute a quorum and any action of the committee shall require the concurring vote of the majority of those present: Provided, That actions of the committee with respect to expenses and assessments, production and postharvest research, market research and development, or recommendations for regulations pursuant to §§ 920.50 through 920.55, of this part shall require at least eight concurring votes.
(b) Committee meetings may be assembled or held by telephone, video conference, or other means of communication. The committee may vote by telephone, facsimile, or other means of communication. Votes by members or alternates present at assembled meetings shall be cast in person. Votes by members or alternates participating by telephone or other means of communication shall be by roll call; Provided, That a video conference shall be considered an assembled meeting, and votes by those participating through video conference shall be considered as cast in person.
§ 920.33 Expenses and compensation.
(a) Except for the public member and alternate, the members of the committee, and alternates when acting as members, shall serve without compensation but shall be reimbursed for expenses necessarily incurred by them in the performance of their duties under this part: Provided, That the committee at its discretion may request the attendance of one or more alternates, including the public alternate, at any or all meetings notwithstanding the expected or actual presence of the respective members and may pay expenses as aforesaid.
(b) The public member and alternate shall be reimbursed for expenses necessarily incurred by them in the performance of their duties under this part, and shall receive per diem compensation established by the committee.
§ 920.34 Annual report.
The committee shall, as soon as is practicable after the close of each marketing season, prepare and mail an annual report to the Secretary and make a copy available to each grower and handler who requests a copy of the report.
Expenses and Assessments
§ 920.40 Expenses.
The committee is authorized to incur such expenses as the Secretary finds are reasonable and likely to be incurred by the committee for its maintenance and functioning and to enable it to exercise its powers and perform its duties in accordance with the provisions of this part. The funds to cover such expenses shall be acquired in the manner prescribed in § 920.41.
§ 920.41 Assessments.
(a) As his or her pro rata share of the expenses which the Secretary finds are reasonable and likely to be incurred by the committee during a fiscal period, each person who first handles kiwifruit during such period shall pay to the committee, upon demand, assessments on all kiwifruit so handled. The payment of assessments for the maintenance and functioning of the committee may be required under this part throughout the period it is in effect, irrespective of whether particular provisions thereof are suspended or become inoperative. If a handler does not pay any assessment within the time prescribed by the committee, the assessment may be subject to an interest or late payment charge, or both, as may be established by the Secretary upon recommendation of the committee.
(b) The Secretary shall fix the rate of assessment to be paid by each such person during a fiscal period in an amount designed to secure sufficient funds to cover the expenses which may be incurred during such period and to accumulate and maintain a reserve fund equal to approximately one fiscal period’s expenses. At any time during or after the fiscal period, the Secretary may increase the rate of assessment in order to secure sufficient funds to cover any later finding by the Secretary relative to the expenses which may be incurred: Provided, That any assessment, excluding any amount collected pursuant to § 920.55(c), must be limited to a maximum assessment rate of three and one-half cents per flat, or the equivalent thereof. The Secretary may increase this maximum rate in each succeeding year after the initial year of order operation by the Consumer Price Index (cost of living) for California as published by the Bureau of Labor Statistics. Such increase shall be applied to all kiwifruit handled during the applicable fiscal period. In order to provide funds for the administration of the provisions of this part during the first part of a fiscal period before sufficient operating income is available from assessments on the current year’s shipments, the committee may accept the payment of assessments in advance, and may also borrow money for such purposes.
§ 920.42 Accounting.
(a) If, at the end of a fiscal period, the assessments collected are in excess of expenses incurred, such excess shall be accounted for in accordance with one of the following:
(1) If such excess is not retained in a reserve, as provided in paragraph (a)(2) of this section, it shall be refunded proportionately to the persons from whom it was collected: Provided, That any sum paid by a person in excess of his or her pro rata share of the expenses during any fiscal period may be applied by the committee at the end of such fiscal period to any outstanding obligations due the committee from such person.
(2) The committee, with the approval of the Secretary, may carry over such excess into subsequent fiscal periods as a reserve: Provided, That funds already in the reserve do not equal approximately one fiscal period’s expenses. Such reserve funds may be used: (i) To defray expenses, during any fiscal period, prior to the time assessment income is insufficient to cover such expenses; (ii) to cover deficits incurred during any fiscal year when assessment income is less than expenses; (iii) to defray expenses incurred during any period when any or all provisions of this part are suspended or are inoperative; and, (iv) to cover necessary expenses of liquidation in the event of termination of this part. Upon such termination, any funds not required to defray the necessary expenses of liquidation shall be disposed of in such manner as the Secretary may determine to be appropriate: Provided, That to the extent practical, such funds shall be returned pro rata to the persons from whom such funds were collected.
(b) All funds received by the committee pursuant to the provisions of this part shall be used solely for the purpose specified in this part and shall be accounted for in the manner provided in this part. The Secretary may at any time require the committee and its members to account for all receipts and disbursements.
(c) Upon the removal or expiration of the term of office of any member of the committee, such member shall account for all receipts and disbursements and deliver all property and funds in his or her possession to the committee, and shall execute such assignments and other instruments as may be necessary or appropriate to vest in the committee full title to all of the property, funds, and claims vested in such member pursuant to this part.
§ 920.45 Contributions.
The committee may accept voluntary contributions, but these shall only be used to pay expenses incurred pursuant to § 920.47 and § 920.48. Furthermore, such contributions shall be free from any encumbrances by the donor, and the committee shall retain complete control of their use.
§ 920.47 Production and postharvest research.
The committee, with the approval of the Secretary, may establish or provide for the establishment of projects involving research designed to assist or improve the efficient production and postharvest handling of kiwifruit.
§ 920.48 Market research and development.
The committee, with the approval of the Secretary, may establish or provide for the establishment of marketing research and development projects designed to assist, improve, or promote the marketing, distribution, and consumption of kiwifruit.
Regulations
§ 920.50 Marketing policy.
(a) Each season prior to making any recommendations pursuant to § 920.51, the committee shall submit to the Secretary a report setting forth its marketing policy for the ensuing marketing season. Such marketing policy report shall contain information relative to:
(1) The estimated total production of kiwifruit within the production area;
(2) The expected general quality and size of kiwifruit in the production area and in other areas;
(3) The expected demand conditions for kiwifruit in different market outlets;
(4) The expected shipments of kiwifruit produced in the production area and in areas outside the production area;
(5) Supplies of competing commodities;
(6) Trend and level of consumer income;
(7) Other factors having a bearing on the marketing of kiwifruit; and
(8) The type of regulations expected to be recommended during the marketing season.
(b) [Reserved]
§ 920.51 Recommendations for regulation.
(a) Whenever the committee deems it advisable to regulate the handling of any variety or varieties of kiwifruit in the manner provided in § 920.52, it shall so recommend to the Secretary.
(b) In arriving at its recommendations for regulation pursuant to paragraph (a) of this section, the committee shall give consideration to current information with respect to the factors affecting the supply and demand for kiwifruit during the period or periods when it is proposed that such regulations should be made effective. With each such recommendation for regulation, the committee shall submit to the Secretary the data and information on which such recommendation is predicated and such other available information as the Secretary may request.
§ 920.52 Issuance of regulations.
(a) The Secretary shall regulate, in the manner specified in this section, the handling of kiwifruit whenever the Secretary finds, from the recommendations and information submitted by the committee, or from other available information, that such regulations will tend to effectuate the declared policy of the act. Such regulations may:
(1) Limit, during any period or periods, the shipment of any particular grade, size, quality, maturity, or pack, or any combination thereof, of any variety or varieties of kiwifruit grown in the production area;
(2) Limit the shipment of kiwifruit by establishing, in terms of grades, sizes, or both, minimum standards of quality and maturity during any period when season average prices are expected to exceed the parity level;
(3) Fix the size, capacity, weight, dimensions, markings, or pack of the container, or containers, which may be used in the packaging or handling of kiwifruit.
(b) The committee shall be informed immediately of any such regulation issued by the Secretary and the committee shall promptly give notice thereof to handlers.
§ 920.53 Modification, suspension, or termination of regulations.
(a) In the event the committee at any time finds that, by reason of changed conditions, any regulations issued pursuant to § 920.52 should be modified, suspended, or terminated, it shall so recommend to the Secretary.
(b) Whenever the Secretary finds from the recommendations and information submitted by the committee or from other available information, that a regulation should be modified, suspended, or terminated with respect to any or all shipments of kiwifruit in order to effectuate the declared policy of the act, the Secretary shall modify, suspend, or terminate such regulation. If the Secretary finds that a regulation obstructs or does not tend to effectuate the declared policy of the act, the Secretary shall suspend or terminate such regulation. On the same basis and in like manner the Secretary may terminate any such modification or suspension.
§ 920.54 Special purpose shipments.
(a) Except as otherwise provided in this section, any person may, without regard to the provisions of §§ 920.41, 920.52, 920.53 and 920.55 and the regulations issued thereunder, handle kiwifruit:
(1) For consumption by charitable institutions;
(2) For distribution by relief agencies; or
(3) For commercial processing into products.
(b) Upon the basis of recommendations and information submitted by the committee, or from other available information, the Secretary may relieve from any or all requirements, under or established pursuant to § 920.41, § 920.52, § 920.53 or § 920.55, the handling of kiwifruit:
(1) To designated market areas;
(2) For such specified purposes (including shipments to facilitate the conduct of marketing research and development projects); or,
(3) In such minimum quantities or types of shipments, as may be prescribed.
(c) The committee shall, with the approval of the Secretary, prescribe such rules, regulations, and safeguards as it may deem necessary to prevent kiwifruit handled under the provisions of this section from entering the channels of trade for other than the specific purposes authorized by this section. Such rules, regulations, and safeguards may include the requirements that handlers shall file applications and receive approval from the committee for authorization to handle kiwifruit pursuant to this section, and that such applications be accompanied by a certification by the intended purchaser or receiver that the kiwifruit will not be used for any purpose not authorized by this section.
§ 920.55 Inspection and certification.
(a) Whenever the handling of any variety of kiwifruit is regulated pursuant to § 920.52, or § 920.53, each handler who handles kiwifruit shall, prior thereto, cause such kiwifruit to be inspected by the Federal or Federal-State Inspection Service and certified as meeting the applicable requirements of such regulation: Provided, That inspection and certification shall not be required for kiwifruit which previously have been so inspected and certified if such prior inspection was performed within such period as may be established pursuant to paragraph (b) of this section. Promptly after inspection and certification, each such handler shall submit, or cause to be submitted, to the committee a copy of the certificate of inspection issued with respect to such kiwifruit. The committee may, with the approval of the Secretary, prescribe rules and regulations waiving the inspection requirements of this section where it is determined that inspection is not available: Provided, That all shipments made under such waiver shall comply with all regulations in effect.
(b) The committee may, with the approval of the Secretary, establish a period prior to shipment during which the inspection required by this section must be performed.
(c) The committee may enter into an agreement with the Federal and Federal-State Inspection Services with respect to the costs of the inspection required by paragraph (a) of this section, and may collect from handlers their respective pro rata shares of such costs.
Reports
§ 920.60 Reports.
(a) Each handler shall furnish to the committee, at such times and for such periods as the committee may designate, certified reports covering, to the extent necessary for the committee to perform its functions, each shipment of kiwifruit as follows:
(1) The name of the shipper and the shipping point;
(2) The car or truck license number (or name of the trucker), and identification of the carrier;
(3) The date and time of departure;
(4) The number and type of containers in the shipment;
(5) The quantities shipped, showing separately the variety, size and grade of the fruit;
(6) The destination;
(7) Identification of the inspection certificate or waiver pursuant to which the fruit was handled.
(b) Upon request of the committee, made with the approval of the Secretary, each handler shall furnish to the committee, in such manner and at such times as it may prescribe, such other information as may be necessary to enable the committee to perform its duties under this part.
(c) Each handler shall maintain for at least two succeeding fiscal years, such records of the kiwifruit received and disposed of by such handler as may be necessary to verify the reports submitted to the committee pursuant to this section.
(d) All reports and records submitted by handlers pursuant to the provisions of this section shall be received by, and at all times be in custody of, one or more designated employees of the committee. No such employee shall disclose to any person, other than the Secretary upon request therefor, data or information obtained or extracted from such reports and records which might affect the trade position, financial condition, or business operation of the particular handler from whom received: Provided, That such data and information may be combined, and made available to any person, in the form of general reports in which the identities of the individual handler furnishing the information, is not disclosed but may be revealed to any extent necessary to effect compliance with the provisions of this part and the regulations issued thereunder.
Miscellaneous Provisions
§ 920.61 Compliance.
(a) Except as provided in this part, no person shall handle kiwifruit, the shipment of which has been prohibited by the Secretary in accordance with the provisions of this part; and no person shall handle kiwifruit except in conformity with the provisions of this part and the regulations issued under this part.
(b) For the purpose of checking and verifying reports filed by handlers, the committee, through its duly authorized representatives shall have access to any handler’s premises during regular business hours, and shall be permitted at any such times to inspect such premises and any kiwifruit held by such handler, and any and all records of the handler with respect to his or her acquisition, sales, uses and shipments of kiwifruit. Each handler shall furnish all labor and equipment necessary to make such inspections.
§ 920.62 Right of the Secretary.
The members of the committee (including successors and alternates), and any agents, employees, or representatives thereof, shall be subject to removal or suspension by the Secretary at any time. Each and every regulation, decision, determination, or other act of the committee shall be subject to the continuing right of the Secretary to disapprove of the same at any time. Upon such disapproval, the disapproved action of the committee shall be deemed null and void, except as to acts done in reliance thereon or in accordance therewith prior to such disapproval by the Secretary.
§ 920.63 Termination.
(a) The Secretary may at any time terminate the provisions of this part by giving at least one day’s notice by means of a press release or in any other manner in which the Secretary may determine.
(b) The Secretary shall terminate or suspend the operation of any and all of the provisions of this part whenever the Secretary finds that such provisions do not tend to effectuate the declared policy of the act.
(c) The Secretary shall terminate the provisions of this part whenever the Secretary finds by referendum or otherwise that such termination is favored by a majority of the growers: Provided, That such majority has, during the current marketing season, produced more than 50 percent of the volume of the kiwifruit which were produced within the production area for shipment in fresh form. Such termination shall become effective on the first day of August subsequent to the announcement thereof by the Secretary.
(d) The committee shall consider all petitions from growers submitted to it for termination of this part provided such petitions are received by the committee prior to February 1 of the then current fiscal period. Upon recommendation of the committee received not later than April 1 of the then current fiscal period, the Secretary shall conduct a referendum among the growers prior to July 15 of such fiscal period to ascertain whether continuance of this part is favored by producers.
(e) The Secretary shall conduct a referendum within the period beginning May 15, 1990, and ending July 15, 1990, to ascertain whether continuance of this part is favored by the growers as set forth in paragraph (c) of this section. The Secretary shall conduct such a referendum within the same period of every sixth fiscal period thereafter.
(f) The provisions of this part shall, in any event, terminate whenever the provisions of the act authorizing them cease to be in effect.
§ 920.64 Proceeding after termination.
(a) Upon the termination of the provisions of this part, the committee shall, for the purpose of liquidating the affairs of the committee, continue as trustee of all the funds and property then in its possession, or under its control, including claims for any funds unpaid or property not delivered at the time of such termination.
(b) The said trustees shall:
(1) Continue in such capacity until discharged by the Secretary;
(2) From time to time account for all receipts and disbursements and deliver all property on hand, together with all books and records of the committee and of the trustees, to such persons as the Secretary may direct; and
(3) Upon the request of the Secretary, execute such assignments or other instruments necessary or appropriate to vest in such person, full title and right to all of the funds, property, and claims vested in the committee of the trustees pursuant thereto.
(c) Any person to whom funds, property, or claims have been transferred or delivered, pursuant to this section, shall be subject to the same obligation imposed upon the committee and upon the trustees.
§ 920.65 Effect of termination or amendment.
Unless otherwise expressly provided by the Secretary, the termination of this part or of any regulation issued pursuant to this part, 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 part or any regulation issued under this part, or (b) release or extinguish any violation of this part or of any regulation issued under this part, or (c) affect or impair any rights or remedies of the Secretary or of any other person with respect to any such violation.
§ 920.66 Duration of immunities.
The benefits, priviliges, and immunities conferred upon any person by virtue of this part shall cease upon its termination, except with respect to acts done under and during the existence of this part.
§ 920.67 Agents.
The Secretary may, by designation in writing, name any officer or employee of the United States, or name any agency or division in the United States Department of Agriculture, to act as the Secretary’s agent or representative in connection with any of the provisions of this part.
§ 920.68 Derogation.
Nothing contained in this part is, or shall be construed to be, in derogation or in modification of the rights of the Secretary or of the United States (a) to exercise any powers granted by the act or otherwise, or (b) in accordance with such powers, to act in the premises whenever such action is deemed advisable.
§ 920.69 Personal liability.
No member or alternate member of the committee and no employee or agent of the committee 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, alternate, employee or agent, except for acts of dishonesty, willful misconduct, or gross negligence.
§ 920.70 Separability.
If any provision of this part is declared invalid or the applicability thereof to any person, circumstance, or thing is held invalid, the validity of the remainder of this part or the applicability thereof to any other person, circumstance, or thing shall not be affected thereby.
§ 920.110 Exemptions.
(a) Waivers. A handler may handle kiwifruit without inspection and certification, as prescribed under § 920.55, if all shipments made under such waivers comply with all regulations in effect, and all the following conditions are met:
(1) The handler requests the Federal-State Inspection Service to provide inspection during its regular working hours at least 4 hours in advance of the time when inspection is needed. The request need not be in writing but it shall be confirmed immediately in writing by the inspection service.
(2) The Federal-State Inspection Service advises the handler that it is not practicable to provide inspection at the time and place designated by the handler. This advice may be verbal but it shall be confirmed in writing by the Federal-State Inspection Service. A confirmed copy thereof shall be forwarded by the inspection service to the office of the Kiwifruit Administrative Committee.
(3) The Federal-State Inspection Service furnishes the handler with the waiver number which shall cover the kiwifruit on which inspection is requested.
(4) When instructed to do so, the handler plainly and conspicuously marks the end of each container with the letter “W” and the waiver number assigned by the Federal-State Inspection Service. The letter “W” and the number shall not be less than one-half inch in height.
(b) Minimum quantities. Notwithstanding any other provision of this section, kiwifruit may be handled without regard to the provision of §§ 920.41, 920.52, 920.55 and 920.60 under the following conditions:
(1) Such kiwifruit are for home use and not for resale.
(2) The total weight of such kiwifruit sold to all persons collectively in any one vehicle during any one day does not exceed 200 pounds.
(3) Such kiwifruit are handled by the person who produced them and, the handling takes place: (i) On the premises where grown, (ii) at a packing house, or retail stand (roadside stand, flea market or any other outlet approved by the committee) which is operated by said handler, or (iii) at a Certified Farmers Market.
§ 920.112 Late payments.
Pursuant to § 920.41(a), interest will be charged at a 1.5 percent monthly simple interest rate. Assessments for kiwifruit shall be deemed late if not received within 30 days of invoice, or such other later time period as specified by the committee. A 10 percent late charge will be assessed when payment becomes 30 days late. Interest and late payment charges shall be applied only to the overdue assessment.
§ 920.122 Nomination procedures.
(a) The manner of nominating grower members and alternate members to the committee shall be as follows:
(1) The committee’s mailing of an approved nomination form to all kiwifruit growers of record shall constitute notice of nominations. All eligible kiwifruit growers may nominate themselves or any other eligible kiwifruit grower to vacant committee positions for the nominee’s district. Completed nomination forms shall be returned to the office of the committee by a date specified by the committee and approved by an agent of the Secretary. Nomination forms shall provide for names of nominees, as well as the nominating grower’s name, address, telephone number, and signature. Incomplete nominations forms will not be considered valid.
(2) For each district involved in the current year’s nominations, committee staff, with the Secretary’s oversight, shall establish a slate of candidates with the names of all qualified nominees received. Persons submitting invalid nomination forms shall be notified of such by the committee. Within a reasonable time period, a ballot containing a slate of candidates shall be mailed to all growers of record within the respective district represented by such candidates. The committee shall provide a reasonable period of time to growers to cast votes on the candidates and return the completed ballots for tallying.
(3) To be eligible to vote, growers must be producing kiwifruit during the crop year nominations are held and within the district represented by the candidates on the ballot. A grower may only vote for candidates from one district and may only cast one ballot. Growers may also cast votes for eligible candidates who do not appear on the ballots by writing in the name of such candidates on the ballot. Each ballot shall provide for a voter eligibility certification which must include the voter’s name, address, telephone number, and signature, as well as the name(s) of all handlers which handled the current season’s crop. At the discretion of the Secretary, the ballots may include other background information about each candidate.
(4) In order to be valid, ballots must be executed in accordance with the instructions set forth on the ballot, and are to be returned to the Secretary’s agent who will tally the ballots with such assistance from the committee as may be requested by the agent. Such ballots shall be postmarked by a date specified by the committee and approved by an agent of the Secretary.
(5) The names of the persons receiving the highest total number of votes for a particular position shall be submitted to the Secretary as the nominees for such positions. In the event of a tie vote, a ballot containing only the names of the candidates receiving the tied vote shall be mailed to all growers in the affected district.
(b) In the event of a vacancy as specified in § 920.26, the committee shall utilize the same procedure as prescribed in § 920.122(a)(1) through (a)(5) to fill such vacancy.
§ 920.160 Reports.
(a) When requested by the Kiwifruit Administrative Committee, each shipper who ships kiwifruit, except as provided in paragraph (e) of this section, shall furnish a report of shipment and inventory data to the committee no later than the fifth day of the month following such shipment, or such other later time established by the committee: Provided, That each shipper who ships less than 10,000 trays, or the equivalent thereof, per fiscal year and has qualified with the committee shall furnish such report of shipment and inventory data to the committee twice per fiscal year. The first report shall be due no later than January 5 and the final report no later than the fifth day of the following month after such shipment is completed for the season, or such other later times established by the committee. Such report shall show:
(1) The reporting period;
(2) The name and other identification of the shipper;
(3) The number of containers by type and weight by shipment destination category;
(b) Kiwifruit Inventory Shipping System (KISS) form. Each handler, except such handlers that ship less than 10,000 trays, or the equivalent thereof, per season and have qualified with the committee, shall file with the committee the initial Kiwifruit Inventory Shipment System (KISS) form, which consists of three sections “KISS/Add Inventory,” “KISS/Deduct Inventory,” and “KISS/Shipment,” on or before November 5th, or such other later time as the committee may establish. Subsequent KISS forms, including all three sections, shall be filed with the committee by the fifth day and again by the twentieth day of each calendar month, or such other later time as the committee may establish, and will contain the following information:
(1) The beginning inventory of the handler by size and container type;
(2) The quantity of fruit the handler lost in repack and repacked into other container types;
(3) The total domestic and export shipments of the handler by size and container type; and
(4) Any other adjustments which increase or decrease posted handler inventory.
(c) Handler report of returned fruit. After fruit is returned to a grower, each handler shall file with the committee, no later than five days from the date the fruit is returned, or such other time as the committee may establish, a Return Receipt of Kiwifruit to Grower Form.
(d) KISS Price/Shipment report. Each handler who ships 100,000 or more trays, or the equivalent thereof, per season, shall file the KISS Price/Shipment report with the committee. Handlers are not required to report organic kiwifruit shipments on this report. The handler shall file the report weekly following the first week he or she makes shipments and shall continue filing reports until he or she submits a final report for the season. Each such report shall be filed with the committee no later than 5:00 p.m. (the close of business) on the Tuesday immediately following the shipping week. For the purpose of this subsection, the shipping week is defined as Sunday through Saturday. The report shall show:
(1) The company name, contact person, and phone number of the handler;
(2) Weekly period covered by the report;
(3) Total fresh market shipments and gross f.o.b. sales of kiwifruit by pack style and size; and
(4) Total fresh market shipments and gross f.o.b. sales to export markets by pack style and size.
(e) Handlers who file the KISS Price/Shipment report specified in paragraph (d) of this section are exempt from filing the shipping report specified in paragraph (a) of this section and the KISS/Shipment report specified in paragraph (b) of this section.
(f) Each handler shall file annually with the Committee an End-of-Season F.O.B. Sales Report, due within 30 days after such handler has completed current season shipments, reporting gross f.o.b. sales value and number of containers by pack style and size for fresh market shipments for the season. The report shall also show the company name, contact person, and phone number of the handler.
(g) Each handler shall file annually with the Committee a Final Packout Report, due within 30 days after such handler has completed current season shipments, reporting total containers shipped, by pack style for fresh market shipments, for each grower entity during the season. The report shall also include the grower entity and farm name, mailing address, the county in which the farm is located, and total acreage for each reported grower entity. Also, the report shall show the company name, contact person, and phone number of the handler.
§ 920.213 Assessment rate.
On and after August 1, 2018, an assessment rate of $0.025 per 9-kilo volume-fill container or equivalent of kiwifruit is established for kiwifruit grown in California.
§ 920.302 Grade, size, pack, and container regulations.
(a) No handler shall ship any kiwifruit unless such kiwifruit meet the following requirements:
(1) Grade requirements. Fresh shipments of kiwifruit shall be at least KAC No. 1 quality.
(2) Size requirements. Such kiwifruit, except for varieties of the Actinidia chinensis species, shall be at least a minimum Size 45, defined as a maximum of 55 pieces of fruit in an 8-pound sample. Varieties of the Actinidia chinensis species shall be at least a minimum Size 49, defined as a maximum of 64 pieces of fruit in an 8-pound sample.
(3) Maturity requirements. Such kiwifruit shall have a minimum of 6.2 percent soluble solids at the time of inspection.
(4) Pack requirements. (i) Kiwifruit packed in containers with cell compartments, cardboard fillers, or molded trays shall be of proper size for the cells, fillers, or molds in which they are packed. Such fruit, except for varieties of the Actinidia chinensis species, shall be fairly uniform in size.
(ii) (A) Kiwifruit packed in any container shall be subject to the size designation, maximum number of fruit per 8-pound sample, and the size variation tolerance specified as follows:
Table 1 to Paragraph
| Size designation | Maximum number of fruit per
8-pound sample | Size variation tolerance
(diameter) |
|---|---|---|
| 18 or larger | 25 | |
| 20 | 27 | |
| 23 | 30 | |
| 25 | 32 | |
| 27/28 | 35 | |
| 30 | 39 | |
| 33 | 43 | |
| 36 | 46 | |
| 39 | 49 | |
| 42 | 53 | |
| 45 | 55 | |
2 49 | 64 | Not applicable. |
1 Not applicable to
2 Applicable only to
(B) The average weight of all sample units in a lot must weigh at least 8 pounds, but no sample unit may be more than 4 ounces less than 8 pounds.
(C) Not more than 10 percent, by count, of the containers in any lot and not more than 5 percent, by count, of kiwifruit in any container, (except that for Sizes 42 and 45 kiwifruit, the tolerance, by count, in any one container, may not be more than 25 percent) may fail to meet the size variation requirements of this paragraph.
(iii) All volume fill containers of kiwifruit designated by weight shall hold 19.8-pounds (9-kilograms) net weight of kiwifruit unless such containers hold less than 15 pounds or more than 35 pounds net weight of kiwifruit.
(b) Definitions. The term KAC No. 1 quality means kiwifruit that meets the requirements of the U.S. No. 1 grade as defined in the United States Standards for Grades of Kiwifruit (7 CFR 51.2335 through 51.2340) except that the kiwifruit shall be “not badly misshapen,” and an additional tolerance of 16 percent is provided for kiwifruit that is “badly misshapen,” and except that all varieties of kiwifruit are exempt from the “tightly packed” standard as defined in § 51.2338(a) of the U.S. Standards for Grades of Kiwifruit. The terms fairly uniform in size and diameter mean the same as defined in the U.S. Standards for Grades of Kiwifruit.
(c) Exemptions. Any person may handle kiwifruit without regard to the provisions of this section provided that such kiwifruit is handled for (1) consumption by charitable institutions; (2) distribution by relief agencies; or (3) commercial processing into products. For the purposes of this section, commercial processing into products means that the kiwifruit is physically altered in form or chemical composition through freezing, canning, dehydrating, pulping, juicing, or heating of the product. The act of slicing, dicing, or peeling shall not be considered commercial processing into products.
§ 920.303 Container marking regulations.
No handler shall ship any kiwifruit except in accordance with the following terms and conditions:
(a) Each package or container of kiwifruit shall bear on at least one outside principal display panel in plain sight and in plain letters, the word kiwifruit, the name of the variety (if other than the Hayward variety), if known or, when the variety is not known, the words unknown variety.
(b) Each package or container of kiwifruit shall bear on one outside principal display panel in plain sight and in plain letters the name and address (including the city, state, and zip code) of the shipper.
(c) Each package or container of kiwifruit shall bear on one outside principal display panel in plain sight and in plain letters the following information regarding the quantity of kiwifruit packed within the container:
(1) The quantity shall be indicated in terms of count and size for kiwifruit packed in cell compartments, cardboard fillers, or molded trays, and the contents shall conform to the count.
(2) The quantity shall be indicated in terms of the size designation and either the net weight for volume-fill containers packed by weight or the count for volume-fill containers packed by count.
(3) For bulk containers or individual consumer packages not within a master container, the quantity shall be indicated in terms of the size designation and net weight, or in terms of the size designation and count.
(4) Master containers, which hold more than one individual package, must be properly marked with the quantity of the contents. The size designation must also be indicated.
(5) The quantity shall be indicated in terms of either net weight or count (or both) for individual consumer packages within a master container. If count is used, it must be accompanied by the size designation.
(6) Designations of size, count, and net weight on each container shall be accompanied by the words size, count, or net weight as applicable.
(d) Except as provided in paragraph (f) of this section, containers of kiwifruit must be positive lot identified prior to shipment in accordance with the following requirements. All exposed or outside containers of kiwifruit, but not less than 75 percent of the total containers on the pallet, shall be positive lot identified with a plain mark corresponding to the lot inspection conducted by an authorized inspector, except for individual consumer packages within a master container and containers that are being directly loaded into a vehicle for export shipment under the supervision of the Federal or Federal-State Inspection Service. Individual consumer packages of kiwifruit placed directly on a pallet shall have all outside or exposed packages on a pallet positive lot identified with a plain mark corresponding to the lot inspection conducted by an authorized inspector or have one inspection label placed on each side of the pallet. Reusable plastic containers of kiwifruit, placed on a pallet, shall be positive lot identified in accordance with Federal or Federal-State Inspection Service procedures and shall have required information on the cards of the individual containers, as provided in this section of the regulations.
(e) As used in this section, the term principal display panel means that part of the package or container most likely to be displayed, presented, shown or examined under normal or customary conditions of display and purchase.
(f) Kiwifruit that has been inspected and certified, and is subsequently placed into new containers, does not have to be positive lot identified, as prescribed in paragraph (d) of this section: Provided, That:
(1) Such kiwifruit is of the same grade and size as originally inspected; and
(2) The handler requests a verification number from the Federal or Federal-State Inspection Service prior to shipment; plainly marks one end of each container with such number and the letter “R,” both of which shall be at least one-half inch in height; and submits a Kiwifruit Verification Form to the Federal or Federal-State Inspection Service within 3 business days of such request. The handler shall provide the following information on the Kiwifruit Verification Form.
(i) From the original inspection:
(A) The positive lot identification numbers;
(B) The identity of the handler;
(C) The inspection certificate numbers;
(D) The grade and size of the kiwifruit;
(E) The number and type of containers; and
(F) The handler’s brand; and
(ii) On the kiwifruit placed into new containers:
(A) The number and type of containers; and
(B) The applicable brand.
PART 922 – APRICOTS GROWN IN DESIGNATED COUNTIES IN WASHINGTON
Subpart A – Order Regulating Handling
Definitions
§ 922.1 Secretary.
Secretary means the Secretary of Agriculture of the United States, or any officer or employee of the Department to whom authority has heretofore been delegated, or to whom authority may hereafter be delegated, to act in his stead.
§ 922.2 Act.
Act means Public Act No. 10, 73d Congress (May 12, 1933), as amended and as reenacted and amended by the Agricultural Marketing Agreement Act of 1937, as amended (48 Stat. 31, as amended; 7 U.S.C. 601 et seq.; 68 Stat. 906, 1047).
§ 922.3 Person.
Person means an individual, partnership, corporation, association, or any other business unit.
§ 922.4 Production area.
Production area means the counties of Okanogan, Chelan, Kittitas, Yakima, and Klickitat in the State of Washington and all of the counties in Washington lying east thereof.
§ 922.5 Apricots.
Apricots means all varieties of apricots, grown in the production area, classified botanically as Prunus armeniaca.
§ 922.6 Varieties.
Varieties means and includes all classifications or subdivisions of Prunus armeniaca.
§ 922.7 Fiscal period.
Fiscal period is synonymous with fiscal year and means the 12-month period ending on March 31 of each year or such other period that may be approved by the Secretary pursuant to recommendations by the committee.
§ 922.8 Committee.
Committee means the Washington Apricot Marketing Committee established pursuant to § 922.20.
§ 922.9 Grade.
Grade means any one of the officially established grades of apricots as defined and set forth in:
(a) United States Standards for Apricots (§§ 51.2925 to 51.2932 of this title) or amendments thereto, or modifications thereof, or variations based thereon;
(b) Standards for apricots issued by the State of Washington or amendments thereto, or modifications thereof, or variations based thereon.
§ 922.10 Size.
Size means the greatest diameter, measured through the center of the apricot, at right angles to a line running from the stem to the blossom end, or such other specification as may be established by the committee with the approval of the Secretary.
§ 922.11 Grower.
Grower is synonymous with producer and means any person who produces apricots for market and who has a proprietary interest therein: Provided, That a grower who is also a handler must have produced not less than 51 percent of the apricots handled by him during the previous season in order to qualify as a grower under §§ 922.20, 922.22, and 922.23.
§ 922.12 Handler.
Handler is synonymous with shipper and means any person (except a common or contract carrier transporting apricots owned by another person) who handles apricots.
§ 922.13 Handle.
Handle or ship means to sell, consign, deliver, or transport apricots within the production area or between the production area and any point outside thereof: Provided, That the term “handle” shall not include the transportation within the production area of apricots from the orchard where grown to a packing facility located within such area for preparation for market.
§ 922.14 District.
District means the applicable one of the following described subdivisions of the production area, or such other subdivisions as may be prescribed pursuant to § 922.31(m):
(a) District 1 shall include all counties within the production area not included in District 2.
(b) District 2 shall include the Counties of Yakima, Benton, and Klickitat.
§ 922.15 Export.
Export means to ship apricots beyond the continental boundaries of the United States.
§ 922.16 Pack.
Pack means the specific arrangement, size, weight, count, or grade of a quantity of apricots in a particular type and size of container, or any combination thereof.
§ 922.17 Container.
Container means a box, bag, crate, lug, basket, carton, package, or any other type of receptacle used in the packaging or handling of apricots.
Administrative Body
§ 922.20 Establishment and membership.
There is hereby established a Washington Apricot Marketing Committee consisting of twelve members, each of whom shall have an alternate who shall have the same qualifications as the member for whom he is an alternate. Eight of the members and their respective alternates shall be growers or officers or employees of corporate growers. Four of the members and their respective alternates shall be handlers, or officers or employees of corporate handlers. The eight members of the committee who are growers or employees or officers of corporate growers are referred to in this part as “grower members” of the committee; and the four members of the committee who shall be handlers, or officers or employees of corporate handlers, are referred to in this part as “handler members” of the committee. Four of the grower members and their respective alternates shall be producers of apricots in District 1, and four of the grower members and their respective alternates shall be producers of apricots in District 2. Two of the handler members and their respective alternates shall be handlers of apricots in District 1, and two of the handler members with their respective alternates shall be handlers of apricots in District 2.
§ 922.21 Term of office.
The term of office of each member and alternate member of the committee shall be for 2 years beginning April 1 and ending March 31: Provided, That the terms of office of one-half the initial members and alternates shall end March 31, 1958. Members and alternate members shall serve in such capacities for the portion of the term of office for which they are selected and have qualified and until their respective successors are selected and have qualified. The terms of office of successor members and alternates shall be so determined that one-half of the total committee membership ends each March 31.
§ 922.22 Nomination.
(a) Initial members. Nominations for each of the eight initial grower members and four initial handler members of the committee, together with nominations for the initial alternate members for each position may be submitted to the Secretary by individual growers and handlers. Such nominations may be made by means of group meetings of the growers and handlers concerned in each district. Such nominations, if made, shall be filed with the Secretary no later than the effective date of this part. In the event nominations for initial members and alternate members of the committee are not filed pursuant to, and within the time specified, in this section, the Secretary may select such initial members and alternate members without regard to nominations, but selections shall be on the basis of the representation provided for in § 922.20.
(b) Successor members. (1) The committee shall hold or cause to be held, not later than March 1 of each year, a meeting or meetings of growers and handlers in each district for the purpose of designating nominees for successor members and alternate members of the committee. At each such meeting a chairman and a secretary shall be selected by the growers and handlers eligible to participate therein. The chairman shall announce at the meeting the number of votes cast for each person nominated for member or alternate member and shall submit promptly to the committee a complete report concerning such meeting. The committee shall, in turn, promptly submit a copy of each such report to the Secretary.
(2) Only growers, including duly authorized officers or employees of corporate growers, who are present at such nomination meetings may participate in the nomination and election of nominees for grower members and their alternates. Each grower shall be entitled to cast only one vote for each nominee to be elected in the district in which he produces apricots. No grower shall participate in the election of nominees in more than one district in any one fiscal year. If qualified, a person may vote either as a grower or as a handler but not as both.
(3) Only handlers, including duly authorized officers or employees of corporate handlers, who are present at such nomination meetings, may participate in the nomination and election of nominees for handler members and their alternates. Each handler shall be entitled to cast only one vote for each nominee to be elected in the district in which he handles apricots. No handler shall participate in the election of nominees in more than one district in any one fiscal year. If qualified, a person may vote either as a grower or as a handler but not as both.
§ 922.23 Selection.
From the nominations made pursuant to § 922.22, or from other qualified persons, the Secretary shall select the eight grower members of the committee, the four handler members of the committee, and an alternate for each such member.
§ 922.24 Failure to nominate.
If nominations are not made within the time and in the manner prescribed in § 922.22, the Secretary may, without regard to nominations, select the members and alternate members of the committee on the basis of the representation provided for in § 922.20.
§ 922.25 Acceptance.
Any person selected by the Secretary as a member or as an alternate member of the committee shall qualify by filing a written acceptance with the Secretary promptly after being notified of such selection.
§ 922.26 Vacancies.
To fill any vacancy occasioned by the failure of any person selected as a member or as an alternate member of the committee to qualify, or in the event of the death, removal, resignation, or disqualification of any member or alternate member of the committee, a successor for the unexpired term of such member or alternate member of the committee shall be nominated and selected in the manner specified in §§ 922.22 and 922.23. If the names of nominees to fill any such vacancy are not made available to the Secretary within a reasonable time after such vacancy occurs, the Secretary may fill such vacancy without regard to nominations, which selection shall be made on the basis of representation provided for in § 922.20.
§ 922.27 Alternate members.
An alternate member of the committee, during the absence or at the request of the member for whom he is an alternate, shall act in the place and stead of such member and perform such other duties as assigned. In the event of the death, removal, resignation, or disqualification of a member, his alternate shall act for him until a successor for such member is selected and has qualified. In the event both a member of the committee and his alternate are unable to attend a committee meeting, the member or the committee may designate any other alternate member from the same district and group (handler or grower) to serve in such member’s place and stead.
§ 922.30 Powers.
The committee shall have the following powers:
(a) To administer the provisions of this part in accordance with its terms;
(b) To receive, investigate, and report to the Secretary complaints of violations of the provisions of this part;
(c) To make and adopt rules and regulations to effectuate the terms and provisions of this part; and
(d) To recommend to the Secretary amendments to this part.
§ 922.31 Duties.
The committee shall have, among others, the following duties:
(a) To select a chairman and such other officers as may be necessary, and to define the duties of such officers;
(b) To appoint such employees, agents, and representatives as it may deem necessary, and to determine compensation and to define the duties of each;
(c) To submit to the Secretary as soon as practicable after the beginning of each fiscal period a budget for such fiscal period, including a report in explanation of the items appearing therein and a recommendation as to the rate of assessment for such period;
(d) To keep minutes, books, and records which will reflect all of the acts and transactions of the committee and which shall be subject to examination by the Secretary;
(e) To prepare periodic statements of the financial operations of the committee and to make copies of each such statement available to growers and handlers for examination at the office of the committee;
(f) To cause its books to be audited by a competent accountant at least once each fiscal year and at such times as the Secretary may request;
(g) To act as intermediary between the Secretary and any grower or handler;
(h) To investigate and assemble data on the growing, handling, and marketing conditions with respect to apricots;
(i) To submit to the Secretary such available information as he may request;
(j) To notify producers and handlers of all meetings of the committee to consider recommendations for regulations;
(k) To give the Secretary the same notice of meetings of the committee as is given to its members;
(l) To investigate compliance with the provisions of this part;
(m) With the approval of the Secretary, to redefine the districts into which the production area is divided, and to reapportion the representation of any district on the committee: Provided, That any such changes shall reflect, insofar as practicable, shifts in apricot production within the districts and the production area.
§ 922.32 Procedure.
(a) Eight members of the committee, including alternates acting for members, shall constitute a quorum; and any action of the committee shall require the concurring vote of at least 7 members: Provided, That when two-thirds of the membership present is greater than 7, such requirement shall be two-thirds of such membership.
(b) The committee may provide for simultaneous meetings of groups of its members assembled at two or more designated places: Provided, That such meetings shall be subject to the establishment of communication between all such groups and the availability of loud speaker receivers for each group so that each member may participate in the discussions and other actions the same as if the committee were assembled in one place. Any such meeting shall be considered as an assembled meeting.
(c) The committee may vote by telegraph, telephone, or other means of communication, and any votes so cast shall be confirmed promptly in writing: Provided, That if an assembled meeting is held, all votes shall be cast in person.
§ 922.33 Expenses and compensation.
The members of the committee, and alternates when acting as members, shall be reimbursed for expenses necessarily incurred by them in the performance of their duties under this part and may also receive compensation, as determined by the committee, which shall not exceed $10 per day or portion thereof spent in performing such duties: Provided, That at its discretion the committee may request the attendance of one or more alternates at any or all meetings, notwithstanding the expected or actual presence of the respective members, and may pay expenses and compensation, as aforesaid.
§ 922.34 Annual report.
The committee shall, prior to the last day of each fiscal period, prepare and mail an annual report to the Secretary and make a copy available to each handler and grower who requests a copy of the report. This annual report shall contain at least:
(a) A complete review of the regulatory operations during the fiscal period;
(b) An appraisal of the effect of such regulatory operations upon the apricot industry; and
(c) Any recommendations for changes in the program.
Expenses and Assessments
§ 922.40 Expenses.
The committee is authorized to incur such expenses as the Secretary finds are reasonable and likely to be incurred by the committee to enable it to exercise its powers and perform its duties in accordance with the provisions of this part during each fiscal period. The funds to cover such expenses shall be acquired by the levying of assessments as prescribed in § 922.41.
§ 922.41 Assessments.
(a) Each person who first handles apricots shall, with respect to the apricots so handled by him, pay to the committee upon demand such person’s pro rata share of the expenses which the Secretary finds will be incurred by the committee during each fiscal period. Each such person’s share of such expenses shall be equal to the ratio between the total quantity of apricots handled by him as the first handler thereof during the applicable fiscal period and the total quantity of apricots so handled by all persons during the same fiscal period. The payment of assessments for the maintenance and functioning of the committee may be required under this part throughout the period it is in effect irrespective of whether particular provisions thereof are suspended or become inoperative.
(b) The Secretary shall fix the rate of assessment to be paid by each such person. At any time during or after the fiscal period, the Secretary may increase the rate of assessment in order to secure sufficient funds to cover any later finding by the Secretary relative to the expenses which may be incurred. Such increase shall be applied to all apricots handled during the applicable fiscal period. In order to provide funds for the administration of the provisions of this part during the first part of a fiscal period before sufficient operating income is available from assessments on the current year’s shipments, the committee may accept the payment of assessments in advance, and may also borrow money for such purpose.
§ 922.42 Accounting.
(a) If, at the end of a fiscal period, the assessments collected are in excess of expenses incurred, such excess shall be accounted for as follows:
(1) Except as provided in paragraph (a)(2) of this section each person entitled to a proportionate refund of any excess assessment shall be credited with such refund against the operation of the following fiscal period unless such person demands repayment thereof, in which event it shall be paid to him: Provided, That any sum paid by a person in excess of his pro rata share of the expenses during any fiscal period may be applied by the committee at the end of such fiscal period to any outstanding obligations due the committee from such person.
(2) The Secretary, upon recommendation of the committee, may determine that it is appropriate for the maintenance and functioning of the committee that the funds remaining at the end of a fiscal period which are in excess of the expenses necessary for committee operations during such period may be carried over into following periods as a reserve. Such reserve may be established at an amount not to exceed approximately one fiscal period’s operational expenses; and such reserve may be used to cover the necessary expenses of liquidation, in the event of termination of this part, and to cover the expenses incurred for the maintenance and functioning of the committee during any fiscal period when there is a crop failure, or during any period of suspension of any or all of the provisions of this part. Such reserve may also be used by the committee to finance its operations, during any fiscal period, prior to the time that assessment income is sufficient to cover such expenses; but any of the reserve funds so used shall be returned to the reserve as soon as assessment income is available for this purpose. Upon termination of this part, any funds not required to defray the necessary expenses of liquidation shall be disposed of in such manner as the Secretary may determine to be appropriate: Provided, That to the extent practical, such funds shall be returned pro rata to the persons from whom such funds were collected.
(b) All funds received by the committee pursuant to the provisions of this part shall be used solely for the purposes specified in this part and shall be accounted for in the manner provided in this part. The Secretary may at any time require the committee and its members to account for all receipts and disbursements.
(c) Upon the removal or expiration of the term of office of any member of the committee, such member shall account for all receipts and disbursements and deliver all property and funds in his possession to his successor in office, and shall execute such assignments and other instruments as may be necessary or appropriate to vest in such successor full title to all of the property, funds, and claims vested in such member pursuant to this part.
Research
§ 922.45 Marketing research and development.
The committee, with the approval of the Secretary, may establish or provide for the establishment of marketing research and development projects designed to assist, improve, or promote the marketing, distribution, and consumption of apricots. The expense of such projects shall be paid from funds collected pursuant to § 922.41.
Regulations
§ 922.50 Marketing policy.
(a) Each season prior to making any recommendations pursuant to § 922.51, the committee shall submit to the Secretary a report setting forth its marketing policy for the ensuing season. Such marketing policy report shall contain information relative to:
(1) The estimated total production of apricots within the production area;
(2) The expected general quality and size of apricots in the production area and in other areas;
(3) The expected demand conditions for apricots in different market outlets;
(4) The expected shipments of apricots produced in the production area and in areas outside the production area;
(5) Supplies of competing commodities;
(6) Trend and level of consumer income;
(7) Other factors having a bearing on the marketing of apricots; and
(8) The type of regulations expected to be recommended during the season.
(b) In the event it becomes advisable, because of changes in the supply and demand situation for apricots, to modify substantially such marketing policy, the committee shall submit to the Secretary a revised marketing policy report setting forth the information prescribed in this section. The committee shall publicly announce the contents of each marketing policy report, including each revised marketing policy report, and copies thereof shall be maintained in the office of the committee where they shall be available for examination by growers and handlers.
§ 922.51 Recommendations for regulation.
(a) Whenever the committee deems it advisable to regulate the handling of any variety or varieties of apricots in the manner provided in § 922.52, it shall so recommend to the Secretary.
(b) In arriving at its recommendations for regulation pursuant to paragraph (a) of this section, the committee shall give consideration to current information with respect to the factors affecting the supply and demand for apricots during the period or periods when it is proposed that such regulation should be made effective. With each such recommendation for regulation, the committee shall submit to the Secretary the data and information on which such recommendation is predicated and such other available information as the Secretary may request.
§ 922.52 Issuance of regulations.
(a) The Secretary shall regulate, in the manner specified in this section, the handling of apricots whenever he finds from the recommendations and information submitted by the committee, or from other available information, that such regulations will tend to effectuate the declared policy of the act. Such regulations may:
(1) Limit, during any period or periods, the shipment of any particular grade, size, quality, maturity, or pack, or any combination thereof, of any variety or varieties of apricots grown in any district or districts of the production area;
(2) Limit the shipment of apricots by establishing, in terms of grades, sizes, or both, minimum standards of quality and maturity during any period when season average prices are expected to exceed the parity level;
(3) Fix the size, capacity, weight, dimensions, markings, or pack of the container, or containers, which may be used in the packaging or handling of apricots.
(b) The committee shall be informed immediately of any such regulation issued by the Secretary, and the committee shall promptly give notice thereof to growers and handlers.
§ 922.53 Modification, suspension, or termination of regulations.
(a) In the event the committee at any time finds that, by reason of changed conditions, any regulations issued pursuant to § 922.52 should be modified, suspended, or terminated, it shall so recommend to the Secretary.
(b) Whenever the Secretary finds, from the recommendations and information submitted by the committee or from other available information, that a regulation should be modified, suspended, or terminated with respect to any or all shipments of apricots in order to effectuate the declared policy of the act, he shall modify, suspend or terminate such regulation. On the same basis and in like manner the Secretary may terminate any such modification or suspension. If the Secretary finds that a regulation obstructs or does not tend to effectuate the declared policy of the act, he shall suspend or terminate such regulation. On the same basis and in like manner the Secretary may terminate any such suspension.
§ 922.54 Special purpose shipments.
(a) Except as otherwise provided in this section, any person may, without regard to the provisions of §§ 922.41, 922.52, 922.53, and 922.55, and the regulations issued thereunder, handle apricots (1) for consumption by charitable institutions; (2) for distribution by relief agencies; or (3) for commercial processing into products.
(b) Upon the basis of recommendations and information submitted by the committee, or from other available information, the Secretary may relieve from any or all requirements, under or established pursuant to § 922.41, § 922.52, § 922.53, or § 922.55, the handling of apricots in such minimum quantities, or types of shipments, or for such specified purposes (including shipments to facilitate the conduct of marketing research and development projects established pursuant to § 922.45), as the committee, with approval of the Secretary, may prescribe,
(c) The committee shall, with the approval of the Secretary, prescribe such rules, regulations, and safeguards as it may deem necessary to prevent apricots handled under the provisions of this section from entering the channels of trade for other than the specific purposes authorized by this section. Such rules, regulations, and safeguards may include the requirements that handlers shall file applications and receive approval from the committee for authorization to handle apricots pursuant to this section, and that such applications be accompanied by a certification by the intended purchaser or receiver that the apricots will not be used for any purpose not authorized by this section.
§ 922.55 Inspection and certification.
Whenever the handling of any variety of apricots is regulated pursuant to § 922.52 or § 922.53, each handler who handles apricots shall, prior thereto, cause such apricots to be inspected by the Federal-State Inspection Service and certified by it as meeting the applicable requirements of such regulation: Provided, That inspection and certification shall be required for apricots which previously have been so inspected and certified only if such apricots have been regraded, resorted, repackaged, or in any other way further prepared for market. Promptly after inspection and certification, each such handler shall submit, or cause to be submitted, to the committee a copy of the certificate of inspection issued with respect to such apricots. The committee may, with the approval of the Secretary, prescribe rules and regulations modifying the inspection requirements of this section as to time and place such inspection shall be performed whenever it is determined it would not be practical to perform the required inspection at a particular location: Provided, That all such shipments shall comply with all regulations in effect.
Reports
§ 922.60 Reports.
(a) Upon request of the committee, made with the approval of the Secretary, each handler shall furnish to the committee, in such manner and at such time as it may prescribe, such reports and other information as may be necessary for the committee to perform its duties under this part. Such reports may include, but are not necessarily limited to, the following:
(1) The quantities of each variety of apricots received by a handler,
(2) The quantities disposed of by him segregated as to the respective quantities subject to regulation and not subject to regulation;
(3) The date of each such disposition and the identification of the carrier transporting such apricots, and
(4) The destination of each such shipment.
(b) All such reports shall be held under appropriate protective classification and custody by the committee, or duly appointed employees thereof, so that the information contained therein which may adversely affect the competitive position of any handler in relation to other handlers will not be disclosed. Compilations of general reports from data submitted by handlers is authorized, subject to the prohibition of disclosure of individual handler’s identities or operations.
(c) Each handler shall maintain for at least two succeeding years such records of the apricots received, and of apricots disposed of, by such handler as may be necessary to verify reports pursuant to this section.
Miscellaneous Provisions
§ 922.61 Compliance.
Except as provided in this part, no person shall handle apricots, the shipment of which has been prohibited by the Secretary in accordance with the provisions of this part; and no person shall handle apricots except in conformity with the provisions of this part.
§ 922.62 Right of the Secretary.
The members of the committee (including successors and alternates), and any agents, employees, or representatives thereof, shall be subject to removal or suspension by the Secretary at any time. Each and every regulation, decision, determination, or other act of the committee shall be subject to the continuing right of the Secretary to disapprove of the same at any time. Upon such disapproval, the disapproved action of the committee shall be deemed null and void, except as to acts done in reliance thereon or in accordance therewith prior to such disapproval by the Secretary.
§ 922.63 Effective time.
The provisions of this part, and of any amendment thereto, shall become effective at such time as the Secretary may declare above his signature to this part, and shall continue in force until terminated in one of the ways specified in § 922.64.
§ 922.64 Termination.
(a) The Secretary may at any time terminate the provisions of this part by giving at least one day’s notice by means of a press release or in any other manner in which he may determine.
(b) The Secretary shall terminate or suspend the operation of any and all of the provisions of this part whenever he finds that such provisions do not tend to effectuate the declared policy of the act.
(c) The Secretary shall terminate the provisions of this part at the end of any fiscal period whenever he finds that continuance is not favored by the majority of producers who, during a representative period determined by the Secretary, were engaged in the production area in the production of apricots for market: Provided, That such majority has produced for market during such period more than 50 percent of the volume of apricots produced for market in the production area; but such termination shall be effective only if announced on or before March 31 of the then current fiscal period.
(d) The provisions of this part shall, in any event, terminate whenever the provisions of the act authorizing them cease to be in effect.
§ 922.65 Proceedings after termination.
(a) Upon the termination of the provisions of this part, the committee shall, for the purpose of liquidating the affairs of the committee, continue as trustees of all the funds and property then in its possession, or under its control, including claims for any funds unpaid or property not delivered at the time of such termination.
(b) The said trustees shall (1) continue in such capacity until discharged by the Secretary; (2) from time to time account for all receipts and disbursements and deliver all property on hand, together with all books and records of the committee and of the trustees, to such person as the Secretary may direct; and (3) upon the request of the Secretary, execute such assignments or other instruments necessary or appropriate to vest in such person, full title and right to all of the funds, property, and claims vested in the committee or the trustees pursuant hereto.
(c) Any person to whom funds, property, or claims have been transferred or delivered pursuant to this section shall be subject to the same obligation imposed upon the committee and upon the trustees.
§ 922.66 Effect of termination or amendment.
Unless otherwise expressly provided by the Secretary, the termination of this subpart or of any regulation issued pursuant to this subpart, 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 under this subpart, or (b) release or extinguish any violation of this subpart or of any regulation issued under this subpart, or (c) affect or impair any rights or remedies of the Secretary or of any other person with respect to any such violation.
§ 922.67 Duration of immunities.
The benefits, privileges, and immunities conferred upon any person by virtue of this subpart shall cease upon the termination of this subpart, except with respect to acts done under and during the existence of this subpart.
§ 922.68 Agents.
The Secretary may, by designation in writing, name any officer or employee of the United States, or name any agency or division in the United States Department of Agriculture, to act as his agent or representative in connection with any of the provisions of this part.
§ 922.69 Derogation.
Nothing contained in the provisions of this part is, or shall be construed to be, in derogation or in modification of the rights of the Secretary or of the United States (a) to exercise any powers granted by the act or otherwise, or (b) in accordance with such powers, to act in the premises whenever such action is deemed advisable.
§ 922.70 Personal liability.
No member or alternate member of the committee and no employee or agent of the committee 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 act, either of commission or omission, as such member, alternate, employee, or agent, except for acts of dishonesty, willful misconduct, or gross negligence.
§ 922.71 Separability.
If any provision of this part is declared invalid, or the applicability thereof to any person, circumstance, or thing is held invalid, the validity of the remainder of this part or the applicability thereof to any other person, circumstance, or thing shall not be affected thereby.
Subpart B – Container Exemption; Waivers of Inspection and Certification
§ 922.110 Container exemption.
Whenever container limitations are effective pursuant to § 922.52, a handler may make test shipments of apricots in experimental containers, approved by the committee, subject to the following:
(a) Test shipments shall be made only in connection with a container research project, or projects, being conducted by or in cooperation with the Washington Apricot Marketing Committee.
(b) The handler shall first make application to, and receive a permit from, the Washington Apricot Marketing Committee on a form of the committee to handle each experimental container proposed to be used by the handler for test shipments. Such application shall contain the following information:
(1) Name and address of the applicant and date of application;
(2) Description of the container, including size, weight, inside dimensions, and type of pack;
(3) Quantity of such containers proposed to be shipped.
(c) Approval of the application shall be evidenced by the issuance to the applicant by the committee of a permit which shall authorize the handling of apricots in such quantity of experimental containers as the committee may approve.
(d) With respect to each test shipment of apricots handled in experimental containers, the handler shall, prior to such handling, advise the committee as to (1) the number and type of the container or containers in the test shipment, (2) identification of the carrier, (3) name and address of the receiver, and (4) expected time of arrival at destination.
(e) Terms used in this section shall have the same meaning as when used in said marketing agreement and order (§§ 922.1 to 922.71).
§ 922.111 Waiver of inspection and certification.
(a) Application. Any handler (including a grower-handler packing and handling apricots of his own production), whose packing facilities are located in an area where a Washington State Horticultural Division Inspection Office or Federal-State Inspector is not readily available to perform the required inspection may, prior to shipment, apply to the Committee for a permit authorizing a waiver of inspection. Applications shall be made on forms furnished by the Committee and shall contain such information as the Committee may require including: Name and address of applicant, location of packing facility, distance of packing facility from the nearest inspection office, period (by approximate beginning and ending dates) during which applicant expects to ship apricots, estimated quantity of apricots applicant expects to ship to fresh market during such period, manner in which the majority of applicant’s fruit will be marketed (i.e., transported by applicant to market, sold at orchard to truckers, etc.), areas or markets to which applicant expects to ship the majority of his apricots. The application shall also contain an agreement by applicant (1) not to ship or handle any apricots unless such apricots meet the grade, size, maturity, container, and all other requirements of the amended marketing agreement and order in effect at time of handling, (2) to report periodically to the Committee on reporting forms furnished by the Committee the following information on each shipment: quantity, variety, grade, minimum size, container, date of shipment, destination, name and address of buyer or receiver, and such other information as the Committee may specify, (3) to pay applicable assessments on each shipment, (4) to have or cause to have each shipment of apricots inspected when such shipment is transported to a market or through a location en route to market where an inspector is available, and (5) to comply with such other safeguards as the Committee may prescribe.
(b) Issuance of permit. Whenever the Committee finds and determines from the information contained in the application or from other proof satisfactory to the Committee that the applicant is entitled to a waiver from the inspection requirements of the amended marketing agreement and order at time of shipment, the Committee shall issue a permit authorizing the applicant to ship apricots in accordance with these administrative regulations and the terms and conditions of such permit.
§ 922.142 Reserve fund.
(a) The establishment of a reserve fund of an amount not greater than approximately one fiscal year’s operational expenses is appropriate and necessary to the maintenance and functioning of the Washington Apricot Marketing Committee. The committee is hereby authorized to carry forward in the aforesaid reserve $5,765.09 which are excess assessment funds from the fiscal period ended March 31, 1960, and $787.61 which are excess assessment funds from the fiscal period ended March 31, 1961. Such reserve shall be used in accordance with the provisions of § 922.42 of the said marketing agreement and order (§§ 922.1 to 922.71).
(b) Terms used in this section shall have the same meaning as given to the respective term in said marketing agreement and order.
Subpart C – Assessment Rate
§ 922.235 Assessment rate.
On and after April 1, 2019, an assessment rate of $2.86 per ton is established for Washington apricots handled in the production area.
Subpart D – Container Requirements
§ 922.306 Apricot Regulation 6.
(a) No handler shall handle any apricots unless such apricots are:
(1) In open containers or telescope fiberboard cartons and the net weight of the apricots is not less than 28 pounds; or
(2) In closed containers containing not less than 14 pounds, net weight, of apricots: Provided, That when the apricots are packed in such containers they are row-faced or tray-packed; or
(3) In closed containers that are marked “12 pounds net weight” and contain not less than 12 pounds, net weight, of apricots which are of random size and are not row-faced; or
(4) In closed containers containing not less than 24 pounds, net weight, of apricots when packed loose in such containers; or
(5) If exported to Canada, in any of the containers specified in this paragraph (a) or in containers having inside dimensions of 16
(b) Notwithstanding any other provisions of this section, any individual shipment of apricots which, in the aggregate, does not exceed 500 pounds, net weight, may be handled without regard to the requirements specified in this section or in § 922.41 or § 922.55.
(c) All apricots handled are also subject to all applicable grade, size, quality, maturity and pack regulations which are in effect pursuant to this part.
(d) The terms handler, handle and apricots shall have the same meaning as when used in the amended marketing agreement and order.
Subpart E – Grade and Size Requirements
§ 922.321 Apricot Regulation 21.
(a) On and after August 1, 1981, no handler shall handle any container of apricots unless such apricots meet the following applicable requirements, or are handled in accordance with paragraph (a)(3) of this section:
(1) Minimum grade and maturity requirements. Such apricots that grade not less than Washington No. 1 and are at least reasonably uniform in color: Provided, That such apricots of the Moorpark variety in open containers shall be generally well matured.
(2) Minimum size requirements. Such apricots measure not less than 1
(3) Notwithstanding any other provision of this section, any individual shipment of apricots which meets each of the following requirements may be handled without regard to the provisions of this paragraph, of § 922.41 (Assessments), and of § 922.55 (Inspection and Certification):
(i) The shipment consists of apricots sold for home use and not for resale;
(ii) The shipment does not, in the aggregate, exceed 500 pounds, net weight, of apricots; and
(iii) Each container is stamped or marked with the words “not for resale” in letters at least one-half inch in height.
(b) The terms diameter and Washington No. 1 shall have the same meaning as when used in the State of Washington Department of Agriculture Standards for Apricots, effective May 31, 1966; reasonably uniform in color means that the apricots in the individual container do not show sufficient variation in color to materially affect the general appearance of the apricots; and generally well matured means that with respect to not less than 90 percent, by count, of the apricots in any lot of containers, and not less than 85 percent, by count, of such apricots in any container in such lot, at least 40 percent of the surface area of the fruit is at least as yellow as Shade 3 on U.S. Department of Agriculture Standard Ground Color Chart of Apples and Pears in Western States.
PART 923 – SWEET CHERRIES GROWN IN DESIGNATED COUNTIES IN WASHINGTON
Subpart A – Order Regulating Handling >
Definitions
§ 923.1 Secretary.
Secretary means the Secretary of Agriculture of the United States, or any officer or employee of the Department to whom authority has heretofore been delegated, or to whom authority may hereafter be delegated, to act in his stead.
§ 923.2 Act.
Act means Public Act No. 10, 73d Congress (May 12, 1933), as amended and as reenacted and amended by the Agricultural Marketing Agreement Act of 1937, as amended (48 Stat. 31, as amended; 7 U.S.C. 601 et seq.; 68 Stat. 906, 1047).
§ 923.3 Person.
Person means an individual, partnership, corporation, association, or any other business unit.
§ 923.4 Production area.
Production area means the counties of Okanogan, Chelan, Kittitas, Yakima, Klickitat in the State of Washington and all of the counties in Washington lying east thereof.
§ 923.5 Cherries.
Cherries means all varieties of sweet cherries grown in the production area, classified botanically as Prunus avium.
§ 923.6 Varieties.
Varieties means and includes all classifications or subdivisions of Prunus avium.
§ 923.7 Fiscal period.
Fiscal period is synonymous with fiscal year and means the 12-month period ending on March 31 of each year or such other period that may be approved by the Secretary pursuant to recommendations by the committee.
§ 923.8 Committee.
Committee means the Washington Cherry Marketing Committee established pursuant to § 923.20.
§ 923.9 Grade.
Grade means any one of the officially established grades of cherries as defined and set forth in:
(a) United States Standards for Sweet Cherries (§§ 51.2646 to 51.2660 of this title) or amendments thereto, or modifications thereof, or variations based thereon;
(b) Standards for sweet cherries issued by the State of Washington or amendments thereto, or modifications thereof, or variations based thereon.
§ 923.10 Size.
Size means the greatest diameter, measured through the center of the cherry, at right angles to a line running from the stem to the blossom end, or such other specification as may be established by the committee with the approval of the Secretary.
§ 923.11 Grower.
Grower is synonymous with producer and means any person who produces cherries for market and who has a proprietary interest therein.
§ 923.12 Handler.
Handler is synonymous with shipper and means any person (except a common or contract carrier transporting cherries owned by another person) who handles cherries.
§ 923.13 Handle.
Handle and ship are synonymous and mean to sell, consign, deliver, or transport cherries or cause the sale, consignment, delivery, or transportation of cherries or in any other way to place cherries, or cause cherries to be placed, in the current of the commerce from any point within the production area to any point outside thereof: Provided, That the term handle shall not include the transportation within the production area of cherries from the orchard where grown to a packing facility located within such area for preparation for market, or the delivery of such cherries to such packing facility for such preparation.
§ 923.14 District.
District means the applicable one of the following described subdivisions of the production area, or such other subdivisions as may be prescribed pursuant to § 923.31(m):
(a) District 1 shall include the Counties of Chelan, Okanogan, Douglas, Grant, Lincoln, Spokane, Pend Oreille, Stevens, and Ferry.
(b) District 2 shall include the counties of Kittitas, Yakima, Klickitat, Benton, Adams, Franklin, Walla Walla, Whitman, Columbia, Garfield and Asotin.
§ 923.15 Export.
Export means to ship cherries beyond the continental boundaries of the United States.
§ 923.16 Pack.
Pack means the specific arrangement, size, weight, count, or grade of a quantity of cherries in a particular type and size of container, or any combination thereof.
§ 923.17 Container.
Container means a box, bag, crate, lug, basket, carton, package, or any other type of receptacle used in the packaging or handling of cherries.
Administrative Body
§ 923.20 Establishment and membership.
There is hereby established a Washington Cherry Marketing Committee consisting of sixteen members, each of whom shall have an alternate who shall have the same qualifications as the member for whom he is an alternate. Ten of the members and their respective alternates shall be growers or officers or employees of corporate growers. Six of the members and their respective alternates shall be handlers, or officers or employees of handlers. The ten members of the committee who are growers or employees or officers of corporate growers are referred to in this part as “grower members” of the committee; and the six members of the committee who shall be handlers, or officers or employees of handlers, are referred to in this part as “handler members” of the committee. Five of the grower members and their respective alternates shall be producers of cherries in District 1, and five of the grower members and their respective alternates shall be producers of cherries in District 2. Three of the handler members and their respective alternates shall be handlers of cherries in District 1, and three of the handler members and their respective alternates shall be handlers of cherries in District 2.
§ 923.21 Term of office.
The term of office of each member and alternate member of the committee shall be for two years beginning April 1 and ending March 31. Members and alternate members shall serve in such capacities for the portion of the term of office for which they are selected and have qualified and until their respective successors are selected and have qualified. Committee members shall not serve more than three consecutive terms. Members who have served for three consecutive terms must leave the committee for at least one year before becoming eligible to serve again.
§ 923.22 Nomination.
(a) Initial members. Nominations for each of the ten initial grower members and five initial handler members of the committee, together with nominations for the initial alternate members for each position, may be submitted to the Secretary by individual growers and handlers. Such nominations may be made by means of group meetings of the growers and handlers concerned in each district. Such nominations, if made, shall be filed with the Secretary no later than the effective date of this part. In the event nominations for initial members and alternate members of the committee are not filed pursuant to, and within the time specified, in this section, the Secretary may select such initial members and alternate members without regard to nominations, but selections shall be on the basis of the representation provided for in § 923.20.
(b) Successor members. (1) The committee shall hold or cause to be held, not later than March 1 of each year, a meeting or meetings of growers and handlers in each district for the purpose of designating nominees for successor members and alternate members of the committee. At each such meeting a chairman and a secretary shall be selected by the growers and handlers eligible to participate therein. The chairman shall announce at the meeting the number of votes cast for each person nominated for member or alternate member and shall submit promptly to the committee a complete report concerning such meeting. The committee shall, in turn, promptly submit a copy of each such report to the Secretary.
(2) Only growers, including duly authorized officers or employees of corporate growers, who are present at such nomination meetings may participate in the nomination and election of nominees for grower members and their alternates. Each grower shall be entitled to cast only one vote for each nominee to be elected in the district in which he produces cherries. No grower shall participate in the election of nominees in more than one district in any one fiscal year. If a person is both a grower and a handler of cherries, such person may vote either as a grower or as a handler but not as both.
(3) Only handlers, including duly authorized officers or employees of handlers, who are present at such nomination meetings, may participate in the nomination and election of nominees for handler members and their alternates. Each handler shall be entitled to cast only one vote for each nominee to be elected in the district in which he handles cherries. No handler shall participate in the election of nominees in more than one district in any one fiscal year. If a person is both a grower and a handler of cherries, such person may vote either as a grower or as a handler but not as both.
§ 923.23 Selection.
From the nominations made pursuant to § 923.22, or from other qualified persons, the Secretary shall select the ten grower members of the committee, the five handler members of the committee, and an alternate for each member.
§ 923.24 Failure to nominate.
If nominations are not made within the time and in the manner prescribed in § 923.22, the Secretary may, without regard to nominations, select the members and alternate members of the committee on the basis of the representation provided for in § 923.20.
§ 923.25 Acceptance.
Any person prior to selection as a member or an alternate member of the committee shall qualify by filing with USDA a written acceptance of willingness to serve on the committee.
§ 923.26 Vacancies.
To fill any vacancy occasioned by the failure of any person selected as a member or as an alternate member of the committee to qualify, or in the event of the death, removal, resignation, or disqualification of any member or alternate member of the committee, a successor for the unexpired term of such member or alternate member of the committee shall be nominated and selected in the manner specified in §§ 923.22 and 923.23. If the names of nominees to fill any such vacancy are not made available to the Secretary within a reasonable time after such vacancy occurs, the Secretary may fill such vacancy without regard to nominations, which selection shall be made on the basis of representation provided for in § 923.20.
§ 923.27 Alternate members.
An alternate member of the committee, during the absence or at the request of the member for whom he is an alternate, shall act in the place and stead of such member and perform such other duties as assigned. In the event of the death, removal, resignation, or disqualification of a member, his alternate shall act for him until a successor for such member is selected and has qualified. In the event both a member of the committee and his alternate are unable to attend a committee meeting, the member of the committee may designate any other alternate member from the same district and group (handler or grower) to serve in such member’s place and stead.
§ 923.30 Powers.
The committee shall have the following powers:
(a) To administer the provisions of this part in accordance with its terms;
(b) To receive, investigate, and report to the Secretary complaints of violations of the provisions of this part;
(c) To make and adopt rules and regulations to effectuate the terms and provisions of this part; and
(d) To recommend to the Secretary amendments to this part.
§ 923.31 Duties.
The committee shall have, among others, the following duties:
(a) To select a chairman and such other officers as may be necessary, and to define the duties of such officers;
(b) To appoint such employees, agents, and representatives as it may deem necessary, and to determine the compensation and to define the duties of each;
(c) To submit to the Secretary as soon as practicable after the beginning of each fiscal period a budget for such fiscal period, including a report in explanation of the items appearing therein and a recommendation as to the rate of assessment for such period;
(d) To keep minutes, books, and records which will reflect all of the acts and transactions of the committee and which shall be subject to examination by the Secretary;
(e) To prepare periodic statements of the financial operations of the committee and to make copies of each such statement available to growers and handlers for examination at the office of the committee;
(f) To cause its books to be audited by a competent accountant at least once each fiscal year and at such time as the Secretary may request;
(g) To act as intermediary between the Secretary and any grower or handler;
(h) To investigate and assemble data on the growing, handling, and marketing conditions with respect to cherries;
(i) To submit to the Secretary such available information as he may request;
(j) To notify producers and handlers of all meetings of the committee to consider recommendations for regulations;
(k) To give the Secretary the same notice of meetings of the committee as is given to its members;
(l) To investigate compliance with the provisions of this part;
(m) With the approval of the Secretary, to redefine the districts into which the production area is divided, and to reapportion the representation of any district on the committee: Provided, That any such changes shall reflect, insofar as practicable, shifts in cherry production within the districts and the production area.
§ 923.32 Procedure.
(a) Twelve members of the committee, including alternates acting for members, shall constitute a quorum; and any action of the committee shall require the concurring vote of at least nine members.
(b) The committee may provide for simultaneous meetings of groups of its members assembled at two or more designated places: Provided, That such meetings shall be subject to the establishment of communication between all such groups and the availability of loud speaker receivers for each group so that each member may participate in the discussions and other actions the same as if the committee were assembled in one place. Any such meeting shall be considered as an assembled meeting.
(c) The committee may vote by telegraph, telephone, or other means of communication, and any votes so cast shall be confirmed promptly in writing: Provided, That if an assembled meeting is held, all votes shall be cast in person.
§ 923.33 Expenses and compensation.
The members of the committee, and alternates when acting as members, shall be reimbursed for expenses necessarily incurred by them in the performance of their duties under this part and may also receive compensation, as determined by the committee, which shall not exceed $10 per day or portion thereof spent in performing such duties: Provided, That at its discretion the committee may request the attendance of one or more alternates at any or all meetings, notwithstanding the expected or actual presence of the respective members, and may pay expenses and compensation, as aforesaid.
§ 923.34 Annual report.
The committee shall, prior to the last day of each fiscal period, prepare and mail an annual report to the Secretary and make a copy available to each handler and grower who requests a copy of the report. This annual report shall contain at least: (a) A complete review of the regulatory operations during the fiscal period; (b) an appraisal of the effect of such regulatory operations upon the cherry industry; and (c) any recommendations for changes in the program.
Expenses and Assessments
§ 923.40 Expenses.
The committee is authorized to incur such expenses as the Secretary finds are reasonable and likely to be incurred by the committee to enable it to exercise its powers and perform its duties in accordance with the provisions of this part during each fiscal period. The funds to cover such expenses shall be acquired by the levying of assessments as prescribed in § 923.41.
§ 923.41 Assessments.
(a) Each person who first handles cherries shall, with respect to the cherries so handled by him, pay to the committee upon demand such person’s pro rata share of the expenses which the Secretary finds will be incurred by the committee during each fiscal period. Each such person’s share of such expenses shall be equal to the ratio between the total quantity of cherries handled by him as the first handler thereof during the applicable fiscal period and the total quantity of cherries so handled by all persons during the same fiscal period. The payment of assessments for the maintenance and functioning of the committee may be required under this part throughout the period it is in effect irrespective of whether particular provisions thereof are suspended or become inoperative.
(b) The Secretary shall fix the rate of assessment to be paid by each such person. At any time during or after the fiscal period, the Secretary may increase the rate of assessment in order to secure sufficient funds to cover any later finding by the Secretary relative to the expenses which may be incurred. Such increase shall be applied to all cherries handled during the applicable fiscal period. In order to provide funds for the administration of the provisions of this part during the first part of a fiscal period before sufficient operating income is available from assessments on the current year’s shipments, the committee may accept the payment of assessments in advance, and may also borrow money for such purpose.
(c) If a handler does not pay any assessment within the time prescribed by the committee, the assessment may be subject to an interest or late payment charge, or both, as may be established by USDA as recommended by the committee.
§ 923.42 Accounting.
(a) If, at the end of a fiscal period, the assessments collected are in excess of expenses incurred, such excess shall be accounted for as follows:
(1) Except as provided in paragraph (a)(2) of this section, each person entitled to a proportionate refund of any excess assessment shall be credited with such refund against the operation of the following fiscal period unless such person demands repayment thereof, in which event it shall be paid to him: Provided, That any sum paid by a person in excess of his pro rata share of the expenses during any fiscal period may be applied by the committee at the end of such fiscal period to any outstanding obligations due the committee from such person.
(2) The Secretary, upon recommendation of the committee, may determine that it is appropriate for the maintenance and functioning of the committee that the funds remaining at the end of a fiscal period which are in excess of the expenses necessary for committee operations during such period may be carried over into following periods as a reserve. Such reserve may be established at an amount not to exceed approximately one fiscal period’s operational expenses; and such reserve may be used to cover the necessary expenses of liquidation, in the event of termination of this part, and to cover the expenses incurred for the maintenance and functioning of the committee during any fiscal period when there is a crop failure, or during any period of suspension of any or all of the provisions of this part. Such reserve may also be used by the committee to finance its operations, during any fiscal period, prior to the time that assessment income is sufficient to cover such expenses; but any of the reserve funds so used shall be returned to the reserve as soon as assessment income is available for this purpose. Upon termination of this part, any funds not required to defray the necessary expenses of liquidation shall be disposed of in such manner as the Secretary may determine to be appropriate: Provided, That to the extent practical, such funds shall be returned pro rata to the persons from whom such funds were collected.
(b) All funds received by the committee pursuant to the provisions of this part shall be used solely for the purposes specified in this part and shall be accounted for in the manner provided in this part. The Secretary may at any time require the committee and its members to account for all receipts and disbursements.
(c) Upon the removal or expiration of the term of office of any member of the committee, such member shall account for all receipts and disbursements and deliver all property and funds in his possession to his successor in office, and shall execute such assignments and other instruments as may be necessary or appropriate to vest in such successor full title to all of the property, funds, and claims vested in such member pursuant to this part.
§ 923.43 Contributions.
The committee may accept voluntary contributions but these shall only be used to pay expenses incurred pursuant to § 923.45. Furthermore, such contributions shall be free from any encumbrances by the donor and the committee shall retain complete control of their use.
Research
§ 923.45 Marketing research and development.
The committee, with the approval of the Secretary, may establish or provide for the establishment of marketing research and development projects designed to assist, improve, or promote the marketing, distribution, and consumption of cherries. The expense of such projects shall be paid from funds collected pursuant to § 923.41.
Regulations
§ 923.50 Marketing policy.
(a) Each season prior to making any recommendations pursuant to § 923.51, the committee shall submit to the Secretary a report setting forth its marketing policy for the ensuing season. Such marketing policy report shall contain information relative to:
(1) The estimated total production of cherries within the production area;
(2) The expected general quality and size of cherries in the production area and in other areas;
(3) The expected demand conditions for cherries in different market outlets;
(4) The expected shipments of cherries produced in the production area and in areas outside the production area;
(5) Supplies of competing commodities;
(6) Trend and level of consumer income;
(7) Other factors having a bearing on the marketing of cherries; and
(8) The type of regulations expected to be recommended during the season.
(b) In the event it becomes advisable, because of changes in the supply and demand situation for cherries, to modify substantially such marketing policy, the committee shall submit to the Secretary a revised marketing policy report setting forth the information prescribed in this section. The committee shall publicly announce the contents of each marketing policy report, including each revised marketing policy report, and copies thereof shall be maintained in the office of the committee where they shall be available for examination by growers and handlers.
§ 923.51 Recommendations for regulation.
(a) Whenever the committee deems it advisable to regulate the handling of any variety or varieties of cherries in the manner provided in § 923.52, it shall so recommend to the Secretary.
(b) In arriving at its recommendations for regulation pursuant to paragraph (a) of this section, the committee shall give consideration to current information with respect to the factors affecting the supply and demand for cherries during the period or periods when it is proposed that such regulation should be made effective. With each such recommendation for regulation, the committee shall submit to the Secretary the data and information on which such recommendation is predicated and such other available information as the Secretary may request.
§ 923.52 Issuance of regulations.
(a) The Secretary shall regulate, in the manner specified in this section, the handling of cherries whenever he finds, from the recommendations and information submitted by the committee, or from other available information, that such regulations will tend to effectuate the declared policy of the act. Such regulations may:
(1) Limit, during any period or periods, the shipment of any particular grade, size, quality, maturity, or pack, or any combination thereof, of any variety or varieties of cherries grown in any district or districts of the production area;
(2) Limit the shipment of cherries by establishing, in terms of grades, sizes, or both, minimum standards of quality and maturity during any period when season average prices are expected to exceed the parity level;
(3) Fix the size, capacity, weight, dimensions, markings, or pack of the container, or containers, which may be used in the packaging or handling of cherries.
(b) The committee shall be informed immediately of any such regulation issued by the Secretary, and the committee shall promptly give notice thereof to growers and handlers.
§ 923.53 Modification, suspension, or termination of regulations.
(a) In the event the committee at any time finds that, by reason of changed conditions, any regulations issued pursuant to § 923.52 should be modified, suspended, or terminated, it shall so recommend to the Secretary.
(b) Whenever the Secretary finds, from the recommendations and information submitted by the committee or from other available information, that a regulation should be modified, suspended, or terminated with respect to any or all shipments of cherries in order to effectuate the declared policy of the act, he shall modify, suspend, or terminate such regulation. On the same basis and in like manner the Secretary may terminate any such modification or suspension. If the Secretary finds that a regulation obstructs or does not tend to effectuate the declared policy of the act, he shall suspend or terminate such regulation. On the same basis and in like manner the Secretary may terminate any such suspension.
§ 923.54 Special purpose shipments.
(a) Except as otherwise provided in this section, any person may, without regard to the provisions of §§ 923.41, 923.52, 923.53, and 923.55, and the regulations issued thereunder, handle cherries (1) for consumption by charitable institutions; (2) for distribution by relief agencies; or (3) for commercial processing into products.
(b) Upon the basis of recommendations and information submitted by the committee, or from other available information, the Secretary may relieve from any or all requirements, under or established pursuant to § 923.41, § 923.52, § 923.53, or § 923.55, the handling of cherries in such minimum quantities, or types of shipments, or for such specified purposes, as the committee, with approval of the Secretary, may prescribe. Specified purposes under this section may include shipments of cherries for grading or packing to specified locations outside the production area and shipments to facilitate the conduct of marketing research and development projects established pursuant to § 923.45.
(c) The committee shall, with the approval of the Secretary, prescribe such rules, regulations, and safeguards as it may deem necessary to prevent cherries handled under the provisions of this section from entering the channels of trade for other than the specific purposes authorized by this section. Such rules, regulations, and safeguards may include the requirements that handlers shall file applications and receive approval from the committee for authorization to handle cherries pursuant to this section, and that such applications be accompanied by a certification by the intended purchaser or receiver that the cherries will not be used for any purpose not authorized by this section. The committee may rescind or deny to any packing facility the special purpose shipment certificate if proof satisfactory to the committee is obtained that cherries shipped for the purpose stated in this section were handled contrary to the provisions of this section.
§ 923.55 Inspection and certification.
Whenever the handling of any variety of cherries is regulated pursuant to § 923.52 or § 923.53, each handler who handles cherries shall, prior thereto, cause such cherries to be inspected by the Federal-State Inspection Service, and certified by it as meeting the applicable requirements of such regulation: Provided, That inspection and certification shall be required for cherries which previously have been so inspected and certified only if such cherries have been regraded, resorted, repackaged, or in any other way further prepared for market. Promptly after inspection and certification, each such handler shall submit, or cause to be submitted, to the committee a copy of the certificate of inspection issued with respect to such cherries.
Reports
§ 923.60 Reports.
(a) Upon request of the committee, made with the approval of the Secretary, each handler shall furnish to the committee, in such manner and at such time as it may prescribe, such reports and other information as may be necessary for the committee to perform its duties under this part. Such reports may include, but are not necessarily limited to, the following:
(1) The quantities of each variety of cherries received by a handler;
(2) The quantities disposed of by him, segregated as to the respective quantities subject to regulation and not subject to regulation;
(3) The date of each such disposition and the identification of the carrier transporting such cherries, and
(4) The destination of each shipment of such cherries.
(b) All such reports shall be held under appropriate protective classification and custody by the committee, or duly appointed employees thereof, so that the information contained therein which may adversely affect the competitive position of any handler in relation to other handlers will not be disclosed. Compilations of general reports from data submitted by handlers are authorized, subject to the prohibition of disclosure of individual handler’s identities or operations.
(c) Each handler shall maintain for at least two succeeding years such records of the cherries received, and of cherries disposed of, by such handler as may be necessary to verify reports pursuant to this section.
Miscellaneous Provisions
§ 923.61 Compliance.
Except as provided in this part, no person shall handle cherries, the shipment of which has been prohibited by the Secretary in accordance with the provisions of this part: And no person shall handle cherries except in conformity with the provisions of this part.
§ 923.62 Right of the Secretary.
The members of the committee (including successors and alternates), and any agents, employees, or representatives thereof, shall be subject to removal or suspension by the Secretary at any time. Each and every regulation, decision, determination, or other act of the committee shall be subject to the continuing right of the Secretary to disapprove of the same at any time. Upon such disapproval, the disapproved action of the committee shall be deemed null and void, except as to acts done in reliance thereon or in accordance therewith prior to such disapproval by the Secretary.
§ 923.63 Effective time.
The provisions of this part, and of any amendment thereto, shall become effective at such time as the Secretary may declare above his signature to this part, and shall continue in force until terminated in one of the ways specified in § 923.64.
§ 923.64 Termination.
(a) The Secretary may at any time terminate the provisions of this part by giving at least one day’s notice by means of a press release or in any other manner in which he may determine.
(b) The Secretary shall terminate or suspend the operation of any and all of the provisions of this part whenever he finds that such provisions do not tend to effectuate the declared policy of the act.
(c) The Secretary shall terminate the provisions of this part whenever it is found that such termination is favored by a majority of growers who, during a representative period, have been engaged in the production of cherries: Provided, that such majority has, during such representative period, produced for market more than 50 percent of the volume of such cherries produced for market.
(d) The Secretary shall conduct a referendum six years after the effective date of this section and every sixth year thereafter, to ascertain whether continuance of this subpart is favored by growers. The Secretary may terminate the provisions of this subpart at the end of any fiscal period in which the Secretary has found that continuance of this subpart is not favored by growers who, during a representative period determined by the Secretary, have been engaged in the production of cherries in the production area.
(e) The provisions of this part shall, in any event, terminate whenever the provisions of the act authorizing them cease to be in effect.
§ 923.65 Proceedings after termination.
(a) Upon the termination of the provisions of this part, the committee shall, for the purpose of liquidating the affairs of the committee, continue as trustees of all the funds and property then in its possession, or under its control, including claims for any funds unpaid or property not delivered at the time of such termination.
(b) The said trustees shall (1) continue in such capacity until discharged by the Secretary; (2) from time to time account for all receipts and disbursements and deliver all property on hand, together with all books and records of the committee and of the trustees, to such person as the Secretary may direct; and (3) upon the request of the Secretary, execute such assignments or other instruments necessary or appropriate to vest in such person, full title and right to all of the funds, property, and claims vested in the committee or the trustees pursuant hereto.
(c) Any person to whom funds, property, or claims have been transferred or delivered pursuant to this section shall be subject to the same obligation imposed upon the committee and upon the trustees.
§ 923.66 Effect of termination or amendment.
Unless otherwise expressly provided by the Secretary, the termination of this subpart or of any regulation issued pursuant to this subpart, 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 under this subpart, or (b) release or extinguish any violation of this subpart or of any regulation issued under this subpart, or (c) affect or impair any rights or remedies of the Secretary or of any other person with respect to any such violation.
§ 923.67 Duration of immunities.
The benefits, privileges, and immunities conferred upon any person by virtue of this subpart shall cease upon the termination of this subpart, except with respect to acts done under and during the existence of this subpart.
§ 923.68 Agents.
The Secretary may, by designation in writing, name any officer or employee of the United States, or name any agency or division in the United States Department of Agriculture, to act as his agent or representative in connection with any of the provisions of this part.
§ 923.69 Derogation.
Nothing contained in the provisions of this part is, or shall be construed to be, in derogation or in modification of the rights of the Secretary or of the United States (a) to exercise any powers granted by the act or otherwise, or (b) in accordance with such powers, to act in the premises whenever such action is deemed advisable.
§ 923.70 Personal liability.
No member or alternate member of the committee and no employee or agent of the committee 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, alternate, employee, or agent, except for acts of dishonesty, willful misconduct, or gross negligence.
§ 923.71 Separability.
If any provision of this part is declared invalid, or the applicability thereof to any person, circumstance, or thing is held invalid, the validity of the remainder of this part or the applicability thereof to any other person, circumstance, or thing shall not be affected thereby.
§ 923.142 Reserve fund.
(a) The establishment of a reserve fund of an amount which shall not exceed approximately 1 fiscal year’s operational expenses is appropriate and necessary to the maintenance and functioning of the Washington Cherry Marketing Committee. The committee is authorized to expend any funds in such reserve for expenses authorized pursuant to § 923.42.
(b) Terms used in this section shall have the same meaning as given to the respective term in said marketing agreement and order.
Assessment Rate
§ 923.236 Assessment rate.
On and after April 1, 2019, an assessment rate of $0.20 per ton is established for the Washington Cherry Marketing Committee.
Grade, Size, Container and Pack Regulation
§ 923.322 Washington cherry handling regulation.
(a) Grade. No handler shall handle, except as otherwise provided in this section, any lot of cherries, except cherries of the Rainier, Royal Anne, and similar varieties, commonly referred to as “light sweet cherries” unless such cherries grade at least Washington No. 1 grade except that the following tolerances, by count, of the cherries in the lot shall apply in lieu of the tolerances for defects provided in the Washington State Standards for Grades of Sweet Cherries: Provided, That a total of 10 percent for defects including in this amount not more than 5 percent, by count, of the cherries in the lot, for serious damage, and including in this latter amount not more than one percent, by count, of the cherries in the lot, for cherries affected by decay: Provided further, That the contents of individual packages in the lot are not limited as to the percentage of defects but the total of the defects of the entire lot shall be within the tolerances specified.
(b) Size. No handler shall handle, except as otherwise provided in this section, any lot of cherries unless such cherries meet the following minimum size requirements:
(1) For the Rainier variety and similar varieties commonly referred to as “lightly colored sweet cherries,” at least 90 percent, by count, of the cherries in any lot shall measure not less than
(2) For all other varieties, at least 90 percent, by count, of the cherries in any lot shall measure not less than
(c) Maturity. No handler shall handle, except as otherwise provided in this section, any lot of Rainier cherries or other varieties of “lightly colored sweet cherries” unless such cherries meet a minimum of 17 percent soluble solids as determined from a composite sample by refractometer prior to packing, at time of packing, or at time of shipment: Provided, That individual lots shall not be combined with other lots to meet soluble solids requirements.
(d) Pack. (1) When containers of cherries are marked with a row count/row size designation the row count/row size marked shall be one of those shown in Column 1 of the following table and at least 90 percent, by count, of the cherries in any lot shall be not smaller than the corresponding diameter shown in Column 2 of such table: Provided, That the content of individual containers in the lot are not limited as to the percentage of undersize; but the total of undersize of the entire lot shall be within the tolerance specified.
Table
| Column 1, row count/row size | Column 2 diameter (inches) |
|---|---|
| 8 | |
| 8 | |
| 9 | |
| 9 | |
| 10 | |
| 10 | |
| 11 | |
| 11 | |
| 12 |
(2) When containers of cherries are marked with a minimum diameter, at least 95 percent, by count, of the cherries in any lot and at least 90 percent, by count, of the cherries in any container, shall be not smaller than such minimum diameter.
(e) Light sweet cherries marked as premium. No handler shall handle, except as otherwise provided in this section, any package or container of Rainier cherries or other varieties of lightly colored sweet cherries marked as premium except in accordance with the following:
(1) Quality. 90 percent, by count, of such cherries in any lot must exhibit a pink-to-red surface blush and, for any given sample, not more than 20 percent of the cherries shall be absent a pink-to-red surface blush.
(2) Pack. At least 90 percent, by count, of the cherries in any lot shall measure not less than
(f) Grading or packing cherries outside the production area. (1) Persons desiring to ship or receive cherries for grading or packing outside the production area shall apply to the committee on a “Shippers/Receivers Application for Special Purpose Shipment Certificate” form, and receive approval from the Committee. The application shall contain the following: (i) Name, address, telephone number, and signature of applicant;
(ii) Certification by the applicant that cherries graded and packed outside the production area shall be inspected by the Federal-State Inspection Service and shall meet the grade, size, maturity, and pack requirements of this section prior to shipment; and
(iii) Such other information as the committee may require.
(2) Each approved applicant shall furnish to the committee, at the close of business every Friday, a report containing the following information on a “Special Purpose Shipment Report” form:
(i) Name, address, telephone number, and signature of applicant;
(ii) Names of growers and handlers of such cherries;
(iii) The total quantity of each variety of cherries; and
(iv) Such other information as the committee may require.
(3) The committee may rescind or deny to any applicant its approval of the “Shippers/Receivers Application for Special Purpose Shipment Certificate” if proof satisfactory to the committee is obtained that any cherries shipped or received by such applicant for grading or packing were handled contrary to the provisions of this section.
(g) Exceptions. Any individual shipment of cherries which meets each of the following requirements may be handled without regard to the provisions of paragraphs (a), (b), (c), (d), and (e) of this section, and of §§ 923.41 and 923.55.
(1) The shipment consists of cherries sold for home use and not for resale;
(2) The shipment does not, in the aggregate, exceed 100 pounds, net weight, of cherries; and
(3) Each container is stamped or marked with the words not for resale in letters at least one-half inch in height.
(h) Definitions. When used herein, Washington No. 1 and diameter shall have the same meaning as when used in the Washington State Standards for Grades of Sweet Cherries (Order 1550 effective April 29, 1978, WAC 16-414-050); face packed means that cherries in the top layer in any container are so placed that the stem ends are pointing downward toward the bottom of the container; row count/row size means the number of cherries of a uniform size necessary to pack row-faced across a 10
PART 925 – GRAPES GROWN IN A DESIGNATED AREA OF SOUTHEASTERN CALIFORNIA
Subpart A – Order Regulating Handling
Definitions
§ 925.1 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.
§ 925.2 Act.
Act means Public Act No. 10, 73d Congress (May 12, 1933), as amended and as reenacted and amended by the Agricultural Marketing Agreement Act of 1937, as amended (48 Stat. 31, as amended; 7 U.S.C. 601-674).
§ 925.3 Person.
Person means an individual, partnership, corporation, association, or any other business unit.
§ 925.4 Grapes.
Grapes means any variety of vinifera species table grapes grown in the production area.
§ 925.5 Production area.
Production area means Imperial County, California, and that part of Riverside County and San Diego County, California, situated east of a line drawn due north and south through the Post Office in White Water, California.
§ 925.6 Varieties.
Varieties means and includes all classifications or subdivisions of Vitis vinifera table grapes.
§ 925.7 Producer.
Producer is synonymous with grower and means any person who produces grapes for the fresh market and who has a proprietary interest therein.
§ 925.8 Handler.
Handler is synonymous with shipper and means any person (except a common or contract carrier of grapes owned by another person) who handles grapes or causes grapes to be handled.
§ 925.10 Handle.
Handle is synonymous with ship and means to pack, sell, deliver (including delivery to a storage facility), transport, or in any way to place grapes in the current of commerce within the production area or between the production area and any point outside thereof: Provided, That such term shall not include the sale of grapes on the vine and except when regulations are effective pursuant to § 925.52(a)(5) shall not include the transportation or delivery of grapes to a packinghouse within the production area for preparation for market.
§ 925.11 Pack.
Pack means the specific arrangement, weight, grade or size, including the uniformity thereof, of the grapes within a container: Provided, That when used in or with respect to § 925.52(a)(5) such term shall mean to place grapes into containers for shipment to market as fresh grapes.
§ 925.12 Fiscal period.
Fiscal period is synonymous with fiscal year and means the 12 month period beginning on December 1 of one year and ending the last day of November of the following year or such other period as the committee, with the approval of the Secretary, may prescribe.
§ 925.13 Container.
Container means any lug, box, bag, crate, carton, or any other receptacle used in packing grapes for shipment as fresh grapes, and includes the dimensions, capacity, weight, marking, and any pads, liners, lids, and any or all appurtenances thereto or parts thereof. The term applies, in the case of grapes packed in consumer packages, to the master receptacle and to any and all packages therein.
§ 925.14 Committee.
Committee means the California Desert Grape Administrative Committee established under § 925.20.
Administrative Body
§ 925.20 Establishment and membership.
(a) There is hereby established a California Desert Grape Committee consisting of 10 members, each of whom shall have an alternate who shall have the same qualifications as the member. Four of the members and their alternates shall be producers, or officers or employees of producers (producer members). Four of the members and their alternates shall be handlers, or officers or employees of handlers (handler members). One member and alternate shall be either a producer or handler, or an officer or employee thereof. One member and alternate shall represent the public.
(b) Not more than two members and not more than two alternate members shall be affiliated with the same handler entity.
(c) The committee may, with the approval of the Secretary, provide such other allocation of producer or handler membership, or both, as may be necessary to assure equitable representation.
§ 925.21 Term of office.
The term of office of the members and alternates shall be four fiscal periods. Each member and alternate shall serve in such capacities for the portion of the term of office for which they are selected and have qualified and until their respective successors are selected and have qualified.
§ 925.22 Nomination.
(a) Initial members. Nominations for each of the initial members, together with nominations for the initial alternate members for each position, may be submitted to the Secretary by the Committee responsible for promulgation of this part. Such nominations may be made by means of a meeting of the growers and a meeting of the handlers. Such nominations, if made, shall be filed with the Secretary no later than the effective date of this part. In the event nominations for initial members and alternate members of the committee are not filed pursuant to, and within the time specified in, this section, the Secretary may select such initial members and alternate members without regard to nominations, but selections shall be on the basis of the representation provided in § 925.20.
(b) Successor members. The Secretary shall cause to be held, not later than November 15, of each year, meetings of producers and handlers for the purpose of making nominations for members and alternate members of the committee.
(c) Only producers, including duly authorized officers or employees of producers, who are present at such nomination meetings, may participate in the nomination and election of nominees for producer members and their alternates. Each producer entity shall be entitled to cast only one vote. If a person is both a producer and a handler of grapes, such person may participate in both producer and handler nominations.
(d) Only handlers, including duly authorized officers or employees of handlers, who are present at such nomination meetings, may participate in the nomination and election of nominees for handler members and their alternates. Each handler entity shall be entitled to cast only one vote.
(e) One member and alternate member shall be nominated by a vote of both producers and handlers and may be of either group.
(f) The public member and alternate member shall be nominated by the committee. The committee shall prescribe, with the approval of the Secretary, procedures for the nomination of the public member and qualification requirements for such member.
§ 925.23 Selection.
The Secretary shall select members and alternate members of the committee from persons nominated pursuant to § 925.22 or from other qualified persons.
§ 925.24 Failure to nominate.
If nominations are not made within the time and in the manner specified in § 925.22 the Secretary may select the members and alternate members of the committee without regard to nominations on the basis of the representation provided for in § 925.20.
§ 925.25 Qualification and acceptance.
Any person selected as a member or alternate member of the Committee shall, prior to such selection, qualify by filing a qualifications questionnaire advising the Secretary that he or she agrees to serve in the position for which nominated.
§ 925.26 Vacancies.
To fill any vacancy occasioned by the failure of any person selected as a member or as an alternate member of the committee to qualify, or in the event of the death, removal, resignation, or disqualification of any member or alternate member of the committee, a successor for the unexpired term of such member or alternate member of the committee shall be nominated and selected in the manner specified in §§ 925.22 and 925.23. If the names of the nominees to fill any such vacancy are not made available to the Secretary within a reasonable time after such vacancy occurs, the Secretary may fill such vacancy without regard to nominations, which selection shall be made on the basis of the representation provided for in § 925.20.
§ 925.27 Alternate members.
An alternate member shall act in the place of the member during such member’s absence or at such member’s request, and may be assigned other program duties by the chairman or the committee. In the event of the death, removal, resignation, or disqualification of a member the alternate shall act for the member until a successor for such member is selected and has qualified. In the event that both a member and that member’s alternate are unable to attend a committee meeting, the member or committee members present may designate any other alternate to serve in such member’s place at the meeting if such action is necessary to secure a quorum: Provided, That not more than two members or alternates acting for members who are affiliated with the same handler entity shall serve as members at the same meeting.
§ 925.28 Powers.
The committee shall have the following powers:
(a) To administer the provisions of this part in accordance with its terms;
(b) To receive, investigate, and report to the Secretary complaints of violations of the provisions of this part;
(c) To make and adopt rules and regulations to effectuate the terms and provisions of this part; and
(d) To recommend to the Secretary amendments to this part.
§ 925.29 Duties.
The committees shall have, among others, the following duties:
(a) To select a chairman and such other officers as may be necessary, and to define the duties of such officers;
(b) To appoint such employees, agents, and representatives as it may deem necessary, and to determine compensation and to define the duties of each;
(c) To submit to the Secretary as soon as practicable after the beginning of each fiscal period a budget for such period, including a report in explanation of the items appearing therein and a recommendation as to the rate of assessment for such period;
(d) To keep minutes, books, and records, which will reflect all of the acts and transactions of the committee and which shall be subject to examination by the Secretary;
(e) To prepare periodic statements of the financial operations of the committee and to make copies of each such statement available to growers and handlers for examination at the office of the committee;
(f) To cause its books to be audited by a competent public accountant at least once each fiscal period and at such times as the Secretary may request;
(g) To act as intermediary between the Secretary and any grower or handler;
(h) To investigate and assemble data on the growing, handling, and marketing conditions with respect to grapes;
(i) To submit to the Secretary the same notice of meetings of the committee as is given to its members;
(j) To submit to the Secretary such available information as may be requested; and
(k) To investigate compliance with the provisions of this part.
§ 925.30 Procedure.
(a) Six members of the committee shall constitute a quorum, including at a minimum one producer member and one handler member, and any action of the committee shall require at least six concurring votes;
(b) The committee may vote by telephone, telegraph, or other means of communications; and any votes so cast shall be confirmed promptly in writing: Provided, That if an assembled meeting is held, all votes shall be cast in person.
§ 925.31 Compensation and expenses.
The members of the committee, and alternates when acting as members, shall serve without compensation but may be reimbursed for expenses necessarily incurred by them in the performance of their duties under this part: Provided, That the committee at its discretion may request the attendance of one or more alternates at any or all meetings notwithstanding the expected or actual presence of the respective members and may pay expenses as aforesaid.
§ 925.32 Annual report.
The committee should, as soon as practicable, after the close of each fiscal period, prepare and mail an annual report to the Secretary and make a copy available to each grower and handler who requests a copy of the report.
Expenses and Assessments
§ 925.40 Expenses.
The committee is authorized to incur such expenses as the Secretary finds are reasonable and likely to be incurred by the committee for its maintenance and functioning and to enable it to exercise its powers and perform its duties in accordance with the provisions of this part. The funds to cover such expenses shall be acquired in the manner prescribed in § 925.41.
§ 925.41 Assessments.
(a) Each person who first handles grapes shall pay to the committee, upon demand, such handler’s pro rata share of the expenses which the Secretary finds are reasonable and likely to be incurred by the committee during a fiscal period. The payment of assessments for the maintenance and functioning of the committee may be required under this part throughout the period it is in effect irrespective of whether particular provisions thereof are suspended or become inoperative.
(b) The Secretary shall fix the rate of assessment to be paid by each such person during a fiscal period in an amount designed to secure sufficient funds to cover the expenses which may be incurred during such period and to accumulate and maintain a reserve fund equal to approximately one fiscal period’s expenses. At any time during or after a fiscal period, the Secretary may increase the rate of assessment in order to secure sufficient funds to cover any later findings by the Secretary relative to the expenses which may be incurred. Such increase shall be applied to all grapes handled during the applicable fiscal period. In order to provide funds for the administration of the provisions of this part during the first part of a fiscal period before sufficient operating income is available from assessments in the current period’s shipments, the committee may accept the payment of assessments in advance, and may also borrow money for such purpose.
(c) Any assessment not paid by a handler within a period of time prescribed by the committee may be subject to an interest or late payment charge, or both. The period of time, rate of interest, and late payment charge shall be recommended by the committee and approved by the Secretary. Subsequent to such approval, all assessments not paid within the prescribed time shall be subject to the interest or late payment charge, or both.
§ 925.42 Accounting.
(a) If, at the end of a fiscal period, the assessments collected are in excess of expenses incurred, such excess shall be accounted for in accordance with one of the following:
(1) If such excess is not retained in a reserve, as provided in paragraph (d)(2) of this section, it shall be refunded proportionately to the persons from whom it was collected: Provided, That any sum paid by a person in excess of that person’s pro rata share of the expenses during any fiscal period may be applied by the committee at the end of such fiscal period to any outstanding obligations due the committee from such person.
(2) The committee, with the approval of the Secretary, may carry over such excess into subsequent fiscal periods as a reserve: Provided, That funds in the reserve shall not exceed approximately one fiscal period’s expenses. Such reserve funds may be used: (i) To defray expenses, during any fiscal period, prior to the time the assessment income is sufficient to cover such expenses; (ii) to cover deficits incurred during any fiscal period when assessment income is less than expenses; (iii) to defray expenses incurred during any period when any or all provisions of this part are suspended or are inoperative; or (iv) to cover necessary expenses of liquidation in the event of termination of this part. Upon such termination, any funds not required to defray the necessary expenses of liquidation shall be disposed of in such manner as the Secretary may determine to be appropriate: Provided, That to the extent practicable such funds shall be returned pro rata to the persons from whom such funds were collected.
(b) All funds received by the committee under this part shall be used solely for the purpose specified in this part and shall be accounted for in the manner provided in this part. The Secretary may at any time require the committee and its members to account for all receipts and disbursements.
(c) Upon the removal or expiration of the term of office of any member of the committee, such member shall account for all receipts and disbursements and deliver all property and funds in such member’s possession to the committee, and shall execute such assignments and other instruments as may be necessary or appropriate to vest in the committee full title to all of the property, funds, and claims vested in such member pursuant to this part.
Research and Market Development
§ 925.45 Production research and market research and development.
The committee, with the approval of the Secretary, may establish or provide for the establishment of production research, marketing research and development projects designed to assist, improve or promote the marketing, distribution and consumption or the efficient production of grapes. The expense of such projects shall be paid from funds collected pursuant to this part.
Regulations
§ 925.50 Marketing policy.
Each season prior to making any recommendation pursuant to § 925.51 the committee shall submit to the Secretary a report setting forth its marketing policy for the ensuing marketing season. Such marketing policy report shall contain information relative to:
(a) The estimated total shipments of grapes produced within the production area;
(b) The expected general quality of grapes in the production area;
(c) The expected demand conditions for grapes;
(d) The probable prices for grapes;
(e) Supplies of competing commodities, including foreign produced grapes;
(f) Trend and level of consumer income;
(g) Other factors having a bearing on the marketing of grapes; and
(h) The type of regulations expected to be recommended during the marketing season.
§ 925.51 Recommendation for regulation.
Upon complying with the requirements of § 925.50 the committee may recommend regulations to the Secretary whenever the committee deems that such regulations as are provided in § 925.52 will tend to effectuate the declared policy of the act.
§ 925.52 Issuance of regulations.
(a) The Secretary shall regulate, in the manner specified in this section, the handling of grapes upon finding from the recommendations and information submitted by the committee, or from other available information, that such regulation would tend to effectuate the declared policy of the act. Such regulation may:
(1) Limit the handling of any grade, size, quality, maturity, or pack, or any combination thereof, of any or all varieties of grapes during any period or periods;
(2) Limit the handling of any grade, size, quality, maturity, or pack of grapes differently for different varieties, or any combination of the foregoing during any period or periods;
(3) Limit the handling of grapes by establishing in terms of grades, sizes, or both, minimum standards of quality and maturity during any period when season average prices are expected to exceed the parity level;
(4) Fix the size, capacity, weight, dimensions, markings, materials, or pack of the container which may be used in handling of grapes;
(5) Establish holidays by prohibiting the packing of all varieties of grapes during a specified period or periods.
(b) No handler shall handle grapes that were packed during any period when such packing was prohibited by any regulation issued under paragraph (a)(5) of this section unless such grapes are handled under § 925.54.
§ 925.53 Modification, suspension, or termination of regulations.
(a) In the event the committee at any time finds that, by reason of changed conditions, any regulations issued pursuant to § 925.52 should be modified, suspended, or terminated, it shall so recommend to the Secretary.
(b) Whenever the Secretary finds from the recommendations and information submitted by the committee or from other available information that a regulation should be modified, suspended, or terminated with respect to any or all shipments of grapes in order to effectuate the declared policy of the act, the Secretary shall modify, suspend, or terminate such regulation. If the Secretary finds that a regulation obstructs or does not tend to effectuate the declared policy of the act, the Secretary shall suspend or terminate such regulation. On the same basis and in like manner the Secretary may terminate any such modification or suspension.
§ 925.54 Special purpose shipments.
(a) Regulations in effect pursuant to § 925.41, § 925.52, or § 925.55 may be modified, suspended, or terminated to facilitate handling of grapes for purposes which may be recommended by the committee and approved by the Secretary.
(b) The committee shall, with the approval of the Secretary, prescribe such rules, regulations, and safeguards as it may deem necessary to prevent grapes handled under the provisions of this section from entering the channels of trade for other than the specific purposes authorized by this section.
Inspection and Certification
§ 925.55 Inspection and certification.
(a) Whenever the handling of any variety of grapes is regulated pursuant to § 925.52, each handler who handles grapes shall, prior thereto, cause such grapes to be inspected by the Federal or Federal-State Inspection Service and certified as meeting the applicable requirements of such regulation: Provided, That inspection and certification shall not be required for grapes which previously have been so inspected and certified if such prior inspection was performed within such period as may be established pursuant to paragraph (b) of this section. Promptly after the inspection and certification each such handler shall submit, or cause to be submitted, to the committee a copy of the certificate of inspection issued with respect to such grapes.
(b) The committee may, with the approval of the Secretary, establish a period prior to shipment during which the inspection required by this section must be performed.
(c) The committee may enter into an agreement with the Federal and Federal-State Inspection Services with respect to the costs of the inspection required by paragraph (a) of this section, and may collect from handlers their respective pro rata share of such costs.
Reports
§ 925.60 Reports.
(a) Each handler shall furnish to the committee, at such times and for such periods as the committee may designate, certified reports covering, to the extent necessary for the committee to perform its functions, each shipment of grapes as follows:
(1) The name of the shipper and the shipping point;
(2) The car or truck license number (or name of the trucker), and identification of the carrier;
(3) The date and time of departure;
(4) The variety;
(5) The number and type of containers in the shipment;
(6) The destination; and
(7) Identification of the inspection certificate pursuant to which the grapes were handled.
(b) Upon request of the committee, made with the approval of the Secretary, each handler shall furnish to the committee, in such manner and at such times as it may prescribe, such other information as may be necessary to enable the committee to perform its duties under this part.
(c) Each handler shall maintain for at least two succeeding fiscal periods after the end of the fiscal period in which the transactions occurred, such records of the grapes received and disposed of by such handler as may be necessary to verify the reports such handler submits to the committee pursuant to this section.
(d) All reports and records submitted by handlers pursuant to the provisions of this section shall be received by, and at all times be in custody of one or more designated employees of the committee. No such employee shall disclose to any person, other than the Secretary upon request therefor, data or information obtained or extracted from such reports and records which might affect the trade position, financial condition, or business operation of the particular handler from whom received: Provided, That such data and information may be combined, and made available to any person, in the form of general reports in which the identities of the individual handlers furnishing the information are not disclosed and may be revealed to any extent necessary to effect compliance with the provisions of this part and the regulations issued thereunder.
Miscellaneous Provisions
§ 925.61 Compliance.
Except as provided in this part, no handler shall handle grapes except in conformity with the provisions of this part and the regulations issued thereunder.
§ 925.62 Right of the Secretary.
The members of the committee (including successors and alternates) and any agents, employees, or representatives thereof, shall be subject to removal or suspension by the Secretary at any time. Each and every regulation, decision, determination, or other act of the committee shall be subject to the continuing right of the Secretary to disapprove of the same at any time. Upon such disapproval, the disapproved action of the committee shall be deemed null and void, except as to acts done in reliance thereon or in accordance therewith prior to such disapproval by the Secretary.
§ 925.63 Termination.
(a) The Secretary shall terminate or suspend the operation of any and all of the provisions of this part whenever the Secretary finds that such provisions do not tend to effectuate the declared policy of the act.
(b) The Secretary shall terminate the provisions of this part whenever it is found by referendum or otherwise that such termination is favored by a majority of the growers: Provided, That such majority has during the current marketing season produced more than 50 percent of the volume of grapes which were produced within the production area for shipment in fresh form. Such termination shall become effective on the first day of December subsequent to the announcement thereof by the Secretary.
(c) The provisions of this part shall, in any event, terminate whenever the provisions of the act authorizing them cease to be in effect.
§ 925.64 Proceedings after termination.
(a) Upon the termination of the provisions of this part, the committee shall, for the purpose of liquidating the affairs of the committee, continue as trustees of all the funds and property then in its possession, or under its control, including claims for any funds unpaid or property not delivered at the time of such termination. Any action by said trustees shall require the concurrence of a majority of the trustees.
(b) The said trustees shall:
(1) Continue in such capacity until discharged by the Secretary;
(2) From time to time account for all receipts and disbursements and deliver all property on hand, together with all books and records of the committee and of the trustees, to such persons as the Secretary may direct;
(3) Upon the request of the Secretary, execute such assignments or other instruments necessary or appropriate to vest in such person, full title and right to all of the funds, property, and claims vested in the committee or the trustees pursuant thereto.
(c) Any person to whom funds, property, or claims have been transferred or delivered, pursuant to this section, shall be subject to the same obligation imposed upon the committee and upon the trustees.
§ 925.65 Effect of termination or amendment.
Unless otherwise expressly provided by the Secretary, the termination of this part or any regulation issued pursuant to this part, 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 part or any regulation issued under this part; or
(b) Release or extinguish any violation of this part or any regulation issued under this part; or
(c) Affect or impair any rights or remedies of the Secretary or any other person with respect to any such violation.
§ 925.66 Duration of immunities.
The benefits, privileges, and immunities conferred upon any person by virtue of this part shall cease upon its termination, except with respect to acts done under and during the existence of this part.
§ 925.67 Derogation.
Nothing contained in this part is, or shall be construed to be, in derogation or in modification of the rights of the Secretary or of the United States: (a) To exercise any powers granted by the act or otherwise; or (b) in accordance with such powers, to act in the premises whenever such action is deemed advisable.
§ 925.68 Personal liability.
No member or alternate member of the committee and no employee or agent of the committee 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, alternate, employee, or agent, except for acts of dishonesty, willful misconduct, or gross negligence.
§ 925.69 Separability.
If any provision of this part is declared invalid or the applicability thereof to any person, circumstance, or thing is held invalid, the validity of the remainder of this part or the applicability thereof to any other person, circumstance, or thing shall not be affected thereby.
Subpart B – Administrative Requirements
§ 925.112 Fiscal period.
Beginning January 1, 1988, fiscal period will mean January 1 through December 31 of each year.
§ 925.141 Late payments.
(a) The committee shall impose a late payment charge of 5 percent on the unpaid balance on any handler whose assessment has not been received in the committee’s office, or the envelope containing the payment legibly postmarked by the U.S. Postal Service, within 45 days of the invoice date shown on the handler’s assessment statement.
(b) In addition to that specified in paragraph (a) of this section, the committee shall impose an interest charge on any handler whose assessment payment has not been received in the committee’s office, or the envelope containing the payment legibly postmarked by the U.S. Postal Service, within 45 days of the invoice date. The rate of 1
(c) The committee, upon receipt of a late payment, shall promptly notify the handler (by registered mail) of any late payment charge and/or interest charge due as provided in paragraphs (a) and (b) of this section. If such charges are not paid, or the envelope containing payment is not legibly postmarked by the U.S. Postal Service, within 45 days of the date of such notification, late payment and interest charges as provided in paragraphs (a) and (b) of this section will accrue on the unpaid amount.
§ 925.160 Reports.
(a) When requested by the California Desert Grape Administrative Committee, each shipper who ships grapes, shall furnish an end-of-season grape shipment report (CDGAC-3) to the Committee no later than 10 days after the last day of shipment for the season or such later time the Committee deems appropriate. Such reports shall show the reporting period, the name and other identification of the shipper and grower, the invoice number, shipping date, varietal name, shipment destination (city and state), and the number of lugs shipped (pounds).
(b) When requested by the California Desert Grape Administrative Committee (CDGAC), each shipper who ships grapes shall furnish to the committee at such time as the committee shall require, an annual grape acreage survey (CDGAC Form 7), which shall include, but is not limited to, the following: The applicable year in which the report is requested; the names of the shipper (handler) who will handle the grapes and the grower who produces them; the location of each vineyard; the variety or varieties grown in each vineyard; and the bearing, non-bearing, and total acres of each vineyard.
(c) Handlers that donate grapes to charitable organizations pursuant to § 925.304(c) shall submit a completed Food Donation Form (CDGAC Form No. 8) to the Committee within 2 days of receipt by the charitable organization. Such form shall include the following: The name of the producer; the name of the handler; loading location and date; inspection location and date; Variety(s) Federal State Inspection Service (FSIS) Certificate number(s); lug weight (pounds); number of lugs; label; signature of person responsible for loading at handling facility; recipient charity name; how many lugs received; signature of responsible charity recipient and date received. Any such grapes shall not be used for resale.
Subpart C – Assessment Rates
§ 925.215 Assessment rate.
On and after January 1, 2021, an assessment rate of $0.040 per 18-pound lug is established for grapes grown in a designated area of southeastern California.
§ 925.304 California Desert Grape Regulation 6.
During the period April 10 through July 10 each year, no person shall pack or repack any variety of grapes except Emperor, Almeria, Calmeria, and Ribier varieties, on any Saturday, Sunday, Memorial Day, or the observed Independence Day holiday, unless approved in accordance with paragraph (e) of this section, nor handle any variety of grapes except Emperor, Calmeria, Almeria, and Ribier varieties, unless such grapes meet the requirements specified in this section.
(a) Grade, size, and maturity. Except as provided in paragraphs (a)(3) and (4) of this section, such grapes shall meet the minimum grade and size requirements established in paragraphs (a)(1) or (2) of this section.
(1) U.S. No. 1 Table, as set forth in the United States Standards for Grades of Table Grapes (European or Vinifera Type 7 CFR 51.880 through 51.914), with the exception of the tolerance percentage for bunch size when packed in individual consumer clamshell packages weighing 5 pounds or less: Provided that not more than 20 percent of the weight of such containers may consist of single clusters weighing less than one-quarter pound, but with at least five berries each; or
(2) U.S. No. 1 Institutional, with the exception of the tolerance percentage for bunch size. Such tolerance shall be 33 percent instead of 4 percent as is required to meet U.S. No. 1 Institutional grade. Grapes meeting these quality requirements may be marked “DGAC No. 1 Institutional” but shall not be marked “Institutional Pack.”
(3) Grapes of the Perlette variety shall meet the minimum berry size requirement of ten-sixteenths of an inch;
(4) Grapes of the Flame Seedless variety shall meet the minimum berry size requirement of ten-sixteenths of an inch and shall be considered mature if the juice meets or exceeds 16.5 percent soluble solids, or contains not less than 15 percent soluble solids and the soluble solids are equal to or in excess of 20 parts to every part acid contained in juice in accordance with applicable sampling and testing procedures specified in sections 1436.3, 1436.5, 1436.6, 1436.7, 1436.12, and 1436.17 of Article 25 of Title 3: California Code of Regulations (CCR).
(b) Container and pack. (1) Such grapes shall be packed in one of the following containers, which are new and clean, and otherwise meet the requirements of sections 1380.14, and 1380.19(n), 1436.37, and 1436.38 of Title 3: California Code of Regulations, except that reusable plastic containers may be reused if such containers are clean:
Container Descriptions in Inches
| Container | Depth | Width | Length |
|---|---|---|---|
| 28 Sawdust Pack | 7 | 14 | 18 |
| 38J Polystyrene Lug | 6 | 12 | 15 |
| 38K Standard Grape | 4 | 13 | 16 |
| 38L Grape Lug | 7 | 13 | 16 (outside) |
| 38M Grape Lug | 4 | 15 | 23 |
| 38Q Polystyrene Lug | 6 | 11 | 18 |
| 38R Grape Lug | 4-7 (inside) | 15 | 19 |
| 38S Grape Lug | 5-9 (inside) | 11 | 19 |
| 38T Grape Lug | 5 | 13 | 15 |
| 38U Grape Lug | 6 | 13 | 20 |
| 38 V Grape Lug | 5 | 14 (outside) | 16 (outside) |
| CP Grape Lug | 3 | 15 | 23 |
| CP1 Grape Lug | 4 | 19 | 23 |
(ii) Containers with a net weight of 5 kilograms (approximately 11 pounds) shall be for export only.
(iii) Such other types and sizes of containers as may be approved by the Committee for experimental or research purposes.
(2) The minimum net weight of grapes in any such containers, except for containers containing grapes packed in sawdust, cork, excelsior or similar packing material, or packed in bags or wrapped in plastic or paper, and containers authorized in paragraph (b)(1)(iii) of this section, shall be 20 pounds based on the average net weight of grapes in a representative sample of containers. Grapes in any such containers packed in bags, or wrapped in plastic or paper prior to being placed in these containers shall meet a minimum net weight of 18 pounds based on the average net weight of grapes in a representative sample of containers: Provided, That grapes packed in master containers containing individual consumer packages are exempt from container marking requirements and minimum net weight requirements. Containers of grapes other than master containers containing individual consumer packages shall be marked with the minimum net weight of 20 or 18 pounds.
(3) Such containers of grapes shall be plainly marked with the minimum net weight of grapes contained therein (with numbers and letters at least one-fourth inch in height), the name of the variety of the grapes and the name of the shipper, as provided in §§ 1436.30 and 1359 of Title 3: California Code of Regulations.
(4) Such containers of grapes shall be plainly marked with the lot stamp number corresponding to the lot inspection conducted by an authorized inspector, except that such requirement shall not apply to containers in the center tier of a lot palletized in a 3 box by 3 box pallet configuration: Provided, That pallets of reusable plastic containers shall have the lot stamp number stamped on two USDA-approved pallet tags, each affixed to opposite sides of the pallet of containers, in addition to other required information on the cards of the individual containers.
(c) Donation to charitable organizations. Handlers of grapes failing to meet the requirements of § 925.55 and paragraph (a) of this section may donate such grapes to charitable organizations. Any such grapes shall not be used for resale. Handlers donating such grapes to a charitable organization shall submit a completed Food Donation Form, CDGAC Form No. 8, as required in § 925.160(c), within 2 days of receipt by the intended charity.
(d) Organically grown grapes. Organically grown grapes (defined to mean grapes which have been grown for market as natural grapes by performing all the normal cultural practices, but not using any inorganic fertilizers or agricultural chemicals including insecticides, herbicides, and growth regulators, except sulfur) need not meet the minimum individual berry size requirements of this section if the following conditions and safeguards are met: (1) The handler of such grapes has registered and certified with the committee on a date specified by the committee the location of the vineyard, the acreage and variety of grapes, and such other information as may be needed by the committee to carry out these provisions; (2) each container of organically grown grapes bears the words “organically grown” on one outside end of the container in plain letters in addition to requirements specified under paragraph (b)(3) of this section.
(e) By-product grapes. The handling of grapes for processing (raisins, crushing and other by-products) is exempt from requirements specified in paragraphs (a), (b), and (c) of this section if the committee determines that the person handling such grapes has secured the appropriate permit or order from the County Agricultural Commissioner, and the by-product plant or packing plant to which the grapes are shipped has adequate facilities for commercial processing, grading, packing or manufacturing of by-products for resale.
(f) Suspension of packing holidays. Upon recommendation of the committee and approval of the Secretary, the prohibition against packing or repacking grapes on any Saturday, Sunday or on Memorial Day or Independence Day holidays of each year, may be modified or suspended to permit the handling of grapes provided such handling complies with procedures and safeguards specified by the committee as follows:
(1) All requests for suspension of a packing holiday shall be in writing, shall state the reasons the suspension is being requested, and shall be submitted to the Committee manager by noon on Wednesday or at least 3 days prior to the requested suspension date;
(2) Upon receipt of a written request, the Committee manager shall promptly give reasonable notice to producers and handlers and to the Secretary that an assembled Committee meeting will be held to discuss the request(s). The representative of the Secretary shall attend the meeting via speakerphone or in person, and all votes of the Committee members shall be cast in person;
(3) The Committee members shall consider marketing conditions (i.e., supplies of competing commodities to include quantities in inventory, the expected demand conditions for grapes in different markets, and any pertinent documents which provide data on market conditions), weather conditions, labor shortages, the size of the crop remaining to be marketed, and other pertinent factors in reaching a decision to suspend packing holidays;
(4) Once a vote is taken, any documents utilized during the meeting will be forwarded immediately to the Secretary’s representative and a summary of the Committee’s action and reasons for recommending approval or disapproval will be prepared and also forwarded by the committee; and
(5) The Secretary’s representative shall notify the Committee manager of approval or disapproval of the request prior to commencement of the suspended packing holiday and the Committee manager shall notify handlers and producers accordingly.
(g) Certain maturity, container, and pack requirements cited in this regulation are specified in the Title 3: California Code of Regulations and are incorporated by reference. Copies of such requirements are available from Ronald L. Cioffi, Chief, Marketing Order Administration Branch, F&V, AMS, USDA, Washington, DC 20090-6456, telephone (202) 720-2491. They are also available for inspection at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202-741-6030, or go to: http://www.archives.gov/federal_register/code_of_federal_regulations/ibr_locations.html. This incorporation by reference was approved by the Director of the Federal Register. These materials are incorporated as they existed on the date of the approval and a notice of any change in these materials will be published in the
(h) The Federal or Federal-State Inspection Service, F&V, AMS, USDA, is the governmental inspection service for certifying the grade, size, quality, and maturity of table grapes grown in the production area. The inspection and certification services will be available upon application in accordance with the rules and regulations governing inspections and certification of fresh fruits, vegetables, and other products (7 CFR part 51); except that all persons who request such inspection and certification must provide adequate facilities in which the inspections may be conducted and also provide the necessary equipment and incidental supplies that are considered as standard requirements for providing fresh inspection under Federal or Federal-State inspection procedures.
PART 926 – DATA COLLECTION, REPORTING AND RECORDKEEPING REQUIREMENTS APPLICABLE TO CRANBERRIES NOT SUBJECT TO THE CRANBERRY MARKETING ORDER
§ 926.1 Secretary.
Secretary means the Secretary of Agriculture of the United States or any officer or employee of the United States Department of Agriculture who is, or who may hereafter be authorized to act in her/his stead.
§ 926.2 Act.
Act means Public Act No. 10, 73d Congress [May 12, 1933], as amended, and as reenacted and amended by the Agricultural Marketing Agreement Act of 1937, as amended (Secs. 1-19, 48 Stat. 31, as amended; 7 U.S.C. 601 et seq.).
§ 926.3 Person.
Person means an individual, partnership, corporation, association, or any other business unit.
§ 926.4 Cranberries.
Cranberries means all varieties of the fruit Vaccinium Macrocarpon and Vaccinium oxycoccus, known as cranberries.
§ 926.5 Fiscal period.
Fiscal period is synonymous with fiscal year and crop year and means the 12-month period beginning September 1 and ending August 31 of the following year.
§ 926.6 Committee.
Committee means the Cranberry Marketing Committee, which is hereby authorized by USDA to collect information on sales, acquisitions, and inventories of cranberries and cranberry products under this part. The Committee is established pursuant to the Federal cranberry marketing order regulating the handling of cranberries grown in the States of Massachusetts, Rhode Island, Connecticut, New Jersey, Wisconsin, Michigan, Minnesota, Oregon, Washington, and Long Island in the State of New York (7 CFR part 929).
§ 926.7 Producer.
Producer is synonymous with grower and means any person who produces cranberries for market and has a proprietary interest therein.
§ 926.8 Handler.
Handler means any person who handles cranberries and is not subject to the reporting requirements of Part 929.
§ 926.9 Handle.
Handle means to can, freeze, dehydrate, acquire, sell, consign, deliver, or transport (except as a common or contract carrier of cranberries owned by another person) fresh or processed cranberries produced within or outside the United States or in any other way to place fresh or processed cranberries into the current of commerce within or outside the United States. This term includes all initial and subsequent handling of cranberries or processed cranberries up to, but not including, the retail level.
§ 926.10 Acquire.
Acquire means to obtain cranberries by any means whatsoever for the purpose of handling cranberries.
§ 926.11 Processed cranberries or cranberry products.
Processed cranberries or cranberry products means cranberries which have been converted from fresh cranberries into canned, frozen, or dehydrated cranberries or other cranberry products by any commercial process.
§ 926.12 Producer-handler.
Producer-handler means any person who is a producer of cranberries for market and handles such cranberries.
§ 926.13 Processor.
Processor means any person who receives or acquires fresh or frozen cranberries or cranberries in the form of concentrate from handlers, producer-handlers, importers, brokers or other processors and uses such cranberries or concentrate, with or without other ingredients, in the production of a product for market.
§ 926.14 Broker.
Broker means any person who acts as an agent of the buyer or seller and negotiates the sale or purchase of cranberries or cranberry products.
§ 926.15 Importer.
Importer means any person who causes cranberries or cranberry products produced outside the United States to be brought into the United States with the intent of entering the cranberries or cranberry products into the current of commerce.
§ 926.16 Reports.
(a) Each handler, producer-handler, processor, broker, and importer engaged in handling or importing cranberries or cranberry products who is not subject to the reporting requirements of the Federal cranberry marketing order, (7 CFR Part 926) shall, in accordance with Sec. 926.17, file promptly with the Committee reports of sales, acquisitions, and inventory information on fresh cranberries and cranberry products using forms supplied by the Committee.
(b) Upon the request of the Committee, with the approval of the Secretary, each handler, producer-handler, processor, broker, and importer engaged in handling or importing cranberries or cranberry products who is not subject to the Federal cranberry marketing order (7 CFR Part 926) shall furnish to the Committee such other information with respect to fresh cranberries and cranberry products acquired and disposed of by such entity as may be necessary to meet the objectives of the Act.
§ 926.17 Reporting requirements.
Handlers, producer-handlers, importers, processors, and brokers not subject to the Federal cranberry marketing order (7 CFR part 926) shall be required to submit four times annually, for each fiscal period reports regarding sales, acquisitions, movement for further processing, and dispositions of fresh cranberries and cranberry products using forms supplied by the Committee. An Importer Cranberry Inventory Report Form shall be required to be completed by importers and brokers. This report shall indicate the name, address, variety acquired, the amount sold to and received by brokers, processors, and handlers, and the beginning and ending inventories of cranberries held by the importer for each applicable fiscal period. A Handler/Processor Cranberry Inventory Report Form shall be completed by handlers, producer-handlers, and processors and shall indicate the name, address, variety acquired, domestic/foreign sales, acquisitions, and beginning and ending inventories.
§ 926.18 Records.
Each handler, producer-handler, processor, broker, and importer shall maintain such records of all fresh cranberries and cranberry products acquired, imported, handled, withheld from handling, and otherwise disposed of during the fiscal period to substantiate the required reports. All such records shall be maintained for not less than three years after the termination of the fiscal year in which the transactions occurred or for such lesser period as the Committee may direct.
§ 926.19 Confidential information.
All reports and records furnished or submitted pursuant to this part which include data or information constituting a trade secret or disclosing the trade position or financial condition, or business operations from whom received, shall be in the custody and control of the authorized agents of the Committee, who shall disclose such information to no person other than the Secretary.
§ 926.20 Verification of reports and records.
For the purpose of assuring compliance and checking and verifying records and reports required to be filed by handlers, producer-handlers, processors, brokers, and importers, USDA or the Committee, through its duly authorized agents, shall have access to any premises where applicable records are maintained, where cranberries and cranberry products are received, acquired, stored, handled, and otherwise disposed of and, at any time during reasonable business hours, shall be permitted to inspect such handler, producer-handler, processor, broker, and importer premises, and any and all records of such handlers, producer-handlers, processors, brokers, and importers. The Committee’s authorized agents shall be the manager of the Committee and other staff under the supervision of the Committee manager.
§ 926.21 Suspension or termination.
The provisions of this part shall be suspended or terminated whenever there is no longer a Federal cranberry marketing order in effect.
PART 927 – PEARS GROWN IN OREGON AND WASHINGTON
Subpart A – Order Regulating Handling
Definitions
§ 927.1 Secretary.
Secretary means the Secretary of Agriculture of the United States, or any officer or employee of the Department of Agriculture who has been delegated, or to whom authority may hereafter be delegated, the authority to act for the Secretary.
§ 927.2 Act.
Act means Public Act No. 10, 73d Congress (May 12, 1933), as amended and as reenacted and amended by the Agricultural Marketing Agreement Act of 1937, as amended (48 Stat. 31, as amended; 7 U.S.C. 601 et seq.).
§ 927.3 Person.
Person means an individual partnership, corporation, association, legal representative, or any other business unit.
§ 927.4 Pears.
(a) Pears means and includes any and all varieties or subvarieties of pears with the genus Pyrus that are produced in the production area and are classified as:
(1) Summer/fall pears including Bartlett and Starkrimson pears;
(2) Winter pears including Beurre D’Anjou, Beurre Bosc, Doyenne du Comice, Concorde, Forelle, Winter Nelis, Packham, Seckel, and Taylor’s Gold pears; and
(3) Other pears including any or all other varieties or subvarieties of pears not classified as summer/fall or winter pears.
(b) The Fresh Pear Committee and/or the Processed Pear Committee, with the approval of the Secretary, may recognize new or delete obsolete varieties or subvarieties for each category.
§ 927.5 Size.
Size means the number of pears which can be packed in a 44-pound net weight standard box or container equivalent, or as “size” means the greatest transverse diameter of the pear taken at right angles to a line running from the stem to the blossom end, or such other specifications more specifically defined in a regulation issued under this part.
§ 927.6 Grower.
Grower is synonymous with producer and means any person engaged in the production of pears, either as owner or as tenant.
§ 927.7 Handler.
Handler is synonymous with shipper and means any person (except a common or contract carrier transporting pears owned by another person) who, as owner, agent, broker, or otherwise, ships or handles pears, or causes pears to be shipped or handled by rail, truck, boat, or any other means whatsoever.
§ 927.8 Ship or handle.
Ship or handle means to sell, deliver, consign, transport or ship pears within the production area or between the production area and any point outside thereof, including receiving pears for processing: Provided, That the term “handle” shall not include the transportation of pear shipments within the production area from the orchard where grown to a packing facility located within the production area for preparation for market or delivery for processing.
§ 927.9 Fiscal period.
Fiscal period means the period beginning July 1 of any year and ending June 30 of the following year or such may be approved by the Secretary pursuant to a joint recommendation by the Fresh Pear Committee and the Processed Pear Committee.
§ 927.10 Production area.
Production area means and includes the States of Oregon and Washington.
§ 927.11 District.
District means the applicable one of the following-described subdivisions of the production area covered by the provisions of this subpart:
(a) For the purpose of committee representation, administration and application of provisions of this subpart as applicable to pears for the fresh market, districts shall be defined as follows:
(1) Medford District shall include all the counties in the State of Oregon except for Hood River and Wasco counties.
(2) Mid-Columbia District shall include Hood River and Wasco counties in the State of Oregon, and the counties of Skamania and Klickitat in the State of Washington.
(3) Wenatchee District shall include the counties of King, Chelan, Okanogan, Douglas, Grant, Lincoln, and Spokane in the State of Washington, and all other counties in Washington lying north thereof.
(4) Yakima District shall include all of the State of Washington, not included in the Wenatchee District or in the Mid-Columbia District.
(b) For the purpose of committee representation, administration and application of provisions of this subpart as applicable to pears for processing, districts shall be defined as follows:
(1) The State of Washington.
(2) The State of Oregon.
(c) The Secretary, upon recommendation of the Fresh Pear Committee or the Processed Pear Committee, may reestablish districts within the production area.
§ 927.12 Export market.
Export market means any destination which is not within the 50 states, or the District of Columbia, of the United States.
§ 927.13 Subvariety.
Subvariety means and includes any mutation, sport, or other derivation of any of the varieties covered in § 927.4 which is recognized by the Fresh Pear Committee or the Processed Pear Committee and approved by the Secretary. Recognition of a subvariety shall include classification within a varietal group for the purposes of votes conducted under § 927.52.
§ 927.14 Processor.
Processor means any person who as owner, agent, broker, or otherwise, commercially processes pears in the production area.
§ 927.15 Process.
Process means to can, concentrate, freeze, dehydrate, press or puree pears, or in any other way convert pears commercially into a processed product.
Administrative Bodies
§ 927.20 Establishment and membership.
There are hereby established two committees to administer the terms and provisions of this subpart as specifically provided in §§ 927.20 through 927.35:
(a) A Fresh Pear Committee, consisting of 13 individual persons as its members is established to administer order provisions relating to the handling of pears for the fresh market. Six members of the Fresh Pear Committee shall be growers, six members shall be handlers, and one member shall represent the public. For each member there shall be two alternates, designated as the “first alternate” and the “second alternate,” respectively. Each district shall be represented by one grower member and one handler member, except that the Mid-Columbia District and the Wenatchee District shall be represented by two grower members and two handler members.
(b) A Processed Pear Committee consisting of 10 members is established to administer order provisions relating to the handling of pears for processing. Three members of the Processed Pear Committee shall be growers, three members shall be handlers, three members shall be processors, and one member shall represent the public. For each member there shall be two alternates, designated as the “first alternate” and the “second alternate,” respectively. District 1, the State of Washington, shall be represented by two grower members, two handler members and two processor members. District 2, the State of Oregon, shall be represented by one grower member, one handler member and one processor member.
(c) The Secretary, upon recommendation of the Fresh Pear Committee or the Processed Pear Committee may reapportion members among districts, may change the number of members and alternates, and may change the composition by changing the ratio of members, including their alternates. In recommending any such changes, the following shall be considered:
(1) Shifts in pear acreage within districts and within the production area during recent years;
(2) The importance of new pear production in its relation to existing districts;
(3) The equitable relationship between membership and districts;
(4) Economies to result for growers in promoting efficient administration due to redistricting or reapportionment of members within districts; and
(5) Other relevant factors.
§ 927.21 Nomination and selection of members and their respective alternates.
Grower members and their respective alternates for each district shall be selected by the Secretary from nominees elected by the growers in such district. Handler members and their respective alternates for each district shall be selected by the Secretary from nominees elected by the handlers in such district. Processor members and their respective alternates shall be selected by the Secretary from nominees elected by the processors. Public members for each committee shall be nominated by the Fresh Pear Committee and the Processed Pear Committee, each independently, and selected by the Secretary. The Fresh Pear Committee and the Processed Pear Committee may, each independently, prescribe such additional qualifications, administrative rules and procedures for selection for each candidate as it deems necessary and as the Secretary approves.
§ 927.22 Meetings for election of nominees.
(a) Nominations for members of the Fresh Pear Committee and their alternates shall be made at meetings of growers and handlers held in each of the districts designated in § 927.11 at such times and places designated by the Fresh Pear Committee.
(b) Nominations for grower and handler members of the Processed Pear Committee and their alternates shall be made at meetings of growers and handlers held in each of the districts designated in § 927.11 at such times and places designated by the Processed Pear Committee. Nominations for processor members of the Processed Pear Committee and their alternates shall be made at a meeting of processors at such time and place designated by the Processed Pear Committee.
§ 927.23 Voting.
Only growers in attendance at meetings for election of nominees shall participate in the nomination of grower members and their alternates, and only handlers in attendance at meetings for election of nominees shall participate in the nomination of handler members and their alternates, and only processors in attendance for election of nominees shall participate in the nomination of processor members and their alternates. A grower may participate only in the election held in the district in which he or she produces pears, and a handler may participate only in the election held in the district in which he or she handles pears. Each person may vote as a grower, handler or processor, but not a combination thereof. Each grower, handler and processor shall be entitled to cast one vote, on behalf of himself, his agents, partners, affiliates, subsidiaries, and representatives, for each nominee to be elected.
§ 927.24 Eligibility for membership.
Each grower member and each of his or her alternates shall be a grower, or an officer or employee of a corporate or LLC grower, who grows pears in the district in which and for which he or she is nominated and selected. Each handler member and each of his or her alternates shall be a handler, or an officer or employee of a handler, handling pears in the district in and for which he or she is nominated and selected. Each processor member and each of their alternates shall be a processor, or an officer or employee of a processor, who processes pears in the production area.
§ 927.25 Failure to nominate.
In the event nominations are not made pursuant to §§ 927.21 and 927.22 on or before June 1 of any year, the Secretary may select members and alternates for members without regard to nominations.
§ 927.26 Qualifications.
Any person prior to or within 15 days after selection as a member or as an alternate for a member of the Fresh Pear Committee or the Processed Pear Committee shall qualify by filing with the Secretary a written acceptance of the person’s willingness to serve.
§ 927.27 Term of office.
The term of office of each member and alternate member of the Fresh Pear Committee and the Processed Pear Committee shall be for two years beginning July 1 and ending June 30: Provided, That the terms of office of one-half the initial members and alternates shall end June 30, 2006; and that beginning with the 2005-2006 fiscal period, no member shall serve more than three consecutive two-year terms unless specifically exempted by the Secretary. Members and alternate members shall serve in such capacities for the portion of the term of office for which they are selected and have qualified and until their respective successors are selected and have qualified. The terms of office of successor members and alternates shall be so determined that one-half of the total committee membership ends each June 30.
§ 927.28 Alternates for members.
The first alternate for a member shall act in the place and stead of the member for whom he or she is an alternate during such member’s absence. In the event of the death, removal, resignation, or disqualification of a member, his or her first alternate shall act as a member until a successor for the member is selected and has qualified. The second alternate for a member shall serve in the place and stead of the member for whom he or she is an alternate whenever both the member and his or her first alternate are unable to serve. In the event that a member of the Fresh Pear Committee or the Processed Pear Committee and both that member’s alternates are unable to attend a meeting, the member may designate any other alternate member from the same group (handler, processor, or grower) to serve in that member’s place and stead.
§ 927.29 Vacancies.
To fill any vacancy occasioned by the failure of any person selected as a member or as an alternate for a member of the Fresh Pear Committee or the Processed Pear Committee to qualify, or in the event of death, removal, resignation, or disqualification of any qualified member or qualified alternate for a member, a successor for his or her unexpired term shall be nominated and selected in the manner set forth in §§ 927.20 to 927.35. If nominations to fill any such vacancy are not made within 20 days after such vacancy occurs, the Secretary may fill such vacancy without regard to nominations.
§ 927.30 Compensation and expenses.
The members and alternates for members shall serve without compensation, but may be reimbursed for expenses necessarily incurred by them in the performance of their respective duties.
§ 927.31 Powers.
The Fresh Pear Committee and the Processed Pear Committee shall have the following powers to exercise each independently:
(a) To administer, as specifically provided in §§ 927.20 to 927.35, the terms and provisions of this subpart:
(b) To make administrative rules and regulations in accordance with, and to effectuate, the terms and provisions of this subpart; and
(c) To receive, investigate, and report to the Secretary complaints of violations of the provisions of this subpart.
§ 927.32 Duties.
The duties of the Fresh Pear Committee and the Processed Pear Committee, each independently, shall be as follows:
(a) To act as intermediary between the Secretary and any grower, handler or processor;
(b) To keep minutes, books, and records which will reflect clearly all of the acts and transactions. The minutes, books, and records shall be subject at any time to examination by the Secretary or by such person as may be designated by the Secretary;
(c) To investigate, from time to time, and to assemble data on the growing, harvesting, shipping, and marketing conditions relative to pears, and to furnish to the Secretary such available information as may be requested;
(d) To perform such duties as may be assigned to it from time to time by the Secretary in connection with the administration of section 32 of the Act to amend the Agricultural Adjustment Act, and for other purposes, Public Act No. 320, 74th Congress, approved August 24, 1935 (49 Stat. 774), as amended;
(e) To cause the books to be audited by one or more competent accountants at the end of each fiscal year and at such other times as the Fresh Pear Committee or the Processed Pear Committee may deem necessary or as the Secretary may request, and to file with the Secretary copies of any and all audit reports made;
(f) To appoint such employees agents, and representatives as it may deem necessary, and to determine the compensation and define the duties of each;
(g) To give the Secretary, or the designated agent of the Secretary, the same notice of meetings as is given to the members of the Fresh Pear Committee or the Processed Pear Committee;
(h) To select a chairman of the Fresh Pear Committee or the Processed Pear Committee and, from time to time, such other officers as it may deem advisable and to define the duties of each; and
(i) To submit to the Secretary as soon as practicable after the beginning of each fiscal period, a budget for such fiscal year, including a report in explanation of the items appearing therein and a recommendation as to the rate of assessment for such period.
§ 927.33 Procedure.
(a) Quorum and voting. A quorum at a meeting of the Fresh Pear Committee or the Processed Pear Committee shall consist of 75 percent of the number of committee members, or alternates then serving in the place of any members, respectively. Except as otherwise provided in § 927.52, all decisions of the Fresh Pear Committee or the Processed Pear Committee at any meeting shall require the concurring vote of at least 75 percent of those members present, including alternates then serving in the place of any members.
(b) Mail voting. The Fresh Pear Committee or the Processed Pear Committee may provide for members voting by mail, telecopier or other electronic means, telephone, or telegraph, upon due notice to all members. Promptly after voting by telephone or telegraph, each member thus voting shall confirm in writing, the vote so cast.
§ 927.34 Right of the Secretary.
The members and alternates for members and any agent or employee appointed or employed by the Fresh Pear Committee or the Processed Pear Committee shall be subject to removal or suspension by the Secretary at any time. Each and every regulation, decision, determination, or other act shall be subject to the continuing right of the Secretary to disapprove of the same at any time, and, upon such disapproval, shall be deemed null and void, except as to acts done in reliance thereon or in compliance therewith prior to such disapproval by the Secretary.
§ 927.35 Funds and other property.
(a) All funds received pursuant to any of the provisions of this subpart shall be used solely for the purposes specified in this subpart, and the Secretary may require the Fresh Pear Committee or the Processed Pear Committee and its members to account for all receipts and disbursements.
(b) Upon the death, resignation, removal, disqualification, or expiration of the term of office of any member or employee, all books, records, funds, and other property in his or her possession belonging to the Fresh Pear Committee or the Processed Pear Committee shall be delivered to his or her successor in office or to the Fresh Pear Committee or Processed Pear Committee, and such assignments and other instruments shall be executed as may be necessary to vest in such successor or in the Fresh Pear Committee or Processed Pear Committee full title to all the books, records, funds, and other property in the possession or under the control of such member or employee pursuant to this subpart.
Expenses and Assessments
§ 927.40 Expenses.
The Fresh Pear Committee and the Processed Pear Committee are authorized, each independently, to incur such expenses as the Secretary finds may be necessary to carry out their functions under this subpart. The funds to cover such expenses shall be acquired by the levying of assessments as provided in § 927.41.
§ 927.41 Assessments.
(a) Assessments will be levied only upon handlers who first handle pears. Each handler shall pay assessments on all pears handled by such handler as the pro rata share of the expenses which the Secretary finds are reasonable and likely to be incurred by the Fresh Pear Committee or the Processed Pear Committee during a fiscal period. The payment of assessments for the maintenance and functioning of the Fresh Pear Committee or the Processed Pear Committee may be required under this part throughout the period such assessments are payable irrespective of whether particular provisions thereof are suspended or become inoperative.
(b)(1) Based upon a recommendation of the Fresh Pear Committee or other available data, the Secretary shall fix three base rates of assessment for pears that handlers shall pay on pears handled for the fresh market during each fiscal period. Such base rates shall include one rate of assessment for any or all varieties or subvarieties of pears classified as summer/fall; one rate of assessment for any or all varieties or subvarieties of pears, classified as winter; and one rate of assessment for any or all varieties or subvarieties of pears classified as other. Upon recommendation of the Fresh Pear Committee or other available data, the Secretary may also fix supplemental rates of assessment on individual varieties or subvarieties categorized within the assessment classifications in this paragraph (b)(1) to secure sufficient funds to provide for projects authorized under § 927.47. At any time during the fiscal period when it is determined on the basis of a Fresh Pear Committee recommendation or other information that different rates are necessary for fresh pears or for any varieties or subvarieties, the Secretary may modify those rates of assessment and such new rate shall apply to any or all varieties or subvarieties that are shipped during the fiscal period for fresh market.
(2) Based upon a recommendation of the Processed Pear Committee or other available data, the Secretary shall fix three base rates of assessment for pears that handlers shall pay on pears handled for processing during each fiscal period. Such base rates shall include one rate of assessment for any or all varieties or subvarieties of pears classified as summer/fall; one rate of assessment for any or all varieties or subvarieties of pears, classified as winter; and one rate of assessment for any or all varieties or subvarieties of pears classified as other. Upon recommendation of the Processed Pear Committee or other available data, the Secretary may also fix supplemental rates of assessment on individual varieties or subvarieties categorized within the assessment classifications defined in paragraph (b)(1) of this section to secure sufficient funds to provide for projects authorized under § 927.47. At any time during the fiscal period when it is determined on the basis of a Processed Pear Committee recommendation or other information that different rates are necessary for pears for processing or for any varieties or subvarieties, the Secretary may modify those rates of assessment and such new rate shall apply to any or all varieties or subvarieties of pears that are shipped during the fiscal period for processing.
(c) Based on the recommendation of the Fresh Pear Committee, the Processed Pear Committee or other available data, the Secretary may establish additional base rates of assessments, or change or modify the base rate classifications defined in paragraphs (a) and (b) of this section.
(d) The Fresh Pear Committee or the Processed Pear Committee may impose a late payment charge on any handler who fails to pay any assessment within the time prescribed. In the event the handler thereafter fails to pay the amount outstanding, including the late payment charge, within the prescribed time, the Fresh Pear Committee or the Processed Pear Committee may impose an additional charge in the form of interest on such outstanding amount. The Fresh Pear Committee or the Processed Pear Committee, with the approval of the Secretary, shall prescribe the amount of such late payment charge and rate of interest.
(e) In order to provide funds to carry out the functions of the Fresh Pear Committee or the Processed Pear Committee prior to commencement of shipments in any season, handlers may make advance payments of assessments, which advance payments shall be credited to such handlers and the assessments of such handlers shall be adjusted so that such assessments are based upon the quantity of each variety or subvariety of pears handled by such handlers during such season. Further, payment discounts may be authorized by the Fresh Pear Committee or the Processed Pear Committee upon the approval of the Secretary to handlers making such advance assessment payments.
§ 927.42 Accounting.
(a) If, at the end of a fiscal period, the assessments collected are in excess of expenses incurred, the Fresh Pear Committee or the Processed Pear Committee may carryover such excess into subsequent fiscal periods as a reserve: Provided, That funds already in the reserve do not exceed approximately one fiscal period’s expenses. Such reserve may be used to cover any expense authorized under this part and to cover necessary expenses of liquidation in the event of termination of this part. Any such excess not retained in a reserve or applied to any outstanding obligation of the person from whom it was collected shall be refunded proportionately to the persons from whom it was collected. Upon termination of this part, any funds not required to defray the necessary expenses of liquidation shall be disposed of in such manner as the Secretary may determine to be appropriate: Provided, That to the extent practical, such funds shall be returned pro rata to the persons from whom such funds were collected.
(b) All funds received pursuant to the provisions of this part shall be used solely for the purpose specified in this part and shall be accounted for in the manner provided in this part. The Secretary may at any time require the Fresh Pear Committee or the Processed Pear Committee and its members to account for all receipts and disbursements.
§ 927.43 Use of funds.
From the funds acquired pursuant to § 927.41 the Fresh Pear Committee and the Processed Pear Committee, each independently, shall pay the salaries of its employees, if any, and pay the expenses necessarily incurred in the performance of the duties of the Fresh Pear Committee or the Processed Pear Committee.
§ 927.44 [Reserved]
§ 927.45 Contributions.
The Fresh Pear Committee or the Processed Pear Committee may accept voluntary contributions, but these shall only be used to pay expenses incurred pursuant to § 927.47. Furthermore, such contributions shall be free from any encumbrances by the donor, and the Fresh Pear Committee or the Processed Pear Committee shall retain complete control of their use.
Research and Development
§ 927.47 Research and development.
The Fresh Pear Committee or the Processed Pear Committee, with the approval of the Secretary, may establish or provide for the establishment of production and post-harvest research, or marketing research and development projects designed to assist, improve, or promote the marketing, distribution, and consumption of pears. Such projects may provide for any form of marketing promotion, including paid advertising. The expense of such projects shall be paid from funds collected pursuant to §§ 927.41 and 927.45. Expenditures for a particular variety or subvariety of pears shall approximate the amount of assessments and voluntary contributions collected for that variety or subvariety of pears.
Regulation of Shipments
§ 927.50 Marketing policy.
(a) It shall be the duty of the Fresh Pear Committee to investigate, from time to time, supply and demand conditions relative to pears and each grade, size, and quality of each variety or subvariety thereof. Such investigations shall be with respect to the following:
(1) Estimated production of each variety or subvariety of pears and of each grade, size, and quality thereof;
(2) Prospective supplies and prices of pears and other fruits, both in fresh and processed form, which are competitive to the marketing of pears;
(3) Prospective exports of pears and imports of pears from other producing areas;
(4) Probable harvesting period for each variety or subvariety of pears;
(5) The trend and level of consumer income;
(6) General economic conditions; and
(7) Other relevant factors.
(b) On or before August 1 of each year, the Fresh Pear Committee shall recommend regulations to the Secretary if it finds, on the basis of the investigations specified in this section, that such regulation as is provided in § 927.51 will tend to effectuate the declared policy of the act.
(c) In the event the Fresh Pear Committee at any time finds that by reason of changed conditions any regulation issued pursuant to § 927.51 should be modified, suspended, or terminated, it shall so recommend to the Secretary.
§ 927.51 Issuance of regulations; and modification, suspension, or termination thereof.
(a) Whenever the Secretary finds, from the recommendations and information submitted by the Fresh Pear Committee, or from other available information, that regulation, in the manner specified in this section, of the shipment of fresh pears would tend to effectuate the declared policy of the act, he or she shall so limit the shipment of such pears during a specified period or periods. Such regulation may:
(1) Limit the total quantity of any grade, size, quality, or combinations thereof, of any variety or subvariety of pears grown in any district and may prescribe different requirements applicable to shipments to different export markets;
(2) Limit, during any period or periods, the shipment of any particular grade, size, quality, or any combination thereof, of any variety or subvariety, of pears grown in any district or districts of the production area; and
(3) Provide a method, through rules and regulation issued pursuant to this part, for fixing markings on the container or containers, which may be used in the packaging or handling of pears, including appropriate logo or other container markings to identify the contents thereof.
(b) Whenever the Secretary finds, from the recommendations and information submitted by the Fresh Pear Committee, or from other available information, that a regulation should be modified, suspended, or terminated with respect to any or all shipments of fresh pears grown in any district in order to effectuate the declared policy of the act, he or she shall so modify, suspend, or terminate such regulation. If the Secretary finds, from the recommendations and information submitted by the Fresh Pear Committee, or from other available information, that a regulation obstructs or does not tend to effectuate the declared policy of the act, he or she shall suspend or terminate such regulation. On the same basis and in like manner, the Secretary may terminate any such modification or suspension.
§ 927.52 Prerequisites to recommendations.
(a) Decisions of the Fresh Pear Committee or the Processed Pear Committee with respect to any recommendations to the Secretary pursuant to the establishment or modification of a supplemental rate of assessment for an individual variety or subvariety of pears shall be made by affirmative vote of not less than 75 percent of the applicable total number of votes, computed in the manner described in paragraph (b) of this section, of all members. Decisions of the Fresh Pear Committee pursuant to the provisions of § 927.50 shall be made by an affirmative vote of not less than 80 percent of the applicable total number of votes, computed in the manner prescribed in paragraph (b) of this section, of all members.
(b) With respect to a particular variety or subvariety of pears, the applicable total number of votes shall be the aggregate of the votes allotted to the members in accordance with the following: Each member shall have one vote as an individual and, in addition, shall have a vote equal to the percentage of the vote of the district represented by such member; and such district vote shall be computed as soon as practical after the beginning of each fiscal period on either:
(1) The basis of one vote for each 25,000 boxes (except 2,500 boxes for varieties or subvarieties with less than 200,000 standard boxes or container equivalents) of the average quantity of such variety or subvariety produced in the particular district and shipped therefrom during the immediately preceding three fiscal periods; or
(2) Such other basis as the Fresh Pear Committee or the Processed Pear Committee may recommend and the Secretary may approve. The votes so allotted to a member may be cast by such member on each recommendation relative to the variety or subvariety of pears on which such votes were computed.
§ 927.53 Notification.
(a) The Fresh Pear Committee shall give prompt notice to growers and handlers of each recommendation to the Secretary pursuant to the provisions of § 927.50.
(b) The Secretary shall immediately notify the Fresh Pear Committee of the issuance of each regulation and of each modification, suspension, or termination of a regulation and the Fresh Pear Committee shall give prompt notice thereof to growers and handlers.
§ 927.54 [Reserved]
Inspection
§ 927.60 Inspection and certification.
(a) Handlers shall ship only fresh pears inspected by the Federal-State Inspection Service or under a program developed by the Federal-State Inspection Service: except, that such inspection and certification of shipments of pears may be performed by such other inspection service as the Fresh Pear Committee, with the approval of the Secretary, may designate. Promptly after shipment of any pears, the handler shall submit, or cause to be submitted, to the Fresh Pear Committee a copy of the inspection certificate issued on such shipment.
(b) Any handler may ship pears, on any one conveyance and in such quantity as the committee, with the approval of the Secretary, may prescribe, exempt from the inspection and certification requirements of paragraph (a) of this section.
(c) The Fresh Pear Committee may, with the approval of the Secretary, prescribe rules and regulations modifying or eliminating the requirement for mandatory inspection and certification of shipments: Provided, That an adequate method of ensuring compliance with quality and size requirements is developed.
Exceptions
§ 927.65 Exemption from regulation.
(a) Nothing contained in this subpart shall limit or authorize the limitation of shipment of pears for consumption by charitable institutions or distribution by relief agencies, nor shall any assessment be computed on pears so shipped. The Fresh Pear Committee or the Processed Pear Committee may prescribe regulations to prevent pears shipped for either of such purposes from entering commercial channels of trade contrary to the provisions of this subpart.
(b) The Fresh Pear Committee or the Processed Pear Committee may prescribe rules and regulations, to become effective upon the approval of the Secretary, whereby quantities of pears or types of pear shipments may be exempted from any or all provisions of this subpart.
Miscellaneous Provisions
§ 927.70 Reports.
(a) Upon the request of the Fresh Pear Committee or the Processed Pear Committee, and subject to the approval of the Secretary, each handler shall furnish to the aforesaid committee, respectively, in such manner and at such times as it prescribes, such information as will enable it to perform its duties under this subpart.
(b) All such reports shall be held under appropriate protective classification and custody by the Fresh Pear Committee or the Processed Pear Committee, or duly appointed employees thereof, so that the information contained therein which may adversely affect the competitive position of any handler in relation to other handlers will not be disclosed. Compilations of general reports from data submitted by handlers are authorized subject to the prohibition of disclosure of individual handler’s identities or operations.
(c) Each handler shall maintain for at least two succeeding years such records of the pears received and of pears disposed of, by such handler as may be necessary to verify reports pursuant to this section.
§ 927.71 Compliance.
Except as provided in § 927.65, no handler shall ship any pears contrary to the applicable restrictions and limitations specified in, or effective pursuant to, the provisions of this subpart.
§ 927.72 Duration of immunities.
The benefits, privileges, and immunities conferred by virtue of this subpart shall cease upon termination hereof, except with respect to acts done under and during the existence of this subpart.
§ 927.73 Separability.
If any provision of this subpart is declared invalid, or the applicability thereof to any person, circumstance, or thing is held invalid, the validity of the remaining provisions and the applicability thereof to any other person, circumstance, or thing shall not be affected thereby.
§ 927.74 Derogation.
Nothing contained in this subpart is or shall be construed to be in derogation of, or in modification of, the rights of the Secretary or of the United States to exercise any powers granted by the act or otherwise, or, in accordance with such powers, to act in the premises whenever such action is deemed advisable.
§ 927.75 Liability.
No member or alternate for a member of the Fresh Pear Committee or the Processed Pear Committee, nor any employee or agent thereof, shall be held personally responsible, either individually or jointly with others, in any way whatsoever, to any party under this subpart or to any other person for errors in judgment, mistakes, or other acts, either of commission or omission, as such member, alternate for a member, agent or employee, except for acts of dishonesty, willful misconduct, or gross negligence.
§ 927.76 Agents.
The Secretary may name, by designation in writing, any person, including any officer or employee of the Government or any bureau or division in the Department of Agriculture to act as his or her agent or representative in connection with any of the provisions of this subpart.
§ 927.77 Effective time.
The provisions of this subpart and of any amendment thereto shall become effective at such time as the Secretary may declare, and shall continue in force until terminated in one of the ways specified in § 927.78.
§ 927.78 Termination.
(a) The Secretary may at any time terminate this subpart.
(b) The Secretary shall terminate or suspend the operation of any or all of the provisions of this subpart whenever he or she finds that such operation obstructs or does not tend to effectuate the declared policy of the act.
(c) The Secretary shall terminate the provisions of this subpart applicable to fresh pears for market or pears for processing at the end of any fiscal period whenever the Secretary finds, by referendum or otherwise, that such termination is favored by a majority of growers of fresh pears for market or pears for processing, respectively: Provided, That such majority has during such period produced more than 50 percent of the volume of fresh pears for market or pears for processing, respectively, in the production area. Such termination shall be effective only if announced on or before the last day of the then current fiscal period.
(d) The Secretary shall conduct a referendum within every six-year period beginning on May 21, 2005, to ascertain whether continuance of the provisions of this subpart applicable to fresh pears for market or pears for processing are favored by producers of pears for the fresh market and pears for processing, respectively. The Secretary may terminate the provisions of this subpart at the end of any fiscal period in which the Secretary has found that continuance of this subpart is not favored by producers who, during a representative period determined by the Secretary, have been engaged in the production of fresh pears for market or pears for processing in the production area: Provided, That termination of the order shall be effective only if announced on or before the last day of the then current fiscal period.
(e) The provisions of this part shall, in any event, terminate whenever the provisions of the act authorizing them cease to be in effect.
§ 927.79 Proceedings after termination.
(a) Upon the termination of this subpart, the members of the Fresh Pear Committee or the Processed Pear Committee then functioning shall continue as joint trustees for the purpose of liquidating all funds and property then in the possession or under the control of the Fresh Pear Committee or the Processed Pear Committee, including claims for any funds unpaid or property not delivered at the time of such termination.
(b) The joint trustees shall continue in such capacity until discharged by the Secretary; from time to time account for all receipts and disbursements; deliver all funds and property on hand, together with all books and records of the Fresh Pear Committee or the Processed Pear Committee and of the joint trustees, to such person as the Secretary shall direct; and, upon the request of the Secretary, execute such assignments or other instruments necessary and appropriate to vest in such person full title and right to all of the funds, property, or claims vested in the Fresh Pear Committee or the Processed Pear Committee or in said joint trustees.
(c) Any funds collected pursuant to this subpart and held by such joint trustees or such person over and above the amounts necessary to meet outstanding obligations and the expenses necessarily incurred by the joint trustees or such other person in the performance of their duties under this subpart, as soon as practicable after the termination hereof, shall be returned to the handlers pro rata in proportion to their contributions thereto.
(d) Any person to whom funds, property, or claims have been transferred or delivered by the Fresh Pear Committee or the Processed Pear Committee or its members, upon direction of the Secretary, as provided in this section, shall be subject to the same obligations and duties with respect to said funds, property, or claims as are imposed upon the members or upon said joint trustees.
§ 927.80 Amendments.
Amendments to this subpart may be proposed from time to time by the Fresh Pear Committee or the Processed Pear Committee or by the Secretary.
Subpart B – Administrative Provisions
Definitions
§ 927.100 Terms.
Each term used in this subpart shall have the same meaning as when used in the marketing order.
§ 927.101 [Reserved]
§ 927.102 Order.
Order means Marketing Order No. 927, as amended (§§ 927.1 to 927.81), regulating the handling of pears grown in the States of Oregon and Washington.
§ 927.103 Organically produced pears.
Organically produced pears means pears that have been certified by an organic certification organization currently registered with the Oregon or Washington State Departments of Agriculture, or such certifying organization accredited under the National Organic Program.
Communications
§ 927.105 Communications.
Unless otherwise prescribed in this subpart or in the order, or required by the Fresh Pear Committee or the Processed Pear Committee, all reports, applications, submittals, requests, inspection certificates, and communications in connection with the order shall be forwarded to: Fresh Pear Committee, 4382 SE International Way, Suite A, Milwaukie OR 97222-4635 and or the Processed Pear Committee, 105 South 18th Street, Suite 205, Yakima WA 98901.
Exemptions and Safeguards
§ 927.120 Pears for charitable or byproduct purposes.
Pears which do not meet the requirements of the then effective grade, size, or quality regulations shall not be shipped or handled for consumption by any charitable institution or for distribution by any relief agency or for conversion into any by-product, unless there first shall have been delivered to the manager of the Fresh Pear Committee a certificate executed by the intended receiver and user of said pears showing, to the manager’s satisfaction, that said pears actually will be used for one or more of the aforesaid purposes.
§ 927.121 Pears for gift purposes.
There are exempted from the provisions of the order any and all pears which, in individual gift packages, are shipped directly to, or which are shipped for distribution without resale to, an individual person as the consumer thereof, and any and all pears which, in individual gift packages are shipped directly to, or are shipped for distribution without resale to, a purchaser who will use these pears solely for gift purposes and not for sale.
§ 927.122 Consumer direct pear sales.
Notwithstanding any other provision of this section, fresh pears may be handled without regard to the provisions of §§ 927.41, 927.51, 927.60, and 927.70 under the following conditions:
(a) Such pears are sold in person and sold directly to consumers on the premises where grown, at packing facilities, at roadside stands, or at farmers’ markets.
(b) Such pears are for home use only and are not for resale.
(c) The total quantity of such pears sold to each consumer during any single transaction does not exceed 220 pounds.
§ 927.123 Interest and late payment charges.
Payments received more than 45 days after the date on which they are due shall be considered delinquent and subject to a late payment charge of $25.00 or 2 percent of the total due, whichever is greater. Payments received more than 60 days after the date on which they are due shall be subject to a 1
Reports
§ 927.125 Fresh pear reports.
(a) Each handler shall furnish to the Fresh Pear Committee, as of every other Friday or at such other times established by the Fresh Pear Committee, a “Handler’s Statement of Fresh Pear Shipments” containing the following information:
(1) The quantity of each variety or subvariety of fresh pears shipped by that handler during the preceding two weeks;
(2) The assessment payment due and enclosed;
(3) The date of each shipment;
(4) The ultimate destination by city and state or city and country;
(5) The name and address of such handler; and
(6) Other information as may be requested by the Fresh Pear Committee.
(b) Each handler shall furnish to the Fresh Pear Committee, each Friday during the shipping season or at such other times established by the Fresh Pear Committee, a “Handler’s Packout Report” containing the following information:
(1) The projected total quantity of the packout of each variety or subvariety;
(2) The quantity to date of the packout of each variety or subvariety;
(3) The quantity of each variety or subvariety loose in storage;
(4) The quantity of the packout in controlled atmosphere (C.A.) storage and the quantity in C.A. storage which is sold;
(5) The quantity of each variety or subvariety shipped;
(6) The name and address of such handler; and
(7) Other information as may be requested by the Fresh Pear Committee.
(c) Each handler shall furnish to the Fresh Pear Committee, upon request, the “Pear Size and Grade Storage Report” containing the quantity of specific grades and sizes of fresh pears in regular and C.A. storage by variety or subvariety, and such other information as may be requested from the Fresh Pear Committee for the time period specified.
(d) Each handler who has shipped less than 2,500 44-pound net weight standard boxes or container equivalents of fresh pears during any reporting period of the shipping season may, in lieu of reporting as provided in (a) and (b) of this section, report as follows:
(1) At completion of harvest, on the next reporting date, furnish to the Fresh Pear Committee a “Handlers Packout Report’;
(2) After unreported shipments total 2,500 44-pound net weight standard boxes or container equivalents of fresh pears, furnish to the Fresh Pear Committee a “Handler’s Statement of Fresh Pear Shipments” and a “Handler’s Packout Report” on the next reporting date;
(3) After completion of all shipments from regular storage (i.e. non-C.A. storage), furnish to the Fresh Pear Committee a “Handler’s Statement of Fresh Pear Shipments” and a “Handler’s Packout Report” on the next reporting date;
(4) At mid-season for C.A. storage, at a date established by the Fresh Pear Committee, furnish to the Fresh Pear Committee a “Handler’s Statement of Fresh Pear Shipments”, and a “Handler’s Packout Report’; and
(5) At the completion of all seasonal pear shipments, furnish to the Fresh Pear Committee a “Handler’s Statement of Fresh Pear Shipments” and a “Handler’s Packout Report”, on the next reporting date. Each of these reports shall be marked “final report” and include an explanation of the actual shipments versus the original estimate, if different.
(e) Each handler shall specify on each bill of lading covering each shipment, the variety or subvariety and quantity of all pears included in that shipment.
§ 927.126 Processed pear reports.
(a) Each handler shall furnish to the Processed Pear Committee annually on a date established by the Processed Pear Committee the “Processed Pear Assessment Report” containing the following information:
(1) The name of the processor(s) or firm(s) to whom pears were sold;
(2) The quantity of each variety or subvariety of pears shipped by that handler;
(3) The crop year covered in the report;
(4) The assessment payment due and enclosed;
(5) The name and address of such handler; and
(6) Other information as may be requested by the Processed Pear Committee.
(b) Each handler shall specify on each bill of lading covering each shipment, the variety or subvariety and quantity of all pears included in that shipment.
§ 927.142 [Reserved]
Administrative Bodies
§ 927.150 Reapportionment of the Processed Pear Committee.
Pursuant to § 927.20(c), on or after July 1, 2019, the 10-member Processed Pear Committee is reapportioned and shall consist of three grower members, three handler members, three processor members, and one member representing the public. For each member there shall be an alternate. District 1, the State of Washington, shall be represented by two grower members and two handler members. District 2, the State of Oregon, shall be represented by one grower member and one handler member. Processor members may be from District 1, District 2, or from both districts.
Assessment Rate
§ 927.236 Fresh pear assessment rate.
On and after July 1, 2021, the following base rates of assessment for fresh pears are established for the Fresh Pear Committee:
(a) $0.468 per 44-pound net weight standard box or container equivalent for any or all varieties or subvarieties of fresh pears classified as “summer/fall”;
(b) $0.468 per 44-pound net weight standard box or container equivalent for any or all varieties or subvarieties of fresh pears classified as “winter”; and
(c) $0.000 per 44-pound net weight standard box or container equivalent for any or all varieties or subvarieties of fresh pears classified as “other”.
§ 927.237 Processed pear assessment rate.
On and after July 1, 2018, the following base rates of assessment for pears for processing are established for the Processed Pear Committee:
(a) $7.15 per ton for any or all varieties or subvarieties of pears for canning classified as “summer/fall” excluding pears for other methods of processing;
(b) $0.00 per ton for any or all varieties or subvarieties of pears for processing classified as “winter”; and
(c) $0.00 per ton for any or all varieties or subvarieties of pears for processing classified as “other”.
§ 927.316 Handling regulation.
During the period August 15 through November 1, no person shall handle any fresh Beurre D’Anjou variety pears unless such pears meet the following requirements:
(a) Shipments of fresh Beurre D’Anjou variety pears throughout the Continental United States or to Canada shall have a certification by the Federal-State Inspection Service, issued prior to shipment, showing that the core/pulp temperature of such pears has been lowered to 35 degrees Fahrenheit or less and any such pears have an average pressure test of 13 pounds or less.
(b) Shipments of fresh Beurre D’Anjou variety pears to Mexico shall have a certification by the Federal-State Inspection Service, issued prior to shipment, showing that the core/pulp temperature of such pears has been lowered to 35 degrees Fahrenheit or less and any such pears have an average pressure test of 14 pounds or less.
(c) The handler shall submit, or cause to be submitted, a copy of the certificate issued on the shipment to the Fresh Pear Committee.
PART 929 – CRANBERRIES GROWN IN STATES OF MASSACHUSETTS, RHODE ISLAND, CONNECTICUT, NEW JERSEY, WISCONSIN, MICHIGAN, MINNESOTA, OREGON, WASHINGTON, AND LONG ISLAND IN THE STATE OF NEW YORK
Subpart A – Order Regulating Handling
Definitions
§ 929.1 Secretary.
Secretary means the Secretary of Agriculture of the United States, or any officer or employee of the United States Department of Agriculture to whom authority has heretofore been delegated, or to whom authority may hereafter be delegated, to act in his stead.
§ 929.2 Act.
Act means Public Act No. 10, 73d Congress (May 12, 1933), as amended, and as reenacted and amended by the Agricultural Marketing Agreement Act of 1937, as amended (secs. 1-19, 48 Stat. 31, as amended; 7 U.S.C. 601-674).
§ 929.3 Person.
Person means an individual, partnership, corporation, association, or any other business unit.
§ 929.4 Production area.
Production area means the States of Massachusetts, Rhode Island, Connecticut, New Jersey, Wisconsin, Michigan, Minnesota, Oregon, Washington, and Long Island in the State of New York.
§ 929.5 Cranberries.
Cranberries means all varieties of the fruit Vaccinium Macrocarpon, known as cranberries, grown in the production area.
§ 929.6 Fiscal period.
Fiscal period is synonymous with fiscal year and crop year and means the 12-month period beginning September 1 of 1 year and ending August 31 of the following year.
§ 929.7 Committee.
Committee means the Cranberry Marketing Committee established pursuant to § 929.20.
§ 929.8 Grower.
Grower is synonymous with producer and means any person who produces cranberries for market and who has a proprietary interest therein.
§ 929.9 Handler.
Handler means any person who handles cranberries.
§ 929.10 Handle.
(a) Handle means:
(1) To can, freeze, or dehydrate cranberries within the production area or;
(2) To sell, consign, deliver, or transport (except as a common or contract carrier of cranberries owned by another person) fresh cranberries or in any other way to place fresh cranberries in the current of commerce within the production area or between the production area and any point outside thereof.
(b) The term handle shall not include:
(1) The sale of non harvested cranberries;
(2) The delivery of cranberries by the grower thereof to a handler having packing or processing facilities located within the production area;
(3) The transportation of cranberries from the bog where grown to a packing or processing facility located within the production area; or
(4) The cold storage or freezing of excess or restricted cranberries for the purpose of temporary storage during periods when an annual allotment percentage and/or a handler withholding program is in effect prior to their disposal, pursuant to §§ 929.54 or 929.59.
§ 929.11 To can, freeze, or dehydrate.
To can, freeze, or dehydrate means to convert cranberries into canned, frozen, or dehydrated cranberries or other cranberry products by any commercial process.
§ 929.12 Acquire.
Acquire means to obtain cranberries by any means whatsoever for the purpose of handling such cranberries.
§ 929.13 Sales history.
Sales history means the number of barrels of cranberries established for a grower by the committee pursuant to § 929.48.
§ 929.14 Marketable quantity.
Marketable quantity means for a crop year the number of pounds of cranberries necessary to meet the total market demand and to provide for an adequate carryover.
§ 929.15 Annual allotment.
A grower’s annual allotment for a particular crop year is the number of barrels of cranberries determined by multiplying such grower’s sales history by the allotment percentage established pursuant to § 929.49 for such crop year.
§ 929.17 Barrel.
Barrel means a quantity of cranberries equivalent to 100 pounds of cranberries.
Administrative Body
§ 929.20 Establishment and membership.
(a) There is hereby established a Cranberry Marketing Committee consisting of 13 grower members, and 9 grower alternate members. Except as hereafter provided, members and alternate members shall be growers or employees, agents, or duly authorized representatives of growers.
(b) The committee shall include one public member and one public alternate member nominated by the committee and selected by the Secretary. The public member and public alternate member shall not be a cranberry grower, processor, handler, or have a financial interest in the production, sales, marketing or distribution of cranberries or cranberry products. The committee, with the approval of the Secretary, shall prescribe qualifications and procedures for nominating the public member and public alternate member.
(c) Members shall represent each of the following subdivisions of the production areas in the number specified in Table 1. Members shall reside in the designated district of the production area from which they are nominated and selected. Provided, that there shall also be one member-at-large who may be nominated from any of the marketing order districts.
District 1: The States of Massachusetts, Rhode Island, and Connecticut;
District 2: The State of New Jersey and Long Island in the State of New York.
District 3: The States of Wisconsin, Michigan, and Minnesota.
District 4: The States of Oregon and Washington.
Table 1
| Districts | Major cooperative | Major cooperative | Other than major | Other than major |
|---|---|---|---|---|
| Members | Alternates | |||
| 1 | 2 | 1 | 2 | 1 |
| 2 | 1 | 1 | 1 | 1 |
| 3 | 2 | 1 | 2 | 1 |
| 4 | 1 | 1 | 1 | 1 |
| Any | 1 member-at-large | |||
(d) Disclosure of unregulated production. All grower nominees and alternate grower nominees of the committee shall disclose any financial interest in the production of cranberries that are not subject to regulation by this part.
(e) The committee may establish, with the approval of the Secretary, rules and regulations for the implementation and operation of this section.
§ 929.21 Term of office.
(a) The term of office for each member and alternate member of the committee shall be for two years, beginning on August 1 of each even-numbered year and ending on the second succeeding July 31. Provided, That following adoption of this amendment, the term of office for the initial members and alternates shall also include any time served prior to August 1 of the first even numbered year served. Members and alternate members shall serve the term of office for which they are selected and have been qualified or until their respective successors are selected and have been qualified.
(b) Beginning on August 1 of the even-numbered year following the adoption of this amendment, committee members shall be limited to three consecutive terms. This limitation on tenure shall not include service on the committee prior to the adoption of this amendment or service on the committee by the initial members prior to August 1 of the first even-numbered year served and shall not apply to alternate members.
(c) Members who have served three consecutive terms must leave the committee for at least one full term before becoming eligible to serve again unless specifically exempted by the Secretary. The consecutive terms of office for alternate members shall not be so limited.
§ 929.22 Nomination.
(a) Initial members. As soon as practicable after adoption of this amendment, the committee shall hold nominations in accordance with this section. The names and addresses of all nominees shall be submitted to the Secretary for selection as soon as the nomination process is complete. Nominees selected for the initial Committee, following adoption of this amendment, shall serve a minimum of one two-year term beginning on August 1 of the first even-numbered year served.
(b) Successor members. Beginning on June 1 of the even-numbered year following the adoption of this amendment, the committee shall hold nominations in accordance with this section.
(c) Whenever any cooperative marketing organization handles more than fifty percent of the total volume of cranberries produced during the fiscal period in which nominations for membership on the committee are made, such cooperative or growers affiliated therewith shall nominate:
(1) Six qualified persons for members and four qualified persons for alternate members of the committee. These members and alternate members shall be referred to as the major cooperative members and alternate members. Nominee(s) for major cooperative member and major cooperative alternate member shall represent growers from each of the marketing order districts designated in § 929.20.
(2) A seventh major cooperative member shall be referred to as the major cooperative member-at-large. The major cooperative member-at-large may be nominated from any of the marketing order districts.
(3) Six qualified persons for members and four qualified persons for alternate members of the committee shall be nominated by those growers who market their cranberries through entities other than the major cooperative marketing organization. Nominees for member and alternate member representing entities other than the major cooperative marketing organization shall represent growers from each of the marketing order districts as designated in § 929.20(c).
(d) Whenever any major cooperative marketing organization handles 50 percent or less of the total volume of cranberries produced during the fiscal period in which nominations for membership on the committee are made, the major cooperative or growers affiliated therewith, shall nominate:
(1) Six qualified persons for major cooperative members and four qualified persons for major cooperative alternate members of the committee. Nominees for member and alternate member shall represent growers from each of the marketing order districts as designated in § 929.20(c).
(2) Six qualified persons for members and four qualified persons for alternate members of the committee shall be nominated by those growers who market their cranberries through entities other than the major cooperative marketing organization. Nominees for member and alternate member shall represent growers from each of the marketing order districts as designated in § 929.20(c).
(3) A seventh member nominee shall be referred to as the member-at-large representing entities other than the major cooperative marketing organization. The member-at-large may be nominated from any of the marketing order districts.
(e) Nominations of qualified member nominees representing entities other than the major cooperative marketing organization shall be made through a call for nominations sent to all eligible growers residing within each of the marketing order districts. The call for such nominations shall be by such means as are recommended by the committee and approved by the Secretary.
(1) The names of all eligible nominees from each district received by the committee, by such date and in such form as recommended by the committee and approved by the Secretary, will appear on the nomination ballot for that district.
(2) Election of the member nominees and alternate member nominees shall be conducted by mail ballot.
(3) Eligible growers shall participate in the election of nominees from the district in which they reside.
(4) When voting for member nominees, each eligible grower shall be entitled to cast one vote on behalf of him/herself.
(5) The nominee receiving the highest number of votes cast in districts two and four shall be the member nominee representing entities other than the major cooperative marketing organization from that district. The nominee receiving the second highest number of votes cast in districts two and four shall be the alternate member representing entities other than the major cooperative marketing organization from that district.
(6) The nominees receiving the highest and second highest number of votes cast in districts one and three shall be the member nominees representing entities other than the major cooperative marketing organization from that district. The nominee receiving the third highest number of votes cast in districts one and three shall be the alternate member representing entities other than the major cooperative marketing organization from that district.
(f) Nominations for the member-at-large representing entities other than the major cooperative marketing organization shall be made through a call for nominations sent to all eligible growers residing within the marketing order districts. The call for such nominations shall be by such means as recommended by the committee and approved by the Secretary.
(1) Election of the member-at-large shall be held by mail ballot sent to all eligible growers in the marketing order districts by such date and in such form as recommended by the committee and approved by the Secretary.
(2) Eligible growers casting ballots may vote for a member-at-large nominee from marketing order districts other than where they produce cranberries.
(3) When voting for the member-at-large nominee, each eligible grower shall be entitled to cast one vote on behalf of him/herself.
(4) The nominee receiving the highest number of votes cast shall be designated the member-at-large nominee representing entities other than the major cooperative marketing organization. The nominee receiving the second highest number of votes cast shall be declared the alternate member-at-large nominee representing entities other than the major cooperative marketing organization.
(g) The committee may request that growers provide their federal tax identification number(s) in order to determine voting eligibility.
(h) The names and addresses of all successor member nominees shall be submitted to the Secretary for selection no later than July 1 of each even-numbered year.
(i) The committee, with the approval of the Secretary, may issue rules and regulations to carry out the provisions or to change the procedures of this section.
§ 929.23 Selection.
(a) From nominations made pursuant to § 929.22(b), the Secretary shall select members and alternate members to the committee on the basis of the representation provided for in § 929.20 and in paragraph (b) or (c) of this section.
(b) Whenever any cooperative marketing organization handles more than 50 percent of the total volume of cranberries produced during the fiscal year in which nominations for membership on the committee are made, the Secretary shall select:
(1) Six major cooperative members and four major cooperative alternate members from nominations made pursuant to § 929.22(c)(1).
(2) One major cooperative member-at-large from nominations made pursuant to § 929.22(c)(2), and
(3) Six members and four alternate members from growers who market their cranberries through other than the major cooperative marketing organization made pursuant to § 929.22(c)(3).
(c) Whenever any major cooperative marketing organization handles 50 percent or less of the total volume of cranberries produced during the fiscal year in which nominations for membership on the committee are made, the Secretary shall select:
(1) Six major cooperative members and four major cooperative alternate members from nominations made pursuant to § 929.22(d)(1).
(2) Six members and four alternate members from nominations made pursuant to § 929.22(d)(2).
(3) One member-at-large representing entities other than the major cooperative marketing organization from nominations made pursuant to § 929.22(d)(3).
§ 929.24 Failure to nominate.
If nominations are not made within the time and in the manner prescribed in § 929.22, the Secretary may, without regard to nominations, select the members and alternate members of the committee on the basis of representation provided for in §§ 929.20 and 929.23.
§ 929.25 Acceptance.
Any person selected by the Secretary as a member or as an alternate member of the committee shall qualify by filing a written acceptance with the Secretary promptly after being notified of such selection.
§ 929.26 Vacancies.
To fill any vacancy occasioned by the failure of any person selected as a member or as an alternate member of the committee to qualify, or in the event of the death, removal, resignation, or disqualification of any member or alternate member of the committee, a successor for the unexpired term of such member or alternate member of the committee shall be nominated and selected in the manner specified in §§ 929.22 and 929.23. If the names of nominees to fill any such vacancy are not made available to the Secretary within a reasonable time after such vacancy occurs, the Secretary may fill such vacancy without regard to nominations, which selection shall be made on the basis of representation provided for in §§ 929.20 and 929.23.
§ 929.27 Alternate members.
An alternate member of the committee shall act in the place and stead of a member during the absence of such member and may perform such other duties as assigned. In the event of the death, removal, resignation, or disqualification of a member, an alternate shall act for him/her until a successor for such member is selected and has qualified. In the event both a member and alternate member from the same marketing order district are unable to attend a committee meeting, the committee may designate any other alternate member to serve in such member’s place and stead at that meeting provided that:
(a) An alternate member representing the major cooperative shall not serve in place of a member representing other than the major cooperative or the public member.
(b) An alternate member representing other than the major cooperative shall not serve in place of a major cooperative member or the public member.
(c) A public alternate member shall not serve in place of any industry member.
§ 929.28 Redistricting and Reapportionment.
(a) The committee, with the approval of the Secretary, may reestablish districts within the production area and reapportion membership among the districts. In recommending such changes, the committee shall give consideration to:
(1) The relative volume of cranberries produced within each district.
(2) The relative number of cranberry producers within each district.
(3) Cranberry acreage within each district.
(4) Other relevant factors.
(b) The committee may establish, with the approval of the Secretary, rules and regulations for the implementation and operation of this section.
§ 929.30 Powers.
The committee shall have the following powers:
(a) To administer the provisions of this part in accordance with its terms;
(b) To receive, investigate, and report to the Secretary complaints of violations of the provisions of this part;
(c) To make and adopt rules and regulations to effectuate the terms and provisions of this part; and
(d) To recommend to the Secretary amendments to this part.
§ 929.31 Duties.
The committee shall have, among others, the following duties:
(a) To select a chairman and such other officers as may be necessary, and to define the duties of such officers;
(b) To appoint such employees, agents, and representatives as it may deem necessary and to determine the compensation and to define the duties of each:
(c) To submit to the Secretary as soon as practicable after the beginning of each fiscal period a budget for such fiscal period, including a report in explanation of the items appearing therein and a recommendation as to the rate of assessment for such period;
(d) To keep minutes, books, and records which will reflect all of the acts and transactions of the committee and which shall be subject to examination by the Secretary;
(e) To prepare periodic statements of the financial operations of the committee and to make copies of each such statement available to growers and handlers for examination at the office of the committee;
(f) To cause its books to be audited by a competent public accountant at least once each fiscal year and at such times as the Secretary may request;
(g) To act as intermediary between the Secretary and any grower or handler;
(h) To investigate and assemble data on the growing, handling, and marketing conditions with respect to cranberries;
(i) To submit to the Secretary the same notice of meetings of the committee as is given to its members;
(j) To submit to the Secretary such available information as he may request; and
(k) To investigate compliance with the provisions of this part.
§ 929.32 Procedure.
(a) Ten members of the committee, or alternates acting for members, shall constitute a quorum. All actions of the committee shall require at least ten concurring votes: Provided, if the public member or the public alternate member acting in the place and stead of the public member, is present at a meeting, then eleven members shall constitute a quorum. Any action of the committee on which the public member votes shall require eleven concurring votes. If the public member abstains from voting on any particular matter, ten concurring votes shall be required for an action of the committee.
(b) The committee may vote by mail, telephone, fax, telegraph, or other electronic means; Provided that any votes cast by telephone shall be confirmed promptly in writing. Voting by proxy, mail, telephone, fax, telegraph, or other electronic means shall not be permitted at any assembled meeting of the committee.
(c) All assembled meetings of the committee shall be open to growers and handlers. The committee shall publish notice of all meetings in such manner as it deems appropriate.
§ 929.33 Expenses and compensation.
The members of the committee, and alternates when acting as members, shall serve without compensation but shall be reimbursed for necessary expenses, as approved by the committee, incurred by them in the performance of their duties under this part. The committee at its discretion may request the attendance of one or more alternates at any or all meetings, notwithstanding the expected or actual presence of the respective members, and may pay expenses, as aforesaid.
Expenses and Assessments
§ 929.40 Expenses.
The committee is authorized to incur such expenses as the Secretary finds are reasonable and likely to be incurred by the committee for its maintenance and functioning and to enable it to exercise its powers and perform its duties in accordance with the provisions hereof. The funds to cover such expenses shall be paid to the committee by handlers in the manner prescribed in § 929.41.
§ 929.41 Assessments.
(a) As a handler’s pro rate share of the expenses which the Secretary finds are reasonable and likely to be incurred by the committee during a fiscal period, a handler shall pay to the committee assessments on all cranberries acquired as the first handler thereof during such period, except as provided in § 929.55: Provided, That no handler shall pay assessments on excess cranberries as provided in § 929.57. The payment of assessments for the maintenance and functioning of the committee may be required under this part throughout the period it is in effect, irrespective of whether particular provisions thereof are suspended or become inoperative.
(b) The Secretary shall fix the rate of assessment to be paid by each handler during a fiscal period in an amount designated to secure funds sufficient to cover the expenses which may be incurred during such period and to accumulate and maintain a reserve fund equal to approximately one fiscal period’s expenses. At any time during or after the fiscal period, the Secretary may increase the assessment rate in order to secure funds sufficient to cover any later finding by the Secretary relative to the expenses which may be incurred. Such increase shall be applied to all cranberries acquired during the applicable fiscal period. In order to provide funds for the administration of the provisions of this part during the first part of a fiscal year, before sufficient operating income is available from assessments, the committee may accept the payment of assessments in advance and may also borrow money for such purposes.
(c) If a handler does not pay such assessment within the period of time prescribed by the committee, the assessment may be increased by either a late payment charge, or an interest charge, or both, at rates prescribed by the committee, with the approval of the Secretary.
§ 929.42 Accounting.
(a) If, at the end of a fiscal period, the assessments collected are in excess of expenses incurred, the committee, with the approval of the Secretary, may carryover such excess into subsequent fiscal periods as a reserve: Provided, That funds already in the reserve do not exceed approximately one fiscal period’s expenses. Such reserve funds may be used (1) to cover any expenses authorized by this part and (2) to cover necessary expenses of liquidation in the event of termination of this part. If any such excess is not retained in a reserve, it shall be refunded proportionately to the handlers from whom the excess was collected. Upon termination of this part, any funds not required to defray the necessary expenses of liquidation shall be disposed of in such manner as the Secretary may determine to be appropriate; Provided, That to the extent practical, such funds shall be returned pro rata to the persons from whom such funds were collected.
(b) All funds received by the committee pursuant to the provisions of this part shall be used solely for the purpose specified in this part and shall be accounted for in the manner provided in this part. The Secretary may at any time require the committee and its members to account for all receipts and disbursements.
§ 929.43 Contributions.
The Committee may accept voluntary contributions to pay expenses incurred pursuant to § 929.45, Research and development. Such contributions may only be accepted if they are sourced from domestic contributors and are free from any encumbrances or restrictions on their use by the donor. The Cranberry Marketing Committee shall retain complete control of their use.
Research
§ 929.45 Research and development.
(a) The committee, with the approval of the Secretary, may establish or provide for the establishment of production research, marketing research, and market development projects, including paid advertising, designed to assist, improve, or promote the marketing, distribution, consumption, or efficient production of cranberries. The expense of such projects shall be paid from funds collected pursuant to § 929.41, or from such other funds as approved by the Secretary.
(b) The committee may, with the approval of the Secretary, establish rules and regulations as necessary for the implementation and operation of this section.
Regulations
§ 929.46 Marketing policy.
Each season prior to making any recommendation pursuant to § 929.51, the committee shall submit to the Secretary a report setting forth its marketing policy for the crop year. Such marketing policy shall contain the following information for the current crop year:
(a) The estimated total production of cranberries;
(b) The expected general quality of such cranberry production;
(c) The estimated carryover, as of September 1, of frozen cranberries and other cranberry products;
(d) The expected demand conditions for cranberries in different market outlets;
(e) The recommended desirable total marketable quantity of cranberries including a recommended adequate carryover into the following crop year of frozen cranberries and other cranberry products;
(f) Other factors having a bearing on the marketing of cranberries.
§ 929.48 Sales history.
(a) A sales history for each grower shall be computed by the committee in the following manner:
(1) For growers with acreage with 6 or more years of sales history, the sales history shall be computed using an average of the highest four of the most recent six years of sales.
(2) For growers with 5 years of sales history from acreage planted or replanted 2 years prior to the first harvest on that acreage, the sales history is computed by averaging the highest 4 of the 5 years.
(3) For growers with 5 years of sales history from acreage planted or replanted 1 year prior to the first harvest on that acreage, the sales history is computed by averaging the highest 4 of the 5 years and in a year prior to a year of a producer allotment volume regulation shall be adjusted as provided in paragraph (a)(6) of this section.
(4) For a grower with 4 years or less of sales history, the sales history shall be computed by dividing the total sales from that acreage by 4 and in a year prior to a year of a producer allotment volume regulation shall be adjusted as provided in paragraph (a)(6) of this section.
(5) For growers with acreage having no sales history, or for the first harvest of replanted acres, the sales history will be the average first year yields (depending on whether first harvested 1 or 2 years after planting or replanting) as established by the committee and multiplied by the number of acres.
(6) In a year prior to a year of a producer allotment volume regulation, in addition to the sales history computed in accordance with paragraphs (a)(3) and (a)(4) of this section, additional sales history shall be assigned to growers using the formula x = (a−b)c. The letter “x” constitutes the additional number of barrels to be added to the grower’s sales history. The value “a” is the expected yield for the forthcoming year harvested acreage as established by the committee. The value “b” is the total sales from that acreage as established by the committee divided by four. The value “c” is the number of acres planted or replanted in the specified year. For acreage with five years of sales history: a = the expected yield for the forthcoming sixth year harvested acreage (as established by the committee); b = an average of the most recent 4 years of expected yields (as established by the committee); and c = the number of acres with 5 years of sales history.
(b) A new sales history shall be calculated for each grower after each crop year, using the formulas established in paragraph (a) of this section, or such other formula(s) as determined by the committee, with the approval of the Secretary.
(c) The committee, with the approval of the Secretary, may adopt regulations to change the number and identity of years to be used in computing sales histories, including the number of years to be used in computing the average. The committee may establish, with the approval of the Secretary, rules and regulations necessary for the implementation and operation of this section.
(d) Sales histories, starting with the crop year following adoption of this part, shall be calculated separately for fresh and processed cranberries. The amount of fresh fruit sales history may be calculated based on either the delivered weight of the barrels paid for by the handler (excluding trash and unusable fruit) or on the weight of the fruit paid for by the handler after cleaning and sorting for the retail market. Handlers using the former calculation shall allocate delivered fresh fruit subsequently used for processing to growers’ processing sales. Fresh fruit sales history, in whole or in part, may be added to process fruit sales history with the approval of the committee in the event that the grower’s fruit does not qualify as fresh fruit at delivery.
(e) The committee may recommend rules and regulations, with the approval of the Secretary, to adjust a grower’s sales history to compensate for catastrophic events that impact the grower’s crop.
929.49 Marketable quantity, allotment percentage, and annual allotment.
(a) Marketable quantity and allotment percentage. If the Secretary finds, from the recommendation of the committee or from other available information, that limiting the quantity of cranberries purchased from or handled on behalf of growers during a crop year would tend to effectuate the declared policy of the Act, the Secretary shall determine and establish a marketable quantity for that crop year.
(b) The marketable quantity shall be apportioned among growers by applying the allotment percentage to each grower’s sales history, established pursuant to § 929.48. Such allotment percentage shall be established by the Secretary and shall equal the marketable quantity divided by the total of all growers’ sales histories including the estimated total sales history for new growers. Except as provided in paragraph (g) of this section, no handler shall purchase or handle on behalf of any grower cranberries not within such grower’s annual allotment.
(c) In any crop year in which the production of cranberries is estimated by the committee to be equal to or less than its recommended marketable quantity, the committee may recommend that the Secretary increase or suspend the allotment percentage applicable to that year. In the event it is found that market demand is greater than the marketable quantity previously set, the committee may recommend that the Secretary increase such quantity.
(d) Issuance of annual allotments. The committee shall require all growers to qualify for such allotment by filing with the committee a form wherein growers include the following information:
(1) The amount of acreage which will be harvested;
(2) A copy of any lease agreement covering cranberry acreage;
(3) The name of the handler(s) to whom their annual allotment will be delivered;
(4) Such other information as may be necessary for the implementation and operation of this section.
(e) On or before such date as determined by the committee, with the approval of the Secretary, the committee shall issue to each grower an annual allotment determined by applying the allotment percentage established pursuant to paragraph (b) of this section to the grower’s sales history.
(f) On or before such date as determined by the committee, with the approval of the Secretary, in which an allotment percentage is established by the Secretary, the committee shall notify each handler of the annual allotment that can be handled for each grower whose total crop will be delivered to that handler. In cases where a grower delivers a crop to more than one handler, the grower must specify how the annual allotment will be apportioned among the handlers. If a grower does not specify how their annual allotment is to be apportioned among the handlers, the Committee will apportion such annual allotment equally among those handlers they are delivering their crop to.
(g) Growers who do not produce cranberries equal to their computed annual allotment shall transfer their unused allotment to such growers’ handlers unless it is transferred to another grower in accordance with § 929.50(b) or if it is not assigned in accordance with paragraph (i) of this section. The handler shall equitably allocate the unused annual allotment to growers with excess cranberries who deliver to such handler. Unused annual allotment remaining after all such transfers have occurred shall be reported and transferred to the committee by such date as established by the committee with the approval of the Secretary.
(h) Handlers who receive cranberries more than the sum of their growers’ annual allotments have “excess cranberries,” pursuant to § 929.59, and shall so notify the committee. Handlers who have remaining unused allotment pursuant to paragraph (g) of this section are “deficient” and shall so notify the committee. The committee shall allocate unused allotment to all handlers having excess cranberries, proportional to each handler’s total allotment.
(i) Growers who decide not to grow a crop, during any crop year in which a volume regulation is in effect, may choose not to assign their allotment to a handler.
(j) The committee may establish, with the approval of the Secretary, rules and regulations necessary for the implementation and operation of this section.
§ 929.50 Transfers of Sales Histories and Annual Allotments.
(a) Leases and sales of cranberry acreage – (1) Total or partial lease of cranberry acreage. When total or partial lease of cranberry acreage occurs, sales history attributable to the acreage being leased shall remain with the lessor.
(2) Total sale of cranberry acreage. When there is a sale of a grower’s total cranberry producing acreage, the committee shall transfer all owned acreage and all associated sales history to such acreage to the buyer. The seller and buyer shall file a sales transfer form providing the committee with such information as may be requested so that the buyer will have immediate access to the sales history computation process.
(3) Partial sale of cranberry acreage. When less than the total cranberry producing acreage is sold, sales history associated with that portion of the acreage being sold shall be transferred with the acreage. The seller shall provide the committee with a sales transfer form containing, but not limited to the distribution of acreage and the percentage of sales history, as defined in § 929.48(a)(1), attributable to the acreage being sold.
(4) No sale of cranberry acreage shall be recognized unless the committee is notified in writing.
(b) Allotment transfers. During a year of volume regulation, a grower may transfer all or part of his/her allotment to another grower. If a lease is in effect the lessee shall receive allotment from lessor attributable to the acreage leased. Provided, That the transferred allotment shall remain assigned to the same handler and that the transfer shall take place prior to a date to be recommended by the Committee and approved by the Secretary. Transfers of allotment between growers having different handlers may occur with the consent of both handlers.
(c) The committee may establish, with the approval of the Secretary, rules and regulations, as needed, for the implementation and operation of this section.
§ 929.51 Recommendations for regulation.
(a) Except as otherwise provided in paragraph (b) of this section, if the committee deems it advisable to regulate the handling of cranberries in the manner provided in § 929.52, it shall so recommend to the Secretary by the following appropriate dates:
(1) An allotment percentage regulation must be recommended by no later than March 1;
(2) A handler withholding program must be recommended by not later than August 31. Such recommendation shall include the free and restricted percentages for the crop year;
(3) If both programs are recommended in the same year, the Committee shall submit with its recommendation an economic analysis to the USDA prior to March 1 of the year in which the programs are recommended.
(b) An exception to the requirement in paragraph (a)(1) of this section may be made in a crop year in which, due to unforeseen circumstances, a producer allotment regulation is deemed necessary subsequent to the March 1 deadline.
(c) In arriving at its recommendations for regulation pursuant to paragraph (a) of this section, the committee shall give consideration to current information with respect to the factors affecting the supply of and demand for cranberries during the period when it is proposed that such regulation should be imposed. With each such recommendation for regulation, the committee shall submit to the Secretary the data and information on which such recommendation is based and any other information the Secretary may request.
§ 929.52 Issuance of regulations.
(a) The Secretary shall regulate, in the manner specified in this section, the handling of cranberries whenever the Secretary finds, from the recommendations and information submitted by the committee, or from other available information, that such regulation will tend to effectuate the declared policy of the Act. Such regulation shall limit the total quantity of cranberries which may be handled during any fiscal period by fixing the free and restricted percentages, applied to cranberries acquired by handlers in accordance with § 929.54, and/or by establishing an allotment percentage in accordance with § 929.49.
(b) The committee shall be informed immediately of any such regulation issued by the Secretary, and the committee shall promptly give notice thereof to handlers.
§ 929.53 Modification, suspension, or termination of regulations.
(a) In the event the committee at any time finds that, by reason of changed conditions, any regulations issued pursuant to § 929.52 should be modified, suspended, or terminated, it shall so recommend to the Secretary.
(b) Whenever the Secretary finds, from the recommendations and information submitted by the committee or from other available information, that a regulation should be modified, suspended, or terminated in order to effectuate the declared policy of the act, he shall modify, suspend, or terminate such regulation: Provided, That no such modification shall increase the restricted percentage previously established for the then current fiscal year. If the Secretary finds that a regulation obstructs or does not tend to effectuate the declared policy of the act, he shall suspend or terminate such regulation.
§ 929.54 Withholding.
(a) Whenever the Secretary has fixed the free and restricted percentages for any fiscal period, as provided for in § 929.52(a), each handler shall withhold from handling a portion of the cranberries acquired during such period. The withheld portion shall be equal to the restricted percentage multiplied by the volume of marketable cranberries acquired. Such withholding requirements shall not apply to any lot of cranberries for which such withholding requirement previously has been met by another handler in accordance with § 929.55.
(b) The committee, with the approval of the Secretary, shall prescribe the manner in which, and date or dates during the fiscal period by which, handlers shall have complied with the withholding requirements specified in paragraph (a) of this section.
(c) Withheld cranberries may meet such standards of grade, size, quality, or condition as the committee, with the approval of the Secretary, may prescribe. The Federal or Federal-State Inspection Service may inspect all such cranberries. A certificate of such inspection shall be issued which shall include the name and address of the handler, the number and type of containers in the lot, the location where the lot is stored, identification marks (including lot stamp, if used), and the quantity of cranberries in such lot that meet the prescribed standards. Promptly after inspection and certification, each such handler shall submit to the committee a copy of the certificate of inspection issued with respect to such cranberries.
(d) Any handler who withholds from handling a quantity of cranberries in excess of that required pursuant to paragraph (a) of this section shall have such excess quantity credited toward the next fiscal year’s withholding obligation, if any – provided that such credit shall be applicable only if the restricted percentage established pursuant to § 929.52 was modified pursuant to § 929.53; to the extent such excess was disposed of prior to such modification; and after such handler furnishes the committee with such information as it prescribes regarding such withholding and disposition.
(e) The Committee, with the approval of the Secretary, may establish rules and regulations necessary and incidental to the administration of this section.
§ 929.55 Interhandler transfer.
(a) Transfer of cranberries from one handler to another may be made without prior notice to the committee, except during a period when a volume regulation has been established. If such transfer is made between handlers who have packing or processing facilities located within the production area, the assessment and withholding obligations provided under this part shall be assumed by the handler who agrees to meet such obligation. If such transfer is to a handler whose packing or processing facilities are outside of the production area, such assessment and withholding obligation shall be met by the handler residing within the production area.
(b) All handlers shall report all such transfers to the committee on a form provided by the committee four times a year or at other such times as may be recommended by the committee and approved by the Secretary.
(c) The committee may establish, with the approval of the Secretary, rules and regulations necessary for the implementation and operation of this section.
§ 929.56 Special provisions relating to withheld (restricted) cranberries.
(a) A handler shall make a written request to the committee for the release of all or part of the cranberries that the handler is withholding from handling pursuant to § 929.54(a). Each request shall state the quantity of cranberries for which release is requested and shall provide such additional information as the committee may require. Handlers may replace the quantity of withheld cranberries requested for release as provided under either paragraph (b) or (c) of this section.
(b) The handler may contract with another handler for an amount of free cranberries to be converted to restricted cranberries that is equal to the volume of cranberries that the handler wishes to have converted from his own restricted cranberries to free cranberries.
(1) The handlers involved in such an agreement shall provide the committee with such information as may be requested prior to the release of any restricted cranberries.
(2) The committee shall establish guidelines to ensure that all necessary documentation is provided to the committee, including but not limited to, the amount of cranberries being converted and the identities of the handlers assuming the responsibility for withholding and disposing of the free cranberries being converted to restricted cranberries.
(3) Cranberries converted to replace released cranberries may be required to be inspected and meet such standards as may be prescribed for withheld cranberries prior to disposal.
(4) Transactions and agreements negotiated between handlers shall include all costs associated with such transactions including the purchase of the free cranberries to be converted to restricted cranberries and all costs associated with inspection (if applicable) and disposal of such restricted cranberries. No costs shall be incurred by the committee other than for the normal activities associated with the implementation and operation of a volume regulation program.
(5) Free cranberries belonging to one handler and converted to restricted cranberries on the behalf of another handler shall be reported to the committee in such manner as prescribed by the committee.
(c) Except as otherwise directed by the Secretary, as near as practicable to the beginning of the marketing season of each fiscal period with respect to which the marketing policy proposes regulation pursuant to § 929.52(a), the committee shall determine the amount per barrel each handler shall deposit with the committee for it to release to him, in accordance with this section, all or part of the cranberries he is withholding; and the committee shall give notice of such amount of deposit to handlers. Such notice shall state the period during which such amount of deposit shall be in effect. Whenever the committee determines that, by reason of changed conditions or other factors, a different amount should therefore be deposited for the release of withheld cranberries, it shall give notice to handlers of the new amount and the effective period thereof. Each determination as to the amount of deposit shall be on the basis of the committee’s evaluation of the following factors:
(1) The prices at which growers are selling cranberries to handlers,
(2) The prices at which handlers are selling fresh market cranberries to dealers,
(3) The prices at which cranberries are being sold for processing in products,
(4) The prices at which handlers are selling cranberry concentrate,
(5) The prices the committee has paid to purchase cranberries to replace released cranberries in accordance with this section, and
(6) The costs incurred by growers in producing cranberries.
(7) Each request for release of withheld cranberries shall include, in addition to all other information as may be prescribed by the committee, the quantity of cranberries the release is requested and shall be accompanied by a deposit (a cashier’s or certified check made payable to the Cranberry Marketing Committee) in an amount equal to the twenty percent of the amount determined by multiplying the number of barrels stated in the request by the then effective amount per barrel as determined in paragraph (c).
(8) Subsequent deposits equal to, but not less than, the ten percent of the remaining outstanding balance shall be payable to the committee on a monthly basis commencing on January 1, and concluding by no later than August 31 of the fiscal period.
(9) If the committee determines such a release request is properly filled out, is accompanied by the required deposit, and contains a certification that the handler is withholding such cranberries, it shall release to such handler the quantity of cranberries specified in his request.
(d) Funds deposited for the release of withheld cranberries, pursuant to paragraph (c) of this section, shall be used by the committee to purchase from handlers unrestricted (free percentage) cranberries in an aggregate amount as nearly equal to, but not in excess of, the total quantity of the released cranberries as it is possible to purchase to replace the released cranberries.
(e) All handlers shall be given an equal opportunity to participate in such purchase of unrestricted (free percentage) cranberries. If a larger quantity is offered than can be purchased, the purchases shall be made at the lowest price possible. If two or more handlers offer unrestricted (free percentage) cranberries at the same price, purchases from such handlers shall be in proportion to the quantity of their respective offerings insofar as such division is practicable. The committee shall dispose of cranberries purchased as restricted cranberries in accordance with § 929.57. Any funds received by the committee for cranberries so disposed of, which are in excess of the costs incurred by the committee in making such disposition, will accrue to the committee’s general fund.
(f) In the event any portion of the funds deposited with the committee pursuant to paragraph (c) of this section cannot, for reasons beyond the committee’s control, be expended to purchase unrestricted (free percentage) cranberries to replace those withheld cranberries requested to be released, such unexpended funds shall, after deducting expenses incurred by the committee, be refunded to the handler who deposited the funds. The handler shall equitably distribute such refund among the growers delivering to such handler.
(g) Inspection for restricted (withheld) cranberries released to a handler is not required.
(h) The committee may establish, with the approval of the Secretary, rules and regulations for the implementation of this section. Such rules and regulations may include, but are not limited to, revisions in the payment schedule specified in paragraphs (c)(7) and (c)(8) of this section.
§ 929.57 Outlets for restricted cranberries.
(a) Except as provided in this section and in § 929.56, cranberries withheld from handling may be disposed of only through diversion to such outlets as the committee, with the approval of the Secretary, finds are noncompetitive to outlets for unrestricted (free percentage) cranberries.
(b) The storage and disposition of all cranberries withheld from handling shall be subject to the supervision and accounting control of the committee.
§ 929.58 Exemptions.
(a) Upon the basis of the recommendation and information submitted by the committee, or from other available information, the Secretary may relieve from any or all requirements pursuant to this part the handling of cranberries in such minimum quantities as the committee, with the approval of the Secretary, may prescribe.
(b) Upon the basis of the recommendation and information submitted by the committee, or from other available information, the Secretary may relieve from any or all requirements pursuant to this part the handling of such forms or types of cranberries as the committee, with the approval of the Secretary, may prescribe. Forms of cranberries could include cranberries intended for fresh sales or organically grown cranberries.
(c) The committee, with the approval of the Secretary, shall prescribe such rules, regulations, and safeguards as it may deem necessary to ensure that cranberries handled under the provisions of this section are handled only as authorized.
§ 929.59 Excess cranberries.
(a) Whenever the Secretary establishes an allotment percentage pursuant to § 929.52, handlers shall be notified by the committee of such allotment percentage and shall withhold from handling such cranberries in excess of the total of their growers’ annual allotments obtained during such period. Such withheld cranberries shall be defined as “excess cranberries” after all unused allotment has been allocated.
(1) Excess cranberries received by a handler shall be made available for inspection by the committee or its representatives from the time they are received until final disposition is completed. Such excess cranberries shall be identified in such manner as the committee may specify in its rules and regulations with the approval of the Secretary.
(2) All matters dealing with handler-held excess cranberries shall be in accordance with such rules and regulations established by the committee, with the approval of the Secretary.
(b) Prior to January 1, or such other date as recommended by the committee and approved by the Secretary, handlers holding excess cranberries shall submit to the committee a written plan outlining procedures for the systematic disposal of such cranberries in the outlets prescribed in § 929.61.
(c) Prior to March 1, or such other date as recommended by the committee and approved by the Secretary, all excess cranberries shall be disposed of pursuant to § 929.61.
Reports and Records
§ 929.60 Handling for special purposes.
Regulations in effect pursuant to § 929.10, § 929.41, § 929.47, § 929.48, § 929.49, § 929.51, § 929.52, or § 929.53 or any combination thereof, may be modified, suspended, or terminated to facilitate handling of excess cranberries for the following purposes:
(a) Charitable institutions;
(b) Research and development projects described pursuant to § 929.61;
(c) Any nonhuman food use;
(d) Foreign markets, except Canada; and
(e) Other purposes which may be recommended by the committee and approved by the Secretary.
§ 929.61 Outlets for excess cranberries.
(a) Noncommercial outlets. Excess cranberries may be disposed of in noncommercial outlets that the committee finds, with the approval of the Secretary, meet the requirements outlined in paragraph (c) of this section. Noncommercial outlets include, but are not limited to:
(1) Charitable institutions; and
(2) Research and development projects.
(b) Noncompetitive outlets. Excess cranberries may be sold in outlets that the committee finds, with the approval of the Secretary, are noncompetitive with established markets for regulated cranberries and meet the requirements outlined in paragraph (c) of this section. Noncompetitive outlets include but are not limited to:
(1) Any nonhuman food use; and
(2) Other outlets established by the committee with the approval of the Secretary.
(c) Requirements. The handler disposing of or selling excess cranberries into noncompetitive or noncommercial outlets shall meet the following requirements, as applicable:
(1) Charitable institutions. A statement from the charitable institution shall be submitted to the committee showing the quantity of cranberries received and certifying that the institution will consume the cranberries;
(2) Research and development projects. A report shall be given to the committee describing the project, quantity of cranberries contributed, and date of disposition;
(3) Nonhuman food use. Notification shall be given to the committee at least 48 hours prior to such disposition;
(4) Other outlets established by the committee with the approval of the Secretary. A report shall be given to the committee describing the project, quantity of cranberries contributed, and date of disposition.
(d) The storage and disposition of all excess cranberries withheld from handling shall be subject to the supervision and accounting control of the committee.
(e) The committee, with the approval of the Secretary, may establish rules and regulations for the implementation and operation of this section.
§ 929.62 Reports.
(a) Grower report. Each grower shall file a report with the committee by January 15 of each crop year, or such other date as determined by the committee, with the approval of the Secretary, indicating the following:
(1) Total acreage harvested and whether owned or leased.
(2) Total commercial cranberry sales in barrels from such acreage.
(3) Amount of acreage either in production, but not harvested or taken out of production and the reason(s) why.
(4) Amount of new or replanted acreage coming into production.
(5) Name of the handler(s) to whom commercial cranberry sales were made.
(6) Such other information as may be needed for implementation and operation of this section.
(b) Inventory. Each handler engaged in the handling of cranberries or cranberry products shall, upon request of the committee, file promptly with the committee a certified report, showing such information as the committee shall specify with respect to any cranberries and cranberry products which were held by them on such date as the committee may designate.
(c) Receipts. Each handler shall, upon request of the committee, file promptly with the committee a certified report as to each quantity of cranberries acquired during such period as may be specified, and the place of production.
(d) Handling reports. Each handler shall, upon request of the committee, file promptly with the committee a certified report as to the quantity of cranberries handled during any designated period or periods.
(e) Withheld and excess cranberries. Each handler shall, upon request of the committee, file promptly with the committee a certified report showing, for such period as the committee may specify, the total quantity of cranberries withheld from handling or held in excess, in accordance with §§ 929.49 and 929.54, the portion of such withheld or excess cranberries on hand, and the quantity and manner of disposition of any such withheld or excess cranberries disposed of.
(f) Other reports. Upon the request of the committee, with the approval of the Secretary, each handler shall furnish to the committee such other information with respect to the cranberries and cranberry products acquired and disposed of by such person as may be necessary to enable the committee to exercise its powers and perform its duties under this part.
(g) The committee may establish, with the approval of the Secretary, rules and regulations for the implementation and operation of this section.
§ 929.63 Records.
Each handler shall maintain such records of all cranberries acquired, withheld from handling, handled, and otherwise disposed of as will substantiate the required reports and as may be prescribed by the committee. All such records shall be maintained for not less than three years after the termination of the crop year in which the transactions occurred or for such lesser period as the committee may direct.
§ 929.64 Verification of reports and records.
The committee, through its duly authorized agents, during reasonable business hours, shall have access to any handler’s premises where applicable records are maintained for the purpose of assuring compliance and checking and verifying records and reports filed by such handler.
§ 929.65 Confidential information.
All reports and records furnished or submitted by handlers to the committee and its authorized agents which include data or information constituting a trade secret or disclosing the trade position, financial condition, or business operations of the particular handler from whom received, shall be received by and at all times kept in the custody and under the control of one or more employees of the committee, who shall disclose such information to no person other than the Secretary.
Miscellaneous Provisions
§ 929.66 Compliance.
Except as provided in this part, no person shall handle cranberries, the handling of which has been prohibited by the Secretary in accordance with the provisions of this part; and no person shall acquire or handle cranberries except in conformity with the provisions of this part and the regulations issued hereunder.
§ 929.67 Right of the Secretary.
The members of the committee (including successors and alternates), and any agents, employees, or representatives thereof, shall be subject to removal or suspension by the Secretary at any time. Each and every regulation, decision, determination, or other act of the committee shall be subject to the continuing right of the Secretary to disapprove of the same at any time. Upon such disapproval, the disapproved action of the committee shall be deemed null and void, except as to acts done in reliance thereon or in accordance therewith prior to such disapproval by the Secretary.
§ 929.68 Effective time.
The provisions of this part, and of any amendment thereto, shall become effective at such time as the Secretary may declare above his signature and shall continue in force until terminated in one of the ways specified in § 929.68.
§ 929.69 Termination.
(a) The Secretary may at any time terminate the provisions of this part by giving at least one day’s notice by means of a press release or in any other manner in which he may determine.
(b) The Secretary shall terminate or suspend the operation of any or all of the provisions of this part whenever he finds that such provisions do not tend to effectuate the declared policy of the act.
(c) The Secretary shall terminate the provisions of this part whenever he finds by referendum or otherwise that such termination is favored by a majority of the growers: Provided, That such majority has, during the current fiscal year, produced more than 50 percent of the volume of the cranberries which were produced within the production area. Such termination shall become effective on the last day of July subsequent to the announcement thereof by the Secretary.
(d) The Secretary shall conduct a referendum during the month of May 1975 to ascertain whether continuance of this part is favored by the growers as set forth in paragraph (c) of this section. The Secretary shall conduct such a referendum during the month of May of every fourth year thereafter.
(e) The provisions of this part shall, in any event, terminate whenever the provisions of the act authorizing them cease to be effective.
§ 929.70 Proceedings after termination.
(a) Upon the termination of the provisions of this part, the committee shall, for the purpose of liquidating the affairs of the committee, continue as trustees of all the funds and property then in its possession, or under its control, including claims for any funds unpaid or property not delivered at the time of such termination.
(b) The said trustees shall (1) continue in such capacity until discharged by the Secretary; (2) from time to time account for all receipts and disbursements and deliver all property on hand, together with all books and records of the committee and of the trustees, to such persons as the Secretary may direct; and (3) upon the request of the Secretary, execute such assignments or other instruments necessary or appropriate to vest in such person full title and right to all of the funds, property, and claims vested in the committee or the trustees pursuant thereto.
(c) Any person to whom funds, property, or claims have been transferred or delivered, pursuant to this section, shall be subject to the same obligation imposed upon the committee and upon the trustees.
§ 929.71 Effect of termination or amendment.
Unless otherwise expressly provided by the Secretary, the termination of this part or of any regulation issued pursuant to this part, 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 part or any regulation issued hereunder, or (b) release or extinguish any violation of this part or any regulation issued hereunder, or (c) affect or impair any rights or remedies of the Secretary or of any other person with respect to any such violation.
§ 929.72 Duration of immunities.
The benefits, privileges, and immunities conferred upon any person by virtue of this part shall cease upon its termination, except with respect to acts done under and during the existence of this part.
§ 929.73 Agents.
The Secretary may, by designation in writing, name any officer or employee of the United States, or name any agency or division in the United States Department of Agriculture, to act as his agent or representative in connection with any of the provisions of this part.
§ 929.74 Derogation.
Nothing contained in this part is, or shall be construed to be, in derogation or in modification of the rights of the Secretary or of the United States (a) to exercise any powers granted by the act or otherwise, or (b) in accordance with such powers, to act in the premises whenever such action is deemed advisable.
§ 929.75 Personal liability.
No member or alternate member of the committee and no employee or agent of the committee 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 ommission, as such member, alternate, employee, or agent, except for acts of dishonesty, willful misconduct, or gross negligence.
§ 929.76 Separability.
If any provision of this part is declared invalid or the applicability thereof to any person, circumstance, or thing is held invalid, the validity of the remainder of this part or the applicability thereof to any other person, circumstance, or thing shall not be affected thereby.
Subpart B – Administrative Requirements
§ 929.101 Minimum exemption.
The requirements of § 929.41 Assessments and § 929.54 Withholding shall not apply to any handler in a fiscal year during which the handler handles notmore than a total of 300 barrels of cranberries.
§ 929.102 Procedure to determine quantity of screened cranberries in unscreened lots.
The determination pursuant to § 929.54 of the quantity of screened cranberries contained in an unscreened lot shall be made in accordance with the following procedure and on the basis of a sample of representative boxes comprising no less than 2 percent of the cranberries in the lot:
(a) The cranberries in the sample are cleaned to remove chaff, and the boxes of cleaned berries are weighed. The weight of the boxes themselves is then deducted to determine the weight of the cleaned berries. The weight of the cleaned berries is divided by the number of boxes in the sample to obtain the net weight of cleaned cranberries per box. The net weight is multiplied by the number of boxes in the lot to obtain the net weight of the berries in the unscreened lot.
(b) The cleaned berries are run through a separator, having a
(c) The berries from the lower three bounce boards are rerun through the separator.
(d) The berries from the upper four bounce boards are thoroughly mixed and a random cupful (approximately 1 pint) is used to determine, from a count of the sound and unsound berries, the percentage of sound berries in the lot.
(e) Such percentage is adjusted by increasing it by 5 percentage points but not to exceed a total of 100 percent. (This increase makes the sample comparable to lots of screened cranberries, as such lots generally contain an average of 5 percent unsound berries.)
(f) The net weight, as determined in accordance with paragraph (a) of this section, of the berries in the unscreened lot, is multiplied by the adjusted percentage to obtain the quantity of screened cranberries in the unscreened lot.
§ 929.103 Inspection procedure.
(a) Inspection of withheld cranberries shall be limited to any plant, storage facility, or other location, within the production area where facilities suitable to the inspection service are available for sampling, weighing, and inspection of cranberries.
(b) The handler offering any lot of cranberries for inspection shall furnish the necessary labor and pay the costs of moving, weighing, and otherwise making available the sample the inspector chooses for inspection. The size of the sample shall be determined by the inspector. In the case of inspection of a lot of unscreened cranberries, the sample shall be screened by the handler under the supervision of the inspector and the inspection certificate shall show the quantity of cranberries in such lot which meets the requirements established for withheld cranberries pursuant to § 929.54(c).
§ 929.104 Outlets for excess cranberries.
(a) In accordance with § 929.61, excess cranberries may be diverted only to the following noncommercial or noncompetitive outlets:
(1) Foreign countries, except Canada.
(2) Charitable institutions.
(3) Any nonhuman food use.
(4) Research and development projects approved by the committee dealing with the development of foreign and domestic markets, including, but not limited to dehydration, radiation, freeze drying, or freezing of cranberries.
(b) [Reserved][
§ 929.105 Reporting.
(a) Each report required to be filed with the committee pursuant to §§ 929.6 and 929.48 shall be mailed to the committee office or delivered to that office. If the report is mailed, it shall be deemed filed when postmarked.
(b) Certified reports shall be filed with the committee, on a form provided by the committee, by each handler not later than January 20, May 20, and July 20 of each fiscal period and by September 20 of the succeeding fiscal period showing:
(1) The total quantity of cranberries the handler acquired and the total quantity of cranberries and Vaccinium oxycoccus cranberries the handler handled from the beginning of the reporting period indicated through December 31, April 30, June 30, and August 31, respectively, and
(2) The respective quantities of cranberries and Vaccinium oxycoccus cranberries and cranberry products and Vaccinium oxycoccus cranberry products held by the handler on January 1, May 1, June 30, and August 31 of each fiscal period.
(c) Beginning with crop year 2018-19, the due date for the grower report required under § 929.62(a) is changed to March 1.
§ 929.106 Fiscal period.
The fiscal period specified in § 929.6 of this part which began September 1, 1968, and ends on August 31, 1969, is changed to include the period of August 1, through August 31, 1968. Thereafter, the fiscal period will begin on September 1 and end on August 31 of the following year.
§ 929.107 Conversion.
During a year of volume regulation, cranberry concentrate and other processed products made from excess or restricted cranberries harvested in that year may be diverted according to the provisions of this part. Any handler disposing of concentrate or other processed products must report the whole-berry equivalent to the Committee so that all excess or restricted cranberries are accounted for and reported per rules and regulations in effect. Table 1-Conversion Table provides a conversion rate for concentrate to barrels of whole berries based on Brix average by production region. Should requests be made to use other processed products for diversion, conversion rates for those products would be provided by the Committee based on information provided by the requesting handler.
Table 1 to § 929.107 – Conversion Table
| Region | Brix average | Concentrate yield for one barrel of cranberries |
|---|---|---|
| Oregon | 9.8 | 1.91 gallons 50 Brix concentrate. |
| Washington | 9.3 | 1.81 gallons 50 Brix concentrate. |
| New Jersey | 8.8 | 1.72 gallons 50 Brix concentrate. |
| Wisconsin | 8.7 | 1.70 gallons 50 Brix concentrate. |
| Massachusetts | 8.4 | 1.64 gallons 50 Brix concentrate. |
| All others | 8.7 | 1.70 gallons 50 Brix concentrate. |
§ 929.108 Outlets for restricted cranberries.
In accordance with § 929.57, restricted cranberries may be diverted only to the following noncommercial or noncompetitive outlets:
(a) Foreign countries, except Canada, provided that restricted cranberries diverted under this provision may not be converted into canned, frozen, or dehydrated cranberries or other cranberry products by any commercial process, prior to diversion;
(b) Charitable institutions;
(c) Any nonhuman food use, or;
(d) Research and development projects approved by the Committee dealing with the development of foreign and domestic markets, including, but not limited to dehydration radiation, freeze drying, or freezing of cranberries.
§ 929.110 Transfers or sales of cranberry acreage.
(a) Sales or transfers of cranberry acreage shall be reported by the transferor and transferee to the committee, in writing, on forms provided by the committee. Completed forms shall be sent to the committee office not later than 30 days after the transaction has occurred.
(b) Upon transfer of all or a portion of a growers’ acreage, the committee shall be provided with certain information on the forms it will provide to the parties. The transferor and transferee must provide the following information:
(1) Crop records for the acreage involved;
(2) Annual production and sales for each crop year on the acreage involved, either in total, or for each individual parcel; and
(3) Such other information as the committee deems necessary.
(c) Cranberry acreage sold or transferred shall be recognized in connection with the issuance of sales history as follows:
(1) If a grower sells all of the acreage comprising the entity, all prior sales history shall accrue to the purchaser;
(2) If a grower sells only a portion of the acreage comprising the entity from which prior sales have been made, the purchaser and the seller must agree as to the amount of sales history attributed to each portion and shall provide, on a form provided by the committee, sufficient information so that sales are shown separately by crop year. However, the sales history attributed to each portion shall not exceed the total sales history, as determined by the committee, for such acreage at the time of transfer.
(d) During a year of regulation, all transfers of growers’ sales histories for partial or total leases of acreage shall be received in the Committee office by close of business on July 31.
§ 929.125 Committee review procedures.
Growers may request, and the Committee may grant, a review of determinations made by the Committee pursuant to section 929.48, in accordance with the following procedures:
(a) If a grower is dissatisfied with a determination made by the Committee which affects such grower, the grower may submit to the Committee within 30 days after receipt of the Committee’s determination of sales history, a request for a review by an appeals subcommittee composed of two independent and two cooperative representatives, as well as a public member. Such appeals subcommittee shall be appointed by the Chairman of the Committee. Such grower may forward with the request any pertinent material for consideration of such grower’s appeal.
(b) The subcommittee shall review the information submitted by the grower and render a decision within 30 days of receipt of such appeal. The subcommittee shall notify the grower of its decision, accompanied by the reasons for its conclusions and findings.
(c) The grower may further appeal to the Secretary, within 15 days after notification of the subcommittee’s findings, if such grower is not satisfied with the appeals subcommittee’s decision. The Committee shall forward a file with all pertinent information related to the grower’s appeal. The Secretary shall inform the grower and all interested parties of the Secretary’s decision. All decisions by the Secretary are final.
§ 929.142 Reserve.
(a) It is necessary and appropriate to establish and maintain a reserve in an amount not to exceed approximately one fiscal period’s operational expenses to be used in accordance with the provisions of § 929.42 of the marketing agreement and this part, and
(b) Assessments collected for each of the fiscal periods ended July 31, 1963; July 31, 1965; July 31, 1966; and July 31, 1967, were in excess of expenses for such periods. The committee is hereby authorized to place excess funds in said reserve.
§ 929.149 Determination of sales history.
A sales history for each grower shall be computed by the Committee in the following manner when a producer allotment volume regulation is in effect.
(a) For each grower with acreage with 6 or more years of sales history, a new sales history shall be computed using an average of the highest 4 of the most recent 6 years of sales. If the grower has acreage with 5 years of sales history and such acreage was planted more than 6 years ago, a new sales history shall be computed by averaging the highest 4 of the 5 years.
(b) For growers whose acreage has 5 years of sales history and was planted 6 years ago or later, the sales history shall be computed by averaging the highest 4 of the 5 years and shall be adjusted as provided in paragraph (d). For growers whose acreage has 4 years of sales history, the sales history shall be computed by averaging all 4 years and shall be adjusted as provided in paragraph (d). For growers whose acreage has 1 to 3 years of sales history, the sales history shall be computed by dividing the total years sales by 4 and shall be adjusted as provided in paragraph (d).
(c) For growers with acreage with no sales history or for the first harvest of re-planted acres, the sales history will be 75 barrels per acre for acres planted or re-planted 1 year ago and first harvested in the current crop year and 156 barrels per acre for acres planted or re-planted 2 years ago and first harvested in the current crop year.
(d) In addition to the sales history computed in accordance with paragraphs (a) and (b) of this section, additional sales history shall be assigned to growers with acreage planted in the last 6 years. The additional sales histories depending on the date the acreage is planted are shown in Table 1.
Table 1 – Additional Sales History Assigned to Acreage
| Date planted | Additional current crop year sales history per acre |
|---|---|
| 6 years ago | 49 |
| 5 years ago | 117 |
| 4 years ago | 157 |
| 3 years ago | 183 |
| 2 years ago | 156 |
| 1 year ago | 75 |
§ 929.150 Transfer or assignment of sales history.
(a) If indebtedness is incurred with regard to the acreage to which the cranberries are attributed, and on which a sales history is established, the sales history holder may transfer or assign the sales history solely as security for the loan. During the existence of such indebtedness no further transfer or assignment of sales history by the sales history holder shall be recognized by the committee unless the lender agrees thereto: Provided, That a copy of such loan agreement or assignment shall be filed with the committee before any right expressed therein, with regard to the sales history, shall be recognized by the committee under this paragraph (a).
(b) This regulation shall not in any way be construed to affect the right of the Secretary of Agriculture to amend, modify or terminate this regulation, or the marketing order under which it is issued as provided by law.
§ 929.152 Delinquent assessments.
There shall be a late payment charge of five percent and an interest charge of 1
§ 929.157 Handler diversion.
(a) Methods of diversion. Handlers may divert cranberries by disposing of cranberries or cranberry products. Diversion by disposal may take place prior to placing the cranberries into the processing line or after processing. Handlers may also divert cranberries or cranberry products to approved, noncompetitive outlets for withheld fruit. Whole berries or processed products diverted must come from the current crop year. Any information collected of a confidential and/or proprietary nature would be held in confidence pursuant to § 929.65.
(1) Diversion through disposal. This type of diversion is to be carried out under the supervision of the Committee, and the cost of such supervision is to be paid by the handler. Handlers shall notify the Committee of their intent to dispose of cranberries or cranberry products using Form CMC-DISP as specified in § 929.162(c). Following notification, a Committee inspector will meet with the handler to verify the documentation provided and, when possible, witness the destruction. The Committee inspector may request receipts, visual proof, or any other information needed to support the disposal as reported. Once the verification process has been completed, the Committee inspector will sign the certification section of Form CMC-DISP and return it to the Committee.
(2) Diversion through noncompetitive outlets. To divert cranberries or cranberry products to a noncompetitive outlet, handlers must apply to the Committee using Form CMC-OUT as specified in § 929.162(d) prior to each disposal activity of this type. The Committee will review the information and approve or disapprove the diversion request. Once the cranberries or cranberry products are delivered to the approved noncompetitive outlets, the Committee must receive satisfactory documentation of the transaction using Form CMC-CONF as specified in § 929.162(e).
(b) Committee notification and handler plan. Any handler intending to divert cranberries or cranberry products pursuant to § 929.54 must notify the Committee of such intent and provide a plan by June 1 that shows how the handler intends to meet the restricted percentage obligation. The handler shall submit this plan using Form CMC-JUNE as specified in the reporting requirements under § 929.162(a). The handler will have until August 31 to fulfill the plan, by which time the handler shall submit a final report detailing how the restricted percentage obligation was met using Form CMC-AUG as specified in § 929.162(b).
(c) Request for review. (1) If a handler is dissatisfied with a determination made by the Committee which affects such handler, the handler may submit to the Committee within 30 days after receipt of the Committee’s determination, a request for a review by an appeals subcommittee composed of two independent growers and two cooperative representatives, as well as a public member. The appeals subcommittee shall be appointed by the Committee chairperson. The handler may forward with the request any pertinent materials for consideration of the appeal.
(2) The subcommittee shall review the information submitted by the handler and render a decision within 30 days of receipt of such appeal. The subcommittee shall notify the handler of its decision, accompanied by the reasons for its conclusions and findings.
(3) The handler may further appeal to the Secretary, within 15 days after notification of the subcommittee’s findings, if such handler is not satisfied with the appeals subcommittee’s decision. The Committee shall forward a file to the Secretary with all pertinent information related to the handler’s appeal. The Secretary shall inform the handler and all interested parties of the Secretary’s decision. All decisions by the Secretary are final.
§ 929.158 Exemptions.
If fresh and organically-grown cranberries are exempted from the volume regulation as recommended by the Committee and approved by the Secretary, the following provisions to these exemptions shall apply:
(a) Sales of packed-out cranberries intended for sales to consumers in fresh form shall be exempt from volume regulation provisions. Fresh cranberries are also sold dry in bulk boxes generally weighing less than 30 pounds. Fresh cranberries intended for retail markets are not sold wet. If any such fresh cranberries are diverted into processing outlets, the exemption no longer applies. Growers who intend to handle fresh fruit shall notify the committee of their intent to sell over 300 barrels of fresh fruit.
(b) Sales of organically-grown cranberries are exempt from volume regulation provisions. In order to receive an exemption for organic cranberry sales, such cranberries must be certified as such by a third party organic certifying organization acceptable to the committee.
(c) Handlers shall qualify for the exemptions in paragraphs (a) and (b) of this section by filing the amount of packed-out fresh or organic cranberry sales on the grower acquisition form.
§ 929.159 Excess cranberries.
(a) Beginning with crop year 2018-19, handlers holding excess cranberries shall submit to the Committee a written plan outlining procedures for the systematic disposal of such cranberries as specified in § 929.59(b) by March 1.
(b) Beginning with crop year 2018-19, all excess cranberries shall be diverted as specified in § 929.59(c) prior to August 31.
§ 929.160 Public member eligibility requirements and nomination procedures.
(a) Public member and alternate member candidates shall not represent an agricultural interest and shall not have a financial interest in, or be associated with the production, processing, financing, or marketing of cranberries.
(b) Public member and alternate member candidates should be able to devote sufficient time to attend committee activities regularly and to familiarize themselves with the background and economies of the cranberry industry.
(c) Names of candidates together with evidence of qualification for public membership on the Cranberry Marketing Committee shall be submitted to the committee at its business office.
(d) Questionnaires shall be sent by the committee to those persons submitted as candidates to determine their eligibility and interest in becoming a public member.
(e) The names of persons nominated by the committee for the public member and alternate positions shall be submitted to the Secretary with such information as deemed pertinent by the committee or as requested by the Secretary.
(f) Public members shall serve a two-year term which coincides with the term of office of industry members of the committee.
§ 929.161 Nomination and balloting procedures for candidates other than the major cooperative marketing organization.
(a) During the nomination process, each eligible candidate shall indicate if he/she is seeking a position on the Committee as a member or alternate member.
(b) Ballots provided by the Committee shall include the names of those candidates seeking member positions on the Committee and those seeking alternate member positions.
(c) All ballots shall be received by a date designated by the Committee office staff. Votes for member positions and alternate member positions shall be tabulated separately. In districts entitled to one member, the successful candidate shall be the person receiving the highest number of votes as a member or alternate member. In districts entitled to two members, the successful candidates shall be those receiving the highest and second highest number of votes as members or alternate members. Those names shall then be forwarded to the Secretary for selection.
§ 929.162 Handler diversion reports.
(a) Handler withholding report. Handlers shall submit to the Committee, by June 1, a handler withholding report. The report shall be submitted using Form CMC-JUN and contain the following information:
(1) The name and address of the handler;
(2) The amount of cranberries acquired;
(3) The amount of cranberries withheld by disposal;
(4) The amount of cranberries diverted to noncompetitive outlets;
(5) The form of cranberry products withheld; and
(6) The total withholding obligation.
(b) Handler Withholding Final Report. Handlers shall submit to the Committee, by August 31, a final handler withholding report. The final report shall be submitted using Form CMC-AUG and contain the following information:
(1) The name and address of the handler;
(2) The seasonal total of cranberries acquired;
(3) The seasonal total of cranberries withheld by disposal;
(4) The seasonal total of cranberries diverted to noncompetitive outlets;
(5) The form of cranberry products withheld during the season; and
(6) The total withholding obligation.
(c) Handler disposal certification. Handlers shall submit to the Committee Form CMC-DISP for each lot of cranberries or cranberry products to be diverted through disposal. The form shall contain the following information:
(1) Name and address of the handler;
(2) Marketable cranberries in whole fruit or processed cranberries converted to whole fruit equivalent disposed of in this lot;
(3) Form of cranberries;
(4) Volume if in processed form;
(5) Lot details;
(6) Disposal site and method; and
(7) Inspector certification of the completion of the disposal.
(d) Handler application for outlets for withheld fruit. Handlers shall submit to the Committee Form CMC-OUT for approval for each lot of cranberries or cranberry products to be diverted to noncompetitive outlets in accordance with § 929.57. The form shall contain the following information:
(1) Name and address of the handler;
(2) Project type;
(3) Product form;
(4) Quantity of cranberries in whole fruit or processed cranberries converted to whole fruit equivalent diverted;
(5) A description of the project and how the cranberries will be used.
(e) Third-party confirmation of receipt of withheld fruit. Handlers shall submit to the Committee Form CMC-CONF for each diversion to a noncompetitive outlet to verify the receipt of the cranberries or cranberry product by the approved outlet. The form shall contain the following information:
(1) Name and address of the handler;
(2) Project type;
(3) Product form;
(4) Quantity of cranberries in whole fruit or processed cranberries converted to whole fruit equivalent utilized; and
(5) Confirmation or documentation of receipt from the receiving outlet.
(f) Handler withholding appeal. Handlers may appeal a determination made by the Committee relating to a handler withholding regulation using the appeals process outlined in § 929.157(c) and Form CMC-APPL, which shall contain the following information:
(1) Name and address of the handler;
(2) Reason for appeal; and
(3) Information in support of appeal.
Subpart C – Assessment Rate
§ 929.236 Assessment rate.
On and after September 1, 2006, an assessment rate of $.28 per barrel is established for cranberries.
§ 929.250 Marketable quantity and allotment percentage for the 2000-2001 crop year.
The marketable quantity for the 2000-2001 crop year is set at 5.468 million barrels and the allotment percentage is designated at 85 percent. The marketable quantity may be adjusted to retain the 85 percent allotment percentage if the total industry sales history increases due to established growers receiving additional sales history on acreage with four years sales or less.
§ 929.251 Marketable quantity and allotment percentage for the 2001-2002 crop year.
The marketable quantity for the 2001-2002 crop year is set at 4.6 million barrels and the allotment percentage is designated at 65 percent. Fresh and organically grown fruit shall be exempt from the volume regulation provisions of this section.
§ 929.252 Free and restricted percentages for the 2017-18 crop year.
(a) The percentages for cranberries handled by handlers during the crop year beginning on September 1, 2017, which shall be free and restricted, respectively are designated as follows: Free percentage, 85 percent and restricted percentage, 15 percent.
(b) Handlers have the option to process restricted cranberries into dehydrated cranberries or other processed products. Handlers also have the option to divert concentrate or other processed products as provided in § 929.107 to account for up to 50 percent of their restriction.
(c) Organically grown fruit shall be exempt from the volume regulation requirements of this section. Small handlers who process less than 125,000 barrels during the 2017-18 fiscal year are exempt from the restriction. Any handlers who do not have carryover inventory at the end of the 2017-18 fiscal year are also exempt.
§ 929.253 Marketable quantity and allotment percentage for the 2018-19 crop year.
(a) The marketable quantity for the 2018-19 crop year is set at 7.275 million barrels and the allotment percentage is designated at 75 percent.
(b) Organically grown fruit shall be exempt from the volume regulation requirements of this section. Small handlers who processed less than 125,000 barrels during the 2017-18 fiscal year are exempt from the volume regulation requirements of this section. Any handler who did not have carryover inventory at the end of the 2017-18 fiscal year is also exempt from the volume regulation requirements of this section.
(c) Handlers have the option to process up to 50 percent of the excess cranberries received over their growers’ allotments into dehydrated cranberries or other processed products. Handlers utilizing this option shall divert an amount of 2018-19 processed products equivalent to the volume of excess cranberries processed as provided for in § 929.107. The remaining volume of excess cranberries must be diverted as whole fruit.
PART 930 – TART CHERRIES GROWN IN THE STATES OF MICHIGAN, NEW YORK, PENNSYLVANIA, OREGON, UTAH, WASHINGTON, AND WISCONSIN
Subpart A – Order Regulating Handling
Definitions
§ 930.1 Act.
Act means Public Act No. 10, 73d Congress (May 12, 1933), as amended, and as reenacted and amended by the Agricultural Marketing Agreement Act of 1937, as amended (48 Stat. 31, as amended, 68 Stat. 906, 1047; 7 U.S.C. 601 et seq.).
§ 930.2 Board.
Board means the Cherry Industry Administrative Board established pursuant to § 930.20.
§ 930.3 Cherries.
Cherries means all tart/sour cherry varieties grown in the production area classified botanically as Prunus cerasas, or hybrids of Prunus cerasas by Prunus avium, or Prunus cerasas by Prunus fruticosa.
§ 930.4 Crop year.
Crop year means the 12-month period beginning on July 1 of any year and ending on June 30 of the following year, or such other period as the Board, with the approval of the Secretary, may establish.
§ 930.5 Department or USDA.
Department or USDA means the United States Department of Agriculture.
§ 930.6 District.
District means one of the subdivisions of the production area described in § 930.20(c), or such other subdivisions as may be established pursuant to § 930.21, or any subdivision added pursuant to § 930.52.
§ 930.7 Fiscal period.
Fiscal period is synonymous with fiscal year and means the 12-month period beginning on July 1 of any year and ending on June 30 of the following year, or such other period as the Board, with the approval of the Secretary, may establish: Provided, that the initial fiscal period shall begin on the effective date of this part.
§ 930.8 Free market tonnage percentage cherries.
Free market tonnage percentage cherries means that proportion of cherries handled in a crop year which are free to be marketed in normal commercial outlets in that crop year under any volume regulation established pursuant to § 930.50 or § 930.51 and, in the absence of a restricted percentage being established for a crop year pursuant to § 930.50 or § 930.51, means all cherries received by handlers in that crop year.
§ 930.9 Grower.
Grower is synonymous with producer and means any person who produces cherries to be marketed in canned, frozen, or other processed form and who has a proprietary interest therein: Provided that, the term grower shall not include a person who produces cherries to be marketed exclusively for the fresh market in an unpitted condition.
§ 930.10 Handle.
Handle means the process to brine, can, concentrate, freeze, dehydrate, pit, press or puree cherries, or in any other way convert cherries commercially into a processed product, or divert cherries pursuant to § 930.59, or to otherwise place cherries into the current of commerce within the production area or from the area to points outside thereof: Provided, That the term handle shall not include:
(a) The brining, canning, concentrating, freezing, dehydration, pitting, pressing or the converting, in any other way, of cherries into a processed product for home use and not for resale.
(b) The transportation within the production area of cherries from the orchard where grown to a processing facility located within such area for preparation for market.
(c) The delivery of such cherries to such processing facility for such preparation.
(d) The sale or transportation of cherries by a grower to a handler of record within the production area.
(e) The sale of cherries in the fresh market in an unpitted condition.
§ 930.11 Handler.
Handler means any person who first handles cherries or causes cherries to be handled for his or her own account.
§ 930.12 Person.
Person means an individual, partnership, corporation, association, or any other business unit.
§ 930.13 Primary inventory reserve.
Primary inventory reserve means that portion of handled cherries that are placed into handlers’ inventories in accordance with any restricted percentage established pursuant to § 930.50 or § 930.51.
§ 930.14 Production area.
Production area means the States of Michigan, New York, Pennsylvania, Oregon, Utah, Washington and Wisconsin.
§ 930.15 Restricted percentage cherries.
Restricted percentage cherries means that proportion of cherries handled in a crop year which must be either placed into handlers’ inventories in accordance with § 930.55 or § 930.57 or otherwise diverted in accordance with § 930.59 and thereby withheld from marketing in normal commercial outlets under any volume regulation established pursuant to § 930.50 or § 930.51.
§ 930.16 Sales constituency.
Sales constituency means a common marketing organization or brokerage firm or individual representing a group of handlers and growers. An organization which receives consignments of cherries and does not direct where the consigned cherries are sold is not a sales constituency.
§ 930.17 Secondary inventory reserve.
Secondary inventory reserve means any portion of handled cherries voluntarily placed into inventory by a handler under § 930.57.
§ 930.18 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.
Administrative Body
§ 930.20 Establishment and membership.
(a) There is hereby established a Cherry Industry Administrative Board, the membership of which shall be calculated in accordance with paragraph (b) of this section. The number of Board members may vary, depending upon the production levels of the districts. All but one of these members shall be qualified growers and handlers selected pursuant to this part, each of whom shall have an alternate having the same qualifications as the member for whom the person is an alternate. One member of the Board shall be a public member who, along with his or her alternate, shall be elected by the Board from the general public.
(b) District representation on the Board shall be based upon the previous three-year average production in the district and shall be established as follows:
(1) Up to and including 10 million pounds shall have 1 member;
(2) Greater than 10 and up to and including 40 million pounds shall have 2 members;
(3) Greater than 40 and up to and including 80 million pounds shall have 3 members; and
(4) Greater than 80 million pounds shall have 4 members; and
(5) Allocation of the seats in each district shall be as follows but subject to the provisions of paragraphs (d), (e) and (f) of this section:
| District type | Grower members | or | Handler members |
|---|---|---|---|
| Up to and including 10 million pounds | 1 | 1 | |
| More than 10 and up to 40 million pounds | 1 | 1 | |
| More than 40 and up to 80 million pounds | 1 | 2 | |
| More than 80 million pounds | 2 | 2 |
(c) Upon the adoption of this part, the production area shall be divided into the following described subdivisions for purposes of this section:
(d) The ratio of grower to handler representation in districts with three members shall alternate each time the term of a Board member from the representative group having two seats expires. During the initial period of the order, the ratio shall be as designated in paragraph (b) of this section.
(e) Board members from districts with one seat may be either grower or handler members and will be nominated and elected as outlined in § 930.23.
(f) If the 3-year average production of a district changes so that a different number of seats should be allocated to the district, then the Board will be reestablished by the Secretary, and such seats will be filled according to the applicable provisions of this part. Each district’s 3-year average production shall be recalculated annually as soon as possible after each season’s final production figures are known.
(g) In order to achieve a fair and balanced representation on the Board, and to prevent any one sales constituency from gaining control of the Board, not more than one Board member may be from, or affiliated with, a single sales constituency in those districts having more than one seat on the Board; Provided, That this prohibition shall not apply in a district where such a conflict cannot be avoided. There is no prohibition on the number of Board members from differing districts that may be elected from a single sales constituency which may have operations in more than one district. However, as provided in § 930.23, a handler or grower may only nominate Board members and vote in one district.
(h) Subject to the approval of the Secretary, the Board shall at its first meeting and annually thereafter elect from among any of its members a chairperson and a vice-chairperson and may elect other appropriate officers.
(i) The Board, with the approval of the Secretary, may establish rules and regulation’s necessary and incidental to the administration of this section.
§ 930.21 Reestablishment.
Districts, subdivisions of districts, and the distribution of representation among growers and handlers within a respective district or subdivision thereof, or among the subdivision of districts, may be reestablished by the Secretary, subject to the provisions of § 930.23, based upon recommendations by the Board. In recommending any such changes, the Board shall consider:
(a) The relative importance of producing areas;
(b) Relative production;
(c) The geographic locations of producing areas as they would affect the efficiency of administration of this part;
(d) Shifts in cherry production within the districts and the production area;
(e) Changes in the proportion and role of growers and handlers within the districts; and
(f) Other relevant factors.
§ 930.22 Term of office.
The term of office of each member and alternate member of the Board shall be for three fiscal years: Provided that, of the nine initial members and alternates from the combination of Districts 1, 2 and 3, one-third of such initial members and alternates shall serve only one fiscal year, one-third of such members and alternates shall serve only two fiscal years, one-third of such members and alternates shall serve three fiscal years; and one-half of the initial members and alternates from Districts 4 and 7 shall serve only one fiscal year, and one-half of such initial members and alternates shall serve two fiscal years (determination of which of the initial members and their alternates shall serve for 1 fiscal year, 2 fiscal years, or 3 fiscal years, in both instances, shall be by lot). Members and alternate members shall serve in such capacity for the portion of the term of office for which they are selected and have qualified until their respective successors are selected, have qualified and are appointed. The consecutive terms of office of grower, handler and public members and alternate members shall be limited to two 3-year terms, excluding any initial term lasting less than 3 years. The term of office of a member and alternate member for the same seat shall be the same. If this part becomes effective on a date such that the initial fiscal period is less than six months in duration, then the tolling of time for purposes of this subsection shall not begin until the beginning of the first 12-month fiscal period.
§ 930.23 Nomination and election.
(a) Forms and ballots. Nomination and election of initial and successor members and alternate members of the Board shall be conducted through petition forms and election ballots distributed to all eligible growers and handlers via the U.S. Postal Service or other means, as determined by the Secretary. Similar petition forms and election ballots shall be used for both members and alternate members and any requirements for election of a member shall apply to the election of an alternate.
(b) Nomination. (1) In order for the name of a grower nominee to appear on an election ballot, the nominee’s name must be submitted with a petition form, to be supplied by the Secretary or the Board, which, except in District 8, contains at least five signatures of growers, other than the nominee, from the nominee’s district who are eligible to vote in the referendum. Grower petition forms in District 8 must be signed by only two growers, other than the nominee, from the nominee’s district.
(2) In order for the name of a handler nominee to appear on an election ballot, the nominee’s name must be submitted with a petition form, to be supplied by the Secretary or the Board, which contains the signature of one or more handler(s), other than the nominee, from the nominee’s district who is or are eligible to vote in the election and that handle(s) a combined total of no less than five percent (5%) of the average production, as that term is used § 930.20, handled in the district. Provided, that this requirement shall not apply if its application would result in a sales constituency conflict as provided in § 930.20(g). The requirement that the petition form be signed by a handler other than the nominee shall not apply in any district where fewer than two handlers are eligible to vote.
(3) Only growers, including duly authorized officers or employees of growers, who are eligible to serve as grower members of the Board shall participate in the nomination of grower members and alternate grower members of the Board. No grower shall participate in the submission of nominees in more than one district during any fiscal period. If a grower produces cherries in more than one district, that grower may select in which district he or she wishes to participate in the nominations and election process and shall notify the Secretary or the Board of such selection. A grower may not participate in the nomination process in one district and the election process in a second district in the same election cycle.
(4) Only handlers, including duly authorized officers or employees of handlers, who are eligible to serve as handler members of the Board shall participate in the nomination of handler members and alternate handler members of the Board. No handler shall participate in the selection of nominees in more than one district during any fiscal period. If a handler handles cherries in more than one district, that handler may select in which district he or she wishes to participate in the nominations and election process and shall notify the Secretary or the Board of such selection. A handler may not participate in the nominations process in one district and the elections process in a second district in the same election cycle. If a person is a grower and a grower-handler only because some or all of his or her cherries were custom packed, but he or she does not own or lease and operate a processing facility, such person may vote only as a grower.
(5) In districts entitled to only one Board member, both growers and handlers may be nominated for the district’s Board seat. Grower and handler nominations must follow the petition procedures outlined in paragraphs (b)(1) and (b)(2) of this section.
(6) All eligible growers and handlers in all districts may submit the names of the nominees for the public member and alternate public member of the Board.
(7) After the appointment of the initial Board, the Secretary or the Board shall announce at least 180 days in advance when a Board member’s term is expiring and shall solicit nominations for that position in the manner described in this section. Nominations for such position should be submitted to the Secretary or the Board not less than 120 days prior to the expiration of such term.
(c) Election. (1) After receiving nominations, the Secretary or the Board shall distribute ballots via the U.S. Postal Service or other means, as determined by the Secretary, to all eligible growers and handlers containing the names of the nominees by district for the respective seats on the Board, excluding the public voting member seat. The ballots will clearly indicate that growers and handlers may only rank or otherwise vote for nominees in their own district.
(2) Except as provided in paragraph (c)(4) of this section, only growers, including duly authorized officers or employees of growers, who are eligible to serve as grower members of the Board shall participate in the election of grower members and alternate grower members of the Board. No grower shall participate in the election of Board members in more than one district during any fiscal period. If a grower produces cherries in more than one district, the grower must vote in the same district in which he or she chose to participate in the nominations process under paragraph (b)(3) of this section. However, if the grower did not participate in the nominations process, he or she may select in which district he or she wishes to vote and shall notify the Secretary or the Board of such selection.
(3)(i) Except as provided in paragraph (c)(4) of this section, only handlers, including duly authorized officers or employees of handlers, who are eligible to serve as handler members of the Board shall participate in the election of handler members and alternate handler members of the Board. No handler shall participate in the election of Board members in more than one district during any fiscal period. If a handler does handle cherries in more than one district, he or she must vote in the same district in which the handler elected to participate in the nominations process under paragraph (b)(4) of this section. However, if a handler did not participate in the nominations process, that handler may select in which district he or she chooses to vote and shall notify the Secretary or the Board of such selection. If a person is a grower and a grower-handler only because some or all of his or her cherries were custom packed, but he or she does not own or lease and operate a processing facility, such person may vote only as a grower.
(ii) To be seated as a handler representative in any district, the successful candidate must receive the support of handler(s) that handled a combined total of no less than five percent (5%), of the average production, as that term is used in § 930.20, handled in the district; Provided, that this paragraph shall not apply if its application would result in a sales constituency conflict as provided in § 930.20(g).
(4) In districts entitled to only one Board member, growers and handlers may vote for either the grower or handler nominee(s) for the single seat allocated to those districts.
(d) The members of the Board appointed by the Secretary pursuant to § 930.24 shall, at the first meeting and whenever necessary thereafter, by at least a two-thirds vote of the entire Board, select individuals to serve as the public member and alternate public member of the Board from the list of nominees received from growers and handlers pursuant to paragraph (b) of this section or from other persons nominated by the Board. The persons selected shall be subject to appointment by the Secretary under § 930.24.
(e) The Board, with the approval of the Secretary, may establish rules and regulations necessary and incidental to the administration of this section.
§ 930.24 Appointment.
The selection of nominees made pursuant to elections conducted under § 930.23(c) shall be submitted to the Secretary in a format which indicates the nominees by district, with the nominee receiving the highest number of votes at the top and the number of votes received being clearly indicated. The Secretary shall appoint from those nominees or from other qualified individuals, the grower and handler members of the Board and an alternate for each such member on the basis of the representation provided for in § 930.20 or as provided for in any reapportionment or reestablishment undertaken pursuant to § 930.21. The public member and alternate public member are nominated by the Board pursuant to § 930.23(d) and shall also be subject to appointment by the Secretary. The Secretary shall appoint from nominees by the Board or from other qualified individuals the public member and the alternate public member.
§ 930.25 Failure to nominate.
If nominations are not made within the time and in the manner prescribed in § 930.23, the Secretary may, without regard to nominations, select the members and alternate members of the Board on the basis of the representation provided for in § 930.20 or as provided for in any reapportionment or reestablishment undertaken pursuant to § 930.21.
§ 930.26 Acceptance.
Each person to be appointed by the Secretary as a member or as an alternate member of the Board shall, prior to such appointment, qualify by advising the Secretary that he/she agrees to serve in the position for which nominated for selection.
§ 930.27 Vacancies.
To fill any vacancy occasioned by the failure of any person appointed as a member or as an alternate member of the Board to qualify, or in the event of the death, removal, resignation, or disqualification of any member or alternate member of the Board, a successor for the unexpired term of such member or alternate member of the Board shall be appointed by the Secretary from the most recent list of nominations for the Board made by growers and handlers, from nominations made by the Board, or from other qualified individuals. Any nominations made by the Board to fill a vacancy must be received by the Secretary within 90 days of the effective date of the vacancy. Board members wishing to resign from the Board must do so in writing to the Secretary.
§ 930.28 Alternate members.
An alternate member of the Board, during the absence of the member for whom that member serves as an alternate, shall act in the place and stead of such member and perform such other duties as assigned. However, if a member is in attendance at a meeting of the Board, an alternate member may not act in the place and stead of such member. In the event a member and his or her alternate are absent from a meeting of the Board, such member may designate, in writing and prior to the meeting, another alternate to act in his or her place: Provided, that such alternate represents the same group (grower or handler) as the member. In the event of the death, removal, resignation or disqualification of a member, the alternate shall act for the member until a successor is appointed and has qualified.
§ 930.29 Eligibility for membership on Cherry Industry Administrative Board.
(a) Each grower member and each grower alternate member of the Board shall be a grower, or an officer or employee of a grower, in the district for which nominated or appointed.
(b) Each handler member and each handler alternate member of the Board shall be a handler, or an officer or employee of a handler, who owns, or leases, and operates a cherry processing facility in the district for which nominated or appointed.
(c) The public member and alternate public member of the Board shall be prohibited from having any financial interest in the cherry industry and shall possess such additional qualifications as may be established by regulation.
§ 930.30 Powers.
The Board shall have the following powers:
(a) To administer this part in accordance with its terms and provisions;
(b) To make rules and regulations to effectuate the terms and provisions of this part;
(c) To receive, investigate, and report to the Secretary complaints of violations of this part; and
(d) To recommend to the Secretary amendments to this part.
§ 930.31 Duties.
The Board shall have, among others, the following duties:
(a) To select such officers, including a chairperson and vice-chairperson, as may be necessary, and to define the duties of such officers and the duties of the chairperson and the vice-chairperson;
(b) To employ or contract with such persons or agents as the Board deems necessary and to determine the duties and compensation of such persons or agents;
(c) To select such committees and subcommittees as may be necessary;
(d) To adopt bylaws and to adopt such rules for the conduct of its business as it may deem advisable;
(e) To submit to the Secretary a budget for each fiscal period, prior to the beginning of such period, including a report explaining the items appearing therein and a recommendation as to the rates of assessments for such period;
(f) To keep minutes, books, and records which will reflect all of the acts and transactions of the Board and which shall be subject to examination by the Secretary;
(g) To prepare periodic statements of the financial operations of the Board and to make copies of each statement available to growers and handlers for examination at the office of the Board;
(h) To cause its financial statements to be audited by a certified public accountant at least once each fiscal year and at such times as the Secretary may request. Such audit shall include an examination of the receipt of assessments and the disbursement of all funds. The Board shall provide the Secretary with a copy of all audits and shall make copies of such audits, after the removal of any confidential individual grower or handler information that may be contained in them, available to growers and handlers for examination at the offices of the Board;
(i) To act as intermediary between the Secretary and any grower or handler with respect to the operations of this part;
(j) To investigate and assemble data on the growing, handling, and marketing conditions with respect to cherries;
(k) To apprise the Secretary of all Board meetings in a timely manner;
(l) To submit to the Secretary such available information as the Secretary may request;
(m) To investigate compliance with the provisions of this part;
(n) To develop and submit an annual marketing policy for approval by the Secretary containing the optimum supply of cherries for the crop year established pursuant to § 930.50 and recommending such action(s) necessary to achieve such optimum supply;
(o) To implement volume regulations established under § 930.50 and issued by the Secretary under § 930.51, including the release of any inventory reserves;
(p) To provide thorough communication to growers and handlers regarding the activities of the Board and to respond to industry inquiries about Board activities;
(q) To oversee the collection of assessments levied under this part;
(r) To enter into contracts or agreements with such persons and organizations as the Board may approve for the development and conduct of activities, including research and promotion activities, authorized under this part or for the provision of services required by this part and for the payment of the cost thereof with funds collected through assessments pursuant to § 930.41 and income from such assessments. Contracts or agreements for any plan or project shall provide that:
(1) The contractors shall develop and submit to the Board a plan or project together with a budget(s) which shall show the estimated cost to be incurred for such plan or project;
(2) Any contract or agreement for a plan or project and any plan or project adopted by the Board shall only become effective upon approval by the Secretary; and
(3) Every such contracting party shall keep accurate records of all of its transactions and make periodic reports to the Board of activities conducted and an accounting for funds received and expended, and such other reports as the Secretary or the Board may require. The Secretary or employees of the Board may audit periodically the records of the contracting party;
(s) Pending disbursement consistent with its budget, to invest, with the approval of the Secretary, and in accordance with applicable Departmental policies, funds collected through assessments authorized under § 930.41 and income from such assessments;
(t) To establish standards or grade requirements for cherries for frozen and canned cherry products, subject to the approval of the Secretary;
(u) To borrow such funds, subject to the approval of the Secretary and not to exceed the expected expenses of one fiscal year, as are necessary for administering its responsibilities and obligations under this part; and
(v) To establish, with the approval of the Secretary, such rules and procedures relative to administration of this subpart as may be consistent with the provisions contained in this subpart and as may be necessary to accomplish the purposes of the Act and the efficient administration of this subpart.
§ 930.32 Procedure.
(a) Two-thirds of the members of the Board, including alternates acting for absent members, shall constitute a quorum. For any action of the Board to pass, at least two-thirds of the entire Board must vote in support of such action.
(b) The Board may provide through its own rules and regulations, subject to approval by the Secretary, for simultaneous meetings of groups of its members assembled at different locations and for votes to be conducted by telephone or other means of communication. Votes so cast shall be promptly confirmed in writing.
(c) All meetings of the Board are open to the public, although the Board may hold portions of meetings in executive session for the consideration of certain business. The Board will establish, with the approval of the Secretary, a means of advanced notification of growers and handlers of Board meetings.
§ 930.33 Expenses and compensation.
Except for the public member and alternate public member who shall receive such compensation as the Board may establish and the Secretary may approve, the members of the Board, and alternates when acting as members, shall serve without compensation but shall be reimbursed for necessary and reasonable expenses, as approved by the Board, incurred by them in the performance of their duties under this part. The Board at its discretion may request the attendance of one or more alternates at any or all meetings, notwithstanding the expected or actual presence of the respective member(s), and may pay the expenses of such alternates.
Expenses and Assessments
§ 930.40 Expenses.
The Board is authorized to incur such expenses as the Secretary finds are reasonable and likely to be incurred for its maintenance and functioning and to enable it to exercise its powers and perform its duties in accordance with the provisions of this part. The funds to cover such expenses shall be acquired by the levying of assessments as provided in § 930.41.
§ 930.41 Assessments.
(a) An assessment may be levied upon handlers annually under this part to cover the administrative costs of the Board, costs of inspection, and any research, development and promotion activities initiated by the Board under § 930.48.
(b) Each part of an assessment intended to cover the costs of each activity in paragraph (a) of this section, must be identified and approved by the Board and the Secretary, and any notification or other statement regarding assessments provided to handlers must contain such information.
(c) As a pro rata share of the administrative, inspection, research, development, and promotion expenses which the Secretary finds reasonable and likely to be incurred by the Board during a fiscal period, each handler shall pay to the Board assessments on all cherries handled, as the handler thereof, during such period: Provided, a handler shall be exempt from any assessment only on the tonnage of handled cherries that either are diverted by destruction at the handler’s facilities according to § 930.59 or are cherries represented by grower diversion certificates issued pursuant to § 930.58(b) and acquired by handlers as described in § 930.59.
(d) The Secretary, after consideration of the recommendation of the Board, shall fix the rate of assessment to be paid by each handler during the fiscal period in an amount designed to secure sufficient funds to cover the expenses which may be approved and incurred during such period or subsequent period as provided in paragraph (c) of this section. At any time during or after the fiscal period, the Secretary may increase the rate of assessment in order to secure sufficient funds to cover any later finding by the Secretary relative to the expenses which may be incurred. Such increase shall be applied to all cherries handled during the applicable fiscal period. In order to provide funds for the administration of the provisions of this part during the first part of a fiscal period before sufficient operating income is available from assessments, the Board may accept the payment of assessments in advance, and may borrow money for such purposes.
(e) Assessments not paid within a time prescribed by the Board may be made subject to interest or late payment charges, or both. The period of time, rate of interest, and late payment charge will be as recommended by the Board and approved by the Secretary: Provided, That when interest or late payment charges are in effect, they shall be applied to all assessments not paid within the prescribed period of time.
(f) Assessments shall be calculated on the basis of pounds of cherries handled. The established assessment rate may be uniform, or may vary dependent on the product the cherries are used to manufacture. In recommending annual assessment rates, the Board shall consider:
(1) The differences in the number of pounds of cherries utilized for various cherry products; and
(2) The relative market values of such cherry products.
(g) The Board, with the approval of the Secretary, may establish rules and regulations necessary and incidental to the administration of this section.
§ 930.42 Accounting.
(a) If, at the end of a fiscal period, the assessments collected are in excess of expenses incurred, the Board, with the approval of the Secretary, may carry over all or any portion of such excess into subsequent fiscal periods as a reserve. Such reserve funds may be used to cover any expenses authorized by this part, and to cover necessary expenses of liquidation in the event of termination of this part. If any such excess is not retained in a reserve, it shall be refunded proportionately to the handlers from whom the excess was collected. Without an additional reserve level approved by the Secretary, the amount held in reserve may not exceed approximately one year’s operational expenses. Upon termination of this part, any funds not required to defray the necessary expenses of liquidation shall be disposed of in such a manner as the Secretary may determine to be appropriate: Provided, That to the extent practicable, such funds shall be returned pro rata to the persons from whom such funds were collected.
(b) All funds received by the Board pursuant to the provisions of this part shall be used solely for the purpose specified in this part and shall be accounted for in the manner provided in this part. The Secretary may at any time require the Board and its members to account for all receipts and disbursements.
Quality Control
§ 930.44 Quality control.
(a) Quality standards. The Board may establish, with the approval of the Secretary, such minimum quality and inspection requirements applicable to cherries as will contribute to orderly marketing or be in the public interest. If such requirements are adopted, no handler shall process cherries into manufactured products or sell manufactured products in the current of commerce unless such cherries and/or such cherries used in the manufacture of products meet the applicable requirements as evidenced by certification acceptable to the Board. The Board, with the approval of the Secretary, may establish rules and regulations necessary and incidental to the administration of this section.
(b) Inspection and certification. Whenever the handling of any cherries requires inspection pursuant to this part, each handler who handles cherries shall cause such cherries to be inspected by the appropriate division of USDA, and certified by it as meeting the applicable requirements of such regulation: Provided, That inspection and certification shall be required for cherries which previously have been so inspected and certified only if such cherries have been regraded, resorted, repackaged, or in any other way further prepared for market. Promptly after inspection and certification, each such handler shall submit, or cause to be submitted, to the Board a copy of the certificate of inspection issued with respect to such cherries.
Research, Market Development and Promotion
§ 930.48 Research, market development and promotion.
The Board, with the approval of the Secretary, may establish or provide for the establishment of production and processing research, market research and development, and/or promotional activities, including paid advertising, designed to assist, improve or promote the efficient production and processing, marketing, distribution, and consumption of cherries subject to this part. The expense of such projects shall be paid from funds collected pursuant to this part and the income from such funds.
Regulations
§ 930.50 Marketing policy.
(a) Optimum supply. On or about July 1 of each crop year, the Board shall hold a meeting to review sales data, inventory data, current crop forecasts and market conditions in order to establish an optimum supply level for the crop year. The optimum supply volume shall be calculated as 100 percent of the average sales of the prior three years reduced by average sales that represent dispositions of exempt cherries and restricted percentage cherries qualifying for diversion credit for the same three years, unless the Board determines that it is necessary to recommend otherwise with respect to sales of exempt and restricted percentage cherries, to which shall be added a desirable carry-out inventory not to exceed 20 million pounds or such other amount as the Board, with the approval of the Secretary, may establish. This optimum supply volume shall be announced by the Board in accordance with paragraph (h) of this section.
(b) Preliminary percentages. On or about July 1 of each crop year, the Board shall establish a preliminary free market tonnage percentage which shall be calculated as follows: from the optimum supply computed in paragraph (a) of this section, the Board shall deduct the carry-in inventory to determine the tonnage requirements (adjusted to a raw fruit equivalent) for the current crop year which will be subtracted from the current year USDA crop forecast or by an average of such other crop estimates the Board votes to use. If the resulting number is positive, this would represent the estimated overproduction which would be the restricted tonnage. This restricted tonnage would then be divided by the sum of the crop forecast(s) for the regulated districts to obtain a preliminary restricted percentage, rounded to the nearest whole number, for the regulated districts. If subtracting the current crop year requirement, computed in the first sentence from the current crop forecast, results in a negative number, the Board shall establish a preliminary free market tonnage percentage of 100 percent with a preliminary restricted percentage of zero. The Board shall announce these preliminary percentages in accordance with paragraph (h) of this section.
(c) Interim percentages. Between July 1 and September 15 of each crop year, the Board may modify the preliminary free market tonnage and restricted percentages to adjust to the actual pack occurring in the industry. The Board shall announce any interim percentages in accordance with paragraph (h) of this section.
(d) Final percentages. No later than September 15 of each crop year, the Board shall review the most current information available including, but not limited to, processed production and grower diversions of cherries during the current crop year. The Board shall make such adjustments as are necessary between free and restricted tonnage to achieve the optimum supply and recommend such final free market tonnage and restricted percentages to the Secretary and announce them in accordance with paragraph (h) of this section. The difference between any final free market tonnage percentage designated by the Secretary and 100 percent shall be the final restricted percentage. With its recommendation, the Board shall report on its consideration of the factors in paragraph (e) of this section.
(e) Factors. When computing preliminary and interim percentages, or determining final percentages for recommendation to the Secretary, the Board shall give consideration to the following factors:
(1) The estimated total production of cherries;
(2) The estimated size of the crop to be handled;
(3) The expected general quality of such cherry production;
(4) The expected carryover as of July 1 of canned and frozen cherries and other cherry products;
(5) The expected demand conditions for cherries in different market segments;
(6) Supplies of competing commodities;
(7) An analysis of economic factors having a bearing on the marketing of cherries;
(8) The estimated tonnage held by handlers in primary or secondary inventory reserves;
(9) Any estimated release of primary or secondary inventory reserve cherries during the crop year; and
(10) The quantity of grower-diverted cherries during the crop year.
(f) Modification. In the event the Board subsequently deems it advisable to modify its marketing policy, because of national emergency, crop failure, or other major change in economic conditions, it shall hold a meeting for that purpose, and file a report thereof with the Secretary within 5 days (exclusive of Saturdays, Sundays, and holidays) after the holding of such meeting, which report shall show the Board’s recommended modification and the basis therefor.
(g) Additional tonnage to sell as free tonnage. In addition, the Board, in years when restricted percentages are established, shall make available tonnage equivalent to an additional 10 percent, if available, of the average sales of the prior 3 years, as defined in paragraph (a) of this section, for market expansion.
(h) Publicity. The Board shall promptly give reasonable publicity to growers and handlers of each meeting to consider a marketing policy or any modification thereof, and each such meeting shall be open to them and to the public. Similar publicity shall be given to growers and handlers of each marketing policy report or modification thereof, filed with the Secretary and of the Secretary’s action thereon. Copies of all marketing policy reports shall be maintained in the office of the Board, where they shall be made available for examination. The Board shall notify handlers, and give reasonable publicity to growers, of its computation of the optimum supply, preliminary percentages, and interim percentages and shall notify handlers of the Secretary’s action on final percentages by registered or certified mail.
(i) Restricted percentages. Restricted percentage requirements established under paragraphs (b), (c), or (d) of this section may be fulfilled by handlers by either establishing an inventory reserve in accordance with § 930.55 or § 930.57 or by diversion of product in accordance with § 930.59. In years where required, the Board shall establish a maximum percentage of the restricted quantity which may be established as a primary inventory reserve such that the total primary inventory reserve does not exceed 50-million pounds; Provided, That such 50-million-pound quantity may be changed upon recommendation of the Board and approval of the Secretary. Any such change shall be recommended by the Board on or before September 30 of any crop year to become effective for the following crop year, and the quantity may be changed no more than one time per crop year. Handlers will be permitted to divert (at plant or with grower diversion certificates) as much of the restricted percentage requirement as they deem appropriate, but may not establish a primary inventory reserve in excess of the percentage established by the Board for restricted cherries. In the event handlers wish to establish inventory reserve in excess of this amount, they may do so, in which case it will be classified as a secondary inventory reserve and will be regulated accordingly.
(j) Inventory Reserve Release. In years when inventory reserve cherries are available and when the expected availability of cherries from the current crop plus expected carryin inventory does not fulfill the optimum supply, the Board shall release not later than November 1st of the current crop year such volume from the inventory reserve as will satisfy the optimum supply.
(k) The Board, with the approval of the Secretary, may establish rules and regulations necessary and incidental to the administration of this section.
§ 930.51 Issuance of volume regulations.
(a) Whenever the Secretary finds, from the recommendation and supporting information supplied by the Board, that to designate final free market tonnage and restricted percentages for any cherries acquired by handlers during the crop year will tend to effectuate the declared policy of the Act, the Secretary shall designate such percentages. Such regulation designating such percentage shall fix the free market tonnage and restricted percentages, totaling 100 percent, which shall be applied in accordance with this section, §§ 930.55, 930.57 and 930.59 to cherries grown in regulated districts, as determined under § 930.52, and handled during such fiscal period.
(b) The Board shall be informed immediately of any such regulation issued by the Secretary, and the Board shall promptly give notice thereof to handlers.
(c) That portion of a handler’s cherries that are restricted percentage cherries is the product of the restricted percentage imposed under paragraph (a) of this section multiplied by the tonnage of cherries, originating in a regulated district, handled, including those diverted according to § 930.59, by that handler in that fiscal year.
(d) The Board, with the approval of the Secretary, shall develop rules and regulations which shall provide guidelines for handlers in complying with any restricted tonnage requirements, including, but not limited to, a grace period of at least 30 days to segregate and appropriately document any tonnage they wish to place in the inventory reserve and to assemble any applicable diversion certificates.
§ 930.52 Establishment of districts subject to volume regulations.
(a) The districts in which handlers shall be subject to any volume regulations implemented in accordance with this part shall be those districts in which the average annual production of cherries over the prior 3 years has exceeded 6 million pounds. Handlers shall become subject to volume regulation implemented in accordance with this part in the crop year that follows any 3-year period in which the 6-million pound average production requirement is exceeded in that district.
(b) Handlers in districts which are not subject to volume regulation would only be so regulated to the extent that they handled cherries which were grown in a district subject to regulation as specified in paragraph (a) of this section. In such a case, the handler must place in inventory reserve pursuant to § 930.55 or § 930.57 or divert pursuant to § 930.59 the required restricted percentage of the crop originating in the regulated district.
(c) Handlers in districts not meeting the production requirement described in paragraph (a) of this section in a given year would not be subject to volume regulation in the next crop year.
(d) Any district producing a crop which is less than 50 percent of the average annual processed production in that district in the previous five years would be exempt from any volume regulation if, in that year, a restricted percentage is established.
(e) The Board, with the approval of the Secretary, may establish rules and regulations necessary and incidental to the administration of this section.
§ 930.53 Modification, suspension, or termination of regulations.
(a) In the event the Board at any time finds that, by reason of changed conditions, any regulations issued pursuant to § 930.44 or § 930.51 should be modified, suspended, or terminated, it shall so recommend to the Secretary.
(b) Whenever the Secretary finds, from the recommendations and information submitted by the Board or from other available information, that a regulation issued pursuant to § 930.44 or § 930.51 should be modified, suspended or terminated with respect to any or all shipments of cherries in order to effectuate the declared policy of the Act, the Secretary shall modify, suspend, or terminate such regulation.
§ 930.54 Prohibition on the use or disposition of inventory reserve cherries.
Cherries that are placed in inventory reserve pursuant to the requirements of § 930.50, § 930.51, § 930.55, or § 930.57 shall not be used or disposed of by any handler or any other person except as provided in § 930.50 or in paragraphs (a), (b), or (c) of this section.
(a) If the Board determines that the total available supplies for use in commercial outlets are less than the amount needed to meet the demand in such outlets, the Board may recommend to the Secretary that a portion or all of the primary and/or secondary inventory reserve cherries be released for such use.
(b) The Board may recommend to the Secretary that a portion or all of the primary and/or secondary inventory reserve cherries be released for sale in certain designated markets. Such designated markets may be defined in terms of the use or form of the cherries.
(c) Cherries in the primary and/or secondary inventory reserve may be used at any time for uses exempt from regulation under § 930.62.
(d) Should the volume of cherries held in the primary inventory reserves and, subsequently, the secondary inventory reserves reach a minimum amount, which level will be established by the Secretary upon recommendation from the Board, the products held in the respective reserves shall be released from the reserves and made available to the handlers as free tonnage.
§ 930.55 Primary inventory reserves.
(a) Whenever the Secretary has fixed the free market tonnage and restricted percentages for any fiscal period, as provided for in § 930.51(a), each handler in a regulated district shall place in his or her primary inventory reserve for such period, at such time, and in such manner, as the Board may prescribe, or otherwise divert, according to § 930.59, a portion of the cherries acquired during such period.
(b) The form of the cherries, frozen, canned in any form, dried, or concentrated juice, placed in the primary inventory reserve is at the option of the handler. The product(s) placed by the handler in the primary inventory reserve must have been produced in either the current or the preceding two crop years. Except as may be limited by § 930.50(i) or as may be permitted pursuant to §§ 930.59 and 930.62, such inventory reserve portion shall be equal to the sum of the products obtained by multiplying the weight or volume of the cherries in each lot of cherries acquired during the fiscal period by the then effective restricted percentage fixed by the Secretary; Provided, That in converting cherries in each lot to the form chosen by the handler, the inventory reserve obligations shall be adjusted in accordance with uniform rules adopted by the Board in terms of raw fruit equivalent.
(c) Inventory reserve cherries shall meet such standards of grade, quality, or condition as the Board, with the approval of the Secretary, may establish. All such cherries shall be inspected by USDA. A certificate of such inspection shall be issued which shall show, among other things, the name and address of the handler, the number and type of containers in the lot, the grade of the product, the location where the lot is stored, identification marks (can codes or lot stamp), and a certification that the cherries meet the prescribed standards. Promptly after inspection and certification, each such handler shall submit, or cause to be submitted, to the Board, at the place designated by the Board, a copy of the certificate of inspection issued with respect to such cherries.
(d) Handlers shall be compensated for inspection costs incurred on cherries placed in the primary inventory reserve. All reporting of cherries placed in, rotated in and out, or released from an inventory reserve shall be in accordance with rules and procedures established by the Board, with the approval of the Secretary. The Board could, with the approval of the Secretary, also limit the number of inspections of reserve cherries being rotated into inventory reserves for which the Board would be financially liable.
(e) Except as provided in § 930.54, handlers may not sell inventory reserve cherries prior to their official release by the Board. Handlers may rotate cherries in their inventory reserves with prior notification to the Board. All cherries rotated into the inventory reserve must meet the applicable inspection requirements.
§ 930.56 Off-premise inventory reserve.
Any handler may, upon notification to the Board, arrange to hold inventory reserve, of his or her own production or which was purchased, on the premises of another handler or in an approved commercial storage facility in the same manner as though the inventory reserve were on the handler’s own premises.
§ 930.57 Secondary inventory reserve.
(a) In the event the inventory reserve established under § 930.55 of this part is at its maximum volume, and the Board has announced, in accordance with § 930.50, that volume regulation will be necessary to maintain an orderly supply of quality cherries for the market, handlers in a regulated district may elect to place in a secondary inventory reserve all or a portion of the cherries the volume regulation would otherwise require them to divert in accordance with § 930.59.
(b) Should any handler in a regulated district exercise his or her right to establish a secondary inventory reserve under paragraph (a) of this section, all costs of maintaining that reserve, as well as inspection costs, will be the responsibility of the individual handler.
(c) The secondary inventory reserve shall be established in accordance with §§ 930.55 (b) and (c) and such other rules and regulations which the Board, with the approval of the Secretary, may establish.
(d) The Board shall retain control over the release of any cherries from the secondary inventory reserve. No cherries may be released from the secondary reserve until all cherries in any primary inventory reserve established under § 930.55 have been released. Any release of the secondary inventory reserve shall be in accordance with the annual marketing policy and with § 930.54.
§ 930.58 Grower diversion privilege.
(a) In general. Any grower may voluntarily elect to divert, in accordance with the provisions of this section, all or a portion of the cherries which otherwise, upon delivery to a handler, would become restricted percentage cherries. Upon such diversion and compliance with the provisions of this section, the Board shall issue to the diverting grower a grower diversion certificate which such grower may deliver to a handler. Any grower diversions completed in accordance with this section, but which are undertaken in districts subsequently exempted by the Board from volume regulation under § 930.52(d), shall qualify for diversion credit.
(b) Eligible diversion. Grower diversion certificates shall be issued to growers only if the cherries are diverted in accordance with the following terms and conditions or such other terms and conditions that the Board, with the approval of the Secretary, may establish. Diversion may take such of the following forms which the Board, with the approval of the Secretary, may designate: uses exempt under § 930.62; nonhuman food uses; or other uses, including diversion by leaving such cherries unharvested.
(c) Application/mapping. The Board, with the approval of the Secretary, shall develop rules and regulations providing for the diversion of cherries by growers. Such regulations may include, among other things:
(1) The form and content of applications and agreements relating to the diversion, including provisions for supervision and compensation; and
(2) Provisions for mapping areas in which cherries will be left unharvested.
(d) Diversion certificate. If the Board approves the application it shall so notify the applicant and conduct such supervision of the applicant’s diversion of cherries as may be necessary to assure that the cherries have been diverted. After the diversion has been accomplished, the Board shall issue to the diverting grower a diversion certificate stating the weight of cherries diverted. Where diversion is carried out by leaving the cherries unharvested, the Board shall estimate the weight of cherries diverted on the basis of such uniform rule prescribed in rules and regulations as the Board, with the approval of the Secretary, may recommend to implement this section.
§ 930.59 Handler diversion privilege.
(a) In general. Handlers handling cherries harvested in a regulated district may fulfill any restricted percentage requirement in full or in part by acquiring diversion certificates or by voluntarily diverting cherries or cherry products in a program approved by the Board, rather than placing cherries in an inventory reserve. Upon voluntary diversion and compliance with the provisions of this section, the Board shall issue to the diverting handler a handler diversion certificate which shall satisfy any restricted percentage or diversion requirement to the extent of the Board or Department inspected weight of the cherries diverted.
(b) Eligible diversion. Handler diversion certificates shall be issued to handlers only if the cherries are diverted in accordance with the following terms and conditions or such other terms and conditions that the Board, with the approval of the Secretary, may establish. Such diversion may take place in any form which the Board, with the approval of the Secretary, may designate. Tart cherry juice and juice concentrate may receive diversion credit but only if diverted in forms approved under the terms of this section. Such forms may include, but are not limited to:
(1) Contribution to a Board-approved food bank or other approved charitable organization;
(2) Use for new product and new market development;
(3) Export to designated destinations; or
(4) Other uses or disposition, including destruction of the cherries at the handler’s facilities.
(c) Notification. The handler electing to divert cherries through means authorized under this section shall first notify the Board of such election. Such notification shall describe in detail the manner in which the handler proposes to divert cherries including, if the diversion is to be by means of destruction of the cherries, a detailed description of the means of destruction and ultimate disposition of the cherries. It shall also contain an agreement that the proposed diversion is to be carried out under the supervision of the Board and that the cost of such supervision is to be paid by the handler. Uniform fees for such supervision may be established by the Board, pursuant to rules and regulations approved by the Secretary.
(d) Diversion certificate. The Board shall conduct such supervision of the handler’s diversion of cherries under paragraph (c) of this section as may be necessary to assure that the cherries are diverted as authorized. After the diversion has been completed, the Board shall issue to the diverting handler a handler diversion certificate indicating the weight of cherries which may be used to offset any restricted percentage requirement.
(e) Transfer of certificates. Within such restrictions as may be prescribed in rules and regulations, including but not limited to procedures for transfer of diversion credit and limitations on the type of certification eligible for transfer, a handler who acquires diversion certificates representing diverted cherries during any crop year may transfer such certificates to another handler or handlers. The Board must be notified in writing whenever such transfers take place during a crop year.
(f) The Board, with the approval of the Secretary, may establish rules and regulations necessary and incidental to the administration of this section.
§ 930.60 Equity holders.
(a) Inventory reserve ownership. The inventory reserve shall be the sole responsibility of the handlers who place products into the inventory reserve. A handler’s equity in the primary inventory reserve may be transferred to another person upon notification to the Board.
(b) Agreements with growers. Individual handlers are encouraged to have written agreements with growers who deliver their cherries to the handler as to how any restricted percentage cherries delivered to the handler will be handled and what share, if any, the grower will have in the eventual sale of any inventory reserve cherries.
(c) Rulemaking authority. The Board, with the approval of the Secretary, may adopt rules and regulations necessary and incidental to the administration of this section.
§ 930.61 Handler compensation.
Each handler handling cherries from a regulated district that is subject to volume regulations shall be compensated by the Board for inspection relating to the primary inventory reserve as the Board may deem to be appropriate. The Board, with the approval of the Secretary, may establish such rules and regulations as are necessary and incidental to the administration of this section.
§ 930.62 Exempt uses.
(a) The Board, with the approval of the Secretary, may exempt from the provisions of § 930.41, § 930.44, § 940.51, § 930.53, or § 930.55 through § 930.57 cherries for designated uses. Such uses may include, but are not limited to:
(1) New product and new market development;
(2) Export to designated destinations;
(3) Experimental purposes; or
(4) For any other use designated by the Board, including cherries processed into products for markets for which less than 5 percent of the preceding 5-year average production of cherries were utilized.
(b) The Board, with the approval of the Secretary, shall prescribe such rules, regulations, and safeguards as it may deem necessary to ensure that cherries handled under the provisions of this section are handled only as authorized.
(c) Diversion certificates shall not be issued for cherries which are used for exempt purposes; Provided, that growers engaging in such activities under the authority of § 930.58 shall be issued diversion certificates for such activities.
§ 930.63 Deferment of restricted obligation.
(a) Bonding. The Board, with the approval of the Secretary, may require handlers to secure bonds on deferred inventory reserve tonnage. Handlers may, in order to comply with the requirements of §§ 930.50 and 930.51 and regulations issued thereunder, secure bonds on restricted percentage cherries to temporarily defer the date that inventory reserve cherries must be held to any date requested by the handler. This date shall be not later than 60 days prior to the end of that crop year. Such deferment shall be conditioned upon the voluntary execution and delivery by the handler to the Board of a written undertaking within thirty (30) days after the Secretary announces the final restricted percentage under § 930.51. Such written undertaking shall be secured by a bond or bonds with a surety or sureties acceptable to the Board that on or prior to the acceptable deferred date the handler will have fully satisfied the restricted percentage amount required by § 930.51.
(b) Rulemaking authority. The Board, with the approval of the Secretary, may adopt rules and regulations necessary and incidental to the administration of this section.
Reports and Records
§ 930.70 Reports.
(a) Weekly production, monthly sales, and inventory data. Each handler shall, upon request of the Board, file promptly with the Board, reports showing weekly production data; monthly sales and inventory data; and such other information, including the volume of any cherries placed in or released from a primary or secondary inventory reserve or diverted, as the Board shall specify with respect to any cherries handled by the handler. Such information may be provided to the Board members in summary or aggregated form only without any reference to the individual sources of the information.
(b) Other reports. Upon the request of the Board, with the approval of the Secretary, each handler shall furnish to the Board such other information with respect to the cherries acquired, handled, stored and disposed of by such handler as may be necessary to enable the Board to exercise its powers and perform its duties under this part.
(c) Protection of proprietary information. Under no circumstances shall any information or reports be made available to the Board members, or to any person designated by the Board or by the Secretary, which will reveal the proprietary information of an individual handler.
§ 930.71 Records.
Each handler shall maintain such records of all cherries acquired, handled, stored or sold, or otherwise disposed of as will substantiate the required reports and as may be prescribed by the Board. All such records shall be maintained for not less than two years after the termination of the fiscal year in which the transactions occurred or for such lesser period as the Board may direct with the approval of the Secretary.
§ 930.72 Verification of reports and records.
For the purpose of assuring compliance and checking and verifying the reports filed by handlers, the Secretary and the Board, through its duly authorized agents, shall have access to any premises where applicable records are maintained, where cherries are received, stored, or handled, and, at any time during reasonable business hours, shall be permitted to inspect such handlers premises and any and all records of such handlers with respect to matters within the purview of this part.
§ 930.73 Confidential information.
All reports and records furnished or submitted by handlers to the Board and its authorized agents which include data or information constituting a trade secret or disclosing trade position, financial condition, or business operations of the particular handler from whom received, shall be received by and at all times kept in the custody and under the control of one or more employees of the Board or its agent, who shall disclose such information to no person other than the Secretary.
Miscellaneous Provisions
§ 930.80 Compliance.
Except as provided in this part, no person may handle cherries, the handling of which has been prohibited by the Secretary under this part, and no person shall handle cherries except in conformity with the provisions of this part and the regulations issued hereunder. No person may handle any cherries for which a diversion certificate has been issued other than as provided in §§ 930.58(b) and 930.59(b).
§ 930.81 Right of the Secretary.
Members of the Board (including successors and alternates), and any agents, employees, or representatives thereof, shall be subject to removal or suspension by the Secretary at any time. Each regulation, decision, determination, or other act of the Board shall be subject to the Secretary’s disapproval at any time. Upon such disapproval, the disapproved action of the Board shall be deemed null and void, except as to acts done in reliance thereon or in accordance therewith prior to such disapproval by the Secretary.
§ 930.82 Effective time.
The provisions of this part, and of any amendment thereto, shall become effective at such time as the Secretary may declare, and shall continue in force until terminated, or suspended.
§ 930.83 Termination.
(a) The Secretary may, at any time, terminate any or all of the provisions of this part by giving at least 1 day’s notice by means of a press notice or in any other manner in which the Secretary may determine.
(b) The Secretary shall terminate or suspend the operation of any or all of the provisions of this part whenever the Secretary finds that such provisions do not tend to effectuate the declared policy of the Act.
(c) The Secretary shall terminate the provisions of this part whenever the Secretary finds by referendum or otherwise that such termination is favored by a majority of the growers and processors: Provided, That such majority has, during the current fiscal year, produced or canned and frozen more than 50 percent of the volume of the cherries which were produced or processed within the production area. Such termination shall become effective on the last day of June subsequent to the announcement thereof by the Secretary.
(d) The Secretary shall conduct a referendum within the month of March of every sixth year after the effective date of this part to ascertain whether continuation of this part is favored by the growers and processors. The Secretary may terminate the provisions of this part at the end of any fiscal period in which the Secretary has found that continuance is not favored by a majority of growers and processors who, during a representative period determined by the Secretary, have been engaged in the production or processing of tart cherries in the production area. Such termination shall be announced on or before the end of the fiscal period.
(e) The provisions of this part shall, in any event, terminate whenever the provisions of the Act authorizing them cease to be in effect.
§ 930.84 Proceedings after termination.
(a) Upon the termination of the provisions of this part, the then functioning members of the Board shall, for the purpose of liquidating the affairs of the Board, continue as trustees of all the funds and property then in its possession, or under its control, including claims for any funds unpaid or property not delivered at the time of such termination.
(b) The said trustees shall:
(1) continue in such capacity until discharged by the Secretary;
(2) 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 person as the Secretary may direct; and
(3) upon the request of the Secretary, execute such assignments or other instruments necessary or appropriate to vest in such person full title and right to all of the funds, property, and claims vested in the Board or in the trustees pursuant to this part.
(c) Any person to whom funds, property, and claims have been transferred or delivered, pursuant to this section, shall be subject to the same obligations imposed upon the Board and upon the trustees.
§ 930.85 Effect of termination or amendment.
Unless otherwise expressly provided by the Secretary, the termination of this part or of any regulation issued pursuant to this part, or the issuance of any amendment to either thereof, shall not:
(a) Affect or waive any right, duty, obligation, or liability which shall have risen or which may thereafter arise in connection with any provision of this part or any regulation issued thereunder;
(b) Release or extinguish any violation of this part or any regulation issued thereunder;
(c) Affect or impair any rights or remedies of the Secretary or any other person with respect to any such violation.
§ 930.86 Duration of immunities.
The benefits, privileges, and immunities conferred upon any person by virtue of this part shall cease upon its termination, except with respect to acts done under and during the existence of this part.
§ 930.87 Agents.
The Secretary may, by designation in writing, name any officer or employee of the United States, or name any agency or division in the U.S. Department of Agriculture, to act as the Secretary’s agent or representative in connection with any provisions of this part.
§ 930.88 Derogation.
Nothing contained in this part is, or shall be construed to be, in derogation or in modification of the rights of the Secretary or of the United States to exercise any powers granted by the Act or otherwise, or, in accordance with such powers, to act in the premises whenever such action is deemed advisable.
§ 930.89 Personal liability.
No member or alternate member of the Board and no employee or agent 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, alternate member, employee, or agent, except for acts of dishonesty, willful misconduct, or gross negligence.
§ 930.90 Separability.
If any provision of this part is declared invalid or the applicability thereof to any person, circumstance, or thing is held invalid, the validity of the remainder of this part or the applicability thereof to any other person, circumstance, or thing shall not be affected thereby.
§ 930.91 Amendments.
Amendments to this subpart may be proposed, from time to time, by the Board or by the Secretary.
§ 930.100 Grower diversion certificates.
(a) In accordance with paragraph (b) of this section, the Board may, for the 1997 crop year, issue diversion certificates to growers, in districts subject to volume regulation (Northwest Michigan, Central Michigan, New York, and Utah) who have voluntarily elected to divert in the orchard all or a portion of their 1997 tart cherry production which otherwise, upon delivery to handlers, would become restricted percentage cherries. Growers may offer the diversion certificate to handlers in lieu of delivering cherries.
(b) Terms and conditions. To be eligible to receive diversion credit, growers voluntarily choosing to divert cherries must meet the following terms and conditions:
(1) In order to receive a certificate, a grower must demonstrate, to the satisfaction of the Board, that rows or trees which were selected for diversion were not harvested. Trees six years old or younger do not qualify for diversion.
(2) The grower must furnish the Board with a total harvested production amount so the Board can calculate the amount of grower diversion tonnage to be placed on the diversion certificate. The Board will confirm the grower’s production amount with information provided by handlers (to which the grower delivers cherries) on Board Form Number Two.
(3) The grower must agree to allow a Board compliance officer to visit the grower’s orchard to confirm that diversion has actually taken place.
(c) Calculation of diversion amounts. The weight of cherries diverted and left unharvested shall be calculated by the Board after growers furnish the Board with the necessary information concerning their production. After verification of the volume of cherries diverted, the Board shall calculate the amounts of grower diversion tonnage to be placed on the diversion certificates and issue such certificates to growers. Such amounts shall be determined as follows:
(1) For whole block diversion, the weight of a harvested sample of 5 percent of each diverted block, provided by the grower, will be used to calculate the total volume of diverted cherries to be credited on the diversion certificate. For example, a grower farms 1,000 acres and elects to whole block divert a 200 acre block. If 5 percent of the harvested trees in the block diverted yield 80,000 pounds of cherries, the grower would receive a diversion certificate for 1,600,000 pounds (80,000 pounds divided by 5 percent (.05) yields 1,600,000 pounds). The rest of the block would remain unharvested.
(2) For random row diversion, such estimated volume would be calculated by applying the percentage of the grower’s production diverted to the actual average volume per acre of cherries produced and harvested. For example, a grower farms 1,000 acres and elects to divert 20 percent of the harvestable acreage (200 acres). The grower harvests the remaining 800 acres and obtains 6,400,000 pounds of cherries, which represents a yield per acre of 8,000 pounds. Such grower would receive a diversion certificate for 1,600,000 pounds of cherries (8,000 lbs multiplied by the 20 percent of the total acreage diverted; in this instance, 200 acres).
§ 930.107 Fiscal period.
Pursuant to § 930.7, fiscal period shall mean the period beginning October 1 and ending September 30 of each year.
§ 930.120 Board membership.
When the production level from a district falls below the thresholds stated in § 930.20(b)(5), members of the specific district will make a recommendation to the Board as to who should be removed from the Board and the Board shall submit a recommendation to the Secretary for approval. If the recommendation is not made by the Board within a reasonable time, the Secretary may select the member and alternate to be removed.
Subpart B – Administrative Requirements
§ 930.133 Compensation rate.
A compensation rate of $250 per meeting shall be paid to the public member and to the alternate public member when attending Board meetings. Such compensation is a per meeting rate. For example, if a Board meeting is convened and lasts one or two days or only four hours, the public member and/or alternate public member attending the meeting would receive $250 each.
§ 930.141 Delinquent assessments.
(a) Pursuant to § 930.41, the Board shall impose an interest charge on any handler whose assessment payment has not been received by October 1 of each crop year. The interest rate shall be a rate of one percent per month and shall be applied to the unpaid assessment balance not paid by the October 1 due date. In addition to the interest charge, the Board shall impose a late payment charge on any handler whose assessment payment has not been received within 90 days from the due date of October 1. The late payment charge shall be 10 percent of the unpaid balance.
(b) [Reserved]
§ 930.150 Primary inventory reserve.
Beginning July 1, 2012, the primary inventory reserve may not exceed 100 million pounds.
§ 930.151 Desirable carry-out inventory.
Beginning with the crop year starting July 1, 2016, for the purposes of determining an optimum supply volume, the Board may recommend a desirable carry-out inventory not to exceed 100 million pounds.
§ 930.154 Release of inventory reserve cherries.
(a) As provided in § 930.54, the Board may recommend a release of a portion or all of the primary and/or secondary reserve cherries. The total available reserves will be determined at the beginning of the crop year. The primary reserve as defined in §§ 930.55 and 930.150 must be depleted before the secondary reserve can be released. If a release is recommended, the recommended volume shall be apportioned to handlers on the basis of each handler’s proportion of the total volume handled in the preceding three crop years.
(b) If a handler has less volume in reserve than is apportioned, the excess volume shall be reapportioned to those who still have volume in reserve until the total release is complete.
§ 930.158 Grower diversion and grower diversion certificates.
(a) Grower diversion certificates. The Board may issue diversion certificates to growers in districts subject to volume regulation who have voluntarily elected to divert in the orchard all or a portion of their tart cherry production which otherwise, upon delivery to handlers, would become restricted percentage cherries. Growers may offer the diversion certificate to handlers in lieu of delivering cherries. Handlers may redeem diversion certificates with the Board through June 30 of each crop year. After June 30 of the crop year that crop year’s grower diversion certificates are no longer valid. Cherries that have reached a harvestable, marketable condition will be eligible for diversion. Diversion will not be granted to growers whose fruit was destroyed before it set and/or matured on the tree, or whose fruit is unmarketable. If marketable fruit were to be damaged or destroyed by acts of nature such as storms or hail diversion credit could be granted. To be considered marketable for the purposes of this section, sampled fruit may not exceed a 5 percent tolerance for insects or a 7 percent tolerance for rot.
(b) Application and mapping for diversion. Any grower desiring to divert cherries using methods other than in-orchard tank shall submit a map of the orchard or orchards to be diverted, along with a completed Grower Diversion Application, to the Board by April 15 of each crop year. The application includes a statement which must be signed by the grower which states that the grower agrees to comply with the regulations established for a tart cherry diversion program. Each map shall contain the grower’s name and number assigned by the Board, the grower’s address, block name or number when appropriate, location of orchard or orchards and other information which may be necessary to accomplish the desired diversion. On or before July 1, the grower should inform the Board of such grower’s intention to divert in-orchard and what type of diversion will be used. The four types of diversion are random row diversion, whole block diversion, partial block diversion and in-orchard tank diversion. A grower who informs the Board about the type of diversion he or she wishes to use by July 1 can elect to use any diversion method or combination of diversion methods. Only random row or in-orchard tank diversion methods may be used if the Board is not so informed by July 1. Trees that are four years or younger do not qualify for diversion. Annual resubmissions of either the map or application will no longer be required. Growers will only submit a new application and map if they are participating in the grower diversion program for the first time. Growers will need only to submit a new orchard map if he/she adds a new block of trees to the orchard or changes the orchard layout differently from the map previously submitted to the Board.
(1) Random row diversion. Using the orchard map furnished by the grower, the Board will randomly select rows of trees within the orchard to be diverted. The amount of cherries to be diverted will be based on the preliminary restricted percentage amount established pursuant to § 930.50. A grower may elect a different percentage amount; however, the grower needs to inform the Board as soon as possible after the preliminary percentages are announced of this other amount, but in no event shall this be less than seven days in advance of harvest. The designated rows indicated by the map must not be harvested. After completing harvest of the remaining rows in the orchard, the grower must notify the Board and/or the Board’s compliance officer. A compliance officer will then be allowed to observe the grower’s orchard to assure that the selected rows have not been harvested. The grower must inform the Board of the total production of the orchard to calculate the tonnage that was diverted.
(2) Whole block diversion. Based on maps supplied by the grower, a sampling procedure will be used to determine the amount of cherries in the orchard to be diverted. A block is defined as rows that run in the same direction, are similar in age, and have definable boundaries. The Board will require a number of tree sites to be sampled depending on the size of the block. A tree site is a planted tree or an area where a tree was planted and may have been uprooted or died. If a block has 5 rows or less, or 200 or less tree sites, 3 rows would be randomly chosen to be sampled, if a block has 6 to 15 rows, or 201-400 tree sites, 4 rows would be randomly chosen to be sampled, and if a block has 16 or more rows and greater than 400 tree sites, 5 rows would be randomly chosen to be sampled. The Board’s compliance officer will apply the sampling procedure (based on the number of rows or the number of tree sites) which results in the fewest number of tree sites required to be sampled. From each of the rows to be sampled, ten contiguous tree sites will be sampled. Only trees more than five years old will be harvested for the sample. For example, if it is determined that five rows are to be sampled, 10 contiguous tree sites in each of the five rows will be subject to harvest. Trees within the 10 sites which are more than five years old will be harvested. The harvested tonnage will be converted to a volume that represents the entire block of cherries. If, for example, a total of 4,600 pounds is harvested from the sample tree sites and this total is divided by 50 tree sites a yield of 92 pounds per tree site is obtained. To find the total yield for the block, the 92 pounds per tree site yield is multiplied by the 880 tree sites that were mapped in the block and that equals 80,960 pounds for that block. The compliance officer would be allowed access to the block to oversee the sampling process and to confirm that the block has been diverted.
(3) Partial block diversion. Partial block diversion will also be accomplished using maps supplied by the grower. Sampling will be done as in whole block diversion except that only partial blocks would be selected and sampled. Growers may divert up to five partial blocks, or 50 percent of a grower’s total number of blocks per year. Such block(s) must be mapped and will be sampled as described under whole block diversion. Rows used in partial block diversion must be contiguous.
(4) In-orchard tank diversion. Growers wishing to in-orchard tank divert must pick the cherries to be diverted and place them in harvesting tanks. A compliance officer would then probe the tanks for volume measurement and observe the destruction of the cherries on the grower’s premises. Growers wishing to take advantage of this option must have at least 10 tanks ready for diversion. The compliance officer has up to five days to come to the grower’s premises to observe the diversion after being contacted.
(c) Compliance. Growers who voluntarily participate in the grower diversion program must sign and file with the Board a Grower Diversion Application. By signing the application, a grower agrees to the terms and conditions of the grower diversion program as contained in these regulations. To be eligible to receive diversion credit, growers voluntarily choosing to divert cherries must meet the following terms and conditions:
(1) In order to receive a certificate, a grower must demonstrate, to the satisfaction of the Board, that rows or trees which were selected for diversion were not harvested. Trees four years old or younger do not qualify for diversion.
(2) The grower must furnish the Board with a total harvested production amount so the Board can calculate the amount of grower diversion tonnage to be placed on the diversion certificate. The Board will confirm the grower’s production amount with information provided by handlers (to which the grower delivers cherries) on Board form Number Two.
(3)(i) The grower must agree to allow a Board compliance officer to visit the grower’s orchard to confirm that diversion has actually taken place. If the terms and conditions for whole block, partial block or in-orchard tank diversion are not completed, the Board shall not issue the grower a diversion certificate.
(ii) If a grower who chooses random row diversion harvests rows that were designated not to be harvested, the grower should inform the Board immediately of the error. The grower will then be required to divert twice the amount (rows or trees) incorrectly harvested to correct the mistake. The grower will still receive a diversion certificate equal to the original requested amount. However, in instances where a grower is at the end of harvesting the orchard and fails to divert a complete block or specified rows, the Board shall multiply by two the difference between the original diversion amount and the actual diverted amount. The Board shall subtract that amount from the diversion application amount. Thus, the grower would receive a grower diversion certificate equal to a portion of the originally requested amount. If the grower does not inform the Board of such errors, the grower will not receive a diversion certificate.
§ 930.159 Handler diversion.
(a) Methods of diversion. Handlers may divert cherries by redeeming grower diversion certificates, by destroying cherries at handlers’ facilities (at-plant), by diverting cherry products accidentally or voluntarily destroyed, by donating cherries or cherry products to charitable organizations or by using cherries or cherry products for exempt purposes under § 930.162, including export to countries other than Canada, and Mexico. Once diversion has taken place, handlers will receive diversion certificates stating the weight of cherries diverted. Diversion credit may be used to fulfill any restricted percentage requirement in full or in part. Any information of a confidential and/or proprietary nature included in this application would be held in confidence pursuant to § 930.73 of the order.
(b) Board notification and handler plan. Any handler intending to divert cherries or cherry products pursuant to § 930.59 of the order (except through exempt uses under § 930.62 of the order) must notify the Board of such intent and provide a plan by October 1 which shows how the handler intends to meet the restricted percentage obligation, except that, for the 1997-98 season only, the deadline is February 5, 1998. The Board may extend this date in individual cases pursuant to a written request showing good cause why the plan cannot be provided by the due date. A handler will have one year to fulfill such plan. The details of the plan shall include, but not be limited to, the name and address of the handler, the total product processed at-plant, product diverted at-plant, in-orchard diversion certificates to be redeemed, anticipated donations to charitable outlets, disposition to exempt outlets or uses and detailed plans for how and where such disposition will be made, and inventory reserve amount. It shall also contain an agreement that the proposed diversion is to be carried out under the supervision of the Board and that the cost of such supervision is to be paid by the handler. Supervision of diversion by means other than destruction of the cherries at a handler’s facility will be subject to supervision as found necessary by the Board. USDA inspectors or Board employees will supervise diversion of cherry products at the current hourly rate under USDA’s inspection fee schedule (7 CFR 52.42). Any cherries not diverted in accordance with the handler’s plan will be placed into the secondary inventory reserve or the primary inventory reserve if a secondary inventory reserve has not been established.
(c) At-plant diversion. Diversion by disposal at-plant may take place prior to placing the cherries into the processing line, or after processing, but before a finished product is manufactured. Such diversion will take place under the supervision of USDA Inspection Service or Board employee inspectors. USDA inspectors or Board employees or Board agents will supervise diversion of cherry products at-plant at the current hourly rate under USDA’s inspection fee schedule (7 CFR 52.42).
(d) Diversion of finished products. Handlers may be granted diversion credit for finished tart cherry products that are accidentally destroyed or voluntarily destroyed by the handler. To receive diversion credit under this option the cherry products must be owned by the handler at the time of accidental or voluntary destruction, be a marketable product at the time of processing, be included in the handler’s end of the year handler plan, and have been assigned a Raw Product Equivalent (RPE) by the handler to determine the volume of cherries. In addition, the accidental or voluntary destruction and disposition of the product must be verified by either a USDA inspector or Board agent or employee who witnesses the disposition of the accidentally or voluntarily destroyed product. Products will be considered as accidentally destroyed if they sustain damage which renders them unacceptable in normal market channels. Products which are voluntarily destroyed must have deteriorated in condition to such an extent that they are not acceptable for use in normal market channels.
(e) Contributions to approved charitable organizations. When diverting by donating cherries or cherry products to charitable organizations, handlers should follow the requirements specified herein. For contributions to qualify for diversion credit, the contributed product should be marked clearly “NOT FOR RESALE”. The receiving organization must be approved by the Board as a qualified recipient of contributions of tart cherry products. Such organizations must be tax-exempt, must not sell the donated products and must be noncompetitive with other tart cherry industry sales outlets. Once products are donated to an organization, the Board must receive satisfactory documentation of the transaction. Handlers should provide the Board with information on how the product was used and the volume of product used.
(f) Grower diversion certificates. To satisfy restricted percentage obligations by redeeming grower diversion certificates handlers must present to the Board grower diversion certificates obtained from growers who have diverted cherries by non-harvest, and who have been issued diversion certificates by the Board in accordance with the applicable rules and regulations governing the issuance of grower diversion certificates. For this crop year July 1, 1997, through June 30, 1998, grower diversion certificates will be valid until February 5, 1998.
§ 930.162 Exemptions.
(a) General. Tart cherries which are used for the purpose of new product development, for new market development and market expansion, for the development of export markets, for experimental purposes, for export to countries other than Canada, and Mexico, or which are donated to charitable organizations may be granted an exemption by the Board and will be exempt from §§ 930.41, 930.44, 930.51, 930.53, and §§ 930.55 through 930.57, subject to the following terms and conditions. Any information received of a confidential and/or proprietary nature included in this application will be protected from disclosure pursuant to § 930.73 of the order.
(b) Definitions. The terms in paragraph (a) of this section shall have the following meaning:
(1) New product development. This term includes the development of new tart cherry products or of foods or other products in which tart cherries or tart cherry products are incorporated which are not presently being produced on a commercial basis. New product development can also include the production or processing of a tart cherry product using a technique not presently being utilized commercially in the tart cherry industry; an end product of the processing of raw tart cherries done by the industry at pack time either for resale or for re-manufacturing which has not been manufactured previously by the industry; or a processed, value-added item that includes tart cherry products as an ingredient which has never been marketed to consumers either by a handler within the industry or by a food manufacturer. In addition, the maximum duration of any credit activity is five years from the date of the first shipment.
(2) New market development and market expansion. This includes the development of markets for tart cherry products which are not commercially established markets and which are not competitive with commercial outlets presently utilized by the tart cherry industry (including the development of new export markets): Provided, That these markets are a geographic area into which tart cherries or products derived from them have not been previously sold. The term “market expansion”, includes activities that incrementally expand the sale of either tart cherries or the products in which tart cherries are an ingredient, such as, but not limited to: Expansions of the geographic areas into which tart cherries or tart cherry products are marketed; product line extensions; significant improvements to or revisions of existing products; packaging innovations; segmentation of markets along geographic, demographic, or other definable characteristics; and product repositionings. In addition, shipments of tart cherries or tart cherry products in new market development and market expansion outlets are eligible for handler diversion credit for a period of five years from the handler’s date of the first shipment into such outlets.
(3) Development of export markets. The sale of cherries or cherry products, including the development of sales for new or different tart cherry products or the expansion of sales for existing tart cherry products, to countries other than Canada, and Mexico.
(4) Experimental purposes. The use of cherries or cherry products in preliminary and/or developmental activities intended to result in new products, new applications and/or new markets for tart cherry products. Any exemption for experimental work shall be limited in scope, duration and volume based on information supplied by the applicant at the time a request for exemption is made. In no case shall an individual exemption for experimental purposes last longer than five years or exceed 100,000 pounds raw product equivalent of tart cherries.
(c) Obtaining approval for exempt uses. In order to receive exemptions for cherries or cherry products utilized for exempt purposes, handlers must apply to the Board for a new exemption or for renewal of an existing exemption by November 1 for the next succeeding year, except for the 1997 year only, handlers may apply through February 5, 1998. A handler shall have one crop year to dispose of cherries or cherry products to exempt outlets approved by the Board, unless granted a renewal. Handlers applying to the Board for a new exemption or for renewal of an existing exemption are subject to the following conditions:
(1) When applying to the Board for an exemption for new product development, handlers must detail the nature of their new product, how it differs from current, existing products and the anticipated short and long term sales volume for the exemption. It will be the Board staff’s responsibility to analyze and investigate any request and upon completion of that analysis authorize or deny the exemption.
(2) When applying to the Board for an exemption for new market development, handlers must detail the nature of their new market, how it differs from current, existing markets and the anticipated short and long term sales volume for the exemption. It will be the Board staff’s responsibility to analyze and investigate any request and upon completion of that analysis authorize or deny the exemption.
(3) When applying to the Board for an exemption for the use of domestic tart cherry products in markets not currently served by the domestic industry, handlers may provide a verifiable statement from the buyer of its intent to use domestic tart cherry products to the Board staff for review in lieu of review by the subcommittee as detailed in paragraph (d) of this section. A verifiable statement is defined as a written statement from the buyer that it will use domestic tart cherries in products or markets not currently supplied by domestic sources, which will be reviewed and documented by Board staff.
(4) When applying to the Board for an exemption for the development of export markets for tart cherries or cherry products (including juice and juice concentrate) in countries other than Canada and Mexico, including the expansion of sales in existing export markets, handlers must detail the nature of their product, specify whether such product differs from current products being sold in export markets, and estimate the anticipated short and long term sales volumes for the requested exemption.
(5) When applying to the Board for an exemption for experimental purposes, handlers must indicate the preliminary and/or developmental experimental activity. Such experimental purposes should be intended to result in new products, new applications and/or new markets for existing tart cherry products. Any exemption for experimental work shall be limited in scope, duration and volume which the proposing party shall specify at the time a request for exemption is made. In no case shall an exemption for experimental purposes last longer than five years or exceed 100,000 pounds raw product equivalent per handler of tart cherries during the duration of the experiment.
(6) To be eligible for new product, new market development and market expansion diversion exemptions, a handler must demonstrate involvement in the activity for which the exemptions are sought. The requesting handler must either be or have been involved in development of the product, the market, or market expansion activities for which the exemptions are sought or have had financial involvement in the activities. This involvement must be demonstrated and established to the satisfaction of the Board by the handler requesting the exemptions.
(d) Review of applications. A Board appointed subcommittee shall review applications for exemption or renewal of exemption and either approve or deny the exemption. The subcommittee shall consist of up to five total members, each having no handler affiliation but knowledge of the tart cherry industry, one of whom shall be the public member or the alternate public member if available to serve. Each subcommittee appointment shall be limited to a five-year term. Any denial of an application for exemption or renewal of an existing exemption shall be served on the applicant by certified mail and shall state the reasons for the denial. Within 10 days after the receipt of a denial, the applicant may file an appeal, in writing, with the Deputy Administrator, Specialty Crops Program, supported by any arguments and evidence the applicant may wish to offer as to why the application for exemption or renewal of exemption should have been approved. The Deputy Administrator, upon consideration of such appeal, will take such action as deemed appropriate with respect to the application for exemption or renewal of exemption.
(e) Progress report. Each handler that is granted an exemption must submit to the Board an annual progress report, due May 1 of each crop year. The progress report shall include the results of the exemption activity (comparison of intended activity with actual activity) for the year in its entirety, the volume of exempted fruit, an analysis of the success of the exemption program, and such other information as the Board may request.
(f) Diversion credit; failure to meet terms and conditions of exemption. Handler diversion certificates for exempt uses shall be issued to handlers provided that terms and conditions applicable to exempt uses are satisfied. Diversion certificates will not be issued to handlers for any volume of tart cherry products for which such terms and conditions are not satisfied and such cherries would be subject to all of the terms and conditions of §§ 930.41, 930.44, 930.51, 930.53, and §§ 930.55 through 930.57.
(g) Failure to meet terms and conditions for exemption. Upon termination of an exemption, any volume of tart cherry products that were granted an exemption but were not utilized for the authorized exempt purpose would be subject to all of the terms and conditions of §§ 930.41, 930.44, 930.51, 930.53, and §§ 930.55 through 930.57.
(h) Extensions and transfers. (1) If no shipments are made within the first year of any approved exemption project from the date of approval, new applications for a similar project (same market or product) are eligible for approval; provided that, handlers with an approved exemption project have the opportunity to apply to the subcommittee for a six-month extension of this time period.
(2) For projects granted extensions, if no shipment is made prior to the end of the extension period, new applications for the same market or project are eligible for approval.
§ 930.163 Deferment of restricted obligation.
A handler may obtain a surety bond on restricted percentage cherries to be posted to temporarily defer the date that inventory reserves must be held. The surety bond must be posted at two times the market value of the quantity of cherries for which the holding obligation is being deferred. The Board can temporarily defer the date inventory reserve cherries must be held to any date requested by the handler. However, this date shall not be later than 60 days prior to the end of the crop year. The deferment shall be conditioned on the execution and delivery by the handler to the Board of a written undertaking within 30 days after the Secretary announces the final restricted percentage under § 930.51. The written undertaking (required to be secured by a bond or bonds with a surety or sureties acceptable to the Board) must guarantee that on or prior to the deferment date requested by the handler the handler will have fully satisfied the restricted percentage obligation. On or prior to the deferment date requested by the handler, the handler will have to fully satisfy the restricted percentage obligation. In the event, a handler has posted the surety bond, reached the deferment date deadline and does not have cherries in the inventory reserve to cover his/her inventory reserve obligation, the bond will be forfeited to the Board. The Board will then buy cherries to fulfill that handler’s obligation.
§ 930.170 Sales and inventory report.
(a) Handlers shall submit to the Board a sales and inventory report for the reporting period ending November 30, February 28, May 31, and June 30 of each crop year. Handlers shall file such reports by the tenth day of the month following the reporting period, December 10, March 10, June 10, and July 10, respectively. Should the filing due date fall on a Saturday, Sunday, or federal holiday, reports are due by the first business day following the due date. Such reports shall be reported to the Board on CIAB Form 3 and include:
(1) The name, address, telephone number, and identifying number of the handler;
(2) The reporting period covered by the report;
(3) The form, type, and unit size for each product;
(4) The total beginning of year inventory for each product;
(5) The packed amount for each product;
(6) Total inter-handler transfers, and total volume repackaged or remanufactured for each product, year-to-date;
(7) Total sales outside the industry for each product, year-to-date;
(8) The amount of ending inventory for each product, year-to-date;
(9) List of inter-handler transfers, both in and out, during the reporting period including:
(i) Name of the selling handler;
(ii) Name of the receiving handler; and
(iii) Form, type, number of units.
(10) List of repacks and remanufactures during the reporting period including:
(i) Form, type, and number of units of source products; and
(ii) Form, type, and number of units of end products.
(b) The amount of inventory for each product over 5 years old shall be reported annually on the sales and inventory report for the reporting period ending May 31. Product age is based on the crop year in which the current product was processed or remanufactured.
Subpart C – Assessment Rate
§ 930.200 Assessment rate.
On and after October 1, 2020, the assessment rate imposed on handlers shall be $0.00575 per pound of tart cherries grown in the production area and utilized in the production of tart cherry products. Included in this rate is $0.00275 per pound of tart cherries to cover the cost of the research and promotion program and $0.003 per pound of tart cherries to cover administrative expenses.
§ 930.256 Free and restricted percentages for the 2019-20 crop year.
The percentages for tart cherries handled by handlers during the crop year beginning on July 1, 2019, which shall be free and restricted, respectively, are designated as follows: Free percentage, 67 percent and restricted percentage, 33 percent.
PART 932 – OLIVES GROWN IN CALIFORNIA
Subpart A – Order Regulating Handling
Definitions
§ 932.1 Secretary.
Secretary means the Secretary of Agriculture of the United States, or any officer or employee of the U.S. Department of Agriculture who is or who may hereafter be authorized to exercise the powers or to perform the duties of the Secretary of Agriculture.
§ 932.2 Act.
Act means Public Act No. 10, 73d Congress (May 12, 1933) as amended and as reenacted and amended by the Agricultural Marketing Agreement Act of 1937, as amended (48 Stat. 31, as amended; 7 U.S.C. 601-674).
§ 932.3 Person.
Person includes an individual, partnership, corporation, association, or any other business unit.
§ 932.4 Area.
Area means the State of California.
§ 932.5 Olives.
Olives means the fruit of any variety of the species olea europaea, whether or not processed, grown within the area.
§ 932.6 Variety group 1.
Variety group 1 means the following varieties and any mutations, sports, or other derivations of such varieties: Aghizi Shami, Amellau, Ascolano, Ascolano dura, Azapa, Balady, Barouni, Carydolia, Cucco, Gigante di Cerignola, Gordale, Grosane, Jahlut, Polymorpha, Prunara, Ropades, Sevillano, Saint Agostino, Tafahi, and Touffahi.
§ 932.7 Variety group 2.
Variety group 2 means the following varieties and any mutations, sports, or other derivations of such varieties: Manzanillo, Mission, Nevadillo, Obliza, Redding Picholine.
§ 932.8 Natural condition olives.
Natural condition olives means olives in their fresh harvested state, whether or not placed in a water or other preserving medium.
§ 932.9 Packaged olives.
Packaged olives means (a) processed olives in hermetically sealed containers and heat sterilized under pressure, otherwise known as canned ripe olives and including the three distinct types, ripe, green ripe, and tree-ripened; or (b) olives, packed in brine, and which have been fermented and cured, otherwise known as green olives.
§ 932.10 Lot.
Lot means the total net weight of natural condition olives of any one variety delivered to a handler at any one time.
§ 932.11 Grade.
Grade means the classification of olives as to quality according to the grading specifications established pursuant to the provisions of this part.
§ 932.12 Size.
Size means the number of whole olives contained in a pound and may be referred to in terms of size ranges.
§ 932.13 Size-grade.
Size-grade means to classify olives, or to cause olives to be classified, by sample or otherwise, into separate size designations.
§ 932.14 Process.
Process means to change olives in any way from their natural condition by any commercial process.
§ 932.15 Handler.
Handler means any person who handles olives.
§ 932.16 Handle.
Handle means to: (a) Size-grade olives, (b) process olives, or (c) use processed olives in the production of packaged olives, within the production area, or (d) ship packaged olives from the area to any point outside thereof or within the area: Provided, This term shall not include natural condition olives acquired and (1) used for olive oil, salt cured oil coated olives (also variously referred to as “Greek Olives,” “Greek Style Olives,” or “Oil Cured Olives”), or Silician Style Olives, or (2) shipped to fresh market outlets.
§ 932.17 Producer.
Producer means any person engaged in a proprietary capacity in the production of olives for market as packaged olives.
§ 932.18 Committee.
Committee means the California Olive Committee established pursuant to § 932.25.
§ 932.19 Crop year and fiscal year.
(a) Crop year means the 12-month period beginning on August 1 of each year and ending on July 31 of the following year or such other period that may be recommended by the committee and approved by the Secretary.
(b) Fiscal year means the 12-month period beginning on January 1 and ending on December 31 of each year or such other period that may be recommended by the committee and approved by the Secretary.
§ 932.20 Part and subpart.
Part means the Order Regulating the Handling of Olives Grown in California and all rules and regulations, and supplementary orders issued thereunder. The aforesaid Order Regulating the Handling of Olives Grown in California shall be a subpart of such part.
§ 932.21 District.
District means any of the following geographical areas of the State of California:
(a) District 1 shall include the counties of Glenn, Tehama, and Shasta.
(b) District 2 shall include the counties of Mono, Mariposa, Merced, San Benito, Monterey, Madera, Fresno, Tulare, and all counties to the south thereof.
(c) District 3 shall include all counties not included in Districts 1 and 2.
§ 932.22 Sublot.
Sublot means a quantity of olives resulting from the separation by the handler of a lot into two or more parts.
§ 932.23 Undersize olives and limited use size olives.
Undersize olives means olives of a size which, pursuant to § 932.51(a)(3), shall be disposed of in noncanning use; and limited use size olives means processed olives of any size which, pursuant to § 932.52(a)(3), is authorized for limited use.
§ 932.23a Limited use.
Limited use means the use of processed olives in the production of packaged olives of the halved, segmented (wedged), sliced, or chopped styles, as defined in the U.S. Standards for Grades of Canned Ripe Olives (7 CFR part 52) or subsequent amendments thereto, including modifications of the requirements for such styles pursuant to this part, and such additional styles (and the requirements applicable thereto) as may be specified pursuant to § 932.52(a)(7).
§ 932.24 Noncanning use.
Noncanning use means the use of olives other than in the production of canned ripe olives, and is the authorized outlet for undersize olives and the limited use size olives which, pursuant to § 932.52(b), are not permitted for limited use in any crop year in which limited use is restricted to less than the available quantity of limited use size olives.
Olive Administrative Committee
§ 932.25 Establishment and membership.
A California Olive Committee consisting of 16 members, is hereby established to administer the terms and provisions of this part. Each member shall have an alternate who meets the same qualifications as the member. Eight of the members and their alternates shall be producers or officers or employees of producers, and eight of the members and their alternates shall be handlers or directors, officers, or employees of handlers. The eight members of the committee who are producers or officers or employees of producers are referred to in this subpart as “producer members” of the committee; and the eight members of the committee who are handlers or directors, officers, or employees of handlers are referred to in this subpart as “handler members” of the committee. The committee may be increased by one public member who shall not be a producer or handler of olives nor an officer or employee or director of any producer or handler of olives. District representation of the producer members shall be two from District 1, four from District 2, and two from District 3. Allocation of the handler members shall be four members to represent cooperative marketing organizations, herein referred to as “cooperative handlers”, and four members to represent handlers who are not cooperative marketing organizations, herein referred to as “independent handlers”: Provided, That whenever during the crop year in which nominations are made and in the preceding crop year, the cooperative handlers or the independent handlers handled as first handler 65 percent or more of the total quantity of olives so handled by all handlers, allocation shall be five members to represent the group which so handled 65 percent or more of such olives and three members to represent the group which handled 35 percent or less. The public member and alternate public member shall be selected from any place within the area. The committee may, with the approval of the Secretary, provide such other allocation of producer or handler membership, or both, as may be necessary to assure equitable representation.
§ 932.26 Term of office.
The term of office of members and alternate members of the committee shall be 2 years beginning on June 1 and ending on May 31 of odd numbered years: Provided, That the term of office of initial members and alternate members shall begin on the effective date of this subpart. Each such member and alternate member shall serve during that portion of the term of office for which he is selected and has qualified and shall continue to serve until his successor is selected and has qualified.
§ 932.27 Selection.
Selection of members of the committee, and their respective alternates, shall be made in the appropriate numbers specified in § 932.25 by the Secretary from nominees nominated pursuant to this part or, in the discretion of the Secretary, from other persons eligible for nominations for such positions.
§ 932.28 Eligibility.
Each producer member of the committee shall, at the time of selection and during the member’s term of office, be a producer in the district for which selected, and except for producers who are members of cooperative handlers shall not be engaged in the handling of olives either in a proprietary capacity, or as a director, officer, or employee. Each handler member of the committee shall, at the time of selection and during the member’s term of office, be a handler in the group that the member represents or a director, officer, or employee of such handler. The public member and alternate public member of the committee shall not at the time of selection and during the term of office be engaged in or have a financial interest in the commercial production, marketing, buying, grading, or processing of olives, nor shall such member or alternate be an officer, director, member, or employee of any firm engaged in such activities.
§ 932.29 Nominations.
(a) Producer members. (1) Nominations for producer members of the committee, and their respective alternates, may be conducted according to the following procedures, or other procedures recommended by the committee and approved by the Secretary:
(i) Meetings shall be held in each producer district for the purpose of selecting candidates for the member and alternate member nominations;
(ii) Those candidates selected at the producer meetings shall be nominated by mail balloting of producers in that district;
(iii) The committee shall adopt, with approval of the Secretary, appropriate procedures to be observed for conducting producer nominations by mail: Provided, That the names of nominees shall be submitted to the Secretary prior to April 16 of the year in which nominations are made.
(2) Only producers, including duly authorized officers or employees of producers, shall participate in the nomination of producer members and alternate members. Each producer shall be entitled to cast only one vote for each nominee to be selected in the district in which the producer produces olives. No producer shall participate in the selection of nominees in more than one district. If a producer produces olives in more than one district, such producer shall select the district in which such producer will so participate and notify the committee of such choice.
(b) Handler members. (1) At a meeting or meetings called by the committee, the cooperative handlers shall nominate a qualified person for each member position and a qualified person for each alternate member position allocated to cooperative handlers as provided in § 932.25.
(2) At a meeting or meetings called by the committee, the independent handlers shall nominate a qualified person for each member position and a qualified person for each alternate member position allocated to independent handlers as provided in § 932.25.
(3) Each handler shall be entitled to cast only one vote for each nominee for cooperative handler member or alternate member or independent handler member or alternate member, as the case may be, which vote shall be weighed by the tonnages of olives handled by such handler during the crop year in which nominations are made and in the previous crop year.
(c) Public member. Nominations for the public member and alternate public member of the committee shall be submitted to the Secretary prior to April 16 of the year in which nominations are made. The committee shall prescribe procedures for the selection and voting for each candidate.
§ 932.30 Alternates.
An alternate for a member of the committee shall act in the place and stead of such member (a) during such member’s absence, and (b) in the event of such member’s removal, resignation, disqualification or death, until a successor for such member’s unexpired term has been selected and has qualified. Except as otherwise specifically provided in this subpart, the provisions of this part applicable to members also apply to alternate members. The committee or the chariman of the committee may request one or more alternates to attend any or all meetings notwithstanding the expected or actual attendance of the respective member or members.
§ 932.31 Failure to nominate.
If nominations for any position on the committee are not received by the Secretary by May 1 of the year in which nominations are to be made, the Secretary may select an eligible individual without regard to nomination.
§ 932.32 Acceptance.
Any person selected by the Secretary as a member or as an alternate member of the committee shall qualify by filing a written acceptance with the Secretary promptly after being notified of such selection.
§ 932.33 Vacancies.
To fill any vacancy occasioned by the failure of any person selected as a member, or as an alternate member of the committee to qualify, or in the event of the removal, resignation, disqualification, or death of any member or alternate member, a successor for such person’s unexpired term shall be nominated and selected in the manner set forth in § 932.29 insofar as such provisions are applicable. If nomination to fill any such vacancy is not made within 60 calendar days after such vacancy occurs, the Secretary may fill such vacancy without regard to nominations, but on the basis of the applicable representations and qualifications set forth in §§ 932.25, 932.27, and 932.28.
§ 932.34 Powers.
The committee shall have the following powers:
(a) To administer this subpart in accordance with its terms and provisions;
(b) To make rules and regulations to effectuate the terms and provisions of this subpart;
(c) To receive, investigate, and report to the Secretary complaints of violations of the provisions of this subpart; and
(d) To recommend to the Secretary amendments to this subpart.
§ 932.35 Duties.
The committee shall have, among others, the following duties:
(a) To act as intermediary between the Secretary and any producer or handler;
(b) To keep minutes, books, and other records, which shall clearly reflect all of its acts and transactions, and such minutes, books, and other records shall be subject to examination by the Secretary at any time;
(c) To make, subject to approval by the Secretary, scientific and other studies, and assemble data on the producing, handling, shipping, and marketing conditions relative to olives, which are necessary in connection with the performance of its official duties;
(d) To submit to the Secretary such available information with respect to olives as he may request or as the committee may deem desirable and pertinent;
(e) To select, from among its members, a chairman and other officers, and to adopt such rules and regulations for the conduct of its business as it may deem advisable;
(f) To appoint or employ such other persons as it may deem necessary, and to determine the salaries and define the duties of each such person;
(g) To submit to the Secretary, prior to the beginning of each fiscal year and not later than December 15, a budget of the anticipated expenses of the committee and the proposed assessment rate for such fiscal year, together with a report thereon.
(h) To cause the books of the committee to be audited by one or more certified public accountants at least once each fiscal year, and at such other times as the committee may deem necessary or as the Secretary may request. The report of each such audit shall show, among other things, the receipts and expenditures of funds, and at least two copies of each such audit report shall be submitted to the Secretary.
(i) To prepare monthly statements of its financial operations and make such statements, together with the minutes of its meetings, available at the office of the committee for inspection by any producer or handler, and to submit copies of such statements and minutes to the Secretary;
(j) To give reasonable advance notice of each meeting by mail addressed to each member, and such notice shall be given as widespread publicity as practicable. The same notice of meetings given to members shall be given to the Secretary;
(k) With the approval of the Secretary, to redefine the districts into which the area has been divided in § 932.21 and to reapportion the membership in accordance therewith: Provided, That any such changes reflect insofar as practicable shifts in olive acreage within the districts and area, the numbers of growers in the districts, the tonnage produced, and are equitable as to producers; and
(l) To investigate compliance with the provisions of this part.
§ 932.36 Procedure.
Decisions of the committee shall be by majority vote of the members, including alternates acting as members, present and voting, and a quorum must be present: Provided, That decisions requiring a recommendation to the Secretary on matters pertaining to grade and size regulations shall require at least 10 affirmative votes, at least 5 of which must be from producer members and at least 5 of which must be from handler members and, if the committee is increased by the addition of a public member, at least 11 affirmative votes shall be required, at least 5 of which must be from producer members and at least 5 of which must be from handler members. A quorum shall consist of at least 10 members, including alternates acting as members, and, if the committee is increased by the addition of a public member, a quorum shall consist of at least 11 members, including alternates acting as members. Except in case of an emergency, a minimum of 5 days advance notice shall be given with respect to any meeting of the committee. In case of an emergency, to be determined within the discretion of the chairman of the committee, as much advance notice of a meeting as is practicable in the circumstances shall be given. The committee may vote by mail or telegram upon due notice to all members, but any proposition to be so voted upon first shall be explained accurately, fully, and identically by mail or telegram to all members. When voted on by such method, at least 14 affirmative votes, of which seven shall be producer member votes and seven shall be handler member votes, shall be required for adoption and, if the committee is increased by the addition of a public member, votes by mail or telegram shall require at least 15 affirmative votes, of which at least 7 shall be producer member votes and at least 7 shall be handler member votes. The committee may recommend for the Secretary’s approval changes in the number of affirmative votes required for adoption of any proposition voted upon by means of a mail or telegram ballot: Provided, That the number of affirmative votes required for adoption shall not be less than 10, and in any case an equal number of producer member and handler member votes shall be required for adoption and, if the committee is increased by the addition of a public member, the number of affirmative votes required for adoption shall be increased by 1.
§ 932.37 Compensation and expenses.
The members of the committee and alternates when acting as members or at the request of the committee or its chairman shall serve without compensation, but shall be reimbursed for necessary expenses, as approved by the committee, incurred by them in the performance of their duties under this part.
Expenses and Assessments
§ 932.38 Expenses.
The committee is authorized to incur such expenses as the Secretary finds are reasonable and likely to be incurred by the committee for its maintenance and functioning and to enable it to exercise its powers and perform its duties in accordance with the provisions of this part. The funds to cover such expenses shall be acquired in the manner prescribed in § 932.39.
§ 932.39 Assessments.
(a) As each handler’s pro rata share of the expenses which the Secretary finds are reasonable and likely to be incurred by the committee during a fiscal year, each handler who first handles olives during the current crop year shall pay to the committee, upon demand, assessments less any amounts which may be credited pursuant to § 932.45, on all olives to be used in the production of packaged olives, including olives to be used in canned ripe olives of the “tree-ripened” type or green olives when such are regulated as packaged olives pursuant to § 932.52. The payment of assessments for maintenance and functioning of the committee may be required under this part throughout the period it is in effect irrespective of whether particular provisions thereof are suspended or become inoperative.
(b) The Secretary shall fix the rate of assessment to be paid by each such handler during a fiscal year in an amount designed to secure sufficient funds to cover the expenses which may be incurred during such period. At any time during or after the fiscal year, the Secretary may increase the rate of assessment in order to secure sufficient funds to cover any later finding by the Secretary relative to the expenses which may be incurred. Such increase shall be applied to all olives handled during the applicable crop year. In order to provide funds for the administration of the provisions of this part during the first part of a fiscal year before sufficient operation income is available from assessments, the committee may accept the payment of assessments in advance, and may also borrow money for such purpose.
(c) Any assessment not paid by a handler within a period of time prescribed by the committee may be subject to an interest or late payment charge, or both. The period of time, rate of interest and late payment charge shall be as recommended by the committee and approved by the Secretary. Subsequent to such approval, all assessments not paid within the presecribed period of time shall be subject to an interest or late payment charge or both.
§ 932.40 Accounting.
(a) If, at the end of a fiscal year, the assessments collected are in excess of expenses incurred, such excess shall be accounted for in accordance with one of the following:
(1) If such excess is not retained in a reserve as provided in paragraph (a)(2) of this section, the committee shall refund or credit to handler accounts the aforesaid excess. Each handler’s share of such excess funds shall be the amount of assessments such handler has paid in excess of such handler’s pro rata share of the actual net expenses of the committee for such fiscal year. Excess funds may be used temporarily by the committee to defray expenses of the subsequent fiscal year: Provided, That each handler’s share of such excess shall be made available to the handler by the committee within five months after the end of the fiscal year.
(2) The committee, with the approval of the Secretary, may carry over such excess into subsequent fiscal years as a reserve: Provided, That funds already in the reserve do not exceed approximately one fiscal year’s expenses. Such reserve funds may be used for any expenses authorized pursuant to § 932.38 and for necessary expenses of liquidation in the event of termination of this part. Upon such termination, any funds not required to defray the necessary expenses of liquidation shall be disposed of in such manner as the Secretary may determine to be appropriate: Provided, That to the extent practicable, such funds shall be returned pro rata to the persons from whom such funds were collected.
(b) All funds received by the committee pursuant to the provisions of this part shall be used solely for the purpose specified in this part and shall be accounted for in the manner provided in this part. The Secretary may at any time require the committee and its members to account for all receipts and disbursements.
(c) Upon the removal or expiration of the term of office of any member of the committee, such member shall account for all receipts and disbursements and deliver all property and funds in his possession to the committee, and shall execute such assignments and other instruments as may be necessary or appropriate to vest in the committee full title to all of the property, funds, and claims vested in such member pursuant to this part.
Research and Development
§ 932.45 Production research and marketing research and development projects.
(a) The following activities of the committee are authorized under this section.
(1) The committee may, with the approval of the Secretary, establish or provide for the establishment of production research, and marketing research and development projects designed to assist, improve or promote the marketing, distribution, and consumption or efficient production of California olives. Such projects may provide for any marketing research and development projects designed to assist, improve, or promote the marketing, distribution, and consumption or efficient production of California olives. Such projects may provide for any form of marketing promotion including paid advertising. The expenses of such research and projects shall be paid from funds collected pursuant to § 932.39 or from voluntary contributions. Voluntary contributions may be accepted by the committee only to pay the expenses of such projects: Provided, That the committee shall retain complete control over the use of such contributions which shall be free from any encumbrances.
(2) The committee, with the approval of the Secretary, may provide for crediting a portion of a handler’s direct expenditures for paid brand advertising for olives. Such expenditures may include, but are not limited to, money spent for advertising space in magazines, newspapers, outdoor media and transit or time charges for radio and television. No handler shall receive credit in excess of such handler’s pro rata share of the total monies allotted by the committee for brand advertising credit. Each advertisement must be published, broadcast or displayed during the fiscal year for which credit is requested. Before any creditable brand advertising may be undertaken pursuant to this paragraph (a)(2) of this section, the Secretary, upon recommendation by the committee, shall prescribe appropriate rules and regulations as are necessary to effectively regulate such activity.
(b) In recommending marketing research and development projects pursuant to this section, the committee shall give consideration to the following factors:
(1) The expected supply of olives in relation to market requirements;
(2) The supply situation among competing areas and commodities; and
(3) The need for marketing research with respect to any marketing development activity and the need for a coordinated effort with USDA’s Plentiful Food Program.
(c) In recommending production research projects pursuant to this section, the committee shall give consideration to the extent and need for assistance to, and improvement of California olive production.
(d) If the committee should conclude that a program of production research, marketing research, or development should be undertaken or continued pursuant to this section in any fiscal year, it shall submit the following for the approval of the Secretary:
(1) Its recommendations as to funds to be obtained pursuant to § 932.39 or voluntary contributions;
(2) Its recommendations as to any production research or marketing research project; and
(3) Its recommendation as to promotion activity and paid advertising.
(e) The committee shall, as soon as practicable, prepare and mail reports on current production research and marketing research and development projects to the Secretary and make a copy of such reports available at the committee office for examination by producers, handlers, or other interested parties.
Regulations
§ 932.50 Report of marketing policy.
At least 14 days prior to the start of each crop year (except that this period may be shortened by the committee not more than 5 days if warranted), the committee shall hold a meeting for the purpose of formulating a marketing policy for the coming crop year: Provided, That with respect to the 1982-83 crop year the committee shall hold a meeting for such purpose as soon as practicable. The committee shall prepare and submit to the Secretary promptly after each such meeting, a report setting forth its recommended marketing policy for the ensuing crop year. In the event it becomes advisable to modify such policy, because of changed supply, demand, or other conditions, the committee shall formulate a new policy and shall submit a report thereon to the Secretary. In developing the marketing policy, the committee shall give consideration to the handler carryover, production, probable quality and composition of olive sizes in the crop, trade demand, probable imports, whether producer prices are likely to exceed parity, the probable assessable tonnage and such other factors as may have a bearing on the marketing of olives or the administration of this part. Notice of the committee’s marketing policy, and of any modifications thereof, shall be given promptly by reasonable publicity to producers and handlers.
§ 932.51 Incoming regulations.
(a) Minimum standards for natural condition olives. (1) Except as otherwise provided in this section, no handler shall process any lot of natural condition olives for use in the production of packaged olives which has not first been:
(i) Weighed on scales sealed by the State of California Department of Weights and Measures, an official certified weight certificate issued thereon, and a copy of such certificate furnished to the Federal or Federal-State Inspection Service and the committee; and
(ii) Size-graded, either by sample or by lot, under the supervision of any such inspection service and classified into separate size designations and a certification issued with respect thereto by such inspection service. Such size designations shall be in accordance with those set forth in the U.S. Standards for Grades of Canned Ripe Olives (7 CFR part 52) or subsequent amendments thereto, or such sizes as may be recommended by the committee and established by the Secretary: Provided, That, for the purpose of this part, the size designations in said standards shall be deemed to include the following additional size designations.
| Designation(s) | Approximate count (per pound) | Average count range (per pound) |
|---|---|---|
| Subpetite | 181 and up. | |
| Petite | 160 | 141-180, inclusive. |
| Extra Large Sevillano “L” | 82 | 76-88, inclusive. |
| Extra Large Sevillano “C” | 70 | 65-75, inclusive. |
(2) Each handler may satisfy the incoming and outgoing size requirements for any lot of olives under the conditions set forth in subdivisions (i), (ii), and (iii) of this paragraph: Provided, That any such lot shall be kept intact under surveillance by the inspection services:
(i) When the Secretary authorizes use of limited size olives for limited use styles during any crop year, any lot of limited use size olives may be used in the production of packaged olives for limited use styles without an outgoing inspection if such olives are within the following average count range for that variety group, and meet such further size requirements as recommended by the committee with the approval of the Secretary:
| Variety | Average count range (per pound) |
|---|---|
| Group 1, except Ascolano, Barouni, and St. Agostino | 76-88, inclusive. |
| Group 1, Ascolano, Barouni and St. Agostino | 89-140, inclusive. |
| Group 2, except Obliza | 141-180, inclusive. |
| Group 2, Obliza | 128-140, inclusive. |
(ii) When limited use size olives are not authorized for limited use styles during any crop year, any lot of the minimum canning size olives may be used in the production of packaged olives for limited use styles without an outgoing inspection for size if such olives are within the following average count range for that variety group, and meet such further size requirements as recommended by the committee with approval of the Secretary:
| Variety | Average count range (per pound) |
|---|---|
| Group 1, except Ascolano, Barouni, and St. Agostino | 65-75, inclusive. |
| Group 1, Ascolano, Barouni and St. Agostino | 65-88, inclusive. |
| Group 2, except Obliza | 128-140, inclusive. |
| Group 2, Obliza | 106-121, inclusive. |
(iii) The committee may recommend, subject to approval by the Secretary, size certification procedures for olives used in the production of canned whole or pitted styles of olives: Provided, That if size certification for canned whole or pitted styles is implemented, marketing order sizes shall be adopted and size requirements in the U.S. Grade Standards shall not apply. Size certification of such styles shall be applicable to any or all sizes of olives recommended by the committee and approved by the Secretary pursuant to § 932.52(a)(2). Size certification procedures recommended to the Secretary may include but are not limited to the establishment of average count ranges, acceptable count ranges, and approximate counts (midpoints) for each variety or variety group.
(3) Each handler shall, under the supervision of any such inspection service, dispose of into noncanning use an aggregate quantity of olives, comparable in size and characteristics and equal to the quantities shown on the certification for each lot to be:
(i) Variety Group 1 olives, except the Ascolano, Barouni, and St. Agostino varieties, of a size which individually weigh less than
(ii) Variety Group 1 olives of the Ascolano, Barouni, and St. Agostino varieties of a size which individually weigh less than
(iii) Variety Group 2 olives, except the Obliza variety, of a size which individually weigh less than
(iv) Variety Group 2 olives of the Obliza variety of a size which individually weigh less than
(v) Such other sizes for the foregoing variety groups as are not authorized for limited use pursuant to § 932.52; and
(vi) Olives classified as culls.
(4) Notwithstanding the provisions of paragraph (a)(3) of this section, a handler may (i) meet any deficit in such handler’s undersize obligation in one variety by disposing of, under supervision of the inspection service, as other than canned ripe olives, an equal quantity of undersize olives, of any other variety, or by so disposing of an equal quantity of olives of that or any other variety of sizes larger than undersize of a quality better than culls, and (ii) meet any deficit in such handler’s cull obligation in one variety by so disposing of an equal quantity of cull olives of any other variety, or by so disposing of an equal quantity of olives of any variety of sizes larger than undersize of a quality better than culls.
(5) Each handler shall hold at all times a quantity of olives equal to the quantities required in paragraph (a)(3) of this section, less any quantity previously disposed of as specified in such subparagraph.
(b) Whenever a handler receives a lot of natural condition olives, or makes a separation resulting in a sublot, solely for use in the production of green olives or canned ripe olives of the “tree-ripened” type, he may handle such lot or sublot without regard to the provisions of this section and § 932.52 only if (1) he notifies the committee upon receiving such a lot or making such a separation; (2) the identity of all such lots and sublots of olives is maintained by keeping them separate and apart from other olives he receives; (3) the packaged olives produced from such lots and sublots after processing are canned ripe olives of the “tree-ripened” type or green olives; and (4) there are no outgoing regulations pursuant to § 932.52 then applicable to packaged olives that are canned ripe olives of the “tree-ripened” type or green olives.
2. At 81 FR 46569, July 18, 2016, in § 932.51 paragraphs (a)(1)(ii) through (a)(5) were suspended indefinitely.
§ 932.52 Outgoing regulations.
(a) Minimum standards for packaged olives. No handler shall use processed olives in the production of packaged olives or ship such packaged olives unless they have first been inspected as required pursuant to § 932.53 and meet each of the following applicable requirements:
(1) Canned ripe olives, other than those of the “tree-ripened” type, shall grade at least U.S. Grade C as such grade is defined in the U.S. Standards for Grades of Canned Ripe Olives (7 CFR part 52) or subsequent amendments thereto, or as modified by the committee, with approval of the Secretary, for purposes of this part.
(2) Except as provided in § 932.51(a) (1) and (2), canned whole ripe olives, other than those of the “tree-ripened” type, shall conform to the single size designations set forth in the U.S. Standards for Grades of Canned Ripe Olives (7 CFR part 52) or subsequent amendments thereto, or as modified by the committee, with the approval of the Secretary, and shall be of a size not smaller than the following applicable size requirements, tolerances and percentages: Provided, That the Secretary, on the basis of a recommendation of the committee or other available information, may change such sizes, tolerances or percentages:
(i) With respect to variety group 1 olives, except the Ascolano, Barouni, and St. Agostino varieties, the individual fruits shall each weigh no less than
(ii) With respect to variety group 1 olives of the Ascolano, Barouni and St. Agostino varieties, the individual fruits shall each weigh not less than
(iii) With respect to variety group 2 olives, except the Obliza variety, the individual fruits shall each weigh not less than
(iv) With respect to Variety Group 2 olives of the Obliza variety, the individual fruits shall each weigh not less than
(3) Subject to the provisions set forth in paragraph (a)(4) of this section and § 932.51(a) (1) and (2), processed olives to be used in the production of canned pitted ripe olives, other than those of the “tree-ripened” type, shall meet the same requirements as prescribed pursuant to paragraph (a)(2) of this section: Provided, That olives smaller than those so prescribed, as recommended annually by the committee and approved by the Secretary, may be authorized for limited use but any such limited use size olives so used shall be not smaller than the following applicable minimum size: Provided further, That each such minimum size may also include a size tolerance (specified as a percent) as recommended by the committee and approved by the Secretary.
(i) Variety Group 1 olives, except the Ascolano, Barouni, and St. Agostino varieties, of a size which individually weigh
(ii) Variety Group 1 olives of the Ascolano, Barouni, or St. Agostino varieties, of a size which individually weigh
(iii) Variety Group 2 olives, except the Obliza variety, of a size which individually weigh
(iv) Variety Group 2 olives of the Obliza variety, of a size which individually weigh
(4) The Secretary may, upon recommendation of the committee, restrict the total quantity of limited use size olives for limited use during any crop year. Such restricted quantity shall be apportioned among the handlers by applying a percentage, established annually by the Secretary upon recommendation by the committee, to each handler’s total receipts of limited use size olives during such crop year.
(5) Canned ripe olives of the “tree-ripened” type and green olives shall meet such grade, size, and pack requirements as may be established by the Secretary based upon the recommendation of the committee or other available information.
(6) The size designations used in this section mean the size designations described in (a)(1)(ii) of § 932.51.
(7) For the purposes of this part the committee may, with the approval of the Secretary, specify the styles of olives, including the requirements with respect thereto, for limited use.
(b) Disposition requirements for limited use size olives. (1) The requirements of this paragraph are in addition to and not in substitution of the requirements of § 932.51(a)(5).
(2) Each handler shall, under the supervision of the Processed Products Branch, USDA, or the Federal or Federal-State Inspection Service, dispose of limited use size olives into limited use or into noncanning use: Provided, That whenever a handler’s use of limited use size olives is restricted pursuant to § 932.52(a)(4), such handler shall dispose of into noncanning use that quantity of such limited use size olives which is in excess of the quantity permitted for limited use.
(3) Notwithstanding the provisions of paragraph (b)(2) of this section, a handler may meet any deficit in his obligation to dispose of limited use size olives into noncanning use pursuant to this paragraph by disposing of, under supervision of the inspection service, an equivalent quantity of olives of a size larger than the limited use size and of a quality better than culls.
(4) Each handler shall hold at all times a quantity of olives eligible to meet the disposition requirements of this paragraph less any quantity previously disposed of as specified in paragraphs (b) (2) and (3) of this section.
§ 932.53 Inspection and certification.
(a) Each handler shall have the olives such handler handles inspected and certified as for conformance with all applicable requirements pursuant to §§ 932.51 and 932.52 with respect to such handling. Inspection and certification for conformance with the requirements of § 932.51 shall be by the Federal or Federal-State Inspection Service, including certification as to size, and inspection for conformance with the requirements of § 932.52 shall be by the Processed Products Branch, USDA, except that the disposition of olives, other than as canned ripe olives, in accordance with the requirements of § 932.51(a)(3) may be under the supervision of any of such inspection services. A copy of each certification by the said inspection services, pursuant to the provisions of this section, shall be furnished to the committee.
(b) The committee may enter into an agreement with either or both of said inspection services with respect to the costs of the inspection required by this section and may collect from handlers their respective pro rata share of such costs.
§ 932.54 Transfers.
Transfers within the area of olives from one handler to another for further handling within the area are permitted. Whenever such a transfer of olives is made, the transferring handler shall comply with all applicable regulations up to the time of such transfer, and the receiving handler shall comply with all applicable regulations subsequent to such transfer: Provided, That the disposition obligations referable to transferred natural condition olives pursuant to § 932.51(a)(3) may be transferred along with the olives, in which event the receiving handler shall comply with the disposition obligations. Transfers of olives from within the area to any point outside the area shall be subject to such requirements with respect to inspection, holding, disposition, and reporting as may be established by the Secretary on the basis of recommendations by the committee or other available information.
§ 932.55 Exemption.
(a) The provisions of this subpart shall not be applicable to processed olives on hand on the effective date of this subpart but only if the identity of such olives is maintained and such olives are not commingled with olives processed after such effective date in the production of packaged olives. However, olives on hand on such effective date that are commingled with olives processed after such date and are used in the production of packaged olives shall be subject to all relevant provisions applicable to the handling of packaged olives.
(b) Upon the basis of the recommendation submitted by the committee or from other available information, the Secretary may relieve from any or all requirements under this part the handling of olives in such minimum quantities, in such types of shipments, or for such specified purposes (including shipments to facilitate the conduct of marketing research and development projects established pursuant to § 932.45) as the committee with the approval of the Secretary may prescribe.
(c) The committee, with the approval of the Secretary, shall prescribe rules, regulations, and safeguards as it may deem necessary to ensure that olives exempted under the provisions of this section are handled only as authorized.
Reports and Records
§ 932.60 Reports of acquisitions, sales, uses, shipments and creditable brand advertising.
(a) Each handler shall file such reports of his acquisitions, sales, uses, and shipments of olives, as may be requested by the committee.
(b) Upon the request of the committee, each handler shall furnish such other reports and information as are needed to enable the committee to perform its functions under this part.
(c) Each handler shall file such reports of creditable brand advertising as recommended by the committee and approved by the Secretary.
§ 932.61 Records.
Each handler shall maintain such records of olives acquired, held, and disposed of by such handler as may be prescribed by the committee and needed by it to perform its functions under this subpart. Such records shall be retained for at least two years beyond the crop year in which the transaction occurred. The committee, with the approval of the Secretary, may prescribe rules and regulations to include under this section handler records that detail advertising and promotion activities which the committee may need to perform its functions under § 932.45(a).
§ 932.62 Verification of reports.
For the purpose of checking and verifying reports filed by handlers, the committee, through its duly authorized representatives, shall have access to any handler’s premises during regular business hours, and shall be permitted at any such time to: (a) Inspect such premises and any olives held by such handler, and any and all records of the handler with respect to such handler’s acquisition, sales, uses and shipments of olives; and (b) inspect any and all records of such handler with respect to advertising and promotion activities subject to § 932.45(a) and maintained by the handler pursuant to § 932.61. Each handler shall furnish all labor and equipment necessary to make such inspections.
§ 932.63 Confidential information.
All reports and information submitted by handlers pursuant to the provisions of this part shall be received by, and at all times be in the custody of one or more designated employees of the committee. No such employees shall disclose to any person, other than the Secretary upon request therefor, data, or information obtained or extracted from such reports and records which might affect the trade position, financial condition, or business operation of the particular handler from whom received: Provided, That such data and information may be combined, and made available in the form of general reports in which the identities of the individual handlers furnishing the information is not disclosed.
Miscellaneous Provisions
§ 932.65 Compliance.
Except as provided in this part, no person shall handle olives, the handling of which has been prohibited by the Secretary in accordance with the provisions of this part, and no person shall handle olives except in conformity with the provisions of this part and the regulations issued hereunder.
§ 932.66 Right of the Secretary.
The members of the committee (including successors and alternates) and any agents or employees appointed or employed by the committee, shall be subject to removal or suspension at any time by the Secretary. Each and every order, regulation, determination, decision, or other act of the committee shall be subject to the continuing right of the Secretary to disapprove of the same at any time. Upon such disapproval, such disapproved action shall be deemed null and void except as to acts done in reliance thereon or in compliance therewith prior to such disapproval by the Secretary.
§ 932.67 Effective time.
The provisions of this subpart, as well as any amendments to this subpart, shall become effective at such time as the Secretary may declare, above his signature, and shall continue in force until terminated in one of the ways specified in § 932.68.
§ 932.68 Termination.
(a) The Secretary may, at any time, terminate the provisions of this subpart by giving at least one day’s notice by means of a press release or in any other manner which he may determine.
(b) The Secretary shall terminate or suspend the operation of any or all of the provisions of this subpart whenever he finds such provisions do not tend to effectuate the declared policy of the act.
(c) The Secretary shall terminate the provisions of this subpart at the end of any crop year whenever the Secretary finds that such termination is favored by a majority of producers who, during a representative period determined by the Secretary, have been engaged in the area in the production of olives for market as packaged olives: Provided, That such majority have during such representative period produced for market more than 50 percent of the volume of such olives produced for market, but such termination shall be effective only if announced on or before July 15 of the then current crop year.
§ 932.69 Proceedings after termination.
(a) Upon the termination of the provisions of this subpart, the members of the committee then functioning shall continue as joint trustees, for the purpose of liquidating the affairs of the committee, of all funds and property then in the possession or under the control of the committee including claims for any funds unpaid or property not delivered at the time of such termination. Action by such trustee shall require the concurrence of a majority of the trustees.
(b) Said trustees shall continue in such capacity until discharged by the Secretary; shall, from time to time, account for all receipts and disbursements, and deliver all property on hand, together with all books and records of the committee and the joint trustees, to such person as the Secretary may direct; and shall, upon the request of the Secretary, execute such assignments or other instruments necessary or appropriate to vest in such person full title and right to all of the funds, property, and claims vested in the committee or the joint trustees.
(c) Any person to whom funds, property, or claims have been transferred or delivered by the committee or the joint trustees, pursuant to this section, shall be subject to the same obligations imposed upon the members of the said committee and upon said joint trustees.
§ 932.70 Effect of termination or amendment.
Unless otherwise expressly provided by the Secretary, the termination of this subpart or 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; (b) release or extinguish any violation of this subpart or of any regulation issued thereunder; or (c) affect or impair any rights or remedies of the Secretary or any other person with respect to any such violation.
§ 932.71 Duration of immunities.
The benefits, privileges, and immunities conferred upon any person by virtue of this subpart shall cease upon the termination of this subpart, except with respect to acts done under and during the existence of this subpart.
§ 932.72 Agents.
The Secretary may, by a designation in writing, name any person, including any officer or employee of the U.S. Government or name any service or division in the U.S. Department of Agriculture, to act as his agent or representative in connection with any of the provisions of this subpart.
§ 932.73 Derogation.
Nothing contained in this subpart is or shall be construed to be, in derogation or in modification of the rights of the Secretary or of the United States to exercise any powers granted by the act or otherwise, or, in accordance with such powers, to act in the premises whenever such action is deemed advisable.
§ 932.74 Personal liability.
No member or alternate member of the committee or any employee or agent thereof 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, alternate member, employee, or agent, except for acts of dis- honesty.
§ 932.75 Separability.
If any provision of this subpart is declared invalid or the applicability thereof to any person, circumstance, or thing is held invalid, the validity of the remainder of this subpart or the applicability thereof to any other person, circumstance, or thing shall not be affected thereby.
Subpart B – Administrative Requirements
§ 932.108 Noncanning olives.
Noncanning olives means those olives which, pursuant to the requirements of § 932.51(a)(2), are to be disposed of as other than canned ripe olives.
§ 932.109 Canned ripe olives of the tree-ripened type.
(a) Canned ripe olives of the tree-ripened type means packaged olives, not oxidized in processing, that are prepared from a lot or sublot of natural condition olives of advanced maturity which:
(1) Range in color from pinkish red, with some greenish cast, to black; and
(2) Have not more than 10 percent, by count, of off-color olives (off-color means those olives whose greenish cast covers more than 50 percent of the surface of the individual olives).
(b) [Reserved]
§ 932.121 Producer districts.
Pursuant to the authority in § 932.35(k), commencing with the term of office beginning June 1, 2005, district means any of the following geographical areas of the State of California:
(a) District 1 shall include the counties of Alpine, Tuolumne, Stanislaus, Santa Clara, Santa Cruz, and all counties north thereof.
(b) District 2 shall include the counties of Mono, Mariposa, Merced, San Benito, Monterey and all counties south thereof.
§ 932.125 Producer representation on the committee.
Pursuant to the authority in §§ 932.25 and 932.35(k), commencing with the term of office beginning June 1, 2005, representation shall be apportioned as follows:
(a) District 1 shall be represented by three producer members and alternates.
(b) District 2 shall be represented by five producer members and alternates.
§ 932.129 Nomination procedures for producer members.
Members and alternate members on the Committee who represent producers shall be nominated in accordance with the procedures specified in either paragraph (a) or paragraph (b) of this section as the Committee may determine.
(a) Mail ballot voting. (1) The Committee shall schedule a meeting, prior to March 1 of each odd-numbered year, in each producing district for the purpose of selecting candidates for member and alternate member nominations. A notice of such meetings will be mailed to each producer of record in each district. The nomination process is as follows:
(i) Any person who produces olives in a particular district may offer the name of any producer from that district as a candidate for either a member or alternate member position in said district.
(ii) A producer, who produces olives in more than one district, can be selected as a candidate for a member or alternate member position in only one district.
(iii) The Committee will notify by mail producers who are selected as candidates but are not in attendance at such meetings. Such producers have the right to decline such listing on the ballot within 7 days of mailing such notice.
(iv) In the event a producer cannot attend a meeting but wishes to be included on the ballot, that producer may notify the Committee office in writing no later than 7 days after the date of the nomination meeting for the producer’s district and request that the producer’s name be included on the ballot.
(v) In the event that no candidates or an insufficient number of candidates are selected at such meetings for the producer members and alternates in the respective districts, the Committee will give written notice to producers in said district that additional names may be submitted for the specified position(s).
(2) Following such meetings, and no later than March 15 of each odd-numbered year, the Committee shall prepare and mail a ballot to each producer that delivered olives during that crop year in each district.
(i) A producer who produces olives in more than one district must choose the district in which the producer will vote and notify the Committee of that choice. If the Committee is not notified and more than one ballot is received from such a producer, the first ballot received will be counted. Candidates may only vote in the district in which they are seeking nomination.
(ii) Each ballot will list separately the names of candidates for the member positions and the names of candidates for the alternate member positions for said district.
(iii) A ballot will be mailed to producers of record to give them an opportunity to vote. Committee records will be used to determine the list of producers eligible to cast ballots. However, any producer who is not identified in such records may receive a ballot if the Committee determines that such producer is eligible to participate in nominations in that district.
(iv) A producer may cast a vote for as many candidates as there are member or alternate positions in said district.
(v) The candidate on each list, as prescribed in paragraph (a)(2)(ii) of this section, who receives the most votes will be the nominee for the first position, and until all positions for that district are filled, the candidates receiving the second, third and fourth highest number of votes will be the nominees for the second, third and fourth position respectively.
(vi) In the event of a tie which would result in elimination of a tied candidate, a second ballot with the names of those tied candidates will be mailed to producers in said district for another vote.
(b) Nomination meetings. In lieu of the mail ballot nomination procedure specified in paragraph (a) of this section, the Committee may schedule nomination meetings. In such an event, the following procedure will apply:
(1) Prior to March 15 of each odd-numbered year, the Committee shall schedule a nomination meeting to be held in each district for the purpose of obtaining nominees for producer members and alternate members for such district.
(2) Nominations for members and balloting thereon shall precede nominations and balloting for alternate members.
(3) The candidate for each position who receives the highest number of votes shall be the nominee for the position: Provided, That such candidate receives a majority of the ballots cast. If no candidate receives such a majority, the two candidates who received the highest number of votes shall participate in a run-off balloting to determine which is the nominee.
(c) For the purposes of this section, a producer is a person engaged in a proprietary capacity as a single business unit in the production of olives for market as packaged olives and includes an individual (owner-operated), partnership, corporation, association, institution, or other legal business unit.
(d) Determination of producer eligibility. (1) Only producers (including duly authorized officers or employees of producers) who produced olives within the district shall participate in the nomination and election of producer members and alternates.
(2) Each producer (as defined in paragraph (c) of this section) shall be entitled to cast only one vote for each position.
(3) A producer having olive acreage in more than one district may participate in nominations and elections in only one district. The district in which the producer wishes to participate shall be the producer’s choice.
(4) Any member of a producer’s family (husband, wife, son or daughter) may vote on behalf of an owner-operated, landlord-tenant, family enterprise, or other farming unit.
(5) Any authorized officer or employee of a corporation which is a producer may vote.
(6) Any authorized member of a partnership which is a producer may vote.
(7) Power of attorney (proxies) for voting purposes are not accepted.
§ 932.130 Public member and alternate public member eligibility requirements and nomination procedures.
(a) Eligibility requirements. (1) The public member and alternate public member shall not be a producer, handler, or family member (husband, wife, son or daughter) of a producer or handler of olives and shall have no direct financial interest in, nor be engaged in, the commercial production, marketing, buying, grading or processing of olives; nor shall they be either an officer, director, or employee, or family member of an officer, director, or employee of any firm engaged in such activities.
(2) The public member and alternate public member should be able to devote sufficient time and must express a willingness to attend subcommittee and committee activities regularly and to familiarize themselves with the background and economics of the olive industry.
(3) The public member and alternate public member must be residents of California.
(b) Nomination procedures. (1) Prior to April 16 of the year in which nominations are made, the Committee will recommend to the Secretary a public member and alternate public member for the Committee for a two-year term of office beginning June 1 and ending May 31 of odd numbered years.
(2) The Committee will solicit, interview and recommend to the Secretary its nominees for public member and alternate public member.
(3) A majority vote is required in Committee actions concerning the nomination of the public member and alternate public member.
§ 932.136 Use of communication technology.
The Committee may conduct meetings by any means of audio and/or audiovisual communication technology available that effectively assembles members and alternates, and facilitates open communication; Provided, That, quorum and voting requirements specified in § 932.36 for physically assembled meetings shall apply. The Committee may also vote electronically; Provided, That, such voting shall be subject to the same requirements specified for mail voting in § 932.36.
§ 932.139 Late payment and interest charges.
(a) The committee shall impose a late payment charge on any handler whose assessment has not been received in the committee’s office, or the envelope containing the payment legibly postmarked by the U.S. Postal Service, within 30 days of the invoice date shown on the handler’s assessment statement. The late payment charge shall be five percent of the unpaid balance.
(b) In addition to that specified in paragraph (a) of this section, the committee shall impose an interest charge on any handler whose assessment payment has not been received in the committee’s office, or the envelope containing the payment legibly postmarked by the U.S. Postal Service, within 30 days of the invoice date. The interest charge shall be the current commercial prime rate of the committee’s bank plus two percent which shall be applied to the unpaid balance and late payment charge for the number of days all or any part of the assessment specified in the handler’s assessment statement is delinquent beyond the 30 day payment period.
(c) The committee, upon receipt of a late payment equal to or greater than the assessment specified on the handler’s assessment statement, shall promptly notify the handler (by registered mail) of any late payment charge and/or interest due as provided in paragraphs (a) and (b) of this section. If such charges are not paid, or the envelope containing payment is not legibly postmarked by the U.S. Postal Service, within 30 days of the date on such notification, late payment and interest charges as provided in paragraphs (a) and (b) of this section will accrue on the unpaid amount.
§ 932.149 Modified minimum quality requirements for specified styles of canned olives of the ripe type.
(a) Except as otherwise provided in this section, the minimum quality requirements prescribed in § 932.52(a)(1) are modified as follows, for specified styles of canned olives of the ripe type:
(1) Canned whole and pitted olives of the ripe type shall meet the minimum quality requirements as prescribed in table 1 of this section;
(2) Canned sliced, segmented (wedged), and halved olives of the ripe type shall meet the minimum quality requirements as prescribed in table 2 of this section;
(3) Canned chopped olives of the ripe type shall meet the minimum quality requirements as prescribed in table 3 of this section; and shall be practically free from identifiable units of pit caps, end slices, and slices (“practically free from identifiable units” means that not more than 10 percent, by weight, of the unit of chopped style olives may be identifiable pit caps, end slices, or slices); and,
(4) Canned broken pitted olives of the ripe type shall meet the minimum quality requirements as prescribed in table 4 of this section;
(5) A lot of canned ripe olives is considered to meet the requirements of this section if all or most of the sample units meet the requirements specified in tables 1 through 4 of this section: Provided, That the number of sample units which do not meet the requirements specified in tables 1 through 4 of this section does not exceed the acceptance number prescribed for in the sample size provided in table I of 7 CFR 52.38: Provided further, That there is no off flavor in any sample unit.
Table 1 – Whole and Pitted Style
[Defects by count per 50 olives]
| FLAVOR | Reasonably good; no “off” flavor |
| FLAVOR (Green Ripe Type) | Free from objectionable flavors of any kind |
| SALOMETER | Acceptable Range in degrees: 3.0 to 14.0 |
| COLOR | Reasonably uniform with not less than 60% having a color equal or darker than the USDA Composite Color Standard for Ripe Type |
| CHARACTER | Not more than 5 soft units or 2 excessively soft units |
| UNIFORMITY OF SIZE | 60%, by visual inspection, of the most uniform in size. The diameter of the largest does not exceed the smallest by more than 4mm |
| DEFECTS: | |
| Pitter Damage (Pitted Style Only) | 15 |
| Major Blemishes | 5 |
| Major Wrinkles | 5 |
| Pits and Pit Fragments (Pitted Style Only) | Not more than 1.3% average by count |
| Major Stems | Not more than 3 |
| HEVM | Not more than 1 unit per sample |
| Mutilated | Not more than 3 |
| Mechanical Damage | Not more than 5 |
| Split Pits or Misshapen | Not more than 5 |
Table 2 – Sliced, Segmented (Wedged), and Halved Styles
[Defects by count per 255 grams]
| FLAVOR | Reasonably good; no “off” flavor |
| SALOMETER | Acceptable Range in degrees: 3.0 to 14.0 |
| COLOR | Reasonably uniform with no units lighter than the USDA Composite Color Standard for Ripe Type |
| CHARACTER | Not more than 13 grams excessively soft |
| DEFECTS: | |
| Pits and Pit Fragments | Average of not more than 1 by count per 300 grams |
| Major Stems | Not more than 3 |
| HEVM | Not more than 2 units per sample |
| Broken Pieces and End Caps | Not more than 125 grams by weight |
Table 3 – Chopped Style
[Defects by count per 255 grams]
| FLAVOR | Reasonably good; no “off” flavor |
| SALOMETER | Acceptable Range in degrees: 3.0 to 14.0 |
| COLOR | Reasonably uniform with no units lighter than the USDA Composite Color Standard for Ripe Type |
| DEFECTS: | |
| Pits and Pit Fragments | Average of not more than 1 by count per 300 grams |
| Major Stems | Not more than 3 |
| HEVM | Not more than 2 units per sample |
Table 4 – Broken Pitted Style
[Defects by count per 255 grams]
| FLAVOR | Reasonably good; no “off” flavor |
| SALOMETER | Acceptable Range in degrees: 3.0 to 14.0 |
| COLOR | Reasonably uniform with no units lighter than the USDA Composite Color Standard for Ripe Type |
| CHARACTER | Not more than 13 grams excessively soft |
| DEFECTS: | |
| Pits and Pit Fragments | Average of not more than 1 by count per 300 grams |
| Major Stems | Not more than 3 |
| HEVM | Not more than 2 units per sample |
(b) Terms used in this section shall have the same meaning as are given to the respective terms in the current U.S. Standards for Grades of Canned Ripe Olives (7 CFR part 52): Provided, That the definition of “broken pitted olives” is as follows: “Broken pitted olives” consist of large pieces that may have been broken in pitting but have not been sliced or cut.
§ 932.150 Modified minimum quality requirements for canned green ripe olives.
The minimum quality requirements prescribed in § 932.52 (a)(1) of this part are hereby modified with respect to canned green ripe olives so that no requirements shall be applicable with respect to color and blemishes of such olives.
§ 932.151 Incoming regulations.
(a) Inspection stations. Natural condition olives shall be weighed only at inspection stations which shall be a plant of a handler or other place having facilities for weighing such olives: Provided, That such location and facilities are satisfactory to the committee: Provided further, That upon prior application to, and approval by, the committee, a handler may receive olives at an inspection station other than the one where the lot was weighed.
(b) Lot identification. (1) Immediately upon receipt of each lot of natural condition olives, the handler shall complete Form COC 3A or 3C, weight and grade report or such other lot identification form as may be approved by the committee, which shall contain at least the following:
(i) Lot number;
(ii) Date;
(iii) Variety; and
(iv) Number and type containers.
(2) The handler shall maintain identity of such lot of olives with its corresponding lot weight and grade report.
(c) Weighing. Each lot of natural condition olives shall be separately weighed to determine the net weight of olives.
(d) Handler incoming responsibility – (1) General. The handler is responsible for the proper performance of all actions connected with the identification of lots of olives, the weighing of boxes or bins, the taking of samples, and the furnishing of necessary personnel for the carrying out of such actions.
(2) Certification. (i) For each lot of olives that are weighed, the handler shall complete Form COC-3A or 3C, weight and grade report, which shall contain at least the following:
(A) Name of handler;
(B) Name of producer;
(C) County of production;
(D) Applicable lot number;
(E) Weight certificate number;
(F) Net weight;
(G) Number and type of containers;
(H) Date received;
(I) Time received; and
(J) Weight of sample.
(ii) The completed Form COC-3A or 3C shall be furnished to the committee, which shall certify thereon that the lot was weighed as required by § 932.51 if in accordance with the facts.
(e) Disposition of noncanning olives – (1)(i) Notification and inspection of noncanning olives. Prior to disposition of noncanning olives the handler shall complete Form COC-5, report of limited and undersize and cull olives inspection and disposition, which shall contain the following:
(A) Type and number of containers;
(B) Type of olives (undersize or culls);
(C) Net weight;
(D) Variety;
(E) Outlet (green olives, olive oil, etc.); and
(F) Consignee.
(ii) Before disposition of such olives, the completed Form COC-5 shall be furnished to the committee.
(2) Control and surveillance. Noncanning olives that have been reported on Form COC-5 shall, unless such olives are disposed of immediately after receipt, be identified by fixing to each bin or pallet of boxes a COC control card which may be obtained from the committee. Such olives shall be kept separate and apart from other olives in the handler’s possession and shall be disposed of only in the outlet shown on Form COC-5.
(3) Time period for disposition. All required disposition of noncanning olives shall be completed not later than September 30 of the crop year following the one in which the obligation is incurred or such later date that a handler may specify in a notice filed with the committee at least 15 days prior to September 15 of such subsequent crop year: Provided, That such notice shows that such handler has a sufficient quantity of olives held in storage to meet his obligation and such later date is not later than the date when he will have completed his disposition of olives of the crop year of obligation.
(4) Olives not subject to incoming regulation requirements. Except as otherwise prescribed in § 932.51(b), any lot of olives to be used solely in the production of green olives or canned ripe olives of the “tree ripened” type shall not be subject to incoming regulation: Provided, That the applicable requirements of § 932.51(b) are met and the handler notifies the committee, in writing, that such lot is to be so used. Notice may be given by writing on the weight certificate “Lot to be used solely for use in the production of green olives or tree ripened olives” and a copy of such weight certificate given to the committee.
(f) Partially exempted lots. (1) Pursuant to § 932.55, any handler may process any lot of natural condition olives for use in the production of packaged olives which has not first been weighed as an individual lot as required by § 932.51(a)(1)(i) but was combined with any other lot or lots of natural condition olives, only if:
(i) All the olives in the combined lot are delivered to the handler in the same day;
(ii) The total net weight of the olives delivered to the handler by any person in such day does not exceed 500 pounds;
(iii) Each such person had authorized combination of his lot with other lots; and
(iv) The combined lot of the natural condition olives is weighed as required by § 932.51(a)(1)(i) prior to processing the olives.
(2) Whenever the natural condition olives in partially exempt individual lots are combined with other such olives as provided in paragraph (f)(1) of this section, the provision of the section applicable on individual lots shall apply instead to a combined lot.
(3) Each such handler shall file with the committee a weekly report showing for each day of the week the respective quantity in combined lots together with each person’s authorization for combining lots. The report shall be filed upon a form supplied by the committee.
(g) Additional Marketing Order Size Designations. Pursuant to the authority in § 932.51(a)(1)(ii), the following additional size designations are established:
| Designation(s) | Approximate count (per pound) | Average count range (per pound) |
|---|---|---|
| Subpetite | 181 and up. | |
| Petite | 166 | 141-180, inclusive. |
| Extra Large Sevillano “L” | 86 | 76-90, inclusive. |
| Extra Large Sevillano “C” | 70 | 65-75, inclusive. |
§ 932.152 Outgoing regulations.
(a) Inspection stations. Processed olives shall be sampled and inspected only at an inspection station which shall be any olive processing plant having facilities for in-line or lot inspection which are satisfactory to the Inspection Service and the Committee; or an olive processing plant which has an approved Quality Assurance Program in effect.
(b) Inspection – General. Inspection of packaged olives for conformance with § 932.52 shall be by a Quality Assurance Program approved by the Processed Products Branch (PPB), USDA; or by in-line or lot inspection. A PPB approved Quality Assurance Program shall be pursuant to a Quality Assurance contract as referred to in § 52.2.
(c) Certification. (1) Each handler shall furnish daily to the Inspection Service a copy of a pack report for the preceding work day which shall contain at least the following:
(i) The total number of cases of packaged olives;
(ii) Number of cans per case;
(iii) Can size;
(iv) Can code;
(v) Variety;
(vi) Fruit size; and
(vii) Style.
(2) The Inspection Service shall issue for each day’s pack a signed certificate covering the quantities of such packaged olives which meet all applicable minimum quality and size requirements. Each such certificate shall contain at least the following:
(i) Date;
(ii) Place of inspection;
(iii) Name and address of handler;
(iv) Can code;
(v) Variety;
(vi) Fruit size;
(vii) Can size;
(viii) Style;
(ix) Total number of cases;
(x) Number of cans per case;
(xi) And statement that packaged olives meet the effective minimum quality requirements for canned ripe olives as warranted by the facts.
(d) Olives which fail to meet minimum quality and size requirements. (1) Whenever any portion of a handler’s daily pack of packaged olives fails to meet all applicable minimum quality and size requirements, the Inspection Service shall issue a signed report covering such olives. Each such report shall contain at least the following:
(i) Date;
(ii) Place of inspection;
(iii) Name and address of handler;
(iv) Can code;
(v) Variety;
(vi) Fruit size;
(vii) Can size;
(viii) Style;
(ix) Total number of cases;
(x) Number of cans per case; and
(xi) Reason why the applicable requirements were not met.
(2) All such packaged olives shall be kept separate and apart from other packaged olives and shall be so identified by control cards or other means satisfactory to the Inspection Service and the committee that their identity is readily apparent. Such packaged olives may be reprocessed under supervision of the Inspection Service. Any such packaged olives that are not so reprocessed may be disposed of only in accordance with § 932.155.
(e) Examination of certain olives received for use in the production of canned ripe olives of the tree-ripened type. Pursuant to § 932.51(b), whenever a handler receives a lot of natural condition olives or makes a separation resulting in a sublot, solely for use in the production of canned ripe olives of the tree-ripened type he shall, at the time of receiving such lot or making such separation, notify the committee or the Inspection Service of the lot so received or the sublot so created which shall then be subject to examination by the committee, or by the Inspection Service if so designated by the committee, to assure that the olives in such lot or sublot comply with the specifications set forth in § 932.109. Each such handler shall identify all such lots and sublots of natural condition olives and keep them separate and apart from other olives received. Such identification and separation shall be maintained throughout the processing and production of such olives as canned ripe olives of the tree-ripened type.
(f) Size designations. (1) In lieu of the size designations specified in § 932.52(a)(2), except as provided in § 932.51(a) (1) and (2), canned whole ripe olives, other than those of the “tree-ripened” type, shall conform to the marketing order size designations listed in table 1 contained herein, and shall be of a size not smaller than the applicable size requirements, tolerances, and percentages listed in paragraph (h) of this section.
Table I – Canned Whole Ripe Olive Sizes Average Count Ranges
[Per Pound]
| Size designation | Variety group 1 | Variety group 2 | ||
|---|---|---|---|---|
| Except Ascolano, Barouni, St. Agostino | Ascolano, Barouni, St. Agostino | Obliza | Except Obliza | |
| Small | N.A. | N.A. | N.A. | 128-140 |
| Medium | N.A. | N.A. | 106-127 | 106-127 |
| Large | N.A. | 91-105 | 91-105 | 91-105 |
| Extra Large | 65-75 | 65-90 | 65-90 | 65-90 |
| Jumbo | 47-60 | 47-60 | 47-60 | 47-60 |
| Colossal | 33-46 | 33-46 | 33-46 | 33-46 |
| Sup. Colossal | ( 1) | ( 1) | ( 1) | ( 1) |
1 32 or fewer.
N.A. – Not Applicable.
(2) The size of the canned whole olives shall conform with the applicable count per pound range indicated in table I of paragraph (f)(1) of this section. When the count per pound of whole olives falls between two count ranges, the size designation shall be that of the smaller size. The average count for canned whole ripe olives is determined from all containers in the sample and is calculated on the basis of the drained weight of the olives.
(3) Pitted olives must meet the size requirements for canned whole olives specified in paragraphs (f)(1) and (f)(2) of this section prior to pitting, or must meet the size designations specified in § 52.3754 of the U.S. Standards for Grades of Canned Ripe Olives subsequent to pitting, subject to the following minimum size requirements:
(i) Variety group 1 olives, except Ascolano, Barouni, and St. Agostino varieties, shall be at least “Extra Large;”
(ii) Variety group 1 olives of the Ascolano, Barouni, and St. Agostino varieties shall be at least “Large;”
(iii) Variety group 2 olives, except the Obliza variety, shall be at least “Small;”
(iv) Variety group 2 olives of the Obliza variety shall be at least “Medium.”
(g) Size Certification. (1) When limited-use size olives for limited-use styles are authorized during a crop year and a handler elects to have olives sized pursuant to § 932.51(a)(2)(i), any lot of limited-use size olives may be used in the production of packaged olives for limited-use styles if such olives are within the average count range in table II contained herein for that variety group, and meet such further mid-point or acceptable count requirements for the average count range in each size as approved by the committee.
Table II – Limited Use Size Olives
| Variety | Average count range (per pound) |
|---|---|
| Group 1, except Ascolano, Barouni, and St. Agostino | 76-90, inclusive. |
| Group 1, Ascolano, Barouni, and St. Agostino | 106-140, inclusive. |
| Group 2, except Obliza | 141-180, inclusive. |
| Group 2, Obliza | 128-140, inclusive. |
(2) When limited-use size olives are not authorized for limited-use styles during a crop year and a handler elects to have olives sized pursuant to § 932.51(a)(2)(ii), any lot of canning-sized olives may be used in the production of packaged olives for whole, pitted, or limited-use styles if such olives are within the average count range in table III contained herein for that variety group, and meet such further mid-point or acceptable count requirements for the average count range in each size as approved by the committee.
Table III – Canned Whole Ripe Olive Sizes Average Count Ranges
[Per Pound]
| Size designation | Variety group 1 | Variety group 2 | ||
|---|---|---|---|---|
| Except Ascolano, Barouni, St. Agostino | Ascolano, Barouni, St. Agostino | Obliza | Except Obliza | |
| Small | N.A. | N.A. | N.A. | 128-140 |
| Medium | N.A. | N.A. | 106-127 | 106-127 |
| Large | N.A. | 91-105 | 91-105 | 91-105 |
| Ex. Large | 65-75 | 65-90 | 65-90 | 65-90 |
| Jumbo | 47-60 | 47-60 | 47-60 | 47-60 |
| Colossal | 33-46 | 33-46 | 33-46 | 33-46 |
| Sup. Colossal | ( 1) | ( 1) | ( 1) | ( 1) |
1 32 or fewer.
N.A. – Not Applicable.
(h) Canned whole ripe olives, other than those of the “tree-ripened” type, shall be of a size not smaller than the following applicable size requirements, tolerances and percentages:
(1) With respect to variety group 1 olives, except Ascolano, Barouni, and St. Agostino varieties, the individual fruits shall each weigh no less than 1/75 pound, except that
(i) For olives of the extra large size designation, not more than 25 percent, by count, of such olives may weigh less than 1/75 pound each including not more than 10 percent, by count, of such olives that weigh less than 1/82 pound each; and
(ii) For olives of any designation except the extra large size, not more than 5 percent, by count, of such olives may weigh less than 1/75 pound each;
(2) With respect to variety group 1 olives of the Ascolano, Barouni, and St. Agostino varieties, the individual fruits shall each weigh not less than 1/105 pound, except that
(i) For olives of the large size designation, not more than 25 percent, by count, of such olives may weigh less than 1/105 pound each including not more than 10 percent, by count, of such olives that weigh less than 1/116 pound each; and
(ii) For olives of any designation except the large size, not more than 5 percent, by count, of such olives may weigh less than 1/105 pound each;
(3) With respect to variety group 2 olives, except the Obliza variety, the individual fruits shall each weigh not less than 1/140 pound, except that
(i) For olives of the small size designation, not more than 35 percent by count, of such olives may weigh less than 1/140 pound each including not more than 7 percent, by count, of such olives that weigh less than 1/160 pound each; and
(ii) For olives of any designation except the small size, not more than 5 percent, by count, of such olives may weigh less than 1/140 pound each;
(4) With respect to variety group 2 olives of the Obliza variety, the individual fruit shall each weigh not less than 1/127 pound, except that
(i) For olives of the medium size designation, not more than 35 percent, by count, of such olives may weigh less than 1/127 pound each including not more than 7 percent, by count, of such olives that weigh less than 1/135 pound each; and
(ii) For olives of any designation except the medium size, not more than 5 percent, by count, of such olives may weigh less than 1/127 pound each.
§ 932.153 Establishment of minimum quality and size requirements for processed olives for limited uses.
(a) Minimum quality requirements. On or after August 1, 1996, any handler may use processed olives of the respective variety group in the production of limited use styles of canned ripe olives if such olives were processed after July 31, 1996, and meet the minimum quality requirements specified in § 932.52(a)(1) as modified by § 932.149.
(b) Sizes. On and after August 1, 1996, any handler may use processed olives in the production of limited-use styles of canned ripe olives if such olives were harvested after August 1, 1996, and meet the following requirements:
(1) The processed olives shall be identified and kept separate and apart from any olives harvested before August 1, 1996.
(2) Variety Group 1 olives, except the Ascolano, Barouni, or St. Agostino varieties, shall be of a size which individually weigh at least
(3) Variety Group 1 olives of the Ascolano, Barouni, or St. Agostino varieties shall be of a size which individually weigh at least
(4) Variety Group 2 olives, except the Obliza variety, shall be of a size which individually weigh at least
(5) Variety Group 2 olives of the Obliza variety shall be of a size which individually weigh at least
§ 932.154 Handler transfer.
(a) Except as hereinafter provided in paragraph (b) of this section, Form COC-6 “Report of Interhandler Transfer” shall be completed by the transfering handler for all lots of processed, but not packaged, olives transferred to another handler within the area and for all lots and sublots of natural condition olives transferred to another handler within the area or shipped to destinations outside the area except fresh market outlets. For natural condition and processed, but not packaged, olives transferred between handlers within the area, two completed copies of said form, signed by the transferring handler, shall accompany the lot or sublot to the receiving handler who shall certify on both copies as to receipt of the olives and forward one copy to the committee within 10 days following receipt of the olives. For natural condition olives transferred by a handler to a destination outside the area, except fresh market outlets, two copies of said form shall be completed by the transferring handler with the words Outside the Area included in the upper right corner of the form and one copy shall be returned to the committee within 10 days following transfer of the olives. The completed form shall contain at least the following information: (1) Name and address of both the transferor and transferee; (2) date of transfer; (3) condition (natural, processed but not packaged); (4) weight, number and size of each type of container; (5) variety; and (6) other identification (undersize olives, culls, style, etc.).
(b) Undersize or cull olives that are transferred from one handler to another and for which the transferring handler desires credit toward satisfaction of his obligation under § 932.51(a)(2) need only be accompanied by two copies of Form COC-5, report of limited and undersize and cull olives inspection and disposition: Provided, That such transfers are carried out under the supervision of the Inspection Service.
(c) No handler may ship any lot or sublot of natural condition olives to a destination outside the area, except fresh market outlets, unless such olives have first been size-graded and meet the disposition and holding requirements applicable under paragraphs (a) (2) and (4) of § 932.51. The size of such transferred olives shall be verified, prior to transfer, by certification issued to the transferring handler by the appropriate inspection service (Federal or Federal-State Inspection Service or the Processed Products Branch, USDA).
§ 932.155 Special purpose shipments.
(a) The disposition of packaged olives covered by § 932.152(d) which are not reprocessed, and new packaged olive products covered under paragraph (b) of this section which have not been disposed of by the end of the test market period, shall be handled in conformity with the applicable provisions of this paragraph.
(1) Under the supervision of the Inspection Service, such packaged olives may be disposed of for use in the production of olive oil or dumped.
(2) Such packaged olives may be disposed of to a charitable organization for use by such organization, provided the following conditions are met:
(i) Any handler who wishes to so dispose of olives shall first file a written application with, and obtain written approval thereof, from the committee. Each such application shall contain at least:
(A) The name and address of the handler and the charitable organization;
(B) The physical location of the charitable organization’s facilities;
(C) The quantity, in cases, the variety, size, can size, and can code of the packaged olives; and
(D) A certification from the charitable organization that such olives will be used by the organization and will not be sold.
(ii) Prior to approval, the committee shall perform such verification of the accuracy of the information on the application as it deems necessary. The committee may deny any application if it finds that the required information is incomplete or incorrect, or has reason to believe that the intended receiver is not a charitable organization, or that the handler or the organization has disposed of packaged olives contrary to a previously approved application. The committee shall notify the applicant and the organization in writing of its approval, or denial, of the application. Any such approval shall continue in effect so long as the packaged olives covered thereby are disposed of consistent with this section. The committee shall notify the handler and the organization of each such termination of approval. The handler shall furnish the committee, upon demand, such evidence of disposition of the packaged olives covered by an approved application as may be satisfactory to the committee.
(b) In accordance with the provisions of § 932.55(b), packaged olives to be used in marketing development projects may be handled without regard to § 932.149 provided the following conditions are met. Such olives must be identified to the satisfaction of the Inspection Service and kept separate from other packaged olives. The handler shall submit to the committee for its approval “COC Form 155” at least 10 working days prior to the shipment of such packaged olives to test markets, and report progress or changes to the committee, as requested. The applicant handler shall provide the following information on COC Form 155:
(1) The quantity of olives to be utilized (limited to not more than five percent of the handler’s crop year acquisitions);
(2) Specific market outlet;
(3) Flavorings or other ingredients added to the olives;
(4) Style of olives used;
(5) Type of olives used, either black or green ripe;
(6) Container sizes;
(7) Varieties used, whether Ascolano, Barouni, Manzanillo, Mission, Sevillano, etc.;
(8) Sizes of olives utilized;
(9) Approximate dates when the new product will be packaged;
(10) Name and address of requesting handler;
(11) Place of inspection;
(12) Certification that all assessment and reporting requirements in effect under the marketing order will be met prior to shipment;
(13) Certification that all such fruit will be kept separate from other packaged olives and will be so identified by control cards or other means acceptable to the Inspection Service;
(14) Purpose and nature of the request, whether for test marketing, evaluation, market research, etc.; and
(15) An estimate of the amount of time required to complete the test. The committee shall promptly approve or deny the application, and may add limitations to any such approval. Upon approval, the applicant handler shall notify the Inspection Service. Packaged olives so identified and remaining unused at the end of the approved test-market period shall be disposed of according to paragraph (a) of this section.
(c) In accordance with the provisions of § 932.55(b), any handler may use processed olives in the production of packaged olives for repackaging, and ship packaged olives for repackaging, if the packaged olives meet the minimum quality requirements, except for the requirement that the packaged olives possess a reasonably good flavor: Provided, That the failure to possess a reasonably good flavor is due only to excessive sodium chloride.
§ 932.159 Reallocation of handler membership.
Pursuant to § 932.25, handler representation on the Committee is reallocated to provide that the two handlers who handled the largest and second largest total volume of olives during the crop year in which nominations are made and in the preceding crop year shall each be represented by four members and four alternate members.
§ 932.161 Reports.
(a) Reports of olives received. Each handler shall submit to the committee, on a form provided by the committee, for each week (Sunday through Saturday, or such other 7-day period for which the handler has submitted a request and received approval from the committee) and not later than the fourth day after the close of such week, a report showing by size designation and culls the respective quantities of each variety of olives received. In addition thereto, he shall also report the seasonal totals to date of the report.
(b) Sales reports. (1) Each handler shall submit to the committee, on COC Form 21 as provided by the committee, for each month and not later than the 15th day following the end of that month, a report showing the handler’s total sales of packaged olives to commercial outlets in the United States, to governmental agencies, and to foreign countries. Such sales shall be reported in the following categories:
(i) Whole and whole pitted styles of canned ripe olives in consumer size containers;
(ii) Whole and whole pitted styles of canned ripe olives in institutional size containers;
(iii) Chopped style of canned ripe olives in all types of containers; and
(iv) Halved, segmented (wedged), and sliced styles of canned ripe olives in all types of containers.
(2) Each handler shall submit to the committee, on a form provided by the committee, for each month and not more than 15 days after the end of such month, a report showing the total quantity of packaged olives of the ripe and green ripe types sold during the month. Such reports shall include the following information, as applicable:
(i) With respect to the whole, pitted, and broken pitted styles of packaged olives of the ripe or green ripe type, each style shall be reported separately on COC Form 29a in terms of the quantity of each size of olives as designated on the form. Such quantity, or quantities, shall be reported in terms of the total amount packaged in each of the container sizes listed on said form except that the committee may require such reporting in terms of the equivalent number of cases of 24 No. 300 (300 × 407) size cans. Each handler shall report separately the total monthly sales of packaged olives of the green ripe type.
(ii) Limited use styles of packaged olives of the ripe or green ripe type shall be reported in terms of the quantity of each style packaged in each of the container sizes listed on COC Form 29b except that the committee may require such reporting in terms of the equivalent number of cases of 24 No. 300 (300 × 407) size cans.
(c) Report of handler’s utilization of limited size olives. Each handler shall submit to the committee, on a form provided by the committee, upon completion of the handler’s canning season, but not later than August 1st of each crop year, a report showing the quantities of limited canning size olives used in (1) halved; (2) segmented (wedged); (3) sliced; (4) chopped; (5) acidified; (6) Spanish olives; (7) Sicilian style olives; (8) Greek style olives; (9) olive oil; (10) olives dumped; and (11) any other use (specify such use).
(d) Packaged olive inventory reports. Each handler shall submit an inventory report to the committee, on a form provided by the committee, not later than the 15th day of each month showing the total quantity of packaged olives of the ripe and green ripe types held in storage at all locations on the last day of the preceding month. Such reports shall contain the following information, as applicable:
(1) With respect to the whole, pitted, and broken pitted styles of packaged ripe or green ripe type olives, each style shall be reported separately on COC Form 27a in terms of the packaged quantity of each size designated on the form. Such quantity, or quantities, shall be reported in terms of the total amount packaged in each of the container sizes listed on said form except that the committee may require such reporting in terms of the equivalent number of cases of 24 No. 300 (300 × 407) size cans. Each handler shall report separately the total quantity of any packaged olives of the green ripe type held in storage at all locations.
(2) Halved, sliced, segmented (wedged), and chopped styles of packaged olives of the ripe or green ripe type shall be reported in terms of the quantity of each style packaged in each of the container sizes listed on COC Form 27b except that the committee may require such reporting in terms of the equivalent number of cases of 24 No. 300 (300 × 407) size cans.
(e) Processed olive bulk inventory reports. Each handler shall submit an inventory report to the committee, on a form provided by the committee, not later than the 15th day of each month showing the total quantity of processed olives of the ripe and green ripe types held in bulk storage at all locations on the last day of the preceding month. Such reports shall contain the following information, as applicable:
(1) The total tonnage of processed olives of the ripe and green ripe types, held in storage by the handler, which are of any size that may be used in the production of packaged olives of the whole or the pitted styles shall be reported on COC Form 27c in terms of the total quantity of each size designated on the form.
(2) The total tonnage of processed olives of the ripe and green ripe types, held in storage by the handler, which are of sizes that may be used in the production of packaged olives of the halved, sliced, segmented (wedged), or chopped style shall be reported on COC Form 27b.
(f) Packout reports. Each handler shall submit to the committee, on a form provided by the committee, for each month and not more than 15 days after the end of such month, a report showing the total production of packaged olives of the ripe and green ripe types. Such reports shall include the following information, as applicable:
(1) With respect to the whole, pitted, and broken pitted styles of packaged olives of the ripe or the green ripe types, each style shall be reported separately on COC Form 28a in terms of the total quantity of each size of olives as designated on the form. Such quantity, or quantities, shall be reported in terms of the total amount packaged in each of the container sizes listed on said form except that the committee may require such reporting in terms of the equivalent number of cases of 24 No. 300 (300 × 407) size cans. Each handler shall report separately the total monthly production of packaged olives of the green ripe type.
(2) Halved, sliced, segmented (wedged), and chopped styles of packaged olives of the ripe or green ripe type shall be reported in terms of the quantity of each style packaged in each of the container sizes listed on COC Form 28b except that the committee may require such reporting in terms of the equivalent number of cases of 24 No. 300 (300 × 407) size cans.
§ 932.230 Assessment rate.
On and after January 1, 2022, an assessment rate of $16.00 per ton is established for California olives.
PART 944 – FRUITS; IMPORT REGULATIONS
§ 944.28 Avocado Import Grade Regulation.
(a) Pursuant to section 8e of the Act and Part 944 – Fruits; Import Regulations, the importation into the United States of any avocados is prohibited unless such avocados grade at least U.S. No. 2, as such grade is defined in the United States Standards for Grades of Florida Avocados (7 CFR 51.3050 through 51.3069).
(b) The Federal or Federal-State Inspection Service, Fruit and Vegetable Division, Agricultural Marketing Service, United States Department of Agriculture, is designated as the government inspection service for certifying the grade, size, quality, and maturity of avocados that are imported into the United States. Inspection by the Federal or Federal-State Inspection Service with evidence thereof in the form of an official inspection certificate, issued by the respective service, applicable to the particular shipment of avocados, is required on all imports. The inspection and certification services will be available upon application in accordance with the rules and regulations governing inspection and certification of fresh fruits, vegetables, and other products (7 CFR part 51) and in accordance with the regulations designating inspection services and procedure for obtaining inspection and certification (7 CFR 944.400).
(c) The term importation means release from custody of the United States Customs Service. The term commercial processing into products means the manufacture of avocado product which is preserved by any recognized commercial process, including canning, freezing, dehydrating, drying, the addition of chemical substances, or by fermentation.
(d) Any person may import up to 55 pounds of avocados exempt from the requirements specified in this section.
(e) Any lot or portion thereof which fails to meet the import requirements, and is not being imported for purposes of consumption by charitable institutions, distribution by relief agencies, seed, or commercial processing into products; prior to or after reconditioning may be exported or disposed of under the supervision of the Federal or Federal-State Inspection Service with the costs of certifying the disposal of such lot borne by the importer.
(f) The grade, size, and quality requirements of this section shall not be applicable to avocados imported for consumption by charitable institutions, distribution by relief agencies, seed, or commercial processing into products, but shall be subject to the safeguard provisions contained in § 944.350.
§ 944.31 Avocado import maturity regulation.
(a) Pursuant to section 8e [7 U.S.C. 608e-1] of the Agricultural Marketing Agreement Act of 1937, as amended [7 U.S.C 601-674], and Part 944 – Fruits; Import Regulations, the importation into the United States of any avocados, except the Hass, Fuerte, Zutano, and Edranol varieties, is prohibited unless:
(1) Any portion of the skin of the individual avocados has changed to the color normal for that fruit when mature for those varieties which normally change color to any shade of red or purple when mature, except for the Linda variety; or
(2) Such avocados meet the minimum weight or diameter requirements for the Monday nearest each date specified, through the Sunday immediately prior to the nearest Monday of the specified date in the next column, for each variety listed in the following table I: Provided, that avocados may not be handled prior to the earliest date specified in column A of such table for the respective variety; Provided further, There are no restrictions on size or weight on or after the date specified in column D; Provided further, That up to a total of 10 percent, by count to the individual fruit in each lot may weigh less than the minimum specified or be less than the specified diameter, except that no such avocados shall be over 2 ounces lighter than the minimum weight specified for the variety: Provided further, That up to double such tolerance shall be permitted for fruit in an individual container in a lot.
Table 1
| Variety | A date | Min. wt. | Min. diam. | B date | Min. wt. | Min. diam. | C date | Min. wt. | Min. diam. | D date |
|---|---|---|---|---|---|---|---|---|---|---|
| Dr. Dupuis #2 | 5-30 | 16 | 3 | 6-13 | 14 | 3 | 7-04 | 12 | 3 | 7-18 |
| Simmons | 6-20 | 16 | 3 | 7-04 | 14 | 3 | 7-18 | 12 | 3 | 8-01 |
| Pollock | 6-20 | 18 | 3 | 7-04 | 16 | 3 | 7-18 | 14 | 3 | 8-01 |
| Hardee | 6-27 | 16 | 3 | 7-04 | 14 | 2 | 7-11 | 12 | 7-25 | |
| Nadir | 6-27 | 14 | 3 | 7-04 | 12 | 3 | 7-11 | 10 | 2 | 7-18 |
| Ruehle | 7-04 | 18 | 3 | 7-11 7-18 | 16 14 | 3 3 | 8-01 8-08 | 12 10 | 3 3 | 8-15 |
| Bernecker | 7-18 | 18 | 3 | 8-01 | 16 | 3 | 8-15 | 14 | 3 | 8-29 |
| Miguel (P) | 7-18 | 22 | 3 | 8-01 | 20 | 3 | 8-15 | 18 | 3 | 8-29 |
| Nesbitt | 7-18 | 22 | 3 | 8-01 | 16 | 3 | 8-08 | 14 | 3 | 8-22 |
| Tonnage | 8-01 | 16 | 3 | 8-15 | 14 | 3 | 8-22 | 12 | 3 | 8-29 |
| Waldin | 8-01 | 16 | 3 | 8-15 | 14 | 3 | 8-29 | 12 | 3 | 9-12 |
| Tower II | 8-01 | 14 | 3 | 8-15 | 12 | 3 | 8-29 | 10 | 3 | 9-05 |
| Beta | 8-08 | 18 | 3 | 8-15 | 16 | 3 | 8-29 | 14 | 3 | 9-05 |
| Lisa (P) | 8-08 | 12 | 3 | 8-15 | 11 | 3 | 8-22 | |||
| Black Prince | 8-15 | 28 | 4 | 8-29 | 23 | 3 | 9-12 | 16 | 3 | 10-03 |
| Loretta | 8-22 | 30 | 4 | 9-05 | 26 | 3 | 9-19 | 22 | 3 | 9-26 |
| Booth 8 | 8-29 | 16 | 3 | 9-12 | 14 | 3 | 9-26 10-10 | 12 10 | 3 3 | 10-24 |
| Booth 7 | 8-29 | 18 | 3 | 9-12 | 16 | 3 | 9-26 | 14 | 3 | 10-10 |
| Booth 5 | 9-05 | 14 | 3 | 9-19 | 12 | 3 | 10-03 | |||
| Choquette | 9-26 | 28 | 4 | 10-10 | 24 | 4 | 10-24 | 20 | 3 | 11-7 |
| Hall | 9-26 | 26 | 3 | 10-10 | 20 | 3 | 10-24 | 18 | 3 | 11-07 |
| Lula | 10-03 | 18 | 3 | 10-10 | 14 | 3 | 10-31 | 12 | 3 | 11-14 |
| Monroe | 11-07 | 26 | 4 | 11-21 | 24 | 4 | 12-05 12-19 | 20 16 | 3 3 | 1-02 |
| Arue | 5-16 | 16 | 5-30 | 14 | 3 | 6-20 | 12 | 7-04 | ||
| Donnie | 5-23 | 16 | 3 | 6-06 | 14 | 3 | 6-20 | 12 | 7-04 | |
| Fuchs | 6-06 | 14 | 3 | 6-20 | 12 | 3 | 7-04 | |||
| K-5 | 6-13 | 18 | 3 | 6-27 | 14 | 3 | 7-11 | |||
| West Indian Seedling 1 | 6-20 | 18 | 7-18 | 16 | 8-22 | 14 | 9-19 | |||
| Gorham | 7-04 | 29 | 4 | 7-18 | 27 | 4 | 8-15 | |||
| Biondo | 7-11 | 13 | 8-15 | |||||||
| Petersen | 7-11 | 14 | 3 | 7-18 | 12 | 3 | 7-25 | 10 | 3 | 8-08 |
| 232 | 7-18 | 14 | 8-01 | 12 | 8-15 | |||||
| Pinelli | 7-18 | 18 | 3 | 8-01 | 16 | 3 | 8-15 | |||
| Trapp | 7-18 | 14 | 3 | 8-01 | 12 | 3 | 8-15 | |||
| K-9 | 8-01 | 16 | 8-22 | |||||||
| Christina | 8-01 | 11 | 2 | 8-22 | ||||||
| Catalina | 8-15 | 24 | 8-29 | 22 | 9-19 | |||||
| Blair | 8-29 | 16 | 3 | 9-12 | 14 | 3 | 10-03 | |||
| Guatemalan Seedling 2 | 9-05 | 15 | 10-03 | 13 | 12-05 | |||||
| Marcus | 9-05 | 32 | 4 | 9-19 | 24 | 4 | 10-31 | |||
| Brooks 1978 | 9-05 | 12 | 3 | 9-12 | 10 | 3 | 9-19 | 8 | 2 | 10-10 |
| Rue | 9-12 | 30 | 4 | 9-19 | 24 | 3 | 10-03 | 18 | 3 | 10-17 |
| Collinson | 9-12 | 16 | 3 | 10-10 | ||||||
| Hickson | 9-12 | 12 | 3 | 9-26 | 10 | 3 | 10-10 | |||
| Simpson | 9-19 | 16 | 3 | 10-10 | ||||||
| Chica | 9-19 | 12 | 3 | 10-03 | 10 | 3 | 10-17 | |||
| Leona | 9-26 | 18 | 3 | 10-03 | 16 | 10-10 | ||||
| Melendez | 9-26 | 26 | 3 | 10-10 | 22 | 3 | 10-24 | 18 | 3 | 11-07 |
| Herman | 10-03 | 16 | 3 | 10-17 | 14 | 3 | 10-31 | |||
| Pinkerton (CP) | 10-03 | 13 | 3 | 10-17 | 11 | 3 | 10-31 | 9 | 11-14 | |
| Taylor | 10-10 | 14 | 3 | 10-24 | 12 | 3 | 11-07 | |||
| Ajax (B-7) | 10-10 | 18 | 3 | 10-31 | ||||||
| Booth 3 | 10-10 | 16 | 3 | 10-17 | 14 | 3 | 10-31 | |||
| Semil 34 | 10-17 | 18 | 3 | 10-31 | 16 | 3 | 11-14 | 14 | 3 | 11-28 |
| Semil 43 | 10-24 | 18 | 3 | 11-7 | 16 | 3 | 11-21 | 14 | 3 | 12-05 |
| Booth 1 | 11-14 | 16 | 3 | 11-28 | 12 | 3 | 12-12 | |||
| Zio (P) | 11-14 | 12 | 3 | 11-28 | 10 | 2 | 12-12 | |||
| Gossman | 11-28 | 11 | 3 | 12-26 | ||||||
| Brookslate | 12-05 | 18 | 3 | 12-12 12-19 | 16 14 | 3 3 | 1-02 1-16 | 12 10 | 3 | 1-30 |
| Meya (P) | 12-12 | 13 | 3 | 12-26 | 11 | 3 | 1-09 | |||
| Reed (CP) | 12-12 | 12 | 3 | 12-26 | 10 | 3 | 1-09 | 9 | 3 | 1-23 |
1 Avocados of the West Indian type varieties and seedlings not listed elsewhere in table 1.
2 Avocados of the Guatemalan type varieties and seedlings, hybrid varieties and seedlings, and unidentified seedlings not listed elsewhere in table I.
(3) Avocados which fail to meet the maturity requirements specified in this section must be maintained under the supervision of the Federal or Federal-State Inspection Service using the Positive Lot Identification program, and when presented for reinspection, must meet the maturity requirements which correspond to the date of the original inspection.
(4) The requirements listed in table I of this section are in effect annually from April 16 through April 15 of the following year, with an exception for the requirements for Guatemalan seedling which are in effect annually from June 9 to June 8 of the following year.
(b) The term diameter means the greatest dimension measured at a right angle to a straight line from the stem to the blossom end of the fruit.
(c) The term importation means release from custody of the United States Customs Service. The term commercial processing into products means the manufacture of avocado product which is preserved by any recognized commercial process, including canning, freezing, dehydrating, drying, the addition of chemical substances, or by fermentation.
(d) Any person may import up to 55 pounds of avocados exempt from the requirements specified in this section.
(e) The Federal or Federal-State Inspection Service, Fruit and Vegetable Division, Agricultural Marketing Service, United States Department of Agriculture, is designated as the governmental inspection service for certifying the grade, size, quality, and maturity of avocados imported into the United States. Inspection by the Federal or Federal-State Inspection Service with evidence thereof in the form of an official inspection certificate, issued by the respective service, applicable to the particular shipment of avocados, is required on all such imports. The inspection and certification services will be available upon application in accordance with the Regulations Governing Inspection, Certification and Standards of Fresh Fruits, Vegetables, and Other Products (7 CFR part 51), and in accordance with the regulation designating inspection services and procedure for obtaining inspection and certification (7 CFR 944.400).
(f) Any lot or portion thereof which fails to meet the import requirements, and is not being imported for purposes of consumption by charitable institutions, distribution by relief agencies, seed, or commercial processing into products; prior to or after reconditioning may be exported or disposed of under the supervision of the Federal or Federal-State Inspection Service with the costs of certifying the disposal of such lot borne by the importer.
(g) The maturity requirements of this section shall not be applicable to avocados imported for consumption by charitable institutions, distribution by relief agencies, seed, or commercial processing into products, but such avocados shall be subject to the safeguard provisions contained in § 944.350.
§ 944.106 Grapefruit import regulation.
(a) Pursuant to Section 8e [7 U.S.C. Section 608e-1] of the Agricultural Marketing Agreement Act of 1937, as amended [7 U.S.C. 601-674], and Part 944 – Fruits; Import Regulations, the importation into the United States of any grapefruit is prohibited unless such grapefruit meet the following minimum grade and size requirements for each specified grapefruit classification:
| Grapefruit classification | Minimum grade | Minimum diameter (inches) |
|---|---|---|
| (1) | (2) | (3) |
| Grapefruit, seedless | U.S. No. 1 | 3 |
(b) The term grapefruit is defined as citrus paradisi, MacFadyen.
(c) Terms and tolerances pertaining to grade and size requirements, which are defined in the United States Standards for Grades of Florida Grapefruit (7 CFR 51.750-51.784), and in Marketing Order No. 905 (7 CFR 905.18 and 905.306(a) through (d)), shall be applicable herein.
(d) The Federal or Federal-State Inspection Service, Specialty Crops Program, Agricultural Marketing Service, United States Department of Agriculture, is designated as the governmental inspection service for certifying the grade, size, quality, and maturity of grapefruit imported into the United States. Inspection by the Federal or Federal-State Inspection Service with evidence thereof in the form of an official inspection certificate, issued by the respective service, applicable to the particular shipment of grapefruit, is required on all such imports. The inspection and certification services will be available upon application in accordance with the Regulations Governing Inspection, Certification and Standards of Fresh Fruits, Vegetables, and Other Products (7 CFR part 51), and in accordance with the regulation designating inspection services and procedure for obtaining inspection and certification (7 CFR 944.400).
(e) Any lot or portion thereof which fails to meet the import requirements, and is not being imported for purposes of consumption by charitable institutions, distribution by relief agencies, animal feed, or commercial processing into canned or frozen products or into a beverage base; prior to or after reconditioning may be exported or disposed of under the supervision of the Federal or Federal-State Inspection Service with the costs of certifying the disposal of said lot borne by the importer.
(f) Any person may import up to 15 standard packed cartons (12 bushels) of grapefruit exempt from the requirements specified in this section.
(g) Any grapefruit which fail to meet the import requirements prior to or after reconditioning may be exported or disposed of under the supervision of the Federal or Federal-State Inspection Service with the costs of certifying the disposal of such grapefruit borne by the importer.
(h) The Secretary has determined that grapefruit imported into the United States are in most direct competition with grapefruit grown in Florida regulated under Marketing Order No. 905 (7 CFR part 905).
(i) The grade, size, quality, and maturity requirements of this section shall not be applicable to grapefruit imported for consumption by charitable institutions, distribution by relief agencies, animal feed, or commercial processing into canned or frozen products or into a beverage base, but shall be subject to the safeguard provisions contained in § 944.350.
§ 944.312 Orange import regulation.
(a) Pursuant to section 8e (7 U.S.C. 608e-1) of the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C 601-674), and part 944 – Fruits; Import Regulations, the importation into the United States of any oranges is prohibited unless such oranges grade at least U.S. No. 2, and they are at least 2
(b) The term oranges is defined as Citrus sinensis, Osbeck.
(c) The term importation means release from custody of the United States Customs Service. The term processing means the manufacture of any orange product which has been converted into sectioned fruit or into fresh juice, or preserved by any commercial process, including canning, freezing, dehydrating, drying, and the addition of chemical substances, or by fermentation.
(d) Terms and tolerances pertaining to grade and size requirements, which are defined in the United States Standards for Grades of Oranges (Texas and States other than Florida, California, and Arizona) (7 CFR 51.680-51.714), shall be applicable herein.
(e) Any person may import up to 400 pounds a day of oranges exempt from the requirements specified in this section.
(f) The Federal or Federal-State Inspection Service, Fruit and Vegetable Division, Agricultural Marketing Service, United States Department of Agriculture, is designated as the governmental inspection service for certifying the grade, size, quality, and maturity of oranges imported into the United States. Inspection by the Federal or Federal-State Inspection Service with evidence thereof in the form of an official inspection certificate, issued by the respective service, applicable to the particular shipment of oranges, is required on all such imports. The inspection and certification services will be available upon application in accordance with the Regulations Governing Inspection, Certification and Standards of Fresh Fruits, Vegetables, and Other Products (7 CFR part 51), and in accordance with the regulation designating inspection services and procedure for obtaining inspection and certification (7 CFR 944.400).
(g) Any oranges which fail to meet the import requirements, and are not being imported for purposes of consumption by charitable institutions, distribution by relief agencies, or processing into products; prior to or after reconditioning may be exported or disposed of under the supervision of the Federal or Federal-State Inspection Service with the costs of certifying the disposal of such oranges borne by the importer.
(h) The grade, size, quality, and maturity requirements of this section shall not be applicable to oranges imported for consumption by charitable institutions, distribution by relief agencies, or processing into products, but shall be subject to the safeguard provisions contained in § 944.350, Provided that: oranges, imported as exempt under this regulation, cannot be shipped to processors who have facilities, equipment, or outlets to repack or sell fruit in fresh form.
(i) The Secretary has determined that oranges imported into the United States are in most direct competition with oranges grown in Texas regulated under Marketing Order No. 906.
§ 944.350 Safeguard procedures for avocados, grapefruit, kiwifruit, olives, oranges, prune variety plums (fresh prunes), and table grapes, exempt from grade, size, quality, and maturity requirements.
(a) Each person who imports or receives any of the commodities listed in paragraphs (a)(1) through (5) of this section shall file (electronically or paper) an “Importer’s Exempt Commodity Form” (FV-6) with the Marketing Order and Agreement Division, Fruit and Vegetable Program, AMS, USDA. A “person who imports” may include a customs broker, acting as an importer’s representative (hereinafter referred to as “importer”). A copy of the completed form (electronic or paper) shall be provided to the U.S. Customs and Border Protection. If a paper form is used, a copy of the form shall accompany the lot to the exempt outlet specified on the form. Any lot of any commodity offered for inspection and, all or a portion thereof, subsequently imported as exempt under this provision shall also be reported on an FV-6 form. Such form (electronic or paper) shall be provided to the Marketing Order and Agreement Division in accordance with paragraph (d) of this section. The applicable commodities are:
(1) Avocados, grapefruit, kiwifruit, olives, oranges, prune variety plums (fresh prunes) and table grapes for consumption by charitable institutions or distribution by relief agencies;
(2) Avocados, grapefruit, kiwifruit, oranges, prune variety plums (fresh prunes), and table grapes for processing;
(3) Olives for processing into oil;
(4) Grapefruit for animal feed; or
(5) Avocados for seed.
(b) Certification of exempt use. (1) Each importer of an exempt commodity as specified in paragraph (a) of this section shall certify on the FV-6 form (electronic or paper) as to the intended exempt outlet (e.g., processing, charity, livestock feed). If certification is made using a paper FV-6 form, the importer shall provide a handwritten signature on the form.
(2) Each receiver of an exempt commodity as specified in paragraph (a) of this section shall also receive a copy of the associated FV-6 form (electronic or paper) filed by the importer. Within two days of receipt of the exempt lot, the receiver shall certify on the form (electronic or paper) that such lot has been received and will be utilized in the exempt outlet as certified by the importer. If certification is made using a paper FV-6 form, the receiver shall provide a handwritten signature on the form.
(c) It is the responsibility of the importer to notify the Marketing Order and Agreement Division of any lot of exempt commodity rejected by a receiver, shipped to an alternative exempt receiver, exported, or otherwise destroyed. In such cases, a second FV-6 form must be filed by the importer, providing sufficient information to determine ultimate disposition of the exempt lot, and such disposition shall be so certified by the final receiver.
(d) All FV-6 forms and other correspondence regarding entry of exempt commodities must be submitted electronically, by mail, or by fax to the Marketing Order and Agreement Division, Fruit and Vegetable Program, AMS, USDA, 1400 Independence Avenue SW, STOP 0237, Washington, DC 20250-0237; telephone (202) 720-2491; email [email protected]; or fax (202) 720-5698.
§ 944.400 Designated inspection services and procedure for obtaining inspection and certification of imported avocados, grapefruit, kiwifruit, oranges, prune variety plums (fresh prunes), and table grapes regulated under section 8e of the Agricultural Marketing Agreement Act of 1937, as amended.
(a) The Federal or Federal-State Inspection Service, Specialty Crops Program, Agricultural Marketing Service, United States Department of Agriculture is hereby designated as the governmental inspection service for the purpose of certifying the grade, size, quality, and maturity of avocados, grapefruit, oranges, prune variety plums (fresh prunes), and table grapes that are imported into the United States. Agriculture and Agri-Food Canada is also designated as a governmental inspection service for the purpose of certifying grade, size, quality and maturity of prune variety plums (fresh prunes) only. Inspection by the Federal or Federal-State Inspection Service or the Agriculture and Agri-Food Canada, with appropriate evidence thereof in the form of an official inspection certificate, issued by the respective services, applicable to the particular shipment of the specified fruit, is required on all imports. Inspection and certification by the Federal or Federal-State Inspection Service will be available upon application in accordance with the Regulations Governing Inspection, Certification and Standards for Fresh Fruits, Vegetables, and Other Products (7 CFR part 51). For further information about Federal or Federal-State inspection services, contact Specialty Crops Inspection Division, Specialty Crops Program, AMS, USDA, 1400 Independence Avenue SW, STOP 0240, Washington, DC 20250-0237; telephone (202) 720-5870; fax (202) 720-0393.
(b) Inspection certificates shall cover only the quantity of fruit that is being imported at a particular port of entry by a particular importer.
(c) The inspection performed, and certificates issued, by the Federal or Federal-State Inspection Service shall be in accordance with the rules and regulations of the Department governing the inspection and certification of fresh fruits, vegetables, and other products (7 CFR part 51). The cost of any inspection and certification shall be borne by the applicant therefor.
(d) Each inspection certificate issued with respect to any of the specified fruits to be imported into the United States shall set forth among other things:
(1) The name and place of inspection;
(2) The name of the shipper, or applicant;
(3) The Customs entry number pertaining to the lot or shipment covered by the certificate;
(4) The commodity inspected;
(5) The quantity of the commodity covered by the certificate;
(6) The principal identifying marks on the container;
(7) The railroad car initials and number, the truck and the trailer license number, the name of the vessel, the name of the air carrier, or other identification of the shipment; and
(8) The following statement if the facts warrant: Meets U.S. import requirements under section 8e of the Agricultural Marketing Agreement Act of 1937, as amended.
§ 944.401 Olive Regulation 1.
(a) Definitions. (1) Canned ripe olives means olives in hermetically sealed containers and heat sterilized under pressure, of the two distinct types “ripe” and “green-ripe” as defined in the current U.S. Standards for Grades of Canned Ripe Olives. The term does not include Spanish-style green olives.
(2) Spanish-style green olives means olives packed in brine and which have been fermented and cured, otherwise known as “green olives.”
(3) Variety group 1 means the following varieties and any mutations, sports, or other derivations of such varieties: Aghizi Shami, Amellau Ascolano, Ascolano dura, Azapa, Balady, Barouni, Carydolia, Cucco, Gigante di Cerignola, Gordale, Grosane, Jahlut, Polymorpha, Prunara, Ropades, Sevillano, St. Agostino, Tafahi, and Touffahi.
(4) Variety group 2 means the following varieties and any mutations, sports, or other derivations of such varieties: Manzanillo, Mission, Nevadillo, Obliza, and Redding Picholine.
(5) USDA Inspector means an inspector of the Specialty Crops Inspection Division, Specialty Crops Program, Agricultural Marketing Service, U.S. Department of Agriculture, or any other duly authorized employee of the Department.
(6) Importation means release from custody of the U.S. Bureau of Customs.
(7) Limited use means the use of processed olives in the production of packaged olives of the halved, segmented (wedged), sliced, or chopped styles, as defined in said standards.
(8) Terms used in this section shall have the same meaning as are given to the respective terms in the current U.S. Standards for Grades of Canned Ripe Olives (7 CFR part 52) including the terms size, character, defects and ripe type: Provided, That the definition of broken pitted olives is as follows: “Broken pitted olives” consist of large pieces that may have been broken in pitting but have not been sliced or cut.
(b) The importation into the United States of any canned ripe olives is prohibited unless such olives are inspected and meet the following applicable requirements: Provided, That olives imported in bulk form and used in the production of any canned ripe olives are subject to such applicable requirements and the additional requirements in paragraph (b)(12) of this section.
(1) Minimum quality requirements. Canned ripe olives shall meet the following quality requirements, except that no requirements shall be applicable with respect to color and blemishes for canned green ripe olives:
(i) Canned whole and pitted olives of the ripe type shall meet the minimum quality requirements prescribed in table 1 of this section;
(ii) Canned sliced, segmented (wedged), and halved olives of the ripe type shall meet the minimum quality requirements prescribed in table 2 of this section;
(iii) Canned chopped olives of the ripe type shall meet the minimum quality requirements prescribed in table 3 of this section and shall be practically free from identifiable units of pit caps, end slices, and slices (“practically free from identifiable units” means that not more than 10 percent, by weight, of the unit of chopped style olives may be identifiable pit caps, end slices, or slices); and
(iv) Canned broken pitted olives of the ripe type shall meet the minimum quality requirements prescribed in table 4 of this section, Provided, That broken pitted olives consist of large pieces that may have been broken in pitting but have not been sliced or cut.
(v) A lot of canned ripe olives is considered to meet the requirements of this section if all or most of the sample units meet the requirements specified in tables 1 through 4 of this section: Provided, That the number of sample units which do not meet the requirements specified in tables 1 through 4 of this section does not exceed the acceptance number prescribed for in the sample size provided in table I of 7 CFR 52.38: Provided further, That there is no off flavor in any sample unit.
Table 1 – Whole and Pitted Style
[Defects by count per 50 olives]
| FLAVOR | Reasonably good; no “off” flavor |
| FLAVOR (Green Ripe Type) | Free from objectionable flavors of any kind |
| SALOMETER | Acceptable range in degrees: 3.0 to 14.0 |
| COLOR | Reasonably uniform with not less than 60% having a color equal or darker than the USDA Composite Color Standard for Ripe Type |
| CHARACTER | Not more than 5 soft units or 2 excessively soft units |
| UNIFORMITY OF SIZE | 60%, by visual inspection, of the most uniform in size. The diameter of the largest does not exceed the smallest by more than 4mm |
| DEFECTS: | |
| Pitter Damage (Pitted Style Only) | 15 |
| Major Blemishes | 5 |
| Major Wrinkles | 5 |
| Pits and Pit Fragments (Pitted Style Only) | Not more than 1.3% average by count |
| Major Stems | Not more than 3 |
| HEVM | Not more than 1 unit per sample |
| Mutilated | Not more than 3 |
| Mechanical Damage | Not more than 5 |
| Split Pits or Misshapen | Not more than 5 |
Table 2 – Sliced, Segmented (Wedged), and Halved Styles
[Defects by count per 255]
| FLAVOR | Reasonably good; no “off” flavor |
| SALOMETER | Acceptable range in degrees: 3.0 to 14.0 |
| COLOR | Reasonably uniform with no units lighter than the USDA Composite Color Standard for Ripe Type |
| CHARACTER | Not more than 13 grams excessively soft |
| DEFECTS: | |
| Pits and Pit Fragments | Average of not more than 1 by count per 300 grams |
| Major Stems | Not more than 3 |
| HEVM | Not more than 2 units per sample |
| Broken Pieces and End Caps | Not more than 125 grams by weight |
Table 3 – Chopped Style
[Defects by count per 255 grams]
| FLAVOR | Reasonably good; no “off” flavor |
| SALOMETER | Acceptable range in degrees: 3.0 to 14.0 |
| COLOR | Reasonably uniform with no units lighter than the USDA Composite Color Standard for Ripe Type |
| DEFECTS: | |
| Pits and Pit Fragments | Average of not more than 1 by count per 300 grams |
| Major Stems | Not more than 3 |
| HEVM | Not more than 2 units per sample |
Table 4 – Broken Pitted Style
[Defects by count per 255 grams]
| FLAVOR | Reasonably good; no “off” flavor |
| SALOMETER | Acceptable range in degrees: 3.0 to 14.0 |
| COLOR | Reasonably uniform with no units lighter than the USDA Composite Color Standard for Ripe Type |
| CHARACTER | Not more than 13 grams excessively soft |
| DEFECTS: | |
| Pits and Pit Fragments | Average of not more than 1 by count per 300 grams |
| Major Stems | Not more than 3 |
| HEVM | Not more than 2 units per sample |
(2) Canned whole ripe olives of Variety Group 1, except the Ascolano, Barouni, and St. Agostino varieties, shall be of such a size that not more than 25 percent, by count, of the olives may weigh less than 1/75 pound (6.0 grams) each, except that not more than 10 percent, by count, of the olives may weigh less than 1/82 pound (5.5 grams) each;
(3) Canned whole ripe Variety Group 1 olives, of the Ascolano, Barouni, and St. Agostino varieties, shall be of such size that not more than 25 percent, by count, of the olives may weigh less than 1/105 pound (4.3 grams) each except that not more than 10 percent, by count, of the olives may weigh less than 1/116 pound (3.9 grams) each;
(4) Canned whole ripe olives of Variety Group 2, except the Obliza variety, shall be of such a size that not more than 35 percent, by count, of the olives may weigh less than 1/140 pound (3.2 grams) each except that not more than 7 percent, by count, of the olives may weigh less than 1/160 pound (2.8 grams) each;
(5) Canned whole ripe Variety Group 2 olives, of the Obliza variety, shall be of such a size that not more than 35 percent, by count, of the olives may weigh less than 1/127 pound (3.5 grams) each except that not more than 7 percent, by count, of the olives may weigh less than 1/135 pound (3.3 grams) each;
(6) Canned whole ripe olives not identifiable as to variety or variety group shall be of such a size that not more than 35 percent, by count, of the olives may weigh less than 1/140 pound (3.2 grams) each except that not more than 7 percent, by count, of the olives may weigh less than 1/160 pound (2.8 grams) each;
(7) Canned pitted ripe olives of Variety Group 1, except the Ascolano, Barouni, and St. Agostino varieties, shall be at least “Extra Large” as defined in § 52.3754 of the U.S. Standards for Grades of Canned Ripe Olives.
(8) Canned pitted ripe Variety Group 1 olives of the Ascolano, Barouni, and St. Agostino varieties shall be at least “Large” as defined in § 52.3754 of the U.S. Standards for Grades of Canned Ripe Olives.
(9) Canned pitted ripe olives of Variety Group 2, except the Obliza variety, shall be at least “Small” as defined in § 52.3754 of the U.S. Standards for Grades of Canned Ripe Olives.
(10) Canned pitted ripe Variety Group 2 olives of the Obliza variety shall be at least “Medium” as defined in § 52.3754 of the U.S. Standards for Grades of Canned Ripe Olives.
(11) Canned pitted ripe olives not identifiable as to variety or variety group shall be at least “Small” as defined in § 52.3754 of the U.S. Standards for Grades of Canned Ripe Olives.
(12) Imported bulk olives when used in the production of canned ripe olives must be inspected and certified as prescribed in this section. Imported bulk olives which do not meet the applicable minimum size requirements specified in paragraphs (b)(2) through (b)(11) of this section may be imported after August 1, 1996, for limited-use, but any such olives so used shall not be smaller than the following applicable minimum size:
(i) Whole ripe olives of Variety Group 1, except Ascolano, Barouni, or St. Agostino varieties, of a size that not more than 35 percent of the olives, by count, may be smaller than
(ii) Whole ripe olives of Variety Group 1 of the Ascolano, Barouni, or St. Agostino varieties, of a size that not more than 35 percent of the olives, by count, may be smaller than
(iii) Whole ripe olives of Variety Group 2, except the Obliza variety, of a size that not more than 35 percent of the olives, by count, may be smaller than
(iv) Whole ripe olives of Variety Group 2 of the Obliza variety of a size that not more than 35 percent of the olives, by count, may be smaller than
(v) Whole ripe olives not identifiable as to variety or variety group of a size that not more than 35 percent of olives, by count, may be smaller than
(c) The Specialty Crops Inspection Division, Specialty Crops Program, Agricultural Marketing Service, U.S. Department of Agriculture, is hereby designated as the governmental inspection service for the purpose of certifying the grade and size of processed olives from imported bulk lots for use in canned ripe olives and the grade and size of imported canned ripe olives. Inspection by said inspection service with appropriate evidence thereof in the form of an official inspection certificate, issued by the service and applicable to the particular lot of olives, is required. With respect to imported bulk olives, inspection and certification shall be completed prior to use as packaged ripe olives. With respect to canned ripe olives, inspection and certification shall be completed prior to importation, unless imports arrive by vessel in which case the date of inspection and certification may be after the date of importation. Any lot of olives which fails to meet the import requirements and is not being imported for purposes of contribution to a charitable organization or processing into oil may be exported or disposed of under the supervision of the Specialty Crops Inspection Division, Specialty Crops Program, AMS, USDA, with the cost of certifying the disposal borne by the importer. Such inspection and certification services will be available, upon application, in accordance with the applicable regulations governing the inspection and certification of Processed Fruits and Vegetables, Processed Products Thereof, and Certain Other Processed Food Products (7 CFR part 52). For questions about inspection services or for further assistance, contact: Specialty Crops Inspection Division, Specialty Crops Program, AMS, USDA, 1400 Independence Avenue SW, Room 1536-S, STOP 0240, Washington, DC 20250-0237; telephone (202) 720-5870; fax (202) 720-0393.
(d) Inspection certificates shall cover only (1) the quantity of canned ripe olives that is being imported at a particular port of entry by a particular importer or (2) the quantity of canned ripe olives processed from a lot or sublot of imported bulk olives.
(e) Inspection shall be performed by USDA inspectors in accordance with said regulations governing the inspection and certification of processed fruits and vegetables and related products (part 52 of this title). The cost of each such inspection and related certification shall be borne by the applicant therefore. Applicants shall provide USDA inspectors with the entry number and such other identifying information for each lot as the inspector may request.
(f) Notwithstanding any other provisions of this regulation, any importation of canned ripe olives or olives imported in bulk for use in the production of canned ripe olives which, in the aggregate, does not exceed 100 pounds drained weight may be imported without regard to the requirements of this section.
(g) It is hereby determined, on the basis of the information currently available, that the minimum quality requirements and size requirements set forth in this part are comparable to those applicable to California canned ripe olives.
(h) No provisions of this section shall supersede the restrictions or prohibitions on canned ripe olives under the provisions of the Federal Food, Drug, and Cosmetic Act, or any other applicable laws or regulations or the need to comply with applicable food and sanitary regulations of city, county, State, or Federal agencies.
(i) Each inspection certificate issued with respect to canned ripe olives to be imported into the United States and canned ripe olives processed from a lot or sublot of imported bulk olives shall set forth among other things:
(1) The date and place of inspection;
(2) The name of the shipper or applicant;
(3) The Customs entry number pertaining to the lot or shipment covered by the certificate;
(4) The commodity inspected;
(5) The quantity of the commodity covered by the certificate;
(6) The principal identifying marks on the container;
(7) The railroad car initials and number, the truck and the trailer license number, the name of the vessel, or other identification of the shipment;
(8) The Consumption Entry Number for Canned Ripe Olives; and
(9) The following statement if the facts warrant: Meets the U.S. import requirements under section 8e of the Agricultural Marketing Agreement Act of 1937, as amended.
(j) The minimum quality, size, and maturity requirements of this section shall not be applicable to olives imported for charitable organizations or processing for oil, but shall be subject to the safeguard provisions contained in § 944.350.
§ 944.503 Table Grape Import Regulation 4.
(a)(1) Pursuant to section 8e of the Act and Part 944 – Fruits, Import Regulations, and except as provided in paragraphs (a)(1)(iii) and (iv) of this section, the importation into the United States of any variety of Vinifera species table grapes, except Emperor, Calmeria, Almeria, and Ribier varieties, is prohibited unless such grapes meet the minimum grade and size requirements established in paragraphs (a)(1)(i) or (ii) of this section.
(i) U.S. No. 1 Table, as set forth in the United States Standards for Grades of Table Grapes (European or Vinifera Type 7 CFR 51.880 through 51.914), with the exception of the tolerance percentage for bunch size when packed in individual consumer clamshell packages weighing 5 pounds or less: not more than 20 percent of the weight of such containers may consist of single clusters weighing less than one-quarter pound, but with at least five berries each; or
(ii) U.S. No. 1 Institutional, with the exception of the tolerance percentage for bunch size. Such tolerance shall be 33 percent instead of 4 percent as is required to meet U.S. No. 1 Institutional grade. Grapes meeting these quality requirements may be marked “DGAC No. 1 Institutional” but shall not be marked “Institutional Pack.”
(iii) Grapes of the Perlette variety shall meet the minimum berry size requirement of ten-sixteenths of an inch, and
(iv) Grapes of the Flame Seedless variety shall meet the minimum berry size requirement of ten-sixteenths of an inch (1.5875 centimeters) and shall be considered mature if the juice meets or exceeds 16.5 percent soluble solids, or the juice contains not less than 15 percent soluble solids and the soluble solids are equal to or in excess of 20 parts to every part acid contained in the juice, in accordance with applicable sampling and testing procedures specified in sections 1436.3, 1436.5, 1436.6, 1436.7, 1436.12, and 1436.17 of Article 25 of Title 3: California Code of Regulations (CCR).
(2) Such minimum maturity standards are incorporated by reference, copies of which are available from Ronald L. Cioffi, Chief, Marketing Order Administration Branch, F&V, AMS, USDA, Washington, DC 20090-6456, telephone (202) 720-2491. They are also available for inspection at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202-741-6030, or go to: http://www.archives.gov/federal_register/code_of_federal_regulations/ibr_locations.html. This incorporation by reference was approved by the Director of the Federal Register. These materials are incorporated as they exist on the date of approval and a notice of any change in these materials will be published in the
(3) All regulated varieties of grapes offered for importation shall be subject to the grape import requirements contained in this section effective April 10 through July 10.
(b) The Federal or Federal-State Inspection Service, F&V, AMS, USDA, is designated as the governmental inspection service for certifying the grade, size, quality, and maturity of table grapes that are imported into the United States. Inspection by the Federal or Federal-State Inspection Service with evidence thereof in the form of an official inspection certificate, issued by the respective service, applicable to the particular shipment of table grapes, is required on all imports. The inspection and certification services will be available upon application in accordance with the rules and regulations governing inspection and certification of fresh fruits, vegetables, and other products (7 CFR part 51) and in accordance with the Procedure for Requesting Inspection and designating the Agencies to Perform Requested Inspection and Certification (7 CFR 944.400).
(c) The term importation means release from custody of the United States Customs Service.
(d) Any lot or portion thereof which fails to meet the import requirements, and is not being imported for purposes of processing or donation to charitable organizations, prior to or after reconditioning may be exported or disposed of under the supervision of the Federal or Federal-State Inspection Service with the costs of certifying the disposal of said lot borne by the importer.
(e) The grade, size, quality, and maturity requirements of this section shall not be applicable to grapes imported for processing or donation to charitable organizations, but shall be subject to the safeguard provisions contained in § 944.350.
§ 944.550 Kiwifruit import regulation.
(a) Pursuant to section 8e of the Agricultural Marketing Agreement Act of 1937, as amended, the importation into the United States of any kiwifruit is prohibited unless such kiwifruit meets all the requirements of a U.S. No. 1 grade as defined in the United States Standards for Grades of Kiwifruit (7 CFR 51.2335 through 51.2340), except that the kiwifruit shall be “not badly misshapen,” and an additional tolerance of 16 percent is provided for kiwifruit that is “badly misshapen,” and except that such kiwifruit shall have a minimum of 6.2 percent soluble solids. Such fruit, except for varieties of the Actinidia chinensis species, shall be at least Size 45, which means there shall be a maximum of 55 pieces of fruit in an 8-pound sample. Varieties of the Actinidia chinensis species shall be at least Size 49, which means there shall be a maximum of 64 pieces of fruit in an 8-pound sample. The average weight of all samples in a specific lot must weigh at least 8 pounds (3.632 kilograms), provided that no individual sample may be less than 7 pounds 12 ounces (3.472 kilograms).
(b) The Federal or Federal-State Inspection Service, Fruit and Vegetable Division, Agricultural Marketing Service, United States Department of Agriculture, is designated as the governmental inspection service for certifying the quality and size of kiwifruit imported into the United States. Inspection by the Federal or Federal-State Inspection Service with evidence thereof in the form of an official inspection certificate, issued by the respective service, applicable to a particular shipment of kiwifruit, is required on all imports. The inspection and certification services will be available upon application in accordance with the rules and regulations governing the inspection and certification of fresh fruits, vegetables, and other products (7 CFR part 51) and in accordance with the procedure for requesting inspection and designating the agencies to perform required inspection and certification (7 CFR 944.400).
(c) The term importation means release from custody of the United States Customs Service. The term commercial processing into products means that the kiwifruit is physically altered in form or chemical composition through freezing, canning, dehydrating, pulping, juicing, or heating of the product. The act of slicing, dicing, or peeling shall not be considered commercial processing into products.
(d) Any lot or portion thereof which fails to meet the import requirements and is not being imported for purposes of consumption by charitable institutions, distribution by relief agencies, or commercial processing into products may be reconditioned or exported. Any failed lot which is not reconditioned or exported shall be disposed of under supervision of the Federal or Federal-State Inspection Service with the costs of certifying the disposal of said lot borne by the importer.
(e) Any person may import up to 200 pounds of kiwifruit in any one shipment exempt from the requirements of this section.
(f) The grade, size, quality, and maturity requirements of this section shall not be applicable to kiwifruit imported for consumption by charitable institutions, distribution by relief agencies, or commercial processing into products, but shall be subject to the safeguard provisions contained in § 944.350.
§ 944.700 Fresh prune import regulation.
(a) Pursuant to section 8e of the Agricultural Marketing Agreement Act of 1937, as amended, the importation into the United States of any fresh prunes, other than the Brooks variety, during the period July 15 through September 30 of each year is prohibited unless such fresh prunes meet the following requirements:
(1) Such fresh prunes grade at least U.S. No. 1, except that at least two-thirds of the surface of the fresh prune is required to be purplish in color, and such fresh prunes measure not less than 1
(i) 10 percent for fresh prunes which fail to meet the color requirement;
(ii) 10 percent for fresh prunes which fail to meet the minimum diameter requirement;
(iii) 10 percent for fresh prunes which fail to meet the remaining requirements of the grade: Provided, That not more than one-half of this amount, or 5 percent, shall be allowed for defects causing serious damage, including in the latter amount not more than 1 percent for decay.
(2) [Reserved]
(b) The importation of any individual shipment which, in the aggregate, does not exceed 500 pounds net weight, of fresh prunes of the Stanley or Merton varieties, or 350 pounds net weight, of fresh prunes of any variety other than the Stanley or Merton varieties, is exempt from the requirements specified in this section.
(c) The grade, size and quality requirements of this section shall not be applicable to fresh prunes imported for consumption by charitable institutions, distribution by relief agencies, or commercial processing into products, but such prunes shall be subject to the safeguard provisions in § 944.350.
(d) The term U.S. No. 1 shall have the same meaning as when used in the United States Standards for Grades of Fresh Plums and Prunes (7 CFR 51.1520 through 51.1538); the term purplish color shall have the same meaning as when used in the Washington State Department of Agriculture Standards for Italian Prunes (April 28, 1978), and the Oregon State Department of Agriculture Standards for Italian Prunes (October 5, 1977); the term diameter means the greatest dimension measured at right angles to a line from the stem to the blossom end of the fruit.
(e) The term Prunes means all varieties of plums, classified botanically as Prunus domestica, except those of the President variety.
(f) The term importation means release from custody of the United States Customs Service.
(g) Inspection and certification service is required for imports and will be available in accordance with the regulation designating inspection services and procedure for obtaining inspection and certification (7 CFR 944.400).
(h) Any lot or portion thereof which fails to meet the import requirements, and is not being imported for purposes of consumption by charitable institutions, distribution by relief agencies, or commercial processing into products, prior to or after reconditioning may be exported or disposed of under the supervision of the Federal or Federal-State Inspection Service with the costs of certifying the disposal of such fresh prunes borne by the importer.
(i) It is determined that fresh prunes imported into the United States shall meet the same minimum grade, size and quality requirements as those established for fresh prunes under Marketing Order No. 924 (7 CFR part 924).
PART 945 – IRISH POTATOES GROWN IN CERTAIN DESIGNATED COUNTIES IN IDAHO, AND MALHEUR COUNTY, OREGON
Subpart A – Order Regulating Handling
Definitions
§ 945.1 Secretary.
Secretary means the Secretary of Agriculture of the United States, or any officer or employee of the United States Department of Agriculture to whom authority has heretofore been delegated, or to whom authority may hereafter be delegated, to act in his stead.
§ 945.2 Act.
Act means Public Act No. 10, 73d Congress, as amended and as reenacted and amended by the Agricultural Marketing Agreement Act of 1937, as amended (48 Stat. 31, as amended; 7 U.S.C. 601 et seq.; 68 Stat. 906, 1047).
§ 945.3 Person.
Person means an individual, partnership, corporation, association, or any other business unit.
§ 945.4 Production area.
Production area means all territory included within Malheur County, Oregon, and the counties of Adams, Valley, Lemhi, Clark, and Fremont in the State of Idaho, and all of the counties in Idaho lying south thereof.
§ 945.5 Potatoes.
Potatoes means all varieties of Irish potatoes grown within the aforesaid production area.
§ 945.6 Varieties.
Varieties means and includes all classifications or subdivisions of Irish potatoes according to those definitive characteristics now or hereafter recognized by the United States Department of Agriculture.
§ 945.7 Certified seed potatoes.
Certified seed potatoes means and includes all potatoes officially certified and tagged, marked, or otherwise appropriately identified, under the supervision of the official seed potato certifying agency of the State in which the potatoes are grown, or other seed certification agencies which the Secretary may designate.
§ 945.8 Handler.
Handler is synonymous with shipper and means any person (except a common or contract carrier of potatoes owned by another person) who ships potatoes.
§ 945.9 Ship or handle.
Ship or handle means to pack, sell, consign, transport or in any other way to place potatoes grown in the production area, or cause such potatoes to be placed, in the current of commerce within the production area or between the production area and any point outside thereof, so as to directly burden, obstruct, or affect any such commerce: Provided, That the definition of ship or handle shall not include the transportation of ungraded potatoes within the production area for the purpose of having such potatoes stored or prepared for market, except that the committee may impose safeguards pursuant to § 945.53 with respect to such potatoes.
§ 945.10 Producer.
Producer means any person engaged in the production of potatoes for market.
§ 945.11 Committee.
Committee means the administrative committee, called the Idaho-Eastern Oregon Potato Committee, established pursuant to § 945.20.
§ 945.12 Fiscal period.
Fiscal period means the period beginning and ending on the dates approved by the Secretary pursuant to recommendations by the committee.
§ 945.13 Grade and size.
Grade means any one of the officially established grades of potatoes, and size means any one of the officially established sizes of potatoes, as defined and set forth in:
(a) The United States Standards for Potatoes issued by the United States Department of Agriculture (§§ 51.1540 to 51.1556 of this title), or amendments thereto, or modifications thereof, or variations based thereon;
(b) The United States Consumer Standards for Potatoes as issued by the United States Department of Agriculture (§§ 51.1575 to 51.1587 of this title), or amendments thereto, or modifications thereof, or variations based thereon; or
(c) Standards for potatoes issued by the State from which the potatoes are shipped, or amendments thereto, or modifications thereof, or variations based thereon.
§ 945.14 Export.
Export means shipment of potatoes beyond the boundaries of continental United States.
§ 945.15 Pack.
Pack means a quantity of potatoes in any type of container and which falls within specific weight limits or within specific grade and/or size limits, or any combination thereof, recommended by the committee and approved by the Secretary.
§ 945.16 Container.
Container means a sack, box, bag, crate, hamper, basket, carton, package, barrel, or any other type of receptacle used in the packaging, transportation, sale, or other handling of potatoes.
§ 945.17 District.
District means each of the geographical divisions of the production area established pursuant to § 945.22 or as reestablished pursuant to § 945.23.
Administrative Committee
§ 945.20 Establishment and membership.
(a) The Idaho-Eastern Oregon Potato Committee is hereby established consisting of eight members, of whom four shall currently be producers of potatoes for the fresh market who produced such potatoes during at least three of the last five years; at least one member shall be a producer predominately of potatoes for seed during a similar period; and three shall be handlers. For each member of the committee, there shall be an alternate who shall have the same qualifications as the member. The number of producer and/or handler members and alternates on the committee may be increased and the composition of the committee between producers and handlers may be changed as provided in § 945.23.
(b) Each person selected as a committee member or alternate to represent producers shall be an individual who is a producer in the district for which selected or an officer or employee of a producer in such district, and shall be a resident thereof. A producer who handles potatoes other than of his own production shall qualify as a producer under this section, and §§ 945.24, 945.25, 945.27, and 945.29, only if the potatoes of his own production constituted 51 percent or more of the total quantity of potatoes handled by him during the portion of the then current season preceding his nomination.
(c) Each person selected as a committee member or alternate to represent handlers shall be an individual who is a handler or an officer or employee of a handler, and shall be a resident of the production area.
(d) At least every six years, the committee shall review committee size, composition, and representation and recommend to the Secretary whether changes should be made, as provided in § 945.23.
§ 945.21 Term of office.
(a) Except as otherwise provided in this section, the term of office of committee members and alternates shall be for two years beginning June 1 or such other date as recommended by the committee and approved by the Secretary. The term of office of members and alternates shall be so determined that approximately one-half of the total producer and handler committee membership shall terminate each year.
(b) Committee members and alternates shall serve during the term of office for which they are selected and have qualified and continue until their successors are selected and have qualified. Beginning with the 1987 term of office, no member or alternate shall serve more than three full consecutive terms: Provided, That an alternate member may serve up to three consecutive terms and then serve as a member for up to three consecutive terms without a break in service. Members serving three consecutive terms could again become eligible to serve on the committee by not serving for one full term as either member or alternate member: Provided, That in the event a position would otherwise remain vacant for lack of eligible nominees or eligible persons willing to serve, the Secretary may authorize a member or alternate member to serve more than three full consecutive terms.
§ 945.22 Districts.
For the purpose of selecting committee members and alternate members, the following districts of the production area are hereby established: Provided, That these districts may be changed as provided in § 945.23.
(a) District No. 1: The counties of Bonneville, Butte, Clark, Fremont, Jefferson, Madison, and Teton;
(b) District No. 2: The counties of Bannock, Bear Lake, Bingham, Caribou, Franklin, Oneida, and Power; and
(c) District No. 3: Malheur County, Oregon, and the remaining designated counties in Idaho included in the production area, and not included in District No. 1 or District No. 2.
§ 945.23 Redistricting and reapportionment.
(a) The Secretary, upon recommendation of the committee, may reestablish districts within the production area, may reapportion committee membership among the various districts, may increase the number of producer and/or handler members and alternates on the committee, and may change the composition of the committee by changing the ratio between producer and handler members, including their alternates. At least every six years, the committee shall review committee size, composition and representation and recommend to the Secretary whether changes should be made. In recommending any such changes, the committee shall give consideration to:
(1) Shifts in potato acreage within districts and within the production area during recent years;
(2) the importance of new potato production in its relation to existing districts;
(3) the equitable relationship between committee membership and districts;
(4) economies to result for producers in promoting efficient administration due to redistricting or reapportionment of members within districts; and
(5) other relevant factors.
(b) Membership of the committee shall be apportioned among the districts of the production area so as to provide the following representation or such other representation as recommended by the committee and approved by the Secretary:
(1) Three producer members, including at least one who predominately produces seed potatoes, and one handler member, with their respective alternates, from District No. 1;
(2) One producer member and one handler member, with their respective alternates, from District No. 2; and
(3) One producer member and one handler member, with their respective alternates, from District No. 3.
§ 945.24 Selection.
Members and alternates of the committee shall be selected by the Secretary on the basis specified in § 945.23 (b) from nominations made pursuant to § 945.25 or from other eligible persons.
§ 945.25 Nominations.
For the selection by the Secretary of the members and alternates of the Idaho-Eastern Oregon Potato Committee, nominations may be made in the manner indicated in this section. Nominations for members and alternates may be submitted by producers or handlers, as the case may be, or groups of either thereof, on an elective basis or otherwise.
(a) In order to provide nominations for producer and handler committee members and alternates, the committee shall hold, or cause to be held, prior to April 1 of each year, or such other date as the Secretary may designate, one or more meetings of producers and of handlers in each district to nominate such members and alternates; or the committee may conduct nominations by mail in a manner recommended by the committee and approved by the Secretary.
(b) In arranging for such meetings, the committee may, if it deems it to be desirable, utilize the services and facilities of existing organizations and agencies, and may combine its meetings with others.
(c) At least one nominee shall be designated for each position as member and for each position as alternate member on the committee.
(d) Only producers may participate in designating nominees for producer members and alternates, and only handlers may participate in designating nominees for handler members and alternates.
(e) Each person who is both a handler and a producer may vote either as a handler or as a producer and may elect the group in which he will vote.
(f) Regardless of the number of districts in which a person produces or handles potatoes, each such person is entitled to cast only one vote on behalf of himself, his agents, subsidiaries, affiliates, and representatives, in designating nominees for committee members and alternates. In the event a person is engaged in producing or handling potatoes in more than one district, such person shall elect the district within which he may participate, as aforesaid, in designating nominees. An eligible voter’s privilege of casting only one vote, as aforesaid, shall be construed to permit a voter to cast one vote for each position to be filled in the district in which he elects to vote.
(g) Nominations shall be supplied to the Secretary in such manner and form as the Secretary may prescribe, not later than May 1 of each year, or such other date as the Secretary may specify.
§ 945.26 Failure to nominate.
If nominations are not made within the time and in the manner specified by the Secretary pursuant to § 945.25, the Secretary may, without regard to nominations, select the committee members and alternates on the basis of the representation prescribed in this subpart.
§ 945.27 Acceptance.
Any person nominated to serve on the committee as a member or as an alternate shall qualify by filing a statement of willingness to serve with the Secretary.
§ 945.28 Vacancies.
To fill any vacancy occasioned by the failure of any person selected as a committee member or as an alternate to qualify, or in the event of the death, removal, resignation, or disqualification of any qualified member or alternate, a successor for his unexpired term may be selected by the Secretary from nominations made in the manner specified in § 945.25 or the Secretary may select such committee member or alternate from previously unselected nominees on the current nominee list from the district involved. If the names of nominees to fill any such vacancy are not made available to the Secretary within 30 days after such vacancy occurs, the Secretary may fill such vacancy without regard to nominations, which selection shall be made on the basis of the representation provided for in § 945.24.
§ 945.29 Alternate members.
An alternate member of the committee shall act in the place and stead of the member for whom he is an alternate during such member’s absence and may perform such other duties as may be assigned or requested by the committee. In the event of the death, removal, resignation, or disqualification of a member his alternate shall act for him until a successor to such member is selected and has qualified. The committee may request the attendance of one or more alternates at any or all meetings, notwithstanding the expected or actual presence of the respective members.
§ 945.30 Procedure.
(a) A simple majority of all members of the committee, including alternates acting for members, shall be necessary to constitute a quorum or to pass any motion or approve any committee action, except any motion regarding a change in committee size shall require a unanimous vote. At any assembled meeting, all votes shall be cast in person.
(b) The committee may provide for meetings by telephone, telegraph or other means of communication and any vote cast at such meeting shall be confirmed promptly in writing.
§ 945.31 Expenses.
Committee members and alternates shall be reimbursed for reasonable expenses necessarily incurred by them in the performance of their duties and in the exercise of their powers under this subpart, and may receive compensation at a rate determined by the committee, and approved by the Secretary, for each day or portion thereof, spent in conducting committee business.
§ 945.32 Powers.
The committee shall have the following powers:
(a) To administer the provisions of this subpart in accordance with its terms;
(b) To make rules and regulations to effectuate the terms and provisions of this subpart;
(c) To receive, investigate, and report to the Secretary complaints of violation of the provisions of this subpart; and
(d) To recommend to the Secretary amendments to this subpart.
§ 945.33 Duties.
It shall be the duty of the committee:
(a) To act as intermediary between the Secretary and any producer or handler;
(b) To select a chairman and such other officers as may be necessary, to select subcommittees of committee members, and to adopt such rules and regulations for the conduct of its business as it may deem advisable;
(c) To appoint such employees, agents, and representatives as it may deem necessary and to determine the salaries and define the duties of each such person;
(d) To investigate, from time to time, and to assemble data on the growing, harvesting, shipping and marketing conditions with respect to potatoes, and to engage in such research and service activities which relate to the handling or marketing of potatoes as may be approved by the Secretary;
(e) To furnish to the Secretary such available information as he may request;
(f) To keep minutes, books, and records which clearly reflect all of the acts and transactions of the committee and such minutes, books, and records shall be subject to examination at any time by the Secretary or his authorized agent or representative;
(g) To make available to producers and handlers the committee voting record on recommended regulations and on other matters of policy;
(h) At the beginning of each fiscal period to submit to the Secretary a budget of its expenses for such fiscal period, together with a report thereon;
(i) To cause the books of the committee to be audited by a competent accountant at least once each fiscal period, and at such other time as the committee may deem necessary or as the Secretary may request. The report of such audit shall show the receipt and expenditure of funds collected pursuant to this subpart; a copy of each such report shall be furnished to the Secretary and a copy of each such report shall be made available at the principal office of the committee for inspection by producers and handlers; and
(j) To consult, cooperate and exchange information when deemed desirable by the committee with other potato marketing committees and other individuals or agencies in connection with all proper committee activities and objectives under this subpart.
Budget, Expenses and Assessments
§ 945.40 Expenses.
The committee is authorized to incur such expenses as the Secretary may find are reasonable and likely to be incurred during each fiscal period for its maintenance and functioning, and for such purposes as the Secretary, pursuant to this subpart, determines to be appropriate. Handlers shall share such expenses upon the basis of a fiscal period. Each handler’s share of such expense shall be proportionate to the ratio between the total quantity of potatoes handled by him as the first handler thereof during a fiscal period and the total quantity of potatoes handled by all handlers as first handlers thereof during the same period.
§ 945.41 Budget.
At the beginning of each fiscal period, and as may be necessary thereafter, the committee shall prepare an estimated budget of income and expenditures necessary for the administration of this part. The committee may recommend a rate of assessment calculated to provide adequate funds to defray its proposed expenses as authorized in § 945.40. The committee shall present such budget promptly to the Secretary with an accompanying report showing the basis for its calculations.
§ 945.42 Assessments.
(a) The funds to cover the committee’s expenses pursuant to § 945.40 shall be acquired by the levying of assessments upon handlers as provided in this subpart. Each handler who ships potatoes as the first handler thereof shall pay assessments to the committee upon demand, which assessments shall be in payment of such handler’s pro rata share of such expenses.
(b) Assessments shall be levied upon handlers at a rate per hundredweight of potatoes or equivalent established by the Secretary. Such rate may be established upon the basis of the committee’s budget recommendations, and other available information.
(c) At any time during or subsequent to a given fiscal period, the committee may recommend the approval of an amended budget and an increase in the rate of assessment. Upon the basis of such recommendation, or other available information, the Secretary may approve an amended budget and increase the rate of assessment. Such increase shall be applicable to all potatoes assessable under this part and handled by the first handler thereof during such fiscal period.
(d) The committee may impose a late payment charge or an interest charge, or both, on any handler who fails to pay, on or before the due date established by the Secretary, the total assessment for which such handler is liable. Such due date and the late payment fee and interest rate shall be recommended by the committee and approved by the Secretary.
(e) In order to provide funds to carry out its function, after the effective date of this subpart the committee may accept advance assessments from handlers. Advance assessments received from a handler shall be credited toward assessments levied against that handler during that fiscal period. In the case of an extreme emergency, the committee may also borrow money on a short term basis to provide funds for the administration of this part. Any such borrowed money shall only be used to meet the committee’s current financial obligations, and the committee shall repay all borrowed money by the end of the next fiscal period from assessment income.
§ 945.43 Accounting.
(a) All funds received by the committee pursuant to the provisions of this part shall be used solely for the purposes specified in this part.
(b) The Secretary may at any time require the committee, its members and alternates, employees, agents, and all other persons to account for all receipts and disbursements, funds, property, and records for which they are responsible. Whenever any person ceases to be a member or alternate of the committee, he shall account for all receipts, disbursements, funds, and property (including but not limited to books and other records) pertaining to the committee’s activities for which he is responsible, and deliver all such property and funds in his hands to such successor, agency, or person as may be designated by the Secretary, and shall execute such assignments and other instruments as may be necessary or appropriate to vest in such successor, agency, or designated person, the right to all of such property and funds and all claims vested in such person.
(c) The committee may make recommendations to the Secretary for one or more of the members thereof, or any other person or persons to act as trustee or trustees for holding records, funds, or any other committee property during periods of suspension of this part, or during any period or periods when regulations are not in effect and, if the Secretary determines such action appropriate, he may direct that such person or persons shall act as trustee or trustees for the committee.
§ 945.44 Excess funds.
(a) The funds remaining at the end of a fiscal period which are in excess of the expenses necessary for committee operations during such period may be carried over, with the approval of the Secretary, into following periods as a reserve. Such reserve shall be established at an amount not to exceed approximately one fiscal period’s budgeted expenses. Funds in such reserve shall be available for use by the committee for expenses authorized under § 945.40.
(b) Funds in excess of those placed in the operating reserve shall be credited proportionately against a handler’s operations of the following fiscal period, except that if the handler demands payment, such proportionate refund shall be paid to such handler.
(c) Upon termination of this part, any funds not required to defray the necessary expenses of liquidation shall be disposed of in such manner as the Secretary may determine to be appropriate. To the extent practical, such funds shall be returned pro rata to the persons from whom such funds were collected.
Regulations
§ 945.50 Marketing policy.
(a) Preparation. Prior to or at the same time as recommendations are made pursuant to § 945.51, the committee shall consider, and prepare, a proposed policy for the marketing of potatoes. In developing its marketing policy the committee shall investigate relevant supply and demand conditions for potatoes. In such investigations the committee shall give appropriate consideration to the following:
(1) Market prices for potatoes, including prices by grade, size, and quality, in different packs, and in different containers;
(2) Supplies of potatoes by grade, size, and quality in the production area and in other potato producing areas;
(3) The trend and level of consumer income;
(4) Establishing and maintaining orderly marketing conditions for potatoes;
(5) Orderly marketing of potatoes as will be in the public interest; and
(6) Other relevant factors.
(b) Reports. (1) The committee shall promptly submit a report to the Secretary setting forth the aforesaid marketing policy and shall notify producers and handlers of the contents of such report.
(2) In the event it becomes advisable to deviate from such marketing policy because of changed supply and demand conditions, the committee shall formulate a new or revised marketing policy in the manner set forth in this section. The committee shall promptly submit a report thereon to the Secretary and notify producers and handlers of the contents of such report on the new or revised marketing policy.
§ 945.51 Recommendation for regulations.
Whenever the committee deems it advisable that the handling of potatoes be regulated pursuant to § 945.52, or § 945.53, or both, it shall recommend to the Secretary grade, size, quality, or maturity regulation, or any combination thereof, or amendment thereto, or modification, suspension, or termination thereof, whenever it finds that such regulation, as provided in such sections, will tend to effectuate the declared policy of the act.
§ 945.52 Issuance of regulations.
(a) The Secretary shall limit the handling of potatoes whenever he finds from the recommendations and information submitted by the committee, or from other available information, that such regulation will tend to effectuate the declared policy of the act. Such limitation may:
(1) Regulate in any or all portions of the production area, the handling of particular grades, sizes, qualities, or maturities, or any combination thereof, of any or all varieties of potatoes during any period; or
(2) Regulate the shipment of particular grades, sizes, qualities, or maturities of potatoes differently, for different varieties, for different portions of the production area, for different packs, for different containers, or for any combination of the foregoing, during any period; or
(3) Fix the size, capacity, weight, dimensions, pack, labeling or marking of the container, or containers, which may be used in the packaging or handling of potatoes, or both; or
(4) Regulate the shipment of potatoes by establishing, in terms of grades, sizes, or both, minimum standards of quality and maturity.
(b) [Reserved]
§ 945.53 Shipments for specified purposes.
Whenever the Secretary finds, upon the basis of the recommendations and information submitted by the committee, or from other available information, that it will tend to effectuate the declared policy of the act, he shall modify, suspend, or terminate regulations under or pursuant to § 945.42, § 945.52, or § 945.65, or any combination thereof in order to facilitate shipments of potatoes for the following purposes:
(a) Export;
(b) Relief or charity;
(c) Livestock feed;
(d) Certified seed potatoes;
(e) Processing into specified products; and
(f) Such other purposes which may be specified by the Committee, with the approval of the Secretary.
§ 945.54 Minimum quantity exemption.
The committee, with the approval of the Secretary, may establish, for any or all portions of the production area, minimum quantities below which shipments will be free from regulations issued or in effect pursuant to §§ 945.40 to 945.65, inclusive, or any combination thereof.
§ 945.55 Notification of regulation.
The Secretary shall notify the committee of any regulations issued or of any modifications, suspension, or termination thereof. The committee shall give reasonable notice thereof to handlers.
§ 945.56 Safeguards.
(a) The committee, with the approval of the Secretary, may prescribe adequate safeguards to prevent shipments pursuant to § 945.53 from entering channels of trade and other outlets for other than the specific purpose authorized therefor.
(b) Safeguards, provided by this section, may include, but shall not be limited to, requirements that handlers:
(1) Shall obtain the inspection required by § 945.65 or pay the assessment provided by § 945.42, or both, in connection with the potato shipments effected in accordance with § 945.53; and
(2) Shall obtain Certificates of Privilege from the committee for shipments of potatoes effected or to be effected under provisions of § 945.53.
(c) The committee, with the approval of the Secretary, shall prescribe rules governing the issuance and the contents of Certificates of Privilege.
(d) The committee may rescind, or deny to any handler, Certificates of Privilege if proof satisfactory to the committee is obtained that potatoes shipped by him for the purposes stated in § 945.53 were handled contrary to the provisions of this section.
(e) The committee shall make reports to the Secretary, as requested, showing the number of applications for such certificates, the quantity of potatoes covered by such applications for such certificates, the number of such applications denied and certificates granted, the quantity of potatoes shipped under duly issued certificates, and such other information as may be requested by the Secretary.
Inspection and Certification
§ 945.65 Inspection and certification.
(a) During any period in which regulations are in effect pursuant to § 945.42, § 945.52, or § 945.53, or any combination thereof, no handler shall handle potatoes unless such potatoes are inspected by an authorized representative of the Federal-State Inspection Service, and are covered by a valid inspection certificate, except when relieved from such requirements pursuant to recommendations by the committee and approved by the Secretary.
(b) Regrading, resorting, or repacking any lot of potatoes shall invalidate any prior inspection certificates covering such potatoes insofar as the requirements of this section are concerned. During any period in which shipments of potatoes are regulated, as aforesaid, no handler shall handle potatoes after they have been regraded, resorted, repacked, or in any way further prepared for market, unless such potatoes are inspected and covered by a valid inspection certificate as required in paragraph (a) of this section.
(c) Insofar as the requirements of this section are concerned, the length of time for which an inspection certificate shall be valid may be established by the committee with the approval of the Secretary; and such length of time may be different for shipments for different purposes.
(d) When potatoes are inspected in accordance with the requirements of this section, a copy of each inspection certificate issued shall be made available promptly to the committee by the inspection service.
Compliance
§ 945.70 Compliance.
Except as provided in this part, no handler shall ship potatoes, the shipment of which has been prohibited by the Secretary in accordance with provisions of this subpart, and no handler shall ship potatoes except in conformity to the provisions of this subpart.
Miscellaneous Provisions
§ 945.80 Reports.
(a) Upon the request of the committee, with approval of the Secretary, every handler shall furnish to the committee, in such manner and at such time as may be prescribed, such information as will enable the committee to exercise its powers and perform its duties under this subpart. The Secretary shall have the right to modify, change, or rescind any requests for reports pursuant to this section.
(b) All data or other information constituting a trade secret, or disclosing a trade position or business condition of a particular handler shall be treated as confidential and shall at all times be received by and kept in the custody and under the control of one or more designated employees of the committee. Information which would reveal the circumstances of a single handler shall be disclosed to no person other than the Secretary.
(c) Each handler shall maintain for at least two succeeding fiscal periods such records of potatoes received and of potatoes disposed of by such handler as may be necessary to verify reports required pursuant to this section. The committee, with the approval of the Secretary, may prescribe rules and regulations issued pursuant to this section specifying handler records and reports which the committee may need to perform its functions.
(d) For the purpose of assuring compliance and checking and verifying reports filed by handlers, the Secretary and the committee, through its duly authorized agents, shall have access to any premises where applicable records are maintained, where potatoes are held, and, at any time during reasonable business hours, shall be permitted to inspect such handlers’ premises and any and all records of such handlers with respect to matters within the purview of this part.
§ 945.81 Right of the Secretary.
The members of the committee (including successors and alternates), and any agent or employee appointed or employed by the committee, shall be subject to removal or suspension by the Secretary at any time. Each and every order, regulation, decision, determination or other act of the committee shall be subject to the continuing right of the Secretary to disapprove of the same at any time. Upon such disapproval, the disapproved action of the said committee shall be deemed null and void, except as to acts done in reliance thereon or in compliance therewith prior to such disapproval by the Secretary.
§ 945.82 Effective time.
The provisions of this subpart shall become effective at such time as the Secretary may declare above his signature attached to this subpart, and shall continue in force until terminated in one of the ways specified in this subpart.
§ 945.83 Termination.
(a) The Secretary may, at any time, terminate the provision of this subpart by giving at least one day’s notice by means of a press release or in any other manner which he may determine.
(b) The Secretary may terminate or suspend the operation of any or all of the provisions of this subpart whenever he finds that such provisions do not tend to effectuate the declared policy of the act.
(c) The Secretary shall terminate the provisions of this subpart at the end of any fiscal period whenever he finds that such termination is favored by a majority of producers who, during the preceding fiscal period, have been engaged in the production for market of potatoes: Provided, That such majority has, during such period, produced for market more than fifty percent of the volume of such potatoes produced for market; but such termination shall be effective only if announced on or before April 30 of the then current fiscal period.
(d) The Secretary shall conduct a referendum as soon as practicable after July 31, 1992, and at such time every sixth year thereafter, to ascertain whether continuance of this order is favored by potato producers. The Secretary may terminate the provisions of this order at the end of any fiscal period in which the Secretary has found that continuance of this order is not favored by producers who, during a representative period determined by the Secretary, have been engaged in the production for market of potatoes in the production area. Termination of the order shall be effective only if announced on or before July 1 of the then current fiscal period.
(e) The provisions of this subpart shall, in any event, terminate whenever the provisions of the act authorizing them cease to be in effect.
§ 945.84 Proceedings after termination.
(a) Upon the termination of the provisions of this subpart the then functioning members of the committee shall continue as trustees, for the purpose of liquidating the affairs of the committee, of all the funds and property then in the possession of or under control of the committee, including claims for any funds unpaid or property not delivered at the time of such termination. Action by said trusteeship shall require the concurrence of a majority of the said trustees.
(b) The said trustees shall continue in such capacity until discharged by the Secretary; shall, from time to time account for all receipts and disbursements and deliver all property on hand, together with all books and records of the committee and of the trustees, to such person as the Secretary may direct; and shall upon request of the Secretary execute such assignments or other instruments necessary or appropriate to vest in such person full title and right to all of the funds, property, and claims vested in the committee or the trustees pursuant thereto.
(c) Any person to whom funds, property, or claims have been transferred or delivered by the committee or its members, pursuant to this section, shall be subject to the same obligations imposed upon the members of the committee and upon the said trustees.
§ 945.85 Effect of termination or amendments.
(a) Unless otherwise expressly provided by the Secretary, the termination of this subpart or of any regulation issued pursuant to this subpart, or the issuance of any amendments to either thereof, shall not (1) 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 under this subpart, or (2) release or extinguish any violation of this subpart or of any regulation issued under this subpart, or (3) affect or impair any rights or remedies of the Secretary or of any other person with respect to any such violation.
(b) The persons who are committee members and alternates on the effective date of this subpart shall continue in office until their successors have been selected and have qualified. All rules and regulations issued or approved by the Secretary pursuant to this part (Order No. 945, as amended) and not in conflict herewith, which are in effect immediately prior to the date of this amendment shall continue in effect under this subpart as originally issued, or subsequently modified, until such rules and regulations are changed, modified, or suspended in accordance with this subpart.
§ 945.86 Duration of immunities.
The benefits, privileges, and immunities conferred upon any person by virtue of this subpart shall cease upon the termination of this subpart, except with respect to acts done under and during the existence of this subpart.
§ 945.87 Agents.
The Secretary may, by designation in writing, name any person, including any officer or employee of the Government, or name any bureau or division in the United States Department of Agriculture, to act as his agent or representative in connection with any of the provisions of this subpart.
§ 945.88 Derogation.
Nothing contained in this subpart is, or shall be construed to be, in derogation or in modification of the rights of the Secretary or of the United States to exercise any powers, granted by the act or otherwise, or, in accordance with such powers, to act in the premises whenever such action is deemed advisable.
§ 945.89 Personal liability.
No member or alternate of the committee, nor any employee or agent thereof, shall be held personally responsible, either individually or jointly with others, in any way whatsoever, to any handler or to any person for errors in judgment, mistakes, or other acts, either of commission or omission, as such member, alternate, or employee, except for acts of dishonesty.
§ 945.90 Separability.
If any provision of this subpart is declared invalid, or the applicability thereof to any person, circumstance, or thing is held invalid, the validity of the remainder of this subpart, or the applicability thereof to any other person, circumstance, or thing, shall not be affected thereby.
§ 945.91 Amendments.
Amendments to this subpart may be proposed, from time to time, by the committee or by the Secretary.
Subpart B – Administrative Requirements
§ 945.100 Communications.
Unless otherwise provided by specific direction of the committee, all reports, applications, submittals, requests, and communications in connection with the marketing agreement and order, both as amended, shall be addressed to the committee at its principal office.
Definitions
§ 945.110 Order.
Order means Order No. 945, as amended, effective September 1, 1958 (§§ 945.1 through 945.91) regulating the handling of Irish potatoes grown in Malheur County, Oregon, and the counties of Adams, Valley, Lemhi, Clark, and Fremont in the State of Idaho, and all of the counties in Idaho lying south thereof.
§ 945.111 Fiscal period.
The fiscal period that began June 1, 1981, shall end July 31, 1982. Each year thereafter fiscal period shall mean the period beginning August 1 and ending the following July 31.
§ 945.112 Terms.
Terms used in this subpart shall have the same meaning as when used in the marketing agreement and order, both as amended.
Certificates of Privilege
§ 945.120 General.
Whenever shipments of potatoes for special purposes pursuant to § 945.53 are relieved in whole or in part from grade and size regulations issued under § 945.52 the committee shall require information and evidence as to the manner, methods, and timing of such shipments as safeguards against the entry of any such potatoes into trade channels other than those for which intended. Such information and evidence shall include the requirements set forth below with respect to Certificates of Privilege.
§ 945.121 Qualification.
Before handling potatoes for special purposes which do not meet regulations issued pursuant to § 945.52 a handler must qualify with the committee to handle shipments for special purposes. To qualify he must (a) apply for and receive a Certificate of Privilege indicating his intent to so handle potatoes; (b) agree to comply with reporting and other requirements set forth in §§ 945.121 to 945.125, inclusive, with respect to such shipments; and (c) receive approval of the committee, or its duly authorized agents, to so handle potatoes. Such approval will be based upon evidence furnished in his application for a Certificate of Privilege, and other information available to the committee.
§ 945.122 Application.
(a) Application for a Certificate of Privilege shall be made on forms furnished by the committee. Each application may contain, but need not be limited to, the name and address of the handler; the quantity by grade, size, quality and variety of the potatoes to be shipped; the mode of transportation; the consignee; the destination; the purpose for which the potatoes are to be used; a certification to the United States Department of Agriculture and to the committee as to the truthfulness of the information shown thereon; and any other appropriate information or documents deemed necessary by the committee or its duly authorized agents for the purpose stated in § 945.120.
(b) The committee may require each handler making shipments of potatoes for export to include with his application a copy of the Department of Commerce Shipper’s Export Declaration Form No. 7525-V applicable to such shipment.
§ 945.123 Approval.
The committee or its duly authorized agents shall give prompt consideration to each application for a Certificate of Privilege. Approval of an application, based upon a determination as to whether the information contained therein and other information available to the committee supports approval, shall be evidenced by the issuance of a Certificate of Privilege to the applicant. Each certificate shall cover a specified period, and specified qualities and quantities of potatoes to be sold or transported to the designated consignee for the purposes declared.
§ 945.124 Reports.
Each handler of potatoes shipping under Certificates of Privilege shall supply the committee with reports as requested by the committee or its duly authorized agents showing the name and address of the shipper; the car or truck identification; the loading point; destination; consignee; the inspection certificate number when inspection is required; and any other information deemed necessary by the committee.
§ 945.125 Disqualification.
The committee from time to time may conduct surveys of handling of potatoes for special purposes requiring Certificates of Privilege to determine whether handlers are complying with the requirements and regulations applicable to such certificates. Whenever the committee finds that a handler or consignee is failing to comply with requirements and regulations applicable to handling of potatoes in special outlets, and requiring such certificates, a Certificate or Certificates of Privilege issued such handler may be rescinded and further certificates denied. Such disqualification shall apply to, and not exceed, a reasonable period of time as determined by the committee but in no event shall it extend beyond the end of the succeeding fiscal period. Any handler who has a certificate rescinded or denied may appeal to the committee in writing for reconsideration of his disqualification.
Subpart C – Assessment Rates
§ 945.249 Assessment rate.
On and after August 1, 2017, an assessment rate of $0.002 per hundredweight is established for Idaho-Eastern Oregon potatoes.
Subpart D – Handling Requirements
§ 945.341 Handling regulation.
No person shall handle any lot of potatoes unless such potatoes meet the requirements of paragraphs (a) through (d) of this section, or unless such potatoes are handled in accordance with paragraphs (e) and (f), or (g) of this section.
(a) Minimum quality requirements – (1) Grade – All varieties. U.S. No. 2 or better grade.
(2) Size – (i) All varieties, except Russet types. (A) 1
(B) Size B (1
(ii) Russet types. (A) 2 inches minimum diameter, or 4 ounces minimum weight: Provided, that at least 40 percent of the potatoes in each lot shall be 5 ounces or heavier.
(B) Size B (1
(iii) All varieties, U.S. No. 1 grade or better. Creamer (
(3) Cleanness – All varieties. “Fairly clean.”
(b) Minimum maturity requirements – (1) White Rose and red skin varieties. Each year from August 1 through December 31, “moderately skinned”; during other periods no maturity requirements.
(2) All other varieties. “Slightly skinned.”
(3) Exceptions. (i) Subject to complaince with paragraph (b)(3)(iii) of this section, any lot of potatoes not exceeding a total of 50 hundredweight of such variety may be handled for any producer without regard to the foregoing maturity requirements.
(ii) If an officially inspected lot of potatoes meets the foregoing maturity requirements, but fails to meet the grade and size requirements, the lot may be regraded. If, after regrading, such lot then meets the grade and size requirements but fails to meet the maturity requirements, as indicated by the applicable Federal-State inspection certificate, such lot if not exceeding 100 hundredweight shall be exempt from the foregoing maturity requirements if the handler complies with paragraph (b)(3)(iii) of this section.
(iii) Prior to each shipment of potatoes exempt from the foregoing maturity requirements, the handler thereof shall report to the committee the name and address of the producer of such potatoes, and each such shipment shall be handled as an identifiable entity.
(c) Pack and marking. (1) When 50-pound containers (except master containers) of potatoes are marked with a count, size or similar designation, they must meet the count, average count and weight ranges for the count designation listed below.
| Size | Range | ||
|---|---|---|---|
| Count | Average count 1 | Weight | |
| Larger than 50 | ( 2) | ( 3) | ( 4) |
| 50 | 45-55 | 48-53 | 12-19 |
| 60 | 54-66 | 57-63 | 10-16 |
| 70 | 63-77 | 67-74 | 9-15 |
| 80 | 72-88 | 76-84 | 8-13 |
| 90 | 81-99 | 86-95 | 7-12 |
| 100 | 90-110 | 95-105 | 6-10 |
| 110 | 99-121 | 105-116 | 5-9 |
| 120 | 108-132 | 114-126 | 4-8 |
| 130 | 117-143 | 124-137 | 4-8 |
| 140 | 126-154 | 133-147 | 4-8 |
| Smaller than 140 | ( 2) | ( 3) | 4-8 |
1 Applicable to lots.
2 10 percent over or under.
3 5 percent over or under.
4 15 ounces or larger.
(i) Not to exceed 5 percent for undersize; and
(ii) Not to exceed 10 percent for oversize.
(2) Potatoes packed in cartons (except when used as a master container) shall be either:
(i) U.S. No. 1 grade or better, except potatoes of U.S. Extra No. 1 shall be no smaller than 110 size nor larger than 60 size; or
(ii) U.S. No. 2 grade in 50-pound fiberboard cartons of natural kraft color, provided the cartons are permanently and conspicuously marked as to grade.
(3) Size shall be conspicuously marked on all cartons (except when used as a master container) consistent with § 51.1545 of the United States Standards for Grades of Potatoes (7 CFR 51.1540-51.1566).
(d) Inspection. Except when relieved of such requirement pursuant to paragraphs (e) and (f), or (g) of this section:
(1) No handler shall handle potatoes unless such potatoes are inspected by either the Idaho Federal-State Inspection Service or Oregon Federal-State Inspection Service and are covered and accompanied by a valid inspection certificate, numbered notesheet, or shipping clearance report: Provided, That a valid inspection certificate, numbered notesheet, or shipping clearance report is not required to accompany positive lot identified potatoes.
(2) Each lot shipped shall be accompanied by a copy of a valid inspection certificate, a numbered notesheet, shipping clearance report, or the lot must meet PLI requirements established by the Fresh Products Branch, Fruit and Vegetable Division, Agricultural Marketing Service of the U.S. Department of Agriculture.
(3) Inspection certificates, numbered notesheets or shipping clearance reports for potatoes to be shipped must be issued within four days of such shipment. Otherwise, such potatoes, including lots that are positive lot identified, can only be shipped if a new inspection is performed to verify that the potatoes meet the requirements specified in paragraphs (a), (b), and (c) of this section. If the subsequent inspection verifies that the lot meets the requirements of paragraphs (a), (b), and (c) of this section, a new certificate, a new numbered notesheet, or a new shipping clearance report shall be issued and, if positive lot identified, shall reference the original PLI number, and a new PLI number need not be applied to the lot. However, if upon subsequent inspection, the lot does not meet the requirements specified in either paragraphs (a), (b), or (c) of this section, the lot shall be reconditioned in the presence of an authorized representative of the Idaho Federal-State Inspection Service or Oregon Federal-State Inspection Service prior to the close of the business day. If the lot is reconditioned prior to the close of the business day, a new certificate, a new numbered notesheet, or a new shipping clearance report must be issued, and either a new PLI number must be applied to the lot or the original PLI number must be modified. If the PLI numbered lot is not reconditioned prior to the close of the business day, all PLI numbers must be obliterated. Any inspection certificate, numbered notesheet, or shipping clearance report issued upon a subsequent inspection, including when a lot is reconditioned, must be issued within four days of shipment of the potatoes.
(4) Handlers shall provide the Committee with the destination zip codes of all potatoes handled by permitting the Idaho Federal-State Inspection Service or Oregon Federal-State Inspection Service to review the bills of lading upon inspection to determine the destination zip codes. The destination zip codes shall be included on the inspection certificates. The destination zip codes and the quantity shall be provided by the handler to the Committee on lots which are positive lot identified, either orally or in writing. Whenever potatoes are diverted to a different destination, the handler shall notify the Committee of the new destination zip code and quantity orally or in writing as soon as practicable.
(e) Special purpose shipments. (1) The minimum grade, size, cleanness, maturity, and pack requirements set forth in paragraphs (a), (b), and (c) of this section shall not be applicable to shipments of prepeeled potatoes as defined in paragraph (h) of this section or potatoes for any of the following purposes:
(i) Charity;
(ii) Certified seed;
(iii) Experimentation; and
(iv) Canning, freezing and “other processing” as hereinafter defined. Also, shipments of potatoes for the purpose specified in this subdivision (iv) shall be exempt from inspection requirements specified in § 945.65 and paragraph (d) of this section and from assessment requirements specified in § 945.42.
(2) The minimum grade, size, cleanness, maturity and pack requirements set forth in paragraphs (a), (b), (c) and (d) of this section shall be applicable to shipment of potatoes for each of the following purposes:
(i) Export: Except potatoes of a size not smaller than 1
(ii) Prepeeling: Except potatoes of a size not smaller than 1
(f) Safeguards. (1) Each handler making shipments of potatoes for charity, experimentation, or export pursuant to paragraph (e) of this section shall:
(i) First, apply to the committee for and obtain a Certificate of Privilege to make shipments for each purpose;
(ii) Upon request by the committee, furnish reports of each shipment pursuant to the applicable Certificate of Privilege;
(iii) At the time of applying to the committee for a Certificate of Privilege, or promptly thereafter, furnish the committee with a receiver’s or buyer’s certification that the potatoes so handled are to be used only for the purpose stated in the application and that such receiver will complete and return to the committee such periodic receiver’s reports that the committee may require.
(iv) Mail to the office of the committee a copy of the bill of lading for each Certificate of Privilege shipment promptly after the date of shipment, unless other arrangements are made with the committee office;
(v) Bill each shipment directly to the applicable receiver.
(2) Each handler making shipments of potatoes for canning, freezing, or “other processing” pursuant to paragraph (e) of this section shall:
(i) First apply to the committee for and obtain a Certificate of Privilege to make shipments for processing;
(ii) Make shipments only to those firms whose names appear on the committee’s current list of manufacturers of potato products;
(iii) Upon request by the committee, furnish reports of each shipment pursuant to the applicable Certificate of Privilege;
(iv) Mail to the committee’s office a copy of the bill of lading for each Certificate of Privilege shipment promptly after the date of shipment, unless other arrangements are made with the committee office;
(v) Bill each shipment directly to the applicable processor.
(3) Each receiver of potatoes for processing pursuant to paragraph (e) of this section shall:
(i) Complete and return an application form for listing as a manufacturer of potato products;
(ii) Certify to the committee and to the Secretary that potatoes received from the production area for processing will be used for such purposes and will not be placed in fresh market channels;
(iii) Report on shipments received as the committee may require and the Secretary approve.
(4) Each handler making shipments of certified seed potatoes pursuant to paragraph (e) of this section shall furnish, at the request of the committee, reports on the total volume of seed potatoes handled.
(g) Minimum quantity exemption. Each handler may ship up to, but not to exceed, five hundredweight of potatoes any day without regard to the inspection and assessment requirements of this part, but this exception shall not apply to any shipment that exceeds five hundredweight of potatoes.
(h) Definitions. The terms U.S. Extra No. 1, U.S. No. 1, U.S. No. 2, Size B, fairly clean, moderately skinned, and slightly skinned shall have the same meaning as when used in the United States Standards for Potatoes (7 CFR 51.1540-51.1566), including the tolerances set forth therein. The term prepeeling means the commercial preparation in a prepeeling plant of clean, sound, fresh potatoes by washing, peeling, or otherwise removing the outer skin, trimming, sorting, and properly treating to prevent discoloration preparatory to sale in one or more of the styles of peeled potatoes described in § 52.2422 of the United States Standards for Peeled Potatoes (7 CFR 52.2421-52.2433). The term other processing has the same meaning as the term appearing in the act and includes, but is not restricted to, potatoes for dehydration, chips, shoestrings, starch, and flour. It includes only that preparation of potatoes for market which involves the application of heat or cold to such an extent that the natural form or stability of the commodity undergoes a substantial change. The act of peeling, cooling, slicing, dicing, or applying material to prevent oxidation does not constitute “other processing.” The terms Idaho Utility grade and Oregon Utility grade shall have the same meaning as when used in the standards for potatoes for the respective State. Other terms used in this section shall have the same meaning as when used in Marketing Agreement No. 98 and Order No. 945, both as amended.
PART 948 – IRISH POTATOES GROWN IN COLORADO
Subpart A – Order Regulating Handling
Definitions
§ 948.1 Secretary.
Secretary means the Secretary of Agriculture of the United States, or any officer or employee of the Department of Agriculture to whom authority has heretofore been delegated, or to whom authority hereafter may be delegated, to act in his stead.
§ 948.2 Act.
Act means Public Act No. 10 73d Congress, as amended and as reenacted and amended by the Agricultural Marketing Agreement Act of 1937, as amended (sections 1-19, 48 Stat. 31, as amended; 7 U.S.C. 601-674).
§ 948.3 Person.
Person means an individual, partnership, corporation, association, legal representative, or any organized group or business unit of individuals.
§ 948.4 Area.
Area means any of the subdivisions of the State of Colorado as set forth in this section or as reestablished pursuant to § 948.53.
(a) Area No. 1, commonly known as the Western Slope, includes and consists of the counties of Routt, Eagle, Pitkin, Gunnison, Hinsdale, La Plata, in the State of Colorado, and all counties in said State west of the aforesaid counties.
(b) Area No. 2, commonly known as the San Luis Valley, includes and consists of the counties of Saguache, Huerfano, Las Animas, Mineral, Archuleta, in the State of Colorado, and all counties in said State, south of the counties enumerated in this definition of Area No. 2.
(c) Area No. 3 includes and consists of all the remaining counties in the State of Colorado which are not included in Area No. 1 or Area No. 2.
§ 948.5 Potatoes.
Potatoes means and includes all varieties of Irish potatoes grown within any of the aforesaid areas.
§ 948.6 Seed potatoes.
Seed potatoes or seed means any potatoes which have been certified by the official seed certification agency of the State of Colorado and bear the official tags, seals, or other appropriate identification indicating such certification.
§ 948.7 Handler.
Handler is synonymous with shipper and means any person, except a common or contract carrier of potatoes owned by another person, who handles potatoes.
§ 948.8 Handle or ship.
Handle or ship means to transport, sell, or in any way to place potatoes in the current of the commerce between the State of Colorado and any point outside thereof.
§ 948.9 Producer.
Producer means any person engaged in the production of potatoes for market.
§ 948.10 Fiscal period.
Fiscal period means the period beginning and ending on the dates approved by the Secretary pursuant to recommendations by an area committee.
§ 948.11 Grade, size and maturity.
Grade, means any of the officially established grades of potatoes, Size means any of the officially established sizes of potatoes, and Maturity means any of the stages of development or condition of the outer skin (epidermis) of potatoes, as defined in the United States Standards for Potatoes issued by the United States Department of Agriculture (§§ 51.1540 to 51.1556, inclusive of this title) or Colorado grades established by the Commissioner, or amendments thereto, or modifications thereof, or variations based on any of the foregoing.
§ 948.12 Varieties.
Varieties means all classifications or subdivisions of Irish potatoes according to those definitive characteristics now or hereafter recognized by the United States Department of Agriculture.
§ 948.13 Pack.
Pack means a quantity of potatoes in any type of container, which falls within specific weight limits, numerical limits, grade limits, or any combination of these recommended by the committee and approved by the Secretary.
§ 948.14 Container.
Container means a sack, bag, crate, box, basket, barrel, or bulk load or any other receptacle used in the packaging, transportation, or sale of potatoes.
§ 948.15 Culls.
Culls means potatoes which do not meet the requirements set forth in § 948.20.
§ 948.16 Committee.
Committee means any of the area committees established pursuant to § 948.50 or the Colorado Potato Committee established pursuant to § 948.51.
§ 948.17 Export.
Export means the shipment of potatoes to any destination which is not within the 48 contiguous States, or the District of Columbia, of the United States.
Regulation
§ 948.20 Marketing policy.
(a) General cull regulation. (1) It shall be the marketing policy for the production area to maintain a general cull regulation in effect prohibiting the handling of potatoes for fresh market, except as otherwise provided in this subpart, which do not meet the requirements of the U.S. No. 2, or better, grade, 1
(2) Upon recommendation of the Colorado Potato Committee, or on other available information, the general cull regulation may be suspended or modified by the Secretary during a specified period with respect to any or all varieties of potatoes.
(b) Area marketing policies. Each season prior to or at the same time as initial recommendations are made pursuant to § 948.21, each area committee shall submit to the Secretary a report setting forth the marketing policy it deems desirable for the industry to follow in handling the respective area’s potatoes during the ensuing season. Additional reports shall be submitted from time to time if it is deemed advisable by an area committee to adopt a new marketing policy because of changes in the demand and supply situation with respect to potatoes. The committee shall publicly announce the submission of each such marketing policy report and copies thereof shall be available at the committee’s office for inspection by any producer or any handler. In determining each such marketing policy the committee shall give due consideration to the following:
(1) Supply of potatoes by grade, size, quality, and maturity in the respective area, in the production area, and in other areas;
(2) Market prices for fresh potatoes, including grower, shipping point, and terminal market prices by grade, size, and quality in different packs or in different containers;
(3) Market prices for potatoes in other outlets, including growers’ and other market price levels by grade, size, and quality;
(4) The trend and level of consumer income;
(5) Establishing and maintaining such orderly marketing conditions for potatoes as will be in the public interest; and
(6) Other relevant factors.
§ 948.21 Recommendations for regulations.
An area committee upon complying with the requirements of § 948.20 may recommend regulations, or modifications, suspension or termination thereof, to the Secretary whenever it finds that such regulations as provided for in this subpart will tend to effectuate the declared policies of the act.
§ 948.22 Issuance of regulations.
(a) The Secretary shall limit by regulation the handling of potatoes whenever he finds from recommendations and information submitted by an area committee, or from other available information, that such regulation would tend to effectuate the declared policy of the act. Such regulation may:
(1) Limit the handling of particular grades, sizes, qualities, or maturities of any or all varieties of potatoes, or any combination of the foregoing during any period.
(2) Limit the handling of particular grades, sizes, qualities, or maturities of potatoes differently, for different varieties, for different containers, for different packs, for different portions of the production area, for different purposes under § 948.23, or for any combination of the foregoing, during any period.
(3) Provide a method through rules and regulations issued pursuant to this subpart for fixing the size, capacity, weight, dimensions, or pack of the container, or containers, which may be used in the packaging or handling of potatoes, or both.
(4) Establish in terms of grades, sizes, or both, minimum standards of quality and maturity.
(b) Any regulation issued hereunder may be amended, modified, suspended, or terminated by the Secretary on recommendations by an area committee, or on other available information, to provide for
(1) Such changes in regulations found necessary by changes in supplies, demand, or prices;
(2) Minimum quantities which should be relieved of regulatory or administrative obligations; or
(3) Relief from regulations no longer tending to effectuate the declared policies of the Act.
(c) The Secretary shall notify each committee of each regulation recommended by it and issued pursuant to this section. The respective committee shall give reasonable notice thereof to handlers. No regulation, except when relieving limitations, shall become effective less than two days after issuance thereof.
§ 948.23 Handling for special purposes.
Upon the basis of recommendations and information submitted by an area committee, or other available information, the Secretary, whenever he finds that it will tend to effectuate the declared purposes of the Act, shall modify, suspend, or terminate requirements in effect pursuant to §§ 948.20 to 948.22, inclusive, or §§ 948.40 or 948.77, or any combination thereof, to facilitate handling of potatoes for
(a) Relief or charity;
(b) Livestock feed;
(c) Export;
(d) Seed;
(e) Potatoes, other than certified seed, sold to a producer exclusively for planting within specific geographic limits;
(f) Manufacture or conversion into specified products;
(g) Other purposes recommended by the committees and approved by the Secretary.
§ 948.24 Safeguards.
(a) Each area committee, with the approval of the Secretary, shall prescribe adequate safeguards for potatoes handled pursuant to § 948.23 from entering trade channels other than those authorized by regulations and by such rules as may be necessary and incidental thereto.
(b) Such safeguards may include requirements that handlers or processors desiring to handle potatoes pursuant to § 948.23 shall:
(1) Apply for and obtain Certificates of Privilege from the area committee for handling potatoes affected or to be affected under the provisions of § 948.23;
(2) Obtain inspection as required by § 948.40, or pay the assessment levied pursuant to § 948.77, or both, except as modified pursuant to § 948.23 in connection with shipments made under any such certificate; and
(3) Furnish the committee such information, and execute or obtain execution of such documents, as the committee may require.
(c) An area committee may rescind or deny to any handler permission to handle potatoes pursuant to § 948.23 of this subpart if proof satisfactory to the committee is obtained that potatoes handled by him for a purpose stated in § 948.23 were handled contrary to the provisions of this subpart.
(d) The committee shall make reports to the Secretary, as requested, showing the number of applications for such certificates, the quantity of potatoes covered by such applications, the number of such applications denied and certificates granted, the quantity of potatoes handled under duly issued certificates, and such other information as may be requested.
Exemptions
§ 948.28 Policy.
Any producer whose potatoes have been adversely affected by acts beyond the control or reasonable expectation of a prudent grower and who, by reason of any regulation issued pursuant to this part, is or will be prevented from shipping or having shipped during the then current marketing season, or a specific portion thereof, as large a proportion of his potato crop as the average proportion shipped or to be shipped during comparable portions of the season by all producers in his immediate area of production, may apply to the committee for exemptions from such regulations for the purpose of obtaining equitable treatment under such regulations.
§ 948.29 Procedure.
Rules and procedures for granting exemptions may be issued by the Secretary, upon recommendation of area committees. Such rules and procedures may provide for methods of determinations by area committees of average proportions of crops shipped or being shipped in respective areas or subdivisions thereof during any or all portions of a season, for processing applications for exemption, for issuing or denying certificates of exemption, for administrative compliance with certificates issued, for reports by handlers thereon, and for such other procedures as may be necessary to administration hereof.
§ 948.30 Granting exemptions.
An area committee may issue certificates of exemption to any qualified applicant who furnishes adequate evidence to such committee:
(a) That the grade, size, or quality of the applicant’s potatoes have been adversely affected by acts beyond his control or reasonable expectations;
(b) That by reason of regulations issued pursuant to § 948.20 or § 948.22, the applicant will be prevented as a producer from shipping or having shipped as large a proportion of his production as the average proportion of production shipped by all producers in said applicant’s immediate area of production during the season, or a specific portion thereof.
(c) Each such certificate issued shall permit the person identified therein to ship or have shipped the potatoes described thereon, and evidence of such certificates shall be made available to subsequent handlers thereof.
§ 948.31 Investigation.
An area committee shall be permitted at any time to make a thorough investigation of any applicant’s claim pertaining to exemptions.
§ 948.32 Appeal.
If any applicant for exemption certificates is dissatisfied with the determination by an area committee with respect to his application, he may file an appeal with the committee. Any applicant filing an appeal shall furnish evidence satisfactory to the committee for a determination on the appeal.
Research and Development
§ 948.35 Research and development.
The committee, with the approval of the Secretary, may provide for the establishment of marketing research and development projects designed to assist, improve, or promote the marketing, distribution, and consumption of potatoes and may make available committee information and data to any person, or to any employee of an agency or its agent, authorized by the committee as its agent with the approval of the Secretary, to conduct such projects.
Inspection
§ 948.40 Inspection and certification.
(a) During any period in which the handling of potatoes is regulated pursuant to § 948.20 through § 948.24, inclusive, no handler shall handle potatoes unless such potatoes are inspected by an authorized representative of the Federal or a Federal-State Inspection Service and are covered by a valid inspection certificate, except when relieved of such requirements by § 948.22(b), § 948.23, or § 948.40(b).
(b) Rules may be issued by the Secretary, upon recommendation of the Colorado Potato Committee requiring inspection on regraded, resorted or repacked lots, or providing for special inspection requirements or relief therefrom. Such rules may provide distinctions, insofar as practical, between handling at shipping point and handling in receiving markets within the production area.
(c) Upon recommendation of an area committee and approval by the Secretary, any or all potatoes so inspected and certified shall be identified by appropriate seals, stamps, or tags to be affixed to the containers by the handler under the direction and supervision of a Federal or Federal-State Inspector or the committee. Master containers may bear the identification instead of the individual containers within said master container.
(d) Insofar as the requirements of this section are concerned, the length of time for which an inspection certificate is valid may be established by the committee with the approval of the Secretary.
(e) When potatoes are inspected in accordance with the requirements of this section, a copy of each inspection certificate issued shall be made available to the committee by the inspection service.
(f) Area committees with the approval of the Colorado Potato Committee may recommend and the Secretary may require that no handler shall transport or cause the transportation of potatoes by motor vehicle or by other means unless such shipment is accompanied by a copy of the inspection certificate issued thereon, or other document authorized by the committee to indicate that such inspection has been performed. Such certificate or document shall be surrendered to such authority as may be designated.
Committees
§ 948.50 Area committees.
A committee is hereby established as an administrative agency for each area. Each area committee shall be comprised of members and alternates as set forth in this section or as reestablished by § 948.53.
(a) Area No. 1 (Western Slope): Four producers and three handlers selected as follows:
(b) Area No. 2 (San Luis Valley): Seven producers and five handlers selected as follows:
(c) Area No. 3: Five Producers and four handlers selected as follows:
§ 948.51 Colorado Potato Committee.
The Colorado Potato Committee is hereby established consisting of six members, with alternates. Two members and alternates shall be selected from each area committee. Committeemen shall be selected by the Secretary from nominations of area committee members or alternates.
§ 948.52 Alternates.
(a) For each committee member there shall be an alternate who shall have the same qualifications. During a member’s absence, or when called upon to do so in accordance with the terms hereof, or in the event of a member’s death, removal, resignation, or disqualification, an alternate shall act in his place and stead until the member’s successor is selected and has qualified.
(b) Area committees, with the Secretary’s approval, may provide through rules for members or for alternates to recommend regulations for early crop potatoes or for late crop potatoes and to specify the particular crop for which each group shall be responsible.
§ 948.53 Reestablishment.
Areas, subdivisions of areas, the distribution of representation among the subdivision of areas, or among marketing organizations within respective areas may be reestablished by the Secretary upon area committee recommendations. Upon approval therefor of respective committees affected thereby, areas may be reestablished. In recommending any such changes, the committee shall consider (a) the relative importance of new producing sections, (b) relative production, (c) changes in marketing organizations and their relative status in the industry, (d) the geographic locations of producing sections as they would affect the efficiency of administration of this part, and (e) other relevant factors.
§ 948.54 Eligibility.
Area committee members and alternates shall be individuals who shall be residents of, and producers or handlers, as the case may be, in the respective area. Also, each member or alternate to qualify as a representative (a) for producers shall be a producer, or an officer or employee of a producer; (b) for producer’s cooperative marketing associations shall be members or employees of such associations; or (c) for handlers other than cooperative marketing associations shall be a handler, or an officer or employee of a handler.
§ 948.55 Term of office.
The term of office of each area committee member and alternate shall be for two years. The term of office for Colorado Potato Committee members and alternates shall be for one year. The dates on which terms of office for each committee shall begin and end shall be established by the Secretary pursuant to respective committee recommendation. Terms of office of area committee members shall be arranged so that approximately one-half shall terminate each year. Determination of which initial members and alternates shall serve for one year or two years shall be by lot.
§ 948.56 Nomination and selection.
(a) Each area committee shall hold or cause to be held, not less than 15 days prior to the expiration date of respective terms of office, meetings of producers and handlers for each subdivision in which terms expire or in which vacancies otherwise occur.
(b) At each such meeting one or more nominees shall be designated for each impending vacancy as member or alternate. Such designation may be by ballot or by motion at the option of those present in voting capacity.
(c) Only producers may participate in designating producer nominees; only handlers may participate in designating handler nominees; and only duly authorized representatives of producers’ cooperative marketing associations may participate in designating nominees to represent such associations. If no separate representation is provided for producers’ cooperative marketing associations, duly authorized representatives of such associations may participate in designating handler nominees.
(d) Each producers’ cooperative marketing association shall be entitled to cast only one vote in designating nominees to represent such associations. Each producer and each handler shall be entitled to cast only one vote on behalf of himself, his agents, subsidiaries, affiliates, and representatives.
(e) If a producer, handler, or producers’ cooperative marketing association is engaged in producing or handling potatoes in more than one area, or in more than one subdivision of an area, such producer, handler, or producers’ cooperative marketing association shall elect the area or subdivision in which he may participate in designating nominees. In no event shall there be participation in more than one area or subdivision.
§ 948.57 Failure to nominate.
If nominations are not made pursuant to the provisions of § 948.56 by the date provided therein, the Secretary may, without regard to nominations, select members and alternates on the basis of the representation provided for in this part.
§ 948.58 Vacancies.
To fill any vacancy occasioned by the failure of any person selected as a member or as an alternate to qualify, or in the event of the death, removal, resignation, or disqualification of a member or alternate, a successor for his unexpired term may be selected by the Secretary from nominations made pursuant to § 948.56, from previously unselected nominees on the current nominee list, or from other eligible persons.
§ 948.59 Qualification.
Each person selected as a member or as an alternate shall qualify by promptly filing a written acceptance with the Secretary.
§ 948.60 Compensation and expenses.
(a) Members of each area committee and their alternates shall serve without salary, but may be compensated at a rate not in excess of $10 per day while engaged on committee business, and may be reimbursed for necessary expenses actually incurred while so engaged. At the discretion of an area committee, alternates may be requested to attend any or all committee meetings and receive compensation and expenses therefor regardless of attendance by the respective members.
(b) The compensation and expenses of members and alternates of the Colorado Potato Committee shall be paid by the respective area committee they represent.
(c) Such other expenses as may be incurred by the Colorado Potato Committee pursuant to a budget of expenses approved by the Secretary shall be allotted to, and paid by, one or more of the area committees, as may be specified in an order issued by the Secretary pursuant to the provisions of this subpart.
§ 948.61 Procedure.
(a) A majority of all members of a committee shall be necessary to constitute a quorum or to pass and motion or approve any committee action.
(b) Each committee may provide for the members thereof, including the alternate members when acting as members, to vote by mail, telegraph, telephone, or other means of communication, provided that any such vote cast orally shall be confirmed promptly in writing. If any assembled meeting is held all votes shall be cast in person.
§ 948.62 Powers.
Each committee shall have the following powers:
(a) To administer the provisions of this subpart as specified herein;
(b) To make rules and regulations to effectuate the terms and provisions of this subpart;
(c) To receive, investigate, and report to the Secretary complaints of violation of the provisions of this part; and
(d) To recommend to the Secretary amendments to this part.
§ 948.63 Duties.
(a) Each committee shall:
(1) Meet and organize as soon as practical after the beginning of each term of office, select a chairman and such other officers’ as may be necessary, select subcommittees and adopt such rules and procedures for the conduct of its business as it may deem advisable;
(2) Act as intermediary between the Secretary and any producer or handler;
(3) Appoint such employees, agents and representatives as it may deem necessary and determine the salaries and define the duties of each;
(4) Keep minutes, books, and records which clearly reflect all its acts and transactions. Such minutes, books and records shall be subject to examination at any time by the Secretary;
(5) Furnish promptly notices of meetings, copies of the minutes of each committee meeting, and such other reports or information as may be requested by the Secretary, including annual reports of each area committee’s operations for the preceding marketing season or fiscal period;
(6) Make available to producers, and to other area committees and the Colorado Potato Committee the committee’s voting record on recommended regulations and other matters of policy;
(7) Meet jointly with other area committees when requested to do so by the Colorado Potato Committee;
(8) Consult, cooperate, and exchange information with other area committees, with other marketing agreement committees and other agencies or individuals in connection with proper committee activities and objectives;
(9) Take any proper action necessary to carry out the provisions of this subpart; and
(10) Cause the books of the committee to be audited by a competent accountant at least once each fiscal period.
(b) The Colorado Potato Committee shall also:
(1) Supervise the regulation of shipments pursuant to the provisions of the general cull regulation in the absence of more restrictive regulations, and shall cooperate with any area committee in administering any regulation issued pursuant to this subpart;
(2) Make recommendations to the Secretary with respect to suspending or modifying the provisions of the general cull regulation;
(3) Make available to area committees its voting record on recommendations for modification of the cull regulation and other matters of policy;
(4) Submit to each area committee such available information as may be requested; and
(5) Call joint meetings of area committees on matters requiring consideration of statewide marketing policies when requested to do so by an area committee.
Expenses and Assessments
§ 948.75 Expenses.
Each area committee is authorized to incur such expenses as the Secretary may find are reasonable and likely to be incurred during each fiscal period for its maintenance and functioning, and for purposes determined to be appropriate for administration of this part. Handlers shall share expenses upon the basis of a fiscal period. Each handler’s share of such expenses shall be proportionate to the ratio between the total quantity of potatoes handled by him as the first handler thereof during a fiscal period and the total quantity of potatoes handled by all handlers as first handlers thereof during such fiscal period.
§ 948.76 Budget.
As soon as practicable after the beginning of each fiscal period and as may be necessary thereafter, each area committee shall prepare an estimated budget of income and expenditures necessary for its administration of this part. Each area committee may recommend a rate of assessment calculated to provide adequate funds to defray its proposed expenditures. Each area committee shall present such budget to the Secretary with an accompanying report showing the basis for its calculations.
§ 948.77 Assessments.
(a) The funds to cover each area committee’s expenses shall be acquired by the levying of assessments upon handlers as provided in this subpart. Each handler who first handles potatoes under this part, shall pay assessments to his respective area committee upon demand, which assessments shall be in payment of such handler’s pro rata share of the area committee’s expenses.
(b) Assessments shall be levied upon handlers at rates established by the Secretary. Such rates may be established upon the basis of each area committee’s budget, recommendations, and other available information. Such rates may be applied to specified containers used in the production area.
(c) At any time during, or subsequent to, a given fiscal period each area committee may recommend the approval of an amended budget and an increase in the rate of assessment. Upon the basis of such recommendations, or other available information, the Secretary may approve an amended budget and increase the rate of assessment. Such increase shall be applicable to all potatoes grown within the particular area where an area committee recommends such increase and which were handled by the first handler thereof during such fiscal period.
(d) The payment of assessments for the maintenance and functioning of each area committee may be required under this part throughout the period it is in effect irrespective to whether particular provisions thereof are suspended or become inoperative.
(e) In order to provide funds to enable each area committee to perform its functions under this part, handlers may make advance payment of assessments.
§ 948.78 Accounting.
(a) If, at the end of a fiscal period, the assessments collected are in excess of expenses incurred, such excess shall be accounted for in accordance with one of the following:
(1) If such excess is not retained in a reserve, as provided in paragraph (a)(2) of this section, it shall be refunded proportionately to the persons from whom it was collected.
(2) An area committee, with the approval of the Secretary, may carry over such excess into subsequent fiscal periods as a reserve: Provided, That funds already in the reserve are less than approximately two fiscal period’s expenses. Such reserve funds may be used (i) to defray expenses, during any fiscal period, prior to the time assessment income is sufficient to cover such expenses; (ii) to cover deficits incurred during any fiscal period when assessment income is less than expenses; (iii) to defray expenses incurred during any period when any or all provisions of this subpart are suspended or are inoperative; (iv) to cover necessary expenses of liquidation in the event of termination of this subpart. Upon such termination, any funds not required to defray the necessary expenses of liquidation shall be disposed of in such manner as the Secretary may determine to be appropriate. To the extent practical, such funds shall be returned pro rata to the persons from whom such funds were collected.
(b) All funds received by an area committee pursuant to the provisions of this part shall be used solely for the purposes specified herein. The Secretary may at any time require an area committee and its members to account for all receipts and disbursements.
(c) Upon the removal or expiration of the term of office of any member of an area committee, such member shall account for all receipts and disbursements and deliver all property and funds in his possession to such committee, and shall execute such assignments and other instruments as may be necessary or appropriate to vest in such committee full title to all of the property funds and claims vested in such member pursuant to this part.
(d) Each area committee may make recommendations to the Secretary for one or more of the members thereof, or any other person, to act as a trustee for holding records, funds, or any other committee property during periods of suspension of this subpart, or during any period or periods when regulations are not in effect and if the Secretary determines such action appropriate, he may direct that such person or persons shall act as trustee or trustees for such committee.
Reports
§ 948.80 Reports.
Upon request of an area committee or of the Colorado Potato Committee through an area committee, each handler within the respective area of such area committee shall furnish to the area committee in such manner and at such time as it may prescribe, reports and other information as may be necessary for the committee to perform its duties under this part.
(a) Such reports may include, but are not necessarily limited to the following examples:
(1) The quantities of potatoes received by a handler during any or all periods of a season;
(2) The quantities disposed of by him, segregated as to quantities subject to regulation, and where necessary segregated as to types of outlets and special or modified regulations applicable to alternative outlets, and including quantities not subject to grade, inspection, assessment, or other similar regulations;
(3) The date of each such disposition and the identification of the carrier transporting such potatoes;
(4) Information essential to identification of any or all specific quantities, lots, and disposition of potatoes handled under §§ 948.23 to 948.30, inclusive, which may include identification of inspection certificates, exemption certificates, certificates of privilege, or other appropriate identification, including the destination of each special shipment, where necessary.
(b) All such reports shall be held under appropriate protective classification and custody by the committee, or duly appointed employees thereof, so that the information contained therein which may adversely affect the competitive position of any handler in relation to other handlers will not be disclosed. Compilations of general reports from data submitted by handlers is authorized, subject to prohibition of disclosure of individual handlers’ identities or operations.
(c) Each handler shall maintain for at least two succeeding years such records of the potatoes received and disposed of by such handler as may be necessary to verify the reports he submits to the committee pursuant to this section.
Compliance
§ 948.81 Compliance.
Except as provided in this subpart, no handler shall handle potatoes, the handling of which has been prohibited by the Secretary in accordance with provisions of this subpart, and no handler shall handle potatoes except in conformity to the provisions of this subpart.
Miscellaneous Provisions
§ 948.82 Right of the Secretary.
The members of each area committee (including successors and alternates) and any agent or employee appointed or employed by any committee shall be subject to removal or suspension by the Secretary at any time. Each and every order, regulation, decision, determination or other act of each committee shall be subject to the continuing right of the Secretary to disapprove of the same at any time. Upon such disapproval, the disapproved action of the said committee shall be deemed null and void, except as to acts done in reliance thereon or in compliance therewith prior to such disapproval by the Secretary.
§ 948.83 Effective time.
The provisions of this subpart or any amendments thereto shall become effective at such time as the Secretary may declare and shall continue in force until terminated in one of the ways specified in this subpart.
§ 948.84 Termination.
(a) The Secretary may at any time terminate any or all provisions of this subpart by giving at least one day’s notice by means of a press release or in any other manner which he may determine.
(b) The Secretary may at any time terminate or suspend the operations of any or all of the provisions of this subpart whenever he finds that such provisions do not tend to effectuate the declared policy of the Act.
(c) The Secretary shall terminate the provisions of this subpart at the end of any fiscal period whenever he finds that such termination is favored by a majority of producers, who during a representative period, as determined by the Secretary have been engaged in the production of potatoes for market: Provided, That such majority has, during such representative period, produced for market more than fifty percent of the volume of such potatoes produced for market.
(d) The provisions of this subpart shall in any event terminate whenever the provisions of the Act authorizing them cease to be in effect.
§ 948.85 Proceedings after termination.
(a) Upon the termination of the provisions of this subpart the then functioning members of each area committee shall continue as joint trustees for the purpose of liquidating the affairs of their respective area committee of all funds and property then in the possession of or under control of the committee, including claims for any funds unpaid or property not delivered at the time of such termination. Action by said trusteeship shall require the concurrence of a majority of the said trustees.
(b) The said trustees shall continue in such capacity until discharged by the Secretary; shall from time to time account for all receipts and disbursements and deliver all property on hand, together with all books and records of said committees and of the trustees, to such person as the Secretary may direct; and shall upon the request of the Secretary, execute such assignments or other instruments necessary or appropriate to vest in such person full title and right to all of the funds, property, and claims vested in said committee or the trustees pursuant to this subpart.
(c) Any person to whom funds, property, or claims have been transferred or delivered by an area committee or its members pursuant to this section shall be subject to the same obligations imposed upon the members of such committees and upon the said trustees.
§ 948.86 Effect of termination or amendment.
Unless otherwise expressly provided by the Secretary, the termination of this subpart or of any regulation issued pursuant to this subpart or the issuance of any amendments to either thereof, shall not (a) effect 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 under this subpart; or (b) release or extinguish any violation of this subpart or of any regulations issued under this subpart; or (c) affect or impair any rights or remedies of the Secretary or of any other person with respect to any such violations.
§ 948.87 Duration of immunities.
The benefits, privileges and immunities conferred upon any person by virtue of this subpart shall cease upon the termination of this subpart, except with respect to acts done under and during the existence of this subpart.
§ 948.88 Agents.
The Secretary may, by designation in writing, name any person, including any officer or employee of the United States or name any agency in the United States Department of Agriculture, to act as his agent or representative in connection with any of the provisions of this subpart.
§ 948.89 Derogation.
Nothing contained in this subpart is, or shall be construed to be, in derogation or in modification of the rights of the Secretary or of the United States to exercise any powers granted by the Act or otherwise, or in accordance with such powers, to act in the premises whenever such action is deemed advisable.
§ 948.90 Personal liability.
No member or alternate of any committee or any employee or agent thereof, shall be held personally responsible, either individually or jointly with others, in any way whatsoever, to any handler or to any person for errors in judgment, mistakes, or other acts, either of commission or omission, as such member, alternate, agent, or employee, except for acts of dishonesty, willful misconduct or gross negligence.
§ 948.91 Separability.
If any provision of this subpart is declared invalid or the applicability thereof to any person, circumstance or thing is held invalid, the validity of the remainder of this subpart, or the applicability thereof to any other person, circumstance or thing shall not be affected thereby.
§ 948.92 Amendments.
Amendments to this subpart may be proposed from time to time by a committee or by the Secretary.
Subpart B – Administrative Requirements
General
§ 948.100 Order.
Order means §§ 948.1 to 948.92 (Order No. 948 as amended) regulating the handling of Irish potatoes grown in the State of Colorado.
§ 948.101 Terms.
The terms used in this subpart shall have the same meaning as when used in §§ 948.1 to 948.92.
§ 948.102 Communications.
Unless otherwise provided in §§ 948.1 to 948.92, or by specific direction of an area committee, all reports, applications, submittals, requests and communications in connection with the order shall be addressed to the office of the committee for the area in which the potatoes involved are grown.
§ 948.103 Fiscal period.
Pursuant to § 948.10, the fiscal periods for each area shall be as follows:
(a) Area No. 1 and Area No. 3 shall begin July 1 and end June 30, of the following year, both dates inclusive;
(b) Area No. 2 shall begin September 1 and end August 31, of the following year, both dates inclusive. The 1986-87 fiscal period which began July 1, 1986, will be extended two months to August 31, 1987.
§ 948.104 Term of office.
(a) Pursuant to § 948.55, the two-year term of office for area committee members and alternates shall be as follows:
(1) Area No. 1 and Area No. 2 shall begin June 1 and end May 31 of the second year following;
(2) Area No. 3 shall begin May 1 and end April 30 of the second year following.
(b) The one-year term of office of Colorado Potato Committee members shall begin as of June 1 of each year.
Safeguards
§ 948.120 General.
Whenever shipments of potatoes for special purposes under § 948.23 are relieved in whole or in part from grade and size regulations issued under § 948.22 the committee shall require information and evidence as to the manner, methods, and timing of such shipments as safeguards against the entry of any such potatoes into trade channels other than those for which intended. Such information and evidence shall include the requirements set forth below with respect to Certificates of Privilege.
§ 948.121 Qualification.
Before handling potatoes for special purposes which do not meet regulations issued under § 948.22 a handler must qualify with the committee to handle shipments for special purposes. To qualify he must (a) apply for and receive a Certificate of Privilege indicating his intent to so handle potatoes; (b) agree to comply with reporting and other requirements set forth in §§ 948.121 to 948.125, inclusive, with respect to such shipments; and (c) receive approval of the committee to so handle potatoes. Such approval will be based upon evidence furnished in his application for a Certificate of Privilege, and other information available to the committee.
§ 948.122 Application.
(a) Application for Certificate of Privilege shall be made in person, by telephone, or on forms furnished by the committee. Each application may contain, but need not be limited to, the name and address of the handler; the quantity by grade, size, quality and variety of the potatoes to be shipped; the mode of transportation; the consignee; the destination; the purpose for which the potatoes are to be used; a certification to the United States Department of Agriculture and to the committee as to the truthfulness of the information shown thereon; and any other appropriate information or documents deemed necessary by the committee for the purposes stated in § 948.120.
(b) [Reserved]
§ 948.123 Approval.
The committee or its duly authorized agents shall give prompt consideration to each application for a Certificate of Privilege. Approval of an application based upon a determination as to whether the information contained therein and other information available to the committee supports approval, shall be evidenced by the issuance of a Certificate of Privilege to the applicant. Each certificate shall cover a specified period, and specified qualities and quantities of potatoes to be sold or transported to the designated consignee for the purposes declared.
§ 948.124 Reports.
Each handler of potatoes shipping under Certificates of Privilege shall supply the committee with reports as requested by the committee or its duly authorized agents showing the name and address of the shipper; the car or truck identification; the loading point; destination; consignee; the inspection certificate number when inspection is required; and any other information deemed necessary by the committee.
§ 948.125 Disqualification.
The committee from time to time may conduct surveys of handling of potatoes for special purposes requiring Certificates of Privilege to determine whether handlers are complying with the requirements and regulations applicable to such certificates. Whenever the committee finds that a handler or consignee is failing to comply with requirements and regulations applicable to handling of potatoes in special outlets, and requiring such certificates, a Certificate or Certificates of Privilege issued such handler may be rescinded and further certificates denied. Such disqualification shall apply to, and not exceed, a reasonable period of time as determined by the committee but in no event shall it extend beyond the end of the succeeding fiscal period. Any handler who has a certificate rescinded or denied may appeal to the committee in writing for reconsideration of his disqualification.
§ 948.126 General cull regulation.
(a) No handler shall handle potatoes grown in the State of Colorado which do not meet the requirements of U.S. No. 2 or better grade, or are less than
(b) This General Cull Regulation shall remain in effect until suspended or modified pursuant to § 948.20(a)(2).
(c) The term U.S. No. 2 grade has the same meaning as when used in the U.S. Standards for Potatoes (§§ 51.1540 to 51.1556 of this title), or amendments thereto or modifications thereof.
(d) Applicability to imports: Pursuant to section 608e-1 of the act and § 980.1 Import Regulations; Irish potatoes (part 980 of this chapter), in the absence of more restrictive regulations in effect for potatoes grown in Areas Nos. 2 and 3 in Colorado, this cull regulation shall be used in a basis for import regulations for the red skinned, round type and for other round type potatoes, during the periods specified and as designated in said § 980.1 of this chapter.
Exemptions
§ 948.130 Application for exemption certificates.
Any producer applying for exemption from any grade and size regulation issued under § 948.22 shall make application to the respective area committee for the area in which the applicant’s potatoes were grown or are stored, on forms to be furnished by the area committee. The application shall include:
(a) The name and address of the applicant;
(b) The location, or locations, of the potatoes with respect to which exemption is requested;
(c) The total estimated quantity of potatoes (excluding culls) produced by the applicant during the current season, stated in hundredweights, by varieties, grades, and sizes;
(d) The estimated percentage of the applicant’s potato crop (excluding culls) which cannot be shipped because of grade and size regulations then in effect and the acts beyond his control or reasonable expectation adversely affecting his potatoes;
(e) The quantity of potatoes of each variety (excluding culls) which has already been sold or otherwise shipped during the current season;
(f) The signature of the applicant and certification that the statements given in the application are true and correct; and
(g) Such additional information as the area committee may find necessary in making a determination regarding the granting of an exemption certificate.
§ 948.131 Federal-State inspection reports.
Each application for exemption shall be accompanied by a written report of a Federal-State Inspector, which shall contain the following:
(a) A statement by the inspector that he personally inspected the potatoes with respect to which exemption is requested, and that he took a representative sample of such potatoes;
(b) A statement of the percentage of the potatoes (excluding culls) which fail to meet the requirements of the grade and size regulations then in effect;
(c) A statement of the defects or damage causing the potatoes to fail to meet grade and size requirements then in effect.
§ 948.132 Issuance of exemption certificates.
(a) The respective area committee receiving an application for exemption shall give prompt consideration thereto and determine on the basis of the statements and facts therein contained and the factors set forth in § 948.30 whether the application may be approved. The determination, if favorable, shall be evidenced by the issuance of a certificate of exemption pursuant to §§ 948.28 through 948.32. If the applicant’s request for exemption is denied, he shall be so notified in writing.
(b) Each certificate of exemption issued as provided in this subpart, shall contain the name and address of the applicant, the location of his farm or ranch, the location, or locations, of all potatoes remaining to be shipped, the total quantity of potatoes which may be shipped under the certificate of exemption, and such other information as the area committee may deem desirable.
(c) The committee may furnish each applicant receiving a certificate of exemption with appropriate subcertificates of exemption to identify each lot of exempted potatoes and a subcertificate shall be transferable with the lot of potatoes to which it applies. Each applicant receiving a certificate of exemption shall report each shipment of potatoes made under such certificate to the respective area committee issuing the certificate. The report shall state the name and address of the person to whom the potatoes were sold, the quantity sold, the date of transfer, and such other information as the committee may request.
Modification of Inspection Requirements
§ 948.140 Application.
Any handler whose packing facilities are located in an area where inspection is not readily available or the actual cost for inspection would otherwise exceed 1
§ 948.141 Issuance.
Each respective area committee shall give prompt consideration to each application for a waiver from reinspection. In granting a waiver, the handler shall agree to comply with all marketing order requirements. Approval of an application shall be evidenced by the issuance of an applicable waiver by the respective area committee to the handler.
§ 948.142 Reports.
Each handler shipping potatoes pursuant to a waiver from reinspection shall report periodically as specified by the respective area committee on forms furnished by the respective committee the following information one ach shipment: quantity of potatoes, variety or varieties, grade, size, type of container(s), date of shipment, carrier, destination, and name and address of receiver.
§ 948.143 Cancellation.
Whenever the respective area committee finds that shipments of potatoes pursuant to a reinspection waiver are not in accordance with the established application and safeguard provisions, such waiver may be cancelled.
§ 948.150 Reestablishment of committee membership.
Pursuant to § 948.53, membership on each area committee shall be reestablished as follows:
(a) Area No. 2 (San Luis Valley): Nine producers and five handlers selected as follows:
(b) Area No. 3: Three producers and two handlers selected as follows: Three (3) producers and two (2) handlers from any county in Area No. 3.
§ 948.151 Colorado Potato Committee membership.
The Colorado Potato Committee shall be comprised of six members and alternates selected by the Secretary. Three members and three alternates shall be selected from nominations of Area 2 committee members or alternates, and three members and three alternates shall be selected from nominations of Area 3 committee members or alternates.
§ 948.153 Reestablishment of area.
Pursuant to § 948.53, Area No. 2 is reestablished as follows:
Subpart C – Accounting and Collections
§ 948.200 Accounting and collections.
(a) Each handler’s assessment account with Area No. 2 (San Luis Valley) Committee shall become due and payable upon presentation of a statement thereof to such handler.
(b) If settlement of such an assessment account is not completed on or before the 20th day following presentation of a statement of such account, each handler failing to so complete settlement of his account may be declared delinquent by said area committee.
(c) The name of each person who is declared delinquent may be forwarded to the Secretary and, in addition, the names of persons declared delinquent pursuant to paragraph (b) of this section may be publicized by said area committee.
(d) Terms used in this section shall have the same meaning as when used in Marketing Agreement No. 97 and Order No. 948 (§§ 948.1 to 948.92).
§ 948.215 Assessment rate.
On or after July 1, 2005, an assessment rate of $0.02 per hundredweight is established for Colorado Area No. 3 potatoes.
§ 948.216 Assessment rate.
On and after September 1, 2018, an assessment rate of $0.006 per hundredweight is established for Colorado Area No. 2 potatoes.
Subpart D – Handling Requirements
§ 948.386 Handling regulation.
No person shall handle any lot of potatoes grown in Area No. 2 unless such potatoes meet the requirements of paragraphs (a), (b), and (c) of this section, or unless such potatoes are handled in accordance with paragraphs (d) and (e), or (f) of this section.
(a) Minimum grade and size requirements – (1) All varieties. U.S. No. 2 or better grade, 2 inches minimum diameter or 4 ounces minimum weight.
(2) 1
(3)
(4) None of the above categories of potatoes identified in paragraphs (a)(1) through (a)(4) of this section may be commingled in the same bag or other container.
(b) Maturity (skinning) requirements. From August 1 through October 31 shall be:
(1) For U.S. No. 2 grade. Not more than “moderately skinned.”
(2) All other grades. Not more than “slightly skinned.”
(c) Inspection. (1) No handler shall handle any potatoes for which inspection is required unless an appropriate inspection certificate has been issued with respect thereto and the certificate is valid at the time of shipment. For purposes of operation under this part it is hereby determined pursuant to § 948.40(d) that each inspection certificate shall be valid for a period not to exceed five days following the date of inspection as shown on the inspection certificate.
(2) No handler may transport or cause the transportation by motor vehicle of any shipment of potatoes for which an inspection certificate is required unless each shipment is accompanied by a copy of the inspection certificate applicable thereto and the copy is made available for examination at any time upon request.
(3) Each handler who handles potatoes after such potatoes are regraded, resorted, or repacked shall have such potatoes reinspected, unless such handler has received a waiver from reinspection pursuant to rules established by the Secretary upon the recommendation of the committee.
(d) Special purpose shipments. (1) The grade, size, maturity, and inspection requirements of paragraphs (a), and (b), and (c) of this section and the assessment requirements of this part shall not be applicable to shipments of potatoes for:
(i) Livestock feed;
(ii) Relief or charity; or
(iii) Canning, freezing, and “other processing” as hereinafter defined.
(2) The grade, size, maturity and inspection requirements of paragraphs (a), (b), and (c) of this section shall not be applicable to shipments of potatoes for experimentation, the manufacture or conversion into specified products, or for seed pursuant to section 948.6, but such shipments shall be subject to assessments.
(e) Safeguards. Each handler of potatoes which do not meet the grade, size, and maturity requirements of paragraphs (a) and (b) of this section and which are handled pursuant to paragraph (d) of this section for any of the special purposes set forth therein shall:
(1) Prior to handling, apply for and obtain a Certificate of Privilege from the committee.
(2) Furnish the committee such reports and documents as requested, including certification by the buyer or receiver as to the use of such potatoes; and
(3) Bill each shipment directly to the applicable processor or receiver.
(f) Minimum quantity. For purposes of regulation under this part, each person may handle up to but not to exceed 2,000 pounds of potatoes without regard to the requirements of paragraphs (a), (b), and (c) of this section, but this exception shall not apply to any shipment which exceeds 2,000 pounds of potatoes.
(g) Definitions. The terms U.S. No. 1, U.S. Commercial, U.S. No. 2, Size B, slightly skinned, and moderately skinned shall have the same meaning as when used in the U.S. Standards for Potatoes (7 CFR 2851.1540-2851.1566), including the tolerances set forth therein. The term other processing has the same meaning as the term appearing in the act and includes, but is not restricted to, potatoes for dehydration, chips, shoestrings, starch, and flour. It includes only that preparation of potatoes for market which involves the application of heat or cold to such an extend that the natural form or stability of the commodity undergoes a substantial change. The act of peeling, cooling, slicing, dicing, or applying material to prevent oxidation does not constitute “other processing.” The term manufacture or conversion into specified products means the preparation of potatoes for market into products by peeling, slicing, dicing, applying material to prevent oxidation, or other means approved by the committee, but not including other processing. Other terms used in this section shall have the same meaning as when used in Marketing Agreement No. 97, as amended, and this part.
§ 948.387 Handling regulation.
On and after August 1, 1982, no person shall handle any lot of potatoes grown in Area No. 3 unless such potatoes meet the requirements of paragraphs (a), (b), and (c) of this section, or unless such potatoes are handled in accordance with paragraphs (d) and (e), or (f) of this section.
(a) Minimum grade and size requirements – All varieties. (1) U.S. No. 2 or better grade, 1
(2) U.S. No. 1 grade, Size B (1
(3) U.S. No. 1 grade,
(b) Maturity (skinning) requirements – All Varieties. During the period beginning July 1 and ending December 31 each season for U.S. No. 2 grade, not more than “moderately skinned,” and for all other grades, not more than “slightly skinned”; thereafter no maturity requirements.
(c) Inspection. (1) No handler shall handle any potatoes for which inspection is required unless an appropriate inspection certificate has been issued with respect thereto and the certificate is valid at the time of shipment. For purpose of operation under this part it is hereby determined pursuant to paragraph (d) of § 948.40, that each inspection certificate shall be valid for a period not to exceed five days following the date of inspection as shown on the inspection certificate.
(2) No handler may transport or cause the transportation by motor vehicle of any shipment of potatoes for which an inspection certificate is required unless each shipment is accompanied by a copy of the inspection certificate applicable thereto and the copy is made available for examination at any time upon request.
(3) Each handler who handles potatoes after such potatoes are regraded, resorted, or repacked shall have such potatoes reinspected, unless such handler has received a waiver from reinspection pursuant to rules established by the Secretary upon the recommendation of the committee.
(d) Special purpose shipments. (1) The grade, size, maturity and inspection requirements of paragraphs (a), (b), and (c) of this section and the assessment requirements of this part shall not be applicable to shipments of potatoes for:
(i) Livestock feed;
(ii) Charity;
(iii) Canning, freezing, and “other processing” as hereinafter defined; and
(iv) Certified seed potatoes (§ 948.6).
(v) Experimentation and the manufacture or conversion into specified products.
(2) The maturity requirements set forth in paragraph (b) of this section shall not be applicable to shipments of potatoes for prepeeling.
(e) Safeguards. Each handler making shipments of potatoes pursuant to paragraph (d) of this section shall:
(1) Prior to shipment, apply for and obtain a Certificate of Privilege from the committee;
(2) Furnish the committee such reports and documents as required, including certification by the buyer or receiver on the use of such potatoes; and
(3) Bill each shipment directly to the applicable buyer or receiver.
(f) Minimum quantity. For purpose of regulation under this part, each person may handle up to but not to exceed 2,000 pounds of potatoes per shipment without regard to the requirements of paragraphs (a) and (b) of this section, but this exception shall not apply to any shipment of over 2,000 pounds of potatoes.
(g) Definitions. The terms U.S. No. 1, U.S. No. 2, Size B, moderately skinned and slightly skinned shall have the same meaning as when used in the United States Standards for Grades of Potatoes (7 CFR 51.1540-51.1566) including the tolerances set forth therein. The term prepeeling means the commercial preparation in a prepeeling plant of clean, sound, fresh potatoes by washing, peeling or otherwise removing the outer skin, trimming, sorting, and properly treating to prevent discoloration preparatory to sale in one or more of the styles of peeled potatoes described in § 52.2422 United States Standards for Grades of Peeled Potatoes (7 CFR 52.2421-52.2433). The term other processing has the same meaning as the term appearing in the act and includes, but is not restricted to, potatoes for dehydration, chips, shoestrings, starch, and flour. It includes only that preparation of potatoes for market which involves the application of heat or cold to such an extent that the natural form or stability of the commodity undergoes a substantial change. The act of peeling, cooling, slicing, dicing, or applying material to prevent oxidation does not constitute “other processing.” The term manufacture or conversion into specified products means the preparation of potatoes for market into products by peeling, slicing, dicing, applying material to prevent oxidation, or other means approved by the committee, but not including other processing. All other terms used in this section shall have the same meaning as when used in Marketing Agreement No. 97, as amended, and this part.
PART 955 – VIDALIA ONIONS GROWN IN GEORGIA
Subpart A – Order Regulating Handling
Definitions
§ 955.1 Secretary.
Secretary means the Secretary of Agriculture of the United States, or any officer or employee of the Department of Agriculture who has been delegated, or who may hereafter be delegated, the authority to act for the Secretary.
§ 955.2 Act.
Act means Public Act No. 10, 73d Congress (May 12, 1933), as amended and as reenacted and amended by the Agricultural Marketing Agreement Act of 1937, as amended (Sec. 1-19, 48 Stat. 31, as amended; 7 U.S.C. 601 et seq.).
§ 955.3 Person.
Person means an individual, partnership, corporation, association, or any other business unit.
§ 955.4 Production area.
Production area means that part of the State of Georgia enclosed by the following boundaries:
§ 955.5 Vidalia onion.
Vidalia onion means all varieties of Allium cepa of the hybrid yellow granex, granex parentage or any other similar variety recommended by the committee and approved by the Secretary, that are grown in the production area.
§ 955.6 Handler.
Handler is synonymous with shipper and means any person (except a common or contract carrier of Vidalia onions owned by another person) who handles Vidalia onions, or causes Vidalia onions to be handled.
§ 955.7 Handle.
Handle or ship means to package, load, sell, transport, or in any other way to place Vidalia onions, or cause Vidalia onions to be placed, in the current of commerce within the production area or between the production area and any point outside thereof. Such term shall not include the transportation, sale, or delivery of field-run Vidalia onions to a person within the production area for the purpose of having such Vidalia onions prepared for market.
§ 955.9 Producer.
Producer is synonymous with grower and means any person engaged in a proprietary capacity in the production of Vidalia onions for market.
§ 955.10 Producer-handler.
Producer-Handler means a producer who handles Vidalia onions.
§ 955.12 Committee.
Committee means the Vidalia Onion Committee, established pursuant to § 955.20.
§ 955.13 Fiscal period.
Fiscal period means the 12-month period beginning on September 16 and ending on September 15 of the next year or such other period that may be recommended by the committee and approved by the Secretary.
Committee
§ 955.20 Establishment and membership.
(a) There is hereby established a Vidalia Onion Committee, consisting of nine members, to administer the terms and provisions of this part. Eight members shall be producers, and one shall be a public member. At least four of the producer members shall be producer-handlers. Each member shall have an alternate who shall have the same qualifications as the member.
(b) Each member, other than the public member, shall be an individual who is, prior to selection and during such member’s term of office, a resident of the production area and a grower or an officer or employee of a grower.
(c) The public member shall be a resident of the production area and shall have no direct financial interest in the commercial production, financing, buying, packing or marketing of Vidalia onions, except as a consumer, nor shall such person be a director, officer or employee of any firm so engaged.
§ 955.21 Term of office.
(a) Except as otherwise provided in paragraph (b) of this section, the term of office of committee members and their respective alternates shall be for two years and shall begin as of September 16 or for such other period as the committee may recommend and the Secretary approve. The terms shall be determined so that approximately one-half of the total committee membership shall terminate each year. Members and alternates shall serve in such capacity during the term of office or portion thereof for which they are selected and until their respective successors are selected.
(b) The term of office of the initial members and alternates shall begin as soon as possible after effective date of this part. As determined by lot drawn at the initial nomination meeting, one-fourth of the initial grower members and alternates shall serve for a one-year term, one-fourth shall serve for a two-year term, one-fourth shall serve for a three-year term, and one-fourth shall serve for a four-year term. The term of office for the initial public member and alternate shall be for two years.
(c) The consecutive terms of office of members shall be limited to three 2-year terms.
§ 955.22 Nominations.
(a) Initial members. For nominations to the initial committee, a meeting of producers shall be held by the Secretary.
(b) Successor members. (1) The committee shall hold or cause to be held not later than August 1 of each year, or such other date as may be specified by the Secretary, a meeting or meetings of growers for the purpose of designating one nominee for each position as member and for each position as alternate member of the committee which is vacant, or which is about to become vacant.
(2) Nominations for members and alternates shall be supplied to the Secretary in such manner and form as the Secretary may prescribe, not later than August 15 of each year, or by such other date as may be specified by the Secretary.
(3) The Secretary may, upon recommendation of the committee, divide the production area into districts for the purpose of nominating committee members and their alternates.
(c) Only producers may participate in designating nominees to serve as committee members. Each producer is entitled to cast only one vote on behalf of such producer and such producer’s agents, subsidiaries, affiliates, and representatives in designating nominees for committee members and alternates. An eligible voter’s privilege of casting only one vote shall be construed to permit a voter to cast one vote for each position to be filled.
(d) The producer members shall nominate the public member and alternate member at the first meeting following the selection of members for a new term of office. Nominations for the public member and alternate member shall be supplied to the Secretary in such manner and form as the Secretary may prescribe, not later than November 1, or such other date as may be specified by the Secretary.
§ 955.23 Selection.
From the nominations made pursuant to § 955.22 or from other qualified persons, the Secretary shall select members and alternate members of the committee.
§ 955.24 Acceptance.
Any person nominated to serve as a member or alternate member of the committee shall, prior to selection by the Secretary, qualify by filing a written acceptance indicating such person’s willingness to serve in the position for which nominated.
§ 955.25 Alternates.
An alternate member of the committee shall act in the place and stead of the member for whom such person is an alternate during such member’s absence or when designated to do so by such member. In the event both a member of the committee and that member’s alternate are unable to attend a committee meeting, the member, the alternate, or the committee, in that order, may designate another alternate from the same district (if applicable) and the same group (producer or producer-handler) to serve in such member’s stead. Only the public member’s alternate is authorized to serve in the place and stead of the public member. In the event of the death, removal, resignation or disqualification of a member, that member’s alternate shall serve until a successor to such member is selected.
§ 955.26 Vacancies.
To fill any vacancy occasioned by the failure of any person nominated as a member or as an alternate to qualify, or in the event of the death, removal, resignation, or disqualification of a member or alternate, a successor for the unexpired term may be selected by the Secretary from nominations made pursuant to § 955.22, or from other eligible persons.
§ 955.27 Failure to nominate.
If nominations are not made within the time and manner prescribed in § 955.22, the Secretary may, without regard to nominations, select members and alternates on the basis of the representation provided for in § 955.20.
§ 955.28 Procedure.
(a) Five members of the committee shall constitute a quorum, and five concurring votes shall be required to pass any motion or approve any committee action.
(b) The committee may provide for meetings by telephone, telegraph, or other means of communication, and any vote cast orally at such meetings shall be confirmed promptly in writing: Provided, That if an assembled meeting is held, all votes shall be cast in person.
§ 955.29 Expenses.
Members and alternates shall serve without compensation but shall be reimbursed for such expenses authorized by the committee and necessarily incurred by them in attending committee meetings and in the performance of their duties under this part.
§ 955.30 Powers.
The committee shall have the following powers:
(a) To administer the provisions of this part in accordance with its terms;
(b) To make rules and regulations to effectuate the terms and provisions of this part;
(c) To receive, investigate, and report to the Secretary complaints of violation of the provisions of this part; and
(d) To recommend to the Secretary amendments to this part.
§ 955.31 Duties.
The committee shall have, among others, the following duties:
(a) As soon as practicable after the beginning of each term of office, to meet and organize, to select a chairman and such other officers as may be necessary, to select subcommittees of committee members or alternates, and to adopt such rules and regulations for the conduct of its business as it deems necessary;
(b) To act as intermediary between the Secretary and any producer or handler;
(c) To furnish to the Secretary such available information as may be requested;
(d) To appoint such employees, agents, and representatives as it may deem necessary, to determine the compensation and define the duties of each such person, and to protect the handling of committee funds;
(e) To investigate from time to time and to assemble data on the growing, harvesting, shipping, and marketing conditions with respect to Vidalia onions;
(f) To keep minutes, books, and records which clearly reflect all of the acts and transactions of the committee. Such minutes, books, and records shall be subject to examination at any time by the Secretary or the Secretary’s authorized agent or representative. Minutes of each committee meeting shall be furnished promptly to the Secretary;
(g) Prior to the beginning of each fiscal period, to prepare and submit to the Secretary a budget of its projected income and expenses for such fiscal period, together with a report thereon and a recommendation as to the rate of assessment for such period;
(h) To cause its books to be audited by a Certified Public Accountant at least once each fiscal period, and at such other time as the committee may deem necessary or as the Secretary may request. The report of such audit shall show the receipt and expenditure of funds collected pursuant to this part. A copy of each report shall be furnished to the Secretary. A copy shall also be made available at the principal office of the committee for inspection by producers and handlers provided that confidential information shall be removed;
(i) To give the Secretary the same notice of meetings of the committee and its subcommittees as is given to its members.
Expenses and Assessments
§ 955.40 Expenses.
The committee is authorized to incur such expenses as the Secretary may find are reasonable and likely to be incurred by the committee for its maintenance and functioning, and to enable it to exercise its powers and perform its duties in accordance with the provisions of this part. The funds to cover such expenses shall be acquired in the manner prescribed in §§ 955.42 and 955.45.
§ 955.41 Budget.
At least 60 days prior to each fiscal period, or such other date as may be specified by the Secretary, and as may be necessary thereafter, the committee shall prepare an estimated budget of income and expenditures necessary for the administration of this part. The committee may recommend a rate of assessment calculated to provide adequate funds to defray its proposed expenditures. The committee shall present such budget to the Secretary with an accompanying report showing the basis for its calculations.
§ 955.42 Assessments.
(a) The funds to cover the committee’s expenses shall be acquired by the levying of assessments upon handlers as provided in this subpart. Each person who first handles Vidalia onions shall pay assessments to the committee upon demand, which assessments shall be in payment of such handler’s pro rata share of the committee’s expenses.
(b) Assessments shall be levied upon handlers at rates established by the Secretary. Such rates may be established upon the basis of the committee’s recommendations or other available information.
(c) At any time during, or subsequent to, a given fiscal period the committee may recommend the approval of an amended budget and an increase in the rate of assessment. Upon the basis of such recommendations, or other available information, the Secretary may approve an amended budget and increase the assessment rate. Such increase shall be applicable to all Vidalia onions which were handled during such fiscal period.
(d) The payment of assessments for the maintenance and functioning of the committee may be required under this part throughout the period it is in effect irrespective of whether particular provisions of this part are suspended or become inoperative.
(e) To provide funds for the administration of the provisions of this part during the initial fiscal period or the first part of a fiscal period when neither sufficient operating reserve funds nor sufficient revenue from assessments on the current seasons’s shipments are available, the committee may accept payment of assessments in advance or may borrow money for such purposes.
(f) The committee may impose a late payment charge or an interest charge or both, on any handler who fails to pay any assessment in a timely manner. Such time and the rates shall be recommended by the committee and approved by the Secretary.
§ 955.43 Accounting.
(a) All funds received by the committee pursuant to the provisions of this part shall be used solely for the purposes specified in this part.
(b) The Secretary may at any time require the committee, its members and alternates, employees, agents and all other persons to account for all receipts and disbursements, funds, property, or records for which they are responsible. Whenever any person ceases to be a member or alternate of the committee, such person shall account for all receipts and disbursements and deliver all property and funds in such member’s possession to the committee, pertaining to the committee’s activities for which such person was responsible, and shall execute such assignments and other instruments as may be necessary or appropriate to vest in the committee full title to all of the property, funds, and claims vested in such person.
(c) The committee may make recommendations to the Secretary for one or more of the members thereof, or any other person, to act as a trustee for holding records, funds, or any other committee property during periods of suspension of this part, or during any period or periods when regulations are not in effect and, upon determining such action is appropriate, the Secretary may direct that such person or persons shall act as trustee or trustees for the committee.
§ 955.44 Excess funds.
If, at the end of a fiscal period, the assessments collected are in excess of expenses incurred, such excess shall be accounted for as follows:
(a) The committee, with the approval of the Secretary, may establish an operating reserve and may carry over to subsequent fiscal periods excess funds in a reserve so established, except funds in the reserve shall not exceed the equivalent of approximately three fiscal periods’ budgeted expenses. Such reserve funds may be used:
(1) To defray any expenses authorized under this part;
(2) To defray expenses during any fiscal period prior to the time assessment income is sufficient to cover such expenses;
(3) To cover deficits incurred during any fiscal period when assessment income is less than expenses;
(4) To defray expenses incurred during any period when any or all provisions of this part are suspended or are inoperative; and
(5) To cover necessary expenses of liquidation in the event of termination of this part.
(b) If such excess is not retained in a reserve as provided in paragraph (a) of this section, each handler entitled to a proportionate refund of the excess assessments collected shall be credited at the end of a fiscal period with such refund against the operations of the following fiscal period unless such handler demands payment thereof, in which event such proportionate refund shall be paid.
§ 955.45 Contributions.
The committee may accept voluntary contributions but these shall only be used to pay expenses incurred pursuant to § 955.50. Such contributions shall be free from any encumbrances by the donor, and the committee shall retain complete control of their use.
Research and Development
§ 955.50 Research and development.
(a) The committee, with the approval of the Secretary, may establish or provide for the establishment of production research, marketing research and development and marketing promotion projects, including paid advertising, designed to assist, improve, or promote the marketing, distribution, consumption, or efficient production of Vidalia onions. Any such project for the promotion and advertising of Vidalia onions may utilize an identifying mark which shall be made available for use by all handlers in accordance with such terms and conditions as the committee, with the approval of the Secretary, may prescribe. The expense of such projects shall be paid from funds collected pursuant to § 955.42 or § 955.45.
(b) In recommending projects pursuant to this section, the committee shall give consideration to the following:
(1) The expected supply of Vidalia onions in relation to market requirements;
(2) The supply situation among competing areas and commodities;
(3) The anticipated benefits from such projects in relation to their costs;
(4) The need for marketing research with respect to any market development activity; and
(5) Other relevant factors.
(c) If the committee should conclude that a program of research and development should be undertaken, or continued, in any fiscal period, it shall submit the following for the approval of the Secretary;
(1) Its recommendations as to the funds to be obtained pursuant to § 955.42 or § 955.45;
(2) Its recommendation as to any research projects; and
(3) Its recommendations as to promotion activity and paid advertising.
(d) Upon conclusion of each activity, but at least annually, the committee shall summarize and report the results of such activity to the Secretary.
(e) All marketing promotion activity engaged in by the committee, including paid advertising, shall be subject to the following terms and conditions:
(1) No marketing promotion, including paid advertising, shall refer to any private brand, private trademark or private trade name;
(2) No promotion or advertising shall disparage the quality, use, value or sale of like or any other agricultural commodity or product, and no false or unwarranted claims shall be made in connection with the product; and
(3) No promotion or advertising shall be undertaken without reason to believe that returns to producers will be improved by such activity.
Reports and Recordkeeping
§ 955.60 Reports and recordkeeping.
Upon request of the committee, made with the approval of the Secretary, each handler shall furnish to the committee, in such manner and at such time as it may prescribe, such reports and other information as may be necessary for the committee to perform its duties under this part.
(a) Such reports may include, but are not limited to, the following:
(1) The quantities of Vidalia onions received by a handler;
(2) The quantities disposed of by the handler;
(3) The date of each such disposition; and
(4) The identification of the carrier transporting such Vidalia onions.
(b) All such reports shall be held under appropriate protective classification and custody by duly appointed employees of the committee, so that the information contained therein which may adversely affect the competitive position of any handler in relation to other handlers will not be disclosed. Compilations of general reports from data submitted by handlers is authorized, subject to the prohibition of disclosure of an individual handler’s identity or operations.
(c) Each handler shall maintain for at least two succeeding years such records of the Vidalia onions received and disposed of by such handler as may be necessary to verify reports submitted to the committee pursuant to this section.
Miscellaneous Provisions
§ 955.71 Termination or suspension.
(a) The Secretary may at any time terminate the provisions of this part by giving at least one day’s notice by means of a press release or in any other manner which the Secretary may determine.
(b) The Secretary shall terminate or suspend the operations of any or all of the provisions of this part whenever it is found that such provisions do not tend to effectuate the declared policy of the Act.
(c) The Secretary shall terminate the provisions of this part at the end of any fiscal period whenever it is found that such termination is favored by a majority of producers who, during a representative period, have been engaged in the production of Vidalia onions:
(d) Within six years of the effective date of this part, the Secretary shall conduct a continuance referendum to ascertain whether continuance of this part is favored by producers. Subsequent referenda to ascertain continuance shall be conducted every six years thereafter.
(e) The provisions of this part shall, in any event, terminate whenever the provisions of the Act authorizing them cease to be in effect.
§ 955.72 Proceedings after termination.
(a) Upon the termination of the provisions of this subpart, the then functioning members of the committee shall continue as joint trustees, for the purpose of liquidating the affairs of the committee, of all funds and property then in the possession, or under control, of the committee, including claims for any funds unpaid or property not delivered at the time of such termination. Action by said trusteeship shall require the concurrence of a majority of the said trustees.
(b) The said trustees shall continue in such capacity until discharged by the Secretary; shall, from time to time, account for all receipts and disbursements and deliver all property on hand, together with all books and records of said committee and of the trustees, to such person as the Secretary may direct; and shall upon the request of the Secretary, execute such assignments or other instruments necessary or appropriate to vest in such person full title and right to all of the funds, property, and claims vested in said committee or the trustees pursuant to this subpart.
(c) Any person to whom funds, property, or claims have been transferred or delivered by the committee or its members pursuant to this section shall be subject to the same obligations imposed upon the members of the committee and upon the said trustees.
§ 955.73 Effect of termination or amendment.
Unless otherwise expressly provided by the Secretary, the termination of this subpart or of any regulation issued pursuant to this subpart, or the issuance of any amendments 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 under this subpart;
(b) Release or extinguish any violation of this subpart or of any regulations issued under this subpart; or
(c) Affect or impair any rights or remedies of the Secretary or of any other person with respect to any such violations.
§ 955.80 Compliance.
No handler shall handle Vidalia onions except in conformity with the provisions of this part.
§ 955.81 Right of the Secretary.
The members of the committee (including successors and alternates) and any agent or employee appointed or employed by the committee shall be subject to removal or suspension by the Secretary at any time. Each and every order, regulation, decision, determination, or other act of the committee shall be subject to the continuing right of the Secretary to disapprove of the same at any time. Upon such disapproval, the disapproved action of the committee shall be deemed null and void except as to acts done in reliance thereon or in compliance therewith prior to such disapproval by the Secretary.
§ 955.82 Duration of immunities.
The benefits, privileges, and immunities conferred upon any person by virtue of this part shall cease upon the termination of this part, except with respect to acts done under and during the existence of this part.
§ 955.83 Agents.
The Secretary may, by designation in writing, name any person, including any officer or employee of the Government, or name any agency in the United States Department of Agriculture, to act as the Secretary’s agent or representative in connection with any of the provisions of this part.
§ 955.84 Derogation.
Nothing contained in this part is, or shall be construed to be, in derogation or in modification of the rights of the Secretary or of the United States to exercise any powers granted by the Act or otherwise, or, in accordance with such powers, to act in the premises whenever such action is deemed advisable.
§ 955.85 Personal liability.
No member or alternate of the committee or any employee or agent thereof, shall be held personally responsible, either individually or jointly with others, in any way whatsoever, to any handler or to any person for errors in judgment, mistakes, or other acts, either of commission or omission, as such member, alternate, employee, or agent, except for acts of dishonesty, willful misconduct, or gross negligence.
§ 955.86 Separability.
If any provision of this part is declared invalid, or the applicability thereof to any person, circumstance, or thing is held invalid, the validity of the remainder of this part, or the applicability thereof to any other person, circumstance, or thing shall not be affected thereby.
§ 955.87 Amendments.
Amendments to this part may be proposed, from time to time, by the committee or by the Secretary.
Marketing Agreement
§ 955.90 Counterparts.
This agreement may be executed in multiple counterparts and when one counterpart is signed by the Secretary, all such counterparts shall constitute, when taken together, one and the same instrument as if all signatures were contained in one original.
§ 955.91 Additional parties.
After the effective date thereof, any handler may become a party to this agreement if a counterpart is executed by such handler and delivered to the Secretary. This agreement shall take effect as to such new contracting part at the time such counterpart is delivered to the Secretary, and the benefits, privileges, and immunities conferred by this agreement shall then be effective as to such new contracting party.
§ 955.92 Order with marketing agreement.
Each signatory hereby requests the Secretary to issue, pursuant to the Act, an order providing for regulating the handling of Vidalia onions in the same manner as is provided for in this agreement.
Subpart B – Administrative Requirements
§ 955.101 Vidalia Onion Handler Report.
(a) Each handler shall furnish shipping reports with the Vidalia Onion Committee on a monthly basis. Such reports shall be made on forms provided by the Committee and shall include:
(1) The name and address of the handler;
(2) Monthly period covered by the report;
(3) Total quantity of Vidalia onions received;
(4) Total fresh market shipments of Vidalia onions;
(5) Shipment volume coming from acreage owned by the handler;
(6) Total assessments owed;
(7) Volume of onions packed under contract for another handler and those handler names;
(8) Onions sold to another handler; and
(9) Information on onions placed in Controlled Atmosphere storage.
(b) Handlers shall file reports each fiscal period beginning the first month they make shipments and shall continue filing reports until they submit a final report for the season. Each such report shall be filed with the Committee not later than 5 p.m. on the tenth day of each month following the month in which any shipments were made. Should the tenth day of the month fall on a weekend or holiday, reports are due by the first business day following the tenth day of the month.
§ 955.113 Fiscal period.
Pursuant to § 955.13, fiscal period shall mean the period beginning January 1 and ending December 31 of each year, except that the fiscal period that began on September 16, 1998, shall end on December 31, 1999.
§ 955.121 Change in term of office.
Pursuant to § 955.21, the term of office for the Committee shall be for two years beginning January 1 and ending December 31, except that, the term of office for members and alternates whose terms expired on September 15, 1999, shall end on December 31, 1999, or until qualified successors are selected.
§ 955.122 Change in nomination deadlines.
Pursuant to § 955.22, the Committee shall hold or cause to be held not later than October 1 of each year a meeting or meetings of growers for the purpose of designating one nominee for each position as member and for each position as alternate of the Committee which is vacant, or about to become vacant. Such nominations shall be supplied to the Secretary in such manner and form as the Secretary may prescribe, not later than October 15 of each year. The grower members shall nominate the public member and alternate public member at the first meeting following the selection of members for a new term of office. Nominations for the public member and alternate public member shall be supplied to the Secretary in such manner and form as the Secretary may prescribe, not later than February 15.
§ 955.142 Delinquent assessments.
(a) Each handler shall submit assessments to the Vidalia Onion Committee on a monthly basis for each month during the fiscal period in which they made shipments. Each such assessment shall be paid to the Committee not later than 5 p.m. on the tenth day of each month following the month in which any shipments were made. Should the tenth day of the month fall on a weekend or holiday, assessments are due by the first business day following the tenth day of the month.
(b) Each handler shall pay interest of 1.5 percent per month on any assessments levied pursuant to § 955.42 and on any accrued unpaid interest beginning the day immediately after the date the monthly assessments were due, until the delinquent handler’s assessments, plus applicable interest, have been paid in full. In addition to the interest charge, the Committee shall impose a late payment charge on any handler whose assessment payment has not been received within 10 days of the due date. The late payment charge shall be 10 percent of the late assessments.
Assessment Rates
§ 955.209 Assessment rate.
On and after January 1, 2008, an assessment rate of $0.13 per 40-pound carton or equivalent is established for Vidalia onions.
PART 956 – SWEET ONIONS GROWN IN THE WALLA WALLA VALLEY OF SOUTHEAST WASHINGTON AND NORTHEAST OREGON
Subpart A – Order Regulating Handling
Definitions
§ 956.1 Secretary.
Secretary means the Secretary of Agriculture of the United States or any officer or employee of the Department of Agriculture who has been delegated, or to whom authority may hereafter be delegated, the authority to act for the Secretary.
§ 956.2 Act.
Act means Public Act No. 10, 73d Congress (May 12, 1933), as amended and as reenacted and amended by the Agricultural Marketing Agreement Act of 1937, as amended (Sec. 1-19, 48 Stat. 31, as amended; 7 U.S.C. 601 et seq.).
§ 956.3 Person.
Person means an individual, partnership, corporation, association, or any other business unit.
§ 956.4 Production area.
Production area means a tract of land in Umatilla County, Oregon, and Walla Walla County, Washington, based on surveyors’ maps, enclosed by the following boundaries:
§ 956.5 Walla Walla Sweet Onions.
Walla Walla Sweet Onions means all varieties of Allium cepa grown within the production area, except Spanish hybrid varieties. The committee may, with the approval of the Secretary, exempt individual varieties from any or all regulations issued under this part.
§ 956.6 Handler.
Handler is synonymous with shipper and means any person (except a common or contract carrier of Walla Walla Sweet Onions owned by another person) who handles Walla Walla Sweet Onions or causes Walla Walla Sweet Onions to be handled.
§ 956.7 Registered handler.
Registered handler means any person with adequate facilities for preparing Walla Walla Sweet Onions for commercial market, who has requested such registration and is so recorded by the committee, or any person who has access to such facilities and has recorded with the committee the ability and willingness to assume customary obligations of preparing Walla Walla Sweet Onions for commercial market. The committee may recommend, for approval of the Secretary, procedures with respect to handler registration.
§ 956.8 Handle.
Handle is synonymous with ship and means to package, load, sell, transport, or in any way place Walla Walla Sweet Onions or cause Walla Walla Sweet Onions to be placed in the current of commerce within the production area or between the production area and any point outside thereof. Such term shall not include the transportation, sale, or delivery of harvested Walla Walla Sweet Onions to a handler within the production area for the purpose of having such Walla Walla Sweet Onions prepared for market.
§ 956.9 Container.
Container means a box, bag, crate, hamper, basket, package, or any other receptacle used in the packaging, transporting, sale, shipment, or other handling of Walla Walla Sweet Onions.
§ 956.10 Producer.
Producer is synonymous with grower and means any person engaged in a proprietary capacity in the production of Walla Walla Sweet Onions for market.
§ 956.11 Varieties.
Varieties means and includes all classifications, subdivisions, or types of Walla Walla Sweet Onions according to those definitive characteristics now or hereafter recognized by the United States Department of Agriculture or recommended by the committee and approved by the Secretary.
§ 956.12 Committee.
Committee means the Walla Walla Sweet Onion Committee established pursuant to § 956.20.
§ 956.13 Fiscal period.
Fiscal period means the period beginning on June 1 and ending on May 31 of each year, or other such period as may be recommended by the committee and approved by the Secretary.
§ 956.14 [Reserved]
§ 956.15 Grade and size.
Grade means any of the officially established grades of onions, including maturity requirements and size means any of the officially established sizes of onions as set forth in the United States standards for grades of onions or amendments thereto, or modifications thereof, or variations based thereon, or States of Washington or Oregon standards of onions or amendments thereto or modifications thereof or variations based thereon, recommended by the committee and approved by the Secretary.
§ 956.16 Pack.
Pack means a quantity of Walla Walla Sweet Onions specified by grade, size, weight, or count, or by type or condition of container, or any combination of these recommended by the committee and approved by the Secretary.
Administrative Committee
§ 956.20 Establishment and membership.
(a) The Walla Walla Sweet Onion Marketing Committee, consisting of seven members, is hereby established. The Committee shall consist of four producer members, two handler members, and one public member. Each member shall have an alternate who shall have the same qualifications as the member.
(b) A producer shall have three years of experience in producing onions in order to qualify for committee membership. At the time of selection, no more than two producer members may be affiliated with the same handler.
§ 956.21 Term of office.
(a) Except as otherwise provided in paragraph (b) of this section, the term of office of grower and handler Committee members and their respective alternates shall be two fiscal periods beginning on June 1 or such other date as recommended by the Committee and approved by the Secretary. The terms shall be determined so that one-half of the grower membership and one-half of the handler membership shall terminate each year. Members and alternates shall serve during the term of office for which they are selected and have been qualified, or during that portion thereof beginning on the date on which they qualify during such term of office and continuing until the end thereof, or until their successors are selected and have qualified.
(b) The term of office of the initial members and alternates shall begin as soon as possible after May 6, 2019. One-half of the initial industry grower and handler members and alternates shall serve for a one-year term and one-half shall serve for a two-year term. The initial as well as all successive terms of office of the public member and alternate member shall be for three years.
(c) The consecutive terms of office for all members shall be limited to two two-year terms. There shall be no such limitation for alternate members.
§ 956.22 Nominations.
Nominations from which the Secretary may select the members of the committee and their respective alternates may be made in the following manner:
(a) The committee shall hold or cause to be held, within the production area and prior to April 1 of each year or by such other date as may be specified by the Secretary, one or more meetings of producers and handlers for the purpose of designating one nominee for each of the member and alternate member positions which are vacant or will be vacant at the end of the fiscal period;
(b) In arranging for such meetings the committee may, if it deems such desirable, cooperate with existing organizations and agencies;
(c) Nominations for committee members and alternate members shall be provided to the Secretary, in such manner and form as the Secretary may prescribe, not later than 30 days prior to the end of the fiscal period within which the current term of office expires;
(d) Only producers may participate in designating nominees for producer committee members and their alternates and only handlers may participate in designating nominees for handler committee members and their alternates;
(e) Each person who is both a handler and a producer may vote either as a handler or as a producer, but not both;
(f) Each person is entitled to cast only one vote on behalf of him or herself, his or her partners, agents, subsidiaries, affiliates and representatives, in designating nominees for committee members and alternates. An eligible producer’s or handler’s privilege of casting only one vote, as aforesaid, shall be construed to permit such voter to cast one vote for each producer member and alternate member position to be filled or each handler member and alternate member position to be filled, but not both.
(g) Every three years, at the first meeting following selection, the committee shall nominate the public member and alternate for a three-year term of office.
(h) The committee shall prescribe such additional qualifications, administrative rules and procedures for selection and voting for each candidate as it deems necessary and as the Secretary approves.
§ 956.23 Selection.
The Secretary shall select members and alternate members of the committee from the nominations made pursuant to § 956.22 or from other qualified persons.
§ 956.24 Qualification and acceptance.
Any person nominated to serve as a member or alternate member of the committee shall, prior to selection by the Secretary, qualify by filing a written background and acceptance statement indicating such person’s willingness to serve in the position for which nominated.
§ 956.25 Alternates.
An alternate member of the committee shall act in the place and stead of the member for whom such person is an alternate, during such member’s absence. In the event of the death, removal, resignation, or disqualification of a member, that member’s alternate shall serve until a successor to such member has qualified and is selected.
§ 956.26 Vacancies.
To fill any vacancy occasioned by the failure of any person nominated as a member or as an alternate to qualify, or in the event of the death, removal, resignation, or disqualification of a member or alternate, a successor for the unexpired term may be selected by the Secretary from nominations made pursuant to § 956.22 from previously unselected nominees on the current nominee list, or from other eligible persons.
§ 956.27 Failure to nominate.
If nominations are not made within the time and manner prescribed in § 956.22 the Secretary may, without regard to nominations, select the members and alternates on the basis of the representation provided for in § 956.20.
§ 956.28 Procedure.
(a) Four members of the Committee shall constitute a quorum, and four concurring votes shall be required to pass any motion or approve any Committee action, except that recommendations made pursuant to § 956.61 shall require five concurring votes.
(b) The committee may provide for meetings by telephone, telegraph, facsimile, or other means of communication, and any vote cast orally at such meetings shall be confirmed promptly in writing: Provided, That if an assembled meeting is held, all votes shall be cast in person.
§ 956.29 Expenses.
Members and alternates shall serve without compensation but shall be reimbursed for such expenses authorized by the committee and necessarily incurred by them in attending committee meetings and in the performance of their duties under this part.
§ 956.30 Powers.
The committee shall have the following powers:
(a) To administer the provisions of this part in accordance with its terms;
(b) To make rules and regulations to effectuate the terms and provisions of this part;
(c) To receive, investigate, and report to the Secretary complaints of violations of the provisions of this part; and
(d) To recommend to the Secretary amendments to this part.
§ 956.31 Duties.
It shall be among the duties of the committee:
(a) At the beginning of each fiscal period, or as soon thereafter as practicable, to meet and organize, to select a chairperson and such other officers as may be necessary, to select subcommittees, and to adopt such rules and regulations for the conduct of its business as it may deem advisable;
(b) To act as intermediary between the Secretary and any producer or handler;
(c) To furnish to the Secretary such available information as the Secretary may request;
(d) To appoint such employees, agents, and representatives as it may deem necessary and to determine the salaries and define the duties of each such person;
(e) To investigate from time to time and to assemble data on the growing, harvesting, shipping, and marketing conditions with respect to Walla Walla Sweet Onions and to engage in such research and service activities which relate to the production, handling, or marketing of Walla Walla Sweet Onions as may be approved by the Secretary;
(f) To keep minutes, books, and records which clearly reflect all of the acts and transactions of the committee. Such minutes, books, and records shall be subject to examination at any time by the Secretary or the Secretary’s authorized agent or representative;
(g) To make available to producers and handlers the committee voting record on recommended regulations and on other matters of policy;
(h) Prior to each fiscal period, to submit to the Secretary a budget of its proposed expenses for such fiscal period, together with a report thereon, and a recommendation as to the rate of assessment for such period;
(i) To cause its books to be audited by a competent accountant at least once each fiscal period, and at such other time as the committee may deem necessary or as the Secretary may require; the report of such audit shall show the receipt and expenditure of funds collected pursuant to this part; a copy of each such report shall be furnished to the Secretary, and a copy of each such report shall be made available at the principal office of the committee for inspection by producers and handlers: Provided, that confidential information shall be removed from all copies made available to the public; and
(j) To consult, cooperate, and exchange information with other onion marketing committees and other individuals or agencies in connection with all proper committee activities and objectives under this subpart.
Expenses and Assessments
§ 956.40 Expenses.
The committee is authorized to incur such expenses as the Secretary may find are reasonable and likely to be incurred by the committee for its maintenance and functioning, and to enable it to exercise its powers and perform its duties in accordance with the provisions of this part. The funds to cover such expenses shall be acquired in the manner prescribed in §§ 956.42 and 956.45.
§ 956.41 Budget.
Prior to each fiscal period and as may be necessary thereafter, the committee shall prepare an estimated budget of income and expenditures necessary for the administration of this part. The committee shall recommend a rate of assessment calculated to provide adequate funds to defray its proposed expenditures. The committee shall present such budget to the Secretary with an accompanying report showing the basis for its calculations.
§ 956.42 Assessments.
(a) The funds to cover the committee’s expenses shall be acquired by the levying of assessments upon handlers as provided in this subpart. Each person who first handles Walla Walla Sweet Onions shall pay assessments to the committee upon demand, which assessments shall be in payment of such handler’s pro rata share of the committee’s expenses.
(b) Assessments shall be levied upon handlers, at rates established by the Secretary. Such rates may be established upon the basis of the committee’s recommendations or other available information.
(c) At any time during, or subsequent to, a given fiscal period, the committee may recommend the approval of an amended budget and an increase in the rate of assessment. Upon the basis of such recommendations, or other available information, the Secretary may approve an amended budget and increase the assessment rate. Such increase in the assessment rate shall be applicable to all Walla Walla Sweet Onions which were handled by each handler thereof during such fiscal period.
(d) The payment of assessments for the maintenance and functioning of the committee may be required under this part throughout the period it is in effect, irrespective of whether particular provisions of this part are suspended or become inoperative.
(e) To provide funds for the administration of the provisions of this part during the initial fiscal period or the first part of a fiscal period when neither sufficient operating reserve funds nor sufficient revenue from assessments on the current season’s shipments are available, the committee may accept payment of assessments in advance or may borrow money for such purposes.
(f) The committee may impose a late payment charge or an interest charge, or both, on any handler who fails to pay any assessment in a timely manner. Such time and the rates shall be recommended by the committee and approved by the Secretary.
§ 956.43 Accounting.
(a) All funds received by the committee pursuant to the provisions of this part shall be used solely for the purposes specified in this part.
(b) The Secretary may at any time require the committee, its members and alternate members, employees, agents, and all other such persons associated with the committee to account for all receipts, disbursements, funds, property, or records for which they are responsible. Whenever any person ceases to be a member, alternate member, employee, or agent of the committee, such person shall account for all receipts, disbursements, funds, property, and records pertaining to the committee’s activities for which such person was responsible, deliver all property and funds in such person’s possession to the committee, and execute such assignments and other instruments as may be necessary or appropriate to vest in the committee full title to all of the property, funds, and claims vested in such person pursuant to this part.
(c) The committee may make recommendations to the Secretary for one or more of the members thereof, or any other person, to act as a trustee for holding records, funds, or any other committee property during periods of suspension of this part, or during any period or periods when regulations are not in effect and, upon determining such action is appropriate, the Secretary may direct that such person or persons shall act as trustee or trustees for the committee.
§ 956.44 Excess funds.
If, at the end of a fiscal period, the assessments collected are in excess of expenses incurred, such excess shall be accounted for as follows:
(a) The committee, with approval of the Secretary, may establish an operating reserve and may carry over to subsequent fiscal periods excess funds in a reserve so established, except funds in the reserve shall not exceed the equivalent of approximately two fiscal period’s budgeted expenses. Such reserve funds may be used:
(1) To defray any expenses authorized under this part;
(2) To defray expenses during any fiscal period prior to the time assessment income is sufficient to cover such expenses;
(3) To cover deficits incurred during any fiscal period when assessment income is less than expenses;
(4) To defray expenses incurred during any period when any or all provisions of this part are suspended or are inoperative; and
(5) To cover necessary expenses of liquidation in the event of termination of this part.
(b) Upon termination of this part, any funds not required to defray the necessary expenses of liquidation shall be disposed of in such manner as the Secretary may determine to be appropriate except that to the extent practicable, such funds shall be returned pro rata to the persons from whom such funds were collected.
(c) If such excess is not retained in a reserve as provided in paragraph (a) of this section, each handler entitled to a proportionate refund of the excess assessments collected shall be credited at the end of a fiscal period with such refund against the operations of the following fiscal period unless such handler demands payment thereof, in which event such proportionate refund shall be paid as soon as practicable.
§ 956.45 Contributions.
The committee may accept voluntary contributions but these shall be used only to pay expenses incurred pursuant to § 956.50. Such contributions shall be free from any encumbrances by the donor, and the committee shall retain complete control of their use.
Research and Development
§ 956.50 Research and development.
(a) The committee, with the approval of the Secretary, may establish or provide for the establishment of production research, marketing research and development, and marketing promotion projects, including paid advertising, designed to assist, improve, or promote the marketing, distribution, consumption, or efficient production of Walla Walla Sweet Onions. Any such project for the promotion and advertising of Walla Walla Sweet Onions may utilize an identifying mark, including but not limited to registered trademarks and logos, which shall be made available for use by all handlers in accordance with such terms and conditions as the committee, with the approval of the Secretary, may prescribe. The committee may register such logos with the Commissioner of Patents and Trademarks, U.S. Patent and Trademark Office. The expense of such projects shall be paid from funds collected pursuant to §§ 956.42 and 956.45.
(b) In recommending projects pursuant to this section, the committee shall give consideration to the following:
(1) The expected supply of Walla Walla Sweet Onions in relation to market requirements;
(2) The supply situation among competing onion areas and communities;
(3) The anticipated benefits from such projects in relation to their costs;
(4) The need for marketing research with respect to any market development activity; and
(5) Other relevant factors.
(c) If the committee concludes that a program of research and development should be undertaken, or continued, in any fiscal period, it shall submit the following for the approval of the Secretary:
(1) Its recommendations as to the funds to be obtained pursuant to §§ 956.42 and 956.45;
(2) Its recommendations as to any research projects; and
(3) Its recommendations as to promotion activity and paid advertising.
(d) Upon conclusion of each activity, but at least annually, the committee shall summarize and report the results of such activity to the Secretary.
(e) All marketing promotion activity engaged in by the committee, including paid advertising, shall be subject to the following terms and conditions:
(1) No marketing promotion, including paid advertising, shall refer to any private brand, private trademark, or private trade name;
(2) No promotion or advertising shall disparage the quality, use, value, or sale of like or any other agricultural commodity or product, and no false or unwarranted claims shall be made in connection with the product; and
(3) No promotion or advertising shall be undertaken without reason to believe that returns to producers will be improved by such activity.
Regulation
§ 956.60 Marketing policy.
(a) Preparation. Prior to each marketing season, the committee shall consider and prepare a proposed policy for the marketing of Walla Walla Sweet Onions. In developing its marketing policy, the committee shall investigate relevant supply and demand conditions for Walla Walla Sweet Onions. In such investigations, the committee shall give appropriate consideration to the following:
(1) Market prices for sweet onions, including prices by variety, grade, size, quality, and maturity, and by different packs;
(2) Supply of sweet onions by grade, size, quality, maturity, and variety in the production area and in other sweet onion producing sections;
(3) The trend and level of consumer income;
(4) Establishing and maintaining orderly marketing conditions for Walla Walla Sweet Onions;
(5) Orderly marketing of Walla Walla Sweet Onions as will be in the public interest; and
(6) Other relevant factors.
(b) Reports. (1) The committee shall submit a report to the Secretary setting forth the aforesaid marketing policy, and the committee shall notify producers and handlers of the contents of such report.
(2) In the event it becomes advisable to shift from such marketing policy because of changed supply and demand conditions, the committee shall prepare an amended or revised marketing policy in accordance with the manner previously outlined. The committee shall submit a report thereon to the Secretary and notify producers and handlers of the contents of such report on the revised or amended marketing policy.
§ 956.61 Recommendation for regulations.
The committee shall recommend regulations to the Secretary whenever it deems it advisable, as provided in § 956.62. The committee also may recommend modification, suspension, or termination of any regulation, or amendments thereto, in order to facilitate the handling of Walla Walla Sweet Onions for the purposes authorized in § 956.63. The committee may also recommend amendment, modification, termination, or suspension of any regulation issued under this part.
§ 956.62 Issuance of regulations.
(a) Except as otherwise provided in this part, the Secretary shall limit the shipment of Walla Walla Sweet Onions by any one or more of the methods hereinafter set forth whenever the Secretary finds from the recommendations and information submitted by the committee, or from other available information, that such regulation would tend to effectuate the declared policy of the Act. Such limitation may:
(1) Regulate in any or all portions of the production area, the handling of particular grades, sizes, qualities, or maturities of any or all varieties of Walla Walla Sweet Onions, or combinations thereof, during any period or periods;
(2) Regulate the handling of particular grades, sizes, qualities, or maturities of Walla Walla Sweet Onions differently, for different varieties or packs, or for any combination of the foregoing, during any period or periods;
(3) Provide a method, through rules and regulations issued pursuant to this part, for fixing the size, capacity, weight, dimensions, markings or pack of the container or containers, which may be used in the packaging or handling of Walla Walla Sweet Onions, including appropriate logo or other container markings to identify the contents thereof;
(4) Regulate the handling of Walla Walla Sweet Onions by establishing, in terms of grades, sizes, or both, minimum standards of quality and maturity.
(b) The Secretary may amend any regulation issued under this part whenever the Secretary finds that such amendment would tend to effectuate the declared policy of the Act. The Secretary may also terminate or suspend any regulation or amendment thereof whenever the Secretary finds that such regulation or amendment obstructs or no longer tends to effectuate the declared policy of the Act.
§ 956.63 Handling for specified purposes.
Upon the basis of recommendations and information submitted by the committee, or other available information, the Secretary may issue special regulations, or modify, suspend, or terminate requirements in effect pursuant to §§ 956.42 and 956.62 or any combination thereof, in order to facilitate the handling of onions for the following purposes:
(a) Shipments of Walla Walla Sweet Onions for relief or to charitable institutions;
(b) Shipments of Walla Walla Sweet Onions for livestock feed;
(c) Shipments of Walla Walla Sweet Onions for planting and for plants;
(d) Shipments of Walla Walla Sweet Onions as salad onions;
(e) Shipments of Walla Walla Sweet Onions for all processing uses including, pickling, peeling, dehydration, juicing, or other processing;
(f) Shipments of Walla Walla Sweet Onions for disposal;
(g) Shipments of Walla Walla Sweet Onions for seed;
(h) Shipments of Walla Walla Sweet Onions for packing or storing within the production area or outside the production area, but within specified locations in the States of Oregon and Washington; and
(i) Shipments of Walla Walla Sweet Onions for other purposes which may be specified.
§ 956.64 Minimum quantities.
During any period in which shipments of Walla Walla Sweet Onions are regulated pursuant to this part, each handler may handle up to, but not to exceed, 2,000 pounds of Walla Walla Sweet Onions per shipment without regard to the inspection requirements of this part: Provided, That such Walla Walla Sweet Onion shipments meet the minimum requirements in effect at the time of the shipment pursuant to § 956.62. The committee, with the approval of the Secretary, may recommend modifications to this section and the establishment of such other minimum quantities below which Walla Walla Sweet Onion shipments will be free from the requirements in, or pursuant to, §§ 956.42, 956.62, 956.63, and 956.70, or any combination thereof.
§ 956.65 Notification of regulations.
The Secretary shall notify the committee of each regulation issued and of each amendment, modification, suspension, or termination thereof. The committee shall give reasonable notice thereof to handlers.
§ 956.66 Safeguards.
(a) The committee, with the approval of the Secretary, may prescribe adequate safeguards to prevent Walla Walla Sweet Onions shipped, pursuant to §§ 956.63 and 956.64, from entering channels of trade for other than the purpose authorized therefor.
(b) The committee, with the approval of the Secretary, may also prescribe rules and regulations governing the issuance, and the contents, of Certificates of Privilege, if such certificates are prescribed as safeguards by the committee. Such safeguards may include requirements that:
(1) Handlers shall first file applications with the committee to ship such Walla Walla Sweet Onions.
(2) Handlers shall pay the pro rata share of expenses provided by § 956.42 in connection with such Walla Walla Sweet Onions.
(3) Handlers shall obtain Certificates of Privilege from the committee prior to effecting the particular onion shipment.
(c) The committee may rescind any Certificate of Privilege, or refuse to issue any Certificate of Privilege, to any handler if proof is obtained that Walla Walla Sweet Onions shipped by the handler for the purposes stated in the Certificate of Privilege were handled contrary to the provisions of this part.
(d) The Secretary shall have the right to modify, change, alter, or rescind any safeguards prescribed and any certificates issued by the committee pursuant to the provisions of this section.
(e) The committee shall make reports to the Secretary as requested, showing the number of applications for such certificates, the quantity of Walla Walla Sweet Onions covered by such applications, the number of such applications denied and certificates granted, the quantity of Walla Walla Sweet Onions handled under duly issued certificates, and such other information as may be requested.
Inspection
§ 956.70 Inspection and certification.
(a) During any period in which shipments of Walla Walla Sweet Onions are regulated pursuant to this subpart, no handler shall handle Walla Walla Sweet Onions unless such onions are inspected by an authorized representative of the Federal-State Inspection Service, or such other inspection service as the Secretary shall designate and are covered by a valid inspection certificate, except when relieved from such requirements pursuant to § 956.63 or § 956.64, or both. Upon recommendation of the committee, with approval of the Secretary, inspection providers and certification requirements may be modified to facilitate the handling of Walla Walla Sweet Onions.
(b) Regrading, resorting, or repacking any lot of Walla Walla Sweet Onions shall invalidate prior inspection certificates insofar as the requirements of this section are concerned. No handler shall ship Walla Walla Sweet Onions after they have been regraded, resorted, repacked, or in any other way further prepared for market, unless such onions are inspected by an authorized representative of the Federal-State Inspection Service, or such other inspection service as the Secretary shall designate: Provided, That such inspection requirements on regraded, resorted, or repacked Walla Walla Sweet Onions may be modified, suspended, or terminated under rules and regulations recommended by the committee, and approved by the Secretary.
(c) Upon recommendation of the committee, and approval of the Secretary, all Walla Walla Sweet Onions that are required to be inspected and certified in accordance with this section shall be identified by appropriate seals, stamps, tags, or other identification to be furnished by the committee and affixed to the containers by the handler under the direction and supervision of the Federal-State or Federal inspector, or the committee. Master containers may bear the identification instead of the individual containers within said master container.
(d) Insofar as the requirements of this section are concerned, the length of time for which an inspection certificate is valid may be established by the committee with the approval of the Secretary.
(e) When Walla Walla Sweet Onions are inspected in accordance with the requirements of this section, a copy of each inspection certificate issued shall be made available to the committee by the inspection service.
(f) The committee may enter into an agreement with an inspection service with respect to the costs of the inspection as provided by paragraph (a) of this section, and may collect from handlers their respective pro rata shares of such costs.
Reports
§ 956.80 Reports and recordkeeping.
Upon request of the committee, made with the approval of the Secretary, each handler shall furnish to the committee, in such manner and at such time as it may prescribe, such reports and other information as may be necessary for the committee to perform its duties under this part.
(a) Such reports may include, but are not necessarily limited to, the following:
(1) The acreage of Walla Walla Sweet Onions grown;
(2) The quantities of Walla Walla Sweet Onions received by such handler;
(3) The quantities of Walla Walla Sweet Onions disposed of by such handler;
(4) The disposition date of such Walla Walla Sweet Onions;
(5) The manner of disposition of such Walla Walla Sweet Onions; and
(6) The identification of the carrier transporting such Walla Walla Sweet Onions.
(b) All such reports shall be held under appropriate protective classification and custody by the committee, or duly appointed employees thereof, so that any information contained therein which may adversely affect the competitive position of any handler in relation to other handlers will not be disclosed. Compilations of general reports from data submitted by handlers is authorized, subject to the prohibition of disclosure of individual handler’s identity or operations.
(c) Each handler shall maintain for at least two succeeding years such records of the Walla Walla Sweet Onions received and disposed of by such handler as may be necessary to verify reports submitted to the committee pursuant to this section.
Miscellaneous Provisions
§ 956.85 Termination or suspension.
(a) The Secretary may at any time terminate the provisions of this subpart by giving at least one day’s notice by means of a press release or in any other manner which the Secretary may determine.
(b) The Secretary shall terminate or suspend the operations of any or all of the provisions of this subpart whenever it is found that such provisions do not tend to effectuate the declared policy of the act.
(c) The Secretary shall terminate the provisions of this subpart at the end of any fiscal period whenever it is found that such termination is favored by a majority of producers who, during a representative period, have been engaged in the production of Walla Walla Sweet Onions: Provided, That such majority has, during such representative period, produced for market more than fifty percent of the volume of such Walla Walla Sweet Onions produced for market, but such termination shall be announced at least 90 days before the end of the current fiscal period.
(d) Within six years of the effective date of this subpart the Secretary shall conduct a continuance referendum to ascertain whether continuance of this subpart is favored by producers. Subsequent referenda to ascertain continuance shall be conducted every six years thereafter. The Secretary may terminate the provisions of this part at the end of any fiscal period in which the Secretary has found that continuance of this subpart is not favored by a majority of producers who, during a representative period determined by the Secretary, have been engaged in the production for market of Walla Walla Sweet Onions in the production area. Such termination shall be announced on or before the end of the fiscal period.
(e) The provisions of this subpart shall, in any event, terminate whenever the provisions of the Act authorizing them cease to be in effect.
§ 956.87 Proceedings after termination.
(a) Upon the termination of the provisions of this subpart, the then functioning members of the committee shall continue as joint trustees, for the purpose of liquidating the affairs of the committee, of all funds and property then in the possession, or under control, of the committee, including claims for any funds unpaid or property not delivered at the time of such termination. Action by said trusteeship shall require the concurrence of a majority of the said trustees.
(b) The said trustees shall continue in such capacity until discharged by the Secretary; shall, from time to time, account for all receipts and disbursements and deliver all property on hand, together with all books and records of said committee and of the trustees, to such person as the Secretary may direct; and shall upon the request of the Secretary, execute such assignments or other instruments necessary or appropriate to vest in such person full title and right to all of the funds, property, and claims vested in said committee or the trustees pursuant to this subpart.
(c) Any person to whom funds, property, or claims have been transferred or delivered by the committee or its members pursuant to this section shall be subject to the same obligations imposed upon the members of the committee and upon the said trustees.
§ 956.88 Effect of termination or amendment.
Unless otherwise expressly provided by the Secretary, the termination of this subpart or of any regulation issued pursuant to this subpart, or the issuance of any amendments 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;
(b) Release or extinguish any violation of this subpart or of any regulations issued under this subpart; and
(c) Affect or impair any rights or remedies of the Secretary or of any other person with respect to any such violations.
§ 956.89 Compliance.
No handler shall handle Walla Walla Sweet Onions except in conformity to the provisions of this part.
§ 956.90 Right of the Secretary.
The members of the committee, including successors and alternates, and any agent or employee appointed or employed by the committee shall be subject to removal or suspension by the Secretary at any time. Each and every order, regulation, decision, determination, or other act of the committee shall be subject to the continuing right of the Secretary to disapprove of the same at any time. Upon such disapproval, the disapproved action of the committee shall be deemed null and void except as to acts done in reliance thereon or in compliance therewith prior to such disapproval by the Secretary.
§ 956.91 Duration of immunities.
The benefits, privileges, and immunities conferred upon any person by virtue of this subpart shall cease upon the termination of this subpart, except with respect to acts done under and during the existence of this subpart.
§ 956.92 Agents.
The Secretary may, by designation in writing, name any person, including any officer or employee of the Government, or name any agency in the United States Department of Agriculture, to act as the Secretary’s agent or representative in connection with any of the provisions of this part.
§ 956.93 Derogation.
Nothing contained in this part is, or shall be construed to be, in derogation or in modification of the rights of the Secretary or of the United States to exercise any powers granted by the Act or otherwise, or, in accordance with such powers, to act in the premises whenever such action is deemed advisable.
§ 956.94 Personal liability.
No member or alternate of the committee or any employee or agent thereof, shall be held personally responsible, either individually or jointly with others, in any way whatsoever, to any handler or to any person for errors in judgment, mistakes, or other acts, either of commission or omission, as such member, alternate, employee, or agent, except for acts of dishonesty, willful misconduct, or gross negligence.
§ 956.95 Separability.
If any provision of this subpart is declared invalid, or the applicability thereof to any person, circumstance, or thing is held invalid, the validity of the remainder of this subpart, or the applicability thereof to any other person, circumstance, or thing shall not be affected thereby.
§ 956.96 Amendments.
Amendments to this subpart may be proposed, from time to time, by the committee or by the Secretary.
Subpart B – Administrative Requirements
§ 956.113 Fiscal period.
Pursuant to § 956.13, fiscal period shall mean the period beginning January 1 and ending December 31 of each year.
§ 956.142 Interest charges.
For Walla Walla Sweet Onions handled prior to September 1, the Committee shall impose an interest charge on any handler who fails to pay his or her annual assessments within thirty (30) days of the due date of September 30. For Walla Walla Sweet Onions handled during the period September 1 through May 31, the Committee shall impose an interest charge on any handler who fails to pay his or her assessments within thirty (30) days of the last day of the month in which such shipments are made. The interest charge shall be 1
§ 956.162 Container markings.
Effective April 15, 1997, no handler shall ship any container of Walla Walla Sweet Onions except in accordance with the following terms and provisions:
(a) Each container of Walla Walla Sweet Onions shall be conspicuously marked with the “Genuine Walla Walla Sweet Onion” logo. The marking may be in the form of a decal or a stamped imprint of any color and size: Provided, That the decal or stamped imprint must be placed in plain sight and easy to read.
(b) Walla Walla Sweet Onions may be handled not subject to the marking requirements of this section when handlers ship such onions pursuant to § 956.163, or ship such onions in field packed bulk bins containing more than 500 pounds net weight for sale to roadside stands and farmers’ market operators for repacking and direct consumer sale: Provided, That subject to Committee verification of handler container inventories, handlers may use their existing inventories of unmarked containers until April 15, 1999.
§ 956.163 Handling for specified purposes.
(a) Assessment and container marking requirements specified in this part shall not be applicable to shipments of onions for any of the following purposes:
(1) Shipments of Walla Walla Sweet Onions for relief or to charitable institutions: Provided, That such shipments must be donated and not sold in order for this exemption to apply;
(2) Shipments of Walla Walla Sweet Onions for livestock feed;
(3) Shipments of Walla Walla Sweet Onions for planting and for plants;
(4) Shipments of Walla Walla Sweet Onions as salad onions;
(5) Shipments of Walla Walla Sweet Onions for all processing uses including, pickling, peeling, dehydration, juicing, or other processing;
(6) Shipments of Walla Walla Sweet Onions for disposal;
(7) Shipments of Walla Walla Sweet Onions for seed.
(b) Market preparation outside the production area. (1) Persons desiring to ship or receive Walla Walla sweet onions for grading, packing, or storing outside the production area, but within Oregon and Washington, shall apply to the Committee on a “Shippers/Receivers Application for Certificate of Privilege” form. Such application shall contain the following:
(i) Company name, contact name, address, contact telephone numbers, date, and signature of the applicant;
(ii) Whether the applicant is the shipper or receiver;
(iii) Agreement to provide a Special Purpose Shipment Report to the Committee as required after shipping or receiving Walla Walla sweet onions for grading, packing, or storing out of the production area under a Certificate of Privilege.
(iv) Certification by the applicant that all provisions of the rules and regulations of this part will be adhered to including, but not limited to, any grade, size, quality, maturity, pack, or container requirements that may be currently in effect;
(v) Certification by the applicant, if a receiver under the Certificate of Privilege, that they will forward to the Committee office all assessments due on Walla Walla sweet onions handled.
(vi) Such other information as the Committee may require.
(2) Each approved applicant shall furnish to the Committee a Special Purpose Shipment Report form no later than thirty (30) days after the final shipment of sweet onions are shipped or received pursuant to the Certificate of Privilege. That report shall contain the following information:
(i) Company name, contact name, address, contact telephone numbers, signature, and date;
(ii) Names of shippers or receivers who have either shipped Walla Walla sweet onions out of the production area or received the same;
(iii) The total quantity of Walla Walla sweet onions shipped or received under this section during the period covered;
(iv) Certification by the receiver that all assessments due on Walla Walla sweet onions handled under the respective Certificate of Privilege are being forwarded to the Committee; and
(v) Such other information as the Committee may require.
(3) The Committee may cancel any Certificate of Privilege if proof satisfactory to the Committee is obtained that any Walla Walla sweet onions shipped or received were done so contrary to the provisions of this section. Upon cancellation of such Certificate of Privilege the shipper or receiver may appeal to the Committee for reconsideration.
§ 956.180 Reports.
(a) Each handler shall furnish to the Committee, no later than May 31 each year, a preseason Walla Walla Sweet Onion Handler Registration Form. Such form shall include:
(1) Company name, contact name, mailing and physical addresses, contact telephone numbers, and signature of handler;
(2) Season covered by registration;
(3) Brand names or labels to be used; and
(4) Estimated number of acres of fall planted and spring planted Walla Walla Sweet Onions to be packed during the season.
(b) Each handler shall furnish to the Committee a Handler’s Statement of Walla Walla Sweet Onion Shipments containing the information in paragraphs (a)(1), (a)(2), and (a)(3) of this section, except that gift box and roadside stand sales shall be exempt from paragraph (a)(2) of this section: Provided, That for Walla Walla Sweet Onions handled prior to September 1, such report shall be furnished to the Committee by September 30, and that for Walla Walla Sweet Onions handled during the period September 1 through May 31, such report shall be furnished to the Committee no later than thirty (30) days after the end of the month in which such onions were handled:
(1) The number of 50 lb. equivalents of Walla Walla Sweet Onions shipped by each handler during each week of the shipping season and the total for the season;
(2) The geographical regions as defined by the Committee to which each shipment is made;
(3) The name, address, and signature of each handler; and
(4) The name of each producer and the number of 50 lb. equivalents of Walla Walla Sweet Onions that were handled on behalf of or acquired from that producer.
§ 956.202 Assessment rate.
On and after January 1, 2020, an assessment rate of $0.15 per 50-pound bag or equivalent is established for Walla Walla sweet onions.
PART 958 – ONIONS GROWN IN CERTAIN DESIGNATED COUNTIES IN IDAHO, AND MALHEUR COUNTY, OREGON
Subpart A – Order Regulating Handling
Definitions
§ 958.1 Secretary.
Secretary means the Secretary of Agriculture of the United States or any officer or employee of the United States Department of Agriculture to whom authority has heretofore been delegated, or to whom authority may hereafter be delegated, to act in his stead.
§ 958.2 Act.
Act means Public Act No. 10, 73d Congress, as amended and as reenacted and amended by the Agricultural Marketing Agreement Act of 1937, as amended (48 Stat. 31, as amended; 7 U.S.C. 601 et seq.; 68 Stat. 906, 1047).
§ 958.3 Person.
Person means an individual, partnership, corporation, association, or any other business unit.
§ 958.4 Production area.
Production area means all territory included within the boundaries of the County of Malheur in Oregon, and all counties south and southeast of the southern boundary of Idaho County in the State of Idaho.
§ 958.5 Onions.
Onions means all varieties of Allium cepa, commonly known as onions, grown, or which may be grown in the production area.
§ 958.6 Handler.
Handler is synonymous with shipper and means any person (except a common or contract carrier of onions owned by another person) who handles onions.
§ 958.7 Handle.
Handle is synonymous with ship and means to sell or transport onions, or cause onions to be sold or transported, within the production area or between the production area and any point outside thereof. Except as otherwise provided in §§ 958.56 and 958.65, this definition of “handle” shall not be applicable to onions that are transported within the production area for grading or storing therein, or to onions that are transported or sold to commercial dehydrators for processing by such dehydrators into dehydrated onion products.
§ 958.8 Grading.
Grading is synonymous with prepare for market and means the sorting or separation of onions into grades and sizes for market purposes.
§ 958.9 Grade and size.
Grade means any of the officially established grades of onions, and size means any of the officially established sizes of onions, as set forth in:
(a) The United States Standards for grades of onions (other than Bermuda-Granex and Creole Types) (§§ 51.2830 to 51.2850 of this title), or amendments thereto, or modifications thereof, or variations based thereon; and
(b) Any other United States Standards, or State of Idaho or Oregon Standards for onions, or amendments thereto, or modifications thereof, or variations based thereon.
§ 958.10 Producer.
Producer means any person engaged in the production of onions for market.
§ 958.11 Committee.
Committee means the Idaho-Eastern Oregon Onion Committee established pursuant to § 958.20.
§ 958.12 Fiscal period.
Fiscal period means the period beginning and ending on the dates approved by the Secretary pursuant to recommendations by the committee.
§ 958.13 Variety or varieties.
Variety or varieties means and includes all classifications of onions according to those definitive characteristics now or hereafter recognized by the United States Department of Agriculture.
§ 958.14 Export.
Export means shipment of onions beyond the boundaries of continental United States.
§ 958.15 District.
District means each of the geographical divisions of the production area initially established or as reestablished pursuant to § 958.27.
§ 958.16 Pack.
Pack means a quantity of onions in any type of container and which falls within specific weight limits or within specific grade or size limits, or both, as may be recommended by the committee and approved by the Secretary.
§ 958.17 Container.
Container means a sack, box, bag, crate, hamper, basket, carton, package, or any other type of receptacle used in the packaging, transportation, sale, shipment or other handling of onions.
Administrative Committee
§ 958.20 Establishment and membership.
(a) The Idaho-Eastern Oregon Onion Committee, consisting of six producer members, four handler members, and one public member is hereby established. Each shall have an alternate who shall have the same qualifications as the member.
(b) An alternate member of the committee shall act in the place and stead of the member for whom he is an alternate, during such member’s absence or inability to act, and shall perform other duties as assigned. In the event of the death, removal, resignation or disqualification of a member, his alternate shall act for him until a successor for such member is selected and has qualified.
§ 958.21 Procedure.
(a) Seven members of the committee shall be necessary to constitute a quorum and seven concurring votes shall be required to pass any motion or approve any committee action.
(b) The committee may provide for voting by telephone, telegraph, or other means of communication and any such vote shall be confirmed promptly in writing: Provided, That if an assembled meeting is held, all votes shall be cast in person.
§ 958.22 Selection.
The Secretary shall select committee members and alternates from the nominee lists submitted pursuant to this part or from among other eligible persons.
(a) Each person selected as a committee member or alternate to represent producers shall be an individual who is a producer, or an officer or employee of a producer, in the district for which selected.
(b) Each person selected as a committee member or alternate to represent handlers shall be an individual who is a handler, or an officer or employee of a handler in the portion of the production area for which selected.
(c) The Secretary shall select one producer member of the committee, and alternate, from each of the districts established, or reestablished, pursuant to § 958.27. The Secretary shall also select one handler member of the committee, and his alternate, from the Idaho portion of the production area and one member and his alternate from Malheur County, Oregon, and two handler members, and their respective alternates, from the production area-at-large.
(d) Each person selected by the Secretary as a committee member or alternate shall qualify by filing a written acceptance promptly with the Secretary.
(e) The public member shall be a resident of the production area and have no direct financial interest in the commercial production, financing, buying, packing or marketing of onions except as a consumer nor be a director, officer or employee of any firm so engaged.
§ 958.23 Term of office.
(a) The term of office of committee members and alternates shall be for two years beginning on the first day of June and continuing through May 31. The terms of office of members and alternates shall be so determined that one-half of the total committee membership shall terminate each May 31.
(b) Committee members and alternates shall serve during the term of office for which they are selected and have qualified, or during that portion thereof beginning on the date on which they qualify during the current term of office and continuing until the end thereof, and until their successors are selected and have qualified.
§ 958.24 Powers.
The committee shall have the following powers:
(a) To administer the provisions of this part in accordance with its terms;
(b) To make rules and regulations to effectuate the terms and provisions of this part;
(c) To receive, investigate, and report to the Secretary complaints of violations of the provisions of this part; and
(d) To recommend to the Secretary amendments to this part.
§ 958.25 Duties.
It shall be the duty of the committee:
(a) At the beginning of each fiscal period, or as soon thereafter as practicable, to meet and organize, to select a chairman and such other officers as may be necessary, to select subcommittees of committee members, and to adopt such rules and regulations for the conduct of its business as it may deem advisable;
(b) To act as intermediary between the Secretary and any producer or handler;
(c) To furnish to the Secretary such available information as he may request;
(d) To appoint such employees, agents, and representatives as it may deem necessary and to determine the salaries and define the duties of each such person;
(e) To investigate from time to time and to assemble data on the growing, harvesting, shipping and marketing conditions with respect to onions and to engage in such research and service activity which relate to the production, handling or marketing of onions as may be approved by the Secretary;
(f) To keep minutes, books, and records which clearly reflect all of the acts and transactions of the committee and such minutes, books, and records shall be subject to examination at any time by the Secretary or his authorized agent or representative;
(g) To make available to producers and handlers the committee voting record on recommended regulations and on other matters of policy;
(h) Prior to each fiscal period, to submit to the Secretary a budget of its proposed expenses for such fiscal period, together with a report thereon;
(i) To cause the books of the committee to be audited by a competent accountant at least once each fiscal period, and at such other time as the committee may deem necessary or as the Secretary may request; and the report of such audit shall show the receipt and expenditure of funds collected pursuant to this part; a copy of each such report shall be furnished to the Secretary and a copy of each such report shall be made available at the principal office of the committee for inspection by producers and handlers; and
(j) To consult, cooperate, and exchange information, with other onion marketing committees and other individuals or agencies in connection with all proper committee activities and objectives under this subpart; and
(k) To recommend nominees for the public member and alternate.
§ 958.26 Expenses.
Committee members and alternates when acting on committee business shall be reimbursed for reasonable expenses necessarily incurred by them in the performance of their duties and in the exercise of their powers under this part. However, at its discretion the committee may request the attendance of alternates at any or all meetings notwithstanding the expected or actual presence of the respective members.
§ 958.27 Districts.
(a) For the purpose of selecting committee members, the following districts of the production area are hereby initially established:
(b) The Secretary, upon the recommendation of the committee, may reestablish districts within the production area and may reapportion committee membership among the various districts: Provided, That in recommending any such changes in districts or representation, the committee shall give consideration to: (1) The relative importance of new producing sections; (2) changes in the relative position of existing districts with respect to onion production; (3) the geographic location of areas of production as they would affect the efficiency of administering this part; (4) other relevant factors: Provided, further, That there shall be no change in the total number of committee members or in the total number of districts.
§ 958.28 Nominations.
Nominations from which the Secretary may select the members of the Idaho-Eastern Oregon Onion Committee and their respective alternates may be made in the following manner:
(a) The committee shall hold or cause to be held prior to April 1 of each year, after the effective date of this subpart, one or more meetings of producers and of handlers in each of the districts, or portions of the production area, in which the then current terms of office will expire the following May 31;
(b) In arranging for such meetings the committee may, if it deems desirable, cooperate with existing organizations and agencies and may combine its meetings with others;
(c) Nominations for committee members and alternate members shall be supplied to the Secretary, in such manner and form as he may prescribe, not later than 30 days prior to the end of each fiscal period;
(d) Only producers may participate in designating nominees for producer committee members and their alternates and only handlers may participate in designating nominees for handler committee members and their alternates;
(e) Each person who is both a handler and a producer may vote either as a handler or as a producer and may select the group in which he will vote;
(f) Regardless of the number of districts in which a person produces or handles onions, each such person is entitled to cast only one vote on behalf of himself, his partners, agents, subsidiaries, affiliates and representatives, in designating nominees for committee members and alternates. In the event a person is a producer engaged in producing onions in more than one district, such person shall select the district within which he may participate as aforesaid in designating nominees. Similarly, a person who is a handler both in Malheur County, Oregon, and in the Idaho portion of the production area, may select either Malheur County or the Idaho portion of the production area in which to cast his vote for the applicable committee handler member and alternate. Each such handler shall also be entitled to cast his vote for the committee member and alternate to represent the production area-at-large. An eligible voter’s privilege of casting only one vote, as aforesaid, shall be construed to permit such voter to cast one vote for each member and alternate position to be filled in the respective district or portion of the production area, as the case may be, in which he elects to vote; and
(g) The producer and handler members of the committee shall nominate the public member and alternate. The committee shall prescribe such additional qualifications, administrative rules and procedures for selection and voting for each candidate as it deems necessary and as the Secretary approves.
§ 958.29 Failure to nominate.
If nominations are not made within the time and in the manner specified by the Secretary pursuant to § 958.28, the Secretary may, without regard to nominations, select the committee members and alternates on the basis of the representation provided for in this subpart.
§ 958.30 Vacancies.
To fill any vacancy occasioned by the failure of any person, selected as a committee member or alternate, to qualify, or in the event of the death, removal, resignation, or disqualification of any qualified member or alternate, a successor for his unexpired term may be selected by the Secretary from nominations made in the manner specified in § 958.28, or the Secretary may select such committee member or alternate from previously unselected nominees on the current nominee list from the district or portion of the production area, as the case may be, that is involved, or from other eligible persons. If the names of nominees to fill any such vacancy are not made available to the Secretary within 30 days after such vacancy occurs, the Secretary may fill such vacancy without regard to nominations, which selection shall be made on the basis of the representation provided for in this subpart.
Expenses and Assessments
§ 958.40 Expenses.
The committee is authorized to incur such expenses as the Secretary may find are reasonable and likely to be incurred by it during each fiscal period for its maintenance and functioning, and for such purposes as the Secretary, pursuant to this subpart, determines to be appropriate. Handlers shall share expenses upon the basis of a fiscal period. Each handler’s share of such expenses shall be proportionate to the ratio between the total quantity of such handler’s onion shipments inspected pursuant to this part that are handled by him as the first handler thereof during a fiscal period, and the total quantity of such onions handled by all handlers as first handlers thereof during the same period.
§ 958.41 Budget.
Prior to each fiscal period, and as may be necessary thereafter the committee shall prepare a budget of estimated income and expenditures necessary for the administration of this part. The committee shall recommend to the Secretary a rate of assessment calculated to provide adequate funds to defray its proposed expenditures. The committee shall present such budget promptly to the Secretary with an accompanying report thereon showing the basis for its calculations and recommended rate.
§ 958.42 Assessments.
(a) The funds to cover the committee’s expenses pursuant to § 958.40 shall be acquired by the levying of assessments upon handlers as provided in this subpart. Each handler who handles onions as the first handler thereof which are inspected pursuant to this part shall pay assessments to the committee upon demand, which assessments shall be in payment of such handler’s pro rata share of such expenses.
(b) Assessments shall be levied upon handlers at rates established by the Secretary. Such rates may be established upon the basis of the committee’s recommendations or other available information.
(c) At any time during or subsequent to a given fiscal period, the committee may recommend the approval of an amended budget and an increase in the rate of assessment. Upon the basis of such recommendation, or other available information, the Secretary may approve an amended budget and increase the rate of assessment. Such increase shall be applicable to all onion shipments inspected pursuant to this part during such fiscal period.
§ 958.43 Accounting.
(a) All funds received by the committee pursuant to the provisions of this part shall be used solely for the purposes specified in this part.
(b) The Secretary may at any time require the committee, its members and alternates, employees, agents, and all other persons to account for all receipts and disbursements, funds, property, or records for which they are responsible. Whenever any person ceases to be a member or alternate of the committee, he shall account for all receipts, disbursements, funds, and property (including, but not being limited to, books and other records) pertaining to the committee’s activities for which he is responsible, and deliver all such property and funds in his hands to such successor, agency, or person as may be designated by the Secretary, and shall execute such assignments and other instruments as may be necessary or appropriate to vest in each such successor, agency, or person as may be designated by the Secretary the right to all of such property and funds and all claims vested in such person.
(c) The committee may make recommendations to the Secretary for one or more of the members thereof, or any other person, to act as a trustee for holding records, funds, and any other committee property during periods of suspension of this part, or during any periods when regulations are not in effect; and, if the Secretary determines such action appropriate, he may direct that such person or persons shall so act as trustee or trustees.
§ 958.44 Reserve fund.
At the end of each fiscal period, funds in excess of the committee’s expenses may be placed in an operating reserve not to exceed approximately 1 fiscal year’s operational expenses or such lower limits as the committee, with the approval of the Secretary, may establish. Also, the committee, with the approval of the Secretary, may include in its budget an item for such reserve. Funds in the reserve shall be available for use by the committee for expenses authorized pursuant to § 958.40. Funds in excess of those placed in the operating reserve shall be refunded to handlers. Each handler’s share of such excess shall be the amount he paid in excess of his pro rata share of the expenses of the committee.
§ 958.45 Accounting of funds upon termination of the order.
Any funds collected as assessments pursuant to this subpart and remaining unexpended in the possession of the committee after termination of this part shall be distributed in such manner as the Secretary may direct: Provided, That to the extent practical, such funds shall be returned pro rata to the persons from whom such funds were collected.
§ 958.46 Contributions.
The committee may accept voluntary contributions but these shall only be used to pay expenses incurred pursuant to § 958.47. Furthermore, such contributions shall be free from any encumbrances by the donor and the committee shall retain complete control of their use.
Research and Development
§ 958.47 Research and development.
(a) The committee with the approval of the Secretary, may establish or provide for the establishment of projects involving production research, marketing research and development projects, and marketing promotion including paid advertising, designed to assist, improve, or promote the marketing, distribution, consumption or efficient production of onions. Any such project for the promotion and advertising of onions may utilize an identifying mark which shall be made available for use by all handlers in accordance with such terms and conditions as the committee, with the approval of the Secretary, may prescribe. The expenses of such projects shall be paid from funds collected pursuant to § 958.42 or § 958.46.
(b) In recommending projects pursuant to this section the committee shall give consideration to the following:
(1) The expected supply of onions in relation to market requirements;
(2) The supply situation among competing areas and commodities;
(3) The anticipated benefits from such projects in relation to their costs;
(4) The need for marketing research with respect to any market development activity; and
(5) The need for a coordinated effort with USDA’s Food Marketing Alert or other similar programs.
(c) If the committee should conclude that a program of research or development should be undertaken, or continued, in any crop year, it shall submit the following for the approval of the Secretary:
(1) Its recommendations as to the funds to be obtained pursuant to § 958.42 or § 958.46;
(2) Its recommendation as to any research projects; and
(3) Its recommendation as to promotion activity and paid advertising.
(d) Upon conclusion of each activity, but at least annually, the committee shall summarize and report the results of such activity to its members and to the Secretary.
Regulation
§ 958.50 Marketing policy.
(a) Preparation. Prior to each marketing season the committee shall consider and prepare a proposed policy for the marketing of onions. In developing its marketing policy the committee shall investigate relevant supply and demand conditions for onions. In such investigations the committee shall give appropriate consideration to the following:
(1) Market prices for onions, including prices by variety, grade, size, and quality, and by different packs;
(2) Supply of onions by grade, size, quality, and variety in the production area and in other onion producing sections;
(3) The trend and level of consumer income;
(4) Establishing and maintaining orderly marketing conditions for onions;
(5) Orderly marketing of onions as will be in the public interest; and
(6) Other relevant factors.
(b) Reports. (1) The committee shall submit a report to the Secretary setting forth the aforesaid marketing policy; and the committee shall notify producers and handlers of the contents of such report.
(2) In the event it becomes advisable to shift from such marketing policy because of changed supply and demand conditions, the committee shall prepare an amended or revised marketing policy in accordance with the manner previously outlined. The committee shall submit a report thereon to the Secretary and notify producers and handlers of the contents of such report on the revised or amended marketing policy.
§ 958.51 Recommendations for regulations.
The committee shall recommend regulations to the Secretary whenever it finds that such regulations as provided in § 958.52 will tend to effectuate the declared policy of the act. The committee also may recommend modification, suspension, or termination of any regulation, or amendments thereto, in order to facilitate the handling of onions for the purposes authorized in § 958.53. The committee may also recommend amendment, modification, termination, or suspension of any regulation issued under this part.
§ 958.52 Issuance of regulations.
(a) Except as otherwise provided in this part, the Secretary shall limit the shipment of onions by any one or more of the methods hereinafter set forth whenever he finds from the recommendations and information submitted by the committee, or from other available information, that such regulation would tend to effectuate the declared policy of the act. Such limitation may:
(1) Regulate in any or all portions of the production area, the handling of particular grades, sizes, or qualities of any or all varieties of onions, or combinations thereof, during any period or periods;
(2) Regulate the handling of particular grades, sizes, or qualities, of onions differently, for different varieties, for different portions of the production area, for different packs, or for any combination of the foregoing, during any period or periods;
(3) Provide a method, through rules and regulations issued pursuant to this part, for fixing the size, capacity, weight, dimensions, or pack of the container, or containers, which may be used in the packaging or handling of onions, including appropriate container markings to identify the contents thereof;
(4) Regulate the handling of onions by establishing, in terms of grades, sizes, or both, minimum standards of quality and maturity; or
(5) Limit the shipment of the total quantity of onions by prohibiting the handling thereof during a specified period or periods. No regulation issued pursuant to this subparagraph shall be effective for more than 96 consecutive hours: Provided, That not less than 72 consecutive hours shall elapse between the termination of any such period of prohibition and the beginning of the next such period.
(6) Regulate the handling of onions by establishing, in terms of total weight or total number of layers of containers of onions, the maximum load in railcars, taking into account types of containers and sizes of railcars used, potential resulting damage, and other relevant factors.
(b) In the event the handling of onions is regulated pursuant to paragraph (a)(5) of this section, no handler shall handle any onions which were prepared for market or loaded during the effective period of such regulation. However, during any such period, no such regulation shall be deemed to limit the right of any person to sell or contract to sell onions for future shipment or delivery.
(c) The Secretary may amend any regulation issued under this part whenever he finds that such amendment would tend to effectuate the declared policy of the act. The Secretary may also terminate or suspend any regulation or amendment thereof whenever he finds that such regulation or amendment obstructs or no longer tends to effectuate the declared policy of the act.
§ 958.53 Handling for specified purposes.
Upon the basis of recommendations and information submitted by the committee, or other available information, the Secretary shall issue special regulations, or modify, suspend, or terminate requirements in effect pursuant to §§ 958.42, 958.52, 958.60, or any combination thereof, in order to facilitate the handling of onions for the following purposes whenever he finds that to do so will tend to effectuate the declared policy of the act:
(a) Shipments of onions for export;
(b) Shipments of onions for relief or to charitable institutions;
(c) Shipments of onions for livestock feed;
(d) Shipments of onions for planting; and
(e) Shipments of onions for other purposes which may be specified.
§ 958.54 Minimum quantities.
The committee, with the approval of the Secretary, may establish minimum quantities below which onion shipments will be free from the requirements in, or pursuant to, §§ 958.42, 958.52, 958.53, 958.60, or any combination thereof.
§ 958.55 Notification of regulations.
The Secretary shall notify the committee of each regulation issued, and of each amendment, modification, suspension, or termination thereof. The committee shall give reasonable notice thereof to handlers.
§ 958.56 Safeguards.
(a) The committee, with the approval of the Secretary, may prescribe adequate safeguards to prevent onions shipped,
(1) Pursuant to § 958.53 or § 958.54; or
(2) To commercial dehydrators for processing by such dehydrators into dehydrated onion products,
(b) The committee, with the approval of the Secretary, may also prescribe rules and regulations governing the issuance, and the contents, of Certificates of Privilege if such certificates are prescribed as safeguards by the committee. Such safeguards may include requirements that:
(1) Handlers shall first file applications with the committee to ship such onions;
(2) Handlers shall obtain inspection provided by § 958.60, or pay the pro rata share of expenses provided by § 958.42, or both, in connection with such onions; and
(3) Handlers shall obtain Certificates of Privilege from the committee prior to effecting the particular onion shipment.
(c) The committee may rescind any Certificate of Privilege, or refuse to issue any Certificate of Privilege to any handler if proof is obtained that onions shipped by him for the purposes stated in the Certificate of Privilege were handled contrary to the provisions of this part.
(d) The Secretary shall have the right to modify, change, alter, or rescind any safeguards prescribed and any certificates issued by the committee pursuant to the provisions of this section.
(e) The committee shall make reports to the Secretary, as requested, showing the number of applications for such certificates, the quantity of onions covered by such applications, the number of such applications denied and certificates granted, the quantity of onions handled under duly issued certificates, and such other information as may be requested.
Inspection
§ 958.60 Inspection and certification.
(a) During any period in which shipments of onions are regulated pursuant to this subpart, no handler shall handle onions unless such onions are inspected by an authorized representative of the Federal-State Inspection Service, or such other inspection service as the Secretary shall designate and are covered by a valid inspection certificate, except when relieved from such requirements pursuant to § 958.53, § 958.54, or both.
(b) Regarding, resorting, or repacking any lot of onions shall invalidate prior inspection certificates insofar as the requirements of this section are concerned. No handler shall ship onions after they have been regarded, resorted, repacked or in any other way further prepared for market, unless such onions are inspected by an authorized representative of the Federal-State Inspection Service, or such other inspection service as the Secretary shall designate.
(c) Upon recommendation of the committee, and approval of the Secretary, all onions that are required to be inspected and certified in accordance with this section, shall be identified by appropriate seals, stamps, tags, or other identification to be furnished by the committee and affixed to the containers by the handler under the direction and supervision of the Federal-State, or Federal inspector, or the committee. Master containers may bear the identification instead of the individual containers within said master container.
(d) Insofar as the requirements of this section are concerned, the length of time for which an inspection certificate is valid may be established by the committee with the approval of the Secretary.
(e) When onions are inspected in accordance with the requirements of this section, a copy of each inspection certificate issued shall be made available to the committee by the inspection service.
Reports
§ 958.65 Reports.
Upon request of the committee, made with the approval of the Secretary, each handler shall furnish to the committee, in such manner and at such time as it may prescribe, such reports and other information as may be necessary for the committee to perform its duties under this part.
(a) Such reports may include, but are not necessarily limited to, the following:
(1) The quantities of onions received by a handler;
(2) The quantities disposed of by him, segregated as to the respective quantities subject to regulation and not subject to regulation;
(3) The date of each such disposition and the identification of the carrier transporting such onions; and
(4) identification of the inspection certificates relating to the onions which were handled pursuant to §§ 958.53 and 958.54.
(b) All such reports shall be held under appropriate protective classification and custody by the committee, or duly appointed employees thereof, so that the information contained therein which may adversely affect the competitive position of any handler in relation to other handlers will not be disclosed. Compilations of general reports from data submitted by handlers is authorized, subject to the prohibition of disclosure of individual handler’s identities or operations.
(c) Each handler shall maintain for at least two succeeding years such records of the onions received, and of onions disposed of, by such handler as may be necessary to verify the reports he submits to the committee pursuant to this section.
Effective Time and Termination
§ 958.70 Effective time.
The provisions of this subpart, or any amendment thereto, shall become effective at such time as the Secretary may declare and shall continue in force until terminated in one of the ways specified in this subpart.
§ 958.71 Termination.
(a) The Secretary may at any time terminate the provisions of this subpart by giving at least one day’s notice by means of a press release or in any other manner which he may determine.
(b) The Secretary may terminate or suspend the operations of any or all of the provisions of this subpart whenever he finds that such provisions do not tend to effectuate the declared policy of the act.
(c) The Secretary shall terminate the provisions of this subpart at the end of any fiscal period whenever he finds that such termination is favored by a majority of producers who, during a representative period, have been engaged in the production for market of onions: Provided, That such majority has, during such representative period, produced for market more than fifty percent of the volume of such onions produced for market, but such termination shall be effective only if announced on or before May 31 of the then current fiscal period.
(d) The provisions of this subpart shall, in any event, terminate whenever the provisions of the act authorizing them cease to be in effect.
§ 958.72 Proceeding after termination.
(a) Upon the termination of the provisions of this subpart, the then functioning members of the committee shall continue as joint trustees, for the purpose of liquidating the affairs of the committee, of all the funds and property then in the possession, or under control, of the committee, including claims for any funds unpaid and property not delivered at the time of such termination. Action by said trusteeship shall require the concurrence of a majority of the said trustees.
(b) The said trustees shall continue in such capacity until discharged by the Secretary; shall, from time to time, account for all receipts and disbursements and deliver all property on hand, together with all books and records of the committee and of the trustees, to such person as the Secretary may direct; and shall, upon request of the Secretary, execute such assignments or other instruments necessary or appropriate to vest in such person full title and right to all of the funds, property, and claims vested in the committee or the trustees pursuant to this subpart.
(c) Any person to whom funds, property, or claims have been transferred or delivered by the committee or its members pursuant to this section, shall be subject to the same obligations imposed upon the members of the committee and upon the said trustees.
§ 958.73 Effect of termination or amendment.
Unless otherwise expressly provided by the Secretary, the termination of this subpart or of any regulation issued pursuant to this subpart, 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 of any regulation issued under this subpart; (b) release or extinguish any violation of this subpart or of any regulations issued under this subpart; or (c) affect or impair any rights or remedies of the Secretary or of any other person with respect to any such violations.
Miscellaneous Provisions
§ 958.81 Compliance.
No handler shall handle onions the handling of which has been prohibited or otherwise limited by the Secretary in accordance with provisions of this part; and no handler shall handle onions except in conformity to the provisions of this part.
§ 958.82 Right of the Secretary.
The members of the committee (including successors and alternates) and any agent or employee appointed or employed by the committee shall be subject to removal or suspension by the Secretary at any time. Each and every order, regulation, decision, determination, or other act of the committee shall be subject to the continuing right of the Secretary to disapprove of the same at any time. Upon such disapproval, the disapproved action of the said committee shall be deemed null and void except as to acts done in reliance thereon or in compliance therewith prior to such disapproval by the Secretary.
§ 958.83 Duration of immunities.
The benefits, privileges, and immunities conferred upon any person by virtue of this subpart shall cease upon the termination of this subpart, except with respect to acts done under and during the existence of this subpart.
§ 958.84 Agents.
The Secretary may, by designation in writing, name any person, including any officer or employee of the Government, or name any agency in the United States Department of Agriculture, to act as his agent or representative in connection with any of the provisions of this part.
§ 958.85 Derogation.
Nothing contained in this subpart is, or shall be construed to be, in derogation or in modification of the rights of the Secretary or of the United States to exercise any powers granted by the act or otherwise, or, in accordance with such powers, to act in the premises whenever such action is deemed advisable.
§ 958.86 Personal liability.
No member or alternate of the committee nor any employee or agent thereof, shall be held personally responsible, either individually or jointly with others, in any way whatsoever, to any handler or to any person for errors in judgment, mistakes, or other acts, either of commission or omission, as such member, alternate, employee, or agent, except for acts of dishonesty, wilful misconduct, or gross negligence.
§ 958.87 Separability.
If any provision of this subpart is declared invalid, or the applicability thereof to any person, circumstance, or thing is held invalid, the validity of the remainder of this subpart, or the applicability thereof to any other person, circumstance, or thing, shall not be affected thereby.
§ 958.88 Amendments.
Amendments to this subpart may be proposed, from time to time, by the committee or by the Secretary.
§ 958.89 Counterparts.
This agreement may be executed in multiple counterparts and when one counterpart is signed by the Secretary, all such counterparts shall constitute, when taken together, one and the same instrument as if all signatures were contained in one original.
§ 958.90 Additional parties.
After the effective date hereof, any handler may become a party to this agreement if a counterpart is executed by him and delivered to the Secretary. This agreement shall take effect as to such new contracting party at the time such counterpart is delivered to the Secretary, and the benefits, privileges, and immunities conferred by this agreement shall then be effective as to such new contracting party.
§ 958.91 Order with marketing agreement.
Each signatory handler requests the Secretary to issue, pursuant to the act, an order providing for regulating the handling of onions in the same manner as is provided for in this agreement.
The undersigned hereby authorizes the Director, or Acting Director, Fruit and Vegetable Division, Agricultural Marketing Service, United States Department of Agriculture, to correct any typographical errors which may have been made in this marketing agreement.
In witness whereof, the contracting parties, acting under the provisions of the act, for the purpose and subject to the limitations therein contained, and not otherwise, have hereto set their respective signatures and seals.
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Subpart B – Administrative Requirements
§ 958.112 Fiscal period.
The fiscal period shall begin July 1 of each year and end June 30 of the following year, both dates inclusive.
§ 958.160 Reestablishment of Districts.
(a) Pursuant to § 958.27(b) the following districts are reestablished:
(1) District No. 5 (Parma-Wilder area): That portion of Canyon County lying west and north of a line commencing at the junction of the north boundary of Canyon County and Range 4, Township 12 east, thence south along this line to Soeck Road, thence west along Soeck Road one-fourth mile to Notus Road, thence south along Notus Road to Highway 19, thence west one mile along Highway 19 to Friends Road, thence south along Friends Road to Boundary Road, thence east one-half mile along Boundary Road to Plum Road, thence south along Plum Road to Homedale Road, thence west along Homedale Road to the western boundary of Canyon County.
(2) District No. 6 (Caldwell-Nampa-Homedale and southern Idaho area): That portion of Canyon County not included in District No. 5 plus all of the counties in the Idaho portion of the production area not included within District No. 1.
(b) Terms used in this section have the same meaning as when used in said marketing agreement and this part.
§ 958.240 Assessment rate.
On and after July 1, 2015, an assessment rate of $0.05 per hundredweight is established for Idaho-Eastern Oregon onions.
§ 958.250 Assessment Credit Report.
Each handler may receive a credit for assessments on onions that have been levied in accordance with §§ 958.42 and 958.240 and are subsequently regraded, resorted, or repacked within the production area, or shipped in accordance with § 958.328(e) by furnishing the “Assessment Credit Report” and such other information as required to the committee.
Subpart C – Handling Requirements
§ 958.328 Handling regulation.
No person shall handle any lot of onions, except braided red onions, unless such onions are at least “moderately cured,” as defined in paragraph (h) of this section, and meet the requirements of paragraphs (a), (b), and (c) of this section, or unless such onions are handled in accordance with paragraphs (d), (e) and (f) or (g) of this section.
(a) Grade and size requirements – (1) White varieties (except cipolline (Borettana) varieties). Shall be either:
(i) U.S. No. 1, 1 inch minimum to 2 inches maximum diameter; or
(ii) U.S. No. 1, at least 1
(2) Cipolline (Borettana) varieties and red varieties. U.S. No. 2 or better grade, at least 1
(3) All other varieties. Shall be either:
(i) U.S. No. 2 or U.S. Commercial grade, at least 3 inches minimum diameter, but not more than 30 percent of the lot shall be comprised of onions of U.S. No. 1 quality when packed in containers weighing less than 60 pounds; or
(ii) U.S. No. 1, 1
(iii) U.S. No. 1, at least 2
(b) Pack. Onions packed as U.S. Commercial grade in containers weighing less than 60 pounds shall have the grade marked permanently and conspicuously on the container.
(c) Inspection. No handler may handle any onions regulated hereunder unless such onions are inspected by the Federal-State Inspection Service and are covered by a valid applicable inspection certificate, except when relieved of such requirement pursuant to paragraph (d), (e) or (g) of this section.
(d) Onions for peeling, chopping, or slicing. Onions that have been inspected and certified as meeting the requirements of paragraphs (a) and (b) of this section and that are subsequently peeled, chopped, or sliced for fresh market within the production area may be handled without reinspection: Provided the following:
(1) Each handler making shipments of onions for alteration or performing alteration by peeling, chopping, or slicing must furnish the committee the following information on the “Fresh Cut Report” and such other documents as required:
(i) Business name, address, telephone number, signature, and the date the form was signed;
(ii) The date of peeling, chopping, or slicing;
(iii) Inspection certificate number;
(iv) The quantity of onions; and
(v) Such other information as may be required by the committee.
(2) Handlers who peel, chop, or slice onions produced outside the production area must provide the committee with documentation showing that the onions so prepared were produced outside the production area.
(e) Special purpose shipments. (1) The minimum grade, size, maturity, pack, assessment, and inspection requirements of this section shall not be applicable to shipments of onions for any of the following purposes:
(i) Planting,
(ii) Livestock feed,
(iii) Charity,
(iv) Dehydration,
(v) Canning,
(vi) Freezing,
(vii) Extraction,
(viii) Pickling, and
(ix) Disposal.
(2) Shipments of onions for the purpose of experimentation, as approved by the Committee, may be made without regard to the minimum grade, size, maturity, pack, and inspection requirements of this section. Assessment requirements shall be applicable to such shipments.
(3) The minimum grade, size, and maturity requirements set forth in paragraph (a) of this section shall not be applicable to shipments of pearl onions, but the maximum size requirement in paragraph (h) of this section and the assessment and inspection requirements shall be applicable to shipments of pearl onions.
(f) Safeguards. Each handler making shipments of onions outside the production area for dehydration, canning, freezing, extraction, pickling, or experimentation pursuant to paragraph (e) of this section shall:
(1) Furnish “Application to Make Special Purpose Shipments – Certificate of Privilege” and such other information to the committee as required. The committee will review and verify each “Application to Make Special Purpose Shipments – Certificate of Privilege” and notify the handler of approval or disapproval. The committee may contact the receiver or receiver’s agent of the special purpose shipment for verification and request the receiver or receiver’s agent to complete a “Special Purpose Shipment Receiver Certification”
(2) Bill or consign each shipment directly to the applicable receiver or receiver’s agent of the special purpose shipment;
(3) Furnish “Onion Diversion Report” and such other information to the committee as required. Failure of the handler to furnish such report and information as required to the committee may be cause for cancellation of such handlers’ Certificate of Privilege. Upon cancellation of any such Certificate of Privilege the handler may appeal to the committee for reconsideration. The committee may audit a receiver or receiver’s agent of the special purpose shipment to verify reports and information submitted by handlers. Failure of a receiver or receiver’s agent of a special purpose shipment to comply with the committee may be cause for cancellation of the receiver’s or receiver agent’s eligibility to receive further special purpose shipments from the production area. Upon cancellation of any such Certificate of Privilege the receiver or the receiver’s agent may appeal to the committee for reconsideration.
(g) Minimum quantity exemption. Each handler may ship up to, but not to exceed, one ton of onions each day without regard to the inspection and assessment requirements of this part, if such onions meet minimum grade, size and maturity requirements of this section. This exception shall not apply to any portion of a shipment that exceeds one ton of onions.
(h) Definitions. The terms “U.S. No. 1”, “U.S. Commercial,” and “U.S. No. 2” have the same meaning as defined in the United States Standards for Grades of Onions (Other than Bermuda Granex-Grano and Creole Types), as amended (7 CFR 51.2830 through 51.2854), or the United States Standards for Grades of Bermuda-Granex-Grano Type Onions (7 CFR 51.3195 through 51.3209), as amended, whichever is applicable to the particular variety, or variations thereof specified in this section. The term “braided red onions” means onions of red varieties with tops braided (interlaced). “Pearl onions” means onions produced using specific cultural practices that limit growth to the same general size as boilers and picklers (defined in the United States Standards specified in this paragraph), and that have been inspected and certified as measuring 2 inches in diameter or less. The term “moderately cured” means the onions are mature and are more nearly well cured than fairly well cured. Other terms used in this section have the same meaning as when used in Marketing Agreement No. 130 and this part.
PART 959 – ONIONS GROWN IN SOUTH TEXAS
Subpart A – Order Regulating Handling
Definitions
§ 959.1 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 be hereafter delegated, to act in his stead.
§ 959.2 Act.
Act means Public Act No. 10, 73d Congress, as amended and as reenacted and amended by the Agricultural Marketing Agreement Act of 1937, as amended (sections 1-19, 48 Stat. 31, as amended; 7 U.S.C. 601-674).
§ 959.3 Person.
Person means an individual, partnership, corporation, association or any other business unit.
§ 959.4 Production area.
Production area means the counties of Val Verde, Kinney, Uvalde, Medina, Wilson, Karnes, Goliad, Victoria, Calhoun, Maverick, Zavala, Frio, Atascosa, Dimmit, La Salle, McMullen, Live Oak, Bee, Refugio, Webb, Duval, Jim Wells, San Patricio, Nueces, Zapata, Jim Hogg, Brooks, Kleberg, Kenedy, Starr, De Witt, Aransas, Hidalgo, Willacy, and Cameron, in the State of Texas.
§ 959.5 Onions.
Onions means all varieties of Allium cepa commonly known as onions grown within the production area and marketed dry.
§ 959.6 Handler.
Handler is synonymous with shipper and means any person (except a common or contract carrier of onions owned by another person) who handles onions or causes onions to be handled.
§ 959.7 Handle.
Handle or ship means to package, load, sell, transport, or in any way to place onions in the current of the commerce within the production area or between the production area and any point outside thereof. Such term shall not include the transportation, sale, or delivery of field-run onions to a person in the production area who is a registered handler.
§ 959.8 Registered handler.
Registered handler means any person with adequate facilities within the production area for preparing onions for commercial market, who customarily does so, and who is so recorded by the committee, or any person who has access to such facilities within the production area, and has recorded with the committee his ability and willingness to assume customary obligations of preparing onions for commercial market.
§ 959.9 Producer.
Producer means any person engaged in a proprietary capacity in the production of onions for market.
§ 959.10 Grading.
Grading is synonymous with preparation for market and means the sorting or separation of onions into grades, sizes, and packs for market purposes.
§ 959.11 Grade and size.
Grade means any of the established grades of onions, and size means any of the established sizes of onions as defined and set forth in the United States Standards for Bermuda-Granex Type Onions (§§ 51.3195 to 51.3209 of this title) or any other United States Standards for onions, or amendments thereto or modifications thereof, or variations based thereon, recommended by the committee and approved by the Secretary.
§ 959.12 Pack.
Pack means a quantity of onions specified by grade, size, weight, or count, or by type or condition of container, or any combination of these recommended by the committee and approved by the Secretary.
§ 959.13 Container.
Container means a box, bag, crate, hamper, basket, package, or any other receptacle used in the packaging, transportation, sale, shipment or other handling of onions.
§ 959.14 Varieties.
Varieties means and includes all classifications, subdivisions, or types of onions according to those definitive characteristics now or hereafter recognized by the United States Department of Agriculture or recommended by the committee and approved by the Secretary.
§ 959.15 Committee.
Committee means the South Texas Onion Committee, established pursuant to § 959.22.
§ 959.16 Fiscal period.
Fiscal period means the annual period beginning and ending on such dates as may be approved by the Secretary pursuant to recommendations of the committee.
§ 959.17 District.
District means each of the geographic divisions of the production area initially established pursuant to § 959.24 or as reestablished pursuant to § 959.25.
§ 959.18 Export.
Export means to ship onions to any destination which is not within the 48 contiguous States, or the District of Columbia, of the United States.
Committee
§ 959.22 Establishment and membership.
The South Texas Onion Committee, consisting of thirteen members, eight of whom shall be producers and five of whom shall be handlers, is hereby established. For each member of the Committee there shall be an alternate. Producer members and alternates shall not have a proprietary interest in or be employees of a handler organization.
§ 959.23 Term of office.
(a) The term of office of committee members and their respective alternates shall be for two years and shall begin as of August 1 and end as of July 31. The terms shall be so determined that about one-half of the total committee membership shall terminate each year.
(b) Committee members and alternates shall serve during the term of office for which they are selected and have qualified, or during that portion thereof beginning on the date on which they qualify during such term of office and continuing until the end thereof, and until their successors are selected and have qualified.
§ 959.24 Districts.
To determine a basis for selecting Committee members, the following districts of the production area are hereby established:
(a) District No. 1. (Coastal Bend-Lower Valley) The Counties of Victoria, Calhoun, Goliad, Refugio, Bee, Live Oak, San Patricio, Aransas, Jim Wells, Nueces, Kleberg, Brooks, Kenedy, Duval, McMullen, Cameron, Hidalgo, Starr, and Willacy in the State of Texas.
(b) District No. 2. (Laredo-Winter Garden) The Counties of Zapata, Webb, Jim Hogg De Witt, Wilson, Atascosa, Karnes Val Verde, Frio, Kinney, Uvalde, Medina, Maverick, Zavala, Dimmit, and La Salle in the State of Texas.
§ 959.25 Redistricting.
The committee may recommend, and pursuant thereto, the Secretary may approve, the reapportionment of members among districts, and the reestablishment of districts within the production area. In recommending any such changes, the committee shall give consideration to:
(a) Shifts in onion acreage within the districts and within the production area during recent years;
(b) The importance of new production in its relation to existing districts;
(c) The equitable relationship of committee membership and districts;
(d) Economies to result for producers in promoting efficient administration due to redistricting or reapportionment of members within districts; and
(e) Other relevant factors. No change in districting or in apportionment of members within districts may become effective less than 30 days prior to the date on which terms of office begin each year and no recommendations for such redistricting or reapportionment may be made less than six months prior to such date.
§ 959.26 Selection.
The Secretary shall select members and respective alternates from districts established pursuant to § 959.24 or § 959.25. Selections shall be as follows:
(a) District No. 1. Five producer members and alternates; three handler members and alternates.
(b) District No. 2. Three producer members and alternates; two handler members and alternates.
§ 959.27 Nomination.
The Secretary may select the members of the committee and alternates from nominations which may be made in the following manner:
(a) A meeting or meetings of producers and handlers shall be held for each district to nominate members and alternates for the committee. For nominations to the initial committee, the meetings may be sponsored by the United States Department of Agriculture or by any agency or group requested to do so by such department. For nominations for succeeding members and alternates on the committee, the committee shall hold such meetings or cause them to be held prior to June 15 of each year, after the effective date of this subpart, or by such other date as may be specified by the Secretary;
(b) At each such meeting at least one nominee shall be designated for each position as member and for each position as alternate member on the committee;
(c) Nominations for committee members and alternates shall be supplied to the Secretary in such manner and form as he may prescribe, not later than July 1 of each year, or by such other date as may be specified by the Secretary;
(d) Only producers may participate in designating producer nominees, and only handlers may participate in naming handler nominees. In the event a person is engaged in producing or handling onions in more than one district, such person shall elect the district within which he may participate as aforesaid in designating nominees;
(e) Regardless of the number of districts in which a person produces or handles onions, each such person is entitled to cast only one vote on behalf of himself, his agents, subsidiaries, affiliates, and representatives in designating nominees for committee members and alternates. An eligible voter’s privilege of casting only one vote as aforesaid shall be construed to permit a voter to cast one vote for each position to be filled in the respective district in which he elects to vote.
§ 959.28 Failure to nominate.
If nominations are not made within the time and in the manner specified in § 959.27, the Secretary may, without regard to nominations, select the committee members and alternates, which selection shall be on the basis of the representation provided for in §§ 959.22 through 959.26.
§ 959.29 Acceptance.
Any person selected as a committee member or alternate shall qualify by filing a written acceptance within ten days after being notified of such selection.
§ 959.30 Vacancies.
To fill committee vacancies, the Secretary may select such members or alternates from unselected nominees on the current nominee list from the district involved, or from nominations made in the manner specified in § 959.27. If the names of nominees to fill any such vacancy are not made available to the Secretary within 30 days after such vacancy occurs, such vacancy may be filled without regard to nominations, which selection shall be made on the basis of the representation provided for in §§ 959.24 to 959.26.
§ 959.31 Alternate members.
An alternate member of the committee shall act in the place and stead of the member for whom he is an alternate, during such member’s absence or when designated to do so by the member for whom he is an alternate. In the event both a member of the committee and his alternate are unable to attend a committee meeting, the member or his alternate or the committee (in that order) may designate another alternate from the same district and the same group (handler or grower) to serve in such member’s place and stead. In the event of the death, removal, resignation, or disqualification of a member, his alternate shall act for him until a successor of such member is selected and has qualified. The committee may request the attendance of alternates at any or all meetings, notwithstanding the expected or actual presence of the respective members.
§ 959.32 Procedure.
(a) Nine members of the Committee shall be necessary to constitute a quorum. Seven concurring votes, or two-thirds of the votes cast, whichever is greater, shall be required to pass any motion or approve any Committee action. At assembled meetings all votes shall be cast in person.
(b) The committee may meet by telephone, telegraph, or other means of communication and any vote at such a meeting shall be promptly confirmed in writing. On such occasions unanimous vote of committee members voting will be required to approve any action.
§ 959.33 Expenses and compensation.
Committee members and alternates when acting on committee business shall be reimbursed for reasonable expenses necessarily incurred by them in the performance of their duties and in the exercise of their powers under this part. In addition they may receive compensation at a rate to be determined by the committee and approved by the Secretary, not to exceed $10 for each day, or portion thereof, spent in attending to committee business.
§ 959.34 Powers.
The committee shall have the following powers:
(a) To administer the provisions of this part in accordance with its terms and provisions;
(b) To make rules and regulations to effectuate the terms and provisions of this part;
(c) To receive, investigate, and report to the Secretary complaints of violation of the provisions of this part; and
(d) To recommend to the Secretary amendments to this part.
§ 959.35 Duties.
It shall be, among other things, the duty of the committee:
(a) As soon as practicable after the beginning of each term of office, to meet and organize, to select a chairman and such other officers as may be necessary, to select subcommittees of committee members and alternates, and to adopt such rules and regulations for the conduct of its business as it may deem advisable;
(b) To act as intermediary between the Secretary and any producer or handler;
(c) To furnish to the Secretary such available information as he may request;
(d) To appoint such employees, agents, and representatives as it may deem necessary and to determine the salaries and define the duties of each such person, and to protect the handling of committee funds through fidelity bonds for employees;
(e) To investigate from time to time and to assemble data on the growing, harvesting, shipping, and marketing conditions with respect to onions;
(f) To prepare a marketing policy;
(g) To recommend marketing regulations to the Secretary;
(h) To recommend rules and procedures for, and to make determinations in connection with, issuance of certificates of privilege;
(i) To keep minutes, books, and records which clearly reflect all of the acts and transactions of the committee, and such minutes, books and records shall be subject to examination at any time by the Secretary or by his authorized agent or representative. Minutes of each committee meeting shall be reported promptly to the Secretary;
(j) At the beginning of each fiscal period, to prepare a budget of its expenses for such fiscal period, together with a report thereon;
(k) To cause the books of the committee to be audited by a competent accountant at least once each fiscal period, and at such other time as the committee may deem necessary or as the Secretary may request. The report of such audit shall show the receipt and expenditure of funds collected pursuant to this part. A copy of each such report shall be made available at the principal office of the committee for inspection by producers and handlers, and a copy of each such report shall be furnished the Secretary;
(l) To consult, cooperate, and exchange information with other marketing agreement committees and other individuals or agencies in connection with all proper committee activities and objectives under this part.
Expenses and Assessments
§ 959.40 Expenses.
The committee is authorized to incur such expenses as the Secretary may find are reasonable and likely to be incurred during each fiscal period for its maintenance and functioning, and for such purposes as the Secretary, pursuant to this subpart, determines to be appropriate. Handlers shall share expenses on the basis of a fiscal period. Each handler’s share of such expenses shall be proportionate to the ratio between the total quantity of onions handled by him as the first handler thereof during a fiscal period and the quantity of onions handled by all handlers as first handlers thereof during such fiscal period.
§ 959.41 Budget.
As soon as practicable after the beginning of each fiscal period and as may be necessary thereafter, the committee shall prepare an estimated budget of income and expenditures necessary for the administration of this part. The committee may recommend a rate of assessment calculated to provide adequate funds to defray its proposed expenditures. The committee shall present such budget to the Secretary with an accompanying report showing the basis for its calculations.
§ 959.42 Assessments.
(a) The funds to cover the committee’s expenses shall be acquired by the levying of assessments upon handlers as provided in this subpart. Each handler who first handles onions, which are regulated under this part, shall pay assessments to the committee upon demand, which assessments shall be in payment of such handler’s pro rata share of the committee’s expenses.
(b) Assessments shall be levied upon handlers at rates established by the Secretary. Such rates may be established upon the basis of the committee’s recommendations and other available information. Such rates may be applied to specified containers used in the production area.
(c) At any time during, or subsequent to, a given fiscal period the committee may recommend the approval of an amended budget and an increase in the rate of assessment. Upon the basis of such recommendations, or other available information, the Secretary may approve an amended budget and increase the rate of assessment. Such increase shall be applicable to all onions which were regulated under this part and which were handled by the first handlers thereof during such fiscal period.
(d) The payment of assessments for the maintenance and functioning of the committee may be required under this part throughout the period it is in effect irrespective of whether particular provisions thereof are suspended or become inoperative.
(e) If a handler does not pay assessments within the time prescribed by the committee, the assessment may be increased by a late payment charge and/or an interest rate charge at amounts prescribed by the committee with approval of the Secretary.
§ 959.43 Accounting.
(a) Assessments collected in excess of expenses incurred shall be accounted for in accordance with one of the following:
(1) Excess funds not retained in a reserve, as provided in paragraph (a)(2) of this section shall be refunded proportionately to the persons from whom they were collected.
(2) The committee, with the approval of the Secretary, may carry over excess funds into subsequent fiscal periods as reserves: Provided, That funds already in reserves do not equal approximately two fiscal periods’ expenses. Such reserve funds may be used (i) to defray expenses during any fiscal period prior to the time assessment income is sufficient to cover such expenses, (ii) to cover deficits incurred during any fiscal period when assessment income is less than expenses, (iii) to defray expenses incurred during any period when any or all provisions of this part are suspended or are inoperative, (iv) to cover necessary expenses of liquidation in the event of termination of this part. Upon such termination, any funds not required to defray the necessary expenses of liquidation shall be disposed of in such manner as the Secretary may determine to be appropriate. To the extent practical, such funds shall be returned pro rata to the persons from whom such funds were collected.
(b) All funds received by the committee pursuant to the provisions of this part shall be used solely for the purpose specified in this part and shall be accounted for in the manner provided for in this part. The Secretary may at any time require the committee and its members to account for all receipts and disbursements.
(c) Upon the removal or expiration of the term of office of any member of the committee, such member shall account for all receipts and disbursements and deliver all property and funds in his possession to the committee, and shall execute such assignments and other instruments as may be necessary or appropriate to vest in the committee full title to all of the property, funds, and claims vested in such member pursuant to this part.
(d) The committee may make recommendations to the Secretary for one or more of the members thereof, or any other person, to act as a trustee for holding records, funds, or any other committee property during periods of suspension of this subpart, or during any period or periods when regulations are not in effect and if the Secretary determines such action appropriate, he may direct that such person or persons shall act as trustee or trustees for the committee.
Research and Development
§ 959.48 Research and development.
The committee, with the approval of the Secretary, may establish or provide for the establishment of production research, marketing research, and development projects designed to assist, improve, or promote the marketing, distribution, consumption or efficient production of onions. The expenses of such projects shall be paid from funds collected pursuant to § 959.42.
Regulations
§ 959.50 Marketing policy.
(a) At the beginning of each season, and as the Secretary may require, the committee shall prepare a marketing policy. Such policy shall indicate the data on onion supplies and demand on which the committee bases its judgments and recommendations. It shall indicate also the kind or types of regulations contemplated during the ensuing season, and, to the extent practical, shall include recommendations for specific regulations. Notice of such marketing policy shall be given to producers, handlers, and other interested parties by bulletins, newspapers, or other appropriate media, and copies thereof shall be submitted to the Secretary and shall be available generally.
(b) Marketing policy statements relating to recommendations for regulations shall give appropriate consideration to onion supplies for the season, with special consideration to:
(1) Estimates of total supplies, including grade, size, and quality thereof, in the production area;
(2) Estimates of supplies in the competing areas;
(3) Market prices by grades, sizes, containers, and packs;
(4) Estimates of supplies of competing commodities;
(5) Anticipated marketing problems;
(6) Level and trend of consumer income; and
(7) Other relevant factors.
§ 959.51 Recommendations for regulations.
Upon complying with the requirements of § 959.50 the committee may recommend regulations to the Secretary whenever it finds that such regulations as are provided for in this subpart will tend to effectuate the declared policy of the act.
§ 959.52 Issuance of regulations.
(a) The Secretary shall limit the handling of onions by regulations specified in this section whenever he finds from the recommendations and information submitted by the committee, or from other available information, that such regulations would tend to effectuate the declared policy of the act.
(b) Such regulations may:
(1) Limit in any or all portions of the production area the handling of particular grades, sizes, qualities or packs, or any combination thereof, of any or all varieties of onions during any period;
(2) Limit the handling of particular grades, sizes, qualities, or packs of onions differently for different varieties, for different containers, for different portions of the production area, or any combination of the foregoing, during any period;
(3) Limit the handling of onions by establishing, in terms of grades, sizes, or both, minimum standards of quality and maturity;
(4) Fix the size, capacity, weight, dimensions, or pack of the container or containers which may be used in the packaging, transportation, sale, preparation for market, shipment, or other handling of onions;
(5) Establish holidays by prohibiting throughout the entire production area, the packaging or loading, or both, of onions on Sundays;
(6) Prohibit the packaging or loading, or both, of onions except during specified consecutive hours of any calendar day or days: Provided, That, any handler may, upon such notice to the committee as it may prescribe with approval of the Secretary, package or load onions during a different period in such day consisting of the same number of consecutive hours: Provided further, That any handler who, due to conditions specified in regulations established by the committee with the approval of the Secretary as being beyond a handler’s reasonable control, is prevented for more than one of such consecutive hours from so packaging or loading onions may, in accordance with such regulations, obtain permission from the committee to package or load onions, or both, during a comparable number of additional hours in the same day or a later day as specified by the committee.
(c) Regulations issued hereunder may be amended, modified, suspended, or terminated whenever it is determined:
(1) That such action is warranted upon recommendation of the committee or other available information;
(2) That such action is essential to provide relief from inspection, assessment, or regulations under paragraph (b) of this section for minimum quantities less than customary commercial transactions; or
(3) That regulations issued hereunder no longer tend to effectuate the declared policy of the act.
(d) No handler may handle onions that were packaged or loaded or both during any period when such packaging or loading or both was prohibited by any regulation issued pursuant to paragraphs (b)(5) or (6) of this section, except such onions as were exempted thereunder.
§ 959.53 Handling for special purposes.
Regulations in effect pursuant to §§ 959.42, 959.52, or 959.60 may be modified, suspended, or terminated to facilitate handling of onions for:
(a) Relief or charity;
(b) Experimental purposes;
(c) Export; and
(d) Other purposes which may be recommended by the committee and approved by the Secretary.
§ 959.54 Safeguards.
The committee, with the approval of the Secretary, may establish through rules such requirements as may be necessary to establish that shipments made pursuant to § 959.53 were handled and used for the purpose stated.
§ 959.55 Notification of regulation.
The Secretary shall promptly notify the committee of regulations issued or of any modification, suspension, or termination thereof. The committee shall give reasonable notice thereof to handlers.
Inspection
§ 959.60 Inspection and certification.
(a) Whenever the handling of onions is regulated pursuant to § 959.52, or at other times when recommended by the committee and approved by the Secretary, no handlers shall handle onions unless they are inspected by an authorized representative of the Federal or Federal-State Inspection Service and are covered by a valid inspection certificate, except when relieved from such requirements pursuant to § 959.52(c) or § 959.54, or paragraph (b) of this section.
(b) Regarding, resorting, or repacking any lot of onions shall invalidate any prior inspection certificate insofar as the requirements of this section are concerned. No handler shall handle onions after they have been regraded, resorted, or repacked unless such onions are inspected by an authorized representative of the Federal or Federal-State Inspection Service. Such inspection requirements on regraded, resorted, or repacked onions may be modified, suspended, or terminated upon recommendation by the committee and approval of the Secretary.
(c) Upon recommendation of the committee and approval by the Secretary, any or all onions so inspected and certified shall be identified by appropriate seals, stamps, or tags to be affixed to the containers by the handler under the direction and supervision of a Federal or Federal-State Inspector or the Committee. Master containers may bear the identification instead of the individual containers within said master container.
(d) At any time this marketing order is inoperative, compulsory inspection is not required.
(e) Insofar as the requirements of this section are concerned, the length of time for which an inspection certificate is valid may be established by the committee with the approval of the Secretary.
(f) When onions are inspected in accordance with the requirements of this section, a copy of each inspection certificate issued shall be made available to the committee by the Inspection Service.
(g) The committee may recommend and the Secretary may require that no handler shall transport or cause the transportation of onions by motor vehicle or by other means unless such shipment is accompanied by a copy of the inspection certificate issued thereon, or other document authorized by the committee to indicate that such inspection has been performed. Such certificate or document shall be surrendered to such authority as may be designated.
Reports
§ 959.80 Reports.
Upon request of the committee, made with the approval of the Secretary, each handler shall furnish to the committee, in such manner or form and at such time as it may prescribe, such reports and other information as may be necessary for the committee to perform its duties under this part.
(a) Such reports may include, but are not necessarily limited to, the following:
(1) The quantities of onions received by a handler;
(2) The quantities disposed of by him segregated as to the respective quantities subject to regulation and not subject to regulation;
(3) The date of each such disposition and the identification of the carrier transporting such onions; and
(4) Identification of the inspection certificates relating to the onions which were handled pursuant to § 959.52 or § 959.53, or both.
(b) All such reports shall be held under appropriate protective classification and custody by the committee, or duly appointed employees thereof, so that the information contained therein which may adversely affect the competitive position of any handler in relation to other handlers will not be disclosed. Compilations of general reports from data submitted by handlers is authorized, subject to the prohibition of disclosure of individual handlers’ identities or operations.
(c) Each handler shall maintain for at least two succeeding years such records and documents on onions received and onions disposed of by him as may be necessary to verify reports he submits to the committee pursuant to this section.
Compliance
§ 959.81 Compliance.
Except as provided in this subpart, no handler shall handle onions, the handling of which has been prohibited by the Secretary in accordance with provisions of this subpart, or the rules and regulations thereunder, and no handler shall handle onions except in conformity to the provisions of this subpart.
Miscellaneous Provisions
§ 959.82 Right of the Secretary.
The members of the committee (including successors and alternates), and any agent or employee appointed or employed by the committee, shall be subject to removal or suspension by the Secretary at any time. Each and every order, regulation, decision, determination or other act of the committee shall be subject to the continuing right of the Secretary to disapprove of the same at any time. Upon such disapproval, the disapproved action of the said committee shall be deemed null and void, except as to acts done in reliance thereon or in compliance therewith prior to such disapproval by the Secretary.
§ 959.83 Effective time.
The provisions of this subpart, or any amendment thereto, shall become effective at such time as the Secretary may declare and shall continue in force until terminated in one of the ways specified in this subpart.
§ 959.84 Termination.
(a) The Secretary may, at any time, terminate the provisions of this subpart by giving at least one day’s notice by means of a press release or in any other manner which he may determine.
(b) The Secretary shall terminate or suspend the operation of any or all of the provisions of this subpart whenever he finds that such provisions do not tend to effectuate the declared policy of the act.
(c) The Secretary shall terminate the provisions of this subpart at the end of any fiscal period whenever he finds that such termination is favored by a majority of producers who, during a representative period, have been engaged in the production of onions for market: Provided, That such majority has, during such representative period, produced for market more than fifty percent of the volume of such onions produced for market.
(d) The Secretary shall conduct a referendum within six years after the effective date of this paragraph and every sixth year thereafter to ascertain whether continuance is favored by producers. The Secretary would consider termination of this part if less than two-thirds of the growers voting in the referendum and growers of less than two-thirds of the volume of onions represented in the referendum favor continuance.
(e) The provisions of this subpart shall, in any event, terminate whenever the provisions of the act authorizing them cease to be in effect.
§ 959.85 Proceeding after termination.
(a) Upon the termination of the provisions of this subpart the then functioning members of the committee shall continue as joint trustees for the purpose of settling the affairs of the committee by liquidating all of the funds and property then in the possession of or under control of the committee, including claims for any funds unpaid or property not delivered at the time of such termination. Action by said trusteeship shall require the concurrence of a majority of the said trustees.
(b) The said trustees shall continue in such capacity until discharged by the Secretary; shall, from time to time, account for all receipts and disbursements and deliver all property on hand, together with all books and records of the committee and of the trustees, to such person as the Secretary may direct; and shall, upon request of the Secretary, execute such assignments or other instruments necessary or appropriate to vest in such persons full title and right to all of the funds, property, and claims vested in the committee or the trustees pursuant to this subpart.
(c) Any person to whom funds, property, or claims have been transferred or delivered by the committee or its members, pursuant to this section, shall be subject to the same obligations imposed upon the members of the committee and upon the said trustees.
§ 959.86 Effect of termination or amendments.
Unless otherwise expressly provided by the Secretary, the termination of this subpart or of any regulation issued pursuant to this subpart, or the issuance of any amendments 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 provisions of this subpart or any regulation issued under this subpart, or (b) release or extinguish any violation of this subpart or of any regulation issued under this subpart, or (c) affect or impair any rights or remedies of the Secretary or of any other person with respect to any such violation.
§ 959.87 Duration of immunities.
The benefits, privileges, and immunities conferred upon any person by virtue of this subpart shall cease upon the termination of this subpart, except with respect to acts done under and during the existence of this subpart.
§ 959.88 Agents.
The Secretary may, by designation in writing, name any person, including any officer or employee of the United States Department of Agriculture, to act as his agent or representative in connection with any of the provisions of this subpart.
§ 959.89 Derogation.
Nothing contained in this subpart is, or shall be construed to be, in derogation or in modification of the rights of the Secretary or of the United States to exercise any powers granted by the act or otherwise, or, in accordance with such powers, to act in the premises whenever such action is deemed advisable.
§ 959.90 Personal liability.
No member or alternate of the committee nor any employee or agent thereof, shall be held personally responsible, either individually or jointly with others, in any way whatsoever, to any handler or to any person for errors in judgment, mistakes, or other acts, either of commission or omission, as such member, alternate, agent, or employee, except for acts of dishonesty, willful misconduct, or gross negligence.
§ 959.91 Separability.
If any provision of this subpart is declared invalid, or the applicability thereof to any person, circumstance, or thing is held invalid, the validity of the remainder of this subpart, or the applicability thereof to any other person, circumstance, or thing, shall not be affected thereby.
§ 959.92 Amendments.
Amendments to this subpart may be proposed, from time to time, by the committee or by the Secretary.
Subpart B – Administrative Provisions
General
§ 959.100 Order.
Order means Order No. 959 (§§ 959.1 to 959.92; 26 FR 704) regulating the handling of onions grown in South Texas.
§ 959.101 Terms.
The terms used in this subpart shall have the same meaning as when used in the order.
§ 959.102 Communications.
Unless otherwise provided in the order, or by specific direction of the committee, all reports, applications, submittals, requests and communications in connection with the order shall be addressed to the South Texas Onion Committee, at its principal office.
§ 959.103 Registered handler.
For purposes of this part any person who operates an established packing house within the production area with commonly accepted adequate facilities for grading and packing onions for market, and who customarily buys onions from producers for grading, packing, and marketing shall be recorded by the committee as a registered handler. Any other person who wishes to be listed as a registered handler may make application for registration on forms furnished by the committee. If such applicant has facilities available to him that are determined by the committee to be adequate for grading and packing onions for market, and he assumes responsibility for inspection of onions handled by him, and for assessments thereon, he may be approved and recorded as a registered handler. If the committee determines from the available information that the applicant is not entitled to be registered with the committee, he shall be so informed by written notice stating the reason for denial of his application. Any registration of a handler pursuant to this section may be canceled by the committee under circumstances which would have justified denial of his application. Any handler whose registration has been canceled shall be so informed by written notice thereof stating the reason therefor. The committee shall also notify producers of each such cancellation of handler registration through committee bulletins or published notice in local newspapers of general distribution, or both.
§ 959.104 Fiscal period.
The fiscal period shall begin August 1 of each year and end July 31 of the following year, both dates inclusive.
§§ 959.110-959.111 [Reserved]
§ 959.115 Planting reports.
Each handler shall furnish every two weeks during the planting season to the committee, on a form provided by the committee, the number of acres of onions planted by the handler or growers for whom the handler packs onions during such period and the location of such plantings.
Safeguards
§ 959.120 Policy.
Whenever shipments of onions for special purposes pursuant to § 959.53 are relieved in whole or in part from regulations issued under § 959.52, the committee may require information and evidence on the manner, methods, and timing of such shipments as safeguards against the entry of any such onions in trade channels other than those for which intended. Such information and evidence shall include requirements set forth below with respect to Certificates of Privilege.
§ 959.121 Qualification.
Before handling onions for special purposes which do not meet regulations issued pursuant to § 959.52, a handler, when required by such regulations, must qualify with the committee to handle shipments for special purposes. To qualify he must (a) apply for and receive a Certificate of Privilege indicating his intent to so handle onions, (b) agree to comply with reporting and other requirements set forth in §§ 959.120 to 959.125, inclusive, with respect to such shipments, and (c) receive approval of the committee, or its duly authorized agents, to so handle onions. Such approval will be based upon evidence furnished in his application for Certificate of Privilege and other information available to the committee.
§ 959.122 Application.
(a) Applications for a Certificate of Privilege shall be made on forms furnished by the committee. Each application may contain, but need not be limited to, the name and address of the handler; the quantity by grade, size, and quality of the onions to be shipped; the mode of transportation; the consignee; the destination; the purpose for which the onions are to be used; and certification to the United States Department of Agriculture and to the committee as to the truthfulness of the information shown thereon, and any other appropriate information or documents deemed necessary by the committee or its duly authorized agents for the purposes stated in § 959.120.
(b) The committee may require each handler making shipments of onions for export to include with his application a copy of the Department of Commerce Shippers Export Declaration Form No. 7525-V applicable to such shipment.
§ 959.123 Approval.
The committee or its duly authorized agents shall give prompt consideration to each application for a Certificate of Privilege. Approval of an application, based upon the determination as to whether the information contained therein and other information available to the committee supports approval, shall be evidenced by the issuance of a Certificate of Privilege to the applicant. Each certificate shall cover a specified period and specified qualities and quantities of onions to be sold or transported to a designated consignee for the purpose declared.
§ 959.124 Reports.
Each handler of onions shipping under Certificates of Privilege shall supply the committee with reports as requested by the committee, or its duly authorized agents, showing the name and address of the shipper; the car or truck identification; the loading point; destination; consignee; the inspection certificate number when inspection is required; and any other information deemed necessary by the committee.
§ 959.125 Disqualification.
The committee from time to time may conduct surveys of handling of onions for special purposes requiring Certificates of Privilege to determine whether handlers are complying with the requirements and regulations applicable to such certificates. Whenever the committee finds that the handler or consignee is failing to comply with requirements and regulations applicable to handling of onions in special outlets and requiring such certificates, a Certificate or Certificates of Privilege issued such handler may be rescinded and subsequent certificates denied. Such disqualification shall apply to, and not exceed, a reasonable period of time as determined by the committee, but in no event shall it extend beyond the date of the succeeding fiscal period. Any handler who has a Certificate rescinded or denied may appeal to the committee in writing for reconsideration of his disqualification.
§ 959.126 Handling of culls.
(a) The handling of culls, i.e., onions which fail to meet the grade, size and quality requirements established under § 959.52(b) of this part, is prohibited, unless such onions are:
(1) Mechanically mutilated at the packing shed rendering them unsuitable for fresh market;
(2) Handled for special purpose outlets approved under § 959.53 of this part; or
(3) Handled for canning or freezing.
(b) As a safeguard against culls entering fresh market channels each handler of culls under paragraphs (a) (2) or (3) of this section shall apply for and obtain a certificate from the committee which shall require the handler to furnish such reports or other information as the committee may request.
§ 959.237 Assessment rate.
On and after August 1, 2019, an assessment rate of $0.05 per 50-pound equivalent is established for South Texas onions.
§ 959.322 Handling regulation.
During the period beginning March 1 and ending June 4, no handler shall handle any onions, including onions for peeling, chopping, and slicing, unless they comply with paragraphs (a) through (c) or (d) or (e) of this section; except that onions handled during the period June 5 through July 15 shall comply with paragraphs (c) or (d) or (e) of this section.
(a) Grade requirements. Not to exceed 20 percent defects of U.S. No. 1 grade. In percentage grade lots, tolerances for serious damage shall not exceed 10 percent including not more than 2 percent decay. Double the lot tolerance shall be permitted in individual packages in percentage grade lots. Application of tolerances in U.S. onion standards shall apply to in-grade lots.
(b) Size requirements. (1) “Small” – 1 to 2
(2) “Repacker” – 1
(3) “Medium” – 2 to 3
(4) “Jumbo” or “Large” – 3 inches or larger in diameter; or
(5) “Colossal” – 3
(6) Tolerances for size in the U.S. onion standards shall apply except that for “repacker” and “medium” sizes not more than 20 percent, by weight, of onions in any lot may be larger than the maximum diameter specified. Application of tolerances in the U.S. onion standards shall apply.
(c) Inspection. (1) No handler may handle any onions regulated hereunder, except pursuant to paragraphs (d), (e)(1), or (e)(2) of this section unless an inspection certificate has been issued by the Federal or Federal-State Inspection Service, Texas Cooperative Inspection Program, covering them and the certificate is valid at the time of shipment. City destinations shall be listed on inspection certificates and release forms.
(2) No handler may transport by motor vehicle or cause such transportation of any shipment of onions for which an inspection certificate is required unless each such shipment is accompanied by a copy of the inspection certificate applicable thereto or the shipment release form furnished by the inspection service identifying truck lots to which a valid inspection certificate is applicable. A copy of such inspection certificate or shipment release form shall be surrendered upon request to Texas Department of Agriculture personnel designated by the committee.
(3) For purposes of operation under this part, each inspection certificate, shipment release form, or committee form required as evidence of inspection is hereby determined to be valid for a period not to exceed 72 hours following completion of inspection as shown on the certificate.
(4) Handlers shall pay assessment on all assessable onions according to the provisions of § 959.42.
(d) Minimum quantity exemption. Any handler may handle, other than for resale, up to, but not to exceed 110 pounds of onions per day without regard to the requirements of this section, but this exemption shall not apply to any shipment or any portion thereof of over 110 pounds of onions.
(e) Special purpose shipments. (1) The minimum grade, size, quality, and inspection requirements set forth in paragraphs (a) through (c) of this section shall not be applicable to shipments of onions for charity, relief, export, and processing if handled in accordance with paragraph (f) of this section.
(2) Experimental shipments. Upon approval by the committee, onions may be shipped for experimental purposes exempt from regulations issued pursuant to §§ 959.42, 959.52 and 959.60, provided they are handled in accordance with the safeguard provisions of paragraph (f) of this section.
(3) Onions failing to meet requirements. Onions failing to meet the grade and size requirements of this section, and not exempt under paragraphs (d) or (e) of this section, may be handled only pursuant to § 959.126. Such onions not handled in accordance with paragraph (f) of this section shall be mechanically mutilated at the packing shed rendering them unsuitable for fresh market.
(f) Safeguards. Each handler making shipments of onions for charity, relief, export, processing, or experimental purposes shall:
(1) Apply to the committee for and obtain a Certificate of Privilege to make such shipments;
(2) Furnish reports of each shipment made under the applicable Certificate of Privilege;
(3) Such reports, in accordance with § 959.80, shall be furnished to the committee in such manner, on such forms and at such times as it may prescribe. Each handler shall maintain records of such shipments pursuant to § 959.80(c), and the records shall be subject to review and audit by the committee to verify reports thereon.
(4) In addition to provisions in the preceding paragraphs, each handler making shipments for processing shall:
(i) Weigh or cause to be weighed each shipment prior to, or upon arrival at, the processor.
(ii) Attach a copy of the weight ticket to a completed copy of the Report of Special Purpose Onion Shipment and return both promptly to the committee office.
(iii) Make each shipment directly to the processor or the processor’s subcontractor and attach a copy of the Report of Special Purpose Onion Shipment.
(iv) Each processor or processor’s subcontractor who receives cull onions shall weigh the onions upon receipt, complete the Report of Special Purpose Shipment which accompanies each load and mail it immediately to the committee office.
(v) Each processor who receives cull onions shall make available at its business office at any reasonable time during business hours, copies of all applicable purchase orders, sales contracts, or disposition documents for examination by the Department or by the committee, together with any other information which the committee or the Department may deem necessary to enable it to determine the disposition of the onions.
(vi) If a processor employs a subcontractor for any stage of processing, such processor shall be responsible for ensuring that the subcontractor accounts for all quantities of onions received and processed or otherwise disposed of, and that the subcontractor reports to the committee in the same manner and frequently as the processor.
(5) Cull onions transported in bags shall be transported in unlabelled bags, or shall have labelled bags reversed so that the label is not visible.
(g) Definitions. U.S. onion standards means the United States Standards for Grades of Bermuda-Granex-Grano Type Onions (7 CFR 51.3195-51.3209), or the United States Standards for Grades of Onions (Other Than Bermuda-Granex-Grano and Creole Types) (7 CFR 51.2830-51.2854), whichever is applicable to the particular variety, or variations thereof specified in this section. The term U.S. No. 1 shall have the same meaning as set forth in these standards. Processing means cooking or freezing the onions in such a way, or with such other food components, that the consistency of the product is changed. Canning and freezing shall be considered forms of processing. All other terms used in this section shall have the same meaning as when used in Marketing Agreement No. 143, as amended, and this part.
PART 966 – TOMATOES GROWN IN FLORIDA
Subpart A – Order Regulating Handling
Definitions
§ 966.1 Secretary.
Secretary means the Secretary of Agriculture of the United States, or any officer or employee of the Department to whom authority has heretofore been delegated, or to whom authority may hereafter be delegated, to act in his stead.
§ 966.2 Act.
Act means Public Act No. 10, 73d Congress, as amended and as reenacted and amended by the Agricultural Marketing Agreement Act of 1937, as amended (48 Stat. 31, as amended; 7 U.S.C. 601 et seq.; 68 Stat. 906, 1047).
§ 966.3 Person.
Person means an individual, partnership, corporation, association, or any other business unit.
§ 966.4 Production area and regulated area.
(a) Production area means the counties of Pinellas, Hillsborough, Polk, Osceola, and Brevard in the State of Florida, and all the counties of that State situated south of such counties.
(b) Regulated area means that portion of the State of Florida which is bounded by the Suwannee River, the Georgia border, the Atlantic Ocean, and the Gulf of Mexico.
§ 966.5 Tomatoes.
Tomatoes means all varieties of the edible fruit (Lycopersicon esculentum) commonly known as tomatoes and grown within the production area.
§ 966.6 Handler.
Handler is synonymous with shipper and means any person (except a common or contract carrier transporting tomatoes for another person) who, as owner, agent, or otherwise, handles fresh tomatoes or causes fresh tomatoes to be handled.
§ 966.7 Handle.
Handle or ship means to sell, transport, deliver, or in any other way to place fresh tomatoes, produced in the production area, in the current of commerce within the regulated area or between any point in the regulated area and any point outside thereof. Such term shall not include the transportation, sale or delivery of field-run tomatoes within the production area by the producer thereof to a registered handler for the purpose of having such tomatoes prepared for market. A registered handler is a handler who has adequate facilities in the production area for grading and packing tomatoes and who is registered with the committee pursuant to rules established with the approval of the Secretary.
§ 966.8 Producer.
Producer means any person engaged in a proprietary capacity in the production of tomatoes for market.
§ 966.9 Grading.
Grading is synonymous with preparation for market and means the sorting or separation of tomatoes into grades, sizes, maturities, and packs for market purposes.
§ 966.10 Grade and size.
Grade means any one of the established grades of tomatoes and size means any one of the established sizes of tomatoes as defined and set forth in U.S. Standards for Fresh Tomatoes (§§ 51.1855 to 51.1877 of this title or U.S. Consumer Standards for Fresh Tomatoes (§§ 51.1900 to 51.1913 of this title), both issued by the United States Department of Agriculture, or amendments thereto, or modifications thereof, or variations based thereon recommended by the committee and approved by the Secretary.
§ 966.11 Pack.
Pack means any of the packs of tomatoes as defined and set forth in the United States Standards for Fresh Tomatoes issued by the United States Department of Agriculture (§§ 51.1855 to 51.1877 of this title), or any pack of tomatoes recommended by the committee and approved by the Secretary.
§ 966.12 Maturity.
Maturity means any of the various degrees of ripeness of tomatoes as established by the committee with approval of the Secretary as determined at the time of the inspection, pursuant to § 966.60(a).
§ 966.13 Container.
Container means a box, bag, crate, hamper, basket, package, tube, bulk load or any other type of unit used in the packaging, transportation, sale, shipment, or handling of tomatoes.
§ 966.14 Varieties.
Varieties means and includes all classifications or subdivisions of tomatoes according to those definitive characteristics now or hereafter recognized by the United States Department of Agriculture.
§ 966.15 Committee.
Committee means the Florida Tomato Committee, established pursuant to § 966.22.
§ 966.16 Fiscal period.
Fiscal period means the period beginning August 1 and ending July 31 following.
§ 966.17 District.
District means each one of the geographic divisions of the production area initially established pursuant to § 966.24, or as reestablished pursuant to § 966.25.
§ 966.18 Export.
Export means shipment of tomatoes beyond the boundaries of the 48 contiguous States (including the District of Columbia) of the United States.
Committee
§ 966.22 Establishment and membership.
(a) The Florida Tomato Committee, consisting of 10 producer members, is hereby established. For each member of the committee there shall be an alternate who shall have the same qualifications as the member.
(b) Each person selected as a committee member or alternate shall be an individual who is a producer, or an officer or an employee of a corporate producer, in the district for which selected and a resident of the production area.
§ 966.23 Term of office.
(a) The term of office of committee members, and their respective alternates, shall be for 2 years and shall begin as of August 1 and end as of July 31.
(b) Committee members and alternates shall serve during the term of office for which they are selected and have qualified, or during that portion thereof beginning on the date on which they qualify during such term of office and continuing until the end thereof, and until their successors are selected and have qualified.
§ 966.24 Districts.
For the purpose of determining the basis for selecting committee members the following districts of the production area are hereby initially established.
§ 966.25 Redistricting.
The committee may recommend, and pursuant thereto, the Secretary may approve, the reapportionment of members among districts, and the reestablishment of districts within the production area. In recommending any such changes, the committee shall give consideration to: (a) Shifts in tomato acreage within districts and within the production area during recent years; (b) the importance of new production in its relation to existing districts; (c) the equitable relationship of committee membership and districts; (d) economies to result for producers in promoting efficient administration due to redistricting or reapportionment of members within districts; and (e) other relevant factors. No change in districting or in apportionment of members within districts may become effective within less than 30 days prior to the date on which terms of office begin each year and no recommendations for such redistricting or reapportionment may be made less than six months prior to such date.
§ 966.26 Selection.
The Secretary shall select initially 3 members of the committee with their respective alternates, from each district.
§ 966.27 Nomination.
The Secretary may select the members of the committee and alternates from nominations which may be made in the following manner:
(a) A meeting or meetings of producers shall be held in each district to nominate members and alternates for the committee. The committee shall hold such meetings or cause them to be held prior to June 15 of each year or by such other date as may be approved by the Secretary pursuant to recommendation of the committee.
(b) At each such meeting at least one nominee shall be designated for each position as member and for each position as alternate on the committee.
(c) Nominations for committee members and alternates shall be supplied to the Secretary in such manner and form as he may prescribe, not later than July 15 of each year, or by such other date as may be approved by the Secretary pursuant to recommendation of the committee.
(d) Only producers may participate in designating nominees for members and alternates on the committee. In the event a person is engaged in producing tomatoes in more than one district, such person shall elect the district within which he may participate as aforesaid in designating nominees; and
(e) Regardless of the number of districts in which a person produces tomatoes, each such person is entitled to cast only one vote on behalf of himself, his agents, subsidiaries, affiliates, and representatives in designating nominees for committee members and alternates. An eligible voter’s privilege of casting only one vote as aforesaid shall be construed to permit a voter to cast one vote for each position to be filled in the respective district in which he elects to vote.
§ 966.28 Failure to nominate.
If nominations are not made within the time and in the manner specified in § 966.27, the Secretary may, without regard to nominations, select the committee members and alternates, which selection shall be on the basis of the representation provided for in §§ 966.24 through 966.26 inclusive.
§ 966.29 Acceptance.
Any person selected as a committee member or alternate shall qualify by filing a written acceptance with the Secretary within ten days after being notified of such selection.
§ 966.30 Vacancies.
To fill committee vacancies, the Secretary may select such members or alternates from unselected nominees on the current nominee list from the district involved, or from nominations made in the manner specified in § 966.27. If the names of nominees to fill any such vacancy are not made available to the Secretary within 30 days after such vacancy occurs, such vacancy may be filled without regard to nominations, which selection shall be made on the basis of the representation provided for in §§ 966.24 through 966.26 inclusive.
§ 966.31 Alternate members.
An alternate member of the committee shall act in the place and stead of the member for whom he is an alternate, during such member’s absence. In the event of the death, removal, resignation, or disqualification of a member, his alternate shall act for him until a successor of such member is selected and has qualified.
§ 966.32 Procedure.
(a) Six members of the committee shall be necessary to constitute a quorum and the same number of concurring votes shall be required to pass any motion or approve any committee action.
(b) If both a member and respective alternate are unable to attend a committee meeting, the committee may designate any other alternate present from the same district to serve in place of the absent member.
(c) The committee may provide for meeting by telephone, telegraph, or other means of communication, and any vote cast at such a meeting shall be promptly confirmed in writing: Provided, That if any assembled meeting is held, all votes shall be cast in person.
§ 966.33 Expenses and compensation.
Committee members and alternates may be reimbursed for expenses necessarily incurred by them in the performance of duties and in the exercise of powers under this part.
§ 966.34 Powers.
The committee shall have the following powers:
(a) To administer the provisions of this part in accordance with its terms;
(b) To make rules and regulations to effectuate the terms and provisions of this part;
(c) To receive, investigate, and report to the Secretary complaints of violation of the provisions of this part; and
(d) To recommend to the Secretary amendments to this part.
§ 966.35 Duties.
It shall be, among other things, the duty of the committee:
(a) At the beginning of each term of office, to meet and organize, to select a chairman and such other officers as may be necessary, to select subcommittees of committee members, and to adopt such rules and regulations for the conduct of its business as it may deem advisable;
(b) To act as intermediary between the Secretary and any producer or handler;
(c) To furnish to the Secretary such available information as he may request;
(d) To appoint such employees, agents, and representatives as it may deem necessary and to determine the salaries and define the duties of each such person;
(e) To investigate from time to time and to assemble data on the growing, harvesting, shipping, and marketing conditions with respect to tomatoes;
(f) To prepare a marketing policy;
(g) To recommend marketing regulations to the Secretary;
(h) To recommend rules and procedures for, and to make determinations in connection with, issuance of certificates of privilege or exemptions, or both;
(i) To investigate an applicant’s claim for exemptions;
(j) To keep minutes, books, and records which clearly reflect all of the acts and transactions of the committee and such minutes, books and records shall be subject to examination at any time by the Secretary or his authorized agent or representative. Minutes of each committee meeting shall be reported promptly to the Secretary;
(k) At the beginning of each fiscal period, to prepare a budget of its expenses for such fiscal period, together with a report thereon;
(l) To cause the books of the committee to be audited by a competent accountant at least once each fiscal period, and at such other time as the committee may deem necessary or as the Secretary may request. The report of such audit shall show the receipt and expenditure of funds collected pursuant to this part; a copy of each such report shall be furnished to the Secretary and a copy of each such report shall be made available at the principal office of the committee for inspection by producers and handlers; and
(m) To consult, cooperate, and exchange information with other marketing agreement committees and other individuals or agencies in connection with all proper committee activities and objectives under this part.
Expenses and Assessments
§ 966.40 Expenses.
The committee is authorized to incur such expenses as the Secretary may find are reasonable and likely to be incurred during each fiscal period for its maintenance and functioning, and for such purposes as the Secretary, pursuant to this subpart, determines to be appropriate. Handlers shall share expenses upon the basis of a fiscal period. Each handler’s share of such expense shall be proportionate to the ratio between the total quantity of tomatoes handled by him as the first handler thereof during a fiscal period and the total quantity of tomatoes handled by all handlers as first handlers thereof during such fiscal period.
§ 966.41 Budget.
At the beginning of each fiscal period and as may be necessary thereafter, the committee shall prepare an estimated budget of income and expenditures necessary for the administration of this part. The committee may recommend a rate of assessment calculated to provide adequate funds to defray its proposed expenditures. The committee shall present such budget to the Secretary with an accompanying report showing the basis for its calculations.
§ 966.42 Assessments.
(a) The funds to cover the committee’s expenses shall be acquired by the levying of assessments upon handlers as provided in this subpart. Each handler who first handles tomatoes shall pay assessments to the committee upon demand, which assessments shall be in payment of such handler’s pro rata share of the committee’s expenses.
(b) Assessments shall be levied upon handlers at rates established by the Secretary. Such rates may be established upon the basis of the committee’s recommendations and other available information. Such rates may be applied to specified containers used in the production area.
(c) At any time during, or subsequent to, a given fiscal period the committee may recommend the approval of an amended budget and an increase in the rate of assessment. Upon the basis of such recommendations, or other available information, the Secretary may approve an amended budget and increase the rate of assessment. Such increase shall be applicable to all tomatoes which were regulated under this part and which were shipped by the first handler thereof during such fiscal period.
(d) The payment of assessments for the maintenance and functioning of the committee may be required under this part throughout the period it is in effect irrespective whether particular provisions thereof are suspended or become inoperative.
(e) In order to provide funds for the administration of the provisions of this part, the committee may accept the payment of assessments in advance, or may borrow money on a short-term basis not to exceed one full-year coinciding with the existing committee’s term of office. The authority of the committee to borrow money may be used only to meet financial obligations as they occur and to allow the committee a season to adjust its reserve funds to meet any additional obligations.
§ 966.43 Accounting.
(a) All funds received by the committee pursuant to the provisions of this subpart shall be used solely for the purposes specified in this part.
(b) The Secretary may at any time require the committee, its members and alternates, employees, agents and all other persons to account for all receipts and disbursements, funds, property, or records for which they are responsible. Whenever any person ceases to be a member of the committee or alternate, he shall account to his successor, the committee, or to the person designated by the Secretary, for all receipts, disbursements, funds and property (including but not being limited to books and other records) pertaining to the committee’s activities for which he is responsible, and shall execute such assignments and other instruments as may be necessary or appropriate to vest in such successor, committee, or designated person, the right to all of such property and funds and all claims vested in such person.
(c) The committee may make recommendations to the Secretary for one or more of the members thereof, or any other person, to act as a trustee for holding records, funds, or any other committee property during periods of suspension of this subpart, or during any period or periods when regulations are not in effect and, if the Secretary determines such action appropriate, he may direct that such person or persons shall act as trustee or trustees for the committee.
§ 966.44 Excess funds.
(a) If, at the end of a fiscal period, the assessments collected are in excess of expenses incurred, such excess shall be accounted for in accordance with one of the following:
(1) If such excess is not retained in a reserve, as provided in paragraph (a)(2) of this section, to the extent practical it shall be refunded proportionately to the persons from whom it was collected.
(2) The committee, with the approval of the Secretary, may establish an operating monetary reserve and may carry over to subsequent fiscal periods excess funds in a reserve so established: Provided, That funds in the reserve shall not exceed approximately one fiscal period’s expenses. Such reserve funds may be used (i) to defray any expenses authorized under this part, (ii) to defray expenses during any fiscal period prior to the time assessment income is sufficient to cover such expenses, (iii) to cover deficits incurred during any fiscal period when assessment income is less than expenses, (iv) to defray expenses incurred during any period when any or all provisions of this part are suspended or are inoperative, and (v) to cover necessary expenses of liquidation in the event of termination of this part. Upon such termination any funds not required to defray the necessary expenses of liquidation, and after reasonable effort by the committee it is found impracticable to return such remaining funds to handlers, such funds shall be disposed of in such manner as the Secretary may determine to be appropriate.
(b) [Reserved]
§ 966.45 Contributions.
The committee may accept voluntary contributions but these shall only be used for production research, market research and development and marketing and promotion including paid advertising pursuant to § 966.48. Furthermore, such contributions shall be free from any encumbrances by the donor and the committee shall retain complete control of their use. The committee is prohibited from accepting contributions from handlers subject to the order, or any person whose contributions would constitute a conflict of interest.
Research and Development
§ 966.48 Research and promotion.
The committee may, with the approval of the Secretary, establish, or provide for the establishment of projects including production research, marketing research and development projects, and marketing promotion including paid advertising, designed to assist, improve or promote the marketing, distribution and consumption or efficient production of tomatoes. The expenses of such projects shall be paid by funds collected pursuant to §§ 966.42 and 966.45. Upon conclusion of each project, but at least annually, the committee shall summarize the program status and accomplishments, to its members and the Secretary. A similar report to the committee shall be required of any contracting party on any project carried out under this section. Also, for each project the contracting party shall be required to maintain records of money received and expenditures and such shall be available to the committee and the Secretary.
Regulation
§ 966.50 Marketing policy.
Prior to or at the same time as initial recommendations are made pursuant to § 966.51, the committee shall submit to the Secretary a report setting forth the marketing policy it deems desirable for the industry to follow in shipping tomatoes from the production area during the ensuring season. Additional reports shall be submitted from time to time if it is deemed advisable by the committee to adopt a new or modified marketing policy because of changes in the demand and supply situation with respect to tomatoes. The committee shall publicly announce the submission of each such marketing policy report and copies thereof shall be available at the committee’s office for inspection by any producer or any handler. In determining each such marketing policy the committee shall give due consideration to the following:
(a) Market prices of tomatoes, including prices by grades, sizes, and quality in different packs, and such prices by foreign competing areas;
(b) Supply of tomatoes, by grade, size, and quality in the production area, and in other production areas, including foreign competing production areas;
(c) Trend and level of consumer income;
(d) Marketing conditions affecting tomato prices; and
(e) Other relevant factors.
§ 966.51 Recommendations for regulations.
The committee, upon complying with the requirements of § 966.50, may recommend regulations to the Secretary whenever it finds that such regulations, as are provided for in this subpart, will tend to effectuate the declared policies of the act.
§ 966.52 Issuance of regulations.
The Secretary shall limit the handling of tomatoes whenever he finds from the recommendation and information submitted by the Committee, or from other available information, that such regulation would tend to effectuate the declared policy of the act. Such regulation may:
(a) Limit, in any or all portions of the production area, the handling of particular grades, sizes, qualities (including maturity as a factor of grade or quality), or packs of any or all varieties of tomatoes, during any period; or
(b) Limit the handling of particular grades, sizes, qualities, or packs of tomatoes differently, from different varieties, for different stages of maturity, for different portions of the production area, for different containers, for different markets, for different purposes specified in § 966.54, or any combination of the foregoing, during any period; or
(c) Limit the handling of tomatoes by establishing, in terms of grades, sizes, or both, minimum standards of quality and maturity; or
(d) Fix the size, weight, capacity, dimensions, markings (including labels and stamps), or pack of the container or containers which may be used in the packaging, transportation, sale, shipment, or other handling of tomatoes.
§ 966.53 Minimum quantities.
The committee, with the approval of the Secretary, may establish, for any or all portions of the production area, minimum quantities below which handling will be free from regulations issued or effective pursuant to §§ 966.42, 966.52, 966.54, 966.60, or any combination thereof.
§ 966.54 Shipments for special purposes.
Upon the basis of recommendations and information submitted by the committee, or other available information, the Secretary, whenever he finds that it will tend to effectuate the declared policy of the act, shall modify, suspend, or terminate regulations issued pursuant to §§ 966.42, 966.52, 966.53, 966.60, or any combination thereof, in order to facilitate handling of tomatoes for the following purposes:
(a) For export;
(b) For relief or for charity;
(c) For processing; or
(d) For other purposes which may be specified by the committee, with the approval of the Secretary.
§ 966.55 Notification of regulation.
The Secretary shall notify the committee of any regulations issued or of any modification, suspension, or termination thereof. The committee shall give reasonable notice thereof to handlers.
§ 966.56 Safeguards.
(a) The committee, with the approval of the Secretary, may prescribe adequate safeguards to prevent handling of tomatoes pursuant to § 966.53 or § 966.54 from entering channels of trade for other than the specific purpose authorized therefor, and rules governing the issuance and the contents of Certificates of Privilege if such certificates are prescribed as safeguards by the committee. Such safeguards may include requirements that:
(1) Handlers shall file applications with the committee to ship tomatoes pursuant to §§ 966.53 and 966.54; or
(2) Handlers shall obtain inspection provided by § 966.60, or pay the assessment levied pursuant to § 966.42, or both, in connection with shipments made under § 966.54; or
(3) Handlers shall obtain Certificates of Privilege from the committee to handle tomatoes effected or to be effected under the provisions of §§ 966.53 and 966.54.
(b) The committee may rescind or deny Certificates of Privilege to any handler if proof is obtained that tomatoes handled by him for the purposes stated in §§ 966.53 and 966.54 were handled contrary to the provisions of this part.
(c) The Secretary shall have the right to modify, change, alter, or rescind any safeguards prescribed and any certificates issued by the committee pursuant to the provisions of this section.
(d) The committee shall make reports to the Secretary, as requested, showing the number of applications for such certificates, the quantity of tomatoes covered by such applications, the number of such applications denied and certificates granted, the quantity of tomatoes handled under duly issued certificates, and such other information as may be requested.
Inspection
§ 966.60 Inspection and certification.
(a) During any period in which the handling of tomatoes is regulated pursuant to this subpart no handler shall handle tomatoes unless such tomatoes have been inspected and certified as meeting the requirements of this subpart by an authorized representative of the Federal or Federal-State Inspection Service, or such other inspection service as the Secretary shall designate, and such tomatoes are covered by a valid inspection certificate except when relieved from such requirements pursuant to § 966.53 or § 966.54 or both.
(b) Insofar as the requirements of this section are concerned, the length of time for which an inspection certificate is valid may be established by the Secretary upon the recommendation of the committee.
(c) When tomatoes are inspected in accordance with the requirements of this section a copy of each inspection certificate issued shall be made available to the committee by the inspection service.
Exemptions
§ 966.70 Procedure.
The committee may adopt, with approval of the Secretary, the procedures pursuant to which certificates of exemption will be issued to producers or handlers.
§ 966.71 Granting exemptions.
The committee shall issue certificates of exemption to any producer who applies for such exemption and furnishes adequate evidence to the committee, that by reason of a regulation issued pursuant to § 966.52 he will be prevented from handling as large a proportion of his production as the average proportion of production handled during the entire season, or such portion thereof as may be determined by the committee, by all producers in said applicant’s immediate pro